Added Value: Using Human Rights to Support Psychiatric Advance Statements

Date01 May 2013
AuthorJill Stavert
Published date01 May 2013
<p>Patient autonomy, regarded as a fundamental principle underlying medical ethics,<xref ref-type="fn" rid="fn1"><sup>1</sup></xref><fn id="fn1"><label>1</label><p>T L Beauchamp and J F Childress, <italic>Principles of Biomedical Ethics,</italic> 5<sup>th</sup> edn (2001) 57–112.</p></fn> is reinforced by numerous international instruments. Integral to this is advance treatment planning, often referred to as ‘advance statements’ or ‘advance directives’.<xref ref-type="fn" rid="fn2"><sup>2</sup></xref><fn id="fn2"><label>2</label><p>They may also be referred to as Ulysses contracts, Mill's wills and living wills although different jurisdictions may afford them different degrees of legal weight. See e.g. J M Atkinson, <italic>Advance Directives in Mental Health: Theory, Practice and Ethics</italic> (2007) 39–55; F Morrissey, “Advance directives in mental health care: hearing the voice of the mentally ill” (2010) 16 Medico-Legal Journal of Ireland 21 at 21–22.</p></fn> These allow individuals with capacity to express medical treatment preferences in the event of subsequent incapacity or significantly impaired decision-making ability and are recognised by both the General Medical Council and British Medical Association.<xref ref-type="fn" rid="fn3"><sup>3</sup></xref><fn id="fn3"><label>3</label><p>General Medical Council, <italic>Consent Guidance: Patients and Doctors Making Decisions Together</italic> (2008) para 76(d); British Medical Association, <italic>Advance Decisions and Proxy Decision-Making in Medical Treatment and Research</italic> (2007) 2–8. Cf also Royal College of Physicians, <italic>Advance Care Planning: National Guidelines</italic> (2009) which, strangely, makes no mention of Scots law.</p></fn></p> <p>The legal weight given to such prior expressed wishes may, however, be afforded varying degrees of legal weight within or between jurisdictions.<xref ref-type="fn" rid="fn4"><sup>4</sup></xref><fn id="fn4"><label>4</label><p>Atkinson, <italic>Advance Directives</italic> (n 2) 55–78.</p></fn> For instance, advance refusals regarding treatment relating to physical health will be upheld by the English courts and indeed are now recognised by the <a href="">Mental Capacity Act 2005</a><xref ref-type="fn" rid="fn5"><sup>5</sup></xref><fn id="fn5"><label>5</label><p>Sections 24–26.</p></fn> but directions as to specific types of future treatment will not.<xref ref-type="fn" rid="fn6"><sup>6</sup></xref><fn id="fn6"><label>6</label><p>See <italic>Re T (Adult: Refusal of Treatment)</italic> <a href="">[1993] Fam 95</a> at para 103 per Lord Donaldson MR; <italic>Re C (Adult: Refusal of Medical Treatment</italic>) <a href="">[1994] 1 WLR 290</a>; <italic>Airedale NHS Trust v Bland</italic> <a href="">[1993] AC 789</a>.</p></fn> The approach in Scotland is unlikely to be different.<xref ref-type="fn" rid="fn7"><sup>7</sup></xref><fn id="fn7"><label>7</label><p>Scottish Law Commission, Report on <italic>Incapable Adults</italic> (Scot Law Com No 151, 1995) at para 5.46. See also H Patrick, <italic>Mental Health, Incapacity and the Law in Scotland</italic> (2006) 150.</p></fn></p> <p>Moreover, although persons with capacity are able to consent to and refuse medical treatment, no matter how irrational such a decision is and even where it involves refusing life saving treatment,<xref ref-type="fn" rid="fn8"><sup>8</sup></xref><fn id="fn8"><label>8</label><p>See <italic>Re T</italic> at para 116 per Lord Donaldson MR; <italic>Case of Jehovah's Witnesses of Moscow and others v Russia</italic> (2010) 53 EHRR 141 at paras 136–137.</p></fn> this is not always the case for persons with mental disorder. Mental health legislation permits non-consensual treatment in certain situations and the question therefore arises as to the role previously stated treatment choices play under these circumstances.<xref ref-type="fn" rid="fn9"><sup>9</sup></xref><fn id="fn9"><label>9</label><p>P Fennell, <italic>Treatment Without Consent: Law, Psychiatry and the Treatment of Mentally Disordered People Since 1945</italic> (1995). See also M Donnelly, “From autonomy to dignity: treatment for mental disorders and the focus for patient rights”, in B McSherry (ed), <italic>International Trends in Mental Health Laws</italic> (2008) 37.</p></fn> In Scotland, for example, ‘psychiatric advance statements’ are recognised under the <a href="">Mental Health (Care and Treatment) (Scotland) Act 2003</a> (‘the 2003 Act’) but there is no absolute legal requirement that wishes expressed in them will be followed.<xref ref-type="fn" rid="fn10"><sup>10</sup></xref><fn id="fn10"><label>10</label><p>The <a href="">Adults with Incapacity (Scotland) Act 2000</a> does not recognise advance statements. However, Part 5 of the Act permits treatment for physical and mental conditions of persons who do not have capacity to make decisions about such treatment, with section 1(4) requiring that that person's present and past wishes and feelings, where ascertainable, must be taken into account.</p></fn></p> <p>This article will suggest that whilst international human rights standards acknowledge the need for non-consensual treatment in certain situations they can also support patient choices expressed in psychiatric advance statements. This is of particular significance when considering whether it is appropriate to override such choices in the context of compulsory treatment under <a href="">the 2003 Act</a>.</p> THE <a href="">MENTAL HEALTH (CARE AND TREATMENT) (SCOTLAND) ACT 2003</a> AND ADVANCE STATEMEMTS

