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A dv an ce s in P sy ch ia tr ic T re atm en t 1 99 8), v ol. 4 , p p. 2 43 -2 49

Medico-legal aspects of liaison

psychiatry

Eleanor Feldman

T his article co nsiders the use of the M en tal H ealth

Act 1983 (MHA) and application of common law

p rin cip le s w ith re sp ec t to p at ie nts w ith b eh av io ura l

disturbances in NHS g eneral hospitals in E ngland

and Wales. Legal issues do not apply across

national boundaries; in the UK there are tw o other

M ental H ealth A cts currently in fo rce: Scotland's

(1 98 4) an d North ern Irelan d's (1 98 6).

The M ental Health Act 1983 in

th e general hosp ital

Gen eral p sy ch iatrists are fam iliar w ith ap ply in g th e

MHA to individuals suffering from psychiatric

illnesses w hich it is generally agreed fall w ith in its

rem it, th at is, disorders such as schizoph renia and

affective psychoses, and where the m ain issues

co ncern assessmen t an d /o r tre atm en t o f th at m en tal

d iso rd er. F am iliarity an d co nfid en ce d eriv es from

yea rs o f e sta blis he d c us tom and p ra cti ce , tri buna ls ,

u se o f t he MHA by s ta ff who hav e b ee n a pp ropri ate ly

train ed and w ho are fam iliar w ith its w orkings, and

th e mon ito rin g an d ad vic e o f t he MHA Comm issio n.

H ow ev er, w ith in liaiso n p sy ch iatry , th ere is less

ex perience and agreem ent regarding th e use of the

MHA in situations w hich can quite common ly arise

in general hospital in-patients. A broad er range of

diagnostic categories m ay need to be considered ,

for exam ple, delirium , or neurotic conditions

comprom ising medical care. Physicians and

surgeons seek advice about the treatm ent of life-

th reatening physical illness in n on-consenting

mentally disordered patients. There is less ex

perience to draw upon in a young and small sub-

sp eciality : fee db ack is n ot re ceiv ed from trib un als

in gener al hospi ta ls ; t he psych ia tr is t a dv is es medica l

and nursing staff from other specialities who are

unfam iliar w ith the principles and practice of the

MHA; th e MHA Comm issio n d oes n ot ro utin ely v isit

general hospitals. The consultant psychiatrist

covering a general hospital must expect to be

challenged by situations beyond their everyday

ex perien ce o f th e MHA. C larificatio n o f a few b asic

principles and discussion of some typical case

e xamp le s may a ss is t.

The rem it of the Act

The MHA allows for the legal detention and

treatm ent of adults with m ental illness, m ental

impairm ent and psychopathic disorder where

admission and/or treatment are considered

necessary in the interest of their health and safety,

or for the protection of others, and w here they are

unable or unw illing to consent to such adm ission

and/or treatm ent. In legal term s, it is an 'enab ling

Act', which m eans it does not have to be used in all

instances w here it m ight be applicable, but its use

does pro vide certain legal safeguards for patients

and for staff. W hile any m ental disorder can fall

w ith in th e A ct's rem it, in p rac tice th ere are common

circum stances w here restraint and treatm ent are

applied w ithout recourse to the Act, and where it

m ay be preferable to do so. In these situations, the

actions perform ed can on ly be defend ed w ithin the

s cope o f t h e c ommon law.The most re le va nt c ommon

law p rin cip les are d iscu ssed later.

 efinition of m ental disorder

In Section 1 o f the MHA, m ental d isorder is defined

b road ly . Sec ti on 1 (2 ) s ta te s:

 'M ental disorder' means mental illness, arrested or

incomplete development of mind, psychopathic

E le an or F eldman i s c on su lt an t li ai so n p sy ch ia tr is t (De pa rtm en t o f P sy ch ol og ic al M ed ic in e (Ba rn es Unit ), J oh n Rad cl iff e Hos pit al ,

H ea din gto n, O xfo rd OX3 9DU ) a nd a m em ber o f th e R oy al C olleg e o f P sy ch ia trists S ectio n o f L ia iso n P sy ch iatry E xec utive .

