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Ovid: Oxford Handbook of Psychiatry

Editors: Semple, David; Smyth, Roger; Burns, Jonathan; Darjee, Rajan; McIntosh, Andrew Title: Oxford Handbook of Psychiatry, 1st Edition Copyright ©2005 Oxford University Press > Table of Contents > Chapter 19 – Legal and ethical issues Chapter 19 Legal and ethical issues P.798
Introduction To practise psychiatry one needs to have some knowledge of several areas of law which relate to people with mental disorders. Broadly this could all be called ‘forensic psychiatry’ (see definition on p. 624), but in this book areas of criminal law relevant to psychiatry are covered in Chapter 15 on forensic psychiatry, and other legal issues (which could broadly be labelled ‘civil matters’) are covered here. This chapter deals broadly with two areas:

  • Mental health legislation: the compulsory treatment of people with mental disorder.
  • Other civil matters: consent, confidentiality, and driving.

As mentioned in Chapter 15 on forensic psychiatry, law is parochial and dynamic. The practitioner needs to be aware of the current law in their jurisdiction. This chapter will focus on the UK and the Republic of Ireland. The same abbreviations for the four main jurisdictions will be used as in Chapter 15 (i.e. E&W, Scot, NI, and RoI). As this is written, we are in the middle of reform of mental health and/or incapacity legislation in all these jurisdictions (p. 624). P.799
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Mental health legislation—general principles and background Why do we have mental health legislation? There are three main reasons for the existence of legislation allowing and regulating the compulsory treatment of mental disorder:

  • Mental disorder may impair ability to make decisions about treatment.
  • Provision of safeguards and protection for vulnerable patients.
  • Prevention of harm to self and others.

The development of mental health legislation Mental health legislation in the UK and RoI has its origins in 18th-century vagrancy laws allowing the confinement of the ‘furiously mad and dangerous’ and in laws regulating private madhouses. The former primarily arose out of concerns about potential harm and the latter out of concerns regarding the interests of vulnerable patients. Impaired ability to make decisions about treatment has not featured explicitly in consideration of mental health legislation until recent years. Treatment of patients with mental illness (lunacy and insanity) and learning disability (idiocy, imbecility, feeble-mindedness) was largely institutional in asylums until the second half of the 20th Century. Laws developed to regulate the detention of patients and the scrutiny of their care. Voluntary treatment in hospital was not available until 1930. Current legislation in the UK has its origins in the Report of Lord Percy’s ‘Royal Commission on the Law relating to Mental Illness and Mental Deficiency’ (1957). This led to very similar legislation in E&W, Scot, and NI, which arose in the context of optimism about the treatment of mental disorder, emphasis on voluntary treatment where possible, and the beginning of treatment in the community. Concerns about patient’s rights led to updates of legislation in the 1980s leading to the current Acts in the UK. In the Rol, developments were similar to the UK until the mid 20th Century when the Mental Treatment Act 1945 was enacted. However, there has been little significant change in Irish mental health legislation until very recently. What’s in a Mental Health Act? A modern Mental Health Act should cover the following areas:

  • Definition of mental disorder: who are the individuals covered by the Act?
  • Criteria for compulsion: under what conditions can involuntary measures be used when treating these individuals?
  • Compulsory interventions: what can be done when individuals meet these criteria? This includes procedures for emergency detention, longer-term detention/compulsion, and for the giving of specific treatment.
  • Safeguards: Limits, scrutiny, and review of whether the individual should be subject to compulsion and of the compulsory measures authorised.
  • Bodies to monitor operation of Act: For example legal forum for appeal and review, and independent commission to monitor and scrutinize.

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Using mental health legislation When using mental health legislation the following points should be borne in mind:

  • Be aware of the current legislation in your jurisdiction.
  • Codes of practice, guidance, and/or notes are available that give practical guidance on the use of legislation.
  • Have a detailed knowledge of the parts of the legislation you need to use day to day, and particularly in emergency situations.
  • Know where to go for further information and advice (e.g. guidance material, senior colleagues, legal personnel, commission).
  • Be wary of mental health ‘lore’. Much misinformation about legislation is promulgated without reference to what is actually correct. For example, many believe that UK legislation does not permit the detention of someone who is drunk, even if they are also depressed or acutely psychotic.
  • The law cannot resolve clinical dilemmas. For example, if a detained patient takes an overdose, mental health legislation cannot be used to impose physical treatment. This does not mean that you can do nothing knowing that you are acting (or not acting) legally. In this situation common law may allow, and medical ethics may dictate, that physical treatment be imposed.
  • Although it is useful, and essential, to have access to the relevant statute, it is impossible to get an understanding of how the law works in practice through reading legislation alone. This develops through experience, training, consulting guidance material, and discussion with colleagues.

Reform of mental health legislation Mental health legislation is in the process of being renewed in all the jurisdictions under consideration in this chapter. Scot and the RoI have new Acts which are in the process of implementation. E&W have a draft bill which is controversial and has missed two Queen’s speeches; there is uncertainty as to the form and timing of a new Act. In NI, legislation is currently being reviewed. In this chapter the main provisions of the most recently passed legislation for each jurisdiction will be described. P.802
Mental health legislation—England and Wales (1) Introduction The Mental Health Act 1983 sets out relevant procedures for E&W. There has been a process of review of mental health legislation, culminating in a draft Bill in 20021. However, this has not been well received, mainly due to its overemphasis on public protection and underemphasis on the rights of individuals with mental disorder. Principles The Act itself does not set out any guiding principles, but some are set out in the Code of Practice: recognition of basic human rights under the European Convention of Human Rights (ECHR); respect for individuality without discrimination; taking needs fully into account, but recognising that, within available resources, it may not always be practicable to meet them in full; giving any necessary treatment or care in the least restrictive environment; promoting, self-determination and personal responsibility, consistent with patients’ needs and wishes; discharging patients from detention or other powers as soon as it is clear that their application is no longer justified. Definition of mental disorder ‘Mental disorder’ is defined under section 1(2) as meaning ‘mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind’. There are four recognised categories of mental disorder:

  • Mental illness which is not further defined.
  • Severe mental impairment defined as ‘a state of arrested or incomplete development of mind which includes severe impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned’.
  • Mental impairment defined as ‘a state of arrested or incomplete development of mind (not amounting to severe mental impairment) which includes significant impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned’.
  • Psychopathic disorder defined as ‘a persistent disorder or disability of mind (whether or not including significant impairment of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the person concerned’.

The following are excluded if they are the only ‘conditions’ present: promiscuity, other immoral conduct, sexual deviancy, dependence on alcohol or drugs. Other definitions Approved doctor Under section 12(2) the Secretary of State may approve a registered medical practitioner as having special experience in the diagnosis and treatment of mental disorder. This is done in practice P.803
through the regional health authority. Some sections require one of the recommendations from an approved doctor. Responsible medical officer (RMO) The registered medical practitioner in charge of the patient’s treatment, usually the consultant. Approved social worker (ASW) A social worker who has undergone specific training and assessment and is appointed for the purposes of the Act as having competence in dealing with individuals with mental disorder (section 114). Nearest relative Usually determined by who is first on the following list (section 26(1)): husband or wife, son or daughter, father or mother, brother or sister, grandparent, grandchild, uncle or aunt, nephew or niece. If two relatives are of equal standing then the elder prevails. If a patient lives with a relative, or has lived with a non-relative as a spouse for 6 months, then that person is the nearest relative. Mental Health Review Tribunal (MHRT) Legal forum to which a patient or a nearest relative can appeal against detention (p. 809). The MHRT has 3 members: a legally qualified chairperson, a medical practitioner, and a lay member. It must discharge a patient if the criteria for detention no longer apply. Mental Health Act Commission (MHAC) The body that monitors and regulates the operation of the Act (p. 805). Second Opinion Appointed Doctor (SOAD) An independent doctor appointed by the Secretary of State (in practice by the Mental Health Act Commission), who gives a second opinion regarding treatment which can be given without the patient’s consent under Section 57 or Section 58. Criteria for compulsory intervention The criteria for compulsory intervention are less stringent for emergency or shorter-term measures (i.e. sections 2, 4, 5) than for longer-term measures (i.e. section 3). The criteria for detention under section 3 are:

  • The person suffers from at least one of the four categories of mental disorder (the category must be specified) of a nature or degree which makes it appropriate for the person to receive medical treatment in hospital.
  • If the category is psychopathic disorder or mental impairment then such treatment should be likely to alleviate or prevent a deterioration in the condition.
  • It is necessary for the health or safety of the patient or for the protection of other persons that the person should receive such treatment and it cannot be provided unless he is detained.

