Mentally disordered or lacking capacity? Lessons for management of serious deliberate self harm
BMJ 2010; 341 doi: https://doi.org/10.1136/bmj.c4489 (Published 07 September 2010) Cite this as: BMJ 2010;341:c4489
All rapid responses
Rapid responses are electronic comments to the editor. They enable our users to debate issues raised in articles published on bmj.com. A rapid response is first posted online. If you need the URL (web address) of an individual response, simply click on the response headline and copy the URL from the browser window. A proportion of responses will, after editing, be published online and in the print journal as letters, which are indexed in PubMed. Rapid responses are not indexed in PubMed and they are not journal articles. The BMJ reserves the right to remove responses which are being wilfully misrepresented as published articles or when it is brought to our attention that a response spreads misinformation.
From March 2022, the word limit for rapid responses will be 600 words not including references and author details. We will no longer post responses that exceed this limit.
The word limit for letters selected from posted responses remains 300 words.
This latest case [1] illustrates the readiness with which the Courts would approve emergency life saving treatment for physical conditions. The instant case involved a 30 year old woman('SB') with aplastic anaemia who refused treatment and was detained under the Mental Health Act.The Court found that she "did not have the capacity to make up her own mind over whether to undergo the treatment"[1]. Not only did the Court allow restraining her if necessary but also permitted doctors to terminate treatment if it was "too distressing, despite its chances of success"[1].
References
[1]http://www.telegraph.co.uk/health/healthnews/8074306/Judge-tells-doctors...(accessed 23.10.10)
Competing interests: No competing interests
The problems of treating, investigating and disposing of medical
(i.e. non-surgical) attempted suicide patients in the busy over -
stimulated atmosphere of a Casualty Department was largely resolved in our
DGH which had a self contained psychiatric unit.
The medical consultants agreed that beds on each of two medical wards
should be dedicated to the direct admission by ambulance of such patient
very analagous to the way they managed suspected coronary patients.
Such patients usually only needed two or three days stay in order to
review their life situation with the help of a psychiatric assessment and
appropriate social intervention if necessary before being discharged (the
majority) or transferred to more appropriate care.
A hospital ward atmosphere and a dedicated sypathetic nursing
approach made a remarkable difference.
This mode of management was used in the Seventies and Eighties and
covered a catchment population of 176,000.
I cannot recall a single instance of refusal of care surfacing as a
problem throughout that time!Even transfer to a our psychiatric ward was
accepted if felt advisable.
Competing interests: No competing interests
The article 'Mentally disordered or lacking capacity' raises some
important questions in a sphere that many clinicians find confusing and
unclear. However, rather than clarifying the situation it adds to the
confusion. The title itself is misleading to suggest an either/or
relationship between capacity and mental disorder.
The article further confuses and possibly misleads while commenting
on Ms Wooltortons capacity. The author suggests that in view of her
personality disorder her ability to use or weigh the information
(therefore her capacity) may have been distorted. Such a status or
diagnosis based approach to capacity is firmly rejected by English Law.
Section 2(3) (b) of the Mental Capacity Act 2005 (MCA) clearly states that
lack of capacity cannot be established by a person's condition or
behaviour.
Ambivalence about a decision does not preclude capacity. As per
Butler-Sloss P. ambivalence is relevant to capacity ' if and only if
ambivalence genuinely strikes at the root of mental capacity of patient'
(Re B). The law takes a functional approach to capacity determination. The
general rule of English law, whatever the context, is that 'the test of
capacity is ability to understand the nature and quality of transaction'
(Sheffield City Council v E.).
The article suggest that the values are distorted (and thereby the
person lacks capacity) if someone values being thin over being alive. The
capacity determination is neither a value judgment, nor is it the judgment
of the wisdom of the decision being taken (S.1(4) MCA). The reasons for
refusal are irrelevant. As per Lord Donaldson- "It matters not whether the
reasons for refusal were rational, irrational, unknown or even
nonexistent" (Re T). This rejection of outcome based test was confirmed by
Wright J when he said 'the quality of a decision is irrelevant as long as
the person understands what he is deciding" (Masterman- Lister). The only
reason that a person with Anorexia Nervosa may be deemed to lack capacity
is if that person's disorder prevents that person from including the
impact of her actions as one of the pieces of information to be considered
when making the decision. If the person is able to do that and then
decides that the desire to be thin is worth risking the life for, the
person cannot be construed as lacking capacity. In such situation the
Mental Health Act (MHA) would be useful.