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APT 1998),vol.4,p.244

Fcldman

disorder and any other disorder or disability of

m ind a nd 'men ta lly d is ord ere d' s ha ll b e c on stru ed

accordingly .

This may include temporary states of mental

disturbance such as delirium and intoxication, as

well a s mo re p ro lo ng ed c onditio ns s uc h a s d ementia

and brain dam age. The very broad definition of

m ental disorder allow s clin icians a w ide degree of

discretion in deciding whether or not to use the

p ow ers o f th e A ct, alth ou gh in g en eral p sy ch iatric

practice the Act has come to be used in a quite

n arrow ra ng e o f c onditio ns .

Intoxication v. dependence on

alcohol or drugs

It sh ould be noted that som eone w ho is intoxicated

w ith alcohol or drugs and w ho is judged to have the

capacity to refuse essential intervention m ay in

certain circum stances legitim ately be subject to

the MHA, although there must be grounds for

intervention other than alcohol or drug addictio n

alone. Section 1(3) states that the Act cannot be

applied to persons by:

 reason only of prom iscuity or other immoral

c ondu ct , s exua l d ev ia nc y o r d ep ende nc e on a lc ohol

o r d rugs .

Treatm ent for physical illness

The MHA does not apply to the detention and

treatm en t o f p atien ts fo r p hy sical illn ess, fo r w hich

th ey must g iv e in fo rmed c on se nt, o r b e tre ate d und er

common law . H ow ev er, w hat is the position w here

th e phy sic al ill ne ss its elf re su lt s in d is ab ility o f m ind

through disordered brain function? A lthough not

a pp ro priate fo r th e treatm en t o f p hy sical d iso rd er

p er s e, t he M H A m ay a pp ly w here p hy sica l d iso rd er

contributes to m ental disorder or is otherw ise

in ex tricab ly lin ked w ith th e men tal d iso rd er (re: K .

B ., 1 993), fo r e xample , fe ed in g in a no re xia n erv os a

or the use of thyroxine in m ental d isorder caused by

hypothyroidism . It does not apply in situations

w here the treatm ent of th e ph ysical illness w ill not

im pact upo n the m ental disturbance; th is area falls

w ithin the scope of the common law (re: C (A dult:

Refusal o f T re atmen t) , 1994) .

U se of the m edical holding orders

S ectio n 5 (2 ), th e emerg en cy med ica l h old in g o rd er

fo r those w ho are already volu ntary in-patients, is

not applicable in an accident and emergency

departm ent, w hich is regarded as an out-patient

s et ti ng . Whe re a cc iden t and emergency depar tment s

have w ards, these are in-patient areas. Patients

cannot be conveyed to another hospital o n S ection

5(2), but w ill need to be on a hospital adm ission or

treatm ent order. A dm ission an d treatm ent orders

are enforceable in any NHS hospitals, not just

psychiatric h ospitals, so long as the ap propriate

adm inistrative form alities are observed. W here

different N HS hospital trusts operate on the sam e

s ite , it is a dv is ab le fo r th e re sp ec tiv e tru st mana ge rs

form ally to agree to act on each others' behalf w ith

resp ect to th e MHA.

