The Legal Aspects Of Mental Health For Family Practice 031211

The Legal Aspects of Mental Health for Family Practice

3 December 2011

Dr. Aaron LEE Fook Kay

MBBS, MSc, LLB, LLM,Chairman of HKCPMA

Hon Secretary of HKMA

Member of World Association of Legal Medicine

Learning Objectives:

• 1. To understand basic principles of medical laws.

• 2. To know the important legal principles: The Bolam Case, The Bolitho Case, The Chester v Afshar Case.

Learning Objectives:

• 3. To know the important basic ethical principles: Respect for Autonomy; Justice; Beneficence; Non-Maleficence.

• 4. Case Scenarios for Discussions.

• 5. Take Home Messages.

Introduction to Medical Laws:

• Modern Medicine requires working within an evidence based framework.

• It also requires working within a rapidly evolving and important legal framework.

Some Core Legal Principles

• 1. The idea of a duty of care is more than a moral obligation. A duty of care is a legally enforceable obligation often mirrored by a corresponding right. The question is not just is there a moral obligation but, given this moral obligation, should the law impose a sanction for the breach of this obligation.


• 2. Rights are also legally enforceable obligations that can simply be the correlates of duties, e.g. the patient’s right to care correlates to the medical professional’ duty to treat. However, rights can stand free from correlative duties by resting wholly upon an underlying interest.


• 3. Two key principles which should be developed and then incorporated into medical decision-making methods are legal case-based reasoning and the doctrine of precedents. Together the cumulative decisions made by judges from a set of rules called case-law or the common law.


• 4. Legal case-based reasoning: Cases are decided with the underpinning reasoning expressed in the judgments. Where conflicting, these decisions and their reasoning are considered in the subsequent cases in the light of new facts and the reasoning developed as necessary. A rational framework emerges from this dialectic which forms the reasoned basis for the present decision.


• 5. The Doctrine of Precedents (stare decisis): The principle of binding precedents holds this common law framework in existence and allows it to maintain a coherent evolutionary direction. Binding precedent means that the previous decisions of higher courts bind the choices available to the lower courts.


• 6. The case-based nature of the common law permits a rich base of principles and factual elements to be mined and then made coherent through subsequent decision made in accordance with the principle of justice. By operation of the doctrine of precedent the framework that emerges must inevitably be internally consistent.


• 7. Acts of Parliament are the rules made by Parliament that carry the force of law. Within the United Kingdom constitution Parliament is sovereign. Therefore where both common law and statutory rules operate, the rules made by Parliament prevail.


• 8. Judicial Review is one way to challenge a decision made by Government and its related bodies. The important point to note is that judicial review does not consider whether the decision reached was right or wrong. It only tests if the decision was made in a correct manner.


• 9. Judicial review is a legal process whereby a decision can be challenged on three broad grounds:

• (i) it was procedurally unfair;

• (ii) it was so unreasonable that no reasonable decision-making body could have made it; or


• (iii) it was illegal. Examples of illegality challenge include:

• a) the power to make the decision did not lie in the hands of those who actually made the decision (ultra vires);

• b) the discretion was fettered, e.g. it was not a genuine exercise of discretion, simply the application of a blanket rule, or the power to decide was inappropriately delegated.


• c) irrelevant considerations were taken into account, or relevant considerations were not taken into account.


• 10. Duties that arise generally within society without explicit agreement tend to fall under the heading of torts. A tort is a civil wrong, It usually arises with a breach of a legal duty owed between legal persons. Here we will encounter the torts of negligence and battery.

Important Legal Principles

1.The Bolam Case2.The Bolitho Case3.The Chester v Afshar Case

The Bolam Case• Bolam v Friern Hospital Management Committee [1957] 1 WLR 582• The plantiff patient was suffering from mental illness and had to

undergo electroconvulsive therapy (ECT). He had not given informed consent. During the ECT, he was not given any relaxant drugs and was also largely unrestrained. The patient sustained dislocation of both hip joints and fractures of the pelvis.

• The Court held that the doctors did not breach their duty when deciding against restraining the patient. McHair J said:

• “Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he had not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art”.

The Bolam Test

• The Bolam Case considered that the standard of care was that of professional colleagues, which must accord with a “responsible body of medical opinion”. The doctor is not measured by the standard of the reasonable man the street but by the standard of the reasonable doctor. In deciding whether a doctor is negligent, the Court will rely on the expert opinion. Under the Bolam test, a doctor is not negligent if he has conformed with responsible professional practices.

