Ethics and civil law
Ethical problems in psychiatric practice
Introduction
This chapter is concerned with the ways in which general ethical principles, relating to matters such as confidentiality, consent, and autonomy, are applied to the care of people with mental disorders. We assume that the reader has already studied ethical aspects of general medicine, otherwise they should consult Hope et al. (2008) or a comparable textbook of medical ethics.
Ethical considerations are extremely important in all branches of medicine. However, in psychiatry they have additional importance because some patients lack the capacity to make judgements about their own need for care, and because of the provision for involuntary treatment. Questions about capacity to consent to treatment of psychiatric illness commonly arise, and psychiatrists are sometimes asked by colleagues in other specialties for advice about capacity to consent to treatment for physical illness.
In this chapter we also consider some aspects of the Mental Health Act and the law relevant to psychiatry. These aspects are necessarily general ones because the specific provisions of the law differ from one country to another. For this reason, the reader should find out the relevant legal provisions in the country in which they are working and whenever necessary seek expert advice about details of the law and its application.
The chapter is divided into four parts:
1. general issues
2. ethical problems in psychiatry
3. the Mental Health Act
4. some aspects of civil law that are relevant to the practice of psychiatry.
The reader should note that this is not the only chapter in which we consider ethical problems. Some ethical problems that relate specifically to issues discussed elsewhere in this book are considered in those chapters (see Box 4.1).
General issues
The conclusion that it is ethically right to act in one way rather than another should be:
• based on agreed ethical approaches and principles
• logically sound
• consistent across decisions.
Ethical approaches
In psychiatry, as in ethics generally, two broad approaches to ethical problems are employed—the duty-based approach and the utilitarian approach.
The duty-based approach sets out clinicians’ obligations in a series of rules—for example, the rule that doctors must not have sexual relationships with their patients. These rules may be brought together in a code of practice. Because there are rules, clinicians are readily aware of their duties. However, the approach is inflexible and is difficult to apply to some complex problems.
The utilitarian approach is concerned with balancing judgements about benefit and harm. Instead of applying general rules, each case is assessed individually with the assumption that the ethically correct action is the one that has the best foreseeable overall consequences. The approach can take into account the complexities of some clinical problems, but it does not always result in an agreed conclusion, because different people may give different weight to the benefits and harms in a particular case.
In practice the two approaches overlap. A duty-based approach may include a duty to do that which will result in the best outcome, and in a utilitarian approach the best outcome may result from the application of a rule.
Ethical principles
Three ethical principles are widely adopted in medical ethics (Beauchamp and Childress, 2001).
1. Respect for autonomy: involving patients in healthcare decisions, informing them so that they can make the decisions, and respecting their views
2. Beneficence (and non-malevolence): doing what is best for patients (and not doing harm). In practice this usually means doing what the body of professional opinion judges to be best.
3. Justice: acting fairly and balancing the interests of different people.
Ethical principles can, and do, regularly conflict with each other. In psychiatry this most often occurs when beneficence is in conflict with respect for autonomy—for example, when a patient refuses treatment that professional opinion judges to be essential, and the Mental Health Act has to be used (see below). The essay ‘Two Concepts of Liberty’ by the philosopher Isaiah Berlin outlines this dilemma in distinguishing between ‘freedom from’ and ‘freedom to’ (Berlin, 1958). Autonomy is not always served simply by ensuring the absence of coercion if the individual is not in a position to act on their liberty. The Nobel Laureate Amartya Sen argues that our sensitivity to injustice informs our balancing of ethical principles, and not vice versa (Sen, 2007).
Codes of practice
Codes of practice and guidelines are prepared and overseen by professional organizations such as the American Psychiatric Association (1995) and, in the UK, the General Medical Council (2004) and the Royal College of Psychiatrists (2000). In some countries ethical codes are enforced not by the professions but by government. Loss of confidence in the professions has led to some demands for this arrangement in the UK.
The other professions involved in psychiatric care, such as nursing and psychology, have their own codes of practice, and these are not identical in every respect to those of the medical profession. Such differences may sometimes complicate decisions concerned with ethical aspects of care provided by a multidisciplinary team.
Values-based practice has recently been proposed as a complement to evidence-based practice (Woodbridge and Fulford, 2004). Ethical values can be in conflict, and routinely need to be balanced. The relative weight assigned to different values by the members of multidisciplinary teams (as well as the patient) may vary considerably. Values-based practice encourages the exploration of this in arriving at decisions, aiming to ensure that the traditional hierarchy in such teams does not inhibit their expression. For example, the psychiatrist may privilege treatment effect, whereas a nurse may privilege the patient’s self-respect and the social worker may privilege the patient’s rights. All of the team members acknowledge the relevance of all of these values, but the relative importance that is accorded them will vary and best practice, and effective teamworking, requires that they are accommodated.
