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“The issue of the mental health of the patient is complex and value-laden. Paternalism and autonomy interests confront difficulties of definition, diagnosis and the impact of labelling. Paternalism dictates intervention, and that the human right of autonomy be minimalist”. (Davies, M., Medical Law, Blackstone Press Limited, 1996, p.182). Discuss critically.
Within mental health issues there has always been a large degree of paternalism. Healthcare professionals and governments appear to view those with mental health problems as incapable of being able to make decisions for themselves and are often viewed as a potential danger to themselves and others.
Over the years various pieces of legislation have been enacted to deal with people with mental health issues starting with the Lunatics Act 1845, the Lunacy Act 1890, Mental Treatment Act 1930, Mental Health Act 1959 and the Mental Health Act 1983. In 1995 the Mental Health (Patients in the Community) Act was introduced. This gave the relevant authorities the power of supervised discharge of mental health patients back into the community.
Recent events where mental health patients were placed back into society has caused concern as there have been quite a few highlighted incidents where such patients have proven to be a danger to themselves and others. The governments response to the public outrage when these patients have attacked or killed members of the public is to step back to a more paternalistic approach towards the treatment of mental health patients by introducing the Mental Capacity Act 2005.
The new Act allows the professionals to make value judgments over the patients and requires those dealing with such patients to make an assessment of the individual’s capacity to make decisions for themselves. Section 2 (1) of the 2005 Act states
(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
Subsection 2 goes on to say that
(2) It does not matter whether the impairment or disturbance is permanent or temporary.
The very wording of the Act is open to abuse as the scope of what might be deemed as mental incapacity is too broad. In essence anyone who is suffering from a temporary mental breakdown either through circumstances within their own life or as the result of any prescribed medication they might be taken could be viewed as lacking the capacity to make decisions about their selves and could be institutionalised and forced to have treatment.
A further problem with the new Act is that the decision on the individual’s capacity is based on the balance of probabilities.
(4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.
In criminal proceedings the court has to prove beyond reasonable doubt that the person charged with the offence has committed the offence. With this new piece of legislation the level of proof required is equivalent to that required within the civil courts and therefore is open to greater abuse and it is likely that a higher proportion of people may find themselves being detained in a mental health institute and subjected to compulsory treatment.
Section 3 of the Act goes further to describe how it can be decided that a person is unable to make a decision for himself. It lists 4 areas that should be considered in deciding whether the person lacks the capability to make their own decisions.
(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable-
(a) to understand the information relevant to the decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the decision, or
(d) to communicate his decision (whether by talking, using sign language or any other means).
Subsection 2 does go on to say
(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).
In essence the above is an attempt to limit those who can be regarded as incapable of making decisions due to any physical disability such as deafness or blindness, however, some individuals may be so severely handicapped through conditions such as autism or mongolism that even things explained in simple language may not be understood by them. These people may not be a danger to themselves or others and are usually being cared for by members of their own families.
Some families find the strain of a severely handicapped person in the household hard to cope with and for those people this new Act may help them to get the handicapped person institutionalised. Using the above Act they could argue that the person lacks the mental capacity to make decisions for themselves and is a potential danger to themselves so for their own protection they should be removed from society.
If the person assessing the individual is satisfied that that individual does not have the capacity to make their own decisions then any treatment they consider to be in the best interests of the individual can be ordered. The person ordering the treatment must take into account whether the patient may at some future time be able to make their own decisions again and if they decide that this is likely they must take all appropriate steps to ensure the patient receives all the assistance they need to recover to a position where they can make their own decisions.
Effectively though the legislation allows the person treating the patient with the mental health problem to remove all autonomy from the patient and force treatment on them that they might ordinarily object to if they had the capacity to do so. The legislation does state that the person making the decision on behalf of the patient should take into account the patients past and present wishes and feelings and make judgments based on what they perceive the patient would want if they were able to decide for themselves.
The new Act is designed to operate alongside the Mental Health Act 1983 and the Mental Health (Patients in the Community) Act 1995, as was introduced with the aim of simplifying the way in which a person can be adjudged to be in need of treatment in respect of a mental health issue.
Under the 1983 Act compulsory admission to mental institutions is determined with reference to section 1 of the Act and refers to mental disorder but also covers any other disorder or disability of the mind. The Act attempts to specify the persons who they deem in need of admission for treatment and covers four broad areas namely mental illness, severe mental impairment, psychopathic disorder or mental impairment. The first 2 conditions trigger automatic admission regardless of whether the treatment is likely to be effective or not. With the last 2 conditions psychopathic disorder and mental impairment, admission can only be ordered if the patients are likely to benefit from the treatment.
Under the new Act the definition has been extended to cover a far wider audience and it is likely under the provisions of the 2005 Act that those with a psychopathic disorder can be detained regardless of whether treatment will assist their condition.
