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Mental Health Law 

Mental Health Law
Mental Health Law

Anthony Holland

, Elizabeth Fistein

, and Cathy Walsh

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date: 16 February 2019


10.1 Introduction

Mental health is everyone’s concern, an idea epitomized by the campaign tag line of the Royal College of Psychiatrists, ‘No Health Without Mental Health’. The aim of this chapter is to demonstrate how an understanding of a patient’s mental health within his or her particular social and family context is central to clinical practice across all of medicine. We will consider the legal basis for the treatment of mental ill-health and how it can complicate the treatment of physical illness by contributing to circumstances that may lead to ethical and legal concerns. The general legal principles that govern health interventions are explored and two specific statutes for England and Wales—the Mental Capacity Act (MCA) 2005 and the Mental Health Act (MHA) 1983 (as amended 2007)—are both considered in some detail. It will be shown how a sound appreciation of the clinical issues, an understanding of the law, and an ability to apply that law in clinical settings are essential when faced with situations involving mental ill-health.

10.2 Definitions and Prevalence

10.2.1 What is Mental Health?

Mental health refers to the mental wellbeing component included in the World Health Organization’s (WHO) definition of health: ‘a state of complete physical, mental and social well-being, and not merely the absence of disease’ (WHO, 2006). Interventions relating to mental health are therefore about the promotion of wellbeing, the prevention of mental disorders, and the treatment and rehabilitation of people affected by mental disorders.

10.2.2 What is Mental Ill-Health?

Mental disorders are defined in diagnostic and statistical manuals such as The Diagnostic and Statistical Manual of Mental Disorders (DSM-5) (APA, 2013) and The International Statistical Classification of Diseases and Related Health Problems (ICD-10) (WHO, 1992), and include a broad range of syndromes, which are generally characterized by some combination of abnormal thoughts, emotions, behaviour, and/or cognitive impairments that have an effect on a person’s ability to function and may also affect his or her relationships with others.

The term ‘mental disorder’ is often used to refer to:

  1. 1. The major mental illnesses (e.g. schizophrenia, bipolar affective disorders, depression, generalized anxiety disorder, phobias, obsessive-compulsive disorders, eating disorders, dementias, and delirium).

  2. 2. Conditions of developmental origin (e.g. intellectual/learning disabilities, autism spectrum conditions, and personality disorders).

  3. 3. Substance dependency (e.g. alcohol or other mind-altering substances).

  4. 4. Symptoms associated with physical illnesses (e.g. affective disorders in Parkinson’s and Huntington’s diseases).

10.2.3 The Prevalence of Mental Disorders

This broad range of mental disorders is common in primary care, with prevalence rates reported in the range of 30–50%. Many of these very varied disorders can be successfully treated or managed in a way that reduces and minimizes their impact on a person’s life. Mental disorders that are serious enough potentially to complicate the management of physical health problems are also common. Accident and emergency (A&E) departments frequently see patients who have self-harmed or have suffered injuries owing to substance abuse. A person dependent on alcohol who is admitted for surgery may develop withdrawal symptoms and delirium tremens some days after admission to hospital because of forced abstinence from alcohol. Other examples are anxiety and depression, both of which may arise on a general medical ward in the context of a diagnosis of a life-limiting physical illness. People may also present with symptoms that are not readily explained in which anxiety and depression may be a significant factor.

Dementia is common in older people admitted acutely to hospital and in most cases it has not been previously diagnosed. According the Alzheimer’s Society, 80% of people living in UK care homes have a form of dementia or severe memory problems. If these patients are admitted to an unfamiliar hospital environment, their behavioural problems can worsen and they may suffer a sense of bewilderment or psychological distress. Similar symptoms may be associated with an organic confusional state (delirium) that requires investigation and treatment in its own right. Studies have reported that perhaps 40% of people on a general medical ward have impaired decision-making capacity, much of which is likely to be secondary to a comorbid mental disorder. Thus, in all health settings and across all health disciplines, practitioners will be faced with clinical situations in which the co-occurrence of mental ill-health or the presence of cognitive impairments might result in, or contribute to, difficulties in clinical management that are ethically and legally challenging.

