Transcript Ethical Issues in Psychiatry

Ethical & Legal Issues in Psychiatry
Elizabeth Fistein MRCPsych
Ethics & Law Co-ordinator, Clinical School
Wellcome PhD Student, Mental Health Law &
Ethics, Dept of Psychiatry
The MRCPsych Curriculum
Medical ethics and principles of
law
• Demonstrate awareness of legal principles,
consent, restraint, legal responsibilities and
protection
• Discuss Powers of Attorney, Enduring Powers of
Attorney, management of property and
testamentary capacity
• Discuss the effects of psychiatric disorders on
driving capability
• Demonstrate knowledge of relevant mental health
and human rights legislation
Clinical competency
• Be able to:
• Describe the ethical and legal constraints on the
day-to-day practice of psychiatry
• Undertake an assessment of a patient under
current mental health legislation
• Be sensitive to and respect the differences relating
to culture, ethnicity, religion, health status and
sexual orientation whatever the nature of his or her
personal views
Ethical and conceptual problems
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Demonstrate awareness of problems arising from:
Different values of colleagues, patients and carers
Different belief systems
Limitations of paradigms
The relativity of judgements of rationality
The distinction between scientific/technical and
ethics/value bases for clinical decisions
• Demonstrate a working knowledge of:
• Ethical standards, guidelines and codes of
practice for the profession (incl research)
• Differences in ethical, religious and other
belief systems between cultures
• The findings of relevant empirical research
into eg. Patients’ experiences, effectiveness
of different styles of communication
Lecture 1. Ethical Theory
Psychiatric ethics – some basics
• Ethics = a branch of philosophy concerned with
the nature of morality and what it requires of us.
Attempts to use reason to describe how we ought
to live.
• Code of ethics = a set of rules or guiding
principles adopted by a group such as the medical
profession. Sets out how a member of that group
ought to behave. May be used for self-regulation.
Infringement may result in restriction of privileges
associated with membership of the group, or with
expulsion from the group.
Hippocratic oath
• often estimated to have been written in the 4th
century B.C.E.
• One of the best known prohibitions is, "to do no
harm“
• Promotes medical teaching, acting in the best
interests of patients, abstention from mischievous
action and patient confidentiality.
• http://www.nlm.nih.gov/hmd/greek/greek_oath.html
Charaka Samhita
• Indian Ayurvedic text on internal medicine
• Dates from 3rd century BCE
• proposed confidentiality, consideration
towards patients and keeping abreast of
medical knowledge.
Thomas Percival
• Medical ethics, or a code of institutes and
precepts (1794)
• “asserted the moral authority and
independence of physicians in service to
others, affirmed the profession's
responsibility to care for the sick, and
emphasized individual honor”
• Basis of AMA’s Code of Ethics
Scandalous research
• Neisser case (1892-1898)
• Tuskegee syphilis experiment (1932-1972)
• Both involved exposing subjects to syphilis without their
consent
• Neisser case lead to introduction of strict guidelines in
Prussia
• Unit 731 was a covert biological and chemical warfare
research and development unit of the Imperial Japanese
Army that undertook lethal human experimentation during
the Second Sino-Japanese War (1937–1945) and World
War II
Nuremberg trials
• The Doctors' Trial (officially United States of America v.
Karl Brandt, et al.) was the first of 12 trials for war crimes
(the Nuremberg trials) that the United States authorities
held in their occupation zone in Nuremberg, Germany
after the end of World War II.
• On trial were Nazi doctors who had conducted experiments
on people from various minorities (Jewish, homosexual,
disabled etc)
• The Nuremberg Code formulated in 1947 was the first
international statement on the ethics of medical research
using human subjects, developed in response to the
Nuremberg Trials.
Declarations of Helsinki & Geneva
• Both derived from the Nuremberg Code
• Geneva (1948) – medical ethics
• http://www.cirp.org/library/ethics/geneva/
• Helsinki (1964) – research ethics
• http://www.cirp.org/library/ethics/helsinki/
Research ethics now
• The Belmont report was published in 1979 and was used to
develop rules governing research using human subjects in
the US.
• The Warnock report (1984) reported the findings of the
Committee of Inquiry into Human Fertilisation and
Embryology. These formed the basis of the Human
Fertilisation and Embryology Act 1990.
• The Nuffield Council on Bioethics examines ethical issues
raised by new developments in biology and medicine.