As a final criticism, the suggestion of a single legislation covering
mental and physical disorders ignores the history, philosophy and purpose
of the two legal doctrines. The MCA derives from the philosophy of patient
choice and autonomy. The MHA deals with care and treatment of the mentally
disordered, irrespective of their capacity and has evolved from criminal
justice and public health backgrounds with capacity being a footnote.
A single legislation to deal with the Physical and Mental disorders
will do one of the three things. First option is to repeal powers of the
MHA and allow involuntary treatment only when a patient looses capacity
(using the existing definition of capacity). This is not only unhelpful
but a dangerous notion. Mental disorder is a separate category of
disorders because a patient's insight, cognition and perception are the
primary casualties. There are risks to a person are to others. A large
number of cases where the MHA is used are those detained under Part-3 of
the Act in Forensic units. How would a single law that treats mental
disorder at par with physical illness deal with such cases? Presumably
such cases would be left for the criminal justice system. This would be a
step backwards and would further stigmatize mental illness.
The second option is to broaden the definition of incapacity in order
to catch majority of patients currently under MHA. This is detrimental to
patient autonomy as more people with physical illness would be caught in
this widened net. Maybe there is the third option, to have a single piece
of legislation that deals separately with patients with mental illness. It
is not clear how that would be any different than the existing legal
frameworks.
The real problem is the lack of knowledge and confusion that
surrounds the relation between the two systems. This calls for a better
training of staff. Unfortunately this article, rather than clarifying the
prevailing confusion, adds to it.
The main criticism of Wooltorton's management was the failure to have
a MHA assessment. If detained, she could have been treated under the MHA
for her overdose. The MHA allows any treatment the purpose of which is to
alleviate, or prevent worsening of, the mental disorder or one or more of
its symptoms and manifestations (S.145 (4)). Code of Practice (23.4)
gives the example of treatment of self inflicted wounds being allowed. The
Courts have interpreted the medical treatment under MHA to include
procedures ranging from blood transfusion (NHS Trust v T) to Caesarian
section (Tameside). There is no reason to believe that dialysis
necessitated by an overdose would not be included.
In an event of refusal of treatment the correct procedure would be to
try persuasion, understanding and attempting to address the reasons for
refusal and involvement of family and friends. The capacity should be
assessed using the functional test (rather than an outcome test or a
status test) outlined in S.3 of MCA. In absence of capacity, reasonable
and practicable enquiries for existence of an Advance Directive or a
Lasting Power of Attorney should be made. An Advance directive must be
tested for its validity and applicability (S.25 MCA). If a mental disorder
is suspected advice must be sought from a senior psychiatric colleague.
References
Mental Capacity Act 2005
Mental Health Act 2007
Re B (Consent to treatment: Capacity) [2002] EWHC (Fam)
Sheffield City Council v E. [2004] EWHC 2808(Fam)
Re T (Adult: Refusal of treatment) [1992] 4 All ER 649, CA.
Masterman- Lister v Jewell [2002] EWHC 417, QB
NHS Trust v T (adult patient: refusal of medical treatment) [2004]
EWHC 1279 (Fam).
Tameside and Glossop Acute Services Trust v. CH (1996) 1 F.L.R. 762.
Competing interests: An article by the author titled ' To treat or not to Treat' dealing with the similar question has been accepted for publication by the Emergency Medicine Journal
Dear Editor
I would like to commend the authors for this article, it is
sensitively pitched with sound advice. This is especially true around
basing the approach on supporting decision making.
Truly exploring capacity, whether as part of a Mental Health Act
assessment or under the Mental Capacity Act, is an extremely complex
process in these cases. Acts of violence to self or others, have enormous
meaning and to understand them can take a lot of time and patience, in my
experience best measured in weeks and months, rather than hours. Not
possible when quick intervention is required.
The simplest advice I could give when struggling with a patient in
this situation is that I would suggest the clinician ask themselves this
question. If this person truly wants to die why have they involved me in
this? The vast majority of people that commit suicide, plan and carry out
these acts in secret.
Competing interests: No competing interests
Anthony David and colleagues' article (1) rose to find clarity and
debates on this interesting dilemma of the balancing act for a clinician
which attract our attention due to its relevance to our work.
