Mentally disordered or lacking capacity? Lessons for management of serious deliberate self harmBMJ 2010; 341 doi: https://doi.org/10.1136/bmj.c4489 (Published 07 September 2010) Cite this as: BMJ 2010;341:c4489
- Anthony S David1,
- Matthew Hotopf, professor1,
- Paul Moran, consultant psychiatrist1,
- Gareth Owen, researcher1,
- George Szmukler, professor1,
- Genevra Richardson, professor2
- 1Institute of Psychiatry, King’s College London, Denmark Hill, London SE5 8AF
- 2School of Law, King’s College London, Strand, London WC2R 2LS
- Correspondence to: A S David
- Accepted 25 June 2010
Kerrie Wooltorton died aged 26 on 19 September 2007 from deliberate self poisoning with antifreeze after refusing treatment. The cause of death was recorded as ethylene glycol toxicity. At an inquest on 20 September 2009, William Armstrong, coroner for Greater Norfolk District, concluded she was legally competent to decide. However, the case highlights several ethical and practical problems. Although we do not have all the necessary clinical details, we have used the coroner’s report to bring out some important points that might prove helpful for clinicians confronted with a person with potentially fatal self harm who is refusing life saving treatment. We intend no criticism of the clinicians involved; we comment with the benefit of hindsight—a luxury they did not have.
Synopsis based on coroner’s report
Miss Wooltorton started self harming behaviour at the age of 15 and was described as having an emotionally unstable personality disorder. She had received considerable support from her local mental healthcare services. In the last year of her life she had been admitted to hospital several times after drinking antifreeze and bleach, and the inquest heard that she had been uncooperative and refused medication. In March 2009 she was admitted under section 3 of the 1983 Mental Health Act. The section was rescinded after four days, and Miss Wooltorton was discharged from hospital a week later amid optimism regarding behaviour change; she was readmitted after two days because of recurrent thoughts of taking antifreeze. Her mental state fluctuated, and she had further episodes of low mood and self poisoning with antifreeze; relationship difficulties were an ongoing feature. On 16 August the clinical team learnt that she was again thinking about drinking antifreeze but decided that she could be supported in the community rather than assessed under the Mental Health Act. On 18 August she again drank antifreeze.
The team evidently had discussions about Miss Wooltorton’s mental capacity, possible reasons behind her self poisoning, the justification or otherwise for using the Mental Health Act, and whether this would make her situation worse. On 17 September she drank more antifreeze and was admitted to hospital with a letter dated 14 September saying she wanted no life saving treatment but would appreciate medicines to help with her discomfort. In the letter she said she was “100% aware” of the consequences of her actions and accepted responsibility for them. When questioned by doctors she simply said, “It’s in the letter.” The hospital doctors caring for her at the time noted the clarity of her communication and instructions. They were clear that she did not consent to any invasive treatment carried out with the intention of saving her life.
The on-call doctor in charge consulted the medical director, took legal advice, and consulted colleagues who had been treating Miss Wooltorton. The doctor believed that Miss Wooltorton knew that she would die if she refused treatment and that dialysis would save her life.
In his summary, the coroner stated that “the opinion of all concerned was that Kerrie was refusing treatment that could have saved her life and she was doing so with capacity and there was no way in which her capacity was impaired.” He went on to state that she was not exhibiting symptoms of a mental disorder or disability. He said that there was no dispute that she was able to retain information about her predicament and was able to use that information as part of the decision making process. The staff considered that it would have been an assault to over-ride her wishes; he said that a deliberate decision to die may be regarded as perverse or repugnant but that that did not mean that anyone had the right to over-rule the decision when made by an adult with capacity. He added: “any treatment to save Kerrie’s life in these circumstances would have been unlawful.”
Mental capacity perspective
The coroner’s court focused on whether Miss Wooltorton was legally competent to refuse life saving treatment when she was admitted to hospital on 18 September. The coroner later put out a statement saying that the letter Miss Wooltorton brought to the hospital was not “an advance decision” under the 2005 Mental Capacity Act.1 This meant that it was not binding, although it did provide “powerful evidence of [her] wishes and intentions.” It was her present mental state that was determinative. A person lacks capacity in relation to a matter if at the time they are unable to decide for themselves in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. Unable means unable to understand and retain information relevant to the decision, to use or weigh that information in coming to a decision, and to communicate a decision. The law does not set a threshold for these abilities or stipulate that any combination of them must be in doubt. There is a legal assumption of capacity.
Although Miss Wooltorton was able to communicate her refusal of treatment, her decision seemed on the surface to be imprudent and she refused to discuss her reasons. A patient’s refusal to discuss the reasoning behind a decision makes it difficult to assess capacity. When the outcome of refusing treatment is death or serious harm, especially where the underlying condition is self inflicted, refusal to explain the reasoning may rebut the initial assumption of capacity and justify further investigation.