For sections 2, 4, and 5 the category of mental disorder does not need to be specified and the nature or degree of the disorder should warrant detention for assessment (rather than treatment). References 1 See http://www.dh.gov.uk/PublicationsandStatistics/Publications/PublicationsLegislation/PublicationsLegislationArticle/fs/en?CONTENT_ID=4008466&chk=HBBEEq. P.804
Mental health legislation—England and Wales (2)1234 Compulsory measures The main procedures allowing compulsory detention in hospital are section 2 (admission for assessment), section 3 (admission for treatment), section 4 (emergency admission), and section 5 (2) (emergency detention of informal inpatient). Compulsory admission should usually be under section 2 or 3; section 4 should only be used rarely, in a genuine emergency where an approved doctor is not available soon enough. Emergency detention Section 4 allows the emergency detention of patients who have not yet been admitted to hospital (this includes those in accident and emergency, outpatients, and day hospitals); section 5(2) is similar but applies to patients who have already been admitted to hospital (whether in a psychiatric or non-psychiatric ward). For section 4 the application is made by the nearest relative or ASW and requires a recommendation from one registered medical practitioner. For section 5(2) the medical recommendation must be by the RMO or his nominated deputy; this will usually be the duty SHO, but the nomination should be made before the relevant period of duty. Involvement of the nearest relative or ASW is not required for section 5(2). The duration of detention is 72 hours, during which an assessment must be undertaken to determine if detention under section 2 or 3 is warranted. Section 5(4) allows nurses (of the prescribed class) to hold an informal inpatient in hospital for up to 6 hours to allow for a medical assessment. Admission for assessment An application for detention under section 2 may be made by the nearest relative or ASW and requires two medical recommendations, one of which must be by an approved doctor. Duration of detention is 28 days. Following the section 2 an application may be made for detention under section 3. Alternatively the patient may remain in hospital informally or be discharged. Admission for treatment An application for detention under section 3 is made in a similar manner to section 2. Duration of detention is initially 6 months, which may be renewed for a further 6 months, and then 12 monthly thereafter. Guardianship Section 7 allows for a patient to be placed on guardianship if they suffer from a specified mental disorder, are over 16 years old, and it is necessary for their welfare or the protection of others. The application procedure and renewal is similar to section 3. The guardian (the local authority or someone acceptable to them) may specify where the person should reside. Treatment of patients subject to compulsion

  • A patient detained in hospital (except under emergency provisions) may be given medication for mental disorder for up to 3 months, whether they consent and/or have capacity or not.
  • Under section 58, medication for over 3 months or ECT requires the patient’s consent (the RMO completes form 38) or, if the person P.805
    refuses or is incapable of consenting, agreement of a SOAD (who issues a form 39).
  • Under section 62, treatment that is urgently necessary may be authorized by the RMO without consent or a second opinion; this is usually used for giving ECT to severely ill and at-risk patients while awaiting a second opinion.
  • Under section 57, the patient’s consent and agreement of a SOAD are required if any patient (whether detained or informal) is to receive neurosurgery for mental disorder or surgical implantation of hormones to reduce male sex drive.

Leave, absconding, and transfer Procedures allow for patients to be granted leave of absence with the authorisation of the RMO (section 17); for patients to be taken into custody and returned to hospital if they abscond (section 18); and for patients to be transferred between hospitals (section 19). Review Patients subject to emergency detention have no right of appeal. Patients detained under section 2 or 3, or subject to guardianship under section 7, may appeal to a MHRT. The nearest relative may also appeal against section 3 or 7. One appeal is allowed during each period of compulsion. The RMO may terminate a patient’s detention at any point. Hospital managers and nearest relative (if not opposed by RMO) may also discharge a patient. Mental Health Act Commission The MHAC monitors the use of the MHA and the care of patients subject to it. It also investigates certain complaints, appoints second opinion doctors, and maintains the Code of Practice. It produces a biennial report. References 1 Bartlett, P. and Sandland, R. (2000) Mental Health Law—policy and practice. London: Blackstone Press Ltd. 2 Cope, R. (1995) Mental Health Legislation. In Seminars in Practical Forensic Psychiatry (eds. Chiswick D and Cope R). London: Gaskell. 3 Department of Health and Welsh Office (1999) Mental Health Act 1983 Code of Practice (3rd edition). London: The Stationery Office. 4 Hogett, B. (1996) Mental Health Law. London: Sweet and Maxwell. P.806
Mental health legislation—England and Wales (3) Aftercare following detention Care programme approach and section 117 aftercare Section 117 places a statutory duty on health and social services to provide aftercare for patients who have been discharged from detention under sections 3, 37, 47, or 48 (the last 3 are sections used for mentally disordered offenders, see Chapter 15). The framework within which this aftercare is planned and implemented is the Care Programme Approach (CPA) which was introduced in 1991, but has been significantly modified recently. The CPA should be used for all patients where appropriate, even if they have not been detained in hospital. For patients in hospital the CPA process should start well before discharge. The key aspects of CPA are:

  • A coordinated assessment of the patient’s health and social care needs.
  • The development of a care plan addressing the identified needs, which will be agreed by the patient and any carers who are involved.
  • An identified care coordinator who will be the main contact and will monitor the care plan.
  • Regular reviews of the care plan with changes as necessary.

The CPA should be integrated with care management (the process of care coordination used by social services). There are two levels of CPA: standard and enhanced:

  • Standard CPA may be appropriate for patients who: require the support or intervention of one agency or discipline; require only low-key support from more than one agency or discipline; are more able to self-manage their mental health problems; have an active informal support network; pose little danger to themselves or others; are more likely to maintain appropriate contact with services.
  • Enhanced CPA may be appropriate for patients who: have multiple care needs requiring inter-agency coordination; are only willing to cooperate with one professional or agency but have multiple care needs; may be in contact with a number of agencies (including the criminal justice system); are likely to require more frequent and intensive interventions; are more likely to have mental health problems coexisting with other problems such as substance misuse; are more likely to be at risk of harming themselves or others; are more likely to disengage with services.

Supervision registers, which identify patients particularly at risk to themselves or others, have been abolished with the introduction of enhanced CPA. A patient may not be compelled to accept or participate in any aspect of aftercare under section 117. When the aftercare services are no longer required the section 117 duty ends. Supervised discharge The Mental Health (Patients in the Community) Act 1995 introduced ‘aftercare under supervision’ (also called supervised discharge), inserted as P.807
sections 25A–25J of the 1983 Act. Essentially, this may be used to add a degree of compulsion to section 117 aftercare. The grounds for an application are:

  • The patient has at least one of the four forms of mental disorder.
  • There would be a substantial risk of serious harm to the health or safety of the patient, or the safety of other persons, or of the patient being seriously exploited, if they were not to receive the aftercare services provided.
  • Being subject to supervised discharge is likely to help to secure that the patient does actually receive the aftercare services

Requirements which can be imposed on the patient include:

  • That the patient lives at a specified place.
  • That the patient attends at specified places and times for the purpose of medical treatment (but treatment cannot be given without consent), occupation, education, and/or training.
  • That the following people may be given access to the patient at their place of residence: the supervisor who is named in the application, any doctor, any ASW, any other person authorised by the supervisor.

