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3 - Legal and ethical issues in liaison psychiatry

from Part I - Basic skills

Published online by Cambridge University Press:  10 December 2009

By
Dr Eleanor Feldman
Edited by
Geoffrey Lloyd  and
Elspeth Guthrie
Geoffrey Lloyd
Affiliation:
Priory Hospital, London
Elspeth Guthrie
Affiliation:
University of Manchester
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Summary

Introduction

Liaison psychiatrists are frequently asked to advise when patients refuse consent to medical intervention, especially when possible mental disorder, or other emotional or mental disturbance, may play a part in that refusal. The aim of this chapter is to give practising clinicians a framework for understanding legal issues surrounding refusal of treatment in the general hospital context. This will be achieved by a discussion of the legal position in one jurisdiction with which the author has a working knowledge (England and Wales), followed by a series of cases and commentaries that serve to illustrate the kinds of problems that commonly arise. Readers working in jurisdictions other than England and Wales should seek guidance from their hospital's legal advisers as to how the same issues are dealt with in their country.

The legal position in England and Wales

Statute law

The Mental Health Act 1983 (MHA), allows for the legal detention and treatment of persons with mental disorder where admission for that disorder is considered necessary in the interest of their health or safety, or for the protection of others, and where they are unable or unwilling to consent to such admission. The use of the MHA enables patients to be detained in hospital and to be treated, against their will, for their mental disorder, whereas it does not sanction treatment for physical disorders unconnected to the mental disorder, even where the patient is unable or unwilling to give consent.

Keywords

legal issuesliaison psychiatristsmedical treatmentmental disordermental health act
Type
Chapter
Information
Handbook of Liaison Psychiatry , pp. 47 - 63
Publisher: Cambridge University Press
Print publication year: 2007

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References

B v. Croydon Health Authority 1994 22 BMLR 13
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Bolitho v. City and Hackney HA [1997] 4 All ER 771
British Medical Association. (1995). Advance Statements About Medical Treatment. Code of Practice with Explanatory Notes. Report of the British Medical Association. London: BMJ Publishing Group.
British Medical Association and Law Society. (1995). Assessment of Mental Capacity: Guidance for Doctors and Lawyers. London: British Medical Association.
Department of Health and Welsh Office. (1999). Code of Practice Mental Health Act 1983. London: HMSO.
Department of Health. (2001). Reference Guide to Consent to Examination or Treatment (www.dh.gov.uk/assetRoot/04/01/90/79/0401/9079.pdf).
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General Medical Council. (1999). Seeking Patient's Consent: the Ethical Considerations.London: GMC.
General Medical Council. (2002). Withholding or Withdrawing Life-prolonging Treatments: Good Practice in Decision-making. London: GMC.
Kennedy, I. and Grubb, A. (2000). Medical Law, 3rd edn. London: Butterworths.
Mental Health Act Commission Guidance Note 3. (1999). Guidance on the treatment of Anorexia Nervosa under the Mental Health Act 1983 (issued August 1997 and updated March 1999). Available on the Mental Health Act Commission website: www.mhac.org.uk
Mental Health Act Commission Guidance note GN1/2001. (2001). Use of the Mental Health Act 1983 in General Hospitals without a Psychiatric Unit. Available on the Mental Health Act Commission website: www.mhac.org.uk
Mental Capacity Act. (2005). HMSO.
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R (on the application of B) v. Ashworth Hospital Authority 2003 EWCA Civ 547; Court of Appeal, 15 April 2003.
Re B (consent to treatment: capacity) 2002 1FLR 1090
Re C (adult: refusal of medical treatment) [1994] 1 All ER 891 (Fam Div)
Re KB 1993 19 BMLR 144 (Fam Div)
Re MB (an adult: medical treatment) 1997 38 BMLR 175 (CA)
Re S (adult patient's best interests) 2000 2FLR 389 at 400
Re T (adult: refusal of medical treatment) 1992 9 BMLR 46
St George's Healthcare NHS Trust v. S [1998] 3 All ER 673 CA at 702

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