MENTAL HANDICAP VOL. 13 JUNE 1985

session should also occur at least once a day so that child behaviours can be recorded.

References Bates, E. Language and Context: The Acquisition

of Pragmatics. New York: Academic Press, 1976.

Bloom, L. Language development: form and function in emerging grammars. Cambridge, Mass.: MIT Press, 1970.

Bloom, L. One Word at a Time. The Use of Single Word Utterances Before Syntax. The Hague: Mouton, 1973.

Coupe, J. Resultsofa Language SurveyatMelland School. Unpublished Report, 1981.

Halliday, M. A. K. Learning bow to mean: explorations in the development of language. London: Edward Arnold, 1975.

Leeming, K. , Swann, W., Coupe, J. Mittler, P. Teaching Language and communication to the mentally handicapped. Schools Council Curriculum Bulletin 8 . London: Evans Methuen Educational, 1979.

Reynell, J . K . Reynell Developmental Language Scales (rev. edn.). Windsor: NFEWNelson, 1977.

TABLE 2. Scoring - Seauence A: Car

Christopher Natalie Martina Joseph Emma

Attention L L L. L Agent GV VG V V PGW W Action G PG PG G WG Repetition W V Action G PG PG G G

TABLE 3. Scoring - Sequence B: Ball and skittles ~~

Christopher Natalie Martina Joseph Emma

Attenuon L L L L L

Agent W vw PGV W w

Repetition L PW L Action GV G PG G G

Note: The authors would be pleased to hear from anyone who wishes to apply thls approach or is developing a smlar framework of intervention.

Action W PG PG W PG

The law and mental handicap: 6. Consent to treatment

Mike Gunn

The issues surrounding treatment of people who are mentally handicapped are manifold. They concern not only a right to self-determination insofar as that is practically and legally possible, but also a right to receive appropriate treatment. The latter has not been recognised in England as such, but is a development of the interpretation of the Bill of Rights in America by the lower Federal courts’ which appears to be supported by the Supreme Court.2

The main concern of this article is with the right, if any, of a person who is mentally handicapped to decide what treatment and care to receive. There is very little directly relevant case-law, so the starting point is with general propositions.

Possible courses of action If the issue of wrongful treatment or care is to be raised in a

court of law, it will be raised as either a civil law or criminal law matter. If it is a civil law action, which is most likely, the person who is mentally handicapped, the plaintiff, will be seeking damages (or perhaps an injunction to stop treatment being continued) from members of staff and their employers, the defendants. If it is a criminal law action, this will be by means of a prosecution, probably of an individual member of staff. The result could be imprisonment, although a non-custodial sentence, if not a discharge, is more likely.)

Criminal cases are unlikely for a number of procedural reasons: legal aid is unavailable to the individual to pursue a

private prosecution; if it is not a private prosecution the poiice have to be convinced that a prosecution is appropriate; the complainant does not necessarily receive any financial benefit if successful; and the burden of proving the case is greater than in a civil law a ~ t i o n . ~ Civil law actions also have a major advantage for the plaintiff, in that the employing authority is usually “vicariously liable” for the actions of its employees and is thus financially responsible.’ Most members of staff are not insured against prosecution though doctors, for example, are.

There are two relevant civil law actions. The first is known as trespass to the person which, for present purposes, involves assault and battery.6 Any non-consensual contact with a person amounts to a trespass to the person. The second is negligence.’ The plaintiff succeeds here if he can establish that the defendant owed him a duty of care which has been carelessly broken. All health staff, inside and outside institutions, owe their patients a duty of care. That could be broken if consent is obtained by providing insufficient information. It is here, therefore, that the American concept of “informed consent” is relevant.* Thus the issue of consent is central to the entire question.

