Psychiatry SC077: Why Should I Be Locked Up? Ethics In Psychiatry, Consent And Refusal In Treatment

Question 1

General laws on consent

Answer 1

• Consent from patient is necessary before we perform any examination / procedure
• A person’s right to self-determination: respect for ***Autonomy
• This right is ***protected in law

FOR CONSENT TO BE VALID, THE PATIENT MUST:
1. Be given **relevant information relating to nature + purpose of treatment + its risks and benefits
2. Have the **capacity to make the decision
3. Give consent ***voluntarily: able to exercise choice, free from manipulation / undue influence

Forms of consent:
- Consent may be **express / **implied

Consent form:
- The law does **not require consent to be in written form
- Having a signed consent form does **not automatically mean a patient has given consent
- It is only evidence, and may be ***questioned in court

Who does it?
- The treating doctor (or doctor within same team)

Limits of consent given:
- E.g. if there is material **change in situation
- E.g. do not do **more than consented to, even if additional treatment is of benefit to patient, except in life-saving situations

Flowchart:
Treatment decision
—> Give appropriate information
—> Assess decision making capacity (Presumption of capacity)
—> Capable —> Respect patient’s **autonomy (or else Assault / Battery)
—> Incapable —> Decision made on patient’s behalf (*Best interest: Benefit patient / Protection from harm) (or else Negligence)

Question 2

How much information to give?

Answer 2

• Information in ***“broad terms”
• Information on:
  —> **Nature of problem
  —> **Treatment recommended + its pros and cons
  —> ***Alternatives + their pros and cons
• Give information using ***simple, clear, jargon-free language
• You must respond **honestly to any questions the patient raises + answer as **fully as the patient wishes

Question 3

Capacity

Answer 3

Person’s abilities to make that decision (**Functional approach):
1. **Decision-specific (e.g. consent to CXR but not able to consent to surgery) + **Time-specific
2. NOT determined by patient’s **decision (e.g. refuse does not mean no capacity)
3. NOT determined by a person’s ***diagnosis / status (e.g. dementia does not mean no capacity)

Legal definitions in HK:
Common law (from case of Re C) on Relevant abilities for **refusal of treatment:
1. **Understanding the information
2. **Believing the information
3. **Weighing the information in balance to arrive at a choice

Statutory definition in Mental Health Ordinance section 59ZB (2):
Incapacity for consent to treatment = inability to ***understand general nature and effect of the treatment

Assessment of capacity:
1. Requires a specific assessment of the above abilities
2. Capacity is commensurate with the gravity of the decision (i.e. more important the decision —> more to understand)
3. Capacity may be diminished by illness, false assumptions, misinformation / overbearing ***influence by another person
4. A person is not to be treated as unable to make a decision merely because he makes an unwise decision

How to assess?
1. Understanding the information
- Ask the patient to **recall the information + **paraphrase it using his / her own words
- Ability to understand is related to **general intelligence and **cognitive function
- Can be affected by mental disorders

2. Believing the information
   - Not factual information but more like **insight
   - Beliefs about the disorder (mental or physical) and the treatment
   - Ability to apply the information realistically to **oneself
   - Assessed by asking patient if they **believe they are ill and beliefs about treatment
   NB **cultural variations: alternative views
3. Weighing the information in balance to arrive at a choice
   - Assess patient’s ***reasoning process, how the information was used
   - Asking patient how the decision was reached
   - Ability to process the treatment information, given his / her preferences

Question 4

Decision-making for people who lack mental capacity

Answer 4

1. **Best interests
   - Save the life of the patient
   - Prevent damage / deterioration
   - Bring about an improvement to his / her physical / mental health and wellbeing
   - If possible, include
   —> Consideration of **previously expressed wishes
   —> Adopting the ***least restrictive alternative (i.e. least deprivation of the patient’s liberty / dignity)

Provisions in Mental Health Ordinance:
1. Mentally Incapacitated Person
- Adults with a mental **disorder / mental **handicap (e.g. dementia, brain injured, mental illness, mental retardation)

2. Incapacity for consent to treatment
   - Inability to ***understand general nature and effect of the treatment

Not all Mentally Incapacitated Persons lack mental capacity!
- MIP: defined by diagnosis / condition
- Incapacity: defined by inability to understand
- **Part IVB: guardianship
- **Part IVC: for patients with no guardian

Part IVC:
Doctor / Dentist may give urgent / non-urgent medical or dental treatment to a **MIP who **lack capacity to consent, when the treatment is **necessary and in his / her **best interests

Question 5

Urgent treatment, Non-urgent treatment

Answer 5

Urgent:
Treat in the patient’s “best interests” under the principle of necessity
- If urgent: can treat straight away
- In an emergency, where consent cannot be obtained, you may provide medical treatment to anyone who needs it, provided the treatment is limited to what is immediately necessary to save life or avoid significant deterioration in the patient’s health
- Don’t Wait!

