Mental Health Consent

This assignment will consider the conflicting concepts of paternalism and autonomy in relation to mental health law. It will consider the two competing interests in mental health law and consider how there are settled, in relation particularly to issues of consent.

The words autonomy and autonomous are used in respect of a capacity, a condition and a right.

To be autonomous, as the word implies, is to be self-governed or self-directed or self -determining in the conduct of one's life; that is the condition. Autonomy is used of the capacity to be self-directed in the conduct of one's life. Respect for autonomy involves respect at least for this capacity. A right to autonomy must be a right to at least some exercise of the capacity for self -direction in one's life. But what exercise of the capacity? The answer we give to the question must surely depend on the understanding we have of the value of autonomy. Autonomy can also be said to be equivalent to the right to self-determination, although the right to self-determination could not be relied upon to impose duties on others to provide medical-treatment.

It is said that, the assertion to the right to autonomous medical decision-making is paramount and that the only justification for imposing medical treatment on a patient against his will is to prevent harm to others. Further, it is argued that illness is a value-laden concept and any form of paternalism runs the risk of doctors branding patients with illness and subsequent treatment. It is not difficult to see how this principle can apply to mental illness

The growth of the autonomy principle can be seen with reference to the doctrine of informed consent. Prior to 1960 the autonomy principle was in practice often honored in the breach and not the observance. While the patients in principle could decide to accept or refuse treatment, doctors were under no explicit duty to communicate to patients the pros and cons associated with various options that were open to them. In many cases, the dominant practice was for physicians to recommend and patients to follow the recommendations, without even asking why. The rationale being that withholding of information was for the benefit of patients who might be too distressed to process it correctly.

The difficulty of this principle is its application to euthanasia and suicide, .i.e. should this principle be respected when the situation is one of life and death. As has been discussed, in the main any patient can decide to refuse treatment, even if inaction promises a certain death, or to accept treatment, even if it increases both the chance of death (if it should fail) and the quality of life (if it should succeed). This begs the question that if a patient is allowed to increase the risk of death in taking a chance for a better life, why can't he choose death itself, by whatever means he desires? Although the right to self-determination here is in conflict with the principle of utility because the consequences of such a refusal may be bad for the family left behind: .i.e. the loss of a breadwinner or the infliction of grief.

The principle of autonomy has been very recently considered by the court in the oft-cited Diane Pretty Case . When the case came to the European Court of Human Rights and the Strasburg Judge noted that:

It is under Article 8 that notions of the quality of life take on significance. In an era of growing medical sophistication combined with longer life expectancies, many people are concerned that they should not be forced to linger on in old age or in states of advanced physical or mental decrepitude which conflict with strongly held ideas of self and personal identity.

The reason why we ought to respect her choice is the same reason that makes us respect the choice of able-bodied persons to commit suicide: not that it is the right choice, but that it is her choice.

The court in Malette v Shulman recognized that the principle of autonomy did exist: The states interest in preserving the life or health of a competent patient must generally give way to the patient's stronger interest in directing the course of his own life

To understand why consent is required is to understand a fundamental human right. It must be recognised that every human being however immature or mentally impaired, possesses a fundamental worth and dignity which are not lost as long as he or she is alive. Contrary to the view of some, human worth and dignity do not depend on acquiring and retaining some particular level of intellectual ability or capacity for choice or for communication. Thus the ethical principle that every person has a right to self-determination and is entitled to have their autonomy respected finds its expression in law through the notion of consent.

More practically, a successful relationship between a medical practitioner and his patients depend on trust. Such trust can only be established if the practitioner respects the patient's autonomy, .i.e. their right to decide whether or not to undergo some medical intervention, even if the patients' refusal may result in some harm or in extreme cases their death. Patients, of course must be appraised with sufficient information, in a way that they can understand, to allow them to implement their right to make an informed decision.

Lord Donaldson has pointed out the two distinctively different roles that consent functions in the doctor -patient relationship. The first, he calls the legal, which is to provide a legal justification for care, without such consent the medical practitioner would become liable to commit a crime or a tort. The second aspect which Lord Donaldson calls clinical is to secure the patients trust and co-operation.

It was stated by Lord Donaldson MR [e]very adult is presumed to have capacity [to consent], but it is a presumption which can be rebutted

All persons over the age of 16 are presumed competent to consent to medical treatment. This applies not merely to the public at large but also, specifically to those in psychiatric facilities. A fortiori, the presumption must also exist for those with psychiatric difficulties living in the community.

If this presumption is not rebutted, then treatment may not be given to an adult unless he has consented. Such patients are allowed to refuse treatment even if their reasons for the refusal were rational or irrational, unknown or non-existent. Adult for these purposes means an individual who is over the age of 18. Individuals between the ages of 16 and 18 years may be treated notwithstanding their active objection through consent of a custodial parent, or by leave of the court.

The main exception to this rule concerns itself with treatment under the Mental Health Act 1983, in particular under ss 63 and 58.

Section 63 of the act states that:

The consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering, not being treatment falling within ss57 and 58 above, if the treatment is given by or under the direction of the responsible medical officer.

