Right to Challenge Decisions in Mental Health Cases - Essay Example

 Introduction The United Kingdom enacted the Mental Capacity Act 1983. This Act provides the legal basis for decisions taken, in respect of mentally incapable adults. It is similar to the notion of parental responsibility; and empowers medical professionals to make decisions and take actions, which may affect the welfare of mentally incapable adults (Robinson and Scott-Moncrieff). An extrapolation of this interpretation makes the very same principle applicable to patients detained in hospitals and nursing homes, on account of an absence of capacity. The Mental Health Act 1983, permits detention of patients only in hospitals or a registered establishment (Robinson and Scott-Moncrieff). Implications of Mental Health Act The Mental Health Act has not defined mental illness. The courts have also not provided any definition with regard to mental illness. Accordingly, there is nothing better than a general definition, which includes mental illness, arrested or incomplete development of the mind. It also encompasses psychopathic disorders and any other mental disorder or disability in individuals (Rights of People Detained Under the Mental Health Act). This is a generalised definition; and serves the various purposes well, because, there is still much about the functioning of the human brain that has not been discovered. On the basis of this definition, a court or a medical authority can compel an individual to undergo mental health treatment and declare such treatment to be indispensable for the health and safety of that person (Rights of People Detained Under the Mental Health Act). It is assumed that such compulsory treatment is essential and that it is usually applied as a last resort for the mentally impaired. Such treatment is termed as sectioning. In general, treatment under this process continues for a maximum period of six months. At the end of this six month period, a review is to be conducted, and sectioning can be continued, whenever it is discerned that further treatment is warranted (Rights of People Detained Under the Mental Health Act). After the completion of treatment, the patient can be subjected to a process called assessment. This assessment can be done against the will of that person. Under the provisions of section 2 of the Mental Health Act, this assessment programme cannot be for a duration that is more than twenty eight days (Rights of People Detained Under the Mental Health Act). Medical professionals cannot extend this period of treatment, on their own, even if the treatment is inadequate or unsuccessful. An application for sectioning has to be submitted in respect of the patient. They also can refer the patient for advanced in-patient treatment. However, in order to extend any such treatment period, the medical professionals must apply requisition to section the patient (Rights of People Detained Under the Mental Health Act). Similarly, the Act provides several powers to the Police. If the acts of the mentally impaired person prove to be dangerous to life, then the police can remove that person from his home or from a public place, in order to circumvent the danger. The Police have no authority to admit a person to the Psychiatric Unit (Rights of People Detained Under the Mental Health Act). Instead, they can present the person before the hospital. The on – duty nurse can detain such persons for periods up to six hours in the hospital, and a doctor can bring about the transfer of the detained person to the appropriate ward (Rights of People Detained Under the Mental Health Act). Decisions in Mental Health cases The decision in HL v UK has been interpreted by a section of legal luminaries as rendering illegal, treatment to a person, who is incapable of conveying assent to a course of treatment, in a psychiatric hospital; in the absence of formal legal powers. This conclusion seems to be apparent from Article 5 of the European Convention on Human Rights (ECHR); which regards the exercise of complete and effective control to be tantamount to depriving a person of his liberty (Robinson and Scott-Moncrieff). In 1997, the Court of Appeal held that detaining and admitting an autistic adult to a psychiatric hospital, on an informal basis was against the law. In addition, it was held to be illegal to admit a patient to the hospital, if the patient did not have the capability to make a decision regarding his admission to the psychiatric hospital. Moreover, the Court held that if a patient who lacked the capacity to take such decisions was admitted under the provisions of the Mental Health Act 1983, then such admission would be lawful. Moreover, such patients would have to be afforded all the benefits and protections specified in this Act (Dickenson 2001). Subsequently, the House of Lords overturned the decision of the Court of Appeal. This decision was apparently taken in order to take care of the objections raised by medical professionals and the Department of Health. The latter had contended that they would have to detain a very large number of persons; which could have major socio-economic implications, and they also admitted to a scarcity of resources to carry out such detentions (Dickenson 2001). The judgment of the House of Lords in the case of Bournewood was