The Bolitho Case• Bolitho v Hackney Health Authority [1997] 4 All 771

• P, a two-y.o. boy, who had a history of hospital treatment for croup was readmitted to hospital under the care of two doctors, Dr H and Dr R. The following day, P suffered two episodes at 12.30 pm and 2 pm during which he turned white and had difficulty in breathing. Dr H was called in the first instance; in the second instance, she delegated to Dr R to attend to P. However, neither doctor attended to P, who at both times appeared to return quickly to a stable condition.

• At around 2.30 pm, P suffered from total respiratory failure and a cardiac arrest resulting in severe brain damage. P died later. P’s mother as the administrator of P’s estate sued for medical negligence. The defendant health authority accepted that Dr H had breached her duty of care to P, but alleged that the cardiac arrest could not have been avoided even if Dr H had attended to P earlier than 2.30 pm.

The Bolitho Case

• It was known that intubation to provide an airway would have ensured that respiratory failure did not lead to a cardiac arrest and that such intubation should have been carried out after the first episode.

• P’s lawyer had expert evidence that a reasonably competent doctor would have intubated the patient in such circumstances. The defendant doctor had her own expert witness (Dr D) to say that non-intubation was a clinically justifiable response.

• The High Court judge found that the views of the two experts, though diametrically opposed, represented a responsible body of professional opinion espoused by distinguished and truth experts.

The Bolitho Case

• The Court held that Dr H, if she had attended to P and not intubated him, would have met the standard of a proper level of skill and competence according to Dr D’s views, and that it had not been proven that the defendants’ admitted breach of duty caused by the injury to P. The Court of Appeal dismissed an appeal by P’s mother, who later appealed to the House of Lords.

• The House of Lords held that a doctor could be liable for negligence in respect to diagnosis and treatment despite a body of professional opinion sanctioning his conduct, where it had not been shown to the judge’s satisfaction that the body of opinion relied on was reasonable or responsible.

The Bolitho Case

• In most cases, the fact that distinguished experts in the field were of a particular opinion showed the reasonableness of that opinion. However, in a rare case, if it could be demonstrated that the professional opinion was not capable of withstanding logical analysis, the judge could hold that the body of opinion was not reasonable or responsible. As the House of Lords accepted Dr D’s views as reasonable, the appeal was thus dismissed.

The Bolitho Test

• The body of opinion relied upon must have a basis in logic, and the judge must be satisfied that the experts have directed their minds to the question of comparative risks and benefits, and have reached a defensible conclusion on the matter.

• Under the Bolam test, a doctor is not negligent if what he has done is accepted by a responsible body of medical opinion. But the Court must be satisfied that the body of opinion rests on a logical basis.

The Chester v Afshar Case

• Chester v Afshar [2004] UKHL 41, HL• P suffered back pain. D reviewed P and on 21 November

1994 D performed 3-level lumbar micro-discetomy. The procedure had a 1-2 % inherent risk of neurological damage including paralysis and cauda equina syndrome. Unfortunately, this risk materialised.

• At first instance, it was found that: [1] D had not warned P about the risk, and so was in breach of his duty of care and [2] if the risk had been diclosed, P would have undergone the surgery but at a different date after seeking further opinions.


• Held [majority decision 3:2]: P could succeed.• There was insufficient legal causation between the breach of

the duty to disclose and the harm suffered.• Majority [Hope Ld, Steyn Ld, Walker Ld]: The very harm

that it was the duty of D to warn P about has materialised. An exception to the but-for rule of causation was justified on policy grounds and to prevent the doctor’s duty to disclose the risks inherent in an operation from being drained of its force. P could recover damages for the resulting harm.

• Dissent [Bingham Ld, Hoffman Ld]: The but-for test for causation was not satisfied. It was unjust to permit recovery where the risk of harm would have been taken whether the disclosure would have been made or not.


• The consequence of this Case is that where there is a breach of the duty to disclose and P suffers the actual harm they should have been warned about, then a claim for damages is more likely to succeed. The patient can recover if they would have deferred the procedure. They no longer have to demonstrate that they would have refused the procedure completely if they had been aware of the undisclosed risk.

Principles of Medical Ethics

• Much of modern codes of medical ethics are inspired by the moral rules of Hippocratic Oath centuries ago.

• The four general principles of medical ethics are: Autonomy; Justice; Beneficience; and Non-Maleficence.


• 1. Respect for autonomy: respect values and preferences of a person; e.g. Genuine attempt to understand why a patient reject a medical advice.

• 2. Justice: all persons have an equal claim to health care and prioritization must be fair; e.g. Non-discriminatory care irrespective of age.