Consent Consent is a rational act of will by an individual. The person is

saying “Yes” to a form of treatment; not necessarily that he likes the idea of the treatment but that he realises the personal benefit

MIKE GUNN is a Lecturer in Law in the Department of Law, University of Nottingham,

University Park, Nottingham NG7 2RD. 70 @ 1985 British Institute of Mental Handicap

MENTAL HANDICAP VOL. 13 JUNE 1985

to be accrued from it. Dictionary definition suggests a “voluntary agreement to. . . what another proposes. . .”.I0 It is clear from case law that there is not true consent if agreement is not voluntary because it has been obtained by fear or fraud.” It is also the case that submission is not the same as consent.

As consent is a rational act, the individual must be capable of consenting. If the recent decision of the Court of Appeal in the case of Gillick” is correct, and is not overruled on appeal by the House of Lords or limited to medical treatment in the form of contraceptive advice and treatment, children under the age of 16 years cannot consent without parental involvement and appr0va1.l~ Despite comments to the c~ntrary,’~ there is no legal decision that a person who is mentally handicapped is necessarily incapable of making treatment and care decisions. Thus the question of capacity is an individualised one, which depends upon the ability of an individual to receive information, process it, and make a decision. It is worth noting that many treatment decisions are relatively simple and require little capacity.”

The best way for staff to ensure that they have the consent of a patient is to obtain oral and written signification. Consent, however, can be implied, for example, by holding out an arm for an injection without saying anything.16 It is going too far though to say that mere presence in a hospital means that a patient consents to any form of treatment, especially since the voluntariness of the admission to hospital or other institution of some people who are mentally handicapped is open to doubt.”

Consent is not always sufficient or necessary There are certain activities to which the law does not allow

people to consent. These include fightP and beatings of 17- year-old girls for the purposes of sexual gratification. l9 Courts also express doubts as to whether people can consent to certain operations at all; thus, Lord Denning doubted whether a man could consent to a sterilisation operation.” It is clear now that he can.21 There do not appear to be any regular forms of treatment or care for people who are mentally handicapped to which this would apply. Particularly intrusive and/or highly experimental treatments might be types of treatment to which consent cannot be given.

Ccnsent is not necessary if treatment is given within the Mental Health Act, 1983.22 Must consent be informed?

If consent is required and exists, that is a defence to trespass to the person. If, however, the information given to the person is inadequate then this could give rise to an action in negligence. The claim is that although the person did consent the member of staff, usually a doctor, failed to give sufficient information and so was negligent. This action will succeed if damage flows from the negligence, that is, the plaintiff has to show that he would not have consented to the treatment if the member of staff (doctor) had given him all the information he should have done.

The House of Lords considered this question in the recent case of Sidaway.’l It rejected the American doctrine of informed consent. It decided that doctors will be held to be negligent if they fail to comply with the test established in Bolam v Friern Hospital Management Committeez4 in 1957. This means that doctors must act “in accordance with a practice accepted at the time as proper by a responsible body of medical opinion skilled in the particular form of treatment in question”. Thus, the standard operated by the profession applies. The danger is obvious: the potentiality of untrammelled professionals deciding standards possibly contrary to the interests of people who are mentally handicapped. The safeguards lie in the integrity and ethics of the various professions and also in the law. It is unlikely that a judge would not interfere if he felt that the professional standard was wrong. This is certainly the attitude of Lord Bridge, with whom Lord Keith was in full agreement, and Lord Templeman in the case of Sidaway.2s

The standard applies to people who are mentally handicapped. If they are capable of consenting, professionals need to consider how much information they should be given.

An example which would appear to be inadequate, in most instances at least, would be if electro-convulsive therapy were explained simply as “an electric shock which will make you feel better”. It should, however, be stressed that the duty to provide information varies with the capacity of the individual to understand. If the professional acts in accordance with professional standards in explaining in brief or minimising the risks, this will be acceptable, subject to potential overview by the courts.26

It is, therefore, incumbent on all the various professions to establish professional guidelines which are carefully thought through.

