feldman 1998 medicolegal aspects of liaison psychiatry
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A dv an ce s in P sy ch ia tr ic T re atm en t 1 99 8), v ol. 4 , p p. 2 43 -2 49
Medico-legal aspects of liaison
psychiatry
Eleanor Feldman
T his article co nsiders the use of the M en tal H ealth
Act 1983 (MHA) and application of common law
p rin cip le s w ith re sp ec t to p at ie nts w ith b eh av io ura l
disturbances in NHS g eneral hospitals in E ngland
and Wales. Legal issues do not apply across
national boundaries; in the UK there are tw o other
M ental H ealth A cts currently in fo rce: Scotland's
(1 98 4) an d North ern Irelan d's (1 98 6).
The M ental Health Act 1983 in
th e general hosp ital
Gen eral p sy ch iatrists are fam iliar w ith ap ply in g th e
MHA to individuals suffering from psychiatric
illnesses w hich it is generally agreed fall w ith in its
rem it, th at is, disorders such as schizoph renia and
affective psychoses, and where the m ain issues
co ncern assessmen t an d /o r tre atm en t o f th at m en tal
d iso rd er. F am iliarity an d co nfid en ce d eriv es from
yea rs o f e sta blis he d c us tom and p ra cti ce , tri buna ls ,
u se o f t he MHA by s ta ff who hav e b ee n a pp ropri ate ly
train ed and w ho are fam iliar w ith its w orkings, and
th e mon ito rin g an d ad vic e o f t he MHA Comm issio n.
H ow ev er, w ith in liaiso n p sy ch iatry , th ere is less
ex perience and agreem ent regarding th e use of the
MHA in situations w hich can quite common ly arise
in general hospital in-patients. A broad er range of
diagnostic categories m ay need to be considered ,
for exam ple, delirium , or neurotic conditions
comprom ising medical care. Physicians and
surgeons seek advice about the treatm ent of life-
th reatening physical illness in n on-consenting
mentally disordered patients. There is less ex
perience to draw upon in a young and small sub-
sp eciality : fee db ack is n ot re ceiv ed from trib un als
in gener al hospi ta ls ; t he psych ia tr is t a dv is es medica l
and nursing staff from other specialities who are
unfam iliar w ith the principles and practice of the
MHA; th e MHA Comm issio n d oes n ot ro utin ely v isit
general hospitals. The consultant psychiatrist
covering a general hospital must expect to be
challenged by situations beyond their everyday
ex perien ce o f th e MHA. C larificatio n o f a few b asic
principles and discussion of some typical case
e xamp le s may a ss is t.
The rem it of the Act
The MHA allows for the legal detention and
treatm ent of adults with m ental illness, m ental
impairm ent and psychopathic disorder where
admission and/or treatment are considered
necessary in the interest of their health and safety,
or for the protection of others, and w here they are
unable or unw illing to consent to such adm ission
and/or treatm ent. In legal term s, it is an 'enab ling
Act', which m eans it does not have to be used in all
instances w here it m ight be applicable, but its use
does pro vide certain legal safeguards for patients
and for staff. W hile any m ental disorder can fall
w ith in th e A ct's rem it, in p rac tice th ere are common
circum stances w here restraint and treatm ent are
applied w ithout recourse to the Act, and where it
m ay be preferable to do so. In these situations, the
actions perform ed can on ly be defend ed w ithin the
s cope o f t h e c ommon law.The most re le va nt c ommon
law p rin cip les are d iscu ssed later.
efinition of m ental disorder
In Section 1 o f the MHA, m ental d isorder is defined
b road ly . Sec ti on 1 (2 ) s ta te s:
'M ental disorder' means mental illness, arrested or
incomplete development of mind, psychopathic
E le an or F eldman i s c on su lt an t li ai so n p sy ch ia tr is t (De pa rtm en t o f P sy ch ol og ic al M ed ic in e (Ba rn es Unit ), J oh n Rad cl iff e Hos pit al ,
H ea din gto n, O xfo rd OX3 9DU ) a nd a m em ber o f th e R oy al C olleg e o f P sy ch ia trists S ectio n o f L ia iso n P sy ch iatry E xec utive .
