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The legal and ethical framework for compulsory psychiatric treatment
TREATMENT STRATEGIES AND PSYCHOPHARMACOLOGY
The legal and ethical framework for compulsory psychiatric treatment
Key points
Gareth S Owen
C
Society, under certain conditions, empowers doctors to treat compulsorily
C
The ethical framework for compulsory treatment is crucial and debated
C
The Mental Health Act 1983 and Mental Capacity Act 2005 can authorize compulsory treatment
C
The principles and rules of the two legal frameworks are different
C
The field is complex, and future simplification is likely to require a better understanding of decision-making autonomy in psychiatric illnesses and fair social constraints on autonomy
Benjamin WJ Spencer Richard AA Kanaan
Abstract Compulsory detention and treatment is a key ethical issue facing psychiatry. It involves clinicians overriding patients’ apparent autonomy, with ensuing ethical implications. The legal basis for detention and treatment is equally complex, with two Acts e the Mental Health Act 1983 and the Mental Capacity Act 2005 e applying to patients with mental illness.
decided against: the benefits of autonomy may be outweighed by other benefits. It can be argued that patients’ autonomy, when considered from the perspective of their whole life, is actually most respected by treating them compulsorily: by restoring the patient to themself, their real autonomy is, paradoxically, maximized. However, questions may be asked about each of these positions: Compromises to autonomy come in different forms. Patients can lose autonomy for some matters and keep it for others. Even when autonomy for a matter is absent, it is still possible to conflict with a patient’s will. In these situations, what does it mean to say that, for a mentally ill person, there is no autonomy with which to conflict? Although most would accept that some protection of others is a necessary constraint on autonomy in an orderly society, how can this be done fairly when people with mental illness are socially stigmatized and widely perceived to be mad, bad or both? Deciding what represents a patient’s real autonomy can be difficult. With chronic schizophrenia, for example, how does one separate the illness from the personality?
Keywords Autonomy; ethics; law; Mental Capacity Act 2005; Mental Health Act 1983; psychiatry
The ethical framework The most serious and common ethical dilemma in psychiatric practice is compulsion to undergo treatment. Psychiatrists are empowered by many societies to deprive patients of their liberty under certain conditions, and impose treatment against their wishes if necessary. Patient autonomy is one of the core, arguably the highest, principles of medical ethics (Table 1)1; overriding it clearly requires a scrupulous ethical framework. Treatment compulsion can be ethically framed in three ways: It can be argued that the patient’s autonomy is absent or reduced because of their illness: if the patient is unable to exercise autonomy, the doctor cannot conflict with it. Patients’ autonomy can be weighed against the expected health and social consequences of their exercising it, and
Gareth S Owen BSc MB BS MRCPsych PhD is Clinical Senior Lecturer in Mental Health, Ethics and Law at the Institute of Psychiatry, Psychology and Neuroscience, King’s College London, and an Honorary Consultant Psychiatrist at the South London and Maudsley NHS Foundation Trust, UK. Competing interests: none declared.
The legal framework The main legal frameworks for compulsory treatment in England and Wales are set out in the Mental Health Act 1983 (MHA 1983) and Mental Capacity Act 2005 (MCA 2005).2 Both must be seen in the context of the right to liberty that is part of the European Convention on Human Rights (ECHR). Compulsory treatment will often involve a deprivation of liberty (Table 2) and the ECHR requires any deprivation of liberty to have oversight and safeguards.
Benjamin W J Spencer MB BS BSc LLM MRCP MRCPsych is a Doctoral Research Fellow at the Institute of Psychiatry, Psychology and Neuroscience, King’s College London, and an Honorary Speciality Registrar in Psychiatry at the South London and Maudsley NHS Foundation Trust, UK. Competing interests: none declared. Richard A A Kanaan BA MB BS MA FRCPsych FRANZCP PhD is Professor of Psychiatry at the University of Melbourne, Consultant Psychiatrist at the Austin Hospital, Melbourne, Australia, and Visiting Senior Lecturer at the Institute of Psychiatry, UK. Competing interests: none declared.
MEDICINE 44:12
Mental Health Act 1983 This is limited in scope to the detention and treatment of individuals with ‘mental disorder’. Detention is authorized
734
Ó 2016 Elsevier Ltd. All rights reserved.
TREATMENT STRATEGIES AND PSYCHOPHARMACOLOGY
making capacity, for which it provides a two-stage test. This requires both a relevant decision (e.g. admission, treatment, financial matters) and a demonstration that the mental state makes the person unable to make that decision at the relevant time (Table 4). The key feature of the MCA 2005 is that it is a ‘functional’ law and is decision-specific. A patient may have capacity to make some decisions but not others, and it is presumed that capacity is present unless demonstrated otherwise. If the patient has capacity to decide, the law of consent applies. If the patient does not have capacity to decide, the law of ‘best interests’ applies. The MCA 2005 does not define best interests but gives a ‘checklist’ to safeguard the patient and the surrogate decision-maker. Importantly, ‘best interests’ is a broader concept than ‘medical’ best interests and applies regardless of whether the patient refuses or agrees to the treatment. A situation can exist in which deprivation of liberty is required as part of the treatment or care plan in a person who lacks capacity, but they do not come within the scope of detention under the MHA 1983 (Table 3). For this, there are powers to authorize a deprivation of liberty under the MCA 2005 using the Deprivation of Liberty Safeguards. In medical emergencies, the MCA 2005 does not invoke deprivation of liberty and there will tend to be a default to saving life. When the criteria for deprivation of liberty are met, formal safeguards are required. These criteria can be met even when compulsion is not being used. Other differences between the Acts are that advanced refusals of treatment that are valid and applicable are legally binding within the MCA 2005 but not the MHA 1983 (the single exception being electroconvulsive therapy). The MHA 1983 applies to all ages, whereas the MCA 2005 applies only to people aged 16 years and over.
The four principles of biomedical ethics1 C
C C C
Autonomy e the patient should be free to make their own choices regarding their healthcare Non-maleficence e the clinician should not inflict harm on others Beneficence e the clinician should help their patients Justice e the clinician should treat patients fairly and equally
Table 1
Criteria for deprivation of liberty C
C
C
Confinement attributable to the state (e.g. carried out in hospitals, care homes) Confinement to a certain limited place for a not-negligible length of time (not free to leave the place they are living and under continuous supervision and control) The person has not validly consented to the confinement (e.g. they have objected, have consented without being sufficiently informed, lack mental capacity or have been coerced)
Table 2
subject to the individual having a mental disorder of a nature or degree that requires detention and assessment or treatment in hospital, for the prevention of harm to self or others, or for the individual’s health (Table 3). Treatment for mental disorder under the Act by the ‘responsible clinician’ (usually the psychiatric consultant in charge of care) mostly does not require the individual’s consent. However, additional safeguards apply after the first 28 days of detention. Even then, with the exception of electroconvulsive therapy and very specialist treatments like psychosurgery, treatment for mental disorder under the MHA 1983 can be authorized even if there is refusal of the treatment by an individual with decision-making capacity (see below). The Act’s main safeguard is the option to apply for a review of the detention through the tribunal process (which has the power to discharge the individual from detention in hospital).
Complexity Mental health professionals work in one of the most ethically complex areas of medicine. Clinicians need common sense but also familiarity with ethical frameworks to guide decisionmaking and to avoid the abuse of their power. Mental health
Mental Capacity Act 2005 The MCA 2005 potentially applies to any person with impairment, or dysfunction, in mind or brain. The MCA 2005 applies, however, to treatment for mental disorder and physical disorder (e.g. a cancer), whereas the MHA 1983 applies to mental disorder alone. The act hinges on the legal concept of decision-
The ‘two-stage’ test of capacity to make a decision in the Mental Capacity Act 2005 Step 1 Does the person have an impairment of, or a disturbance in the functioning of, their mind or brain? Step 2 Does the impairment or disturbance mean that the person is unable to make a specific decision when they need to? A person is unable to make a decision if they cannot: C Understand relevant information C Retain that information in their mind C Use or weigh that information as part of the decision-making process C Communicate their decision
Criteria for detention under the Mental Health Act 1983 C
C
Mental disorder or disability of mind of a nature or degree that warrants detention for assessment (Section 2) or appropriate treatment (Section 3) The detention is for the patient’s own health or safety or with a view to the protection of others
Table 3
MEDICINE 44:12
Table 4
735
Ó 2016 Elsevier Ltd. All rights reserved.
TREATMENT STRATEGIES AND PSYCHOPHARMACOLOGY
law provides safeguards, consistency and accountability for clinicians, patients, their families and society at large. Mirroring the ethical complexity of psychiatry, this area of law is complex. With the existence of two legal frameworks that may apply to the same patient, it has become more complex still. There are also concerns about discrimination and the stigmatization of patients treated under the MHA because this law, unlike the MCA, has preventive detention for public protection as an explicit aim.3 Whether mental health law and ethics can be simplified is a fascinating question for the future and is likely to depend upon a
MEDICINE 44:12
better understanding of decision-making autonomy in psychiatric illnesses and the fair constraints on autonomy in society. A KEY REFERENCES 1 Beauchamp TL, Childress JF. Principles of biomedical ethics. 5th edn. Oxford: Oxford University Press, 2001. 2 Fennell P. Mental health: the new law. London: Jordans, 2007. 3 Richardson G. Balancing autonomy and risk: a failure of nerve in England and Wales? Int J Law Psychiatry 2007; 30: 71e80.
736
Ó 2016 Elsevier Ltd. All rights reserved.
The legal and ethical framework for compulsory psychiatric treatment
Key points
Gareth S Owen
C
Society, under certain conditions, empowers doctors to treat compulsorily
C
The ethical framework for compulsory treatment is crucial and debated
C
The Mental Health Act 1983 and Mental Capacity Act 2005 can authorize compulsory treatment
C
The principles and rules of the two legal frameworks are different
C
The field is complex, and future simplification is likely to require a better understanding of decision-making autonomy in psychiatric illnesses and fair social constraints on autonomy
Benjamin WJ Spencer Richard AA Kanaan
Abstract Compulsory detention and treatment is a key ethical issue facing psychiatry. It involves clinicians overriding patients’ apparent autonomy, with ensuing ethical implications. The legal basis for detention and treatment is equally complex, with two Acts e the Mental Health Act 1983 and the Mental Capacity Act 2005 e applying to patients with mental illness.
decided against: the benefits of autonomy may be outweighed by other benefits. It can be argued that patients’ autonomy, when considered from the perspective of their whole life, is actually most respected by treating them compulsorily: by restoring the patient to themself, their real autonomy is, paradoxically, maximized. However, questions may be asked about each of these positions: Compromises to autonomy come in different forms. Patients can lose autonomy for some matters and keep it for others. Even when autonomy for a matter is absent, it is still possible to conflict with a patient’s will. In these situations, what does it mean to say that, for a mentally ill person, there is no autonomy with which to conflict? Although most would accept that some protection of others is a necessary constraint on autonomy in an orderly society, how can this be done fairly when people with mental illness are socially stigmatized and widely perceived to be mad, bad or both? Deciding what represents a patient’s real autonomy can be difficult. With chronic schizophrenia, for example, how does one separate the illness from the personality?
Keywords Autonomy; ethics; law; Mental Capacity Act 2005; Mental Health Act 1983; psychiatry
The ethical framework The most serious and common ethical dilemma in psychiatric practice is compulsion to undergo treatment. Psychiatrists are empowered by many societies to deprive patients of their liberty under certain conditions, and impose treatment against their wishes if necessary. Patient autonomy is one of the core, arguably the highest, principles of medical ethics (Table 1)1; overriding it clearly requires a scrupulous ethical framework. Treatment compulsion can be ethically framed in three ways: It can be argued that the patient’s autonomy is absent or reduced because of their illness: if the patient is unable to exercise autonomy, the doctor cannot conflict with it. Patients’ autonomy can be weighed against the expected health and social consequences of their exercising it, and
Gareth S Owen BSc MB BS MRCPsych PhD is Clinical Senior Lecturer in Mental Health, Ethics and Law at the Institute of Psychiatry, Psychology and Neuroscience, King’s College London, and an Honorary Consultant Psychiatrist at the South London and Maudsley NHS Foundation Trust, UK. Competing interests: none declared.
The legal framework The main legal frameworks for compulsory treatment in England and Wales are set out in the Mental Health Act 1983 (MHA 1983) and Mental Capacity Act 2005 (MCA 2005).2 Both must be seen in the context of the right to liberty that is part of the European Convention on Human Rights (ECHR). Compulsory treatment will often involve a deprivation of liberty (Table 2) and the ECHR requires any deprivation of liberty to have oversight and safeguards.
Benjamin W J Spencer MB BS BSc LLM MRCP MRCPsych is a Doctoral Research Fellow at the Institute of Psychiatry, Psychology and Neuroscience, King’s College London, and an Honorary Speciality Registrar in Psychiatry at the South London and Maudsley NHS Foundation Trust, UK. Competing interests: none declared. Richard A A Kanaan BA MB BS MA FRCPsych FRANZCP PhD is Professor of Psychiatry at the University of Melbourne, Consultant Psychiatrist at the Austin Hospital, Melbourne, Australia, and Visiting Senior Lecturer at the Institute of Psychiatry, UK. Competing interests: none declared.
MEDICINE 44:12
Mental Health Act 1983 This is limited in scope to the detention and treatment of individuals with ‘mental disorder’. Detention is authorized
734
Ó 2016 Elsevier Ltd. All rights reserved.