The 2003 Act applies to compulsory treatment situations in civil and criminal cases and very much embodies, amongst other things, the principle of service user participation in treatment decisions.11

This reflects recommendations in the Millan Report, which preceded the Act (B Millan, Report of the Millan Committee, New Directions: Report of the review of the Mental Health (Scotland) Act 1984 (2001) at 158–159). See also J M Atkinson, H C Garner, H Patrick and S Stuart, “Issues in the development of advance directives in mental health care” (2003) 12 J of Mental Health 463 and the same authors’ “The development of potential models of advance directives in mental health care” (2003) 12 J of Mental Health 575.

The role of a psychiatric advance statement – defined as a statement that specifies the ways in which the author does and does not wish to be treated for a mental disorder12

Section 275(1). The Act 2003 also contains specific requirements relating to the making of valid advance statements and those who may witness the maker's signature: see s 275(2) andthe Mental Health (Advance Statements) (Prescribed Class of Persons) (Scotland) (No 2) Regulations 2004, SSI 2004/429 r 2, as amended by the Health Care and Associated Professions (Miscellaneous Amendments and Practitioner Psychologists) Order 2009, SI 2009/1182 Sch 4 Part 1 para 12.

 – is therefore recognised to some extent

Where a valid and subsisting advance statement exists,13

An advance statement, or withdrawal of the same, is assumed to be valid unless proven otherwise (s 276(5) of the 2003 Act).

and the maker's ability to make treatment decisions for their mental disorder is ‘significantly impaired’14

The focus of this article will be on situations where psychiatric advance statements become relevant to treatment decisions. It will not therefore consider assessment of incapacity or significantly impaired decision-making ability. The latter, though not defined by the 2003 Act, potentially extends beyond incapacity as described in the Adults with Incapacity (Scotland) Act 2000 s 1(6). For discussions of incapacity assessment see e.g. World Health Organisation, Resource Book on Mental Health, Human Rights and Legislation (2005) 39–41, G Richardson, “Autonomy, guardianship and mental disorder: one problem, two solutions” (2002) 65 MLR 702 at 706, A Boyle, “The law and incapacity determination: a conflict of governance” (2008) 71 MLR 413 at 453–454; and P Bartlett, O Lewis and O Thorold, Mental Disability and the European Convention on Human Rights (2007) 123. For a discussion of significantly impaired decision-making ability see Patrick, Mental Health, Incapacity and the Law (n 7) 169–170.

because of that disorder, then both the Mental Health Tribunal for Scotland15

Section 276(1).

and persons giving medical treatment authorised under the 2003 Act or the Criminal Procedure (Scotland) Act 199516

Section 276(3) of the 2003 Act. Medical treatment may be authorised under the 1995 Act where a person with mental disorder comes into contact with the criminal justice system and is convicted or acquitted of a criminal offence or where the prosecution is abandoned.

are obliged to ‘have regard to the wishes specified in the statement’. A designated medical practitioner must also have regard to the wishes specified in such a statement when providing a second opinion regarding possible neurosurgery17

It is highly unlikely, however, that such surgery will be conducted where the patient is unable to consent. See K Matthews et al, The Dundee Advanced Interventions / Neurosurgery for Mental Disorder (NMD) Service: Report to the Scottish Executive (2006) paras 55–57. See also Patrick, Mental Health, Incapacity and the Law (n 7) 265.

or ECT.18

Before determining whether or not such treatment is in the patient's best interests because it is likely to alleviate, or prevent deterioration in, their condition (s 276(4)).

Similarly, such wishes must be taken into account where the second opinion of a designated medical practitioner is required to ascertain whether it is in the patient's best interests to non-consensually administer medicines for reducing sex drive (excluding surgically implanted hormones), nutrition19

See, however, Scottish Executive, Mental Health (Care and Treatment) (Scotland) Act 2003: Code of Practice (2005) vol 1 para 10.71, prohibiting forcible feeding.

and other medicines and types of treatment specified in regulations.20

Section 276(4) of the 2003 Act. Such treatment cannot be administered by force where the patient is not in hospital (s 241(4)).

Reasons for overriding wishes expressed in an advance statement must be recorded.21

Section 276(7) and (8)(a).

The direction to have regard to the wishes expressed in such statements creates no absolute legal requirement to follow them. However, the Act does not give specific direction as to when it is acceptable to override an advance statement, nor does its Code of Practice provide much additional detail either. The Code does contain several references to the need to make enquiries to ascertain whether a patient has made a valid statement22

Scottish Executive, Code of Practice (n 19) vol 1 ch 6.

and states that a valid advance statement ‘would be a strong indication of a patient's wishes about medical treatment’ but also that it must be considered alongside other factors.23

Para 58.

For instance, whilst it indicates that the question of costs should not be a determining factor in whether or not to override an advance statement it states that such statements cannot require medical staff to do anything unethical or illegal or bind them ‘to provide, arrange or withhold specific services, medicines or treatments’.24


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