An application is made by the RMO to the Health Authority supported by recommendations from an ASW and the potential community RMO (CRMO). Consultation with a number of people involved with the patient is required before applying for, varying, or renewing the order. The order lasts for 6 months commencing when the patient ceases to be liable to detention. Renewal, appeal to MHRT, and discharge are similar to sections 3 and 7. Procedures allow for detention in hospital where the person meets criteria for detention (p. 804), but not solely on the basis of a breach of the conditions of the order. P.808
Mental health legislation—Scotland (1) Introduction The Mental Health (Care and Treatment) (Scotland) Act 20031 replaces the Mental Health (Scotland) Act 19842. The main provisions of the 2003 Act will be implemented in 2005, so until then the 1984 Act will operate. As the 2003 Act is in the process of implementation there is no practical guidance or experience available at the time of writing, although a Code of Practice should be available in 2004. Principles The new Act emphasises the protection of the rights of mentally disordered patients and shifts the emphasis from detention in hospital to treatment for mental disorder, whether in hospital or the community. A number of principles to guide the use of the Act are set out under sections 1&2: taking into account the patient’s past and present wishes; taking into account the views of the named person, carer, guardian, or welfare attorney; allowing the patient to participate as fully as possible; providing maximum benefit to the patient; not discriminating against the patient; providing appropriate services; taking into account the needs and circumstances of carers; using the least restrictive measures possible; and, if the patient is a child, best securing their welfare. Definition of mental disorder Section 328 defines ‘mental disorder’ as ‘any mental illness, personality disorder or learning disability’ however caused or manifest. None of these terms are further defined. The following are excluded if they are the only ‘conditions’ present: sexual orientation; sexual deviancy; transsexualism; transvestism; dependence on, or use of, alcohol or drugs; behaviour that causes or is likely to cause, harassment, alarm, or distress to any other person; acting as no prudent person would act. Other definitions Approved medical practitioner (AMP) Under section 22 these are doctors with the necessary qualifications and experience, who have undertaken training, and are approved by a Health Board as having special experience in the diagnosis and treatment of mental disorder. Responsible medical officer (RMO) The registered medical practitioner in charge of the patient’s treatment, usually the consultant. Mental health officer (MHO) A social worker, with the necessary registration, experience, education, training, and competence in dealing with individuals with mental disorder; appointed under section 32 of the Act. Designated medical practitioner (DMP) Medical practitioners appointed by the MWC to give second opinions regarding the medical treatment of patients subject to compulsion. Care plan A document that sets out the care, treatment, and services that it is proposed that a patient subject to compulsion should receive. It will include compulsory and non-compulsory measures. Named person Someone nominated by a person under section 250 to support them and protect their interests. Entitled to be informed P.809
about certain decisions and to act on the patient’s behalf in certain circumstances. If one has not been nominated then it is the primary carer or nearest relative. For a child under 16 it is a parent. Advance statement May be made under sections 275 and 276. When making this the person must have capacity and must make it in writing with a witness. It may be withdrawn at any point if the person has capacity. When carrying out duties under the Act must ‘have regard to the wishes specified in the advance statement’. If act against these wishes this must be recorded in writing with reasons, and a copy of this record must be sent to patient, named person, welfare attorney, guardian, MWC. Advocacy Under section 259 every person with mental disorder has right of access to independent advocacy, and it is the duty of local authority and health board to ensure availability of this. Mental Health Tribunal (MHT) The legal forum (replacing the Sheriff Court) for making decisions regarding applications for certain compulsory orders, proposals to amend compulsory orders, and appeals against compulsory orders. Three members: legal, medical, and general. Mental Welfare Commission (MWC) Similar to the MHAC for E&W but has wider remit and powers (p. 811). Criteria for compulsory intervention Less stringent for emergency and shorter-term measures (i.e. parts 5 and 6) than they are for longer-term measures (i.e. part 7). The criteria for compulsion under a part 7 compulsory treatment order (CTO) are:

  • The person has a mental disorder.
  • Medical treatment is available which would be likely to prevent that disorder worsening or be likely to alleviate the symptoms or effects of the disorder.
  • There would be a significant risk to the patient’s health, safety, or welfare, or to the safety of another person if such treatment were not provided.
  • The patient’s ability to make decisions about the provision of medical treatment is significantly impaired because of their mental disorder.
  • The making of the order is necessary.

For short-term (part 6) or emergency (part 5) detention it only has to be likely that the criteria apply, and the second criterion above regarding treatability does not need to be considered. References 1 Scottish Executive (2003) An introduction to the Mental Health (Care and Treatment) (Scotland) Act 2003. Edinburgh: Scottish Executive. (For information about the implementation of the 2003 Act see http://www.scotland.gov.uk/health/mentalhealthlaw) 2 This is not described here—for information on the 1984 Act see the Addendum for Scotland by Chiswick in: Cope R (1995) Mental Health Legislation. In Seminars in Practical Forensic Psychiatry (eds. Chiswick D and Cope R). London: Gaskell. P.810
Mental health legislation—Scotland (2) Compulsory measures The main compulsory orders are set out under part 5 (emergency detention), part 6 (short-term detention), and part 7 (compulsory treatment order). Emergency detention Under part 5 any fully registered medical practitioner may grant a certificate authorising the detention of a person in hospital for 72 hours. Consent from a MHO is necessary (unless this is impracticable), the situation must be urgent and such that making arrangements for short-term detention under part 6 would involve ‘undesirable delay’. There are not separate procedures for inpatients and outpatients. As soon as is practicable the patient should be assessed by an AMP to determine if detention under part 6 should be applied or if the patient should be dealt with informally. Nurses’ holding powers (section 299) may be used for up to 2 hours and continue for 1 hour after the doctor has arrived. Short-term detention Under part 6 any AMP may grant a certificate authorising the detention of a person in hospital for 28 days. Consent from a MHO is necessary in all cases. At the end of the order the patient may be discharged, remain as an informal patient, or may be placed on a CTO. Compulsory treatment order (CTO) Under part 7 an application may be made to a MHT for a patient to be made subject to a CTO authorising compulsory treatment in hospital or in the community for 6 months. The application is made by a MHO and has three components: two medical reports (one by an AMP and the other by the patient’s GP or another AMP), a report prepared by the MHO, and a proposed care plan (prepared by the MHO in consultation with the RMO and others who will be involved in the care and treatment of the patient). The MHT must be satisfied that the criteria for a CTO (see above) are met; if there are issues that require clarification the MHT may grant an interim compulsory treatment order for 28 days instead. A CTO in the community may make requirements as to residence, attendance for treatment and other services, access of staff to the patient’s residence, and acceptance of medication for mental disorder (see below). A CTO may be renewed for 6 months, then annually thereafter, without further application to a MHT unless some variation to the order is proposed. If a patient on a community-based CTO refuses medication then they may be taken to hospital and detained there for up to 6 hours to receive this. If the patient is non-compliant with other aspects of the order, then detention in hospital for up to 72 hours can be authorised by the RMO; this may be extended by a further 28 days with the approval of the RMO and MHO to allow an assessment as to whether an application should be made for the CTO to be varied. Treatment of patients subject to compulsion (part 16)

  • A patient subject to compulsion (except under emergency provisions) may be given medication for mental disorder for up to 2 months, P.811
    whether they consent and/or have capacity or not. Patients under compulsion in the community cannot be given medication using physical force.
  • Medication for over 2 months requires the patient’s consent or, if the person refuses or is incapable of consenting, authorisation by a DMP.
  • ECT may only be given if a patient can and does consent, or if incapable of consenting with the authorisation of a DMP. ECT cannot be given, even in an emergency to a patient with capacity who refuses.
  • Treatment that is urgently necessary may be authorised by the RMO without consent or a second opinion; this may be used for giving ECT to severely ill and at-risk patients lacking capacity while awaiting a second opinion and for giving medication to acutely disturbed patients on emergency detention.
  • To receive neurosurgery for mental disorder there must be an independent opinion from a DMP that the treatment will be beneficial, two opinions from lay people appointed by the MWC that the person has capacity and consents, or if they do not have capacity, that they do not object. If the person has incapacity but is not objecting, the treatment must be authorised by the Court of Session.