A ny consultant in charge of a patient's care m ay

be the responsible medical officer (RM O) with

resp ect to th e MHA; th erefo re, acc ord in g to th e law ,

consultant physicians and surgeons m ay detain

th eir own in -p atien ts u sin g S ec tio n 5 (2 ). In g en eral

hospitals, the initials RMO apply to the resident

m edical officer w ho is a senior house officer; it is

therefore very im po rtant to be clear that, w here th e

term RMO is a pp lied in resp ect o f th e Men tal H ealth

A ct, it alw ay s refers to th e co nsu ltan t w ith med ic al

respo nsibility fo r th e case. T he MHA allow s for th e

nom ination of a deputy by any RMO and this deputy

mus t b e a re gistered med ica l p rac titio ner (n ot a p re -

registration house officer; see Box 1). U nder the

MHA, consultant physicians and surgeons m ay

nom inate their ow n juniors, w ho are senior house

o ffic er g ra de o r a bove , t o a ct a s th eir d eput y. Whet he r

or not this is a good practice is another m atter. The

C od e of P ra ctice on th e u se o f th e M H A D ep artm en t

o f H ealth Welsh O ffice, 1 99 3; n ew re visio n d ue to

be published autum n 1998) has advised that only

co nsu ltan t p sy ch iatris ts sh ou ld n om in ate a d ep uty ,

an d th at w here an RMO o f a no th er sp eciality w ish es

to detain their own patient, they should make

immed ia te c on ta ct w ith a p sy ch ia tris t. P ro blems c an

arise if junior physicians are left to invoke the

powers o f S e ctio n 5 (2 ) b ec au se th ey a nd th eir s en io rs

are o ften u nclear ab ou t th e p recise n atu re an d sco pe

of the powers and the powers may not be adm in

is te re d c or re ctly . Mo st s erio us ly , a rra ng ements may

not be made for the patient to be assessed by an

ap proved psychiatrist w ith a v iew to an admission

order or term inatio n of the holding order. A n audit

carried out in Leeds dem onstrated various such

failings in the use o f S ection 5(2) w hen it w as left to

p hy sician s to in vo ke th e p ow er (B uller et al, 1 99 6).

U se of the place of safety order

and the role of the police

Section 136 em pow ers the p olice to detain and tak e

to a place of safety an individual w ho falls w ithin

its rem it. It is n ot an emerg en cy admissio n o rd er. Its

purpose is to enable the police to take a patient

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M ed ico -leg al a sp ects of H ast

A PT 1998), vol. 4, p . 245

som ewhere where they can safely be assessed by

tw o doctors and an approved social w orker, w ith a

v iew to d eten tio n u nd er th e MH A . T here is n o o fficial

d ocume ntatio n fo r S ectio n 1 36 .

P olic e may le gitima te ly e sc ort p atie nts to hos pita l

w ho req uest th eir h elp , o r th ose who req uire h osp ital

tre atmen t b ut a re in ca pa ble o f c ons en tin g. However ,

they should n ot bring patients again st their w ill to a

hospital unless under Section 136 of the MHA and

where, by local agreement, the hospital is the

designated place of safety. In m any districts,

hospitals are no t the desig nated place of safety, but

th e polic e c ells a re . A re ce nt re po rt (R oy al Colle ge o f

P sy ch iatrists, 1 99 7) h as commen ted o n th e in ad vis-

ability of making a hospital a place of safety.

Acc id en t a nd eme rg en cy d ep artmen ts , fa r f rom bein g

s afe p la ce s fo r s ev ere ly men ta lly d is tu rb ed in div id

uals, are often ill-equipped to deal w ith the kind of

very disturbed people that the police bring in, and

hospital staff and other ill patients in the vicinity

m ay be p laced at risk.

M anagerial arrangem ents for the

M H A

Papers relating to MHA detention and treatm ent

orders m ust be dealt with appropriately by those

acting on behalf of hospital m anagem en t, u sually

the m edical records department, otherwise the

orders are not legally in force. Senior m anagers of

general hospitals need to m ake arrangem ents for

th e receip t an d h old in g o f s ectio n p ap ers an d en su re

that rights are read to patients. The links with

relev an t o fficers in th e p sy ch iatric h osp itals n eed to

b e mad e clear. If th e g en eral h osp ital is in a d ifferen t

tru st to th e p sy ch iatric h osp ital, th ere eith er n eed s

to b e a d esig nated p erso n w ith in th e g en eral h osp ital

w ho is properly trained in the adm inistration of the

Box 1 . B e e xtr a c ar efu l

Pre-registration house officers are not

qualified to assess capacity to refuse

medical intervention nor to act as

a nom inated deputy with respect to

Sec tio n 5 2 .

