ETHICS AND CIVIL LAW

LEGAL AND ETHICAL PSYCHIATRY

Distinguish Law and Ethics:- Law is the body of rules formally sanctioned by Parliament and the Courts so as to be defined as 'law', administered by 'legal fora'.

Ethics addresses 'normative' (cp 'positive') issues involving conflicts between ethical principles and between the interests of different parties; plus 'ethical codes', in having the status of law and being administered by professional (self-governing) bodies.

Psychiatric Ethics

The 'shoulds' of psychiatric practise.

Distinguish technical 'positive') questions and ethical ('normative') questions.

Central to all medical ethics is the conflict between the autonomy of the patient e.g. concerning consent) and the duty of care of the doctor (e.g. in negligence); many dilemmas can be distilled out to this conflict.

Relationship of Law and Ethics

1. Ethics must operate on a legal back-cloth: may be a (natural) coherence but a necessary coherence.

2. Ethics 'fill the gaps' in the law, often arising because the law is 'silent' on many matters.

N.B. Ethical principles may (clearly) give rise to legal constructs (e.g. autonomy as the basis of the law of battery).

Distinguish Law and Psychiatry

Distinguish between psychiatric diagnosis and legal/social concepts. Hence mania is a diagnosis, arson is a crime (therefore you cannot have a 'diagnosis' of arson). Hence also schizophrenia is a diagnosis whilst 'abnormality of mind' (giving rise to 'diminished responsibility') is a legal construct. In the latter example there is no reason why the two should necessarily relate to one another, even where the same word is used, for example, 'psychopathy' (in psychiatry) and 'psychopathic disorder' (in law). Law may adopt a 'term of art' from psychiatry but then define and/or use it so that it means something different from the original psychiatric construct.

This distinction, between psychiatric and legal constructs, is central to 'legal psychiatry'. It emphasises the 'boundary' between psychiatric diagnosis/formulation and the legal use/implication of that diagnosis/formulation. The distinction is important in 'verdict issues' and 'disposal issues'.

Legal Sources

Distinguish common law and statute law.

Statute law 'trumps' and 'Sits upon' common law (e.g. the Mental Health Act 1983 overrides common law in specified respects but the common law still applies to detained patients where the Act is 'silent').

Legal Fields

Distinguish civil law and criminal law:

Civil law involves one individual' against another and relates to any matter defined by Parliament or the Courts as 'civil';

Criminal law involves the State against an individual; where Parliament and/or the Courts have defined an activity as a 'crime', giving the State the right to initiate proceedings on behalf of society.

As an example: a defendant with a psychopathic personality disorder may be convicted of 'diminished responsibility manslaughter' (in the criminal law) but yet be sent to prison because he is not detainable under the Mental Health Act 1983 (in civil law).

Legal Fora

Distinguished between:

(I) criminal fora

(2) civil fora

· Distinguish between courts and quasi-judicial fora, e.g. Mental Health Review Tribunals. Specific fora:

Criminal Courts: Magistrates' Courts

Crown Courts/Central Criminal Court

Appeal Court (Criminal Division)

House of Lords

Civil Courts: High Court

Appeal Court

House of Lords

Juvenile Courts: Juvenile Criminal

Care/Custody Order Proceedings

Coroners' Courts

Mental Health Review Tribunals

Concentrate on (adult) criminal forensic issues and psychiatric reports; be aware of civil legal matters, courts and reports.

Hence

Divide issues into:

(A) Civil legal psychiatry

(B) Criminal legal psychiatry

CIVIL LEGAL PSYCHIATRY

(1) CONSENT TO TREATMENT

N.B. See in relation to lecture on Part IV, Mental Health Act 1983; i.e. consider here common law and ethical aspects of consent to treatment.

Principle of autonomy i.e. patient has the right to control his/her own body.

Translates legally into assault: i.e. if 'medically touched' without consent (i.e. without consent to that touching).

Hence: (only) avoid assault if can demonstrate that the patient consented.

But law may also define absence of consent (in spite of patient saying 'yes') on basis of legal invalidation of 'apparent consent'.

What does consent mean?

There is no valid (ethical) consent without all elements satisfied.

How do you define each element?

English law defines the elements in the following terms

Competence:--

There is no 'statutory statement' [except in Part IV of the Mental Health Act ( 1983)] but is taken to mean 'capable of understanding in broad terms the nature and purpose of the treatment'.

Mental Health Act (1983) states incapable of understanding the nature, purpose and likely affects of the treatment".

Information: 2 Possible standards.

(1)'patient based': i.e. must give level of information necessary in order to allow patient to operate his/her autonomy.

(2)'profession based': i.e. must give that level of information which is normally given by the profession in that medical situation, based on 'duty of care'.

NB. If give no/very little information then that amounts to assault; if give

some/not enough information then amounts to negligence (i.e. breach of 'duty of care'.

English law adopts 'Profession based standards with strings attached' (often called 'Bolam test with strings attached').

Understanding.

Query necessary in English law.

