Civil legal aspects, Mental Capacity Act 2005 and ethics of psychiatry

23 Civil legal aspects, Mental Capacity Act 2005 and ethics of psychiatry

Psychiatric opinions in civil law (civil capacity)

The Burden of Proof in such matters is on the balance of probabilities.

A Issues of mental fitness

1 Contracts

Contracts require free full consent. If an individual is of unsound mind (not equivalent to mental disorder as defined by nor to being detainable under the Mental Health Act l983) at the time of making a contract, that contract is regarded as void. However, the ‘mentally incapable’ are bound by contracts unless the other party or parties to the contract knew or should have known of the individual’s incapacity. Under employment law an individual can be dismissed only for behavioural effects of mental disorder, not for mental disorder itself.

2 Testamentary capacity

This is the ability to make a valid will. To do this in the UK, individuals must be over the age of l8 and not be of ‘unsound mind’.

This becomes an issue either at the time an individual makes a will, where a solicitor may ask for medical, including psychiatric, advice, or after that individual’s death. Accurately assessing the capacity of a person to make a will would prevent the current high levels of litigation in this area.

If a patient decides to make a will, he may ask the doctor attending him to witness it, particularly if he is seriously ill. Doctors should be aware they will be regarded in law as not acting as mere lay witnesses. If a doctor does agree to do so, he is said to have ‘attested the will’, which implies he considers the patient to be of ‘sound disposing mind and memory’. This is most often undertaken by a general medical practitioner rather than a psychiatrist. If the will is subsequently contested, the doctor may be required to appear in court to give evidence about the patient’s mental state at the time he made the will.

Although not specifically defined in law, to have a ‘sound disposing mind’ by custom (based on Banks versus Goodfellow (1870)) the individual must:

1) know the nature and extent of his property, though not necessarily the details,

2) know all persons and their names having a claim on his bounty, and the relative strength of their claim (e.g. bearing on the distribution between persons),

3) have no morbid state of mind that might distort his natural feelings and influence his decisions,

4) have the ability to realize the nature of a will and its consequences, and

5) be able to express himself clearly and without ambiguity.

The presence of mental disorder, such as mild dementia, does not necessarily affect testamentary capacity, although clearly if the will is complex, it may do so. Testamentary capacity, however, may be severely affected if the individual has paranoid delusions about an individual who would normally be considered to have a claim on his property. The 1826 case of Dew v. Clark established, however, that even if one was deluded (in this case believing he was being pursued by evil spirits), this does not necessarily preclude an individual having testamentary capacity.

If you die having left a will, then you die ‘testate’ and a grant of probate enables your executor or trustee to administer the will. Wills must be in writing, save if on ‘actual military service’. Wills must be made without force, fear, fraud, nor undue influence. A person making a will is either a testator or testatrix. The similarity of such words to testes is not by chance. The ancient Romans swore oaths by placing their fingers on the testes. The relevant law is the Administration of Estates Act l982.

3 Marriage

Marriage is a contract, so that if an individual has a mental disorder at the time so as not to appreciate the nature of the contract, that contract is ‘voidable’ (not void). Lack of valid (competent) consent is rare, as most mentally disordered individuals appreciate the nature of marriage.

A marriage may be annulled if:

• One partner has a mental disorder at the time of the marriage so as not to appreciate the nature of the contract.

• One partner did not disclose that he or she suffered from epilepsy or a communicable venereal disease.

• Either party was under 16 years at the time of marriage.

• Pregnancy by another male at the time of marriage was not disclosed.

• There was non-consummation (no intromission of the penis).

• One of the partners was forced to agree to the marriage under duress.

Marriage continues until successfully challenged in the courts by one of the parties, resulting in the marriage being deemed ‘voidable’.

Legal capacity to marry is different to the legal capacity to have sexual relations.

Apart from an inability to give valid competent consent, to marry an individual may be deemed, even if they can give valid consent, as unable to marry due to ‘unfitness for marriage’, i.e. having a mental disorder in terms of the definition of the Mental Health Act l983 resulting in an incapacity to carry out the ordinary duties of marriage (not just be difficult to live with). For a marriage to be ‘voidable’ on such grounds, the individual must be incapable of living in a married state or carrying out the ordinary duties of marriage. Psychiatric grounds must be substantial. A Registrar will only rarely refuse to marry on the basis of unfitness for marriage, but will more commonly do so on the basis of incapacity to consent. Any person, including a doctor, may enter a ‘caveat’ pre-marriage with a Superintendent Registrar, who must then investigate it.

4 Sexual relationships between inpatients

(1) Article 8 European Convention on Human Rights secures the right of all to respect for private and family life, which is taken to include sexual relationships between patients.

In practice, competent detained inpatients are not precluded from marriage, but secure hospitals, such as Special Hospitals in the UK, e.g. Broadmoor Hospital, have, on the basis of need for rules governing inpatients, successfully resisted to date the right of such inpatients to have provisions made for sexual relations between them.

(2) U.N. Declaration of Rights of Mentally Retarded Persons (1971) gives the right of the mentally handicapped to live with their own family. It does not specifically refer to sexual relations, but is taken to imply this.

(3) It is illegal for male staff to have a sexual relationship with a patient, a male guardian with a subject of a guardianship order and anyone with a patient with ‘severe mental handicap’ in the UK.