10.3 Mental Ill-Health and Impaired Capacity

10.3.1 Understanding the Law of Consent

The reliance on the notion of consent as the sole justification for medical interventions creates difficulties in cases where a patient, who is thought to be in need of treatment, is unable to give (or withhold) meaningful consent. For example, patients admitted to hospital unconscious, with advanced dementia, those who have suffered a cerebral vascular accident, or patients with profound intellectual disabilities will not be able to understand, retain, or use information about a proposed treatment. The influence of past and present circumstances, anxiety, and pain on a person’s ability to understand, reason, and communicate a choice may be much more subtle and not easily determined in a cursory examination in the emergency department. A patient, for the above reasons or for reasons unknown, may act in ways that impede the therapeutic process, which may or may not be a genuine reflection of what they wish for.

Under these circumstances, determining whether a patient has the capacity to make the necessary decisions will be critically important. Health staff have an obligation to make it clear that failing to treat will have serious consequences and may be fatal. The ethical and legal question that arises is whether it is ever appropriate to treat patients in the absence of a valid consent and, if so, under what circumstances this may happen. To fail to intervene in the case of a patient who is apparently refusing treatment that is clearly necessary for his or her survival, health, or wellbeing could be grounds for severe criticism or even a subsequent claim of negligence. On the other hand, a paternalistic imposition of life-saving treatment upon a patient who is able to understand the consequences of his or her refusal would amount to an unlawful assault. In the final analysis, the clinical imperative is to treat the person in a manner that is lawful, recognizing that imposing treatment may well involve judicial sanctioning to keep the person in hospital against his or her will, including using sedation and/or physical interventions to undertake investigations or give treatment. For more information on consent see Chapter 2.

10.3.2 Human Rights Article 2

The broader context in relation to treatment when capacity is impaired is that of a person’s human rights with tensions arising between different and competing rights. On the one hand, Article 2 of the European Convention on Human Rights (ECHR) establishes a right to life. This has been interpreted in case law to create an obligation on public bodies to provide care to patients with mental disorders to reduce the risks of suicide (Keenan v the United Kingdom [2001]). However, the obligation to take action to preserve life threatened by the effects of mental ill-health must be balanced against obligations arising from Articles 3, 5, and 8 of the ECHR. Article 3

Article 3, the right to freedom from torture, has been interpreted to find the unnecessary use of physical force to deliver psychiatric treatment as an infringement of this right. To be lawful, treatment administered without the patient’s consent must be both medically necessary and in the patient’s ‘best interests’—R(N) v M and others [2003] 1 WLR 562, Nevmerzhitsky v Ukraine (2003), Ciorap v Moldova (2007). Article 5

Article 5, the right to liberty, states: ‘Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law [including] (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants’. Article 5(1)(e) appears, therefore, to provide fairly wide-ranging legal justification for detention in hospital for psychiatric treatment. However, a body of case law has been used to develop important safeguards that are directly enforceable in England. There must be objective medical evidence of mental ill-health or disability of a nature or degree warranting confinement, and there must be periodic review of the continued need for detention (Winterwerp v the Netherlands (1979)). Moreover, detention must be a proportionate response to the circumstances (Litwa v Poland (2000)). In addition, inebriation by itself is not sufficient grounds for detention in hospital. Article 8

Article 8, the right to privacy, grants the ‘right to respect for private and family life’. This article has been interpreted through case law as conferring a right to personal integrity. The provision of medical treatment without valid consent may prima facie represent an infringement of this right (Pretty v the United Kingdom (2002), Glass v the United Kingdom (2004), Storck v Germany (2005)). However, Article 8(2) permits infringements ‘necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’. Qualified Rights

The rights to liberty, freedom from degrading treatment, and personal integrity are all ‘qualified rights’. This means that although, on the face of it, they seem to prevent interventions such as medical treatment in the absence of consent, they can be overridden in certain circumstances, such as the provision of treatment that is necessary for the health of people who are unable to make the decision to give or withhold consent. The ECHR has, through its judgments, made clear that such interference is only lawful when conducted within a regulatory framework, which provides patients with a means of challenging decisions to treat them without their consent (Glass v the United Kingdom [2004], HL v the United Kingdom [2004]). Therefore, doctors may only treat without consent when they follow guidance from case law or relevant legislation, and it is obligatory for doctors to be fully aware of the law in this regard.