Non-urgent:
- NO one can give or withhold consent to treatment on behalf of a mentally incapacitated adult (e.g. even for son / daughter unless there is a legally appointed guardian)
- Asking a next of kin to sign a consent form has **NO legal authority
- Treatment can be provided under Part IVC of the MHO (*Best interests principle)

Non-urgent, Patient has guardian:
- Check whether someone has guardian through **Guardianship Board / HAHO
- Does the legal guardian (under provisions of Mental Health Ordinance) have the **authority to give consent to medical treatment?
- Decision should be made based on the “best interests” principle (subject to review)
- If guardian cannot be reached, treatment can be given in best interests of patient

Question 6

When is guardianship required?

Answer 6

• There is ***no need to apply for guardianship in most cases
• Guardianship applications take ***months to process!!
• Application may be useful if:
  1. Disagreement between family members and health care team / within family
  2. If MIP strongly resists treatment that is in his/her best interests
  3. Doctors unwilling to provide treatment without a guardian’s proxy consent

Question 7

When to get court approval for treatment

Answer 7

1. When a guardian ***wrongfully refuses to give consent
2. When the treatment is ***controversial (e.g. withdrawal of life-sustaining treatment, when there is overwhelming resistance from family members, existence of a dubious advance directive)
3. ***“Special treatments”: organ donation, sterilisation

Question 8

Guardian

Answer 8

Power:
- To require the person concerned to **reside at a specific place
- To **bring the person concerned to a specific place and use reasonable force for the purpose
- To require the person concerned to **attend at a place and time for medical or dental treatment, special treatment, occupation, education or training
- To **consent to medical / dental treatment if the person concerned is incapable of understanding the general nature and effect of the treatment
- To require **access to the person concerned to be given to any doctor, approved social worker or other person specified in the guardianship order
- To hold, receive or pay a **specified monthly sum for the maintenance or other benefit of the person concerned (currently maximum at HK$18,000 per month)

Question 9

When is consent not required?

Answer 9

1. When someone ***lacks capacity to make the decision (see above)
2. ***Mental illness: Mental Health Ordinance provides for detention, observation and treatment of a person with a mental disorder
3. ***Infectious diseases: Quarantine and Prevention of Disease Ordinance

Question 10

When to ***refer for capacity assessment?

Answer 10

1. If patient has ***mental illness (refer to psychiatrist) (if neurological disease refer to neurologist)
2. If there is ***disagreement about management
3. If there are ***significant (financial / medical / welfare) implications
4. Any case you feel uncomfortable about

Question 11

Compulsory detention + treatment

Answer 11

Reasons for Detention:
1. To **protect the person detained from further harm, e.g. detention of actively suicidal patients, detention of patients in serious state of self neglect
2. To **protect society from the person detained (e.g. convicted killers, rapists, etc.)
3. Both of the above

Mental health ordinance:
- Addresses care + supervision of mentally incapacitated persons
- To provide for **management of the property and affairs of mentally incapacitated persons
- to provide for **reception, **detention + **treatment of mentally incapacitated persons who are mentally disordered persons / patients
- To provide for **guardianship of mentally incapacitated persons (including patients who are mentally disordered) generally
- To make provision for the giving of **consent for treatment or special treatment in respect of mentally incapacitated persons who have attained 18 years of age

Question 12

Legal definition of Mental incapacity

Answer 12

Mental disorder / Mental handicap
but
Excludes:
- promiscuity or other immoral conduct
- sexual deviancy
- dependence on alcohol or drugs

Mental disorder:
1. **Mental illness
2. A state of arrested or incomplete **development of mind which amounts to a significant impairment of **intelligence and social functioning which is associated with abnormally **aggressive or seriously irresponsible conduct on the part of the person concerned (i.e. mental retardation with behavioural problems)
3. Psychopathic disorder (e.g. personality disorder); or
4. Any other disorder or disability of mind which does not amount to mental handicap (e.g. brain damage)