Ethical problems in psychiatric practice
In the following sections of this chapter we shall discuss ethical problems relating to:
• the doctor–patient relationship
• confidentiality
• consent
• compulsory treatment
• research.
As mentioned previously, ethical problems that arise in particular aspects of practice are discussed in other chapters (see Box 4.1).
The doctor–patient relationship
A relationship of trust between doctor and patient is the basis of ethical medical practice. This relationship should be in the patient’s interests and based on the principles (outlined above) of respect for autonomy, beneficence, non-maleficence, and justice.
Abuse of the relationship
The more intense the doctor–patient relationship, and the more vulnerable the patient, the more readily that relationship can be abused. For these reasons, particular care has to be taken not to abuse the relationship during psychotherapy. Therapists abuse the doctor–patient relationship when they:
• impose their own values and beliefs on their patients—for example, when counselling about termination of pregnancy. This influence may be overt—for example, when a doctor refuses termination of pregnancy, stating that it is morally wrong. Or it may be covert—for example, when the doctor expresses no opinion but nevertheless gives more attention to the arguments against termination than to those for it. Similar problems may arise, for example, in marital therapy when therapists’ values may intrude on their approach to the question of whether a couple should separate
• put the interests of third parties before those of patients—for example, the interests of employers. Nevertheless, the interests of individual patients cannot be considered in isolation. For example, when allocating resources to a community, or when deciding about the treatment of potentially dangerous patients, the interests of the patient have to be balanced against those of other people. These difficult decisions are discussed further on p. 622 and p. 623
• exploit patients sexually. Medical codes of practice contain an absolute prohibition against sexual relationships with a patient. Particular care is needed if sexual problems and intimate relationships are prominent in psychotherapy
• exploit patients for financial gain—for example, by prolonging treatment in private practice for longer than is necessary to achieve the patient’s goals.
Confidentiality
Confidentiality is central to the trust between patients and doctors. It is particularly important in psychiatry because information is so often collected about private and highly sensitive matters. As a general rule, information should not be disclosed without the patient’s consent although, as will be discussed later, there are defined exceptions to this rule. The rule is an ancient one, stated in the Hippocratic Oath:
Whatever, in connection with my professional practice or not in connection with it, I see or hear in the life of men, which ought not to be spoken abroad, I will not divulge, as reckoning that all such should be kept secret.
The rule was restated in 1948 in the Declaration of Geneva, which added the important point that the obligation of confidentiality continues after a patient’s death:
I will respect the secrets which are confided in me, even after the patient has died.
In many countries, national professional organizations publish guidelines that deal with common clinical situations such as protecting records, sharing information with relatives, and disclosing information to third parties (see, for example, General Medical Council, 2004, and the updated website www.gmc-uk.org). Confidentiality is also enforced by law and by contract of employment, and although professional guidelines do not have the force of law, they are taken seriously by the courts as evidence of generally accepted standards.
Many countries have laws of privacy, and laws that govern the ways in which written and electronic records can be held and that set out patients’ rights to see their personal information. Psychiatrists should be aware of the ethical and legal requirements in the place in which they are working. In the UK, the relevant legislation includes the Data Protection Act (1998).
From the perspective of English law, it is in the public interest, as well as that of the individual, that patients should be able to trust their doctors to maintain confidentiality. Therefore the issue of when it is lawful and when it is unlawful for a doctor to breach confidentiality is generally answered by balancing two conflicting public interests rather than balancing a private interest against a public interest.
Ethical principles relating to confidentiality
Safeguarding information
Personal information must be safeguarded and records kept securely, and consideration must be given to the security of mobile phones or email. Unintentional disclosure should be avoided by carrying out consultations where they cannot be overheard (which is sometimes difficult when patients are seen at home or in a medical ward) and by avoiding discussions between professional staff in places where they might be overheard.
Consent to disclosure of information
Confidentiality is not breached when a patient has given informed consent to disclosure. In this context, informed consent means consent based on a full understanding of the reasons for disclosure, what will be disclosed, and the likely consequences of disclosure. In principle, confidentiality is not breached when the patient cannot be identified—for example, in a disguised case report. Nevertheless, it is usual for journals and books to require that patients give informed, signed consent to publication, even when their identities have been disguised. This obligation, unlike libel laws, continues after death. Poorly anonymized case reports of deceased patients, from which these individuals have been identified, have led to professional complaints from their families.
Confidentiality in the care of children
These and other ethical problems in the care of children are discussed in Chapter 22. Here it is sufficient to note that children over a stated age (usually 16 years) have the same rights of confidentiality as adults. For younger children, clinical information is usually shared with parents, who have a legal duty to act in their children’s best interests and therefore need to be properly informed.