Voluntariness:

C This is necessary but:

- distinguish covert/overt coercion (see Freeman v Home Office)

- distinguish coercion/acceptance of reality (e.g. patient knows will be

'sectioned' if doesn't accept admission or treatment).

Often these are fine dividing lines.

Decision:

Looks straight forward but isn't because:

can give different 'messages' at different times

can give different 'messages' in different modalities

Distinguish fact of consent from evidence as to consent (e.g. consent form does not amount to the fact of consent, only evidence as to consent).

Are these exceptions to the consent requirement

Yes:

(I) implied consent (by fact of consultation): but cannot use implied consent beyond that which is 'reasonable'.

(2)Implied consent (patient's consent 'unavailable' where reasonable man would consent): e.g. unconscious patient, ? after overdose.

(3) Necessity: where there is some level of patient incompetence and, without intervention, serious harm/death would likely occur (i.e. doctor owes a 'duty of care'), distinguish necessity/convenience.

N.B. There is no 'doctrine of a wrongful life' (in relation to assessment of damages arising from battery/negligence).

(4)Emergency: prevent serious immediate harm to patient or others, especially relates to psychiatric patients distinguish from 'urgent 'under Section 62 of the Mental Health Act 1983).

(5) post-suicide attempt: [because suicide used to be a crime] can reverse the effects of the suicide attempt but cannot stop (suicidal) patient walking out of casualty [unless detainable and detained for mental disorder under the Mental Health Act (1983)].

(6) detained under the Mental Health Act (1983): requires satisfaction of criteria in the Act [mental disorder plus 'consequences' criterial.

Treatment only for mental disorder (not physical). Treatment only according to terms of Part IV of the Act.

Mental Health Act adds 'powers to doctors' and 'safeguards for patients¹ which Sit 'on top of' common law provisions.

There is no legal (cp ethical) basis for 'proxy consent'.

Recent Example:

AIDS: Can you test for AIDS without consent?

Answer 'no: i.e. even though consent to blood being taken, AIDS test is so momentous in its Personal and social implications that 'separate' consent to test the blood is required. Testing of blood without such consent implies lack of consent and therefore assault.

NB. Some doctors argue that "you would be negligent if you did not test for a medical condition that you suspected" (i.e. resort to 'duty of care'). Not accepted legally.

There is a potential conflict between (1) duty of care (relating to negligence)

(2) consent requirement (relating to assault)

(2) CIVIL CAPACITY

Distinguish formal incapacity (which itself is different from lack of wisdom in decision making) from diminished mental capacity as a basis for a particular judicial decision (e.g. compare formal testamentary capacity with mental disorder affecting a particular judicial decision concerning 'care and control' of a child).

Law treats mental capacity as 'action specific' concept.

(a) Consent to Treatment

N.B. Distinguish 'refusal' and 'lack of (competent) consent'.

Common law: to be competent to consent to treatment the patient must be capable of understanding in broad terms the nature and purpose of the treatment.

Mental Health Act 1983: the only statutory definition of mental competence to consent to treatment, defined as "capable of understanding the nature, purpose and likely affects of treatment".

- applies only to treatment "for mental disorder"

- applies only to detained patients (except Section 57)

Hence: incapacity is a basis for allowing compulsory treatment (also being a basis for a

patient's right to a 'second opinion' under Section 58)

Many patients are not detained therefore (apart from Section 57) only common law applies.

Common examples: elderly demented (often detainable but not detained), mentally handicapped (either detainable but not detained or not detainable because is defined as 'mental impairment', not 'severe mental impairment', and may not be treatable).

Treatment of the Mentally Handicapped: There is a (currently hotly debated) 'lacuna' in the law (largely resultant from the restricted guardianship provisions of the 1983, compared with the 1959, Mental Health Act). No basis for 'proxy consent' once adulthood attained; no basis for doctors

exercising 'duty of care' except of 'necessity' (see below); only solution is to go to the Court for the Court to make a specific decision for that patient (e.g. recent 'sterilisation cases'); clinical teams often attempt to fill the legal lacuna through their own 'ethical codes'.

(b) Sexual and Family Relationships

Article 8 European Convention on Human Rights: secures right of all to respect for private and family life.

U.N. Declaration of Right of Mentally Retarded Persons (1971): recognises the right of mentally handicapped person to live with his own family; but says nil regarding the right to develop sexual and family relationship for him/herself.

Delicate balance between: need for patient protection and right of patient to normal sexual and family relationships.

(I) Sexual Relationships

Distinguish 'capacity to consent to sexual intercourse' and 'protection of mentally disordered'.

Patients protected by ordinary criminal law (i.e. Sexual Offences Act etc) : particular protections arising from the fact of mental disorder:

- offence for male staff to have sexual intercourse with patient of the hospital

- offence for male guardian to have sexual intercourse with subject of guardianship order

- offence for male person who otherwise has custody or care of the patient under the Mental Health Act to have sexual intercourse with the patient

PIus - offence for any person to have sexual intercourse with patient with 'severe mental handicap' (even though the patient may be capable in law of consenting to intercourse);

N.B. applies most commonly in relation to two mentally handicapped persons.