TREATMENT STRATEGIES AND PSYCHOPHARMACOLOGY
making capacity, for which it provides a two-stage test. This requires both a relevant decision (e.g. admission, treatment, financial matters) and a demonstration that the mental state makes the person unable to make that decision at the relevant time (Table 4). The key feature of the MCA 2005 is that it is a ‘functional’ law and is decision-specific. A patient may have capacity to make some decisions but not others, and it is presumed that capacity is present unless demonstrated otherwise. If the patient has capacity to decide, the law of consent applies. If the patient does not have capacity to decide, the law of ‘best interests’ applies. The MCA 2005 does not define best interests but gives a ‘checklist’ to safeguard the patient and the surrogate decision-maker. Importantly, ‘best interests’ is a broader concept than ‘medical’ best interests and applies regardless of whether the patient refuses or agrees to the treatment. A situation can exist in which deprivation of liberty is required as part of the treatment or care plan in a person who lacks capacity, but they do not come within the scope of detention under the MHA 1983 (Table 3). For this, there are powers to authorize a deprivation of liberty under the MCA 2005 using the Deprivation of Liberty Safeguards. In medical emergencies, the MCA 2005 does not invoke deprivation of liberty and there will tend to be a default to saving life. When the criteria for deprivation of liberty are met, formal safeguards are required. These criteria can be met even when compulsion is not being used. Other differences between the Acts are that advanced refusals of treatment that are valid and applicable are legally binding within the MCA 2005 but not the MHA 1983 (the single exception being electroconvulsive therapy). The MHA 1983 applies to all ages, whereas the MCA 2005 applies only to people aged 16 years and over.
The four principles of biomedical ethics1 C
C C C
Autonomy e the patient should be free to make their own choices regarding their healthcare Non-maleficence e the clinician should not inflict harm on others Beneficence e the clinician should help their patients Justice e the clinician should treat patients fairly and equally
Table 1
Criteria for deprivation of liberty C
C
C
Confinement attributable to the state (e.g. carried out in hospitals, care homes) Confinement to a certain limited place for a not-negligible length of time (not free to leave the place they are living and under continuous supervision and control) The person has not validly consented to the confinement (e.g. they have objected, have consented without being sufficiently informed, lack mental capacity or have been coerced)
Table 2
subject to the individual having a mental disorder of a nature or degree that requires detention and assessment or treatment in hospital, for the prevention of harm to self or others, or for the individual’s health (Table 3). Treatment for mental disorder under the Act by the ‘responsible clinician’ (usually the psychiatric consultant in charge of care) mostly does not require the individual’s consent. However, additional safeguards apply after the first 28 days of detention. Even then, with the exception of electroconvulsive therapy and very specialist treatments like psychosurgery, treatment for mental disorder under the MHA 1983 can be authorized even if there is refusal of the treatment by an individual with decision-making capacity (see below). The Act’s main safeguard is the option to apply for a review of the detention through the tribunal process (which has the power to discharge the individual from detention in hospital).
Complexity Mental health professionals work in one of the most ethically complex areas of medicine. Clinicians need common sense but also familiarity with ethical frameworks to guide decisionmaking and to avoid the abuse of their power. Mental health
Mental Capacity Act 2005 The MCA 2005 potentially applies to any person with impairment, or dysfunction, in mind or brain. The MCA 2005 applies, however, to treatment for mental disorder and physical disorder (e.g. a cancer), whereas the MHA 1983 applies to mental disorder alone. The act hinges on the legal concept of decision-
The ‘two-stage’ test of capacity to make a decision in the Mental Capacity Act 2005 Step 1 Does the person have an impairment of, or a disturbance in the functioning of, their mind or brain? Step 2 Does the impairment or disturbance mean that the person is unable to make a specific decision when they need to? A person is unable to make a decision if they cannot: C Understand relevant information C Retain that information in their mind C Use or weigh that information as part of the decision-making process C Communicate their decision
Criteria for detention under the Mental Health Act 1983 C
C
Mental disorder or disability of mind of a nature or degree that warrants detention for assessment (Section 2) or appropriate treatment (Section 3) The detention is for the patient’s own health or safety or with a view to the protection of others
Table 3
MEDICINE 44:12
Table 4
735
Ó 2016 Elsevier Ltd. All rights reserved.
TREATMENT STRATEGIES AND PSYCHOPHARMACOLOGY
law provides safeguards, consistency and accountability for clinicians, patients, their families and society at large. Mirroring the ethical complexity of psychiatry, this area of law is complex. With the existence of two legal frameworks that may apply to the same patient, it has become more complex still. There are also concerns about discrimination and the stigmatization of patients treated under the MHA because this law, unlike the MCA, has preventive detention for public protection as an explicit aim.3 Whether mental health law and ethics can be simplified is a fascinating question for the future and is likely to depend upon a
MEDICINE 44:12
better understanding of decision-making autonomy in psychiatric illnesses and the fair constraints on autonomy in society. A KEY REFERENCES 1 Beauchamp TL, Childress JF. Principles of biomedical ethics. 5th edn. Oxford: Oxford University Press, 2001. 2 Fennell P. Mental health: the new law. London: Jordans, 2007. 3 Richardson G. Balancing autonomy and risk: a failure of nerve in England and Wales? Int J Law Psychiatry 2007; 30: 71e80.
736
Ó 2016 Elsevier Ltd. All rights reserved.