Established by the Nuffield Foundation in 1991, the
Council is an independent body, funded jointly by the
Foundation, the Medical Research Council and the
Wellcome Trust.
Stem: Select one incorrect pair:
• Options:
• A: Caraka Samhita: Confidentiality, and keeping abreast
of medical knowledge.
• B: Code of Institutes and Percepts: Thomas Percival.
• C: Declaration of Helsinki: Following the Nuremberg War
Trials.
• D: Declaration of Geneva: Following the Nuremberg War
Trials.
• E: Hippocratic Oath: Acting in the best interests of patients
• F: Nuremberg War Trials: Tried the Japanese
The first international agreement on
use of human subjects in research
came from which report?.
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A: Belmont report
B: Declaration of Helsinki
C: Maastricht agreement
D: Nuffield council on bioethics report
E: Nuremberg code
F: Warnock Report
Sources of medical ethics
• Medical ethicists apply ideas and principles
from general moral philosophy to problems
that occur in clinical medicine.
• In the Anglo-American context, three
approaches that are widespread are
utilitarianism, deontology and virtue ethics.
Utilitarianism
• A form of consequentialism / teleology
• concerned with the consequences of action
(or inaction)
• The right course of action is that which
produces the best outcome
• Mill defined the best outcome as the
greatest happiness for the greatest number
of people.
Deontology
• concerned with actions rather than their
consequences.
• The right course of action is consistent with
a set of rules or duties
• Kant defined a system for generating
universal rules (the categorical imperative)
Virtue ethics
• Concerned with the qualities of the agent
• The right course of action involves
balancing a rational approach with the right
amount of appropriate emotion
• Aristotle argued that the right amount of
emotion is a ‘mean between extremes’
From
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principles to practice
• Beauchamp & Childress proposed a method –
‘principlism’
• an approach to moral decision-making in medicine
that could be applied to real-life clinical problems
• argued that four mid-level principles are common
to both utilitarian and deontological thinking and
to ‘common morality’ – widely shared social
conventions about right and wrong behaviour that
form a stable consensus.
Beneficence
• from which arises a duty to help others
• either because one has a particular
relationship to them, such as doctor &
patients,
• or because one is able to save them without
putting oneself at undue risk
Non-maleficence
• from which arises a duty to not do things
that will harm others
• Does not encompass a duty to prevent harm
occurring (e.g. through the actions of
others)
Respect autonomy
• from which arises an individual’s right to
determine what is done to him or herself
Justice
• from which arises an individual’s right to
be treated fairly and equitably in
comparison with others
• Does not mean everyone has to be treated
identically
The fifth element…
• Reflective equilibrium
• the doctor must determine which of the four
principles are relevant
• then balance them against each other
• to find the solution that gives each principle
appropriate weight.
Ethical and conceptual problems
• Goffman (1961) described the moral transformation of
patients during their hospital stay – ‘institutionalisation’
• Concluded that adjusting the inmates to their role has at
least as much importance as "curing" them.
• Szasz (1960) argued that medical diagnoses are rooted in
purely factual descriptions of organic pathology and its
consequences, while such descriptions are generally
lacking in psychiatry and therefore, psychiatric diagnoses
are invalid.
• Concluded that it is wrong to medicalise mental distress
Biological psychiatry
• Refutes Szasz’s anti-psychiatry
• Psychiatry is a protoscience – based on
underlying physical pathology, it is just that
this is not yet fully understood.
Facts and values
• The scan shows a Berry aneurysm
• The patient complains of the symptoms of
migraine
• The patient reports unusual beliefs
• This is a bad thing
• We should treat this patient
Fulford’s values-based medicine
• Compromise between anti-psychiatry & biological
psychiatry
• Argues that all medicine is a mix of facts and
values
• Merely more obvious in psychiatry, because there
is greater plurality of values
• Psychiatric diagnoses no less valid than those in
the rest of medicine
• But we need to find out what matters to our
patients
Select the option that refers to the
ethical principles that are widely
adopted in medical practice:
• A: Beneficence, Good will and Duty
• B: Confidentiality, Consent and Justice
• C: Respect for Autonomy, Beneficence and
Justice
• D: Respect for Autonomy, Justice and
Confidentiality
• E: Respect, Justice, and Consent.
Stem: Select one option that is not a
feature of Teleology
• A: Consequences are all-important
• B: Common good takes precedence over
individual interests
• C: No common scale of measurement
• D: Utilitarianism
• E: Rights and duties determine action
Stem: The following statements are
correct except:
• A: In Deontology, action is determined by rights
and duties.