(ii) Marriage

N.B. legal capacity to marry is not equivalent to the legal capacity to have (extramarital) sexual relations.

English law attempts (a) to take relaxed view of qualification for matrimony, whilst (b) preserving idea that it must be a voluntary consensual union.

Two grounds for annulment

(I) lack of valid (competent) consent

(2) sufferance from mental disorder within the meaning of the Mental Health 1983 such that is uunfitted for marriage (even though competent to consent to marry).

(1)Lack of competence to consent

Law requires only competence to understand the nature of the contract and its basic responsibilities (few fail this test since marriage is a well known social concept).

(2) 'Unfitness for marriage':

Must be a mental disorder in terms of Section I of the Mental Health Act 1983; however, not enough to show 'difficult to live with', must show incapacity to carry out ordinary duties of marriage.

Both grounds result in marriage being 'voidable' (not 'void'); marriage exists until successfully challenged in the Courts by one of the parties.

Pre-marriage: any person (including a doctor) may enter a 'caveat¹ with a 'superintendent registrar', which he must investigate; registrar will rarely refuse to marry on the basis of (2) 'unfitness for marriage', more commonly will refuse on the basis of (1) 'incapacity to consent to marriage'.

In general: doctors should be wary of intervention; psychiatric grounds must be very substantial.

(iii) Divorce

Governed (as for non-mentally disordered) by the Matrimonial Causes Act 1973.

Capacity to consent to divorce is exactly similar to the capacity to consent to marriage.

Non-consensual divorce is achievable only on the basis of behaviour as specified in the Matrimonial Causes Act; hence, mental disorder is a basis for divorce only where it results in relevant legally behaviour.

(iv) Children

All law governed by 'supremacy of the interest of the child'.

- separation/divorce: (usually) results in custody to the mother, unless (for example) mental disorder 'affects her capacity to love and care for the child'.

- a Care Order (Children and Young Persons Act 1969): where parent(s) can not safely care for child.

- 'voluntary care': may occur where parents are prevented from caring for them because of variety of causes (including 'disease or infirmity'); local authority can convert by resolution to the authority having parental rights if (a) parent(s) suffer(s) from permanent disability ~ (b) suffer(s) from mental disorder within the meaning of the Mental Health Act 1983 such that he/she is unfit to care for the child (even though not detained under the Act).

N.B. new born:

- no legal basis for proceedings pre birth (how ever mentally disordered)

- at birth, only legal basis is current neglect or ill treatment (unless a previous child was neglected or ill treated)

- i.e. no legal basis of 'incapacity to care'

Legal role of psychiatrists: emphasise 'child psychiatry' and 'family assessment'; prefer objective behavioural evidence to 'predicted' behaviour (based on adult psychiatric assessment of parent).

(c) Property

(i) Testamentary Capacity

Long established criterion of the patient being capable of "making a will with understanding of the nature of the business in which he is engaged, a recollection of the Property he means to dispose of, of the persons who are the objects of his bounty and the manner in which it is to be distributed between them" (Banks v Goodfellow 1870). Not necessary to act wisely.

N.B. Testamentary capacity is not identical with incompetence to manage affairs more generally (see below); however, if under the Court of Protection it can make a will on the patient's behalf.

(ii) Contracts

Competence capacity is similar to that for wills (i.e. competence to understand the nature of the contract involved)

But because there is another party, with rights (as opposed to 'beneficiaries¹ in wills) the patient is bound by a contract unless he can prove that the other party (1) knew of his incapacity (2) should have known of his incapacity; even then the patient is still bound by contracts for 'living necessities' (even though having no capacity and the other party being aware of this), advantage of some measure of 'independence' for severely mentally disordered patients.

N.B. if patient's affairs are under the Court of Protection (see below) then patient cannot deal with them in the ordinary way and the other party cannot sue (except for 'necessities').

N.B. for contracts of employment, patient cannot be dismissed for mental disorder, only for the behavioural effects of his mental disorder (in the ordinary legal terms that apply in Employment Law).

(iii) General Management of Affairs (Court of Protection)

Procedure: - originating application from anyone

- medical certificate (1 only) that patient is "incapable, by reason of mental disorder, of managing and administering his property and affairs"

- doctor need not have any special psychiatric expertise

Grounds (Section 94121 Mental Health Act 1983):

- not only the 'four categories' of mental disorder in Section 1 of the Mental Health Act but also "any other disorder or disability of mind" (in Section 1), i.e. even where insufficient for long term detention in hospital

Effect: - exclusive control over all property and affairs

Ending: - recovery (with a specific finding by the Court, on medical advice)

- death

- N.B. no regular review

(3) PSYCHIATRIC NEGLIGENCE

Sounds a simple idea.

But is It?: - possibilities

(i) doing something badly

(ii) doing something the wrong way

(iii) deciding to do the wrong thing

(iv) doing something badly/in the wrong way/doing the wrong

thing and carelessly