Leave, absconding, and transfer Procedures allow for ‘suspension of detention’ of patients detained in hospital so that they may leave hospital; the taking into custody and return of patients who abscond either from hospital or the residence specified in a community based CTO; and for patients to be transferred to other hospitals. Review A patient or their named person may appeal to the MHT against being subject to a CTO or short-term detention (but not emergency detention), against transfer to another hospital, and against being held in conditions of excessive security (from May 2006). This may happen once during each renewed period of compulsion for CTOs. An RMO must refer a case to the MHT if a variation is proposed in an order (e.g. from a community-based to hospital-based order). The MWC may also refer cases to the MHT. If the MHT has not reviewed a case for 2 years then it must do so without a specific referral being made. The MHT must cancel an order if the criteria for compulsion are no longer met. The RMO and MWC also have the power to cancel an order at any point if the criteria for compulsion are no longer met. Mental Welfare Commission The MWC has a statutory duty to protect individuals with mental disorder whether they are liable to detention or not. It also has the power to discharge patients subject to compulsion. It has a responsibility to visit and inspect services and the power to conduct enquiries into deficiencies in care. It has new duties to monitor the operation of the Act and promote best practice. P.812
Mental health legislation—Northern Ireland (1) Introduction The Mental Health (Northern Ireland) Order 1986 sets out relevant procedures. There is currently a wide ranging review of mental health issues including a review of legislation (see http://www.rmhldni.gov.uk). Definition of mental disorder Article 3 defines ‘mental disorder’ as meaning ‘mental illness, mental handicap and any other disorder or disability of mind’. There are further definitions of types of mental disorder:

  • ‘Mental illness’—‘a state of mind which affects a person’s thinking, perceiving, emotion or judgement to the extent that he requires care or medical treatment in his own interests or the interests of other persons’.
  • ‘Mental handicap’—‘a state of arrested or incomplete development of mind which includes significant impairment of intelligence and social functioning’.
  • ‘Severe mental handicap’—‘a state of arrested or incomplete development of mind which includes severe impairment of intelligence and social functioning’.
  • Severe mental impairment defined as ‘a state of arrested or incomplete development of mind which includes severe impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned’.

The following are excluded if they are the only ‘conditions’ present: personality disorder, promiscuity or other immoral conduct, sexual deviancy, or dependence on alcohol or drugs. Other definitions Mental Health Review Tribunal for Northern Ireland (MHRTNI) Legal forum to which a patient or a nearest relative can appeal against detention (p. 815). The MHRT has 3 members: a legally qualified chairperson, a medical practitioner, and a lay member. It must discharge a patient if the criteria for detention no longer apply. Mental Health Commission for Northern Ireland (MHCNI) Like MWC in Scot has broader remit than the MHAC in E&W (p. 815). Appointed doctor The MHCNI appoints medical practitioners for the purposes of Part II (compulsory admission to hospital and guardianship). These doctors are analogous to approved doctors in E&W. Doctors may also be appointed for the purposes of Part IV (consent to treatment). The term ‘appointed doctor’ on these pages is used to refer to Part II. Responsible medical officer (RMO) The registered medical practitioner in charge of the patient’s treatment, usually the consultant. Approved social worker (ASW) A social worker who has undergone specific training and assessment and is appointed for the purposes of the Order as having competence in dealing with individuals with mental disorder. P.813
Nearest relative The person caring for the patient who is first on the following list (article 32): spouse, child, parent, brother or sister, grandparent, grandchild, uncle or aunt, nephew or niece. If there was no carer, then the first person on the list is the nearest relative. If two relatives are of equal standing then the elder prevails. Criteria for compulsory intervention The criteria for compulsory intervention are less stringent for emergency and shorter-term measures (i.e. articles 4 and 7(2)) than they are for longer-term measures (i.e. article 12). The criteria for compulsion under article 12 are:

  • The patient is suffering from mental illness or severe mental impairment of a nature or degree which warrants his detention in hospital for medical treatment.
  • Failure to so detain the patient would create a substantial likelihood of serious physical harm to himself or to other persons.
  • Consideration has been given to whether other methods of dealing with the patient are available and to why they are not appropriate.

For article 4 the type of mental disorder does not need to be specified, and for article 7(1) it must appear that the article 4 criteria are met. P.814
Mental health legislation—Northern Ireland (2) Compulsory measures Article 4 allows detention in hospital for assessment which may be followed by detention for treatment under article 12. Article 7(2) allows for the detention of a patient already in hospital. Admission for assessment An application for detention under article 4 may be made by the nearest relative or ASW and requires one medical recommendation. This should be by the patient’s GP or a doctor who knows the patient, if this is practicable, and should not, except in urgent cases, be by a doctor on the staff of the admitting hospital. Immediately on admission to hospital the patient must be examined by the RMO, an appointed doctor, or another doctor, who must submit a report to the responsible authority. They may then be detained for 7 days from the point of admission (this is limited to 2 days where the examination is not by the RMO or an appointed doctor, during which the RMO should examine the patient). Detention may be extended by a further 7 days on one occasion following a further report from the RMO. Following detention under article 4 a patient may be detained under article 12, remain informally, or be discharged. Assessment of patient already in hospital Under article 7(2), where a person is a voluntary inpatient, if it appears to a doctor on the staff of the hospital that an application for assessment ought to be made, then a report may be furnished to the responsible authority, allowing detention for 48 hours. This may be followed by detention under article 4. Detention for treatment Where a patient has been detained under article 4, they may be further detained for 6 months under article 12. This requires a recommendation from an appointed doctor (not the doctor who made the assessment recommendation). This may be renewed for a further 6 months and annually thereafter. Guardianship Article 18 allows for guardianship. The application is made by the nearest relative or ASW, and there must be two medical recommendations and an ASW recommendation. The patient must be suffering from mental illness or mental handicap, and guardianship should be necessary in the interest of the patient’s welfare. Renewal is as for article 12. Nurses’ holding powers Article 7(3) allows nurses (of the prescribed class) to detain an inpatient in hospital for up to 6 hours to allow for a medical assessment regarding detention. Detention under article 7(3) ends when the doctor arrives. Treatment of patients subject to compulsion Articles 62–69 set out very similar provisions regarding consent to treatment as set out for E&W by the 1983 Act (p. 804). Leave, absconding, and transfer Procedures allow for patients to be granted leave of absence with the authorisation of the RMO (article 15); for patients to be taken into custody and returned to hospital if they abscond (article 29); and for patients to be transferred between hospitals (article 28). P.815
Review MHRTNI operates in a very similar way to E&W, but must review a detained patient if they have not been reviewed for 2 years. After reviewing a case the MHCNI may refer a patient to the MHRTNI or may recommend that the patient be discharged. The RMO may discharge a patient at any point. Nearest relative may also discharge a patient if not opposed by RMO. Mental Health Commission for Northern Ireland The functions of the MHCNI are very similar to those of the MWC in Scot: the duty to protect individuals with mental disorder whether they are liable to detention or not; the power to recommend discharge of patients subject to compulsion; the responsibility to visit and inspect services; and the power to conduct enquiries into deficiencies in care. P.816
Mental health legislation—Republic of Ireland (1) Introduction There is new legislation, the Mental Health Act 2001. This has not been fully implemented yet, but in effect replaces the Mental Treatment Act 1945 and various modifying Acts passed in 1953, 1961, and 1981. As the 2001 Act is in the process of implementation there is no practical guidance or experience available at the point of writing, although a Code of Practice will be available1. Principles Section 4 sets out some principles to be considered in operating the Act. The best interests of the person should be the principle consideration with due regard being given to the interests of others who may be at risk of serious harm; the person should be notified of proposals and should be allowed to make representations regarding these which should be given due consideration; any decision should give due regard to the right of a person to dignity, bodily integrity, privacy, and autonomy. Definition of mental disorder and criteria for compulsion Section 3 sets out the definition of mental disorder, which also includes the criteria for compulsory detention. ‘Mental disorder’ is defined as ‘mental illness, severe dementia, or significant intellectual impairment where —

