Shorter Oxford Textbook of Psychiatry, 6th Ed.

CHAPTER 4. Ethics and civil law

Introduction

General issues

Ethical problems in psychiatric practice

Confidentiality

Consent to treatment

The Mental Health Act

Some aspects of civil law

Introduction

This chapter is concerned with the ways in which general ethical principles, relating to matters such as confidentiality, consent, and autonomy, are applied to the care of people with mental disorders. We assume that the reader has already studied ethical aspects of general medicine, otherwise they should consult Hope et al. (2008) or a comparable textbook of medical ethics.

Ethical considerations are extremely important in all branches of medicine. However, in psychiatry they have additional importance because some patients lack the capacity to make judgements about their own need for care, and because of the provision for involuntary treatment. Questions about capacity to consent to treatment of psychiatric illness commonly arise, and psychiatrists are sometimes asked by colleagues in other specialties for advice about capacity to consent to treatment for physical illness.

In this chapter we also consider some aspects of the Mental Health Act and the law relevant to psychiatry. These aspects are necessarily general ones because the specific provisions of the law differ from one country to another. For this reason, the reader should find out the relevant legal provisions in the country in which they are working and whenever necessary seek expert advice about details of the law and its application.

The chapter is divided into four parts:

1. general issues

2. ethical problems in psychiatry

3. the Mental Health Act

4. some aspects of civil law that are relevant to the practice of psychiatry.

The reader should note that this is not the only chapter in which we consider ethical problems. Some ethical problems that relate specifically to issues discussed elsewhere in this book are considered in those chapters (see Box 4.1).

General issues

The conclusion that it is ethically right to act in one way rather than another should be:

• based on agreed ethical approaches and principles

• logically sound

• consistent across decisions.

Box 4.1 Ethical problems discussed in other chapters

Classification(Chapter 2)

Diagnosis on the basis of moral or political judgements (p. 23)

Evidence-based psychiatry (Chapter 6)

Placebo-controlled trials and randomization (p. 119)

Personality disorder (Chapter 7)

Stigma and patient involvement (p. 151)

Eating disorders (Chapter 14)

Compulsory treatment in anorexia nervosa (p. 357)

Psychiatry and medicine (Chapter 15)

Patients who refuse treatment (p. 407)

Genetic counselling (p. 408)

HIV (p. 412)

Suicide and deliberate self-harm (Chapter 16)

Patients who harm themselves and refuse treatment (p. 439)

Drugs and other physical treatments (Chapter 19)

Drug treatment (p. 513)

ECT and psychosurgery (pp. 564 and 567)

Child psychiatry (Chapter 22)

Conflict of interest, confidentiality, and consent (p. 679)

Learning disability (Chapter 23)

Normalization, autonomy, and conflict of interests (p. 705)

Consent to treatment, and consent to research (p. 705)

Ethical approaches

In psychiatry, as in ethics generally, two broad approaches to ethical problems are employed—the duty-based approach and the utilitarian approach.

The duty-based approach sets out clinicians’ obligations in a series of rules—for example, the rule that doctors must not have sexual relationships with their patients. These rules may be brought together in a code of practice. Because there are rules, clinicians are readily aware of their duties. However, the approach is inflexible and is difficult to apply to some complex problems.

The utilitarian approach is concerned with balancing judgements about benefit and harm. Instead of applying general rules, each case is assessed individually with the assumption that the ethically correct action is the one that has the best foreseeable overall consequences. The approach can take into account the complexities of some clinical problems, but it does not always result in an agreed conclusion, because different people may give different weight to the benefits and harms in a particular case.

In practice the two approaches overlap. A duty-based approach may include a duty to do that which will result in the best outcome, and in a utilitarian approach the best outcome may result from the application of a rule.

Ethical principles

Three ethical principles are widely adopted in medical ethics (Beauchamp and Childress, 2001).

1Respect for autonomy: involving patients in healthcare decisions, informing them so that they can make the decisions, and respecting their views

2Beneficence (and non-malevolence): doing what is best for patients (and not doing harm). In practice this usually means doing what the body of professional opinion judges to be best.

3Justice: acting fairly and balancing the interests of different people.

Ethical principles can, and do, regularly conflict with each other. In psychiatry this most often occurs when beneficence is in conflict with respect for autonomy—for example, when a patient refuses treatment that professional opinion judges to be essential, and the Mental Health Act has to be used (see below). The essay ‘Two Concepts of Liberty’ by the philosopher Isaiah Berlin outlines this dilemma in distinguishing between ‘freedom from’ and ‘freedom to’ (Berlin, 1958). Autonomy is not always served simply by ensuring the absence of coercion if the individual is not in a position to act on their liberty. The Nobel Laureate Amartya Sen argues that our sensitivity to injustice informs our balancing of ethical principles, and not vice versa (Sen, 2007).

Codes of practice

Codes of practice and guidelines are prepared and overseen by professional organizations such as the American Psychiatric Association (1995) and, in the UK, the General Medical Council (2004) and the Royal College of Psychiatrists (2000). In some countries ethical codes are enforced not by the professions but by government. Loss of confidence in the professions has led to some demands for this arrangement in the UK.

The other professions involved in psychiatric care, such as nursing and psychology, have their own codes of practice, and these are not identical in every respect to those of the medical profession. Such differences may sometimes complicate decisions concerned with ethical aspects of care provided by a multidisciplinary team.