The 1983 Act does not specifically define mental illness and can be problematic as it does not cover conditions where a person may undertake activities that are potentially life threatening due to a compulsion for risk taking. It is possible that the 2005 At might encompass this area as section 3 (4) states that when deciding whether someone is capable of making their own decisions account should be taken as to whether the person has the capability of being able to reasonably foresee the consequences of the decisions they are making.
Whilst it could be argued that this is a positive move there is room for abuse of this inclusion in the legislation and could theoretically be used to cover sado masochistic activities between consenting adults or the participation of dangerous sports. To be effective the 2005 Act should incorporate examples where there is a clear demonstration that the patient lacks the capacity for being able to foresee the consequences of their actions. This would assist the person making the decision about the patients mental capacity as they could compare the actions of their patient with actions previously seen to be harmful.
There are a few dangers surrounding the 2005 Act in that mental capacity is judged according to the individual’s capacity to make their own decisions. The 1983 Act defines psychopathic behaviour as a persistent disorder or disability of mind (whether or not including impairment of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the person concerned. Research into psycopathy has shown that whilst the psychopath may not always conform to rules they do have the ability to do so.
Following the guidance in the 2005 Act regarding mental capacity this could mean that dangerous psychopaths could slip through the net as they may well be able to show that they do not lack the necessary capacity to make decisions on their own. By establishing this they will be able to refuse treatment as autonomy is only forfeited where the patient lacks the capacity to make their own decisions.
The new Act is inherently flawed in that temporary mental incapacity can lead to compulsory admission to an institute. This could have a dramatic effect on people such as women suffering post natal depression after childbirth. In the past doctors have prescribed tranquilisers and anti depressants to attempt to cure the patient. Under the 2005 Act the partner of the patient suffering post natal depression could request that their partner be assessed for mental capacity. If the person doing the assessment is of the opinion that the mother is incapable of making their own decisions the mother might find herself placed in a mental institute and forced to receive treatment she might otherwise object to.
The 2005 Act also contains a section authorising power of attorney to family and other persons connected to the person who has been assessed as lacking in mental capacity. This is open to widespread abuse as greedy relatives may use a temporary mental impairment of their family member to gain power of attorney over their monetary assets and squander any of their savings away.
It has also been proven by past examples that once a person has been admitted to a mental institution it is difficult for the patient to convince the doctors and medical staff that they have now recovered from their mental illness and no longer need to be institutionalised.
In the UK paternalistic intervention has been used even when the patient having the treatment poses no threat to others or himself. In the case of W v Egdell  ch 359 a psychiatrist was asked to examine a patient at the request of the patient’s solicitor to assess the suitability of transferring the patient from a secure hospital back into the community. The psychiatrist submitted his report to the Home Office in order to prevent what he perceived could be a danger if the patient was prematurely released. As a result of this report the patient was forced to remain within the secure hospital despite the fact that at no time had the patient committed any acts of violence.
This kind of paternalistic intervention offends against the principle of autonomy and should only really be justified when the person for whom the decision has been made is unable to make an informed choice for himself. The approach to deciding whether paternalism should be allowed when assessing a person with a mental illness should be to ask whether the patient would consent to the proposed treatment if they were able to make a rational choice.
In America they used what is known as the substituted judgment test which is autonomy based in the sense that the intervention is directed towards the goal of restoring the patients autonomy.
Another way in which the mental health professionals have sought to circumvent claims of enforced treatment is by the use of implied consent. The notion behind this is that although the person by reason of incapacity cannot give their consent at that point in time they may be able to endorse the treatment at a later date, which would then amount to a form of retrospective consent.
Obviously there are difficulties with this approach as there is no way of predicting that subsequent consent will be given when the person is in a position to give that consent. Frequently those who resent involuntary treatment will continue to do so after recovery.
Due to the obvious problems associated with interference with the autonomy of the patient most mental health professionals adopt the paternalistic best interests test as outlined in the Mental Health Act and uses the Act to order compulsory treatment of the patient.
The 1983 Act provides 3 ways in which a patient can be compulsorily admitted to hospital for treatment. Section 2 of the Act gives the patient’s nearest relative or any person authorised to act on their behalf the right to apply for the admission of the patient into hospital. In order to qualify for the right to make such an application the applicant must have seen the patient within the 14 days prior to the application. The application must be supported by 2 registered practitioners one of whom must be qualified in psychiatry. Grounds for admission under section 2 are that a patient is suffering from a mental disorder of a degree which warrants detention in a hospital at least for a limited period of time and should be to prevent harm to himself or others.
Under this kind of admission the maximum time the patient can be detained is 28 days and admissions cannot be renewed thereafter.
The second way in which patients can be admitted is under section 4 of the Act which covers emergency admissions and can be applied for on the recommendation of one doctor only but is only valid for 72 hours. The doctor does not need to be a specialist in the treatment of mental health but if possible must have known the patient beforehand. The applicant must have seen the patient within the last 24 hours. Such emergency admissions can be converted to treatment for 28 days by seeking a second opinion from a mental health specialist.