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APT 1998),vol.4,p.244
Fcldman
disorder and any other disorder or disability of
m ind a nd 'men ta lly d is ord ere d' s ha ll b e c on stru ed
accordingly .
This may include temporary states of mental
disturbance such as delirium and intoxication, as
well a s mo re p ro lo ng ed c onditio ns s uc h a s d ementia
and brain dam age. The very broad definition of
m ental disorder allow s clin icians a w ide degree of
discretion in deciding whether or not to use the
p ow ers o f th e A ct, alth ou gh in g en eral p sy ch iatric
practice the Act has come to be used in a quite
n arrow ra ng e o f c onditio ns .
Intoxication v. dependence on
alcohol or drugs
It sh ould be noted that som eone w ho is intoxicated
w ith alcohol or drugs and w ho is judged to have the
capacity to refuse essential intervention m ay in
certain circum stances legitim ately be subject to
the MHA, although there must be grounds for
intervention other than alcohol or drug addictio n
alone. Section 1(3) states that the Act cannot be
applied to persons by:
reason only of prom iscuity or other immoral
c ondu ct , s exua l d ev ia nc y o r d ep ende nc e on a lc ohol
o r d rugs .
Treatm ent for physical illness
The MHA does not apply to the detention and
treatm en t o f p atien ts fo r p hy sical illn ess, fo r w hich
th ey must g iv e in fo rmed c on se nt, o r b e tre ate d und er
common law . H ow ev er, w hat is the position w here
th e phy sic al ill ne ss its elf re su lt s in d is ab ility o f m ind
through disordered brain function? A lthough not
a pp ro priate fo r th e treatm en t o f p hy sical d iso rd er
p er s e, t he M H A m ay a pp ly w here p hy sica l d iso rd er
contributes to m ental disorder or is otherw ise
in ex tricab ly lin ked w ith th e men tal d iso rd er (re: K .
B ., 1 993), fo r e xample , fe ed in g in a no re xia n erv os a
or the use of thyroxine in m ental d isorder caused by
hypothyroidism . It does not apply in situations
w here the treatm ent of th e ph ysical illness w ill not
im pact upo n the m ental disturbance; th is area falls
w ithin the scope of the common law (re: C (A dult:
Refusal o f T re atmen t) , 1994) .
U se of the m edical holding orders
S ectio n 5 (2 ), th e emerg en cy med ica l h old in g o rd er
fo r those w ho are already volu ntary in-patients, is
not applicable in an accident and emergency
departm ent, w hich is regarded as an out-patient
s et ti ng . Whe re a cc iden t and emergency depar tment s
have w ards, these are in-patient areas. Patients
cannot be conveyed to another hospital o n S ection
5(2), but w ill need to be on a hospital adm ission or
treatm ent order. A dm ission an d treatm ent orders
are enforceable in any NHS hospitals, not just
psychiatric h ospitals, so long as the ap propriate
adm inistrative form alities are observed. W here
different N HS hospital trusts operate on the sam e
s ite , it is a dv is ab le fo r th e re sp ec tiv e tru st mana ge rs
form ally to agree to act on each others' behalf w ith
resp ect to th e MHA.