Values-based practice has recently been proposed as a complement to evidence-based practice (Woodbridge and Fulford, 2004). Ethical values can be in conflict, and routinely need to be balanced. The relative weight assigned to different values by the members of multidisciplinary teams (as well as the patient) may vary considerably. Values-based practice encourages the exploration of this in arriving at decisions, aiming to ensure that the traditional hierarchy in such teams does not inhibit their expression. For example, the psychiatrist may privilege treatment effect, whereas a nurse may privilege the patient’s self-respect and the social worker may privilege the patient’s rights. All of the team members acknowledge the relevance of all of these values, but the relative importance that is accorded them will vary and best practice, and effective teamworking, requires that they are accommodated.

Ethical problems in psychiatric practice

In the following sections of this chapter we shall discuss ethical problems relating to:

• the doctor–patient relationship

• confidentiality

• consent

• compulsory treatment

• research.

As mentioned previously, ethical problems that arise in particular aspects of practice are discussed in other chapters (see Box 4.1).

The doctor–patient relationship

A relationship of trust between doctor and patient is the basis of ethical medical practice. This relationship should be in the patient’s interests and based on the principles (outlined above) of respect for autonomy, beneficence, non-maleficence, and justice.

Abuse of the relationship

The more intense the doctor–patient relationship, and the more vulnerable the patient, the more readily that relationship can be abused. For these reasons, particular care has to be taken not to abuse the relationship during psychotherapy. Therapists abuse the doctor–patient relationship when they:

• impose their own values and beliefs on their patients—for example, when counselling about termination of pregnancy. This influence may be overt—for example, when a doctor refuses termination of pregnancy, stating that it is morally wrong. Or it may be covert—for example, when the doctor expresses no opinion but nevertheless gives more attention to the arguments against termination than to those for it. Similar problems may arise, for example, in marital therapy when therapists’ values may intrude on their approach to the question of whether a couple should separate

• put the interests of third parties before those of patients—for example, the interests of employers. Nevertheless, the interests of individual patients cannot be considered in isolation. For example, when allocating resources to a community, or when deciding about the treatment of potentially dangerous patients, the interests of the patient have to be balanced against those of other people. These difficult decisions are discussed further on p. 622 and p. 623

• exploit patients sexually. Medical codes of practice contain an absolute prohibition against sexual relationships with a patient. Particular care is needed if sexual problems and intimate relationships are prominent in psychotherapy

• exploit patients for financial gain—for example, by prolonging treatment in private practice for longer than is necessary to achieve the patient’s goals.

Confidentiality

Confidentiality is central to the trust between patients and doctors. It is particularly important in psychiatry because information is so often collected about private and highly sensitive matters. As a general rule, information should not be disclosed without the patient’s consent although, as will be discussed later, there are defined exceptions to this rule. The rule is an ancient one, stated in the Hippocratic Oath:

Whatever, in connection with my professional practice or not in connection with it, I see or hear in the life of men, which ought not to be spoken abroad, I will not divulge, as reckoning that all such should be kept secret.

The rule was restated in 1948 in the Declaration of Geneva, which added the important point that the obligation of confidentiality continues after a patient’s death:

I will respect the secrets which are confided in me, even after the patient has died.

In many countries, national professional organizations publish guidelines that deal with common clinical situations such as protecting records, sharing information with relatives, and disclosing information to third parties (see, for example, General Medical Council, 2004, and the updated website www.gmc-uk.org). Confidentiality is also enforced by law and by contract of employment, and although professional guidelines do not have the force of law, they are taken seriously by the courts as evidence of generally accepted standards.

Many countries have laws of privacy, and laws that govern the ways in which written and electronic records can be held and that set out patients’ rights to see their personal information. Psychiatrists should be aware of the ethical and legal requirements in the place in which they are working. In the UK, the relevant legislation includes the Data Protection Act (1998).

From the perspective of English law, it is in the public interest, as well as that of the individual, that patients should be able to trust their doctors to maintain confidentiality. Therefore the issue of when it is lawful and when it is unlawful for a doctor to breach confidentiality is generally answered by balancing two conflicting public interests rather than balancing a private interest against a public interest.

Ethical principles relating to confidentiality

Safeguarding information

Personal information must be safeguarded and records kept securely, and consideration must be given to the security of mobile phones or email. Unintentional disclosure should be avoided by carrying out consultations where they cannot be overheard (which is sometimes difficult when patients are seen at home or in a medical ward) and by avoiding discussions between professional staff in places where they might be overheard.

Consent to disclosure of information

Confidentiality is not breached when a patient has given informed consent to disclosure. In this context, informed consent means consent based on a full understanding of the reasons for disclosure, what will be disclosed, and the likely consequences of disclosure. In principle, confidentiality is not breached when the patient cannot be identified—for example, in a disguised case report. Nevertheless, it is usual for journals and books to require that patients give informed, signed consent to publication, even when their identities have been disguised. This obligation, unlike libel laws, continues after death. Poorly anonymized case reports of deceased patients, from which these individuals have been identified, have led to professional complaints from their families.

Confidentiality in the care of children

These and other ethical problems in the care of children are discussed in Chapter 22. Here it is sufficient to note that children over a stated age (usually 16 years) have the same rights of confidentiality as adults. For younger children, clinical information is usually shared with parents, who have a legal duty to act in their children’s best interests and therefore need to be properly informed.

Situations in which there may be problems regarding confidentiality

Seeking information from others

As a rule, patients’ permission should be obtained before information is sought from other individuals. If the patient is mentally disordered and unable to give an account of himself, and the information is essential for good care, the psychiatrist must decide whether to seek it without the patient’s consent. The guiding principles are to act in the patient’s best interests, and as far as possible to obtain the information from close relatives.