Situations in which there may be problems regarding confidentiality
Seeking information from others
As a rule, patients’ permission should be obtained before information is sought from other individuals. If the patient is mentally disordered and unable to give an account of himself, and the information is essential for good care, the psychiatrist must decide whether to seek it without the patient’s consent. The guiding principles are to act in the patient’s best interests, and as far as possible to obtain the information from close relatives.
Disclosing information to others
Information should be disclosed only with the patient’s consent, except in the special circumstances discussed below. Disclosure should be limited to the information necessary for the purpose of the disclosure. Relatives often ask for information, but this should be given only with the patient’s consent. However, when the patient is unable to consent to disclosure (e.g. as a result of dementia), information may be shared provided that disclosure is in the patient’s best interests.
Assessment on behalf of a third party
When a patient is assessed on behalf of a third party (e.g. an assessment of fitness to work carried out for an employer), it is essential to ensure at the outset that the patient is aware of the purpose of the assessment and of the obligations of the doctor towards the third party. Written consent should be obtained. Otherwise disclosure can be made only in the public interest (see below), usually to prevent death or serious harm.
Care in the community
Patients should know from the start that information will be shared as necessary with other members of the care team, and these team members must follow the principles of confidentiality. Some members of the team (e.g. social workers) may be required to discuss information with their supervisors, or to pass on information to other agencies (e.g. when helping patients with housing). It is important to keep such matters in mind as treatment plans develop, and to discuss them with the patient when this becomes necessary. When visits are made to patients, neighbours may become aware of the visits. Moreover, outreach programmes may require enquiries about high-risk patients who have not kept appointments. These and similar potential problems should be anticipated as far as possible and discussed with the patient so that the necessary permissions are obtained in advance. In an emergency, the right to privacy has to be balanced against the risks of harm to the patient or to others, should the necessary enquiries not be made.
If a patient refuses the disclosure of information despite clear information about the likely consequences of nondisclosure, their wishes must be respected unless this would put others at risk of serious harm.
Group therapy
Group therapy presents special problems of confidentiality because patients reveal personal information not only to the therapist but also to other members of the group. Before treatment begins, the therapist should explain the requirement to treat as confidential the revelations of the other group members, and the necessary agreement should be obtained from everyone who will take part in the group.
Therapy with couples
Usually the treatment of a couple is preceded by an interview with each partner separately. Information obtained in this way from one partner should not be revealed to the other without the agreement of the first. If possible, all relevant information should be revealed by the partner concerned, during the joint sessions. If, after therapy has started, it becomes necessary to see one member of the couple alone (e.g. to assess symptoms of depression), it may be better for the therapist to ask a colleague to do this. Similar problems may arise in family therapy.
Exceptions to the rule of confidentiality
Exceptions in the patient’s interest
In exceptional circumstances, doctors may disclose information to a third party without the patient’s consent, when this disclosure is in the patient’s best interest—for example, when information is requested urgently by another doctor who is dealing with the patient in an emergency, and the patient’s permission cannot be obtained, or when a patient is incapable of giving informed consent because of severe mental or physical illness, and the disclosure is essential for their care.
Exceptions in the public interest
Although there is a general legal obligation for doctors to keep confidential what patients tell them, there are special circumstances in which doctors are obliged to disclose information to a third party because this is in the interest of the community as a whole, or of a group or individual within it. There are statutory obligations to do this in relation, for example, to communicable disease, the use of certain controlled drugs, unfitness to drive, and suspected child abuse. There is also an obligation to disclose relevant information in response to a Court Order, and when there is evidence of serious crime, usually a crime that will put some person at risk of death or serious harm (e.g. the abuse of a child). Child protection has become a particularly sensitive area for professional confidentiality. Society’s tolerance of the potential abuse or neglect of dependent children is almost negligible now in most countries. The current expectation of professionals is that their threshold for breaking confidentiality should be very low in cases where there are any concerns or doubts, even in the absence of clear evidence. In such cases, every effort should be made to persuade the patient to agree to disclosure. If they refuse, the reasons for the disclosure should be explained and written down.
Exceptions for legal representatives
A patient’s legal representative, like the patient, may read clinical notes and letters that have been written about that patient, although there may be restrictions in relation to the possibility of harm to others (e.g. from the reading of certain information given in confidence by informants).
For further information about problems related to confidentiality, see Hope et al. (2008, Chapter 7).