  • because of the illness, disability or dementia, there is a serious likelihood of the person concerned causing immediate and serious harm to himself or herself or to other persons, or
    • because of the severity of the illness, disability or dementia, the judgment of the person concerned is so impaired that failure to admit the person to an approved centre would be likely to lead to a serious deterioration in his or her condition or would prevent the administration of appropriate treatment that could be given only by such admission, and
    • the reception, detention and treatment of the person concerned in an approved centre would be likely to benefit or alleviate the condition of that person to a material extent.’
  • ‘Mental illness’ means a state of mind of a person which affects the person’s thinking, perceiving, emotion, or judgement and which seriously impairs the mental function of the person to the extent that he or she requires care or medical treatment in his or her own interest or in the interest of other persons.
  • ‘Severe dementia’ means a deterioration of the brain of a person which significantly impairs the intellectual function of the person thereby affecting thought, comprehension, and memory and which includes severe psychiatric or behavioural symptoms such as physical aggression.
  • ‘Significant intellectual disability’ means a state of arrested or incomplete development of mind of a person which includes significant impairment of intelligence and social functioning and abnormally aggressive or seriously irresponsible conduct on the part of the person. P.817
    Under section 8 the following are excluded if they are the only conditions present: personality disorder, being ‘socially deviant’, and being addicted to drugs or intoxicants.

Other definitions Approved centre Hospitals or other inpatient facilities for the treatment of people suffering from mental disorder. Must be registered with the MHC. Review tribunal The legal forum which reviews the making of every admission and renewal order. Has three members: a legally qualified chairperson, a consultant psychiatrist, and another member. Mental Health Commission (MHC) The body responsible for monitoring the standards of mental health services and protecting detained patients. Has a more direct role in the latter than similar bodies in the UK (see below). Inspector of Mental Health Services Consultant psychiatrist appointed by MHC to visit and inspect approved centres and to review mental health services. Will also review individual cases when visiting centres. Mental health commission The MHC was established in April 2002. Its main purpose is to promote, encourage, and foster the establishment and maintenance of high standards and good practices in the delivery of mental health services, and to protect the interests of detained patients. It is notified of every episode of detention and renewal, appoints tribunals, maintains a panel of consultants to undertake independent examinations, appoints an Inspector of Mental Health Services, maintains a register of approved centres, makes regulations as to the use of seclusion and restraint, and prepares codes of practice and other documents. References 1 For further information see: http://www.irishstatutebook.ie/ZZA25Y2001.html or http://www.oasis.gov.ie/health/mental_health/mental_health_act_2001.html P.818
Mental health legislation—Republic of Ireland (2) Compulsory measures Application for involuntary admission (section 9) An application for admission may be made under section 9 by a spouse or relative, an authorised officer (of the health board), a Garda, or any other person (with certain exclusions applying). The applicant must have seen the person within the last 48 hours. Medical assessment (section 10) Within 24 hours of the application being made a medical practitioner (who does not work at the approved centre where the person may be admitted) should examine the person. The doctor should inform the person about the purpose of the examination, unless this would be detrimental to the person. If the doctor considers the person to be mentally disordered then a recommendation may be made allowing involuntarily admission to an approved centre. This remains in force for 7 days. Power of the Garda to detain and apply for involuntary admission (section 12) The Garda make take a person into custody if they have reasonable grounds to believe that the person is mentally disordered and because of this there is a serious likelihood of the person harming themselves or others. They may forcibly enter premises if necessary. The Garda would then follow the usual application for involuntary admission procedure (section 9). If this application is granted the Garda must take the person to the approved centre. Removal to an approved centre (section 13) The applicant is responsible for getting the person to the approved centre. If not possible then the doctor making the recommendation may request that staff from the centre do this. The Garda may be asked for assistance. Admission to approved centre (sections 14 and 15) When the person is admitted to the approved centre a consultant psychiatrist must examine them (section 14). They may be held for 24 hours to allow this examination. If this psychiatrist is satisfied that the person is suffering from mental disorder then an ‘admission order’ is made. Under section 15 an admission order authorises the detention and treatment of the patient in the centre for 21 days. This may be renewed (as a ‘renewal order’) for 3 months initially, then 6 months, and then annually thereafter. The consultant responsible for the patient must make the renewal following an examination in the week before making the renewal order. When an order (admission or renewal) is made the consultant must send a copy to the MHC and a written notice to the patient (section 16). Voluntary patients wishing to leave an approved centre Previously a voluntary patient had to give 3 days’ notice of intention to leave. Under section 23 a voluntary patient may leave hospital at any point unless a consultant psychiatrist or doctor or nurse on the staff considers that they suffer from mental disorder. If this is the case they may be P.819
detained for up to 24 hours. During this period the responsible consultant must either discharge the patient or arrange an examination by another consultant. If this consultant is of the opinion that the patient is mentally disordered then they issue a certificate and the patient is detained as they would be under an admission order (section 14). Treatment of patients subject to compulsion (Part 4) The consent of a patient to treatment is required except where the consultant psychiatrist considers that the treatment is necessary to safeguard the life of the patient, to restore his or her health, to alleviate his or her condition, or to relieve his or her suffering, and the patient is incapable of giving such consent because of mental disorder.

  • Neurosurgery for mental disorder may not be performed unless the patient consents and it is authorised by a tribunal.
  • ECT may not be given unless the patient gives consent, or where the patient is unable or unwilling to give consent, the therapy is authorised by the responsible consultant psychiatrist and another consultant psychiatrist.
  • Medication for the amelioration of the mental disorder for more than 3 months cannot be given unless the patient consents or, where the patient is unable or unwilling to give consent, the continued medication is authorised by the consultant psychiatrist responsible for the patient and by another consultant psychiatrist. This must be renewed every 3 months.

Review When the MHC receives a copy of an order it must refer the case to a tribunal, assign a legal representative to the patient if they do not have one, and direct that a member of the panel of consultant psychiatrists appointed by the MHC reviews the case (section 17). Within 21 days of the making of the order the tribunal must review the detention. The tribunal may affirm or revoke the order depending on whether the criteria for detention are met (section 18). An appeal against a tribunal’s decision may be made to the Circuit Court (section 19). Leave, absconding, and transfers Procedures allow for patients to be allowed to be absent from the approved centre with the authorisation of the consultant responsible for their care (section 26); for patients to be taken into custody and returned to an approved centre if they abscond (section 27); and for patients to be transferred to other approved centres and hospitals (sections 20, 21, and 22). P.820
Consent to treatment Forms of consent Treatment of a patient must be with their consent (or in Scotland with the consent of a proxy). To proceed without consent is an assault. For consent to be valid it must be informed, (i.e. the patient has fully understood the details and implications of what is proposed). Consent may be implied (i.e. the patient does not object to and cooperates with the procedure) or may be express (i.e. oral or written permission is explicitly asked for and recorded, often as a detailed consent form). Generally, express consent is obtained for non-trivial or invasive procedures, and for some interventions is mandatory. Reviewing consent Even if there is a signed consent form, always review the patient’s decision close to the time of treatment, particularly when:

  • Significant time has elapsed between obtaining consent and the start of treatment.
  • There have been material changes in the patient’s condition or in any aspects of the proposed treatment plan which might invalidate the patient’s existing consent.
  • New, potentially relevant information has become available (e.g. about the risks of the treatment or about other treatment options).