Incapable patients Sometimes patients are incapable of giving consent. Can

treatment or care still be provided? In an emergency, the answer would appear to be yes, although its exact basis is ~nclear.~’

If a person is unable to consent by reason of mental handicap, whether in an institution or in the community, it is assumed that some types of treatment can be provided without consent. The parameters for this are decidedly unclear. Perhaps a starting point would be the case of Leigh v Gladstone:’ where a suffragette complained about force feeding while in prison. Whilst not entirely satisfactory this is thought to be support for the proposition that life-saving treatment can be provided without consent. If the patient is capable of consent, however, there are some problems since suicide is no longer a but the proposition appears to be valid for some people who are mentally handicapped.

Historically, it has been possible for staff to restrain people who are mentally disordered to prevent them causing harm, particularly to them~elves.’~ This is the common law power that nurses had prior to section 5(4) of the Mental Health Act, 1983. Looked at broadly it seems to support the provision of medically necessary treatment to incapable patients. This would only apply in relation to anticipated harm in the near, perhaps immediate, future.

The doctrine of necessity3’ appears to justify treatment which is not necessary to prevent immediate harm, but which is necessary to prevent harm in the future. Here “harm” may well include injury to the health and welfare of the patient. One writer has concluded that “if a patient is likely to be permanently incapable of consenting, and no-one is authorised to consent on his behalf,32 a doctor should be justified in doing whatever good medical practice dictates should be done in the patient’s intere~t”.’~ Whether the law would go this far is open to considerable d ~ u b t . ’ ~ It is extremely difficult to say what the law permits other than necessary life-saving treatment. That it does permit more appears to be fairly certain.

It might be appropriate to suggest that treatment can be provided if first an explanation is given, insofar as it is possible, as to what the treatment is, what it is for, and what its likely side effects will be. If the patient is incapable of consenting, then the treatment can be given if it is medically necessary, rather than desirable, and if it is in accordance with good professional practice. In deciding, an aid would be whether most people would consent to the treatment if they were in the patient’s position. A committee with a wide-ranging membership could assist in such decision-making. It is also always advisable, though not legally necessary, to have the consent of the next of kin. This scheme might not extend to certain types of intrusive or experimental treatment.

These propositions are supported by the possibility of action being taken against the staff and the employing auhority for failure to provide appropriate treatment and care.3s This is so if, for example, staff carelessly allow a patient to attempt or commit

Mistakes do not equal negligence, so if there is an attempted or successful suicide it does not necessarily mean that the staff were careless and hence liable in negligence.”

To what do these “propositions” apply? Firstly, they apply to all forms of treatment for incapable

patients living in the community. Secondly, they apply to any

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forms of treatment for informal hospital patients, unless they are to be provided with psychosurgery or the surgical implantation of hormones to suppress male sexual drive. In this case the provisions of section 57 of the Mental Health Act, 1983 apply.38 In an emergency, these two treatments can be provided under section 62, which may well be wider than the common law provisions. If so, this provision in the Act is not as helpful as it might at first sight appear to be.

Thirdly, they apply to patients who are detained but are not covered by Part IV of the Mental Health Act, 1983.” Finally, they apply to treatment for physical disorders of all detained patients, since such treatment is not covered by Part IV.40 In these last two instances it is unlikely that staff could avoid liability or prosecution through section 139 of the Mental Health Act, 1983 even if Poutne v Griffths4I would extend further than escorts to i n c d t m e n t . It would be difficult, if not impossible, for members of staff to avoid a suggestion that they had not “purported to act in accordance with the Act’ . The treatment limits of the Act are now explicit and should be known to all staff.

Is this satisfactory? No. There is no clear guidance for patients, relatives, staff, or

employers. A patient is only protected if he, or a friend on his behalf, is prepared to go to court. Staff do not have the protection of section 139 of the Mental Health Act, 1983 in relation to patients in the community, nor in relation to informal patients, on the generally accepted assumption that the decision of the Warwick Crown Court in & v Runighian4* is correct.