A Section is not in force until the papers

have been received on behalf of

the hospital managers and the form

cer ti fy ing thi s ha s been comple ted . F il ing

th e r ecommendatio ns and app lic at io n in

th e note s is not s uffic ient.

G en eral h osp ita ls ou tsid e th e N HS are n ot

r ec og nise d fo r th e purpo se s o f th e MHA .

Box 2 .T o d em onstr ate c ap ac ity to c on se nt o r

refuse m edical treatm ent in dividuals

should b e able to:

Understand in sim ple language what the

medical treatment is, its purpose and

n atu re an d w hy it is b ein g p rop osed .

U nd er sta nd its p rin cip al b en efits, r isk s a nd

alternatives.

Unders tand in broad te rm s th e con sequence s

o f n ot r ec eiv in g th e p ro po se d tr ea tm en t.

Retain the inform ation for long enough to

make an e ffe ctiv e dec is io n.

M ak e a free ch oice i.e. free from p ressu re .

MHA, o r a w ritten ag reemen t w hereb y clin ical staff

of the general hospital will have access to the

relev an t MHA o fficer in th e p sy ch iatric tru st.

A t a p ractical lev el, clin ical an d admin istrativ e

staff on medical and surgical wards will not be

aware of what to do with MHA papers, and will

often think it sufficient to file them in the notes.

T herefo re, p sy ch iatrists in vo lv ed w ith ad visin g o n

MHA o rd ers w ill n eed to mak e su re th at th e rele van t

s ta ff in t he med ic al re co rd s d ep artmen t a re in fo rmed

and have ag reed to take app ropriate action . A s this

is an im portant legal issue, it is advisable to reco rd

this discussion in the m edical notes (see B ox 2).

Clarifying the com mon law for

use in the general hospital

C om m on law

The c ommon law re fe rs to th e c orpus o f r ig hts , d utie s,

o blig atio ns an d liab ilities re co gn ised b y th e co urts

o ver th e y ears. It comp rises p rin cip les id en tified b y

judges which have evolved to meet the needs of

particular cases or particular developm ents in

so ciety . T his ju dg e-mad e law is d istin gu ish ed from

statute law w hich com prises A cts of Parliam ent.

O nce common law p rin cip les h av e b een id en tified ,

their application should follow . L ord D onaldson , a

fo rmer Ma ste r o f th e Rolls , s uc cin ctly re fe rre d to th e

common law as common sense under a w ig .

A pplying com m on law

C ommon law principles m ay assist w here there are

no statutory p rotections or m echan ism s in play. In

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APT 1998),vol.4,p.246

Feldman

England and Wales, the MHA is the relevant

codifying statute, and w here its provisio ns apply

there is no need to consider the common law. On

is su es whe re th e s ta tu te l aw is s ile nt, th e lawfu ln es s

of any act or om ission is tested by the application of

the common law .

C om mon law principles applicable

to m entally disturbed individuals

A ssumption of cap acity in adults

T he startin g p oin t is th e re co gn itio n in common law

th at ev ery ad ult (ag ed 1 8 y ea rs o r o ver) h as th e rig ht

and capacity to decide whether or not he/she will

accep t med ic al tre atm en t, ev en if a refu sal m ay risk

perm anent dam age to his/her physical or m ental

h ealth , o r ev en lead to p rematu re d eath . T he reaso ns

f or the r ef usal a re i rr el evan t.

Capacity is a legal concept and concerns an

individual's ability to understand what is being

p roposed an d the consequences of either refusing

o r accep tin g th e a dv ice g iv en (see B ox 2 ). A p atie nt

under a Section of the MHA has the sam e rights as

any other person with respect to decisions

not covered by the powers of the Act. General

psychiatrists are rarely involved in decisions

re gard in g cap acity as th e MHA does n ot req uire an y

e xp licit test o f cap acity to d eterm in e elig ib ility fo r

its ap plicatio n. C ap acity b ec omes a k ey issu e when

th ere is refu sal o f treatm en t fo r a p hy sical illn ess.