Is it correct to say that Miss Wooltorton had mental capacity to end her life? It could be argued from the evidence we have seen that she had an “impairment of or disturbance in mind or brain” that might affect decision making—the minimal diagnostic threshold demanded by the Mental Capacity Act. And given her apparently severe personality disorder, her ability to use or weigh information about her condition and prognosis may have been distorted. The mere act of going into hospital with a letter asking for palliation but refusing life saving treatment may be interpreted in the clinical context to imply ambivalence, even though McLean concluded that “no legal inference can necessarily be drawn from Miss Wooltorton’s past behaviour and acceptance of life saving treatment.”2
The clinical team and coroner relied on her apparent retention of information and “understanding” and less on her ability to use (which can include the ability to appreciate that she might have an illness that affects her mood or thinking) or weigh information (being able to reason with the information in accord with her life choices, preferences, and values). The latter, less quantifiable abilities seem to be the predominant drivers of incapacity according to research on psychiatric inpatients3 (as opposed to medical inpatients4). Setting aside delusions and thought disorder, serious emotional turmoil, often seen in people who self harm after interpersonal conflict, is commonly associated with incapacity. Impaired use and weighing of information is also seen when there is a more persistent distortion of values. An example would be someone with anorexia nervosa who values being thin more highly than being alive.5
How do you determine if the values driving the patient’s decision are distorted or pathological? Relevant considerations include an understanding of whether these values have changed recently and why. How coherent are these new values with those that have thus far shaped the person’s life choices? And could they become the subject of regret if acted on?6 That said, it is difficult to reliably judge mental capacity solely on the weighing criterion. But if Miss Wooltorton had been judged to lack capacity on these grounds, it could have been lawful to give her life saving treatment provided it was agreed that this was in her best interests.
Mental disorder perspective
It follows from the coroner’s finding that Miss Wooltorton was competent to refuse treatment on 18 September, that the Mental Capacity Act was not applicable. This leaves open the question of the Mental Health Act and its application. Did Miss Wooltorton have a mental disorder “of a nature or degree” that would have warranted detention and treatment under the Mental Health Act for her health or safety? Mention is made of her personality disorder. This is one of the most controversial diagnostic categories within psychiatry, partly because of the obvious shading with “normal” variants of temperament and personality but also because of doubts about whether it can be treated. The 2007 amendment of the act stresses that treatment should be appropriate rather than necessarily curative.
Most people would accept that Miss Wooltorton was disturbed and vulnerable. Her challenging behaviour will be familiar to many psychiatrists and will be seen as falling within their remit. Such patients generate considerable anxieties and difficulties for clinical teams, and there is often disagreement about the extent to which patients should be coerced into treatment that is often seen as potentially counterproductive. Management usually includes trying to form a therapeutic relationship; providing limits and structure while encouraging autonomy; and dealing with other psychiatric phenomena such as mood instability and anxiety symptoms. Nevertheless, careful assessments of risks will have to be made and shared by the multidisciplinary team at various points to prevent suicide and other serious complications. Moreover, several randomised controlled trials have found that borderline personality disorder (the DSM-IV equivalent of emotionally unstable personality disorder) can be significantly improved with psychological approaches.7
A psychiatrist considering the evidence presented in the coroner’s report could find grounds for the suspicion that Miss Wooltorton had a mental disorder in the lead up to her death. The case notes mention mood and emotional disturbance frequently. Her behaviour remained unexplained; whether it was to relieve tension or to escape from an intolerable situation is often unclear. Putting aside the specifics of the Wooltorton case and the extent to which the clinical team sought or had access to a psychiatric opinion, the Mental Health Act provides a legal framework that can place potentially lethal self harming behaviour within the context of mental disorder that justifies involuntary assessment and treatment. All the additional safeguards and agreements for the relevant section of the act would, of course, need to be put in place.
Use of the Mental Health Act might then permit the necessary life saving intervention depending on the meaning attributed to treatment for mental disorder. In cases heard before the recent amendments to the act the courts have been prepared to regard nasogastric feeding in cases of anorexia nervosa and borderline personality disorder as such treatment.8 9 The amended statutory definition now reflects more directly the courts’ approach in these cases, and although the question has not yet been decided, it seems likely that life saving treatment in the form of renal dialysis would be regarded as treatment for mental disorder when the psychiatric disorder was considered to be intrinsically bound up with the self harm. A similar argument may be applied to blood transfusion in patients who deliberately exsanguinate.10
A single law?
The adoption of two separate legislative instruments, one (sometimes termed guardianship) to cover patients with incapacity and the other (usually termed mental health legislation or civil commitment) to cover patients with mental disorders is common throughout developed legal jurisdictions (box). The criteria for mental health powers are usually based on the risk of harm to the patient or others rather than incapacity.11 The Wooltorton case shows the confusion that may be engendered by two legislative frameworks of this kind—the mental capacity and mental health acts—governed by different sets of rules that could both be applicable to a single patient in determining whether involuntary treatment can be given.
UK legal frameworks
The Mental Capacity Act requires the ability to:
Understand information relevant to the decision
Retain that information
Use or weigh that information as part of the decision making process
Communicate the decision by any means.
