Autonomy, guardianship and mental disorder: one problem, two solutions

The law in England and Wales governing both the provision of medical care in the case of adults with incapacity and the provision of care and treatment for mental disorder presents serious problems for the principle of patient autonomy. The adult with incapacity has no competence either to consent to or refuse medical treatment but the law provides no statutory structure for substitute decision making on that adult's behalf. On the other hand the law does allow a person with mental disorder to be treated for that disorder despite his or her competent refusal. The nature of these inconsistencies is considered and the implications which flow from the singling out of mental disorder are examined with reference to experience in two Australian jurisdictions. The current proposals for reform of the Mental Health Act are then considered in the light of the conclusions drawn.

Old age psychiatry and the law

BACKGROUND

Old age psychiatry is no less subject to increasing legal and quasilegal restraint than other branches of the profession, but the emphases are different. Two themes predominate: first, that of capacity or competence; and second, to what extent formal legal measures should be implemented in cases where incapacitated patients do not dissent from, as opposed to giving active consent to, admission to hospital or receiving treatment.

AIMS

To discuss the issues of capacity or competence, especially in relation to recent legislation and judgements and to proposed legislation in England and Wales.

METHOD

Selective review and discussion of recent case law and current and proposed statute law.

RESULTS AND CONCLUSIONS

The Bournewood case threatened but ultimately failed to upset the status quo. However, the European Convention on Human Rights and the British Human Rights Act 1998 may yet do so.

Liberty: human rights and mental health

In this paper, Lord Phillips reflects on the present state of the law relating to mental health; he considers the place of the common law doctrine of necessity as the basis for the detention of patients; he reviews a number of issues arising from the jurisprudence of the European Court of Human Rights in Strasbourg and a number of recent decisions of the Court of Appeal. Finally, he considers the prospects for change in the law foreshadowed in the Government's White Paper on the Reform of Mental Health Law (2000).

Neither consenting nor protesting: an ethical analysis of a man with autism

This article critically examines the 25 June 1998 decision by the House of Lords regarding the psychiatric admission of a man with autism. Mr L was able neither to consent to, nor refuse, that admission and the disposition of his case illuminates the current debate regarding best interests of vulnerable adults by the judiciary and the psychiatric profession. This article begins with the assumption that hospitalisation was not the optimum response to Mr L's condition, provides alternative approaches to the interpretation of best interest and examines principles of liberty, anti-discrimination, and equal protection.

Consent and capacity in psychiatric practice revisited

Abstract

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Frontiers in care: a case of compulsory treatment in AIDS dementia. Case study and commentaries

A patient with AIDS dementia was confronted and compulsorily prevented from flying out of the country before being admitted against his will to hospital. While finding this on balance justified in the circumstances the commentators raise moral questions about the levels of care in general practice and within the couple's own relationships.

Food refusal in prisoners: a communication or a method of self-killing? The role of the psychiatrist and resulting ethical challenges

Food refusal occurs for a variety of reasons. It may be used as a political tool, as a method of exercising control over others, at either the individual, family or societal level, or as a method of self-harm, and occasionally it indicates possible mental illness. This article examines the motivation behind hunger strikes in prisoners. It describes the psychiatrist's role in assessment and management of prisoners by referring to case examples. The paper discusses the assessment of an individual's competence to commit suicide by starvation, legal restraints to intervention, practical difficulties and associated ethical dilemmas. Anecdotal evidence suggests that most prisoners who refuse food are motivated by the desire to achieve an end rather than killing themselves, and that hunger-strike secondary to mental illness is uncommon. Although rarely required, the psychiatrist may have an important contribution to make in the management of practical and ethical difficulties.

The family rule: a framework for obtaining ethical consent for medical interventions from children

Children's consent to treatment remains a contentious topic, with confusing legal precepts and advice. This paper proposes that informed consent in children should be regarded as shared between children and their families, the balance being determined by implicit, developmentally based negotiations between child and parent--a "family rule" for consent. Consistent, operationalized procedures for ethically obtaining consent can be derived from its application to both routine and contentious situations. Therefore, use of the "family Rule" concept can consistently define negligent procedure in obtaining consent from children, and could be used as a unifying framework in the development of new professional guidelines. A "guideline"-based approach to children's consent to treatment may offer greater individuality than a "rights"-based approach, though careful training and oversight will be needed for it to be effective.

