A dv an ce s in P sy ch ia tr ic T re atm ent 1 99 8), v ol. 4 , p p. 2 43 -2 49 Medico-legal aspects of liaison psychiatry Eleanor Feldman This article considers the use of the Mental Health Act 1983 (MHA) and application of common law principles with respect to patients with behavioural disturbances in NHS general hospitals in England and Wales. Legal issues do not apply across national bound ries; in the UK there are two other Mental Health Acts currently in force: Scotland's (1984) and Northern Ireland's (1986). The Mental Health Act 1983 in the general hospital General psychiatrists are familiar with applying the MHA to individuals suffering from psychiatric illnesses which it is generally agreed fall within its remit, that is, disorders such as schizophrenia and affective psychoses, and where the main issues concern assessment and /or treatment ofthat mental disorder. Familiarity and confidence derives from years ofestablished custom and practice, tribunals, use ofthe MHA by staffwho have been appropriately trained and who are familiar with its workings, and the monitoring and advice ofthe MHA Commission. However, within liaison psychiatry, there is less experience and agreement regarding the use of the MHA in situations which can quite commonly arise in general hospital in-patients. A broader range of diagnostic categories may need to be considered, for example, delirium, or neurotic condit ons c mpromising medical care. Physicians and surgeons seek advice about the treatment of life- threatening physical illness in non-consenting mentally disordered patients. There is less ex perience to draw upon in a young and small sub- speciality: feedback is not received from tribunals ingeneral hospitals; the psychiatrist advises medical and nursing staff from other specialities who are unfamiliar with the principles and practice of the MHA; theMHA Commission does not routinely visit general hospitals. The consultant psychiatrist covering a general hospital must expect to be challenged by situations beyond their everyday experience ofthe MHA. Clarification ofa few basic principles and discussion of some typical case examples may assist. The remit of the Act The MHA allows for the legal detention and trea ment of adult with mental illness, mental impairment 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 where they are unable or unwilling to consent to such admission and/or treatment. In legal terms, it i an 'enabling Act', which means it does not have to be us d in all instances where it might be applicable, but its use does provide certain legal safeguards for patients and for staff. While any mental disorder can fall within the Act's remit, in practice there are common circumstances where restraint and treatment are applied without recourse to the Act, and where it may be preferable to do so. In t ese situations, the actions performed can only be defended within the scopeofthecommon law.Themost relevant common law principles are discussed later. efinition of mental disorder In Section 1of the MHA, mental disorder is defined broadly. Section 1(2)states: 'Mental disorder' means mental illness, arrested or incomplete development of mind, psychopathic Eleanor Feldman is consultant liaison psychiatrist (Department of Psychological Medicine (Barnes Unit), John Radcliffe Hospital, Headington, Oxford OX3 9DU) and a member of the Royal College of Psychiatrists Section of Liaison Psychiatry Executive.
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Feldman 1998 Medicolegal Aspects of Liaison Psychiatry
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8/18/2019 Feldman 1998 Medicolegal Aspects of Liaison Psychiatry
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 .
8/18/2019 Feldman 1998 Medicolegal Aspects of Liaison Psychiatry