Ethical Justifications For Compulsion

Broadly speaking, the ethical justification for the use of compulsory treatment come under two main headings:

Defensive

• This means Society’s right to protect itself from people who when unwell may threaten the safety and well-being of its members. Without compulsory treatment society will suffer

Paternalistic

• This is Society’s responsibility to help people whose main risk is to themselves and whose refusal or inability to consent to treatment is symptomatic of their condition. Without compulsory treatment the individual will suffer

MAIN ROUTES TOWARDS COMPULSORY TREATMENT

• The Mental Health Act 1983
• The Mental Capacity Act 2005
• Deprivation of Liberty Safeguards 2007
• Common Law
• The Children Act 1989

Human Rights Act 1998

Before looking further at these areas in more detail we must consider the fundamental importance of the HRA.

• All public bodies must work in conformity with the HRA including private providers when they are receiving public funding
• Article 5 provides a right to liberty and security of person
• This is a qualified not an absolute right so it has to be interpreted according to the circumstances and other rights with which I might be in conflict
• Detention when someone is of unsound mind is one of the qualifications and is usually considered to refer to mental disorder in a broad sense
• This means that the mere fact of detention under either the MHA or the MCA/DoLS is likely to be lawful
• However, the HRA stipulates that this must be within a process defined in law

The person detained must also have access to a court-like body to decide on the necessity of detention in the particular case

Exceptions to Autonomy and the Right to Refuse

Broadly speaking, there are 3 exceptions:

• When the person has a severe mental disorder irrespective of their capacity, when they may potentially be treated under the Mental Health Act 1983
• When the person has an impairment of the mind or brain that results in lack of mental capacity to understand their need for treatment, when they can potentially be treated in their best interests under the Mental Capacity Act 2005. If used together with the Deprivation of Liberty Safeguards (DoLS) the person can also be detained in much the same way as under the MHA.
• Sometimes when they are a child or young person under 18, and lack either capacity or it may be competence (the maturity and mental development to understand their need for treatment) in which case they can potentially be treatment under various authorities including common law.

Right To Autonomy And Refusal of Treatment

Medical treatment for a capacious patient can usually only proceed on the basis of a valid, sometimes called an informed, consent. This means that the patient has capacity i.e. the cognitive ability, to understand their medical condition and the treatments on offer, has been given information about those treatments and the consequences, including the risks, of taking the treatment, and also of refusing it, and of their own volition and without coercion, has decided to undertake one of the treatments on offer.

This is sometimes called an informed consent because it is consent informed by understanding of the full implications of what they are doing. As such it provides an authority in law for treatment to be given. It may, but does not always have to be, expressed in writing.

Refusing medical treatment is the reverse side of consenting to treatment. It is implicit in the concept of voluntary consent to treatment that a person has a right not to consent unless there are special circumstances. The basic points are:

• All adults (18 plus) with the mental capacity to do so have the right to refuse treatment for a physical condition
• In most cases they also have the right to refuse treatment for a mental disorder. It is only exceptionally that people can be made subject to such treatment when they are not consenting.
• This is generally accepted to be a basic human right within a free and open society.

Children are different and can sometimes be given treatment they are not consenting to and may not be able to consent to due to age and other factors.
Even so in many cases many children, particularly once they are over the age of 13, who are refusing treatment have that refusal respected.

Issues for RCs to consider

• Have I adequately addressed the statutory criteria?
  [In a Nearest Relative Barring Review have I dealt with the question of dangerousness?]
• In relevant cases, have I assessed the patient’s capacity in relation to the review?
• Have I discussed my report with the patient?
• Have I arranged for the patient to be ‘debriefed’ after the review?
• How do I deal with a panel which strays beyond its brief?
• How do I deal with a ‘hostile’ legal representative or panel member?
• In what circumstances might I want to be legally represented?
• What do I do if I feel that the panel’s decision is flawed?

Further appeals

A tribunal decision can be appealed to the Upper Tribunal, but only on a point of law.

An appeal from a Managers’ Panel would have to be by way of judicial review.

Procedure

The Code of Practice has chapters on the tribunal (chapter 12) and Hospital Manager reviews (chapter 38) which should be read.

The tribunal operates under the Tribunal Rules. A majority decision is permitted.

Managers’ Panels operate under guidance provided by the Trust or independent sector provider. Trusts will have their own policy for Managers’ review. Panels require at least 3 members to agree to discharge the patient (in practice this means a unanimous decision as panels are usual made up of 3 members).

The Tribunal may make directions and recommendations.

Managers’ panels occasionally make recommendations but these are not binding.

Preparation for hearings

Access to hearings

Access to the Tribunal by patients is limited to once in a period of detention.

Access to the Hospital Managers is unrestricted. In practice few patients ‘appeal’ to the Managers.

Referrals have to be made to both bodies at varying interval according to the relevant section.

Legal Aid is automatically provided for Tribunals but is more restricted for Managers’ Panels. Where patients are not eligible for legal aid they should be offered the service of an advocate.

Upon renewal of ether section 3, 37, 47 and a CTO an automatic Associate Hospital Managers Hearing will be scheduled for the panel to review evidence to uphold the section.

MHA (1983) Guiding Principles