The implication here, is of course, that treatment for all over purposes will be covered by the common law. Although as will be seen that interpretation of what constitutes the medical treatment for the mental disorder from which the patient is suffering has been given a wide interpretation by the courts. The act defines treatment so as to include nursing and also includes care, habilltation, and rehabilitation under medical supervision. The act does not provide any guidance on how this should relate to the mental disorder from which the patient is suffering. The court has interpreted this so as to permit a wide range of acts that are ancillary to the core treatment. This can be seen in B v Croydon Health Authority where the claimant, who was suffering from a psychopathic disorder only treatable by psychoanalytical psychotherapy, applied for an injunction to prevent the health authority from force feeding here, was refused such an injunction. The Court of Appeal held that by reason of s63, her consent was not required. It was accepted that, because of the treatabillity requirement in s3, it would not have been lawful to detain her unless her condition was treatable. However, it was held that it did not follow that every act which formed part of treatment as defined by s145(1) must, in itself, be likely to alleviate or prevent a deterioration of the disorder. Thus the nasogastric feeding would form part of concurrent care.

It is somewhat perturbing, that the court, has widened the ambit of non-consensual treatment, especially when we consider the ambit also given by the common law justification, this raises the question as to whether or not there really exists a presumption of capacity. Even if it is in existence, it appears the court are prepared to widen the ambit of non-consensual treatment, in circumstances where it sees fit, and it is difficult to draw any broad guidelines from the caselaw. The case has been followed and alarmingly it was held that the performance of a caesarean section was treatment for mental disorder under s63

The court held in St Georges Healthcare NHS Trust v S that s63 cannot be used to force upon patients medical procedures that are totally unconnected with mental disorders. It is however, hard to reconcile this case with Tameside and Glossop, it is difficult to determine where one might draw the boundary. Especially when we consider that in St Georges Healthcare it was said that s63 may apply to any treatment of any condition which is integral to the mental disorder thus not overruling the Tameside case.

Section 57 of the 1983 act covers the most drastic forms of treatment for mental disorder. It covers psychosurgery and any other form of treatment specified by the Secretary of State. The present law only allows for the surgical implantation of hormones for the purposes of reducing the male sex drive.

Finally Section 58 specifies treatment which requires consent or a second opinion. The treatment covered by s58 is electro-convulsive therapy and medicines administered for a period exceeding three months. This section does little to protect the patient's rights to refuse treatment; it merely adds a safeguard by requiring that, in so far as the patient refuses, two doctors must recommend a court of treatment rather than one.

It has been said that by the mere fact of becoming a patient, an individual will lose some autonomy. A Patient will need to disclose personal details to an effective diagnosis and will have to rely on the judgement and advice of the doctor on the best course of treatment. It would appear that this consent is given freely, however the option of refusal closes the door to treatment. Consent will legitimise what would be unlawful conduct, a patient has the right to do with his body as he or she thinks fit.

If we bear this in mind then consider the patient who, for whatever reason, in unable to make decision affection their lives, including those decisions concerning medical treatment. This lack of competence can be transient or permanent. The difficult question to address is where the law draw the competence line. The law would be deficient if it did not recognise that there were members of society who may be incompetent to assess whether or not to consent to medical treatment. Therefore this again raises arguments over whether paternalism or autonomy should be preferred and indeed how the competing interests should be balanced in the area of mental health law and indeed whether or not there is a right or wrong answer. However as it has been said It must be recognised that every human being however immature or mentally impaired, possesses a fundamental worth and dignity which are not lost as long as he or she is alive. Contrary to the view of some, human worth and dignity do not depend on acquiring and retaining some particular level of intellectual ability or capacity for choice or for communication.

Bibliography

Cases

Mental Health Act 1983

Legislation

B v Croydon Health Authority 1994] 2 WLR 294

Malette v Shulman [1990] 67 DLR (4^th) 321

RE C (Adult: Refusal of Treatment) [1994] 1 ALL ER 919

Re T (adult: Refusal of Treatment [1992] 4 ALL ER 649

R. (Pretty) v. DPP, [2001] UKHL 61, [2001] 3 W.L.R. 1598

Sidway v Bethlem RHG [1985] 1 ALL ER 643

St Georges Healthcare NHS Trust v S [1999] Fam 26

Tameside Acute Services Trust v CH [1996] 1 FLR 762and Glossop

Journal Articles

ANTJE PEDAIN "The Human Rights Dimension of the Diane Pretty Case", March 2003

Books

Grubb A, (1993), Choices and Decisions in Health Care, (Ed's), Butterworths

Grubb A and Kennedy I (1998) Principles of medical law. Oxford: Oxford University Press

Grubb Andrew and Kennedy Ian (2000), Medical Law, 3^rd Edition, Butterworths

Heginbotham, C. and Elson, T. (1999) 'Public policy via law: Practitioner's

Sword and politician's shield', in N. Eastman and J. Peay (eds) Law Without

Enforcement: Integrating Mental Health and Justice, Oxford: Hart.

Jones R, (2003) Mental Health Act Manual, Sweet and Maxwell, 8^th Edition

Mason J K, MaCall Smith R A, Laurie G T, (1999), Law and Medical Ethics, 5^th Edition, Butterworths

Montgomery J, (2003), Health Care Law, 2^nd Edition, Oxford University Press

Stauch M, Wheat K, Tingle J, (2002), Sourcebook on Medical Law, 2md Edition, Cavendish Publishing

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