• 3. Beneficience: doing good to others; e.g. relieving pain in a cancer patient.

• 4. Non-maleficence: doing no harm; e.g. avoid use of restraints.


• In the modern world, the autonomy of the patient assumes paramount importance, and may come into conflict with the other principles. The well accepted principles for clinical use in modern medicine include the following:

• 1. Mentally capable patient has the ultimate right of the choice or refusal of any form of medical interventions.


• 2. In an emergency situation when the wish of the patient is unknown, one tends to lean towards the preservation of life.

• 3. It is not necessary to offer futile treatment.

Case Scenarios• Case 1: When to select a patient under the Mental Health

Legislation?

• A 23-year-old artist, Jenny, lives with her parents and her 2-year-old daughter. You have received a phone call from Jenny’s mother saying that she is worried that her daughter is acting “oddly”. She asks if you would make a home visit to see Jenny as she is refusing to leave the house.

Case Scenarios• You agreed to go after your afternoon clinic.

When you get to the house, Jenny’s mother takes you upstairs. Jenny is hiding under her duvet in the dark with a torch, which she is turning on and off. She is unwashed and wearing dirty clothes. Her arms are covered with fingernail scratches. As you enter, Jenny asks you to stay very quiet as she is trying to intercept a message from the people who lived in her sock drawer. The torch is helping to reflect their thoughts into Jenny’s head.

Case Scenarios• On further questioning, you discover that Jenny

has several abnormal beliefs. She believes that she has been sent as a spy from the government and has a microchip inserted under her skin so that the Chief Executive can track her actions. Your first impressions are Jenny has schizophrenia. You feel she should be admitted to a psychiatric hospital for further assessment and possible treatment.

Questions

• 1. What is a mental disorder?

• 2. What are the criteria for detention for assessment and treatment under mental health legislation?

• 3. Who can select an individual?

• 4. Can Jenny be forced to gave treatment for her mental disorder?

Legal Issues• The main purpose of mental health legislation is to ensure

that those with serious mental disorders who are at risk of harming themselves or others can be treated irrespective of their consent.

• The Mental Health Act 1983 set out the framework for compulsory treatment of people who have a mental disorder.

• The Code of Practice has highlighted the importance of:

• 1. keeping patient restrictions to the minimum necessary to protect the health and safety of the patient and others people.

Legal Issues• 2. The need for minimum restrictions on

liberty.

• 3. The effectiveness of treatment or care.

• 4. The views of the patient.

• 5. Allows compulsory treatment in the community after discharge from detention in hospital.

Mental Disorder• The Legislation allows detention for assessment

and treatment of those with a mental disorder only when certain criteria apply.

• Clinically recognized mental disorders include: schizophrenia, bipolar disorders, anxiety disorders, and depression.

• Also included are personality disorders, eating disorders, autistic spectrum disorders, and learning disabilities.

Mental Disorder• Disorders of the brain are not mental disorders

unless they give rise to disorder of the mind as well. People with learning disability is associated with abnormally aggressive or seriously irresponsible conduct.

• If Jenny’s beliefs and behaviours are not a result of schizophrenia, she cannot be sectioned even if her behaviour causes alarm or distress to others.

Criteria for detention

• People can be compulsorily admitted for assessment when they have a mental disorder which is of a nature or degree warranting detention and when they should be detained in the interest of their own health or safety or for protection of others.

• This allows detention for up to 28 days for a psychiatric assessment.


• As Jenny has not come into contact with mental health services before, she can be admitted for assessment of her mental disorder if it is considered that she presents sufficient risk to herself.

• The degree of risk should be weighed against the infringement of liberty.


• Following a psychiatric assessment there may then be a medical recommendation that detention is continued for up to 6 months where appropriate medical treatment is available.

• Treatment must be appropriate, taking into account the nature and degree of mental disorder and all other circumstances.


• Medical treatment includes nursing care and is now defined to include psychological interventions and specialist mental health habilitation, rehabilitation and care.

• The purpose of medical treatment must be to alleviate or prevent a worsening of the disorder or one or more of its symptoms or manifestations.


• The Mental Health Legislation removes the “treatability test” and there is the possibility that detention could be used as a means of social control.

• Could this authorize detention to provide day-to-day care to prevent a threat of violence that is a manifestation of a psychiatric condition?


• Could/ should Jenny be denied her liberty so that she can receive counselling or day-to-day care to prevent a worsening of her bizzare beliefs?

• If care cannot treat the condition, can detention be justified?

Who can section an individual?