10.3.3 Mental Health and Legal Statutes

Different factors impact on a person’s ability to make decisions, including, for example, profound anxiety, a confusional state associated with the onset of a physical illness, the presence of a thought disorder, delusions and/or hallucinations owing to the onset of a serious mental illness, depression, or suicidal ideation. An understanding of the presence and impact of a person’s mental health on his or her behaviour may likely lead more readily to a resolution of challenges in relation to compliance with treatment. However, where decisional capacity is impaired and treatment is necessary, the law provides some guidance and authority in this area.

In the UK, case law concerning treatment for those who lack capacity to consent and for the provision of compulsory treatment for mental disorders when in hospital has been consolidated into the following statutory frameworks:

  1. 1. MCA 2005, and the Adults with Incapacity (Scotland) Act 2001 in Scotland.

  2. 2. MHA 1983 (amended by the MHA 2007) and the Mental Health (Care and Treatment) (Scotland) Act 2003.

These two Acts of Parliament are there to deal with distinct situations but also overlap. Guidance on when to use the MCA and when to use the MHA is detailed in the MHA Code of Practice issued by the Department of Health. The MCA is discussed in detail in Chapter 2.

10.3.4 Deprivation of Liberty Safeguards

In general, before treatment is undertaken, regard must be given to whether some other as-effective treatment is less restrictive of the person’s rights and freedom of action. If physical force or restrictions on that person’s liberty are required to administer treatment, it is only permissible if it is necessary to prevent harm to the patient and proportionate to the likelihood and seriousness of the patient suffering harm.

In cases where the care of the person lacking capacity involves a ‘restriction’ on his or her freedom of movement, it can lawfully take place providing it is in his or her interests and is the least restrictive option. However, if the ‘restriction’ amounts to a ‘deprivation of liberty’ (for example, if a patient is required to remain in hospital against their wishes for a period of recovery post-surgery, and/or then to be moved into a nursing home that will not allow him or her to go out whenever they wish), then independent review and authorization, known as the deprivation of liberty safeguards (DoLS) will be required.

Legal safeguards for people lacking capacity have been considered necessary by courts as any restriction to the right to freedom of movement (contrary to Article 5 of the ECHR) is considered very serious and only to take place under particular circumstances and with appropriate levels of legal protection. The European Court and the UK Supreme Court have considered what determines a ‘deprivation of liberty’ as opposed to a simple ‘restriction of liberty’—this is a complex matter but a judgment in the Supreme Court in 2014 (UKSC 19 On appeal from: 2011, EWCA Civ 1257; [2011] EWCA Civ 190) arrived at a wide definition—in essence it is whether or not others have complete and absolute control of a person’s life.

A DoLS authorization under the MCA is given by a ‘supervisory body’ (e.g. a local authority), following a request from a ‘managing authority’ (the hospital or care home at which the individual is placed or is likely to be placed). Best practice would be for an authorization to be in place at the time the deprivation of liberty occurs. The six qualifying requirements for a DoLS are summarized as follows:

  • Age—is the individual aged 18 or over?

  • Mental health—does the individual have a mental disorder as defined by the Act?

  • Mental capacity—does the individual lack capacity to decide whether or not he or she should be accommodated in the care home or hospital specified at the material time (i.e. the time of the assessment)?

  • Best interests:

    • Is it in the best interest of the individual for him or her to be deprived of his or her liberty?

    • Is it necessary for him or her to be deprived of his or her liberty to prevent harm to himself or herself?

    • Is the deprivation of liberty a proportionate response to the likelihood of the individual suffering harm and the seriousness of that harm?

  • Eligibility—this qualifying requirement is met unless the person is ineligible to be deprived of their liberty by the MCA.

  • No refusals—has the person made a valid and applicable advance decision to refuse some or all of the treatment in question or is there a valid and conflicting decision by a donee or deputy? If so, they may not meet the qualifying criteria for DoLS.

A DoLS authorization should be regularly reviewed, amended, or revoked when required. Where a DoLS authorization is refused, the clinicians involved in the patient’s care must ensure that deprivation of the patient’s liberty does not occur as unlawful deprivation of liberty exposes a hospital to potential liabilities and is a breach of the patient’s human rights. All deaths of patients that occur where a DoLS authorization is in place should be reported to the coroner.

