Essential Notes in Basic Sciences for the MRCPsych

Pt. 2

Wai-Ching Leung, Kirsty Passmore

• Publisher: CRC Press
• Year: 2018
• ISBN:
  9781315345253
• Edition: 1
• Topic: Medicine
• Subtopic: Medical Theory, Practice & Reference

* Fast access to useful facts for GPs and health planners. * Vital data on the NHS and GP workload condensed into a readable format. * Detailed information drawn from many varied sources. * Concise and easy to read. * Especially useful for GP registrars and candidates preparing for the MRCGP. * Doctors nurses pharmacists and healthcare professionals can digest the data without creating unnecessary dyspepsia or reflux!

1 Ethics and the law

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Consent, restraint, legal responsibilities and protection in psychiatric illnesses

General principles of consent

Treatment without appropriate consent

Psychiatrists who treat their patients without appropriate consent potentially face

1. a claim of battery by the patient in the civil court;
2. a claim of negligence by the patient if the patient sustains harm due to the treatment;
3. disciplinary action by the GMC;
4. disciplinary action by the employer.

Battery

• Occurs when a person injures or even touches another person deliberately without his or her consent.
• May be a criminal or a civil matter, although a claim for criminal battery is unlikely in a health setting.
• To defend a claim of battery, the level of consent required is that ‘broad terms of the treatment’ are explained.
• Unlike negligence, patients do not have to prove that they have suffered actual loss or injury for a claim of battery.

Negligence

To prove negligence, a patient has to show that

1. the psychiatrist has a duty of care,
2. the psychiatrist has breached this duty,
3. actual loss or injury resulted from this breach of duty, and
4. the loss was reasonably foreseeable.

• All psychiatrists owe their patients a duty of care in the course of their clinical duties.
• The minimum appropriate level of consent below which professionals can be judged to breach their duty of care is the ‘Bolam’s test’ – the professional breaches a duty of care only if no responsible body of professional opinion would support the action actually taken. It is only if the action supported by the body of professional opinion is clearly unreasonable that the Court might overrule the professional opinion and conclude that a breach of duty has occurred (Bolitho vs Hackney HA, 1993).
• The level of information required by patients is generally high. The patient must generally be informed about the range of possible treatment options, purposes and nature of the proposed treatment, the likely outcomes and the risks for the various treatment options.

Form of consent

• May be expressed or implied.
• May be in writing or orally (for minor procedures).

Who can give or refuse consent to treatment for adults?

• For adults, only the patients themselves can give legally valid consent to treatment.
• Although it is good clinical practice to consult relatives in treating patients, consent given by relatives (e.g. parents, siblings, spouses or children) is not legally valid, irrespective of whether the patient is competent to give consent or not.

Advance directives

• Adult patients may refuse treatments in advance.
• Advance directives allow a person to express their wish regarding future treatments when they are no longer mentally competent to make such decisions.
• The declarations in advance directives are legally binding.
• E.g. in Re C (1994), a patient with chronic schizophrenia in Broadmoor Hospital with gross grandiose delusions was mentally competent to give advanced refusal to the amputation of his gangrenous infected leg. The important criteria were that at the time the advance directives were made, the patient could comprehend and retain treatment information on amputation, believe it in his own way, and weigh that information balancing the risks and benefits. The BMA has published a code of practice on advance directives for health professionals (BMA, 1995).
• Psychiatrists deciding whether to follow a patient’s advance directive should consider the patient’s competence when it was made, whether the patient has revoked the directives (e.g. orally) since then, and whether substantial changes have taken place to render it inapplicable.

Assessing capacity

• It is essential to assess a patient’s capacity to give or refuse consent.
• If a patient has capacity, it would be essential to obtain his or her consent before treatment.
• If the patient lacks such capacity, decide whether treatment is urgent and life-saving.
  • If so, treat the patient under the doctrine of necessity (see below). It may be futile to seek legally valid consent (St George’s Healthcare NHS Trust vs S, 1998) although it is still important to inform the patients fully about any proposed treatments.
  • If not, decide whether the treatment is for a mental illness and whether the patient should be placed under a section of the Mental Health Act.
  • If not, no treatment can be given.
• A patient lacks capacity only if the impairment of the patient’s mental functioning makes him or her unable to make a decision. (Re MB, 1997) The patient is unable to make a decision if either:
  1. he/she is unable to understand and retain the information material to the decision (e.g. consequences of having or not having the treatment in question) or
  2. he/she is unable to weigh the information up to arrive at a decision.
• A patient may be competent to give consent for one treatment (e.g. a simple procedure) but not for another treatment (e.g. a more complicated procedure with potentially more harmful effects).

Adults with capacity but who refuse treatment

• Treatment cannot be given to an adult who has the capacity to refuse treatment.
• Adults are presumed to be competent to refuse treatment. It is up to the health professionals to prove that the patient did not have the capacity should they decide to treat against the patient’s will.
• It is good clinical practice to ask patients to sign a statement that they refuse to receive the treatment offered and accept responsibility for the potential consequences.

Adults who lack capacity

For adults who lack capacity, treatment may be given without consent under the following 3 circumstances – the first 2 are particularly relevant to the Accident and Emergency setting.

1. Doctrine of ‘necessity’
   Doctors have a duty to treat an adult to save lives or to prevent serious harm if he or she lacks capacity to consent or refuses the proposed treatment.
2. Mental Health Act
   • The Mental Health Act 1983 allows patients with mental disorders to be compulsorily admitted to hospital for assessment and treatment of their mental disorders.
   • This includes treatments ancillary to the core treatment of the mental disorders but not unrelated physical disorders (B vs Croydon HA, 1995).
3. Court’s judgement
   • Although no one can give legally valid consent on behalf of an adult who lacks capacity to give consent to proposed treatments, the High Court can make a declaration that such treatments are not unlawful.
   • This procedure can be used for cases such as sterilisation in a person with intellectual disability or proposed Caesarean section of a woman who refused the operation due to mental illness.

Patients with mental disorder

Physical treatment unrelated to underlying mental disorders

• E.g. patients with chronic schizoph...

Table of contents

• Cover
• Title Page
• Copyright Page
• Table of Contents
• Preface
• Chapter 1. Ethics and the law
• Chapter 2. Genetics
• Chapter 3. Epidemiology
• Chapter 4. Principles of Evaluation and Psychometrics
• Chapter 5. Neuroscience
• Chapter 6. Social Sciences