Clear guidelines from the courts are unlikely to be forthcoming. Perhaps the answer lies in some form of third party consent. At present no one can consent on behalf of an adult. In many states in America43 and Australia,“ there is a form of court-appointed guardian, who can take treatment and care decisions. These decisions are subject to the control of the court. It would appear that such guardianship schemes are envisaged by the United Nations Declaration on the Rights of Mentally Retarded Persons:

“ 5 . The mentally retarded person has a right to a qualified guardian when this is required to protect his personal well-being and interests.”4S

Perhaps the time has come for a fundamental rethink of guardianship arising from the problems of people who are mentally handicapped and incapable of consent but who are not detained under the Mental Health Act, 1983.

NOTES 1. 2.

3.

4. 5.

6.

7. 8.

9.

Wyatt v Stickney. Federal Supplement, 1972; 344, 387. Youngberg v Romeo. Supreme Court Reports, 1982; 102, 2452. In general see: Beis, E. B. Mental Health and the Law. Rockville, Maryland: Aspen, 1984; ch. 8; Friedman, P. R. The Rights ofMenrally Retarded Persons. New York: AvodDiscuss, 1976, ch.3; Herr, S. S. Rights and Advocacy for Retarded People. Lexington: Lexington Books, 1983, ch.5. On sentencing by criminal courts, see Smith, P. F., Bailey, S.H. Modern English Legal System. London: Sweet and Maxwell, 1984, ch. 18. ibid., ch.13. This doctrine is complex. For further information see Rogers, W. V. H. Winfield and Jolowicz on Tort (12th edn.). London: Sweet and Maxwell, 1981, ch.21. For full treatment, ibid, ch.4, or Street, H. Street on Torts (7th edn.). London: Butterworths, 1983, ch.3. For full treatment, see Rogers, op. cit. (9, ch.5. See: Canterbury v Spence. Federal Reporter (2nd series), 1972; 464, 772; Robertson, G. Informed Consent to Medical Treatment. Law Quarterly Review, 1981; 97, 102-126; Skegg, P. D. G. ‘Informed Consent’ to Medical Procedures. Med. Sci. and Law, 1975; 15,124-132; Finch, J. D. Health Services Law. London: Sweet and Maxwell, 1981, ch.11. Compare with: Annas, G. J. The Rights of Hospital Patients. New York: Avon/Discuss, 1975, ch.6. See relevant sections of works already mentioned, and: Smith, J. C., Hogan, B. Criminal Law (5th edn.). London: Butterworths, 1983, pp. 357-361; Williams, G. Textbook of Criminal Law (2nd edn.). London:

Sweet and Maxwell, 1983, ch.25; Heuston, R. F. V., Chambers, R. S. Salmond and Heuston on the Law of Torrs (18th edn.). London: Sweet and Maxwell, 1981, pp. 466-476.

10. Compact Edition of the Oxford English Dictionary. 11. Some kinds of fraud, not likely to arise in the present context, may not

vitiate consent. See: Street on Torts (7th edn.), op. cit., p.68; and for comparison Whittaker vCampbel1. All England Law Reporrs, 1983; 3, 582-588 on taking a vehicle contrary to the owner’s consent.

12. Gillick v West Norfolk and Wisbech AHA. All England Law Reports,

13. The analysis of this issue by Woolf, J. in the High Court would appear to be preferable. See Gillick,All England Law Reports, 1984; 1,365-375. Note that a parent does not have unbridled ability to consent on behalf of the child, as is shown b y H ( a minor), Weekly Law Reports, 1981; 1, 1421-1425. See Cretney, S. M., Principles of F d y Law (4th edn.). London: Sweet and Maxwell, 1984, ch.13.

1985; 1, 533-559.

14. For example, Lord Scarman in Sidaway (below, 25). 15.This approach reflects that of Woolf, J. in Gillick. It seems to be

acceptable. See, for example: Kloss, D. M. Consent to Medical Treatment. Med., Sci., and Law, 1965; 5,89-100, esp. 94; and Hoggett, B. M. Menral health Law (2nd edn.). London: Sweet and Maxwell,

16. As suggested by Leigh-Taylor, N. Docforsand the Law. London: Oyez, 1976, p. 71.

17. Compare Mason, J. K. Forensic Medicine for Lawyers. London: Butterworths, 1983, pp. 329-330 with McLean, S. A. M. LegalZssuesin Medicine. Aldershot: Gower, 1981, pp. 96-97.