In law , pre-registration house officers are not

qualified to assess a patient's capacity but all

r eg is te red medica l p ra ct it ione rs a re . (Br it ish Med ic al

A ssociation L aw S ociety, 1995). W here m ental

d isor de r i sp r esen t o r l ikely, p sych ia tr ic involvemen t

is n ecessary fo r a p ro per assessmen t o f c ap acity .

C ap ac ity in m inors

People under the age of majority do not have the

s ame rig hts at law a s ad ults. S tate d b riefly : p aren ts

or gu ardians m ust agree w ith decisions to consen t

up to the age of 16 y ears, w hile those over 16 m ay be

ab le to co nsen t w ith ou t th eir p aren t's o r g uard ian 's

involvem en t. W here there is a refu sal, those under

18 can have their wishes overridden by parents,

guardians or the High Court (British M edical

A ss oc ia ti on Law Soc ie ty , 1 995).

Necessity

The courts recognise a common law principle of

'necessity' to cover situations where action is

needed to assist another person w ithout his or her

consent. A lthough such a situation w ill usually be

som e form of em ergency, the power to intervene

is not created by that em ergency, b ut derived from

the principle of necessity. In The Tim es (31 M ay

1998), Lord Griffiths, when dealing with the

common law power to restrain a violent person

with m ental disorder, said that the power w as:

 confined to imposing temporary restraint on a

lunatic w ho has run am ok and is a m anifest danger

either to himself or to others - a state of affairs as

obvious to a laym an as to a doctor. Such a com mon

law pow er is confined to the short period necessary

before the lunatic can be handed over to the proper

authority .

In practice, there is often a period of tim e w hen

patients who are about to be made subject to the

MHA will h av e t o b e re stra in ed b efo re th e fo rmal itie s

of the A ct can be com pleted. It also quite common

for such patients to require som e sedation prior to

the com pletio n of form alities. Such actions w ill be

defensible if carried out as a necessity using the

minimal int er vent ion r equi red.

A ctions perform ed out of necessity should not

continue for an unreasonable length of tim e, but

progress should be made either to a situation of

consent or to the use of pow ers under the MHA . It is

n ot p os sib le p re cis ely t o d efin e what is a re as on ab le

or unreasonable length of tim e as this w ould vary

w ith th e p articu lar circumstan ces o f e ach case.

D uty of care

Common law imposes a duty of care on all

professional staff to all persons w ithin a hospital.

By assum ing the responsibility of a particular

clinical staff appointment, and claiming pro

fessional expertise, an individual undertakes to

p ro vid e p ro per care to th ose n eed in g it. S taff m ay b e

neg ligent by omis sion .

A s w ell as individual staff, hospitals also have

duties, for exam ple to provide back-up staff w ho

are properly trained to assist with aggressive

u nco op erativ e p atien ts in a casu alty d ep artm en t,

and the hospital must ensure that such staff are

authorised to act if necessary. M any hospitals

experience problems with fulfilling this duty

because they fail to train security staff in this role,

and commonly such staff are disinclined to assist

in necessary restraint as th ey believ e th at they w ill

be ex posed to the risk of litigation for assault. T his

is a key area for improved staff training and the

involvem ent of the hospital's risk m anagem ent

advisers.

B olam test

Where clinical decisions are being made, an

in dividual clin ician's com petence w ill be judged

ag ainst w hat is considered reasonable and proper

by a body of responsible doctors at that time, as

ascertain ed in co urt from ex pert testimon y (B olam

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APT 1998),vol.4,f).248

 cldman

and an empty bottle of paracetamol. He was

in to xic ate d w ith a lc oh ol, b ellig ere nt, re fu se d to ta lk

to an y staff an d tried to leav e. N o oth er in form ation

was available and a decision had to be made as to

whether or not to let him go.