Points to note

  • Always respect the patient’s autonomy—they have a right to decide whether or not to undergo any medical intervention even where a refusal may result in harm to themselves or in their own death.
  • Patients must be given sufficient information, in a way that they can understand, to enable them to exercise their right to make informed decisions about their care.
  • This right is protected in law, and you are expected to be aware of the legal principles set by relevant case law in this area (if in doubt, consult your medical defence union or other professional body e.g. BMA, GMC—see ‘Useful addresses’ p. 919)
  • Effective communication is the key to enabling patients to make informed decisions. Take appropriate steps to find out what patients want to know and ought to know about their condition and its treatment. This will strengthen the quality of the doctor/patient relationship and lead to a more satisfactory collaborative working relationship.
  • Always document any discussions, the decision(s) taken, and the form of consent given, in the medical records.

Advance statements Sometimes, in cases where a patient has a progressive disease, although they currently lack capacity (p. 822) to consent or refuse treatment, they may have previously indicated their preferences in an advance statement P.821
(‘advance directives’ or ‘living wills’). These wishes should be given due regard provided:

  • The decision in the advance statement is clearly applicable to the present circumstances.
  • There is no reason to believe that the patient has changed his/her mind.

If you act against an advance statement, then you should be able to justify this. Where such a statement is not available, the patient’s known wishes should be taken into account using the principles outlined in ‘Best interests’ (p. 823). Emergencies In emergency situations, it may not be possible to obtain consent (e.g. in an unconscious RTA victim requiring drainage of an extradural haematoma). Under common law (p. 822) ‘necessity’ provides a defence against a potential criminal charge that you have assaulted a patient by giving non-consentual treatment. A doctor may therefore give emergency treatment to preserve life and prevent significant deterioration in health. However, any valid advance refusal which you know about, or is drawn to your attention, should be considered. It is also good practice to inform the patient what has been done, and why, as soon as they are sufficiently recovered to understand. P.822
Treatment without consent The issue of treating patients without consent (p. 12) arises frequently in a psychiatric context. In general, the principles and scope of compulsory treatment for mental disorder are covered in mental health legislation (pp. 800, 801, 802, 803, 804, 805, 806, 807, 808, 809, 810, 811, 812, 813, 814, 815, 816, 817, 818, 819). However, in certain circumstances in all fields of medicine, situations may arise where decisions must be made regarding issues of acting against the patient’s wishes, treatment without consent, and capacity. Often a psychiatrist’s opinion will be sought—particularly in a liaison setting—because, by the nature of their work, most psychiatrists will have greater knowledge of, and familiarity with, legal issues than their medical counterparts. Often a patient’s reasons for withholding consent may be thought to be due to a (possibly undiagnosed) mental disorder. Where this is the case, other professionals may not feel they have the clinical skills to make this diagnosis. When making these difficult decisions, several key principles should be understood: Common law is the law not derived from statutes (Acts of Parliament). It mainly comprises rulings of judges in cases where the existing law is not sufficiently comprehensive—‘test cases’. Common law differs between various jurisdictions. Emergency treatment As noted on p. 821, in common law ‘necessity’ may provide a doctor with a defence against assault where non-consensual treatment is given. There may be situations (e.g. the use of sedation in a patient with acute behavioural disturbance [p. 896] where there is a suspected physical or psychiatric cause) when the doctor has to act against a patient’s wishes, in order to adequately carry out their duty of care (see below). Treatment in these situations is given under common law even if the patient fulfils the criteria for detention under emergency mental health legislation (p. 821). Capacity is a legal concept meaning the ability to enter into valid contracts. It is gained on adulthood and is presumed to be present throughout the lifespan unless permanently or temporarily lost. To treat a capable patient without consent would be an assault. Although capacity is a legal concept, doctors may be called on to give an assessment of capacity in order to decide on the ability of the patient to give informed consent or enter into another contract (e.g. to make a will). To be capable the patient must be able to:

  • understand the decision
  • understand the alternative courses of action
  • assess which courses of action would be reasonable
  • retain memory of decisions and the reasons for them
  • communicate their intent

Scotland (currently) stands alone in the UK in having specific legislation covering incapacity (Adults with Incapacity [Scotland] Act 20001), allowing for the issuing of a ‘certificate of incapacity’ to replace consent in adults who do not meet the above criteria. It is completed by the ‘medical practitioner primarily responsible for the medical treatment of an adult’ and gives authority to ‘do what is reasonable in the circumstances, in relation to the medical treatment, to safeguard or promote the physical or mental P.823
health of the adult’. It does not cover emergency situations, which remain guided by principles of common law. Any decisions about treatment should be guided by the principles noted under ‘Best interests’ (see below). Duty of care Medical negligence occurs where there is a duty of care to a patient, where there is a breach of that care, and where harm results as a result of that breach. Any patient is owed a duty of care by the doctors treating them. A breach of that care is a standard of care that falls below what would be expected of a doctor at that level of experience (i.e. the standard is lower for an SHO than a consultant). It is often helpful in making decisions to consider risk of being accused of negligence against risks of being accused of other things. For example, if an elderly man recovering after hip replacement becomes confused and demands to leave the ward, the decision is between (1) agreeing to his demand (and being vulnerable to accusations of negligence for not providing an adequate standard of care for a delirious post-op patient) and (2) confining him to the ward (and accepting the risk of being accused of false imprisonment/ assault/misuse of the Mental Health Act). ‘Best interests When determining what treatment may be in the best interests of a patient who lacks capacity to decide, consider:

  • Only those options for treatment or investigation which are clinically indicated (i.e. likely to be of benefit to the patient).
  • Which option least restricts the patient’s future choices—in cases where there is more than one option (including non-treatment) that could be viewed as reasonable and in the patient’s best interests.
  • Any evidence of the patient’s previously expressed preferences, including any advance statements (p. 820), or the views of significant third parties (e.g. the patient’s partner, family, carer, guardian [Scotland] or a person with parental responsibility).
  • Any knowledge you (or other health professionals) are aware of regarding the patient’s background (e.g. cultural, religious, or employment considerations).

Always:

  • Be open to the views of others, particularly members of the health care team and next of kin.
  • Consider the patient’s views in respect of areas of decision making for which they may have ‘residual capacity’.

Applications to the court In difficult situations (e.g. where a patient’s capacity to consent is in doubt, or where differences of opinion about ‘best interests’ cannot be resolved satisfactorily), consult more experienced colleagues and, where appropriate, seek legal advice on whether it is necessary to apply to the court for a ruling. The court’s approval is always necessary where a patient lacks capacity to consent to a medical intervention which is controversial (e.g. sterilisation, organ donation, withdrawal of life support). References 1 For detailed information, the test of the Act is available at: http://www.scotland-legislation.hmso.gov.uk/legislation/scotland/acts2000/20000004.htm, with guidance notes on Part 5 (Medical treatment and research) at: http://www.scotland.gov.uk/health/cmo/mcpasprint.pdf. P.824
Issues of confidentiality ‘Whatever… I may see or hear in the lives of men which ought not to be spoken abroad I will not divulge, as reckoning that all such should be kept secret.’ –Hippocratic Oath Patients’ right to confidentiality Patients have a right to expect that information about them will be held in confidence by their doctors. Confidentiality is central to trust between doctors and patients. Without assurances about confidentiality, patients may be reluctant to give doctors the information they need in order to provide good care. If you are asked to provide information about patients you should:

  • Seek patients’ consent to disclosure of information wherever possible, whether or not you judge that patients can be identified from the disclosure.
  • Anonymise data where this will serve the intended purpose.
  • Keep disclosures to the minimum necessary.
  • Always document and be prepared to justify your decisions.