Disclosing information to others

Information should be disclosed only with the patient’s consent, except in the special circumstances discussed below. Disclosure should be limited to the information necessary for the purpose of the disclosure. Relatives often ask for information, but this should be given only with the patient’s consent. However, when the patient is unable to consent to disclosure (e.g. as a result of dementia), information may be shared provided that disclosure is in the patient’s best interests.

Assessment on behalf of a third party

When a patient is assessed on behalf of a third party (e.g. an assessment of fitness to work carried out for an employer), it is essential to ensure at the outset that the patient is aware of the purpose of the assessment and of the obligations of the doctor towards the third party. Written consent should be obtained. Otherwise disclosure can be made only in the public interest (see below), usually to prevent death or serious harm.

Care in the community

Patients should know from the start that information will be shared as necessary with other members of the care team, and these team members must follow the principles of confidentiality. Some members of the team (e.g. social workers) may be required to discuss information with their supervisors, or to pass on information to other agencies (e.g. when helping patients with housing). It is important to keep such matters in mind as treatment plans develop, and to discuss them with the patient when this becomes necessary. When visits are made to patients, neighbours may become aware of the visits. Moreover, outreach programmes may require enquiries about high-risk patients who have not kept appointments. These and similar potential problems should be anticipated as far as possible and discussed with the patient so that the necessary permissions are obtained in advance. In an emergency, the right to privacy has to be balanced against the risks of harm to the patient or to others, should the necessary enquiries not be made.

If a patient refuses the disclosure of information despite clear information about the likely consequences of nondisclosure, their wishes must be respected unless this would put others at risk of serious harm.

Group therapy

Group therapy presents special problems of confidentiality because patients reveal personal information not only to the therapist but also to other members of the group. Before treatment begins, the therapist should explain the requirement to treat as confidential the revelations of the other group members, and the necessary agreement should be obtained from everyone who will take part in the group.

Therapy with couples

Usually the treatment of a couple is preceded by an interview with each partner separately. Information obtained in this way from one partner should not be revealed to the other without the agreement of the first. If possible, all relevant information should be revealed by the partner concerned, during the joint sessions. If, after therapy has started, it becomes necessary to see one member of the couple alone (e.g. to assess symptoms of depression), it may be better for the therapist to ask a colleague to do this. Similar problems may arise in family therapy.

Exceptions to the rule of confidentiality

Exceptions in the patient’s interest

In exceptional circumstances, doctors may disclose information to a third party without the patient’s consent, when this disclosure is in the patient’s best interest—for example, when information is requested urgently by another doctor who is dealing with the patient in an emergency, and the patient’s permission cannot be obtained, or when a patient is incapable of giving informed consent because of severe mental or physical illness, and the disclosure is essential for their care.

Exceptions in the public interest

Although there is a general legal obligation for doctors to keep confidential what patients tell them, there are special circumstances in which doctors are obliged to disclose information to a third party because this is in the interest of the community as a whole, or of a group or individual within it. There are statutory obligations to do this in relation, for example, to communicable disease, the use of certain controlled drugs, unfitness to drive, and suspected child abuse. There is also an obligation to disclose relevant information in response to a Court Order, and when there is evidence of serious crime, usually a crime that will put some person at risk of death or serious harm (e.g. the abuse of a child). Child protection has become a particularly sensitive area for professional confidentiality. Society’s tolerance of the potential abuse or neglect of dependent children is almost negligible now in most countries. The current expectation of professionals is that their threshold for breaking confidentiality should be very low in cases where there are any concerns or doubts, even in the absence of clear evidence. In such cases, every effort should be made to persuade the patient to agree to disclosure. If they refuse, the reasons for the disclosure should be explained and written down.

Exceptions for legal representatives

A patient’s legal representative, like the patient, may read clinical notes and letters that have been written about that patient, although there may be restrictions in relation to the possibility of harm to others (e.g. from the reading of certain information given in confidence by informants).

For further information about problems related to confidentiality, see Hope et al. (2008, Chapter 7).

Consent to treatment

Consent is relevant to the whole of medical practice, and in the account which follows we assume that the reader is familiar with the relevant concepts and procedures from their general medical training. Any readers who are not should consult the latest General Medical Council guidelines if they are working in the UK (see www.gmc-uk.org), or the equivalent document if they are working elsewhere, and read a textbook of ethics such as that by Hope et al. (2008).

Obtaining consent

The patient should:

1. have a clear and full understanding of the nature of the condition to be treated, the procedures available, and their probable side-effects

2agree freely to receive the treatment

3. be competent to take decisions (i.e. to have legal capacity; see below). (Note that in the USA, the word ‘capacity’ is generally used in the clinical sense, rather than in the legal sense adopted in the UK.)

Maintaining consent

Some patients consent to treatment of chronic illness but later fail to collaborate with it. When this happens, the clinician should seek to re-establish consent and collaboration. To achieve these, offers of additional help are justified, but threats that help will be reduced are not. This is particularly complex in the long-term community care of individuals with severely disabling disorders such as psychoses. The difference between an ‘offer of additional help’ and a ‘threat that help will be reduced’ is not always that clear in practice, and certainly not to the patient. Is a case manager’s comment ‘I can only really recommend you for his tenancy if I can say you are taking treatment’ an offer, or is it a threat? Szmukler and Appelbaum (2008) have explored these gradations of treatment pressures in mental health.