intended to resolve the problems associated with the patients whose competence was suspect, on account of their mental ailments. In general, the relatives of such patients and informal carers are allowed to take decisions on behalf of these patients. They are also allowed to decide on behalf of totally incompetent patients who are in a Persistent Vegetative State or PVS (Dickenson 2001). This situation gives rise to several questions regarding the autonomy of patients with mental incapability. Moreover, the consent of mentally incompetent adults about the treatment they are to be subjected to, need not be similar to the consent expressed by ordinary patients. The only requirement is that there should not be any resistance towards the treatment from these mentally impaired patients (Dickenson 2001). In a Local Authority v BS, four indispensable factors were taken into account. First, whether the patient’s mental incapacity had been demonstrated. Second, did a grave and legally resolvable issue that pertained to welfare, was in existence and if such an issue was present. Third, what the issue was; and fourth, the pros and cons of the issue, which would make it possible to choose the best possible option for the patient (A Local Authority v BS Also known as: S (Adult's Lack of Capacity: Carer and Residence)). In this case B, a 66 years old person, was suffering from arthritis and diabetes. The conclusion of the expert evidence was that S’s requirements would be better addressed by the local authority than what had been made available by B (A Local Authority v BS Also known as: S (Adult's Lack of Capacity: Carer and Residence)). Psychiatric treatment differs from other forms of medical treatment. In psychiatry, treatment to patients is in general, provided without seeking the consent of the patients. The mental health laws have established the procedures and other related rules that govern compulsory treatment practices. Of late, mental health services have undergone major changes and new types treatments have been developed, such as community – based services rather than clinical treatment (Szmukler 1 March 2004, P 16). All these changes in treatment methods require major reforms to the legislation that governs mental health. These changes have generated a number of questions regarding the assumptions and justifications that bring in legislative changes. England and Wales enacted the Mental Health Act 1959, which constituted a transition from the Lunacy Act 1890. This change brought about the establishment of welfare legislation (Szmukler 1 March 2004, P 16). The latter brought decisions regarding involuntary treatment to people with mental disorders, within the ambit of physicians. The enactment of the Mental Health Act 1983, engendered several limitations and restrictions on the discretion allowed to medical professionals, in such cases (Szmukler 1 March 2004, P 16). The government had issued a White Paper and a draft Mental Health Bill in the year 2002. It was anticipated that the discretion of medical professionals would be enhanced, whilst according maximum importance to the risks involved (Szmukler 1 March 2004, P 16). In R v Dr Collins and Ashworth Hospital Authority, the defendant Ian Brady relied on the right to end life by refusing to take food for prolonged period of time, by undertaking a hunger strike (R v Dr Collins and Ashworth Hospital Authority ex parte Brady). In R (Wilkinson), the court had to deal with the administration of compulsory medication, which was challenged by the patient on the grounds of breach of his human rights (R (Wilkinson) v Broadmoor Hospital Authority). In R v Mersey Care NHS Trust, the issue concerned a challenge, made on the basis of human rights, with regard to the seclusion policy of Ashworth Hospital (R (Munjaz) v Mersey Care NHS Trust). In order to justify the detention of an individual in a psychiatric unit under the provisions of Article 5(1)(e), three conditions have to be fulfilled. First, the individual should not be deprived of his liberty. However, this condition does not apply in cases of emergency or if the individual can be shown to be of unsound mind. As such, the mental disorder of such a patient has to be established by a medical examination before the competent national authority (Winterwerp v the Netherlands). Second, an individual must be detained in a place that is suitable for that purpose. However, such an individual must be of unsound mind as defined by Article 5(1)(e). Moreover, the place where the individual is detained must not be a prison or some such inappropriate place (AERTS v Belgium). However, in another case, it was held that Article 5(1)(e) is not concerned with the appropriate treatment or conditions for detainment, beyond those that have been enumerated above (Ashingdane v United Kingdom). Third, detention at a stricter establishment, on account of opposition from the medical staff unions; which served to deprive the patient of a more lenient environment, could not be deemed to be in breach of Article 5(1) (e). Moreover, such detention could not be construed to be arbitrary or for an ulterior purpose. The aforementioned article was in no manner breached by confining the patient to stricter surroundings (House of Lords 2005). Effects of Human Rights law on Mental Health decisions