• The initial detention requires 2 medical recommendations. However, “sections” may now be renewed by a “responsible clinician”, who may not be a doctor.

• A patient must be discharged if the grounds for detention are no longer met, i.e. if Jenny was no longer a threat to herself or others. Patients can apply for discharge from detention to the mental health review tribunal or a panel of associate hospital manager.

Medical Treatment without consent• A patient may remain competent

notwithstanding detention under the Mental Health Legislation and, unless rebutted, must be presumed to be competent to make informed decisions about treatment for medical conditions. It is important to remember that a patient can be detained only to treat a psychiatric illness.

Medical treatment without consent

• However, the MHA does not require consideration to be given to whether the patient is capable of choosing to refuse treatment. Therefore compulsory treatment can be given for the mental disorder even if a patient refusing treatment has capacity.

• This distinguishes legislation for treatment of mental disorders from the legal principles concerning the treatment of physical illness.

Ethical Issues

• Those suffering from a mental disorder are particularly vulnerable. Compulsory detention, assessment, and treatment threaten their rights to liberty, dignity, physical integrity and respect for autonomy.

• The justification for such erosion of freedoms is to prevent harms, to the individual themselves and to others; but compulsory detention must be proportionate to the harms to be avoided.

Ethical Issues

• Another aim of detention must be to enable treatment. Unless the aim is to gain benefit for the patient by seeking an improvement or preventing deterioration of their condition, detention could amount to social control. Failure to provide adequate checks on the use of powers of control and detention may mean that those in need of care are deterred from seeking it, thus increasing the risk to the individual and the public.

Case Scenarios

Case 2: Medical Treatment for Patients with a Mental Disorder Scenario 1: A 24-year-old woman has a long history of anorexia

nervosa. She has been admitted to hospital under the provisions of the MHA. Her weight is dangerously low and she is refusing to eat.

Scenario 2: A schizophrenic woman is 33 weeks pregnant. She has been sectioned under the MHA. The obstetrician considers that there is a high risk of placenta-abruption and she would like to carry out a Caesarian section. However, the woman is violent and aggressive and is refusing all antenatal interventions.

Scenarios• Scenario 3: A 67-year-old man has been has been referred for semi-

urgent (within a week) coronary artery bypass surgery. He is a known schizophrenic whose illness is well controlled on medication. From the notes it is apparent that the referring hospital doctors felt that he lacked the capacity to sign the consent form for his coronary angiography.

• Scenario 4: A private hospital in Hong Kong suddenly stopped all its visiting medical officers from admitting any patient with a past history of psychiatric illness (no matter it is under control or not) for any unrelated medical illnesses. The hospital administrators threaten to remove the admission right of those who violate this new rule.

Questions• 1. Does mental disorder equate to lack of

capacity?

• 2. Can a person with a mental disorder be treated without consent?

• 3. Is it ethical for a private hospital to decline the admission right of its VMO because of the past psychiatric history of the client?

Answers

• Although mental disorder does not of itself render a person incapable of making the relevant healthcare decision, mental health legislation provides that people detained under the MHA maybe treated for their mental disorder despite their capacity to refuse. Mental illness may of course affect capacity but the question is:

• Has the patient’s capacity been so reduced by mental disorder that they do not understand the purpose and nature of the intervention, the risks of having or not having the intervention?

Answers• In Re C (1994) a 68-year-old man detained under

the MHA was considered to have capacity to refuse amputation of a gangrenous foot. Although he had schizophrenia, the Court found that he had capacity to refuse the medical treatment because he could comprehend, take in & retain information, believe it, and weigh it up in order to make a choice. Because he was refusing treatment for a physical disorder, rather than his mental condition, this had to be respected.

Answers

• The MHA permits compulsory medical treatment of a competent detained patients for their mental disorder. However, medical treatment for a mental disorder has been interpreted widely to include treatment to alleviate the symptoms of mental disorder.

• The Court has considered forced feeding of an anorexic patient to medical treatment because it relieves the symptoms of anorexia.

Answers

• Controversially an induced labour or Caesarian section was considered to be medical treatment for the patient’s mental disorder-paranoid schizophrenia. The Court found that an ancillary reason for the induction/ Caesarian section was to prevent deterioration in the patient’s mental state. Effective treatment required that the woman give birth to a live baby and restart her antipsychotic medication (Tameside and Glossop v CH 1996).