When explicit consent is not required

There are special situations in which explicit consent is not needed (their precise nature depends on local law and precedent). These include the following:

• implied consent—for example, when a patient holds out his arm to have his blood pressure measured

• necessity—that is, a circumstance in which grave harm or death is likely to occur without intervention, and there is doubt about the patient’s competence (see below)

• emergency—in order to prevent immediate serious harm to the patient or to others, or to prevent a crime.

When consent to medical treatment is refused

In the UK, the law distinguishes between consent to medical treatment and consent to psychiatric treatment. This section is concerned with refusal of medical treatment; refusal of psychiatric treatment is discussed on p. 407. Competent adults have a right to refuse medical treatment, even if this refusal results in death or permanent disablement.

If a patient refuses medical treatment, the doctor needs to make two judgements before accepting that the patient has the right to refuse.

1. Does the patient lack competence, i.e. the legal capacity (see below), to consent to or refuse treatment, by reason of mental illness?

2. Has the patient been influenced by others to the extent that a refusal has been coerced or is not voluntary?

Refusal by competent patients

Their refusal may be the result of misunderstanding or fear about the illness and its treatment. Clinicians should set aside the time needed to understand the patient’s concerns about, and their current understanding of, their condition before explaining the medical issues once more. When this approach is taken, agreement can usually be reached about a treatment plan that is both medically appropriate and acceptable to the patient. Nevertheless, some competent adult patients continue to refuse treatment even after a full discussion, and it is their right to do so.

Refusal by incompetent patients

In the UK and various other countries the doctor who is treating the patient has the right to act in the patient’s best interests and give immediate treatment in life-threatening emergencies when the patient lacks capacity to consent. Whenever possible other health workers should be consulted, and a careful record should be kept of the reasons for the decision. Doctors should know the relevant law in the country in which they are working. For further discussion of this issue, see Hope et al. (2008). The 2005 Mental Capacity Act for England and Wales addresses the previously neglected area of the treatment of incompetent patients who are not actively refusing treatment but who cannot be considered to have consented. It also addresses those who may have previously indicated (when competent) what they would have wished (see below).

Refusal by mentally disordered patients

If a patient who refuses medical treatment has an accompanying mental disorder that appears to impair their ability to give informed consent, the mental disorder should be treated, if necessary and appropriate, under compulsory legal powers. In English law, such powers do not allow treatment of the physical illness against the patient’s wishes. However, they do allow the treatment of the mental disorder. After successful treatment of the mental disorder, the patient may then give informed consent for the treatment of the physical illness which was previously refused.

Legal aspects of consent

The legal concept of capacity to consent relates to a patient’s ability to comprehend and retain information about the treatment, to believe this information, and to use it to make an informed choice.

Patients may lack the capacity to give informed consent by reason of the following:

1. young age—parents give consent for children and adolescents below the age at which, in law, they are able to consent (consent to treatment for children and adolescents is considered in Chapter 22)

2. learning disability

3. mental disorder. Psychiatrists may be asked to assess patients who are thought to be in this third group; they should do so by making the enquiries listed in Box 4.2.

Judgements of legal capacity to consent are specific to the particular decision. Thus a patient with a severe mental disorder may be incompetent in other respects, but nonetheless competent to decide whether to consent to a particular treatment. For example, a patient with schizophrenia and paranoid delusions may be capable of deciding about medical treatment of a heart attack. (For an account of psychiatric consultation with patients who are refusing medical treatment, see Katz et al., 1995.)

Box 4.2 Assessment of competence of adult patients

Step 1 Identify the decision required and the information relevant to it:

• the decision to be made

• the alternative reasonable decisions

• the pros and cons of each reasonable decision.

Step 2 Assess cognitive ability.

Assess whether the patient has the cognitive ability to:

• understand the information

• retain the information

• evaluate the information and reach a decision.

Step 3 Consider the possible causes of impaired cognitive ability:

• delirium

• dementia

• other neurological disorders that may impair cognition

• learning disability.

Step 4 Assess other factors that may interfere with capacity.

Mental illness:

• delusions

• hallucinations

• mood disorder.

Lack of maturity:

• assess emotional and cognitive maturity.

Consent in advance

Advance statements, sometimes called ‘living wills’, are accepted in many countries. They are designed to ensure that those who previously had the capacity to take decisions but have lost it (e.g. because of dementia) are treated as they would have wished. To make an advance statement, the person must be competent and well informed at the time. Advance statements respect the principle of autonomy and are generally considered by doctors and patients to be helpful.

Since the 2005 Mental Capacity Act (MCA) regularized the situation, advance statements now have some legal authority in England (the Act does not apply to Scotland). The MCA distinguishes between an advance statement and an ‘Advance Decision to Refuse Treatment’ (ADRT). Advance statements are relatively informal and may be recorded in notes or care plans (e.g. ‘Only use second-generation antipsychotics if I am compulsorily treated’, ‘Do not inform my sister if I am admitted’). They can even be verbal. They are not legally binding, but it is good practice to abide by them if possible, and also to encourage patients to update them. If they are not followed, the reasons for this should be recorded. Because of the fluctuating nature of many severe mental illnesses, advance directives can be based on the patient’s previous experiences. In general medicine they are more often based on how the individual assumes that they would feel about treatment if and when they lost capacity, usually through dementia. The incorporation of advance statements as part of ‘joint care plans’ has been tested in some services. Although patients seem reluctant to make them, they do appear to improve relationships, and may improve treatment and reduce relapses (Henderson et al., 2004).