10.4 The Mental Health Act 1983 (Amended 2007)

The MHA 1983, as amended 2007, applies when a person has a ‘disorder or disability of the mind’ of a ‘nature or degree’ that warrants detention in hospital for assessment or makes it appropriate for him or her to receive medical treatment in hospital. The detention must be deemed necessary in the interests of the patient’s health or safety or for the protection of others. Detention for treatment of a mental disorder is only permissible if it is not possible to provide the necessary treatment without the patient being detained. Once detained, medical treatment, including nursing, psychological intervention, and specialist mental health rehabilitation, can be given without the consent of the patient.

In contrast with the MCA, the MHA cannot be used as a legal framework to justify compulsory treatment for physical conditions in the absence of consent; it can only be used to authorize treatment for mental disorders, its causes, or consequences. Such treatment is only authorized for people who are formally detained in hospital, following assessment by two doctors and an approved mental health practitioner. The MHA 1983 (amended 2007) for England and Wales set out in Part II and Part III the different ‘Sections’ that can be used to detain a person in hospital, for how long, and what conditions have to be met (for example, ‘civil sections’ include Section 2 for assessment of up to 28 days and Section 3 for treatment up to 6 months). If, during the course of a person’s detention in hospital, the necessary criteria are no longer met, the responsible clinician must remove the Section and the patient either remains in hospital informally, having given valid consent, or is allowed to leave. Once detention under the MHA is authorized, there is no requirement for a DoLS authorization. Unlike the MCA, the MHA can also be applied to people who retain the capacity to make decisions about their treatment and it can be used to impose treatment in the interests of the protection of people other than the patient.

Under Part III of the MHA there are also provisions for courts, on the basis of expert evidence, to authorize detention in hospital (referred to as hospital orders) for assessment and treatment for a mental disorder if someone is suspected or convicted of an offence punishable by imprisonment. In the context of the criminal justice system, where someone is considered unfit to plead, the Crown Court can also use the Criminal Procedures (Insanity and Unfit to Plead) Act 1991 for a trial of the facts and determine what should then happen in the event that the facts of the case are proven. This was what had been proposed in the recent high-profile case of Lord Janner, given that he was considered unfit to plead owing to his advanced dementia. He died before this process could be undertaken.

The fundamental principle behind the MHA is that such a statute provides protection against arbitrary detention and provides a ready means of appeal. Psychiatrists and others who use it are responsible for interpreting the law and will have to satisfy those challenging their decisions that the necessary requirements have been met.

10.5 Mental Capacity in Clinical and Social Care Contexts

Under what circumstances is it appropriate to treat in the absence of patient consent and what actions can and should be taken when someone is resisting treatment? The MCA makes it clear that what might be seen as ‘an unwise decision’ does not in itself indicate the lack of capacity. When there is non-compliance with treatment, an appropriate early task for the clinical team is to try and understand why the person is behaving in the way that he or she is. This will require an understanding of that person’s mental state as much as the physical state. Ultimately, judgements have to be made on the balance of probabilities that the person lacks the relevant decision-making capacity and that a particular course of action is in his or her best interests. If clinicians have followed the necessary process and documented what they have done in determining capacity and best interests, they will be free from liability if later challenged. In urgent situations, clinicians must act to save life unless it is very clear that the patient had made an advance directive to refuse treatment and it is valid and applicable to that particular situation. We conclude the chapter by considering case examples and the demands of applying the law in clinical settings in what may be complex situations in which it may not be clear which is the most appropriate legal framework.

Whilst understanding the law is essential, the problems described in the case examples are best managed by:

  1. 1. A sound understanding of the patient and his or her circumstances.

  2. 2. Decisions that are informed by a wider understanding of the issues.

  3. 3. A sound clinical approach with accurate identification of the mental health component to the patient’s presentation.

  4. 4. The establishment, where possible, of a good therapeutic relationship with the patient concerned.

There is also the question as to what is in reality possible. What actions are now justified to ensure that treatment takes place and a positive outcome ensues? In these circumstances it is concepts such as ‘proportionality’ and judgements as to the likelihood and severity of the potential harm, if such treatment is not given, that become important.

