Provision of hospital treatment for physical illness where a person with mental disorder refuses treatment

Transcription

1 Good Practice Guidance Provision of hospital treatment for physical illness where a person with mental disorder refuses treatment This is a common problem and one on which the Commission is often asked for guidance. The presence of mental disorder may, for some people, be a barrier to necessary physical health care if the person lacks capacity. This guidance refers specifically to the situation where the person refuses to attend hospital in a situation where others think that such attendance for physical health reasons is necessary. In addition to specific points in the guidance, there are some general points to consider. These are: The issue of capacity is paramount (see note 2 on page 3). Any treatment given in the face of a capable refusal could be an assault. The presence of mental disorder does not necessarily mean that the person lacks capacity. Capacity is not all-or-nothing and must be assessed in relation to individual decisions. There is always a presumption in favour of capacity, but this should not be confused with assumption of capacity. Proper assessment of capacity is essential. Principles of legislation are important, especially the principles of benefit, least restriction of freedom, and the need to take account of the views of the individual and others with an interest. In all cases, clinicians need to base interventions on a careful analysis of risks and benefits, including the risk of not intervening. We cannot anticipate every case and the guidance, and case examples, given an overview of how we see the legal situation. In individual cases, the Commission can advise on applying best legal and ethical principles to clinical situations. However, the Commission cannot give legal advice and clinicians may wish to contact their own legal advisors if this is required. 1

2 Flow chart: person with apparent mental disorder appears to need treatment for physical disorder but refuses to attend hospital Ensure full explanation of risks and need for treatment. Involve other(s) who know the person well (1) If person still refuses, does he/she Does have he/she capacity? have (2) capa YES Yes Cannot treat NO How urgent is the situation EMERGENCY (needs immediate attention to save life or prevent a serious deterioration) (3) Treat under principle of necessity and use reasonable persuasion and restraint to allow transfer to hospital (4) URGENT (needs attention within seven days) Is the physical disorder a cause or consequence of the mental disorder? NOT URGENT (will need attention but not within the next Yes seven days) CTO (or std) Is the physical disorder a cause or consequence of the mental disorder? YES Consider use of short term detention (STD) or emergency detention if STD would involve significant delay (5) NO Consider use of removal order under section 293 of the MHC&TSA 2003 (6) YES Consider compulsory treatment order but be prepared to use STD if situation becomes more urgent NO Consider intervention order or welfare guardianship. (7) 2

3 Notes 1. This is explored in the Mental Welfare Commission s good practice guidance on consent to treatment: 2. A medical practitioner should assess capacity. Definition of incapacity (Adults with Incapacity (Scotland) Act 2000): Incapacity means being incapable of acting, or making decisions, or communicating decisions, or understanding decisions, or retaining the memory of decisions by reason of mental disorder or inability to communicate due to physical disorder. Link to useful information on part 5 of the Act: 3. For example: Person has taken overdose, is becoming drowsy and is in serious danger if not treated immediately. Person has acute chest pain, possibly a myocardial infarction and needs immediate hospital attention. 4. Practitioner should discuss this with ambulance staff to ensure that everyone understands and agrees the necessity for immediate treatment. Once in hospital, a person who lacks capacity can be treated under part 5 of the Adults with Incapacity (Scotland) Act The medical practitioner completes a certificate of incapacity under section 47. This certificate does not authorise force or detention unless it is immediately necessary and only for as long as is necessary. 5. An approved medical practitioner and a mental health officer should be contacted. Emergency detention should only be considered if both cannot attend within a safe timescale. 6. Mental Health Officer applies to the Sheriff for a warrant. If urgent, he/she can apply to a Justice of the Peace 7. Presently, the Adults with Incapacity Act and associated codes of practice are unclear on the correct procedure to follow for non-urgent physical health interventions that the adult with incapacity actively resists. The best advice is to apply for welfare guardianship the Sheriff may take the view that, on the basis of this application, an intervention order will suffice. 3

4 Case studies: While the flow chart gives some guidance on what is possible under mental health and incapacity law, some case examples, drawn from situations drawn to the Commission s attention, might help. Case Study No 1 Sandra is 35 and lives alone. She was diagnosed as having multiple sclerosis and bipolar disorder in her late 20s and has been taking atypical antipsychotics over the last 10 years to manage her symptoms. Recently it has been noticed that when she develops a urinary tract infection (UTI) or chest infection it has led to a rapid deterioration with her mental state. This can cause her to become elated in mood, delusional, sexually disinhibited and aggressive to others. These episodes are occurring more frequently and with greater severity causing Sandra to feel remorseful, guilty and embarrassed with increasing thoughts of suicide as a result. In the past these episodes are normally resolved with Sandra being admitted to hospital under the Mental Health (Care and Treatment) Act. Sandra has recently refused treatment for a chest infection because of her fear of admission to hospital. Sandra has limited insight into her mental health needs when unwell and refuses all forms of treatment for both her physical and mental health. Her family are becoming increasingly concerned about the nature of these admissions and are requesting that Sandra be forced to take prophylactic treatment in the future for a urinary tract infection or chest infection. Because of this, Sandra has now refused to engage with any of the mental health services, and has also refused to attend her GP for future monitoring of her physical health needs. Ideas for helping Sandra: Attempt to build a relationship with Sandra to help her understand the need for treatment. Find out who she trusts most and build on that relationship to engage her in treatment Infection appears to be a cause of mental disorder and antibiotic treatment could be authorised by the Mental Health Act in the short term. Therefore, this act could be used to detain Sandra and treat acute episodes In the longer term, if she does not engage in preventative treatment, there would be a case for a welfare guardian with the authority to consent to treatment. 4