However, the ADRT is binding, even if the decision may result in death. To have this force it must be a written and witnessed statement with confirmation that the individual had capacity at that time. The provision allows for the naming of a ‘surrogate decision maker’ who can give consent on behalf of the patient. The ADRT can be overridden if the MHA is used, apart from the decision to refuse ECT, which is absolute. Compulsory treatment overriding an advance decision may be used in acutely unwell patients most often (but not only) when there are risks to others. Psychiatry is the only area of medicine where this override is possible, and some view this as discriminatory.

Deprivation of liberty and the ‘Bournewood Gap’

An adult man with autism was admitted to Bournewood Hospital against the wishes of his informal carers, but did not himself actively object to being in hospital. An individual was then only considered to have their liberty restricted if they were actively objecting to their treatment. The Bournewood case indicated a ‘gap’ in the legislation, namely the failure to protect an individual who was deprived of his liberty although not resisting this. This was ruled to conflict with European human rights legislation. The distinction between deprivation of liberty and restriction of liberty can be a fine judgement. To comply with European legislation it must be clearly in the patient’s best interests (i.e. not for the protection of others). A consequence of this legislation is the Deprivation of Liberty Safeguards, which were introduced in the 2007 amendments to the MHA. These are complex and usually dealt with by a ‘Best Interests Assessor’, who may call on a psychiatrist to advise on the capacity or diagnosis of such patients. The implication for psychiatrists is to pay attention to any restrictions on incapacitous patients, even if they are not objecting.

Consent by a proxy

In English law, if an adult patient does not have the capacity to consent to treatment, proxy consent on behalf of that patient can only be given if there is a written advance statement. In some other jurisdictions there is provision for a form of proxy consent such as, in Scottish law, the appointment of a guardian. When there is no legal provision for proxy consent and the patient has not made an advance directive, and a decision as to whether to give treatment must be made, this is done on the basis of the patient’s best interests. Best interest is judged by the responsible clinician in accordance with general medical opinion. It is wise to consult relatives and to discuss the case with other professional staff. Detailed notes should be kept of the reasons for the decision, and of the consultations that took place.

Ethics of research

Psychiatric research is bound by the ethical principles that apply to all medical research. These derive from the first internationally agreed guidelines on research involving people, and the main ethical issues that should always be considered are summarized in Box 4.3. These principles were stimulated by knowledge of the appalling abuse of medical research in Nazi Germany, and were set out in the Declaration of Helsinki, first published by the World Medical Association in 1964 (see World Medical Association, 2000). Since then there have been other national and international guidelines, generally enforced by national and local research ethics committees. The ethical problems of psychiatric research are the same as those of other medical research as set out, for example, in the UK General Medical Council guidelines (see www.gmc-uk.org) or the website of the UK Central Office of Research Committees (www.corec.org.uk), with particular emphasis on those related to consent by competent but vulnerable adults who may feel under pressure to consent, and by those who lack capacity.

Box 4.3 Assessment of some ethical issues relating to research

Note: Ethical problems related to recruitment for and conduct of clinical trials are considered on p. 119.

Scientific merits

• Will the findings be of value?

• Are the methods and the size of the groups likely to achieve the aims?

• What are the sources of financial and other support, and are there any potential conflicts of interest?

• Are there any potential conflicts of interest for any of the investigators?

• Could the aims be achieved in an ethically better way?

Safety

• Are the procedures safe? If there is a risk, are all of the necessary precautions being taken?

• Is the assessed level of risk acceptable to investigators, subjects, and relatives?

Consent

• Will the subjects be competent to give consent?

• Will the subjects receive clear and sufficient information?

• Will they have adequate time to consider and, should they wish to do so, to withdraw consent?

• Will it be clear that refusal will not affect the quality or quantity of care provided?

• Is the relationship between subject and investigator potentially coercive (e.g. a supervisor and a pupil)?

• Is any payment to subjects for expenses likely to exceed these, and therefore act as an incentive to consent?

• Is the researcher under any pressure to recruit subjects (e.g. receiving payments from a sponsoring company)?

Confidentiality

• Have subjects consented to the use of confidential information in the research?

• Will the data from the research be kept securely?

Adapted from Hope et al. (2004, p. 196), and Weingarten and Leibovici (2004, p. 1013).

Informed consent to research

Informed consent is crucial to the ethical conduct of research. Miller (2000) has outlined a number of important considerations.

• Patients must be made specifically aware that the research is not being conducted for their individual benefit.

• Patients must be free from any coercion or inducement.

• Patients have the right to withdraw from the study at any time without any kind of penalty.

• In addition to the investigator, a family member or other suitable person should be encouraged to monitor the patient’s condition and report to the investigator if there are concerns.

• In placebo-controlled trials, patients must understand clearly the probability of receiving placebo, the lack of improvement that might result, and the possibility of symptomatic worsening (see also Lavori, 2000).

Research involving people who cannot give informed consent

Most psychiatric patients can give informed consent, but a few have a disorder that impairs judgement and decision making. To exclude these patients from all research could deprive future similar patients of the benefits of research. The decision as to whether to include such patients is made after considering the following:

• any potential benefit of the research to the person who is being asked to consent

• any possible discomfort or risk to this person

• the potential benefit to others who have a similar problem and incapacity

• any signs or other indications that suggest unspoken objection.

It is advisable to consult with relatives or others who may be able to take an informed view of the patient’s situation. Jurisdictions vary in the extent to which this is a legal requirement, and investigators should take great care to follow local ethical and legal procedures.