The third way in which compulsory admission can occur is under s3 of the Act and application is similar as those under section 2 of the Act. Under this section of the Act the patient can be detained for up to 6 months and can be renewed thereafter, initially for an extra 6 months and then yearly for periods of a year at a time. Detention under this section can last indefinitely.
Those who do recover from their mental disorder may be released from the secure units but held under supervision orders using section 117 of the Mental Health Act, and although they can no longer be forced to receive treatment they will be expected to attend at a treatment centre. Unfortunately there is no system in place to ensure that such patients do attend the treatment centres and no sanctions available to the authorities to enforce their attendance. It has been suggested that those patients who have been discharged and do not comply with the supervision orders should be readmitted to hospital under a compulsory admission so as treatment can be enforced without the patient’s consent.
In order to prevent claims being made by those who have been compulsorily admitted to hospital and forced to undergo treatment section 139 of the Mental Health Act was added which states that
‘no person shall be liable…to any civil or criminal proceedings…in respect of any act purporting to be done in pursuance of this Act…unless the act was done in bad faith or without reasonable care.’
This effectively gives the hospitals total paternalism over the treatment of compulsorily admitted patient and negates any patient autonomy or rights to personal autonomy until such a time as the persons treating them are satisfied that the patient is recovered sufficiently to render them capable of making their own decisions.
The overall view that is apparent from looking at the 1983 Act and the recent 2005 Act is that paternalism has always been present within the treatment of mental health patients. The 2005 Act broadens the classes of people who may now be classified as in need of compulsory admission and treatment and therefore strengthens the position of paternalism whilst reducing personal autonomy practically into non-existence.
The danger in allowing the government to increase the power for compulsory treatment could in the future spread to other areas of medical treatment and could lead to persons with terminal illness who have expressed a wish not to be treated being forced to undergo treatment by being held to be mentally incapable of making rational decisions.
There could also be problems where patients refuse treatment on the grounds of religious belief. It might be argued by the person giving the treatment that the patient has been indoctrinated by the religious group they are part of and are therefore incapable of making decisions independent of the doctrines instilled in them by their religious teachings.
Allowing paternalism to become acceptable for one classification of person could ultimately lead to problems in all areas of legislation and could result in criminals being locked away indefinitely as it could be viewed as in the best interests of society to keep them locked away.
Governments have used the fear that the general public have of people with mental illnesses posing a threat to ordinary members of the public by highlighting those incidents were patients have been released from institutions and then have harmed or killed others. By using this fear they have persuaded the general public that compulsory admission of the mentally ill is the only way to prevent others from being harmed and that it is in the best interests of the patient and society for them to be forced to undergo treatment and remain institutionalised.
Mason & McCall Smith, Law and Medical Ethics, 5th Ed 1999, Butterworths.
Darjee R, Crichton J. The MacLean committee: Scotland’s answer to the dangerous people with severe personality disorder proposals? Psychiatric Bill 2002;26: 6- Watts J, Priebe S. A phenomenological
account of users’ experiences of assertive community treatment. Bioethics 2002; 16: 439-454
Department of Health and Home Office. Managing dangerous people with severe personality disorder. London: Stationery Office, 1999.
Scmukler, G, Homicide Enquiries. What sense do they make?, Psychiatric Bulletin , 24, pages 6-10, 2000
Scottish Executive. Report of the committee on serious violent and sexual offenders. Edinburgh: Scottish Executive, 2000
Steadman, H, Mulvey, E, Monahan, J, Robbins, p, Applebaum, P, Grisso, T, Roth,L, and Silver, E, Violence by people discharged from acute psychiatric inpatient facilities and others in the same neighbourhoods, Archives of General Psychiatry, 55, pages 393-401, 1998.
Who Decides; Making Decisions on Behalf of Mentally Handicapped Adults (LCD, 1997)
Table of Cases
R v Bournewood Community and Mental Health NHS Trust ex p L  3 WLR 107
Re F  2 AC 1
Re T (adult: refusal of medical treatment)  4 All ER 649, CA.).
Re Y  35 BMLR 111
S v McC; W v W  AC 24
St George’s Healthcare NHS Trust v S; R v Collins and others, ex parte S  3 All ER 673,  Fam Law 526, CA
W v Egdell  ch 359
Table of Statutes
Lunacy Act 1890
Lunatics Act 1845
Mental Capacity Act 2005
Mental Health (Patients in the Community) Act 1995
Mental Health Act 1959
Mental Health Act 1983
Mental Treatment Act 1930
 Steadman, H, Mulvey, E, Monahan, J, Robbins, p, Applebaum, P, Grisso, T, Roth,L, and Silver, E, Violence by people discharged from acute psychiatric inpatient facilities and others in the same neighbourhoods, Archives of General Psychiatry, 55, pages 393-401, 1998.
 Re Y  35 BMLR 111; http://www.ethox.org.uk/Ethics/econsent.htm#introduction
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