Protecting information

  • Doctors have a professional responsibility to ensure patient information is effectively protected against improper disclosure at all times.
  • Many improper disclosures are unintentional—do not discuss patients where you can be overheard or leave patients’ records, either on paper or on screen, where they can be seen by other patients, unauthorised health care staff, or the public (see table opposite).
  • Allowing for issues of personal safety, ensure that as far as possible your consultations with patients are private.

Sharing information with others providing care

  • Make sure that patients are aware that personal information about them will be shared within the health care team, and of the reasons for this.
  • Respect the wishes of any patient who does not wish specific information to be shared in this way, unless to do so would put others at risk of death or serious harm.
  • Where patients have consented to treatment, express consent is not usually needed before relevant personal information is shared to enable the treatment to be provided safely and ensure continuity of care (e.g. medical secretaries typing letters to GPs, referrals for further investigations, referrals to other specialists).

Medical reports This includes both specific requests for a particular report on current medical problems and disclosure of information from existing medical records for a third party (e.g. court report, insurance claim, benefits claim). In these circumstances:

  • Satisfy yourself that the patient has been told about the purpose of the examination and/or disclosure, the extent of the information to be disclosed, and the fact that relevant information cannot be concealed P.825
    or withheld. (Showing the form or letter of request to the patient may assist in ensuring the patient understands the scope of the information requested.)
  • Obtain evidence of written consent to the disclosure from the patient or a person properly authorised to act on the patient’s behalf.
  • Disclose only information relevant to the request made.
  • Include only factual information you can substantiate, presented in an unbiased manner.
  • Always check whether the patient wishes to see their report (The Access to Medical Reports Act 1988 entitles patients to see reports written about them before they are disclosed, in most circumstances.)
  • Disclosures without consent to employers, insurance companies, or any other third party, can be justified only in exceptional circumstances (e.g. to protect others from risk of death or serious harm—see ‘Breaking confidentiality’).

Recent developments In its report in 1997 the Caldicott Committee made a number of recommendations aimed at improving the way the NHS handles and protects patient information. A key recommendation was the establishment of organisational guardians to oversee access to patient-identifiable information. These ‘Caldicott Guardians’ have been established and are responsible for internal protocols and policies on the use of such information, and on its disclosure. A key principle is that of ‘the need to know’. Confidentiality expectations—the reality Despite confidentiality being one of the main foundations of the ‘privileged’ doctor-patient relationship, expectations about where personal information may be reasonably disclosed varies amongst patients and medical professionals at different stages of their training:

Where information revealed Patients House staff Medical students
Large professional meeting 69% 94% 81%
To office nursing staff 50% 69% 83%
Identified by name to other physicians 23% 60% 55%
Told as a story at a party:
To other physicians 18% 60% 57%
To non-physicians 9% 36% 45%
Told to spouse or ‘friend’ 17% 51% 70%
Weiss B (1982) Confidentiality expectations of patients, physicians, and medical students. JAMA 247: 2695.

P.826
Breaking confidentiality Personal information should not be disclosed to a third party (e.g. relative, partner, solicitor, police officer, or officer of a court) without the patient’s express consent, except in the circumstances described below. If you decide to disclose confidential information against a patient’s wishes, you must document this decision in the patient’s notes and be prepared to explain/justify your decision (and communicate this decision to the patient). Disclosures to protect the patient or others In this case, the risk to third parties is so serious that it outweighs the patient’s privacy interest, and the appropriate person or authority should be informed without undue delay. Examples of such circumstances include:

  • Where a colleague, who is also a patient, is placing patients at risk as a result of illness or other medical condition. (If you are in doubt about whether disclosure is justified, consult an experienced colleague, or seek advice from a professional organisation. The safety of patients must come first.)
  • Where a patient continues to drive, against medical advice, when unfit to do so. In such circumstances you should disclose relevant information to the medical adviser of the Driver and Vehicle Licensing Agency without delay. Fuller guidance is given on pp. 828, 829, 830, 831, 832
  • To assist in the prevention or detection of a serious crime (i.e. where someone may be at risk of death or serious harm) (e.g. threats of violence—see ‘The Tarasoff Case’ opposite) or suspected child abuse (p. 614).

Disclosure in connection with judicial or other statutory proceedings Under certain circumstances disclosure of information is required by law:

  • Notification of a known or suspected communicable disease.
  • If ordered to do so by a judge or presiding officer of a court (unless the information appears to be irrelevant e.g. details of relatives or partners of the patient not party to the proceedings).
  • To assist a Coroner, Procurator Fiscal, or other similar officer in connection with an inquest or fatal accident inquiry (only relevant information should be provided).
  • An official request from a statutory regulatory body for any of the health care professions, where disclosure is necessary in the interests of justice and for the safety of other patients.

Difficult situations

  • Children and other patients who may lack competence to give consent (see p. 822).
    • Always try to persuade them to allow an appropriate person (e.g. individual with parental responsibility) to be involved in the consultation.
    • Always inform the patient (and their relative or carer) prior to passing on information to other responsible person or statutory agency (e.g. social services).
    • P.827

    • Document in the patient’s record the steps you have taken to obtain consent and the reasons for deciding to disclose information.
    • Where a person lacks capacity, disclosure should be in that person’s best interests and follow the other basic principles regarding confidentiality.
  • Situations of dual responsibilities (i.e. contractual obligations to third parties, such as companies or organizations) (e.g. occupational health services, insurance companies, benefits agencies, police forensic medical advisors, armed forces, prison services), as well as obligations to patients.
    • Always ensure patients are aware of the purpose of the consultation, and to whom you are contractually obliged to release information (see ‘Advice on medical reports’, p.00).
  • If in doubt, consult (in UK):

The Tarasoff Case On October 27, 1969, Prosenjit Poddar killed his ex-girlfriend, Tatiana Tarasoff. Two months earlier, Poddar had declared his intentions during an outpatient appointment with his psychotherapist, Dr. Lawrence Moore at the University of California at Berkeley’s Cowell Memorial Hospital. Dr. Moore tried to have Poddar confined to a mental institution for observation (including asking the university police for assistance). When law enforcement agents decided that Poddar was harmless and released him, Moore’s director, Dr. Harvey Powelson, requested that all evidence of contact between Moore and the police department be destroyed. No one, including Dr. Moore, pursued the case further. After the murder, Tatiana’s parents became aware of this prior knowledge and sued the university regents, hospital, and police department, claiming that, at least, a warning should have been issued to her. On July 1 1976 (more than 61–2 years after the murder) the Supreme Court of California found that the defendants had breached their duty to exercise reasonable care. In other words, physicians and therapists have a duty to warn third parties of threatened danger arising from a patient’s violent intentions. As, a final statement, the Court stated that, ‘protective privilege ends where public peril begins’. Note: Although often quoted when discussing issues of confidentiality, this case has no legal bearing in the UK. Even in the USA the impact of the Tarasoff case has been less dramatic and intrusive than one might expect. P.828
Fitness to drive Principles and legal definitions

  • The Driver and Vehicle Licensing Authority (DVLA) in the UK sets out minimum medical standards of fitness to drive and the requirements for mental health in broad terms (pp. 830, 831, 832).
  • A clear distinction is made between the standards needed for Group 1 (cars and motorcycles) and Group 2 (lorries and buses) licences, the latter being more stringent due to the size of vehicle and the greater time spent at the wheel.
  • ‘Severe mental disorder’ is defined by Section 92 of the Road Traffic Act 1988 as ‘mental illness, arrested or incomplete development of the mind, psychopathic disorder or severe impairment of intelligence or social functioning’.
  • The standards set reflect not only the need for an improvement in the mental state but also a period of stability, such that the risk of relapse can be assessed should the patient fail to recognise any deterioration.
  • The standards for patients with misuse of or dependency on alcohol or drugs are detailed on p. 562.