The Mental Health Act

Compulsory treatment for mental disorders

Specific legislation to ensure that people with severe mental illness can be treated involuntarily, and that such treatment is subject to careful scrutiny, is a feature of all developed societies. Legal provision for the detention of disturbed individuals, described as the ‘the furiously mad’, was fundamental to the asylum movement from the 1820s. How that legislation is drafted and who has the decision-making powers vary across time and jurisdictions. In the 1825 Act it was magistrates who made the decisions and doctors had little say, whereas by the time of the 1959 Mental Health Act, decisions were essentially all clinical. Now, in the light of the European Convention on Human Rights, the emphasis is shifting back more towards greater legal involvement in the process. Compulsory treatment has always been a feature of psychiatry and a legitimate and important responsibility for psychiatrists. There is evidence that, after some decades of decline, compulsion may be increasing across Europe (Priebe et al., 2005).

When using the Mental Health Act it is essential that psychiatrists familiarize themselves with the local provisions and requirements. Not only do these vary from one country to another, but also they vary within countries. For example, the Scottish and Northern Ireland Mental Health Acts differ in important details from that for England and Wales, each state in the USA has its own legislation, and different cantons of Switzerland impose different conditions. Mental health legislation is often long and obscure—the 2007 amendment runs to several hundred dense pages, and the accompanying Code of Practice likewise. Practising clinicians generally only need to know the main provisions and procedures for the practices outlined in Box 4.4. The major provisions of the 1983/2007 Mental Health Act for England and Wales will be used as the reference point for outlining the principles and practices in what follows. Local training with regular updates is essential and is now obligatory.

Box 4.4 Key clinical procedures in the Mental Health Act

• Criteria for detention

• Assessment orders

• Treatment orders

• Transfer from prisons and courts

• Police powers and powers of entry

• Community Treatment Orders

Criteria for detention

Until recently all compulsory care required admission to a psychiatric hospital, so the expression ‘detained under the Mental Health Act’ is still widely used to indicate involuntary care, whether in or outside hospital. The UK Mental Health Acts are broadly very similar, and indeed they all adhere relatively closely to the 1959 Mental Health Act in spirit, differing mainly in the details. The UK acts are ‘permissive’—that is, they outline what a doctor may do but not what they must do. The decision to admit or treat a patient against their will is still a clinical decision. The wording of the new Act is remarkably loose in its definitions both of mental disorder and of treatments. This allows considerable scope for clinical discretion. The conditions for detention are worded differently for treatment and assessment, but there are essentially four of them.

1. You consider that the patient is likely to be suffering from a mental disorder (detention may sometimes be necessary to establish this).

2. Detention is necessary for the health or safety of the patient or of others.

3. The patient refuses voluntary admission.

4. Appropriate treatment is available (for treatment orders).

Until the 2007 revision there were four classes of mental disorder subject to detention (mental illness, mental impairment, severe mental impairment, and psychopathic disorder), but these were replaced by a single category of mental disorder. This was to remove individual requirements for specific disorders. The UK criteria are quite paternalistic by international standards—they prioritize the potential for patient benefit. Many countries (especially those with highly developed, libertarian civil rights traditions, such as the USA) emphasize risk rather than patient benefit. In many US and some European states, patients must pose an immediate risk to physical safety (their own or that of others). Finally, patients must always be given the opportunity to accept voluntary treatment (‘the least restrictive option’) before compulsion can be used.

Historically it was families (or their formal representatives) who made application for detention, but the 1959 Mental Health Act permitted social workers to make the application on their behalf. Over time this has become an accepted practice requirement (although families can still appeal to discharge their members from detention). The social worker has a specific role in ensuring that the patient’s civil rights are properly protected and that less restrictive alternatives have not been overlooked. Apart from emergencies, two medical opinions are needed, preferably one who knows the patient (often their GP) and one who is a qualified psychiatrist. Note that this is preferable. Although it is worth aiming for, it is not essential. Patients or their families should not be put at risk by delays in complying with it. Reviews of the legality of detention are conducted by Mental Health Tribunals, which follow automatically at set periods and also if requested by patients. The main sections of the Act used by clinicians are summarized in Table 4.1.

Table 4.1 Sections of the England and Wales Mental Health Act commonly used by clinicians

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Assessment and treatment sections

The Assessment Order, Section 2, is for 4 weeks (in emergencies, Section 4 is for 72 hours). It allows patients who are not already known and diagnosed to be admitted and assessed if their condition is serious and warrants this. It cannot be repeated. Necessary medication to manage the assessment is permitted, but if the diagnosis is confirmed and definitive treatment is to be instituted, the patient should be transferred to Section 3. There is considerable variation in how much intervention is permitted while the patient is on Section 2. Some social services have advocated for the use of Section 2 as a matter of course, even when a patient and their disorder are known to the team. This is to ‘assess’ their response to admission. There seems to be little logic to this, and generally a Section 3 should be used when the patient is known to those admitting them, or if the clinical picture is clear and a confident diagnosis can be made. Section 3 is for 6 months in the first instance, and can be repeated. Patients on Section 3 can be allowed out from hospital ‘on leave’ while still under compulsion using Section 17. There is no specific time limit for Section 17 beyond that imposed by the Section 3 which stays in force. The Code of Practice proposes that it should be reviewed every 7 days and the alternative of a Community Treatment Order considered. Voluntary patients can be detained for assessment if their condition deteriorates and they attempt to discharge themselves under the provision of Section 5.