Ms Wooltornton's death in 2007 attracted press coverage (2-3) and led
presentation of her case in our local peer discussion group attended by
both psychiatric consultants and junior psychiatric trainees. It led to a
heated debate with seniors opting for the use of Mental Capacity Act,
Mental Health Act or respecting the patient's wishes. This discussion
instead of reassurance led to our feelings even more apprehensive about
decision making, being in practice the first port of call for the second
opinion regarding capacity during the out of hours A&E work.
The sticking feature was that there was no consensus on the approach among
clinicians. This situation is common, especially when the patient is under
the influence of alcohol and the situation is well dealt by our colleagues
in the accident and emergency department.
We would also like to draw the attention to the 16-18 year olds who at
time pose a greater challenge, and was rather surprised not to see a
mention of them in David et al's article. Mental capacity act is
applicable to young people over 16 years of age (4). This is specially so
when it comes to declining interventions and in emergencies. Although all
people aged 16 and over are presumed in law to have the capacity to
consent to treatment unless there is evidence to the contrary. A child
aged 16-18 cannot refuse treatment if it has been agreed by a person with
parental responsibility or the Court, and it is in their best interests
this is according to the children's act 1989 amended in 2004, which
provides a legislative spine for the wider strategy for improving
children's lives. This covers the universal services which every child
accesses, and more targeted services for those with additional needs (5).
At times these matters end up with the courts which can over ride the
child or the parent. Therefore they do not have the same status as adults
and needs a more measured approach. The clinicians' agreement with the
person with parental responsibility could have an impact on the
therapeutic relationship and future engagement with the professionals.
We think that the best way to deal the situation is to discuss the issue
with both the A&E and the Psychiatric consultants on call and always to
err on the side of caution and to take legal advice in these grey areas.
When in doubt, it is better to treat the patient and act in their best
interst.
References:
1. David AS, Hotopf M, Moran P, Owen G, Szmukler G, Richardson G.
Mentally disordered or lacking capacity? Lessons for management of serious
deliberate self harm. BMJ 2010;341:c4489
2. http://www.dailymail.co.uk/news/article-1078439/Woman-swallowed-
anti-freeze-dies-refusing-treatment--doctors-feared-assault-claim-saved-
her.html
3. http://news.bbc.co.uk/1/hi/england/norfolk/8284728.stm
4. Department of Constitutional Affairs. Mental Capacity Act 2005
code of practice.
www.opsi.gov.uk/acts/acts2005/related/ukpgacop_20050009_en.pdf
5. www.everychildmatters.gov.uk/strategy/guidance/
Authors:
1. Dr Hifzi Huzair, CT3 in Psychiatry
2. Dr Bartlomiej Matras , CT3 in Psychiatry
3. Dr. Imran Mushtaq, Locum Consultant Child & Adolescent
Psychiatrist Hertfordshire Partnerships NHS Trust St Peter's House, 2
Bricket Road,St Albans, Hertfordshire AL1 3JW
Competing interests: No competing interests
David and colleagues highlight the gap between the legal and clinical
approaches in the management of patients who have seriously self harmed.
Such clinical scenarios are common, typically occur in a time-pressured
and stressful environment, and cause consternation amongst treating
clinical staff.
Consider the case of an 18 year old woman, who is refusing treatment
after an overdose because her boyfriend has ended their relationship, and
who demonstrates her ability to understand the risks of the overdose, to
retain this information, and weigh up this information, before deciding
that death is preferable to life without her boyfriend. Whilst it could be
argued that she has demonstrated capacity, I would venture that most
clinicians would be uncomfortable withdrawing active care. This discomfort
reflects the clinician's intuitive judgement, and is often hard to put
into words other than that it "feels wrong". The complex interaction of
patient behaviours, intentions and feelings are not easily reducible to a
crisp appraisal of mental capacity, which is too simplistic to address the
real life psychodynamic issues familiar to psychiatrists.
David and colleagues suggested guidance is therefore a timely and
welcome step forward in addressing such complex and emotive issues, and
helping clinicians to navigate through this legal and ethical minefield.