5 Case Study No 2 Bill is 55 years of age and lives alone. He was diagnosed with schizophrenia in his early 20s and has been taking various forms of antipsychotic medication since then, currently receiving a fortnightly depot injection. Bill smokes 60 cigarettes per day and consumes two bottles of Buckfast. His diet is poor and his flat is unkempt and is always cold and draughty. Recently he attended the local Health and Wellbeing Clinic at his Community Mental Health Team for a physical health review. It was noted that Bill had an irreducible hernia which he related had grown over the last few months. Following discussion with Bill and other members of the multidisciplinary team he eventually agreed to attend the hospital with the CPN for a surgical assessment. However following this Bill refused the offer of surgery despite the best advice of the surgeon. The surgeon advised that it would cause serious health problems if not operated on as an emergency situation. Bill declined to have the surgery even though he had been informed that the hernia could become strangulated and his life would be at risk. Bill has no family or named person and relies on the Community Mental Health Team for most of his support. He has consistently refused to think about any forms of treatment for the hernia and there are concerns within the clinical team as to what to do for Bill in the immediate future. Ideas for helping Bill It is important to assess Bill s capacity. Is he incapable or is he making an imprudent decision? See the MWC guidance on consent to treatment for a discussion on this. If his mental disorder renders him incapable of making a decision, treatment for the hernia would need to be performed under the Adults with Incapacity Act as the hernia is neither a cause nor consequence of his mental disorder. If the surgeon judges that there is sufficient clinical risk, there would be an argument for welfare guardianship. In the meantime, it is important to monitor Bill carefully. If his hernia strangulates, he will need urgent attention. If he refuses to attend hospital, the MHO could apply for a removal warrant under section 293 of the MHA unless he is severely acutely unwell and needs immediate attention, in which case removal to hospital under the principle of necessity would be appropriate. In this situation, once in hospital, treatment under section 47 of AWI could proceed, using force only where immediately necessary. 5

6 Case Study No 3 Sam who is 69 and has been living alone has been slowly deteriorating first in memory and then in function for more than 5 years. His family were aware of his plight and arranged a rota so that one of them was with him much of the time. All his shopping, cooking and washing needs were provided by his family. He became more confused and became sporadically incontinent. By the time the family sought help he was staying with them most of the day with his behaviour becoming more disturbed. His incontinence worsened and the GP was called to assess. He diagnosed Sam as having a urinary tract infection associated with an enlarged prostate. This cleared up with treatment with antibiotics, however, Sam was refusing to have a prostatectomy operation done as his wife who, had an operation the year before, had suffered a reaction to the general anaesthetic requiring her admission to hospital on a full time basis for dementia. His disturbed behaviour settled with treatment for his UTI and his mental function improved, although he still had memory difficulties. However, his incontinence worsened and his family were finding it increasingly difficult to manage and want him to have surgery for his prostate problems despite his objections. Ideas for helping Sam It would be wrong to assume that he lacks capacity. He appears to fear that what happened to his wife may also happen to him. It would be important to discuss this with him. Episodes of delirium caused by UTIs could be treated under either AWI or the mental health act. Detention under the latter would be appropriate if necessary. The underlying prostate problem is indirectly related to the delirium and is more appropriately dealt with under AWI. The risk of not operating must be assessed. Prostate problems can be managed without surgery, but there would be a need to investigate for possible malignancy. Sam might be happy to agree to out-patient investigation to assess this. 6

7 Case Study No 4 Evelyn is 80 and has advanced dementia. She lives alone with maximum support from care services. Her paid carer visits her in the late evening to help her get ready for bed. She finds Evelyn on the floor having fallen. Her wrist is swollen and painful and the carer thinks it may be broken. She calls for an ambulance. When this arrives, Evelyn tells paramedics that there is nothing wrong with her wrist and she refuses to go to hospital. The carer does not think that she is more confused than usual but is very concerned about leaving her on her own overnight. Despite persuasion, she is adamant that she will not leave her house, stating, as she always does, that she was born in that house and she would die in it. Paramedics are sure that her wrist is broken but Evelyn refuses to accept this and will not let the paramedics treat her. Ideas for helping Evelyn Accepting that she lacks capacity, are there any options to avoid taking her to hospital given her wish to stay at home? Consider finding someone to stay with her and hopefully persuade her to accept treatment. Familiar people that Evelyn trusts may be able to help her accept the need for hospital attention. If not, it would be risky to leave her alone. Her health is not in immediate danger, so taking her to hospital under necessity principle probably does not apply. Also, her injury is not directly a cause or consequence of her dementia, so use of detention procedures would be inappropriate The emergency social work service should be contacted with a view to assessment by a mental health officer and it would be helpful to have an assessment of her capacity by a medical practitioner. The MHO could consider applying for a warrant under section 293 of the MHA and consider urgent application to a Justice of the Peace. 7