Restriction orders and transfers

Patients can be transferred from courts on Section 37 (equivalent to a Section 3) for treatment. Their management is the same as for a Section 3, and they can be discharged when well. Similarly, a prisoner who becomes seriously unwell can be transferred on Section 47 for treatment (again following the same principles as Section 3), but has to be returned to prison when they have recovered. The equivalent assessment order (up to 28 days) is Section 35. The Home Office can impose a restriction order (37/41) on a patient. This means that the psychiatrist cannot discharge them from their section without permission. However, they can be managed on leave in the community with the Home Office’s permission.

Police powers and power of entry

The police have the power to detain anyone whom they find in a public place who is manifestly disturbed and whom they consider to need urgent psychiatric assessment. In the UK this is the Section 136 of the Act, and it allows the police to bring the patient to a place of safety for assessment by a psychiatrist and an approved mental health professional (AMHP). They can be held for up to 72 hours, but the Code of Practice recommends assessment within 6 hours. In the past, police stations were the usual place of safety (and they sometimes still are), but increasingly it is considered good practice for assessment to take place in an agreed psychiatric assessment suite. Section 136 is predominantly used in metropolitan settings, and there is little reason to believe that it is overused (the police have quite high thresholds for using it). A local study in North London conducted some years ago indicated that a higher proportion of Section 136s were converted to treatment sections than were Section 2 assessment orders.

The right of individuals to be undisturbed in their own homes is a very ancient one, and one that is vigorously protected. Unless there is overwhelming evidence of immediate risk, entry cannot be forced. Where it is believed that a known patient is deteriorating and requires assessment but they are in their own home, a warrant from a magistrate is needed. This is Section 135, and it can usually be obtained from a local magistrate within a day, usually on application by the social worker. The warrant allows admission by the police officer accompanied by a psychiatrist and an AMHP, who generally assess for Section 2 or 3.

Community Treatment Orders

The most significant change introduced by the 2007 amendment of the 1983 Mental Health Act was the introduction of Community Treatment Orders (CTOs), which are referred to as Supervised Community Treatment (SCT), Section 17a, in all official documents. These introduced an effective mechanism for ensuring treatment in the community for patients with established severe disorders and poor compliance with treatment (‘revolving-door patients’). Forms of compulsory treatment in the community had been in widespread use in the USA, Canada, Australia, and New Zealand for over two decades (Dawson, 2005). They have attracted strong clinician and family support, although there is as yet no convincing scientific evidence that they improve outcomes. The findings of the only well-conducted randomized controlled trial, which is from the USA, proved inconclusive with regard to their effect (Swartz et al., 1999). The UK provision allows patients who have been admitted under a treatment section of the Mental Health Act to be subject to a legal requirement to attend for monitoring in the community.

The form of the new SCT mirrors that of the inpatient treatment order (i.e. 6 months repeatable in the first instance, with repeat renewals of 12 months subsequently, and regular tribunal assessments). It is strengthened by a requirement for an independent second opinion in all cases. Beyond this statutory condition for a second opinion, other clinically determined conditions can be added. The commonest are to reside at a stated address, and to allow regular access by the clinical team. SCTs do not permit any force outside hospital, but allow for patients to be returned to a clinical setting for up to 72 hours for assessment and treatment. Despite considerable professional opposition to the introduction of SCT, 4000 CTOs were applied in its first year in England and Wales, vastly exceeding the predicted figure of 350.

CTOs in the UK are generally imposed for substantial periods, and during the first year of their introduction very few of them have been revoked. This reflects the UK’s ‘paternalistic’ approach, with CTOS being used to stabilize functioning in patients with frequently relapsing psychoses. This contrasts with their use in the USA, where most of them are imposed for a number of weeks or a few months, and they are only considered to be justified while patients pose an active risk.

Some aspects of civil law

Civil law deals with the rights and obligations of individuals to one another, including family law, which is a particular concern of child psychiatrists. In this respect civil law differs from criminal law, which is concerned with offences against the state (although some are directed against an individual, e.g. homicide). As well as the issues discussed earlier in this chapter, civil law is concerned with property, inheritance, and contracts. Proceedings in civil law are undertaken by individuals or groups who believe that they have suffered a breach of the civil law, in contrast to criminal law proceedings, which are undertaken on behalf of the State.

Psychiatrists are sometimes asked to submit written reports on a patient’s mental state in relation to a civil case. Such reports should be prepared only after full discussion with the patient, and only with the patient’s informed consent, and they should be concise and factual. The structure should follow the plan set out on pp. 730–2. Regarding the contents, it is advisable to seek legal advice about the relevant aspects of law relating to the case. The following sections are based on the law in England and Wales, although the principles apply more widely.

Testamentary capacity

This term refers to the capacity to make a valid will. If someone is suffering from mental disorder at the time of making a will, its validity may be in doubt and other people may challenge it. The will may still be legally valid if the testator was of ‘sound disposing mind’ (see below) at the time of making it. Psychiatrists may be asked to report in relation to two issues:

1. testamentary capacity

2. the possibility that the testator was subjected to undue influence.

In order to decide whether or not a testator is of sound disposing mind, the doctor should decide whether the person making the will:

• understands what a will is and its consequences

• knows the nature and extent of his property (although not in detail)

• knows the names of close relatives and can assess their claims to his property

• is free from an abnormal state of mind that might distort feelings or judgements relevant to making the will (a deluded person may legitimately make a will, provided that the delusions are unlikely to influence it).