According to Article 6 of the Universal Declaration of Human Rights, International Human Rights Law provides individuals with a right that enables them to be recognised as persons before the law (Article 6, Universal Declaration of Human Rights; Article 16 of the International Covenant on Civil and Political Rights). This right provides several advantages to individuals. They can claim autonomy or self – determination, and take decisions regarding their life. They can make choices on the basis of their conscience. Persons with mental incapability or mental disorders may not be in a position to protect their own interests and autonomy (Article 5 of the Declaration on the Rights of Mentally Retarded Persons). Such persons are termed as incapacitated persons. They are subjected to legal guardianship under the supervision of the courts. The objective of this legal guardianship is to protect individuals with mental disorder from any threat or danger, which may arise due to their mental condition (Article 5 of the Declaration on the Rights of Mentally Retarded Persons). The International human rights law requires member states to adopt substantial measures to avoid improper guardianship arrangements within their jurisdictions (United Nations). The 2003 case of R (on the application of PS) v (1) Dr G and (2) Dr W has been a landmark case in the area of mental health. The judgment in this case has been of great importance for both patients with mental imparities and mental health professionals. This case deals with the human rights challenge, to the forced treatment of a patient, under section 58(3) (b) of the Mental Health Act 1983 (R (on the application of PS) v (1) Dr G and (2) Dr W). This treatment was administered, despite the fact that the patient had refused to consent to the treatment. The judgment in this case affirmed that compulsory treatment against the will of a patient, who was mentally incapable, was not in breach of the human rights provided by the ECHR. This case is known as the PS case (R (on the application of PS) v (1) Dr G and (2) Dr W). The PS case challenged the medical treatment of detained patients. It questioned the compatibility of such treatment with human rights under the Human Rights Act 1983. The treatment proposed in this case had been the administration of an antipsychotic medicine. It was to be administered orally to the patient (The Care Quality Commission 2008). If the patient resisted oral administration of the medicine, then the doctors would have had to administer it by means of an injection. The consultant of the patient and the doctors providing the second opinion had acknowledged that the patient in question possessed the required mental capacity to consent or reject the treatment to be provided to him (The Care Quality Commission 2008). The issue before the court was to determine whether the application of section 58 of the Mental Health Act 1983 to ignore the patient’s refusal to partake of the medication was justified. The patient, in this case, while conceding that the hospital had followed the stipulated procedure as laid down by Section 58 of the MHA; had nevertheless, administered the medication against his will, which was automatically unlawful and a clear violation of the rights provided by Articles 3 and 8 of the ECHR (The Care Quality Commission 2008). The court refused to accept his argument. It found that although the proposed treatment was seemingly, in breach of Articles 3 and 8 of the ECHR, the medical practitioners attending upon him had acted in a manner that had implemented the Mental Health Act provisions in compliance with the principles of the ECHR. However, such treatment must be in the best interests of the patients and should have been medically indispensable for the patient’s welfare. The court held that the imposition of the proposed treatment was justified as it was aimed to protect the health of the patient (The Care Quality Commission 2008). Health care decisions will always be private issues. These decisions deal with claims that are chiefly based on human rights. As such, the approach in the context of human rights towards medical law and medical profession would be a private approach. In these claims, there is no need to pursue the actions of others or the effects of such actions on others. The only issue to examine is whether the human rights of the patient have been adversely affected in any manner. The scope of medical law stands to be reduced to a considerable extent as a consequence (McLean 2006, P 10 ). According to the Mental Health Act, an individual with mental illness or disorder can be detained for compulsory treatment. The nature of the disorder or the degree of the disorder is the determining factor in such cases. In one particular case, it was held that it was sufficient to establish that the nature of the patient’s disorder required continued detention (R v Mental Health Review Tribunal for South Thames Region ex parte Smith). Therefore, if an individual relapses frequently in the community, in which he lives; then he is to be detained till such time as he is not treated completely. Thus, continued detention in psychiatric units is based on the prevalence of the mental disorder. Such disorder must unequivocally demonstrate symptoms of relapse. In Stanley Johnson v