This c as e ty pifie s a c ommon c lin ic al p ro blem fa ce d

b y accid en t an d emerg en cy sta ff a nd p sy ch iatrists

cov ering accid ent and em erg ency departm ents. If

there is sufficient concern to w arrant detaining

this patient for further assessm ent of a possible

und erlying m en tal disorder, then use of the MHA is

certainly justified. The fact that the patient is

intoxicated is not an obstacle to use of the MHA , as

th e A ct is n ot b ein g u sed to d etain o r treat th e p erso n

b ecau se o f alc oh ol m is use o r d ep en den ce alo ne, b ut

because of the concern that they may have an

und erly in g men ta l d is ord er.

Anorexia nervosa patient in

extrem is and refusing food

A 19-y ea r-o ld fema le w eig hin g o nly fo ur sto ne was

adm itted to an acute m edical unit. S he consented to a

saline drip, but not to any dextrose or parenteral

fe eding . S he w as clo se to de ath from starva tio n.

The MHA is frequently used in relation to

patients w ith anorexia who are close to death to

auth orise feeding as part of th e psychiatric, as w ell

as p art o f th e p hy sical, treatm en t o f th ese p atien ts.

Experts in eating disorders regard re-feeding as

a n e ssen tial first ste p in th e p sy ch iatric treatm en t,

as starvation itself produces distorted th inking.

There are legal precedents to support this view,

n otab ly re : K . B ., 1 99 3. T h e MHA Comm issio n h av e

issued a guidance note on this particular topic

which discusses the legal issues in more detail

(M ental H ealth A ct Commission, 1997).

It is worth noting that a patient who needs to be

in a g en era l h os pita l fo r th eir p sy ch ia tric tre atmen t,

as m ay be the case in this patient, can be adm itted

under Section 3 or Section 2 direct to the general

hospital, bu t only p roviding it is an NHS hospital.

N on-NHS general hospitals are not recognised

under Section 145 of the MHA (see Box 1).

Patient w ith anorexia nervosa

and diabetes, refusing insulin

A sim ila r p atie nt to th e c ase a bo ve a lso h ad in su lin -

dependent diabetes; she agreed to feeding, but

refused insulin, since she knew that she w ould not

gain w eight without it. She would have died if her

w ishes had been follow ed, so the hospital staff had

to feed her and give her insulin to prevent her death.

I w ould take the view that there is no difference

between this case and the preceding situation.

Insulin is as essential for healthy w eight gain as is

fo od ; h en ce , its a dm in is tra tio n would a ls o fo rm part

of the psychiatric treatm ent plan under Section 3 of

the MHA . There is currently no legal precedent on

thi s p re ci se point .

P atie nt w ith sc hizo ph re nia

refu sing su rg ery, b ut accep tin g

other m edical care

A 59-y ea r-o ld male w ith c hro nic s ch iz op hre nia

was a long-stay patient under Section 3. He de

veloped a gangrenous foot and the surgeon's advice

w as to p ro ceed w ith am pu tatio n. T he p atien t refu sed

surgery on the grounds that he did not want an

am pu tatio n, b ut h e agreed to an tibiotics an d a ll o th er

form s of treatm ent. T he surgeon asked w hether the

operation could be carried out as part of treatm ent

under Section 3 and he im pressed his conviction

that the patient was likely to die without the

amputation.

T he MHA does not apply unless the treatm ent of

the p hysical disord er w ould im prove the patient's

m ental disorder. A precedent o n this (re: C (A dult:

R efusal of T reatm ent), 1994) foun d that a patien t

w ith sch izo ph ren ia co uld n ot h av e h is g an gren ou s

leg am putated under the term s of the MHA treat

m en t o rd er, a s su rg ery wou ld n ot impro ve h is men tal

condition. The operation m ight have proceeded

under the common law had the patient been found

by the court to lack capacity, but he was judged to

have the capacity to refuse. The patient also took

o ut an in ju nctio n ag ain st th e h osp ital to en su re th at

they did n ot pro ceed to am putate h is leg in the event

that he became delirious or unconscious. The

p atie nt's in fectio n su cces sfu lly reso lv ed w ith ou t

surgery.

References

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