Psychopathic disorder:
- Persistent disorder / disability of mind (whether or not
including significant impairment of intelligence) which results in **abnormally aggressive / seriously irresponsible **conduct on the part of the person concerned

Mental handicap:
- Sub-average general intellectual functioning with deficiencies in adaptive behaviour

Sub-average general intellectual functioning:
- An IQ of 70 or below according to the Wechsler Intelligence Scales for Children or an equivalent scale in a standardized intelligence test

“Patient”
- a person suffering or appearing to be suffering from mental disorder

“Mental hospital”
- any place declared to be a mental hospital in accordance with provisions of section 3: Castle Peak Hospital, Kwai Chung Hospital, PYNEH, Tai Po Hospital

Question 13

***Patient categories in detention

Answer 13

Can only occur in ***Gazetted wards (CPH, KCH, PYNEH, TPH)

1. Voluntary patients
2. Patient under observation (Form 1, 2, 3)
3. Certified patient

Question 14

2. Patient under observation

Answer 14

Grounds for admission:
1. Suffering from mental disorder of a nature / degree which warrants his detention in a mental hospital for **observation (or for observation followed by medical treatment) for at least a limited period
2. In the interests of his **own health (e.g. severely depressed not willing to eat) or safety or with a view to the protection of ***other persons

Means:
- Form 1: Relative / Doctor
- Form 2: Doctor
- Form 3: District judge / Magistrate
—> Patient has right to see District judge / Magistrate to review detention
—> Period of observation may be ***extended if applied for by a doctor with special experience in the diagnosis / treatment of mental disorders (approved doctor)

Question 15

3. Certified patient

Answer 15

Need **>=1 recommendation from **approved doctor

Grounds for admission
1. Suffering from mental illness, amounting to mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in hospital
AND
2. Necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section

Question 16

Mental health review tribunal

Answer 16

• A statutory body to protect the rights of patients
• Appeal may be lodged by **patient / **relative
• **Automatic appeal lodged by Hospital head if no appeal after a period of detention for **12 months
• Power to discharge patient either absolutely or subject to conditions

Question 17

Confidentiality: Disclosure to 3rd party

Answer 17

• Should get consent
• Exceptional circumstances without consent:
  1. Necessary to **prevent serious harm to patient or others
  2. **Required by law
• Should weigh carefully pros and cons of disclosure without consent
• Should consult senior colleagues, medical defense organization, professional organization or ethics committee

Police / Law enforcement access:
- With patient’s consent no problem
- Without patient’s consent it ***depends, only allowed in very restricted circumstances

Question 18

Factual information vs Clinical information

Answer 18

Factual information:
- e.g. name, age, sex, date of birth, HKID number, hospital number, address, next-of-kin particulars, admission / discharge date, ward / bed number
- Protected by **Personal Data (Privacy) Ordinance (PDPO)
- Can only be disclosed without patient’s consent if
1. Statutory exemptions under the PDPO are applicable
or
2. Required by statute
or
3. Under compulsion of law
- Request must be made by a person of Inspector rank / above and endorsed by an officer of the rank of Superintendent / above
- Must **certify that the request is for a purpose specified in section ***58 of the Personal Data (Privacy) Ordinance

S58 exemptions:
1. The prevention and detection of crime
2. The apprehension, prosecution or detention of offenders
3. The prevention, preclusion or remedying (including punishment) of unlawful or seriously improper conduct, or dishonesty or malpractice, by persons
—> ONLY applies to patient’s **factual data
—> NOT clinical data (can only be disclosed if it is in the **public interest to do so under common law)

Clinical information:
- i.e. Patient’s medical information
- Protected under both **PDPO + **common law duty of confidentiality
- Can ONLY be disclosed without patient’s consent if
—> A search **warrant has been issued
—> Disclosure of such is in the **public interest (e.g. in cases involving commission of a serious crime, where there is a genuine risk to the public)

• It is the responsibility of the Police to justify the request and provide sufficient background information to facilitate the HA’s consideration
• NB “In the public interest” =/= “what the public is interested in”

When might we consider making reports to police?
1. Immediate danger to self or others
2. Child abuse cases (after referral to and consultation with medical social workers)
3. Serious crime (e.g. murder, manslaughter, rape, gunshot wound victims, multiple chop wound)
4. Sexual abuse or battered spouse: referral to MSW or report to Police with victim’s consent
5. Under 13 pregnancy