A ny consultant in charge of a patient's care m ay
be the responsible medical officer (RM O) with
resp ect to th e MHA; th erefo re, acc ord in g to th e law ,
consultant physicians and surgeons m ay detain
th eir own in -p atien ts u sin g S ec tio n 5 (2 ). In g en eral
hospitals, the initials RMO apply to the resident
m edical officer w ho is a senior house officer; it is
therefore very im po rtant to be clear that, w here th e
term RMO is a pp lied in resp ect o f th e Men tal H ealth
A ct, it alw ay s refers to th e co nsu ltan t w ith med ic al
respo nsibility fo r th e case. T he MHA allow s for th e
nom ination of a deputy by any RMO and this deputy
mus t b e a re gistered med ica l p rac titio ner (n ot a p re -
registration house officer; see Box 1). U nder the
MHA, consultant physicians and surgeons m ay
nom inate their ow n juniors, w ho are senior house
o ffic er g ra de o r a bove , t o a ct a s th eir d eput y. Whet he r
or not this is a good practice is another m atter. The
C od e of P ra ctice on th e u se o f th e M H A D ep artm en t
o f H ealth Welsh O ffice, 1 99 3; n ew re visio n d ue to
be published autum n 1998) has advised that only
co nsu ltan t p sy ch iatris ts sh ou ld n om in ate a d ep uty ,
an d th at w here an RMO o f a no th er sp eciality w ish es
to detain their own patient, they should make
immed ia te c on ta ct w ith a p sy ch ia tris t. P ro blems c an
arise if junior physicians are left to invoke the
powers o f S e ctio n 5 (2 ) b ec au se th ey a nd th eir s en io rs
are o ften u nclear ab ou t th e p recise n atu re an d sco pe
of the powers and the powers may not be adm in
is te re d c or re ctly . Mo st s erio us ly , a rra ng ements may
not be made for the patient to be assessed by an
ap proved psychiatrist w ith a v iew to an admission
order or term inatio n of the holding order. A n audit
carried out in Leeds dem onstrated various such
failings in the use o f S ection 5(2) w hen it w as left to
p hy sician s to in vo ke th e p ow er (B uller et al, 1 99 6).
U se of the place of safety order
and the role of the police
Section 136 em pow ers the p olice to detain and tak e
to a place of safety an individual w ho falls w ithin
its rem it. It is n ot an emerg en cy admissio n o rd er. Its
purpose is to enable the police to take a patient
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M ed ico -leg al a sp ects of H ast
A PT 1998), vol. 4, p . 245
som ewhere where they can safely be assessed by
tw o doctors and an approved social w orker, w ith a
v iew to d eten tio n u nd er th e MH A . T here is n o o fficial
d ocume ntatio n fo r S ectio n 1 36 .
P olic e may le gitima te ly e sc ort p atie nts to hos pita l
w ho req uest th eir h elp , o r th ose who req uire h osp ital
tre atmen t b ut a re in ca pa ble o f c ons en tin g. However ,
they should n ot bring patients again st their w ill to a
hospital unless under Section 136 of the MHA and
where, by local agreement, the hospital is the
designated place of safety. In m any districts,
hospitals are no t the desig nated place of safety, but
th e polic e c ells a re . A re ce nt re po rt (R oy al Colle ge o f
P sy ch iatrists, 1 99 7) h as commen ted o n th e in ad vis-
ability of making a hospital a place of safety.
Acc id en t a nd eme rg en cy d ep artmen ts , fa r f rom bein g
s afe p la ce s fo r s ev ere ly men ta lly d is tu rb ed in div id
uals, are often ill-equipped to deal w ith the kind of
very disturbed people that the police bring in, and
hospital staff and other ill patients in the vicinity
m ay be p laced at risk.
M anagerial arrangem ents for the
M H A
Papers relating to MHA detention and treatm ent
orders m ust be dealt with appropriately by those
acting on behalf of hospital m anagem en t, u sually
the m edical records department, otherwise the
orders are not legally in force. Senior m anagers of
general hospitals need to m ake arrangem ents for
th e receip t an d h old in g o f s ectio n p ap ers an d en su re
that rights are read to patients. The links with
relev an t o fficers in th e p sy ch iatric h osp itals n eed to
b e mad e clear. If th e g en eral h osp ital is in a d ifferen t
tru st to th e p sy ch iatric h osp ital, th ere eith er n eed s
to b e a d esig nated p erso n w ith in th e g en eral h osp ital
w ho is properly trained in the adm inistration of the
Box 1 . B e e xtr a c ar efu l
Pre-registration house officers are not
qualified to assess capacity to refuse
medical intervention nor to act as
a nom inated deputy with respect to
Sec tio n 5 2 .