Consent to treatment
Consent is relevant to the whole of medical practice, and in the account which follows we assume that the reader is familiar with the relevant concepts and procedures from their general medical training. Any readers who are not should consult the latest General Medical Council guidelines if they are working in the UK (see www.gmc-uk.org), or the equivalent document if they are working elsewhere, and read a textbook of ethics such as that by Hope et al. (2008).
Obtaining consent
The patient should:
1. have a clear and full understanding of the nature of the condition to be treated, the procedures available, and their probable side-effects
2. agree freely to receive the treatment
3. be competent to take decisions (i.e. to have legal capacity; see below). (Note that in the USA, the word ‘capacity’ is generally used in the clinical sense, rather than in the legal sense adopted in the UK.)
Maintaining consent
Some patients consent to treatment of chronic illness but later fail to collaborate with it. When this happens, the clinician should seek to re-establish consent and collaboration. To achieve these, offers of additional help are justified, but threats that help will be reduced are not. This is particularly complex in the long-term community care of individuals with severely disabling disorders such as psychoses. The difference between an ‘offer of additional help’ and a ‘threat that help will be reduced’ is not always that clear in practice, and certainly not to the patient. Is a case manager’s comment ‘I can only really recommend you for his tenancy if I can say you are taking treatment’ an offer, or is it a threat? Szmukler and Appelbaum (2008) have explored these gradations of treatment pressures in mental health.
When explicit consent is not required
There are special situations in which explicit consent is not needed (their precise nature depends on local law and precedent). These include the following:
• implied consent—for example, when a patient holds out his arm to have his blood pressure measured
• necessity—that is, a circumstance in which grave harm or death is likely to occur without intervention, and there is doubt about the patient’s competence (see below)
• emergency—in order to prevent immediate serious harm to the patient or to others, or to prevent a crime.
When consent to medical treatment is refused
In the UK, the law distinguishes between consent to medical treatment and consent to psychiatric treatment. This section is concerned with refusal of medical treatment; refusal of psychiatric treatment is discussed on p. 407. Competent adults have a right to refuse medical treatment, even if this refusal results in death or permanent disablement.
If a patient refuses medical treatment, the doctor needs to make two judgements before accepting that the patient has the right to refuse.
1. Does the patient lack competence, i.e. the legal capacity (see below), to consent to or refuse treatment, by reason of mental illness?
2. Has the patient been influenced by others to the extent that a refusal has been coerced or is not voluntary?
Refusal by competent patients
Their refusal may be the result of misunderstanding or fear about the illness and its treatment. Clinicians should set aside the time needed to understand the patient’s concerns about, and their current understanding of, their condition before explaining the medical issues once more. When this approach is taken, agreement can usually be reached about a treatment plan that is both medically appropriate and acceptable to the patient. Nevertheless, some competent adult patients continue to refuse treatment even after a full discussion, and it is their right to do so.
Refusal by incompetent patients
In the UK and various other countries the doctor who is treating the patient has the right to act in the patient’s best interests and give immediate treatment in life-threatening emergencies when the patient lacks capacity to consent. Whenever possible other health workers should be consulted, and a careful record should be kept of the reasons for the decision. Doctors should know the relevant law in the country in which they are working. For further discussion of this issue, see Hope et al. (2008). The 2005 Mental Capacity Act for England and Wales addresses the previously neglected area of the treatment of incompetent patients who are not actively refusing treatment but who cannot be considered to have consented. It also addresses those who may have previously indicated (when competent) what they would have wished (see below).
Refusal by mentally disordered patients
If a patient who refuses medical treatment has an accompanying mental disorder that appears to impair their ability to give informed consent, the mental disorder should be treated, if necessary and appropriate, under compulsory legal powers. In English law, such powers do not allow treatment of the physical illness against the patient’s wishes. However, they do allow the treatment of the mental disorder. After successful treatment of the mental disorder, the patient may then give informed consent for the treatment of the physical illness which was previously refused.
Legal aspects of consent
The legal concept of capacity to consent relates to a patient’s ability to comprehend and retain information about the treatment, to believe this information, and to use it to make an informed choice.
Patients may lack the capacity to give informed consent by reason of the following:
1. young age—parents give consent for children and adolescents below the age at which, in law, they are able to consent (consent to treatment for children and adolescents is considered in Chapter 22)
2. learning disability
3. mental disorder. Psychiatrists may be asked to assess patients who are thought to be in this third group; they should do so by making the enquiries listed in Box 4.2.
Judgements of legal capacity to consent are specific to the particular decision. Thus a patient with a severe mental disorder may be incompetent in other respects, but nonetheless competent to decide whether to consent to a particular treatment. For example, a patient with schizophrenia and paranoid delusions may be capable of deciding about medical treatment of a heart attack. (For an account of psychiatric consultation with patients who are refusing medical treatment, see Katz et al., 1995.)
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