United Kingdom, the plaintiff was a suffering from a mental disorder. He was detained at Rampton hospital under a restriction order. His period of detention had exceeded what had initially been decided as the term of his detention (Stanley Johnson v United Kingdom). As such, there was a four year hiatus between his initial and final discharge. The delay in his discharge was occasioned by the absence of adequate hostel arrangements. Such prolonged detainment of patients, on the pretext of arranging suitable aftercare facilities can be challenged under the new Human Rights Act (Stanley Johnson v United Kingdom). In St George's Health Care NHS Trust v. S, R v. Collins and others ex parte S, a pregnant woman S was diagnosed with pre – eclampsia. The physicians attending upon her decided that she should be subjected to a Caesarean operation. S had her own qualms about undergoing this medical intervention. As such, she preferred to undergo a natural delivery (St George's Healthcare NHS Trust v S; R v Collins and others, ex parte S). The court ignored her wishes, despite the fact that she was of sound mind, and ruled in favour of the medical professionals. The court’s order was on the basis of the Mental Health Act 1983. Consequently, S was forcibly detained and a Caesarean section was performed upon her (Morris January 1999). Her appeal against this grave travesty of justice and illegal detention was accepted by the Appellate Court. This higher court, ruled that the lower court had decided on the basis of false and incomplete information. As a result, her right to autonomy had been violated and she had been detained illegally (Morris January 1999). The conclusion to be drawn is that the Mental Health Act cannot be invoked, in order to illegally detain a person and forcibly provide treatment for a physical condition. The lower court had deferred to the wishes of the medical professionals, to the detriment of the rights of the patient; which has proved to be a recurrent theme, the judiciary per se generally defers to the wishes of the physician in cases involving patients with impaired mental faculties, and this is at the cost of the rights of the patient. In Mr Leslie Burke v GMC, the line of reasoning adopted by the judiciary, in relation to what a doctor recommends, in respect of a patient; was that a physician was under no compulsion to accede to a patient’s request, regarding treatment (Mr Leslie Burke v GMC). Therefore, a doctor can ignore a patient’s request for treatment as well as his rights, as long as it is his considered opinion that his actions are in the best interests of the patient (General Medical Council 2008). In Re B (Adult, refusal of medical treatment), an adult woman in possession of all her mental faculties, requested the hospital authorities to discontinue the life support systems provided to her. Specifically, she requested a withdrawal of the ventilator being employed in her treatment (Re B (Adult, refusal of medical treatment)). The hospital authorities refused to comply with her request. Thereupon, she approached the court, which ruled that as she was mentally competent, she could decide when the treatment being provided to her could be discontinued. The court held that if a patient was of sound mind, then such a patient’s right to personal autonomy was to be respected, regardless of the outcome (Davis 2003. P. 375). In Re MB (Adult, medical treatment), the patient was recommended for a Caesarean section. However, her abject fear of the hypodermic syringe, bordering on the phobic, caused her to withdraw consent. The hospital authorities moved the court and procured a judicial declaration to perform this operation upon her (Re MB (Adult, medical treatment)). The court had issued this declaration after concluding that MB was temporarily incompetent to take a decision, on account of her panic stricken condition. MB appealed against this decision, but thereupon agreed to be anaesthetized, prior to being operated upon. The Court of Appeal was in agreement with the lower court’s inference (Re MB (Adult, medical treatment)). This decision served to reinforce the test of capacity in Re C, wherein it was held that a schizophrenic patient was entitled to refuse treatment, entailing the amputation of a limb. The basis for this ruling was that the patient had the necessary mental capacity to come to a decision (Re C (Adult, refusal of treatment)). This is an exceptional decision, because it is the proclivity of the courts to disregard the wishes of a mentally impaired person, in favour of what is recommended by the attending physician or psychiatrist. As such, a mental illness does not automatically deprive the patient of a right to decide about the course of treatment he is to undergo. Subsequent to a lumbar disc protrusion surgery, Chester was rendered partially paralysed. The attending surgeon, Dr. Afshar, had failed to inform her of the risk, which was estimated at less than 2%, involved in this surgical procedure. The House of Lords held that the surgeon was liable, despite the fact that his remissness to warn Chester had not directly caused the paralysis. Their Lordships held that the negligence was directly attributable to the surgeon’s failure to warn Chester (Chester v Afshar). They further expatiated on this issue and clarified that