Treatment of someone without mental capacity must be deemed in the person’s best interests. Primacy is given to individual autonomy
Criteria for detention in hospital under the Mental Health Act
Detention for assessment under section 2 is warranted if:
The patient has a mental disorder of a nature or degree that warrants detention in hospital for assessment; and
Ought to be detained in the interests of own health or safety or to protect others.
People can be detained for treatment under section 3 only if their mental disorder:
Makes it appropriate for them to receive medical treatment in hospital and they ought to be detained for their or others’ safety
Treatment cannot be provided unless the patient is detained under this section; and
Appropriate medical treatment is available
Primacy is given to an agreed clinical decision and risks to health or safety
A single statute governing involuntary treatment for all patients, whether they have a physical or mental disorder, would avoid such ambiguity. A moral case can also be made since the failure to respect the right of a person with a mental disorder to refuse treatment, despite retaining capacity, in the same way as one with a physical disorder may be seen as discriminatory.12 In practice, however, most people detained under the Mental Health Act lack capacity.3 An advantage of fusing the two acts is that the criteria and authorisation for detention and the use of force, areas dealt with only vaguely in the Mental Capacity Act, would be clearly spelt out.
Cases such as Miss Wooltorton’s present formidable practical and ethical challenges. Despite extensive statutory frameworks, there remains ambiguity about how the mental capacity and mental health acts should be used in such circumstances. This stems from differences in the values that underpin the legislation. We have drawn on the law and our clinical experience to provide the following guidance.
When assessing capacity, focus on the relevant decision
If the critical decision is around suicide, clinicians should attune their assessment to that rather than to related decisions such as treatment refusal. Be aware of the scope of the terms “use” and “weigh.” Clinicians may not have to accept the person’s wishes at face value, and the person’s capacity should be rigorously assessed. This may include talking to informants to better understand the person’s values.
Consider mental disorder
Acute clinicians may need the advice of an experienced psychiatrist (or the person’s existing psychiatric team). History is highly relevant. Part of the psychiatrist’s job is to decide whether treatment under the Mental Health Act is justified and feasible. Note the limits to treatment that may be allowed under the act.
Support decision making
This may mean “playing for time.” Case studies show that for patients with a personality disorder, the process of assessing decision making capacity concerning the treatment of the disorder may become a therapeutic intervention.13 14 15 The information that must be offered to patients to enable them to understand the nature of the “illness,” and the treatment, is complex. For example, it usually includes a detailed history of past maladaptive responses to a range of challenging circumstances; the treatment options for personality disorder, together with their differing rationales, might be extensive, as might a discussion about how they could best suit the patient’s difficulties. The process is time consuming, yet engagement in such a discussion may change patients’ views of their predicament and lead them to a different (less drastic) decision. A casualty officer at 3 am is unlikely to have the time (and may lack the training and experience) to do this—psychiatric colleagues should accept a key role in this process.
Is such treatment in the patient’s best interests?
It is best practice, regardless of legal frameworks, to ask whether treatment is likely to be helpful, futile, or counterproductive. All medical, psychological, and social aspects need to be considered, including the patient’s wishes, even in the absence of capacity. Ideally, the answer should be decided after discussion with a multidisciplinary treating team and the patient’s family (even if the patient objects, confidentiality might justifiably be set aside in cases of such gravity). The conclusion that treatment is possible and legal, yet futile, should be reserved for cases where there is overwhelming supporting evidence. If there is a dispute about capacity, the Court of Protection may be required to adjudicate.
Understand that you are a party, however unwilling, in a deadly negotiation
The patient’s intentions may be fluid and responsive to your actions. Coercion or its prospect may increase the patient’s resistance and sense of hopelessness or, alternatively, may provide a face saving escape from intolerable conflict.10 Self harm may induce hopelessness and anger in you, as well as the desire and opportunity to preserve life and hope.
Department of Constitutional Affairs. Mental Capacity Act 2005 code of practice. www.opsi.gov.uk/acts/acts2005/related/ukpgacop_20050009_en.pdf.
Department of Health. Code of practice Mental Health Act 1983. www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_084597.
Grisso T, Applebaum PS. Assessing competence to consent to treatment. Oxford University Press, 1988.
Cite this as: BMJ 2010;341:c4489
We thank William Armstrong for making available his report and clarifying several aspects for us.
Competing interests: All authors have completed the unified competing interest form at www.icmje.org/coi_disclosure.pdf (available on request from the corresponding author) and declare no support from any organisation for the submitted work; research on mental capacity was funded by the Wellcome Trust, and the authors have received support from the Department of Health via the National Institute for Health Research Specialist Biomedical Research Centre for Mental Health award to South London and Maudsley NHS Foundation Trust and the Institute of Psychiatry at King’s College London; GR chaired the expert committee on the review of the Mental Health Act 1983. GR, GS, and ASD have given views to parliamentary committees over reform of the Mental Health Act 1983. MH has acted as an expert witness in cases where mental has been in dispute.