To decide these matters, the doctor should first interview the testator alone, and then interview relatives or friends to check the accuracy of factual statements.

Assessment of undue influence is more complex, and requires an assessment of the relationship between testator and beneficiary, the mental state of the testator, and what is known of the person’s earlier intentions.

Power of attorney and receivership

If a patient is incapable of managing their possessions by reason of mental disorder, alternative arrangements need to be made, particularly if the incapacity is likely to last for a long time. Such arrangements may be required for patients who are living in the community as well as for those who are in hospital. In English law two methods are available—power of attorney and receivership.

Power of attorney is the simpler method, and requires only that the patient gives written authorization for someone else to act for them during their illness. In signing such authorization, the patient must be able to understand what they are doing. They may revoke it at any time.

Receivership is the more formal procedure, and is more likely to be in the patient’s interests. In England and Wales an application is made to the Court of Protection, which may decide to appoint a receiver. The procedure is most commonly required for the elderly. The question of receivership places special responsibility on the psychiatrist. If a patient is capable of managing their affairs on admission to hospital, but later becomes incapable by reason of intellectual deterioration, then it is the doctor’s duty to advise the patient’s relatives about the risks to property. If the relatives are unwilling to take action, then it is the doctor’s duty to make an application to the Court of Protection. The doctor may feel reluctant to act in this way, but any actions taken subsequently are the Court’s responsibility and not that of the doctor.

Aspects of family law

marriage contract is not valid if at the time of marriage either party was so mentally disordered as not to understand its nature. If mental disorder of this degree can be proved, a marriage may be decreed null and void by a divorce court. If a marriage partner becomes of ‘incurably unsound mind’ later in a marriage, this may be grounds for divorce, and a psychiatrist may be asked to give a prognosis. A doctor may also be asked for an opinion about the capacity of parents or a guardian to care adequately for a child.

Torts and contracts

Torts are wrongs for which a person is liable in civil law as opposed to criminal law. They include negligence, libel, slander, trespass, and nuisance. If such a wrong is committed by a person of unsound mind, then any damages awarded in a court of law are usually only nominal. In this context the legal definition of unsound mind is restrictive, and it is advisable for a psychiatrist to take advice about it from a lawyer.

If the person makes a contract and subsequently develops a mental disorder, the contract is binding. If a person is of unsound mind when the contract is made, in English law a distinction is made between the ‘necessaries’ and ‘non-necessaries’ of life. Necessaries are goods (or services) that are ‘suitable to the condition of life of such person and to his actual requirements at the time’ (Sale of Goods Act 1893). In a particular case the court decides whether any goods or services are necessaries within this definition. A contract made for necessaries is always binding.

When a contract for non-necessaries is made by a person of unsound mind, the contract is binding unless it can be shown both that he did not understand what he was doing and that the other person was aware of the incapacity.

Personal injury

Psychiatrists may be asked to write reports in relation to claims for compensation by patients with post-traumatic stress disorder or one of the other psychological sequelae of accidents (see p. 414). Such reports should be set out to accord with the relevant local legal procedures and should state clearly the sources of information, the history of the trauma, the psychiatric and social history, and the post-accident course. They should include a detailed assessment of function and of the relationship between the trauma and any subsequent symptoms and disability.

Fitness to drive

Questions of fitness to drive may arise in relation to many psychiatric disorders. Dangerous driving may result from suicidal inclinations or manic disinhibition, panicky or aggressive driving may result from persecutory delusions, and indecisive or inaccurate driving may be due to dementia. Concentration on driving may be impaired in severe anxiety or depressive disorders. The question of fitness to drive also arises in relation to the sedative and other side-effects of some psychiatric drugs, such as some anxiolytic or antipsychotic drugs in high dosage.

Doctors should be aware of and follow the legal criteria for fitness to drive in the places in which they are working. These criteria may differ somewhat for drivers of cars and drivers of heavy goods vehicles (the latter are stricter). UK holders of driving licences have a duty to inform the Driver and Vehicle Licensing Agency (DVLA) if they have a condition that may affect their safety as a driver. Doctors should inform patients if they have such a condition, and make sure that they understand their duty to report it. When deciding on a patient’s fitness to drive, doctors should consider whether the patient’s condition or its treatment is liable to cause loss of control, impair perception or comprehension, impair judgement, reduce concentration, or affect motor functions involved in handling the vehicle. If, after full discussion, a patient with such a condition continues to drive, a doctor working in the UK should disclose the relevant medical information to the medical adviser of the DVLA.

Further reading

General references are listed below. In many countries, national medical and psychiatric organizations also publish guidelines about the ethical and legal aspects of practice.

American Psychiatric Association (2001). Ethics Primer of the American Psychiatric Association. American Psychiatric Association, Washington, DC.

Bloch S, Chodoff P and Green S (eds) (1999). Psychiatric Ethics, 3rd edn. Oxford University Press, Oxford. (A series of reviews by leading writers covering the principal theoretical issues.)

Dickenson D and Fulford KWM (2000). In Two Minds: a case book of psychiatric ethics. Oxford University Press, Oxford. (A readable, practical account based on discussions of common clinical problems.)

Hope T, Savelescu J and Hendrick J (2008). Medical Ethics and Law: the core curriculum, 2nd edn. Churchill Livingstone, Edinburgh. (A comprehensive introductory text.)

Montgomery J (2002) Health Care Law, 2nd edn. Oxford University Press, Oxford. (A useful work of reference.)

And a useful website: National Reference Center for Bioethics Literature: www.georgetown.edu/research/nrcbl