Application of the powers of compulsory admission to psychiatric hospital by general practitioners, social workers and psychiatrists

Ways of extending or consolidating the powers of compulsory admission under the Mental Health Act 1983 have been discussed by the government and other organizations, including the Royal College of Psychiatrists. However there is little data on how existing legislation is applied. The authors examined the differential application of the Act between GPs, psychiatrists and social workers by means of an anonymous, confidential questionnaire. Fourteen case vignettes were interpreted by 20 social workers, 19 GPs and 28 Section 12 approved psychiatrists, who were asked to decide if they would detain the patient under the Act. Responses were analysed between and within the three groups. There was general agreement between groups on situations involving 'danger to self' and 'danger to others', but social workers were less likely to detain on health grounds and GPs tended to use the Act unpredictably, in areas not covered by the Act. The authors conclude that the Act may not be used to its fullest extent due to differences in interpretation or in knowledge, which may arise from differential constructs of mental illness and training. A national study of knowledge of mental health law is suggested.

Compulsory treatment in anorexia nervosa. Short-term benefits and long-term mortality

BACKGROUND

Anorexia nervosa is a mental disorder with a high long-term mortality. Patients are ambivalent about treatment and often avoid it. Of necessity, compulsory treatment sometimes must be considered. A report from the Mental Health Act Commission has helped to reduce previous confusion.

AIMS

To identify the premorbid and clinical features that predisposed to compulsory admissions, the short-term benefits of the treatment and the long-term mortality rates (derived from the National Register).

METHOD

Eighty-one compulsory patients were compared with 81 voluntary patients.

RESULTS

Predisposing factors to a compulsory admission were a history of childhood sexual or physical abuse or previous self-harm. Detained patients had more previous admissions. Detained patients gained as much weight during admission as voluntary patients, but took longer. More deaths among compulsory than voluntary patients (10/79 v. 2/78) were found 5.7 years (mean) after admission.

CONCLUSIONS

Compulsory treatment is effective in the short term. The higher long-term mortality in the detained patients is due to selection factors associated with an intractable illness.

Genetically determined obesity in Prader-Willi syndrome: the ethics and legality of treatment

A central characteristic of people with Prader-Willi Syndrome (PWS) is an apparent insatiable appetite leading to severe overeating and the potential for marked obesity and associated serious health problems and premature death. This behaviour may be due to the effects of the genetic defect resulting from the chromosome 15 abnormalities associated with the syndrome. We examine the ethical and legal dilemmas that can arise in the care of people with PWS. A tension exists between a genetic deterministic perspective and that of individual choice. We conclude that the determination of the capacity of a person with PWS to make decisions about his/her eating behaviour and to control that behaviour is of particular importance in resolving this dilemma. If the person is found to lack capacity, the common law principles of acting in a person's "best interests" using the "least restrictive alternative" may be helpful. Allowing serious weight gain in the absence of careful consideration of these issues is an abdication of responsibility.

Ethical issues in long-term psychiatric management

Two general ethical problems in psychiatry are thrown into sharp relief by long term care. This article discusses each in turn, in the context of two anonymised case studies from actual clinical practice. First, previous mental health legislation soothed doubts about patients' refusal of consent by incorporating time limits on involuntary treatment. When these are absent, as in the provisions for long term care which have recently come into force, the justification for compulsory treatment and supervision becomes more obviously problematic. Second, Anglo-American law does not normally allow the preventive detention of someone who may be dangerous but has not actually committed any crime. The justification for detaining a possibly dangerous user of mental health services without his or her consent can only be based on risk assessment, but this raises issues of moral luck. Is the psychiatrist who decides not to take out a supervision order for a possibly dangerous patient with an initial psychotic diagnosis morally at fault if that person harms someone in the community, or himself? Or is the psychiatrist merely unlucky?