5 Divorce

This is covered by the Matrimonial Causes Act 1973. Mental disorder may affect the capacity to consent to divorce. Non-consensual divorce is achievable only on the basis of behaviour as specified in the Matrimonial Causes Act. Thus, mental disorder is the basis for divorce only when it results in the relevant legal behaviour, i.e. adultery, unreasonable behaviour (which replaced the term cruelty), desertion, and living apart for more than two years if the respondent consents or for five years without consent (irretrievable breakdown). ‘Quickie’ divorces are based on filing affidavits, in contrast to divorces which are defended in court. Mental disorder most often leads to divorce by causing an irretrievable breakdown in marriage due to unreasonable behaviour.

Issues relating to the children of marriage following divorce are governed by ‘supremacy of the interest of the child’. Separation/divorce usually results in residence, which replaced the term custody, of the children with the mother, unless, for example, mental disorder, among other factors, ‘affects her capacity to love and care for the child’. Contact has replaced the term access and the Child Support Agency has taken over many of the past roles of lawyers contesting financial issues related to child care in court.

A Care Order (Children and Young Persons Act l989) is taken out where a parent or parents cannot safely care for the child, i.e. on grounds of actual, or risk of, serious harm and this is attributable to care. Objective, especially current, behavioural evidence carries more weight in court than predicted behaviour.

6 Tort

This is a civil wrong to a person, a reputation or the estate of an individual, e.g. libel, slander, fraud, trespass, negligence and breach of copyright. Mentally disordered individuals are considered incapable of committing a tort unless the disorder does not preclude them understanding the nature or probable consequences of their acts. Defamation, which covers slander (spoken) and libel (written, but also includes spoken word on TV, film or video), is not eligible for legal aid and is heard and adjudicated, e.g. regarding the amount of damages, by a jury. Hence, the occasional huge damages in such cases awarded by a jury. Defences include ‘justification’, ‘fair comment’, and ‘mere vulgar abuse’.

7 The mentally disordered as witnesses

Mentally disordered individuals may give evidence in court or make a written statement, but it is for the magistrates or the judge to determine whether they are fit to do so and can understand the nature and obligation of the oath. To this end, medical evidence may be called for and the jury will have to consider how much weight to attach to the witness’s evidence.

8 Guardianship and Appointeeship

Guardianship may be useful to help someone over age l6 years having difficulty looking after themselves.

Appointeeship. An appointee is someone authorized by the Department of Social Security in England and Wales to receive and administer benefits on behalf of someone else.

Mental Capacity Act 2005

The main provisions are as follows:

• Designated decision makers for those who lack capacity

• Lasting Power of Attorney (LPA). Like the prior Enduring Power of Attorney (EPA) but can make healthcare and welfare decisions

• Court Appointed Deputies. Replaces Receivership in the Court of Protection. Can make decisions on welfare, healthcare and financial matters, but cannot refuse consent to life-sustaining treatment.

Two new public bodies

• A new Court of Protection

• A new Public Guardian

Will register LPA and deputies

Supervise deputies

Be scrutinized by a Public Guardian Board.

Three Provisions to protect vulnerable people:

• Independent Mental Capacity Advocate (IMCA)

• Advance decisions to refuse treatment, including, if expressly stated, ‘even if life is at risk’

• New criminal offence of ill treatment or neglect of person who lacks capacity.

3 Capacity

A person may lack capacity 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 (s.2)

• it does not matter whether the impairment or disturbance is permanent or temporary.

4 Statutory principles

Under Section 1(1):

1. Everyone is assumed to have capacity unless shown otherwise.

2. No one is to be treated as unable to make a decision unless all practicable steps to assist have failed.

3. A person is not to be treated as lacking capacity only because he makes an unwise decision.

4. Any act or decision on behalf of someone who lacks capacity must be done in his best interests.

5. Before any act, there must be consideration whether the objective can be as well achieved in a less restrictive way.

Section 4: Best Interests

One must consider all the relevant circumstances, in particular

1. Involve the person if possible in any decision.

2. Other wishes/beliefs, made with capacity, or values that indicate preference.

3. Anyone already nominated, or any carers etc., e.g. Lasting Power of Attorney or Court Appointed Deputy.

4. Likely to regain capacity? If so, when?

5. Not to seek the subject’s death where the decision relates to life-sustaining treatment; consider whether it is in the best interests of the person concerned. (‘Life-sustaining treatment’ is treatment which the provider clinician considers necessary to sustain life.)

Section 4(a): A reasonable belief

• There is sufficient compliance with the best interests requirements if (having complied with the requirements of section 4) the person making the determination reasonably believes that what s/he does or decides is in the best interests of the person concerned.

5 New Processes for Making Decisions

• Advance Decision (AD).

• Lasting Power of Attorney (LPA).

• Court of Protection or Court Appointed Deputy (CAD).

a Advance Decisions (ADs) (Section 24)

A decision made by an adult with capacity that if:

• at a later time a specified treatment is proposed to be carried out by a person providing health care, and

• at that time he lacks capacity to consent to that treatment, then the specified treatment is not to be carried out or continued.

An Advance Decision (AD) is not necessarily binding if the following tests are met:

Capacity test: if the person still has capacity to consent to treatment proposed

Validity test: if s/he withdrew the AD at any time when able to do so, or has done anything clearly inconsistent with the AD

Applicability test:

not the treatment specified in the AD

any specified circumstances are absent; or

reasonable grounds for believing that important unforeseen circumstances exist, not anticipated at time of the AD.

Life sustaining threshold: An AD is not applicable to life-sustaining treatment unless it is verified by a statement to the effect that it is to apply to that treatment even if life is at risk, and the decision is in writing, signed and witnessed.

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Tags: Textbook of Psychiatry

Jul 12, 2016 | Posted by admin in PSYCHIATRY | Comments Off

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