Answers• Beneficience and public protection take precedence over

respect for autonomy of individuals with mental disorders. Paternalism could perhaps be justified where mental disorder is equated with lack of judgement but the law allows even a competent person to be treated without consent for their mental disorder. If beneficience is allowed to trump autonomy then there should be clear demarcation between treatment without consent for a mental disorder (permitted) and a physical disorder (not permitted). If the former is interpreted widely individuals may be forced to have treatment which has only a tenuous link to their mental state.

Case Laws • Consider the following cases : • In Re T. (Adult: Refusal of Medical Treatment) [1992] 4 All E.R. 645,

CA, a 20-year old 34-week pregnant woman suffered serious injuries in a car accident consented to have a C-section but refused blood transfusion on the advice of her mother who was a devout Jehovah ’ s Witness. She delivered a stillbirth and lapsed into a coma due to internal bleeding.

• In Re C. (Adult: Refusal of Medical Treatment [1994] 1 All ER 819), a 68-year old patient with chronic paranoid schizophrenia refused a necessary BK amputation. At the time of his refusal, the patient suffered from a number of delusions including one that he had a successful medical career. Despite his delusions, he demonstrated his understanding of the proposed treatment and the risk of death as a result of his refusal.

• In Re MB (An Adult: Medical Treatment) [1997] 8 Med L. Rev 217, CA involved a patient with needle phobia who consented to a needed C-section but refused to agree to any form of anesthetic involving an injection. The patient was otherwise mentally healthy.

Case Laws

• Court judgments of the above cases : • In Re T., the patient’s refusal of blood transfusion was

considered not an autonomous judgment because of the injuries she sustained from the car accident, the medication she was given, the insufficient information she was given about the effectiveness of blood substitutes and the undue influence of the patient ’ s mother who was a devout Jehovah ’ s Witness.

• In Re C, the judge found the schizophrenic patient with multiple delusions competent to make the decision on the surgery in question.

• In Re MB, the CA found the patient lacked the requisite capacity to make the decision of refusing anesthesia on account of her needle phobia which was considered ‘disabling’.

Case Laws

• Some judges remarks revealing the court’s high view of patient autonomy :

• A mentally competent adult patient “ … has an absolute right to choose whether to consent to medical treatment, to refuse it or to choose one rather than another of the treatments being offered.” Such an absolute right to autonomy “ … exists notwithstanding that the reason for making the choice are rational, or irrational, unknown or even non-existent.” (in Re T. Lord Donaldson)

• "…it is most important that those considering the issue should not confuse the question of mental capacity with the nature of the decision made by the patient, however grave the consequences. The view of the patient may reflect a difference in values rather than an absence of competence. ” ( Butler-Sloss in in B v. An NHS Trust )

Case Laws

• Some qualifiers revealing ambiguities judges have to struggle with :

• Temporary factors: the CA emphasized that temporary factors including confusion, shock, pain or drugs could erode a mentally unimpaired patient’s capacity to make autonomous decisions. (in Re MB)

• Outcome and gravity factors: The “…graver the consequences of the decision, the commensurately greater the level of competence is required to make the decision. ” (Butler-Sloss in Re MB)

Case Laws

• Relating capacity to decision outcome : • Outcome test for mental competence is rejected because it

amounts to judging a person’s capacity on the basis of others’ judgment of the reasonableness of the decision.

• Yet decision outcomes are inevitably linked to questions of capacity because a patient’s capacity is usually being questioned precisely when others consider the outcome to be unreasonable or disagreeable.

• It does not make a lot of sense to say that we are not judging a patient’s capacity by the outcome of her decision but by the gravity of the decision, because the latter is to a large extent a function of the former.

Take Home Messages

1. Statistically every physician will have a patient who suffers a bad outcome. It does not mean you are a bad doctor. It does not mean you are clinically negligent,

2. If you have greater than average numbers of patients with bad outcomes, you may want to do a chart review to see whether there is room for improvement or simply bad luck.

Take Home Messages

3. Angry patient+ Bad outcome= clinical negligence lawsuit. You cannot control bad outcome so do what you can to have less angry patients.

4. Patients prefer physicians to sit rather than stand when taking a history. Patients perceive these physicians as being more compassionate.

Take Home Messages

5. Patients are happy when they feel connected and can connect with their physician. Use modern technology to aid you.

6. Treat your patients with respect.

7. Sometimes patient simply want validation for their problems. Use verbal & non-verbal cues to indicate you are listening to their complaints.

Take Home Message

8. A large number of patients sue their doctors because other doctors told them there was clinical negligence.

9. Because physicians are humans, they will make errors. You are not alone.

10.Although rudeness to patients may be unprofessional, most medical boards do not consider it a punishable offence.

The Legal Aspects Of Mental Health For Family Practice 031211

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