• B: Fulford claimed that psychiatric diagnoses are
less valid than physical diagnoses.
• C: Goffman described the moral transformation of
patients during their hospital stay.
• D: Szasz argued that it is wrong to medicalise
mental distress and then to treat it.
• E: Teleology is based on consequentialism and
utilitarianism
End of lecture 1 (ethical issues)
• Lecture 2 (Mental Health Act) will follow
shortly…
Law – some basics
• Common law = case law - decisions about
law made by judges sitting in court
• e.g. Re C (the case which saw the
development of the common law test of
mental capacity).
• Statutory law = Acts of Parliament &
secondary legislation
• e.g. the Mental Capacity Act 2005.
The doctrine of judicial precedent
• The decision of a court will bind a court that is
lower in the hierarchy (or sometimes of equal
status).
• The ratio decidendi is the binding part of the case
– statement of the legally relevant facts, statement
of relevant law, and application of law to facts.
• Everything else the judge says is obiter dicta (but
may be persuasive).
• When a court is bound, it must follow the decision
made in a case with the same ‘material facts’.
The doctrine of parliamentary
supremacy
• Parliament can make or unmake any law it choose.
• This law is binding – it must be followed by the
courts (unless incompatible with international
law).
• However, the courts are free to interpret statute as
appropriate.
• The courts must follow the ‘rules’ of construction
(which are in fact a collection of guiding
principles):
Rules of construction
• The literal rule (give words their usual meaning)
• The mischief rule (consider what ‘mischief’ the
statute was intended to remedy)
• The golden rule (give words their usual meaning,
provided this does not give an absurd or
obnoxious result)
• Purposive approach (from European civil law
tradition, where simplicity of drafting is favoured
and courts are free to interpret meaning in line
with purpose)
Autonomy & the law
A very important principle
The law respects prima facie rights to selfdetermination & bodily integrity
• Leads to prohibitions on:
• Unlawful touching (=assault)
• False imprisonment
To avoid being charged with /
sued for assault…
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Have a valid defence:
Statutory provisions
Consent
Neccessity
Consent
• The usual justification for medical
intervention
• Three vital components:
• Voluntary not coerced
• Informed re nature and purpose of the act
• Capacity ie ability to decide to grant
consent
MHA 1983 (as amended by MHA 2007)
• Permits detention in hospital and the
provision of medical treatment for mental
disorder in the absence of consent.
Principles of MH Law
• WHO (2003)
• Protecting the human rights of people with mental
disorders, a vulnerable group whose rights are
liable to be violated.
• Providing a legal justification for treating people
whose decision-making capacity has been
impaired, preventing them from seeking help for
their problems.
• Protecting patients and others from the risks they
may pose due to impaired decision-making
abilities.
Richardson Report (1999)
• informal care,
• provision of the least restrictive alternative
compatible with the delivery of safe and
effective care,
• consensual care,
• reciprocity,
• respect for diversity
• recognition of the role of carers.
Millan Committee (2001)
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1. Non discrimination
2. Equality
3. Respect for diversity
4. Reciprocity
5. Informal care
6. Participation
7. Respect for carers
8. Least restrictive alternative
9. Benefit
10. Child welfare
Stem: The recommended principles for
mental health legislation proposed by
Millan (2001) include the following
except:
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Child welfare
Informal care
Non-discrimination
Reciprocity
Social supports
Detention under the MHA
Consider 4 criteria:
Diagnosis
Severity
Availability of treatment
Need for treatment
Diagnosis
• Does the person have a mental disorder?
• ‘“mental disorder” means any disorder or
disability of the mind’
• ‘But a person with learning disability shall not be
considered by reason of that disability to be
suffering from mental disorder…unless that
disability is associated with abnormally aggressive
or seriously irresponsible conduct on his part’
• ‘Dependence on alcohol or drugs is not considered
to be a disorder or disability of the mind’
Severity
Is it bad enough to warrant hospital treatment and detention?
• ‘suffering from mental disorder of a nature or degree
which warrants the detention of the patient in a hospital for
assessment (or for assessment followed by medical
treatment) for at least a limited period’ –s.2
• ‘his mental disorder is of a nature or degree which makes it
appropriate for him to receive medical treatment in a
hospital…’
• ‘…and it cannot be provided unless he is detained under
this section’ –s.3
Availability of treatment
• Is appropriate treatment available?