Notes on medication

  • Section 4 of the Road Traffic Act 1988 states that ‘any person who is driving or attempting to drive on the public highway, or other public place whilst unfit due to any drug, is liable to prosecution’.
  • All drugs acting on the central nervous system can impair alertness, concentration, and driving performance. This is particularly so at initiation of treatment or soon after and when dosage is being increased. Driving must cease if adversely affected.
  • When planning the treatment of any patient (particularly professional drivers e.g. of taxis, lorries, buses, or construction vehicles), always consider adverse side-effect profiles which may impair driving ability:
    • Antidepressants—anticholinergic/antihistaminic effects (sedation).
    • Antipsychotics—both sedation and EPSEs (assess regularly).
    • Benzodiazepines—the most likely psychotropic medication to impair driving performance; avoid long-acting compounds.
    • For all psychotropics—consider the epileptogenic potential.

Duties and other considerations

  • Duty of care Doctors have a duty to advise their patients of the potential dangers of adverse effects from medication and interactions with other substances, especially alcohol.
  • Confidentiality When a patient has a condition which makes driving unsafe and the patient is either unable to appreciate this, or refuses to cease driving, GMC guidelines advise breaking confidentiality and informing DVLA (see opposite)
  • Patients detained under the MHA Similar rules as for informal patients (i.e. drivers must be able to satisfy the standards of fitness for their respective conditions and be free from any effects of medication which will affect driving adversely).

P.829
GMC guidelines for informing the DVLA

  • The DVLA is legally responsible for deciding if a person is medically unfit to drive. They need to know when driving licence holders have a condition which may, now or in the future, affect their safety as a driver.
  • Therefore, where patients have such conditions, you should:
    • Make sure that the patients understand that the condition may impair their ability to drive. If a patient is incapable of understanding this advice (e.g. because of dementia), you should inform the DVLA immediately.
    • Explain to patients that they have a legal duty to inform the DVLA about the condition.
  • If the patients refuse to accept the diagnosis or the effect of the condition on their ability to drive, you can suggest that the patients seek a second opinion, and make appropriate arrangements for the patients to do so. You should advise patients not to drive until the second opinion has been obtained.
  • If patients continue to drive when they are not fit to do so, you should make every reasonable effort to persuade them to stop. This may include telling their next of kin.
  • If you do not manage to persuade patients to stop driving, or you are given or find evidence that a patient is continuing to drive contrary to advice, you should disclose relevant medical information immediately, in confidence, to the medical adviser at DVLA.
  • Before giving information to the DVLA you should inform the patient of your decision to do so. Once the DVLA has been informed, you should also write to the patient, to confirm that a disclosure has been made.

Further advice on fitness to drive

  • Doctors may write to the DVLA (see ‘Useful addresses,’ p. 920), or may speak to one of the medical advisers during office hours, to seek advice about a particular driver (identified by an M number) or about fitness to drive in general.
  • All of the DVLA advice is available online at: http://www.dvla.gov.uk (including an e-mail facility for use by medical professionals only.)

P.830
DVLA requirements for specific psychiatric conditions Anxiety or depression (without significant memory or concentration problems, agitation, behavioural disturbance, or suicidal thoughts) Group 1 drivers: DVLA need not be notified and driving may continue. Group 2 drivers: Very minor short-lived illnesses need not be notified. Severe anxiety or depression (with significant memory or concentration problems, agitation, behavioural disturbance or suicidal thoughts) Group 1 drivers: Driving should cease pending the outcome of medical enquiry. A period of stability depending upon the circumstances will be required before driving can be resumed. Particularly dangerous are those who may attempt suicide at the wheel. Group 2 drivers: Driving may be permitted when the person is well and stable for a period of 6 months. Medication must not cause side-effects which would interfere with alertness or concentration. Driving is usually permitted if the anxiety or depression is longstanding, but maintained symptom-free on doses of psychotropic medication which do not impair. DVLA may require psychiatric reports. Acute psychosis (any cause) Group 1 drivers: Driving must cease during the acute illness. Re-licensing can be considered when all of the following conditions can be satisfied:

  • Has remained well and stable for at least 3 months.
  • Is compliant with treatment.
  • Is free from adverse effects of medication which would impair driving.
  • Subject to a favourable specialist report.

NB Drivers who have a history of instability and/or poor compliance will require a longer period off driving. Group 2 drivers: Driving should cease pending the outcome of medical enquiry. The person must be well and stable for a minimum of 3 years with insight into their condition before driving can be resumed. At that time, DVLA will usually require a consultant examination. Any psychotropic medication should be of minimum effective dosage and not interfere with alertness, concentration, or in any other way impair driving performance. There should be no significant likelihood of recurrence. Hypomania/mania Group 1 drivers: Driving must cease during the acute illness. Following an isolated episode, re-licensing can be reconsidered when all the following conditions can be satisfied:

  • Well and stable for at least 3 months.
  • Compliant with treatment.
  • Insight has been regained.
  • P.831

  • Free from adverse effects of medication which would impair driving.
  • Subject to a favourable specialist report.

NB Hypomania or mania are particularly dangerous to driving when there are repeated changes of mood. Therefore, when there have been 4 or more episodes of mood swing within the previous 12 months, at least 6 months’ stability will be required, with evidence of treatment compliance and a favourable specialist report. Group 2 drivers: Driving must cease pending the outcome of medical enquiry. The person must be well and stable for a minimum of 3 years with insight into their condition before driving can be resumed. At that time, DVLA will usually require a consultant examination. Any psychotropic medication should be of minimum effective dosage and not interfere with alertness, concentration, or in any other way impair driving performance. There should be no significant likelihood of recurrence. Schizophrenia or other chronic psychoses Group 1 drivers: The driver must satisfy all the following conditions:

  • Stable behaviour for at least 3 months.
  • Adequately compliant with treatment.
  • Free from adverse effects of medication which would impair driving.
  • Subject to a favourable specialist report.

NB For patients with continuing symptoms, even with limited insight, these do not necessarily preclude licensing. Symptoms should be unlikely to cause significant concentration problems, memory impairment, or distraction whilst driving. Particularly dangerous are those drivers whose psychotic symptoms relate to other road users. Group 2 drivers: Driving must cease pending the outcome of medical enquiry. The person must be well and stable for a minimum of 3 years with insight into their condition before driving can be resumed. At that time, DVLA will usually require a consultant examination. Any psychotropic medication should be of minimum effective dosage and not interfere with alertness, concentration, or in any other way impair driving performance. There should be no significant likelihood of recurrence. Dementia or any organic brain syndrome It is extremely difficult to assess driving ability in those with dementia. Those who have poor short-term memory, disorientation, lack of insight and judgement are almost certainly not fit to drive. The variable presentations and rates of progression are acknowledged. Disorders of attention will also cause impairment. A decision regarding fitness to drive is usually based on medical reports. Group 1 drivers: In early dementia when sufficient skills are retained and progression is slow, a licence may be issued subject to annual review. A formal driving assessment may be necessary. Group 2 drivers: Refuse or revoke licence. Learning disability Group 1 drivers: Severe learning disability is not compatible with driving and the licence application must be refused. In milder forms, provided there are no other relevant problems, it may be possible to hold a licence, P.832
but it will be necessary to demonstrate adequate functional ability at the wheel. Group 2 drivers: Recommended permanent refusal or revocation if severe. Minor degrees of learning disability when the condition is stable with no medical or psychiatric complications may be compatible with the holding of a licence. Persistent behaviour disorder (including post head injury syndrome, psychopathic disorders, and non-epileptic seizure disorder). Group 1 drivers: If seriously disturbed (e.g. violent behaviour or alcohol abuse) and likely to be a source of danger at the wheel, licence should be revoked or the application refused. Licence will be issued after medical reports confirm that behavioural disturbances have been satisfactorily controlled. Group 2 drivers: Recommended refusal or revocation if associated with serious behaviour disturbance likely to make the individual a source of danger at the wheel. If the person matures and psychiatric reports confirm stability a consideration would be given to restoration of the licence but a consultant psychiatrist report would be required.

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