Capacity, consent, compulsion and human rights in the psychiatric ward – A Clinical Negligence Refresher



James Byrne looks at issues of consent, capability, compulsion and human rights in respect of psychiatric patients in clinical negligence cases.

Patient X was 40 years old when he was first diagnosed with a neurodegenerative disorder. One of the recognised complications of the disease was that a sufferer would likely develop difficulties eating and swallowing. Over the course of the following four years this terrible disease slowly stripped him of muscle coordination and mental capacity. With a loving family around him he was able to remain at home until one morning he suffered a sudden deterioration in his mental capacity and his partner found him in a confused, anxious and demented state. Patient X was admitted to a leading neurological hospital where doctors diagnosed him as suffering an acute psychotic episode connected to his neurodegenerative disorder. As a consequence Patient X was assessed and compulsorily detained for the maximum period of 28 days pursuant to section 2 of the Mental Health Act 1983 (‘MHA’). He was transferred to a psychiatric ward in another hospital within the Trust for treatment and continued assessment.

Once on the psychiatric ward Patient X settled but did not recover. There was no improvement in his condition. As a direct result of the psychotic episode he remained extremely vulnerable due to an inability to self-care or to recognise potential harm. He would regularly refuse to voluntarily take the medication he needed to treat both his increasing dementia and the underlying neurodegenerative disorder that was its cause. Discussions were had between Patient X’s family and the ward doctors about the need to conduct an assessment for the purposes of an application pursuant to section 3 MHA. Whilst this was going on Patient X’s section 2 MHA order was allowed to expire.

The day after the expiration of his section 2 MHA order Patient X was visited by a ward doctor who informed him that he was now a voluntarily patient at the hospital. Patient X remained on the ward but tragically died a short time later after choking on food he had been left to eat unsupervised.

Disclosure of Patient X’s hospital notes reveal that at the time his section 2 MHA order expired the hospital had failed to carry out any Deprivation of Liberty Assessment, any capacity investigation in accordance with the MCA 2007 Code of Practice or a section 3 MHA assessment. The medical evidence suggests that at the time Patient X was informed he was voluntary patient he remained incapacitated.

When reviewing the case prior to advising Patient X’s family in respect of both the forthcoming inquest and any negligence claim, I was struck by a number of interesting issues that potentially could assist in proving negligence and/or increase the value of the damages award: First, the question of whether Patient X’s status as a voluntary patient on the ward, and the treatment he received thereafter, was a causal factor in his death (there are number of other allegations of negligence in the case)? There is at least an arguable case that it did. Once he was a voluntary patient the care plan he was subject to changed; one-to-one supervision reduced and he could no longer be forced to take his medication. Both his physical and mental condition worsened. As is often the case, whether this was a causative factor that led to his death is likely to be hotly contested.

Second, at first blush the fact that Patient X was defined by the Trust as ‘voluntary patient’ is deeply troubling. Was he really capable of understanding what being a voluntary patient meant? Was he capable of consenting to his medical treatment? Patient consent is a cornerstone of medical treatment: “Every person being of adult years and sound mind has a right to determine what shall be done with his own body” (Schoendorff v Society of New York Hospital (1914) 105 NE 92). For consent to be valid, the patient must have capacity to make medical treatment decisions. Whether voluntarily or implied it must be freely given and informed i.e. the patient has the capacity to fully understand (in layman’s terms) the details of the treatment they are to receive and the implications of such a treatment. The General Medical Council has written guidance to medical practitioners in the 2013 edition of Good Medical Practice which states: “You must be satisfied you have consent or other valid authority before you undertake any examination or investigation providing treatment or involve patients or volunteers in treatment or research.”

In HL v United Kingdom [2004] ECHR 720 (‘the Bournewood case’) the European Court found that an informal admission to a psychiatric hospital of a compliant but incapacitated adult was in contravention of Article 5 of the ECHR (right to liberty). In response the case led to the government of the day introducing the Mental Capacity Act 2005 (‘MCA’). The current legislation addressing the issue of capacity is the Mental Health Act 1983 (amended in 2007) and the MCA (the reader should be aware that both have accompanying 2007 Codes of Practice and that there also exists a Deprivation of Liberty Safeguards Code of Practice also), which regulates decision making on behalf of incapable adults. The purpose of the legislation is to allow medical practitioners to admit patients to hospital for assessment and treatment, detain patients already in hospital and authorise compulsory treatment of patients in the community (see the provision of Community Treatment Orders). They have a broad interpretation of what a mental illness or disorder is and require that medical practitioners use the least restrictive practice to provide safe and effective care.

In the case of adults there is, both at common law and pursuant to statute, a presumption as to capacity unless it is rebutted on the balance of probabilities. The issue of capacity now falls to be determined by reference to the principles as set out in the MCA, which reiterates and expands on previous common law principles. Pursuant to section 2 (1) MCA, 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. The MCA restates the position at common law that capacity is not a question of the degree of intelligence or education of the patient concerned.

Section 3 of the MCA codified and expanded on the test adopted by Thorpe J in Re C [1994] 1 All ER 891 (therefore pre-statute case law is still relevant) and states that 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).

In Patient X’s case the issue was not just whether he had capacity or not to consent, but also whether at the relevant time the hospital failed to carry out adequate, or indeed any, assessment, of his capacity. This will be a matter of evidence, and whilst it is not within the scope of this article to discuss the correct procedures the doctors should have followed (see the judgment of Mr Justice Charles in AM v South London & Maudsley NHS Foundation Trust [2013] UKUT 0365 (AAC) for a useful guide), the case is analogous in may ways to the circumstances of the Bournewood case and as such the Trust could have been in contravention of their Article 5 of the ECHR obligations owed to Patient X (interested readers should see the recent conjoined cases of P v Cheshire West and Chester Council and P&Q v Surrey County Council [2014] UKSC 19) where the Supreme Court gave a wide reading of situations when a person in state care has had there liberty curtailed in breach of Article 5).

Thirdly, the failure to detain Patient X under the MHA potentially denied him increased protection from the state. If a patient is detained by compulsion then the state automatically owes him a more onerous duty to protect his life, pursuant to Article 2 of the ECHR (right to life), than if a patient is present voluntarily. The duty owed is an ‘operational duty’ and it requires the state to actively take steps to protect a patient from known real and immediate risks to their life, in addition to the ‘general duty’ the state owes to all patients to employ competent staff and to adopt safe systems of work. A reasonably recent body of case law has sought to expand when the state owes an operational duty to circumstances where patients deemed vulnerable and the state has assumed responsibility for them (see Rabone v Pennine Care NHS Trust [2012] UKSC 2 and Savage v South Essex Partnership NHS Trust [2008] UKHL 74). In the present case it might be viewed as patently obvious that Patient X was both vulnerable and that the state had assumed responsibility for him, but ultimately it will be a matter that falls into the discretion of the Court whether the duty applies.

There are very clear and obvious reasons why hospitals should always have at the forefront of their minds whether their patients have capacity to consent to treatment. The issue of whether a patient has capacity is more acute when their care and treatment involves psychiatric issues. The failure to investigate capacity properly could lead to breaches of the patient’s human rights. This could ultimately lead to the Trust responsible for the hospital facing the risk of further discretionary damages alongside tortious damages for acts of negligence.

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