• ‘“medical treatment” includes nursing,
psychological intervention and specialist mental
health habilitation, rehabilitation and care’
• ‘the purpose of which is to alleviate, or prevent a
worsening of, the disorder or one or more of its
symptoms or manifestations,’
• ‘which is appropriate in his case, taking into
account the nature and degree of the mental
disorder and all other circumstances of his case’
Need for treatment
• Do I need to detain/treat the patient?
• ‘he ought to be so detained in the interests
of his own health or safety or with a view
to the protection of other persons’ –s.2
• ‘it is necessary for the health or safety of
the patient or for the protection of other
persons that he should receive such
treatment’ –s.3
In summary
• Applies to those patients who are ill enough to
make in-patient psychiatric Rx appropriate, but
cannot be admitted/treated informally
• Used when competent patients refuse Rx and
when incompetent patients resist
• Incompetent compliant patients may be admitted
under MCA 2005, following Deprivation of
Liberty safeguards.
Enabling or compelling?
• The criteria for detention are broad
• The fact that a patient meets the criteria
does not mean you must detain him/her
• Always ask yourself ‘What is the right thing
for this patient?’
• Legal protection for professionals acting in
good faith
Treatment under the MHA 1983
• If a patient is detained under the MHA
[except 5(2)/5(4)], he or she may be treated
for mental disorder without consent
• Applies even if the patient retains decision
making capacity or has made an advance
directive refusing treatment
• Consent and/or 2nd opinion required in
certain specific circumstances
Confidentiality
• Health professionals are responsible to patients for the
confidentiality and security of the health information they
hold.
• In the BMA’s view all data collected by doctors working in
their professional capacity are confidential.
• Whether or not doctors are engaging in their professional
capacity depends to some extent on the perception of the
person giving the information.
• Anonymous information may be used for legitimate
purposes without consent.
Legitimate breaches
• There should be no use or disclosure of any
confidential information gained in the course of
professional work for any purpose other than the
clinical care of the patient to whom it relates.
There are three broad exceptions to this standard:
• Where there is appropriate consent
• Where the law requires disclosure
• Where there is an overriding public interest in
disclosure.
Consent to disclosure
• May be express or implied
 Implied consent may occur when information is
shared with other members of the health care team
or in an emergency.
 Clinical audit is essential to the provision of good
care and consent to disclosure of information for
clinical audit is implied, provided steps have been
taken to make patients aware and they have not
objected.
Legal requirements for disclosure
– Infectious Diseases Act - notification of a
known or suspected communicable disease.
– Road Traffic Act (www.dvla.gov.uk)
– Terrorism Act
– If required to do so by a court, including
coroner’s court.
– Disclosure for statutory bodies e.g. GMC
Public interest disclosure
• Prevention or detection of serious crime
 To protect the patient or others. Where
failure to do so may expose the patient or
others to risk of death or serious harm
• When patients lack capacity to give
consent and disclosure is necessary in the
best interests of the patient
• You must be able to justify your decision
In which of the following scenarios
would you break a patient’s
confidentiality and report them to the
police?
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aggressive and violent on the ward
dangerous behaviour in the community
reports taking illegal drugs
confesses to participating in a burglary
driving without insurance
End of lecture 2
• Lecture 3 (Mental Capacity Act) follows
shortly…
Consent
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The usual justification for medical intervention
Three vital components:
Voluntary not coerced
Informed re nature and purpose of the act
Capacity ie ability to decide to grant consent
• Need a justification for treating patients who
cannot give consent (who lack capacity)
Capacity
• All adults are presumed to have the capacity to
give competent consent
• by extension, their refusals of treatment must be
respected unless you have a statutory or commonlaw defence.
• some adults are unable to give meaningful consent
and another approach is required (the possible
approaches are all described in the MCA 2005).
• Before adopting an alternative approach to seeking
consent, you must demonstrate that the patient
lacks the capacity to make this decision.
Assessing capacity
• 2-part test: diagnostic threshold + test of
functional ability
• Capacity is decision-specific so the test must be
reapplied for each new treatment decision.
• Capacity can fluctuate. If appropriate, delay
treatment until competent consent is possible
• You have a duty to maximise the potential for
competent consent by giving information in a
form that the patient can understand, at a time
when he or she is most able to understand.
Step 1: Diagnostic threshold
• ‘a person lacks capacity in relation to a matter if at
the material time he is unable to make a decision
for himself in relation to the matter because of an
impairment of, or a disturbance in the
functioning of, the mind or brain.’ – s2(1).