Competing interests: No competing interests
Dr Davies, in common with Professor David and colleagues, raises some
interesting discussion points but overlooks the practical issues involved
in attempting to administer life saving treatment to a young adult who
does not wish to receive it. Paracetamol is by far the commonest overdose
choice in the UK, and treatment is effective if administered early and
whilst the patient still feels well. The arrival of a person (invariably
outside office hours) who states that they have recently taken a
potentially lethal overdose of paracetamol but does not wish to be treated
is a weekly occurrence in my inner-city Emergency Department, and many
times commoner than the situation outlined in the original BMJ article.
Capacity and the presence of mental disorder are extremely challenging to
assess, particularly in a distressed patient who is usually intoxicated
with alcohol and/or drugs and is required to compete for my attention with
a resuscitation room full of critically ill and injured patients. If I
decide to "err on the side of caution" and administer treatment I may then
be required to either physically or chemically restrain the patient, for
more than 24 hours if a full course of N-acetylcysteine is required. This
has profound resource implications and is not without risk to the patient
and staff.
As the senior decision-maker regularly presiding over this situation
I am acutely aware of the competing risks that I am obliged to balance,
and to which I am professionally exposed. I cannot be alone in seeking
greater clarity and practical solutions to address this problem, both to
protect my colleagues and provide a better service to our patients.
Competing interests: No competing interests
This helpful analysis [1],among other things, highlights the importance of differentiating between a proper advance decision(per Mental Capacity Act 2005) and a letter of wishes/intentions as in Miss Wooltorton's case.It was also reported that Miss Wooltorton was allowed to die "because doctors feared saving her would be assault"[2].As I have not had sight of the relevant coroner's report, it is difficult to say whether or not a senior psychiatrist was consulted before giving into the written wishes of Miss Wooltorton. Further, as amplified by the authors[1], it is crucial that any assessment of mental capacity is a very thorough one, and must include judging the patient's ability to 'use or weigh' the relevant information. This case also illustrates, considerations under the Mental Health Act 1983(as amended) must not be forgotten even if one has written wishes as to medical management following a suicidal attempt. I hope, lessons will be learned from this case.
References
[1]Analysis:
Mentally disordered or lacking capacity? Lessons for management of serious deliberate self harm.
Anthony S David, Matthew Hotopf, Paul Moran, Gareth Owen, George Szmukler, and Genevra Richardson
BMJ 2010 341:c4489; doi:10.1136/bmj.c4489
[2]http://www.telegraph.co.uk/health/6248646/Suicide-woman-allowed-to-die-b...(accessed-20 September 2010)
Competing interests: No competing interests
Thanks to the authors for a helpful article on a controversial
subject.
Aside from the issue of personality disorder, the issue of how what
they term "serious emotional turmoil" can affect Capacity is one that
arises every night in Emergency Departments. Determining Capacity based on
a distressed individual's ability to weigh information in the balance is a
difficult and subjective one. The authors state that "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."
However I suspect that Psychiatric colleagues would find the issues
equally difficult, whatever the hour, and that a range of opinions would
be given.
The authors suggest that the Mental Health Act may be used to
administer life-saving physical treatment in this situation. Again, I
suspect this is an issue many Psychiatrists and Approved Mental Health
Practitioners would struggle with. Suicidal thoughts and actions are part
of the definitions of several mental disorders including depression and
borderline personality disorder. The question is whether treating the
physical consequences of these symptoms constitutes a treatment for the
mental disorder itself. The authors argue that it might, but acknowledge
this has not been tested in case law and is not explicit in the statute
law. Also, a substantial proportion of people who present with attempted
suicide are found (on later assessment) not to have a mental disorder
atall. This may be difficult to determine at the time of presentation.
A single statute governing involuntary treatment would as the authors
suggest clarify these issues, but seems a distant prospect. A judicial
review of a Coroner's decission on grounds of Public Law Principles might
have brought a quicker result, but is required within 3 months of a
verdict. Simillarly, an appeal under Human Rights legislation must be made
by the person(s) affected by the decission.
For now, the implications seem to be that at 3 am, Casualty Officers
should get a senior opinion, and in cases of doubt, should err on the side
of intervening to preserve life, rather than respecting autonomy which may
turn out to be absent.
Competing interests: No competing interests
Sec 3 Date discrepancy
Kerrie Wooltorton died in 2007.The synopsis of coroners report says
she was detained on March 2009,it should be March 2007.
Competing interests: No competing interests