Almost a revolution: an international perspective on the law of involuntary commitment

To what extent have developments in commitment law around the world paralleled trends in the United States in the last three decades? Although the American emphasis on dangerousness criteria and strigent procedural rights has been echoed in a number of other countries, it has not dominated reform in most nations. The leading alternative has been the 1983 Mental Health Act in England and Wales, with its focus on the "health and safety" of the patient, as well as protection of other persons, and its avoidance of judicial hearings. How have these reforms fared? Extensive data from the United States, and more limited data from other countries, suggest that reforms in general are resisted when they are seen as shifting the focus away from patients' treatment needs. When law fails to reflect widely held moral sentiments, it is molded in practice to conform more closely to those sentiments. It is helpful to recognize that a variety of approaches to mental health law are consistent with reasonable protection of civil liberties in a democratic society. Greater attention to practices in other countries may help reformers expand the menu of options in policy debates.

The nurse's role as patient advocate for mentally ill people

The recent report of the Confidential Inquiry into Homicides and Suicides by Mentally Ill People (the Boyd report) compiled for the government, and the imminent publication of the Mental Health Patient's Charter, highlight national concern over the provision of care for this group of people. This article examines some of the dilemmas facing mental health nurses when caring for patients under detention orders and evaluates guidelines and recommendations which can aid the nurse in providing appropriate care.

Why do so few patients appeal against detention under Section 2 of the Mental Health Act?

OBJECTIVE

To determine why most patients do not exercise their right of appeal against detention under section 2 of the Mental Health Act 1983.

DESIGN

Part one--retrospective analysis of the clinical notes of patients detained under section 2 of the Mental Health Act. Part two-interviews with patients on the penultimate day before the deadline for lodging an appeal.

SETTING

In part one, five districts in the Oxfordshire Regional Health Authority. In part two, six hospitals from three districts in the region.

SUBJECTS

In part one all patients detained under section 2 in the five districts in 1993 (n = 418). In part two interviews with 40 patients detained under section 2 in the six hospitals.

RESULTS

Patients were more likely to appeal if they were educated to A level standard (odds = 2.26; P = 0.0014) or had had a previous admission (2.19, P = 0.0029). Patients with a diagnosis of depression (0.31; P = 0.0.15) or dementia (0.0003, P = 0.0001) were less likely to appeal. Compared with those who appealed (n = 12) those who did not (n = 28) showed less understanding of their rights (P = 0.034) and poorer comprehension of sentences from the booklet describing patients' rights (P = 0.057). The main reasons given for not appealing were not being aware of the appeals process and being deterred by having to appeal in writing. After they received a full explanation of their rights 12 of those who did not appeal said that they wished to appeal and four did so within the time remaining before the deadline. Of 40 patients, 39 said there should be an automatic right of appeal.

CONCLUSIONS

The appeals procedure against detention under section 2 of the Mental Health Act is not a satisfactory way of protecting the civil liberties of patients. If patients were fully informed of their rights they would probably be much more likely to appeal.

Withholding consent to lifesaving treatment: three cases

The refusal of children or their parents to consent to treatment that professionals regard as essential always results in a dilemma. Responding to such refusals demands careful and sensitive clinical and thicolegal intervention and close cooperation among professionals, in particular doctors and social workers. Since the introduction of the Children Act 1989 the number of cases in which children have withheld consent to lifesaving treatment has risen, and it is now increasingly recognised that children have a right to have their views legally represented if a local authority or health authority seeks a court's leave to carry out treatment. Professionals have to consider which legal route, under either the Children Act or the Mental Health Act, is likely to be best for the individual child.

The right to be treated against her will

... My sister's inconsistent and intermittent treatment over the past eight years is largely a result of her own indecision and the inconsistencies of her abnormal mental state. The professionals who might have taken control of the situation as her health and functioning deteriorated have not done so and I must presume that they believe they cannot do so. I do not think her case is unique. There are many more people living in the community who are severely ill and are being deprived of treatment they need.

Mental health law: civil liberties and the principle of reciprocity

At a conference organised by the Law Society, Mental Health Act Commission, and Institute of Psychiatry possible reform of mental health legislation in England and Wales was discussed. It was concluded that radical legal reform was required, and that the law should be designed specifically for provision of care in both hospital and the community. Reform should be based on principle rather than pragmatism, particularly the principle of reciprocity--patients' civil liberties may not be removed for the purposes of treatment if resources for that treatment are inadequate. Protection of society from nuisance or even violence is insufficient reason for detention. Legal provision for compulsion of patients, whether in hospital or the community, must be matched by specific rights to treatment.