18. Attorney-General’s Reference (No. 6 of 1980). All England Law Reporrs, 1981; 2, 1057-1059.

1 9 . R ~ Donovan. Law Reports: King’s Bench Division, 1934; 2,498-510. 20. Denning, L. J. Zn Bravery v Bravery. All England LawReports, 1954; 3,

59-68 at pp. 67-68. 21. McLean, S.; Maher, G. Medicine, Morals and the Law. Aldershot:

Gower, 1983, ch.7; Mason, J. K., McCall-Smith, R. A. Law and Medical Ethics. London: Butterworths, 1983, ch.4.

22. See Gum, M. J. The law and mental handicap: 3. Consent to Treatment, Ment. Hand., 1984; 12, 60-62; Hoggett, op. cit. (15), pp. 192-213.

1984, pp. 195-198.

23. Sidaway v Board of Governors of Bethlem Royal Hospital and the

24. Weekly Law Reports, 1957; 1, 582-594. Maudsley Hospital. Weekly Law Reports, 1985; 2, 480-509.

25. Sidaway, op. cirr (14), at pp. 505 and 508-9. See also an excellent short article: Brahams, D. The Sidaway Case; “Informed” Consent - The Thin End of the Wedge. New Law J., 1985; 135,201-202 and 215-216. Seealso Jackson, R. M., Powell, J. L. Professional Negligence. London: Sweet and Maxwell, 1982, pp. 10-13.

26. See Jackson and Powell, ibid, at pp. 237-238. 27. See Heuston and Chambers, Supra m.9, at p. 467; Skegg, P. D. G. A

Justification for Medical Procedures Performed without Consent. Law Quarterly Rev, 1974; 90, 512-530; Kloss, Supra n. 15, at pp. 91 ff.

28. Times Law Reports, 1909; 26, 139-142. 29. See Zellick, G. J. The Forcible Feeding of Prisoners. Public Law, 1976;

pp. 153-187; and Skegg op. cit. (27), pp. 523-529. 30.See Hoggett, op. cit. (15), pp. 198-201 and 109-112; Lanham, D.

Arresting the Insane, Criminal LawRev., 1974; pp. 515-528; and Skegg op. cit. (27), passim.

31. There is some doubt whether there is a general defence of necessity known to English law, but most writers in this area assume its existence to support a proposition with regard to people who are mentally disordered and the courts seem, in passing, to have made the same assumption.

32. It is no longer possible for a guardian to provide consent. See powers in section 8 of the Mental Health Act, 1983.

33. Skegg, op. cit. (27), p.519. 34. Hoggett, op. cir. (15), p. 203. 35. See Jackson and Powell, op. cit. (25), pp. 226-241, esp. pp. 229-240. 36. See, for example, Selfe v Ilford and District HMC. The Times,

November 16, 1970. 37. Hyde v Tameside AHA. The Times, April 16, 1981. 38. s.56(2), Menral Health Act, 1983. 39. s.56(1), Menral Health Act, 1983. 40. Section 63 only extends to treatment “for the mental disorder from

41. Law Reports: Appeal Cases, 1976; pp. 314-336. 42. Criminal Law Review, 1977; pp. 361-2. 43. See Herr, S. S., Arons, S., Wallace, R. E. Legal Rights and Mental

44. See Hayes, S. C., Hayes, R. Menral Retardation. Sydney: Law Book,

45. united Nations Declaration on the Rights ofMentally Retarded Persons.

which [the patient] is suffering”.

Health Care. Lexington: Lexington Books, 1983, ch.9.

1982, ch.8.

(Resolution 2865, XXVI). Geneva: UN, 1971.

72 @ 1985 British Institute of Mental Handicap