10.6 Conclusion

The presence of one or other of many known mental disorders may impact on a person’s understanding and ability to communicate, or may lead to behaviour that makes assessment and treatment problematic. This impact on a person’s capacity to interact with others may be of a nature and severity that their capacity to make specific decisions is compromised. This chapter has focused on the jurisdiction of England and Wales using the MCA and the MHA as examples of legislation that are there to provide a statutory framework and a ready means of challenge. Detaining and treating persons without their consent, or sedating persons when they are mentally disturbed, must be taken very seriously, as such action can amount to infringement of those persons’ human rights, which must never be taken lightly. A thorough understanding of the clinical, ethical, and legal challenges that a disturbance in mental health can bring is essential to ensuring a successful outcome for those patients who depend on our care and compassion.

10.6.1 Pearls

  • When patients refuse treatment, health staff must make clear the consequences that may arise.

  • Mental ill-health can complicate treatment of physical illness.

  • Guidance on when to use the MCA and when to use the MHA is detailed in the MHA Code of Practice issued by the Department of Health.

  • To detain a person under the MHA the process set out in law must be followed and there must be a ready means of appeal—mental health review tribunals.

  • If a clinician has followed the recommendations in determining capacity and best interests, he or she will be free from liability if later challenged.

  • Detaining and treating persons without their consent, or to sedate persons when they are mentally disturbed, must be taken very seriously, as such action can amount to infringement of those persons’ human rights, which must never be taken lightly.

10.6.2 Pitfalls

  • Mental ill-health can complicate treatment of physical illness.

  • Patients who refuse life-saving interventions must be treated in a lawful manner, which may require a court decision.

  • Ethical and legal issues arise from the treatment of mental ill-health.

  • Interference with one’s human rights is only lawful when conducted within a regulatory framework, which provides patients with a means of challenging decisions.

  • Unlawful deprivation of liberty exposes a hospital to potential liabilities and is a breach of the patient’s human rights.

  • The MHA cannot be used as a legal framework to justify compulsory treatment for physical conditions in the absence of consent.

  • A thorough understanding of the clinical, ethical, and legal challenges that a disturbance in mental health can bring is essential to ensuring a successful outcome for those patients who depend on our care and compassion.

10.7 References

American Psychiatric Association. (2013). Diagnostic and Statistical Manual of Mental Disorders, 5th edn. Washington, DC: APA.Find this resource:

World Health Organization. (1992). International Statistical Classification of Diseases and Related Health Problems (ICD-10).Find this resource:

World Health Organization. (2006). Constitution of the World Health Organization. Geneva: WHO.Find this resource:

10.8 Further Reading

Ansseau M, Dierick M, Buntinkx F, et al. (2004). High prevalence of mental disorders in primary care. J Affect Disord, 78(1), 49–55.Find this resource:

Cairns R, Hotopf M, Owen G (2014). Deprivation of liberty in healthcare: UK Supreme Court judgment has changed the rules. Br Med J, 348, 3390.Find this resource:

Fistein EC, Holland AJ, Clare ICH, Gunn MJ (2009). A comparison of mental health legislation from diverse Commonwealth jurisdictions. Int J Law Psychiatry, 32, 147–55.Find this resource:

Fistein EC, Clare ICH, Redley M, Holland AJ (2016). Tensions between policy and practice: a qualitative analysis of decisions regarding compulsory admission to psychiatric hospital. Int J Law Psychiatry, 46, 50–7.Find this resource:

Keene AR. (2015). Assessment of Mental Capacity: A Practical Guide for Doctors and Lawyers, 4th edn. London: Law Society Publishing.Find this resource:

Timmons S, Manning E, Barrett A et al. (2015). Dementia in older people admitted to hospital: a regional multi-hospital observational study of prevalence, associations and case recognition. Age Ageing, 44, 993–9.Find this resource:

Toft T, Fink P, Oernboel E, Christensen K, Frostholm LO, Olesen F (2005). Mental disorders in primary care: prevalence and co-morbidity among disorders. Results from the Functional Illness in Primary care (FIP) study. Psychol Med, 35, 1175–84.Find this resource: