Table of Contents
Law is the body of rules formally sanctioned by Parliament and the Courts. The rules defined as 'law', are administered by 'legal fora': that is a court of justice where disputes are heard and decided or a judicial tribune that hears and decides disputes or a place of jurisdiction where remedies afforded by the law are pursued.
Ethics addresses 'normative' (ideal standard or model) issues involving conflicts between ethical principles and between the interests of different parties. 'ethical codes' may sometimes have the status of law when they are administered by professional (self-governing) bodies.
The General Medical Council in England sets out in his "Good Medical Practice" guidelines the principles and values on which a doctor's good medical professionalism is founded. Cases heard by GMC fitness to practise panels provide examples of where a failure to follow the guidance in Good Medical Practice can put a doctor's registration at risk.
These are 'shoulds' of psychiatric practice. In considering psychiatric ethical issues, it is important to distinguish technical ('positive') questions and ethical ('normative') questions.
The conflict between the autonomy of the patient and the duty of care of the doctor is central to all medical ethics. The need to obtain valid consent from the patient and medical negligence are two of the major ethical issues. Many ethical dilemmas can be distilled out to originate from this conflict.
Ethics must operate on a legal back-cloth which may be a natural coherence but a necessary coherence. Ethics 'fill the gaps' in the law, often arising because the law is 'silent' on many matters. Ethical principles may clearly give rise to legal constructs (for example the principle of autonomy as the basis of the law of battery).
It is relevant to distinguish between psychiatric diagnosis and legal or social concepts. Hence mania is a diagnosis, while arson is a crime (therefore you cannot have a 'diagnosis' of arson). Also schizophrenia is a diagnosis whilst 'abnormality of mind' (giving rise to 'diminished responsibility') is a legal construct. In the latter example there is no reason why the two should necessarily relate to one another, even where the same word is used, for example, 'psychopathy' (in psychiatry) and 'psychopathic disorder' (in law).
Law may adopt a 'term of art' from psychiatry but then define and/or use it so that it means something different from the original psychiatric construct. This distinction, between psychiatric and legal constructs, is central to 'legal psychiatry'. It emphasises the 'boundary' between psychiatric diagnosis or formulation and the legal use and implication of that diagnosis or formulation. The distinction is important in 'verdict issues' and 'disposal issues'.
There is a difference between common law and statute law. Statute law 'trumps' and 'Sits upon' common law (for example the Mental Health Act 1983 overrides common law in specified respects but the common law still applies to detained patients where the Act is 'silent').
Civil law involves one individual' against another and relates to any matter defined by Parliament or the Courts as 'civil'; criminal law involves the State against an individual; where Parliament and/or the Courts have defined an activity as a 'crime', giving the State the right to initiate proceedings on behalf of society. As an example, a defendant with a psychopathic personality disorder may be convicted of 'diminished responsibility manslaughter' (in the criminal law) but yet be sent to prison because he is not detainable under the Mental Health Act 1983 (in civil law).
The legal flora include courts and quasi-judicial fora such as the Mental Health Review Tribunals. Criminal Courts are Magistrates' Courts, crown Courts (Central Criminal Court), Appeal Court (Criminal Division), House of Lords. Civil Courts are High Court, Appeal Court and House of Lords. Juvenile Courts are involved in Juvenile Criminal Care or Custody Order Proceedings. Other courts include Coroners' Courts and probably the Mental Health Review Tribunals.
Psychiatrists are involved in many aspects of legal matters related to their patients. The most common is criminal forensic issues and psychiatric reports; although they are required to be aware of civil legal matters, courts and reports. Legal psychiatry can be divided into civil and criminal legal psychiatry.
Part IV of the Mental Health Act 1983 deals with legal aspects of consent to treatment for detained patients. However, it is also relevant to consider the common law and ethical aspects of consent to treatment.
Any patient has the right to control his/her own body. This translates legally into assault if the patient is 'medically touched' without consent (i.e. without consent to that touching). Hence: (only) avoid assault if can demonstrate that the patient consented. But law may also define absence of consent (in spite of patient saying 'yes') on basis of legal invalidation of 'apparent consent'.
There is no valid (ethical) consent without all elements been satisfied.
English law defines the elements in the following terms
There is no 'statutory statement' [except in Part IV of the Mental Health Act] but competence is taken to mean the patient is 'capable of understanding in broad terms the nature and purpose of the treatment'.
Mental Health Act defines lack of competence as the patient is "incapable of understanding the nature, purpose and likely effects of the treatment". The law presumes that every adult is competent to make decisions for themselves unless proven otherwise.
The burden of this element of informed consent, the "knowledge" element, rests with the treating clinicians. Specifically, the doctor must provide a reasonable amount of information regarding the known risks and benefits of a recommended treatment, as well as the risks and benefits of treatment alternatives. Not surprisingly, the volume of information necessary to make an informed decision varies depending on the nature and complexity of the decision at hand.
Furthermore, different patients will certainly differ in the amount of information they desire.
In general, however, a standard has emerged that is consistent with numerous other areas of the law: the "reasonable person" standard, or that amount of information that the typical person would find adequate and/or necessary to make such a decision.
There are two possible standards for proper information. - 'patient based': The clinician must give level of information which is necessary in order to allow patient to operate his/her autonomy. - 'profession based': The clinician must give that level of information which is normally given by the profession in that medical situation, based on 'duty of care'.
If the clinician gives no or very little information then that amounts to assault; if give he/she give some or not enough information then amounts to negligence (i.e. breach of 'duty of care').
English law adopts 'Profession based standards with strings attached' (often called 'Bolam test with strings attached').
Understanding.: It is questionable if this is necessary in English law.
Voluntariness, the third element of informed consent, pertains to the patient's decision making process. Individuals must be free to make their own decisions without undue coercion from others. Defining the contours of voluntariness occurs primarily in the courts.
It is necessary to distinguish between covert/overt coercion and coercion/acceptance of reality (e.g. patient knows will be 'sectioned' if doesn't accept admission or treatment). Often these are fine dividing lines.
In most cases, it is clear whether or not patients are competent to make their own decisions. Occasionally, it is not so clear. Patients are under an unusual amount of stress during illness and can experience anxiety, fear, and depression. The stress associated with illness should not necessarily preclude one from participating in one's own care. However, precautions should be taken to ensure the patient does have the capacity to make good decisions.
There are several different standards of decision making capacity.
Generally you should assess the patient's ability to: understand his or her situation, understand the risks associated with the decision at hand, and communicate a decision based on that understanding. Competent patients have the right to refuse treatment, even those treatments that may be life-saving. Treatment refusal may, however, be a flag to pursue further the patient's beliefs and understanding about the decision, as well as your own.
The patient decision making capacity may vary from day to day. Patients can move in and out of a coherent state as their medications or underlying disease processes ebb and flow. You should do what you can to catch a patient in a lucid state - even lightening up on the medications if necessary - in order to include him in the decision making process. Patients can give different 'messages' at different times and can give different 'messages' in different modalities.
There is a difference between "the fact of consent" from "evidence as to consent" (e.g. consent form does not amount to the fact of consent, only evidence as to consent).
A patient may agree to be interviewed and consent to attend and this imply consent but implied consent cannot be used beyond that which is 'reasonable'. Implied consent can be also considered when the patient's consent is 'unavailable' where reasonable man would consent, for example, when a patient is unconscious.
However, this is complicated if the patient is unconscious after an overdose.
The common law doctrine of necessity provides that mentally incapacitated adults may be restrained using reasonable force and given treatment without consent which is necessary in their best interests, without those carrying out the treatment incurring liability in battery. This common law doctrine is now codified in sections 5 and 6 of the Mental Capacity Act 2005. Treatment given under the doctrine of necessity may be for physical or mental disorder.
The doctrine of necessity is used where there is some level of patient incompetence and, when without intervention, serious harm/death would likely occur (since the doctor owes a 'duty of care').
However, it is essential to distinguish between necessity and convenience. The 'doctrine of a wrongful life' is a malpractice claim brought by or on behalf of a child born with a birth defect alleging that he or she would never have been born if not for the negligent advice or treatment provided to the parents by a physician or health-care provider. There is no claim for wrongful life in relation to assessment of damages arising from battery or negligence.
When it is essential to intervene to prevent serious immediate harm to patient or others, especially when it relates to psychiatric patients, the intervention is accepted without consent. This is distinguished from 'urgent ' treatment under Section 62 of the Mental Health Act 1983.
Suicide used to be a crime. The clinician has a duty to reverse the effects of the suicide attempt without consent but he cannot stop (suicidal) patient walking out of casualty, unless the patient is detainable or was actually detained for mental disorder under the Mental Health Act (1983). If there are concerns about the mental health of the patient who left causality refusing treatment for a suicide attempt, the doctor may ask the police to bring patient for assessment under the Mental Health Act. detained under the Mental Health Act (1983): requires satisfaction of criteria in the Act [mental disorder plus 'consequences' criterial.
Treatment can start only according to terms of Part IV of the Act. Mental Health Act adds 'powers to doctors' and 'safeguards for patients1 which Sit 'on top of' common law provisions.
There is no legal (ethical) basis for 'proxy consent'.
You can not test for AIDS without consent, even though consent to blood being taken is granted. AIDS test is so momentous in its Personal and social implications that 'separate' consent to test the blood is required. Testing of blood without such consent implies lack of consent and therefore assault. Some doctors may argue that "you would be negligent if you did not test for a medical condition that you suspected" (so resorting to 'duty of care'). This is not accepted legally. There is a potential conflict between duty of care (relating to negligence), and consent requirement (relating to assault).
Formal incapacity (which itself is different from lack of wisdom in decision making) is different from diminished mental capacity as a basis for a particular judicial decision. For example a person may lack a formal testamentary capacity, when another has a mental disorder which may affect a particular judicial decision concerning 'care and control' of a child.
Law treats mental capacity as 'action specific' concept.
There is an important distinction between 'refusal' of treatment and 'lack of competent 'consent'.
to be competent to consent to treatment the patient must be capable of understanding in broad terms the nature and purpose of the treatment.
the only statutory definition of mental competence to consent to treatment, defined as "capable of understanding the nature, purpose and likely affects of treatment". This applies only to treatment "for mental disorder" and applies only to detained patients (except Section 57). Hence, incapacity is a basis for allowing compulsory treatment (also being a basis for a patient's right to a 'second opinion' under Section 58). Many patients are not detained therefore (apart from Section 57) only common law applies. Common examples, an elderly demented (often detainable but not detained), a mentally handicapped (either detainable but not detained or not detainable because is defined as 'mental impairment', not 'severe mental impairment', and may not be treatable).
Article 8 of the European Convention on Human Rights secures the right of all to respect for private and family life. U.N. Declaration of Right of Mentally Retarded Persons (1971) recognises the right of mentally handicapped person to live with his own family; but says nil regarding the right to develop sexual and family relationship for him/herself. There is a delicate balance between the need for patient protection and right of patient to normal sexual and family relationships.
There is a balance between 'capacity to consent to sexual intercourse' and duty of 'protection of mentally disordered'. Patients are protected by ordinary criminal law (i.e. Sexual Offences Act etc).
In particular, protections may arise from the fact of the mental disorder. It is an offence for male staff to have sexual intercourse with patient of the hospital and it is an offence for male guardian to have sexual intercourse with subject of guardianship order. Another offence is for a male person who otherwise has custody or care of the patient under the Mental Health Act to have sexual intercourse with the patient. It is an offence for any person to have sexual intercourse with patient with 'severe mental handicap' (even though the patient may be capable in law of consenting to intercourse). This also applies most commonly in relation to two mentally handicapped persons.
The legal capacity to marry is not equivalent to the legal capacity to have (extramarital) sexual relations. English law attempts to take a relaxed view of qualification for matrimony, whilst preserving idea that it must be a voluntary consensual union. There are two grounds for annulment, lack of valid (competent) consent and sufferance from mental disorder within the meaning of the Mental Health 1983 such that the person is unfitted for marriage (even though competent to consent to marry).
- Lack of competence to consent : Law requires only competence to understand the nature of the contract and its basic responsibilities (few fail this test since marriage is a well known social concept). - 'Unfitness for marriage': There must be a mental disorder in terms of Section I of the Mental Health Act 1983; however. It is not enough to show that the person is 'difficult to live with'. The person must show incapacity to carry out ordinary duties of marriage. Both grounds result in marriage being 'voidable' (not 'void'). Marriage exists until successfully challenged in the Courts by one of the parties.
Before marriage, any person (including a doctor) may enter a 'caveat' with a 'Super-intendent Registrar', at the Register Office which he must investigate. The registrar will rarely refuse to marry the couples on the basis of 'unfitness for marriage', it is more commonly that he will refuse marriage on the basis of 'incapacity to consent to marriage'. In general: doctors should be wary of intervention; psychiatric grounds must be very substantial.
Divorce is governed (as for non-mentally disordered) by the Matrimonial Causes Act 1973. The capacity to consent to divorce is exactly similar to the capacity to consent to marriage. Non-consensual divorce is achievable only on the basis of behaviour as specified in the Matrimonial Causes Act; hence, mental disorder is a basis for divorce only where it results in relevant legally behaviour.
All law about children is governed by 'supremacy of the interest of the child'. Separation or divorce usually results in custody to the mother, unless (for example) mental disorder 'affects her capacity to love and care for the child'. The court makes a Care Order (Children and Young Persons Act 1969) where parent(s) can not safely care for child.
A care order is an order that places a child in the care of the local authority. 'voluntary care': may occur where parents are prevented from caring for them because of variety of causes (including 'disease or infirmity'). The local authority can takes the parental rights if a parent(s) suffer(s) from permanent disability or suffer(s) from mental disorder within the meaning of the Mental Health Act 1983 such that he/she is unfit to care for the child (even though not detained under the Act).
There is no legal basis for proceedings before birth even when the mother is known to be mentally disordered. At birth, the only legal basis is current neglect or ill treatment (unless a previous child was neglected or ill treated). There is no legal basis of 'incapacity to care'.
The legal role of psychiatrists in such cases is his involvement in 'child psychiatry' and 'family assessment'. It is preferable to provide objective behavioural evidence than to rely on 'predicted' behaviour based on the adult psychiatric assessment of parent.
It is a long established criterion of testamentary capacity that the patient is being capable of "making a will with understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, of the persons who are the objects of his bounty and the manner in which it is to be distributed between them" . It is not necessary to act wisely. Testamentary capacity is not identical with incompetence to manage affairs in general; however, if the Court of Protection decides so, they can make a will on the patient's behalf.
Competence or capacity to enter into a contract is similar to that for wills (i.e. competence to understand the nature of the contract involved). However, because there is another party, with rights (as opposed to 'beneficiaries' in wills) the patient is bound by a contract unless he can prove that the other party knew of his incapacity and should have known of his incapacity. Even then the patient is still bound by contracts for 'living necessities' (even though having no capacity and the other party being aware of this). This is an advantage of some measure of 'independence' for severely mentally disordered patients. If patient's affairs are under the Court of Protection then patient can not deal with them in the ordinary way and the other party cannot sue (except for 'necessities').
For contracts of employment, patient cannot be dismissed for mental disorder, only for the behavioural effects of his mental disorder (in the ordinary legal terms that apply in Employment Law).
Procedure originates from an application from anyone of a medical certificate (one only) that patient is "incapable, by reason of mental disorder, of managing and administering his property and affairs". The doctor does not to have any special psychiatric expertise Grounds for application are detailed in Sections 93/94/95/96 of the Mental Health Act 1983). It is not applicable only to the 'four categories' of mental disorder in Section 1 of the Mental Health Act but also "any other disorder or disability of mind" (in Section 1), even where grounds are insufficient for long term detention in hospital. The effect of the Court of Protection order is exclusive control over all property and affairs of the patient. The order ends on recovery (with a specific finding by the Court, on medical advice) or death. The order is not subject to regular review.
Psychiatric negligence sounds a simple idea but it is not. It means doing something badly, in the wrong way or deciding to do the wrong thing carelessly. Errors of 'judgment' are different from 'negligence'. The core notion of negligence is 'lack of care'.
Negligence is not just something to do with medicine, e.g. you can be negligent in the way you ride a bicycle and be liable for injuring someone or you can be negligent for manufacturing a bottle of lemonade and leaving a snail in it!. Essentially negligence is something to do with 'lack of care' in what you do.
There are three elements that constitute negligence: - Having a duty of care to the other party (i.e. have a natural 'relationship') - Breach of duty of care. - Damage to other party results. The three elements must be satisfied for the action to be negligent.
Put into a medical context, the doctor (automatically) owes duty of care to patient (by virtue of relationship, i.e. no debate ever on this point, apart from the question if the patient indeed was the doctor's patient). Breach of duty of care can (of course) arise and can arise in a variety of ways in relation to the interaction between the doctor and the patient. The doctor can ( although not necessarily) be 'careless' by doing something badly (technically), by doing something the wrong way (albeit technically well), by doing wrong thing (in that therapeutic situation). This includes doing nothing when you should have done something.
It is essential to prove that the breach of care has caused the damage, i.e. there was a direct relationship between the doctor's negligence and the specific damage suffered by the patient. What determines whether the doctor is careless are two major issues:
- What level of skill would be expected of a doctor of that level of training? (i.e. judgement on the basis of true professional peers) - Did the doctor carry out a procedure which is a normally accepted one in the profession? (i.e. what ever his 'level', was 'procedure' acceptable against a professional standard?) There always a need to distinguish (again) negligence from errors of judgment.
Negligence can happen even before actual procedure in dealing with the patient, resulting in him/her deciding to undergo procedure when he/she might not have so decided if doctor had not been negligent in his advice. Negligence is broader in application than simply in relation to 'procedures' and 'prescribing'.
The psychiatrist may give advice to instructing solicitors on matters of negligence, reviewing medical notes and may see patient (if he is still alive), or advise on opposing psychiatric opinion. The psychiatrist write an 'Advice to Counsel' and/or 'Report to Court'. Psychiatrists give expert evidence in court and advise on opposing oral expert evidence.
Psychological damage arise (almost entirely) from negligent actions. Many of these are caused by non-psychiatric negligence, although some may result from psychiatric negligence.
The psychiatrist in essence assist the Courts in relation to nature and degree of 'psychological damages' (sometimes the legal term 'nervous shock' is used). This is of particular recent relevance in relation to 'post traumatic stress disorder' and disasters. The law distinguish between 'nervous shock' (ordinary) or 'sorrow and grief'.
Any mental disorder can be 'nervous shock' (it is does not have to be 'post traumatic stress disorder', arising in a normal person). For example a depressive episode can be precipitated (or negligently caused) by a traumatic event.
The model pattern of medico-legal cases is the 'post traumatic stress disorder' because it arises in what is considered a normal person and because its legal validity depends upon its being a nosological entity (e.g. Zeebrugge hearings, evidence accepted that it is such, therefore can achieve damages). It does not have to apply only to the physical sufferer him/herself, for example close relatives may claim (but only if they 'directly perceived' the trauma).
The psychiatrist defines the disorder and the prognosis of such disorder. This is of major relevance to damages assessment, . The Court places 'tariff tag' on disorder and prognosis.
Confidentiality may be either confidentiality in relation to third parties or confidentiality in relation to patient (access to notes etc). Rules in psychiatry are identical to those rules in ordinary medical practice. There is no 'tort' (a wrong that involves a breach of a civil duty owed to someone ). In law, there is only contractual breach of confidentiality (There are outstanding changes not yet made by the legislation.gov.uk editorial team to Data Protection Act 1998. see Data Protection Act ).
Confidentiality is governed by ethical codes. The ethical justification is apparently 'absolutist' but in reality it is 'utilitarian' based.
Exceptions, to confidentiality may be due to a legal process of law or interest of society
There is lack of 'confidential privilege' in Court. This is of a special relevance where the information is of dual psychiatric/legal relevance. The psychiatrist may need to warn client (by signing a 'contract of confidentially'). This also occurs when it is required to divulge information to the police (or where ordered by Court so to do, Police and Criminal Evidence Act 1984) which has a narrowly restricted criteria.
The classic example is the Tarassoff case (USA), balancing of 'breach of confidentiality' against 'negligence to third parties'. Tarasoff v. Regents of the University of California, (1976), was a case in which the Supreme Court of California held that mental health professionals have a duty to protect individuals who are being threatened with bodily harm by a patient. There is some confusion as for who is a 'third party'?. Confidentiality is superseded by the 'need to know' principle which is relevant to working in clinical teams.