• This includes (but is not limited to)
unconsciousness, intoxication, delirium, dementia,
mental illness and intellectual disability.
Step 2: functional ability
• ‘For the purposes of section 2, a person is unable
to make a decision for himself if he is unable—
• (a) to understand the information relevant to the
decision,
• (b) to retain that information,
• (c) to use or weigh that information as part of the
process of making the decision, or
• (d) to communicate his decision (whether by
talking, using sign language or any other means).’
– s3(1).
Advance Directives
• A person with decision-making capacity can make
an advance directive, withholding consent for
treatment / procedures in the event of loss of
capacity in the future (MCA)
• Must be informed, voluntary and capacitous
• Can apply to life-saving treatment, provided that it
is clear that the person meant the directive to apply
in those circumstances
Proxy consent
• Acceptable in some circumstances:
• If a child lacks capacity to consent, the parent may
consent on his or her behalf (Gillick)
• An adult may grant an Lasting Power of Attorney,
enabling a proxy to make healthcare decisions on
his or her behalf should he or she lose capacity
(MCA)
• The courts may appoint an agent to make
healthcare decisions on behalf of an adult who
lacks capacity (MCA)
• The proxy must act in the patient’s best interests
Lasting Power of Attorney
• An adult who has capacity (donor) may nominate an attorney (donee),
granting the donee the legal power to make decisions on the donor’s
behalf if he/she loses capacity.
• Can be granted to a friend or family member – anyone the donor trusts
to make proxy decisions.
• A ‘personal welfare’ LPA covers health and welfare decisions
including giving or refusing consent to treatment. It includes life
saving treatment only if express provision is made.
• The LPA must be registered with Office of Public Guardian and only
becomes effective when capacity is lost.
• Donees must act in the best interests of the donor (they are presumed
to be in the best position to judge these, having been selected for the
purpose by the donor, but can be displaced if they are shown to fail in
this duty).
Treatment under MCA 2005
• If the patient lacks the capacity to consent, and
there is no relevant AD or LPA, the Dr may
provide treatment that is in the best interests of
the patient
• You have a duty where practical to consult with
family/friends when determining best interests
• If there are no family/friends, consult with an
Independent Mental Capacity Advocate
The principle of Best Interests
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Not limited to medical indications:
social context
patient’s wishes
invasiveness
reversibility
balance of burdens and benefits
Determining best interests 1
• (1) In determining for the purposes of this Act
what is in a person’s best interests, the person
making the determination must not make it merely
on the basis of—
• (a) the person’s age or appearance, or
• (b) a condition of his, or an aspect of his
behaviour, which might lead others to make
unjustified assumptions about what might be in his
best interests.
Determining best interests 2
• He must consider—
• (a) whether it is likely that the person will at
some time have capacity in relation to the
matter in question, and
• (b) if it appears likely that he will, when
that is likely to be.
Determining best interests 3
• He must, so far as reasonably practicable, permit
and encourage the person to participate, or to
improve his ability to participate, as fully as
possible in any act done for him and any decision
affecting him.
• Where the determination relates to life-sustaining
treatment he must not, in considering whether the
treatment is in the best interests of the person
concerned, be motivated by a desire to bring about
his death.
Determining best interests 4
• He must consider, so far as is reasonably
ascertainable—
• (a) the person’s past and present wishes and
feelings (and, in particular, any relevant written
statement made by him when he had capacity),
• (b) the beliefs and values that would be likely to
influence his decision if he had capacity, and
• (c) the other factors that he would be likely to
consider if he were able to do so.
Determining best interests 5
• He must take into account, if it is practicable and
appropriate to consult them, the views of—
• (a) anyone named by the person as someone to be
consulted on the matter in question or on matters of that
kind,
• (b) anyone engaged in caring for the person or interested in
his welfare,
• (c) any donee of a lasting power of attorney granted by the
person, and
• (d) any deputy appointed for the person by the court,
• as to what would be in the person’s best interests
Stem: According to the Mental Capacity
Act 2005 a person has capacity if
• A: He is able to retain the information
• B: He is able to understand the information
relevant to the decision
• C: He is able to use or weigh the
information
• D: He is able to communicate the
information
• E: He is not found not to have capacity
What is the best management of a person
with Learning Disability infected with
hepatitis?
• A: isolation
• B: involve the person’s carers in the
management
• C: do nothing because little can be done for
people with learning disability
• D: administer the most effective medication
immediately
• E: notify the public health surveillance team