A Section is not in force until the papers
have been received on behalf of
the hospital managers and the form
cer ti fy ing thi s ha s been comple ted . F il ing
th e r ecommendatio ns and app lic at io n in
th e note s is not s uffic ient.
G en eral h osp ita ls ou tsid e th e N HS are n ot
r ec og nise d fo r th e purpo se s o f th e MHA .
Box 2 .T o d em onstr ate c ap ac ity to c on se nt o r
refuse m edical treatm ent in dividuals
should b e able to:
Understand in sim ple language what the
medical treatment is, its purpose and
n atu re an d w hy it is b ein g p rop osed .
U nd er sta nd its p rin cip al b en efits, r isk s a nd
alternatives.
Unders tand in broad te rm s th e con sequence s
o f n ot r ec eiv in g th e p ro po se d tr ea tm en t.
Retain the inform ation for long enough to
make an e ffe ctiv e dec is io n.
M ak e a free ch oice i.e. free from p ressu re .
MHA, o r a w ritten ag reemen t w hereb y clin ical staff
of the general hospital will have access to the
relev an t MHA o fficer in th e p sy ch iatric tru st.
A t a p ractical lev el, clin ical an d admin istrativ e
staff on medical and surgical wards will not be
aware of what to do with MHA papers, and will
often think it sufficient to file them in the notes.
T herefo re, p sy ch iatrists in vo lv ed w ith ad visin g o n
MHA o rd ers w ill n eed to mak e su re th at th e rele van t
s ta ff in t he med ic al re co rd s d ep artmen t a re in fo rmed
and have ag reed to take app ropriate action . A s this
is an im portant legal issue, it is advisable to reco rd
this discussion in the m edical notes (see B ox 2).
Clarifying the com mon law for
use in the general hospital
C om m on law
The c ommon law re fe rs to th e c orpus o f r ig hts , d utie s,
o blig atio ns an d liab ilities re co gn ised b y th e co urts
o ver th e y ears. It comp rises p rin cip les id en tified b y
judges which have evolved to meet the needs of
particular cases or particular developm ents in
so ciety . T his ju dg e-mad e law is d istin gu ish ed from
statute law w hich com prises A cts of Parliam ent.
O nce common law p rin cip les h av e b een id en tified ,
their application should follow . L ord D onaldson , a
fo rmer Ma ste r o f th e Rolls , s uc cin ctly re fe rre d to th e
common law as common sense under a w ig .
A pplying com m on law
C ommon law principles m ay assist w here there are
no statutory p rotections or m echan ism s in play. In
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APT 1998),vol.4,p.246
Feldman
England and Wales, the MHA is the relevant
codifying statute, and w here its provisio ns apply
there is no need to consider the common law. On
is su es whe re th e s ta tu te l aw is s ile nt, th e lawfu ln es s
of any act or om ission is tested by the application of
the common law .
C om mon law principles applicable
to m entally disturbed individuals
A ssumption of cap acity in adults
T he startin g p oin t is th e re co gn itio n in common law
th at ev ery ad ult (ag ed 1 8 y ea rs o r o ver) h as th e rig ht
and capacity to decide whether or not he/she will
accep t med ic al tre atm en t, ev en if a refu sal m ay risk
perm anent dam age to his/her physical or m ental
h ealth , o r ev en lead to p rematu re d eath . T he reaso ns
f or the r ef usal a re i rr el evan t.
Capacity is a legal concept and concerns an
individual's ability to understand what is being
p roposed an d the consequences of either refusing
o r accep tin g th e a dv ice g iv en (see B ox 2 ). A p atie nt
under a Section of the MHA has the sam e rights as
any other person with respect to decisions
not covered by the powers of the Act. General
psychiatrists are rarely involved in decisions
re gard in g cap acity as th e MHA does n ot req uire an y
e xp licit test o f cap acity to d eterm in e elig ib ility fo r
its ap plicatio n. C ap acity b ec omes a k ey issu e when
th ere is refu sal o f treatm en t fo r a p hy sical illn ess.