every surgeon owed his patient a duty to provide ample warning regarding the surgical process to be applied to the patient. A patient, per se, has to be given suitable warning, even if there is a slight risk of serious injury on account of the surgical procedure (Chester v Afshar). Conclusions As such, it can be surmised that the courts are deciding cases, by according importance to the doctor’s opinion. The wishes of the patient are being ignored by the judiciary, whenever the latter is of the opinion that such a course of action is warranted, in the best interests of the patient. In the Bournewood case, the House of Lords held unofficial detention powers could be employed for detaining persons with mental disabilities. In accordance with the provisions of the ECHR, due care should be exercised whilst taking decisions that result in the deprival of an individual’s liberty. This requirement safeguards the autonomy of patients afflicted with mental ailments. However, in the majority of the decided cases, the discretion of medical professionals is given greater prominence by the courts. On several occasions, the courts affirmed that treatment, which disregarded the wishes of the patient, was not in breach of the human rights, under the provisions of the ECHR. The courts opined that such forced treatment was justified, since it was intended to safeguard the health interests of the patient. The international human rights law mandates the implementation of extensive and procedural safeguards, in order to preclude inappropriate resort to and use of custodial arrangements. Thus, legislation, all over the world, promotes the interests of the patient. However, the courts have ignored the wishes and autonomy of patients, with mental ailments, under certain circumstances. On most occasions, the judiciary has favoured the medical profession. The reason for this tendency is that there is a genuine desire to advance the best interests of the patient. Notes 1. A Local Authority v BS Also known as: S (Adult's Lack of Capacity: Carer and Residence). [2003] 71 BMLR 188 2. AERTS v Belgium. (1998) 29 EHRR 50 3. "Article 5 of the Declaration on the Rights of Mentally Retarded Persons." 4. "Article 6, Universal Declaration of Human Rights; Article 16 of the International Covenant on Civil and Political Rights." 5. Ashingdane v United Kingdom. (1985) 7 EHRR 528, 543, para 44 6. Chester v Afshar . [2004] UKHL 41 Pt 2 7. Davis, Howard. Human rights and civil liberties . Willan Publishing. ISBN 1843920085, 2003. P. 375. 8. Dickenson, Donna. Decision-making competence in adults: a philosopher's viewpoint. 2001. http://apt.rcpsych.org/cgi/reprint/7/5/381.pdf (accessed May 11, 2009). 9. General Medical Council. Consent: patients and doctors making decisions together. 2008. http://www.gmc-uk.org/guidance/ethical_guidance/consent_guidance/common_law.asp (accessed May 11, 2009). 10. House of Lords. Opinions of the Lords of Appeal for Judgment in the Cause. March 17, 2005. http://www.parliament.the-stationery-office.com/pa/ld200405/ldjudgmt/jd050317/ash.pdf (accessed May 11, 2009). 11. McLean, Sheila. First do no harm: law, ethics and healthcare. Ashgate Publishing, Ltd., 2006, P 10 . 12. Morris, Anne. "Once upon a time in a hospital ... the cautionary tale of St George's Health Care NHS Trust v. S, R v. Collins and others ex parte S [1998] 3 All ER 673 ." Feminist Legal Studies, January 1999: Volume 7, Number 1, Pp 75 – 84. 13. Mr Leslie Burke v GMC. [2005] EWCA Civ 1003 14. R (Munjaz) v Mersey Care NHS Trust. [2006] 1 WLR 148 15. R (on the application of PS) v (1) Dr G and (2) Dr W. [2003] EWHC 2335 (Admin) 16. R (Wilkinson) v Broadmoor Hospital Authority. [2002] 1 WLR 419 (CA) 17. R v Dr Collins and Ashworth Hospital Authority ex parte Brady. [2000] 1 MHLR 17 18. R v Mental Health Review Tribunal for South Thames Region ex parte Smith. [1998] Times, 9 Dec 19. Re B (Adult, refusal of medical treatment). [2002] 2 All ER 449 20. Re C (Adult, refusal of treatment). [1994] 1 All ER 819 21. Re MB (Adult, medical treatment) . [1997] 38 BMLR 175 CA 22. Rights of People Detained Under the Mental Health Act. http://www.abouthumanrights.co.uk/human-rights-people-detained-under-mental-health-act.html (accessed May 11, 2009). 23. Robinson, Robert, and Lucy Scott-Moncrieff. Making Sense of Bournewood. http://www.scomo.com/pubn/Bournewood.pdf (accessed May 11, 2009). 24. St George's Healthcare NHS Trust v S; R v Collins and others, ex parte S . [1998] 3 All ER 673 25. Stanley Johnson v United Kingdom. [1997] EHRLR 105-8 26. Szmukler, George. "Mental health legislation in the era of community psychiatry ." Ethics in Psychiatry, 1 March 2004, P 16: Volume 3, Issue 3. 27. The Care Quality Commission. Guidance for clinicians and SOADs: the imposition of medical treatment in the absence of consent. October 2008. http://www.cqc.org.uk/_db/_documents/7%20Guidance%20on%20the%20imposition%20of%20treatment%20when%20consent%20refused%20(PS%20case).doc (accessed May 11, 2009). 28. United Nations. Progress of efforts to ensure the full recognition and enjoyment of the human rights of persons with disabilities - Report of the Secretary-General [A/58/181]. http://www.un.org/disabilities/default.asp?id=148 (accessed May 11, 2009). 29. Winterwerp v the Netherlands. [1979] 2 ehrr 387, 403, para 39, Read More