Mental Health Law

Mental health is everyone’s concern, an idea epitomized by the campaign tag line of the Royal College of Psychiatrists, ‘No Health Without Mental Health’. This chapter will demonstrate how an understanding of a patient’s mental health within his/her social and family context is central to clinical practice. We will consider the legal basis for the treatment of mental ill-health and how it can complicate the treatment of physical illness and lead to ethical and legal concerns. The general legal principles that govern health interventions are explored, and two specific statutes for England and Wales—the Mental Capacity Act 2005 and the Mental Health Act 1983 (as amended 2007)—are both considered in some detail. It will be shown how a sound appreciation of the clinical issues, an understanding of the law, and an ability to apply that law in clinical settings are essential when faced with situations involving mental ill-health.

Medical Negligence and Complaints

Medicine is not a perfect science and doctors are not infallible. Throughout any medical career there will be cases of poor outcomes. Sometimes treatment may not work, sometimes the patient will be made worse, and sometimes a patient may die. The cause of a poor outcome may simply be the nature of the condition from which the patient is suffering. However, in some cases the cause may be mistakes by the treating clinicians. The purpose of this chapter is to consider the legal consequences of such mistakes. In English law where someone suffers an injury (physical or psychiatric) as a result of another person’s negligence, the injured person can bring a claim for compensation both for the injury itself and for any consequential financial loss. To prove negligence, a claimant needs to demonstrate there was a duty of care, that duty was breached, and they were injured as a consequence.

Confidentiality and Release of Medical Information

The duty of confidentiality that a doctor owes to a patient is probably as old as the practice of medicine and is essential for trust between doctors and their patients. However, it is not an absolute duty and there are instances when a doctor is entitled, and in certain circumstances obliged, to disclose confidential information without patient consent to do so. This chapter is concerned with doctor–patient confidentiality and when medical information can reasonably be released. Confidentiality is covered by a mixture of UK statute, common law, tort law, and the European Convention on Human Rights. It is also a core component of the professional guidance given to doctors by the profession’s regulatory body, the General Medical Council, to which all doctors registered with it are expected to adhere.

Healthcare Management

Doctors are familiar with the professional regulation of their practice and behaviour through the General Medical Council and for their liabilities under civil law in the event that a patient comes to harm. The public outcry in response to a series of reports into healthcare failings and wrongdoing has led to legislation that criminalizes certain acts and omissions. Increased resort to judicial review has also produced a series of key judgments that have more sharply defined the duties and liabilities of those commissioning and providing healthcare. Medical managers need to be aware of the increased range of professional expectations of them as individuals and the statutory duties of healthcare commissioners and providers. This chapter will discuss issues in relation to this, such as rationing, corporate manslaughter, due diligence, duty of candour, intellectual property, exploiting commercial interests, and trainee liability.

Child Health Law

lIn the UK, every human being below the age of 18 years is considered a child in the eyes of the law. In the legal concept known as parens patriae, the state has a duty to protect dependent persons from harm. All clinicians are duty bound to act in the child’s best interests and the child’s welfare must be paramount. In almost all circumstances, it should be expected that the people who speak for their child’s best interests will be their parents or legal guardians. In the past 20 years, consideration of when children should be considered capable of making informed choices about their medical treatment and when the state should decide has changed considerably. Under UK law, all NHS organizations and their employees must now undertake measures to protect a child in their care such that disclosure and effective action to protect children overrides the duty to maintain confidentiality.

The Coroner

The coroner is an independent judicial officer, appointed by the local authority and responsible for investigating deaths in certain circumstances. The coroner investigates violent or unnatural death, deaths of unknown cause, and deaths that occurred in custody or otherwise in state detention. It is the coroner’s role to establish the identity of the deceased person, as well as how, when, and where they died. Neither a coroner nor a jury may express an opinion on any matters other than the four factual questions nor can any verdict be framed in such a way as to appear to determine any question of criminal or civil liability. No matter how justified, the coroner has no jurisdiction to investigate unless there is a statutory trigger and no duty to hold an inquest where the investigation has revealed a natural cause of death and there is no related and compelling reason to do so.

Consent to Treatment

This chapter considers general principles of consent to treatment. The need to obtain valid consent is a fundamental principle of medical ethics and law. The law recognizes the individual’s right to autonomy, which includes protection of bodily integrity and freedom of choice. Failing to obtain a valid consent before providing treatment may have consequences in both criminal and civil law. It may, in addition, raise human rights issues. Any treatment given to a patient without consent—indeed, any touching of a patient—could result in the practitioner being sued or it may even lead to prosecution in sufficiently serious cases. It may also be a disciplinary matter for the General Medical Council or employers. There are special considerations where a person temporarily or permanently lacks capacity to consent to treatment. Consent also requires one to be sufficiently informed, and failure to provide adequate information can result in a negligence claim.

Legal Basis for Prescribing

Drug prescribing is a multifaceted and technically complex process requiring careful judgement of the competing risks of harm and benefits of treatment. Good prescribing requires knowledge of your patient’s illness, comorbidities, and concurrent treatments. When prescribing, a doctor must be aware of a drug’s potential for toxicity, its metabolic or excretory pathway, its interactions, its cautions and contraindications, and its legal status. Since the enactment of the UK Human Medicines Regulations 2012, prescribing of medicines may be undertaken by any suitably qualified doctor, dentist, and various other groups recently given prescribing privileges. All groups have a duty to prescribe medicines within their area of competence and scope of practice, as failure to prescribe medicines safely is responsible for a significant amount of reported serious medication incidents. This chapter will review the law concerning prescribing, the liability imposed on suppliers, consent issues, non-standard prescribing, and the legal status of non-allopathic medicines.

Elderly Care Law

The Royal College of Physicians describes geriatric medicine as a branch of general medicine that is concerned with the clinical, preventative, remedial, and social aspects of illness in older age. The constellation of medical problems encountered by the elderly patient requires a holistic, team-based approach to care, utilizing a process known as the ‘comprehensive geriatric assessment’. This is an evidence-based approach to the assessment and treatment of older adults, which returns more patients to their own homes, and reduces inpatient mortality compared with standard ward care. Legal issues in the care of older adults are essentially the same as in younger adults. However, some areas that feature more frequently in the care of the elderly, which are considered further in this chapter, are age discrimination, elder abuse, safeguarding of vulnerable adults, deprivation of liberty, and the regulations related to driving in the elderly population.

Organ Donation and Transplantation

The organ donation and transplantation sector in the UK has a comprehensive legal and regulatory framework, with some important differences between England, Scotland, Wales, and Northern Ireland. The Human Tissue Act 2004 and the Human Tissue (Scotland) Act 2006 are the key pieces of primary legislation, with the Human Tissue Authority being the regulatory authority. Consent, or authorization in Scotland, is the golden thread that runs through the legislation and is key for the removal, storage, and use of organs for transplantation. The specific aspects of the legislation that cover deceased donor transplantation are: (1) consent/authorization; (2) when the wishes of the deceased take precedence; and (3) preservation of organs for transplantation whilst awaiting consent. For living donor transplantation, the legislation governs: (1) the regulations pertaining to all living donor transplantation; (2) paired/pooled donation; (3) non-directed stranger donation; and (4) the illegality of commercial dealings in human organs.