In law , pre-registration house officers are not
qualified to assess a patient's capacity but all
r eg is te red medica l p ra ct it ione rs a re . (Br it ish Med ic al
A ssociation L aw S ociety, 1995). W here m ental
d isor de r i sp r esen t o r l ikely, p sych ia tr ic involvemen t
is n ecessary fo r a p ro per assessmen t o f c ap acity .
C ap ac ity in m inors
People under the age of majority do not have the
s ame rig hts at law a s ad ults. S tate d b riefly : p aren ts
or gu ardians m ust agree w ith decisions to consen t
up to the age of 16 y ears, w hile those over 16 m ay be
ab le to co nsen t w ith ou t th eir p aren t's o r g uard ian 's
involvem en t. W here there is a refu sal, those under
18 can have their wishes overridden by parents,
guardians or the High Court (British M edical
A ss oc ia ti on Law Soc ie ty , 1 995).
Necessity
The courts recognise a common law principle of
'necessity' to cover situations where action is
needed to assist another person w ithout his or her
consent. A lthough such a situation w ill usually be
som e form of em ergency, the power to intervene
is not created by that em ergency, b ut derived from
the principle of necessity. In The Tim es (31 M ay
1998), Lord Griffiths, when dealing with the
common law power to restrain a violent person
with m ental disorder, said that the power w as:
confined to imposing temporary restraint on a
lunatic w ho has run am ok and is a m anifest danger
either to himself or to others - a state of affairs as
obvious to a laym an as to a doctor. Such a com mon
law pow er is confined to the short period necessary
before the lunatic can be handed over to the proper
authority .
In practice, there is often a period of tim e w hen
patients who are about to be made subject to the
MHA will h av e t o b e re stra in ed b efo re th e fo rmal itie s
of the A ct can be com pleted. It also quite common
for such patients to require som e sedation prior to
the com pletio n of form alities. Such actions w ill be
defensible if carried out as a necessity using the
minimal int er vent ion r equi red.
A ctions perform ed out of necessity should not
continue for an unreasonable length of tim e, but
progress should be made either to a situation of
consent or to the use of pow ers under the MHA . It is
n ot p os sib le p re cis ely t o d efin e what is a re as on ab le
or unreasonable length of tim e as this w ould vary
w ith th e p articu lar circumstan ces o f e ach case.
D uty of care
Common law imposes a duty of care on all
professional staff to all persons w ithin a hospital.
By assum ing the responsibility of a particular
clinical staff appointment, and claiming pro
fessional expertise, an individual undertakes to
p ro vid e p ro per care to th ose n eed in g it. S taff m ay b e
neg ligent by omis sion .
A s w ell as individual staff, hospitals also have
duties, for exam ple to provide back-up staff w ho
are properly trained to assist with aggressive
u nco op erativ e p atien ts in a casu alty d ep artm en t,
and the hospital must ensure that such staff are
authorised to act if necessary. M any hospitals
experience problems with fulfilling this duty
because they fail to train security staff in this role,
and commonly such staff are disinclined to assist
in necessary restraint as th ey believ e th at they w ill
be ex posed to the risk of litigation for assault. T his
is a key area for improved staff training and the
involvem ent of the hospital's risk m anagem ent
advisers.
B olam test
Where clinical decisions are being made, an
in dividual clin ician's com petence w ill be judged
ag ainst w hat is considered reasonable and proper
by a body of responsible doctors at that time, as
ascertain ed in co urt from ex pert testimon y (B olam
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APT 1998),vol.4,f).248
cldman
and an empty bottle of paracetamol. He was
in to xic ate d w ith a lc oh ol, b ellig ere nt, re fu se d to ta lk
to an y staff an d tried to leav e. N o oth er in form ation
was available and a decision had to be made as to
whether or not to let him go.
This c as e ty pifie s a c ommon c lin ic al p ro blem fa ce d
b y accid en t an d emerg en cy sta ff a nd p sy ch iatrists
cov ering accid ent and em erg ency departm ents. If
there is sufficient concern to w arrant detaining
this patient for further assessm ent of a possible
und erlying m en tal disorder, then use of the MHA is
certainly justified. The fact that the patient is
intoxicated is not an obstacle to use of the MHA , as
th e A ct is n ot b ein g u sed to d etain o r treat th e p erso n
b ecau se o f alc oh ol m is use o r d ep en den ce alo ne, b ut
because of the concern that they may have an
und erly in g men ta l d is ord er.
Anorexia nervosa patient in
extrem is and refusing food
A 19-y ea r-o ld fema le w eig hin g o nly fo ur sto ne was
adm itted to an acute m edical unit. S he consented to a
saline drip, but not to any dextrose or parenteral
fe eding . S he w as clo se to de ath from starva tio n.
The MHA is frequently used in relation to
patients w ith anorexia who are close to death to
auth orise feeding as part of th e psychiatric, as w ell
as p art o f th e p hy sical, treatm en t o f th ese p atien ts.
Experts in eating disorders regard re-feeding as
a n e ssen tial first ste p in th e p sy ch iatric treatm en t,
as starvation itself produces distorted th inking.
There are legal precedents to support this view,
n otab ly re : K . B ., 1 99 3. T h e MHA Comm issio n h av e
issued a guidance note on this particular topic
which discusses the legal issues in more detail
(M ental H ealth A ct Commission, 1997).
It is worth noting that a patient who needs to be
in a g en era l h os pita l fo r th eir p sy ch ia tric tre atmen t,
as m ay be the case in this patient, can be adm itted
under Section 3 or Section 2 direct to the general
hospital, bu t only p roviding it is an NHS hospital.
N on-NHS general hospitals are not recognised
under Section 145 of the MHA (see Box 1).
Patient w ith anorexia nervosa
and diabetes, refusing insulin
A sim ila r p atie nt to th e c ase a bo ve a lso h ad in su lin -
dependent diabetes; she agreed to feeding, but
refused insulin, since she knew that she w ould not
gain w eight without it. She would have died if her
w ishes had been follow ed, so the hospital staff had
to feed her and give her insulin to prevent her death.
I w ould take the view that there is no difference
between this case and the preceding situation.
Insulin is as essential for healthy w eight gain as is
fo od ; h en ce , its a dm in is tra tio n would a ls o fo rm part
of the psychiatric treatm ent plan under Section 3 of
the MHA . There is currently no legal precedent on
thi s p re ci se point .
P atie nt w ith sc hizo ph re nia
refu sing su rg ery, b ut accep tin g
other m edical care
A 59-y ea r-o ld male w ith c hro nic s ch iz op hre nia
was a long-stay patient under Section 3. He de
veloped a gangrenous foot and the surgeon's advice
w as to p ro ceed w ith am pu tatio n. T he p atien t refu sed
surgery on the grounds that he did not want an
am pu tatio n, b ut h e agreed to an tibiotics an d a ll o th er
form s of treatm ent. T he surgeon asked w hether the
operation could be carried out as part of treatm ent
under Section 3 and he im pressed his conviction
that the patient was likely to die without the
amputation.
T he MHA does not apply unless the treatm ent of
the p hysical disord er w ould im prove the patient's
m ental disorder. A precedent o n this (re: C (A dult:
R efusal of T reatm ent), 1994) foun d that a patien t
w ith sch izo ph ren ia co uld n ot h av e h is g an gren ou s
leg am putated under the term s of the MHA treat
m en t o rd er, a s su rg ery wou ld n ot impro ve h is men tal
condition. The operation m ight have proceeded
under the common law had the patient been found
by the court to lack capacity, but he was judged to
have the capacity to refuse. The patient also took
o ut an in ju nctio n ag ain st th e h osp ital to en su re th at
they did n ot pro ceed to am putate h is leg in the event
that he became delirious or unconscious. The
p atie nt's in fectio n su cces sfu lly reso lv ed w ith ou t
surgery.
References
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