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Compulsion and the deteriorating patient eldergill
Compulsion and the deteriorating patient eldergill
Compulsion and the deteriorating patient eldergill
Compulsion and the deteriorating patient eldergill
Compulsion and the deteriorating patient eldergill
Compulsion and the deteriorating patient eldergill
Compulsion and the deteriorating patient eldergill
Compulsion and the deteriorating patient eldergill
Compulsion and the deteriorating patient eldergill
Compulsion and the deteriorating patient eldergill
Compulsion and the deteriorating patient eldergill
Compulsion and the deteriorating patient eldergill
Compulsion and the deteriorating patient eldergill
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Compulsion and the deteriorating patient eldergill

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  • 1. Legal and Ethical Special Interest Group Discussion Paper THE FALLING SHADOW REPORT AND THE DETERIORATING PATIENTThis discussion paper considers the issue of whether the Mental Health Act 1983allows an asymptomatic patient who becomes non-compliant with medication to becompulsorily admitted to hospital solely on the ground that her/his medical historysuggests that s/he will relapse in the future. The issue was raised in the official reportof the inquiry into the circumstances surrounding the death on 1 September 1993 ofGeorgina Robinson, an occupational therapist working at the Edith Morgan Centre atTorbay District General Hospital.1 She was fatally wounded by Andrew Robinson, apatient unrelated to her who was diagnosed as suffering from schizophrenia anddetained there under section 3. A brief summary of his mental health care prior to thistragic event is set out in the Appendix to this paper.2 The Mental Health ActCommissions Legal and Ethical Special Interest Group, which has produced thisdiscussion paper, would welcome readers comments on the subject.THE COMMITTEE OF INQUIRYThe Committee of Inquiry commissioned by the South Devon Health Care Trustcomprised Sir Louis Blom-Cooper Q.C., Helen Hally (Directory of Nursing at theRiverside Mental Health Trust), and Elaine Murphy (Professor of Old Age Psychiatryat United Medical and Dental Schools, Guys Hospital). According to their reportsubmitted on 30 November 1994, the inquiry had "uncovered a lengthy tail of ill-judged and misapplied care of a severely mentally ill young man by both managementand those working in health care and Social Services. Quite apart from the failure ofthe Trust and its employees to observe the legal requirements for granting detainedpatients leave of absence from the hospital, the committee discovered a generaldisinclination on the part of professional workers to listen to desperate pleas fromAndrews parents, friends and supporters as they recounted his successive mentalbreakdowns." The Committees main findings were that—1. The fatal incident was inherently unpredictable.2. For reasons connected with Andrew Robinsons unlawful absence from the Edith Morgan Centre, the homicidal attack was preventable.3. There was a likelihood of some dangerous conduct by Andrew Robinson as a consequence of the removal of a previous restriction order by a mental health review tribunal.4. A previous guardianship application could and should have been renewed.5. There were deficiencies in the mode and manner of communication.1 The Falling Shadow: One Patients Mental Health Care 1978–1993 (Duckworth, 1995).2 It is suggested that readers unfamiliar with the case read that summary before proceeding further. 1
  • 2. Legal and Ethical Special Interest Group Discussion PaperTHE DETERIORATING PATIENTThe Committee of Inquiry accepted that mental health practitioners face a difficultmedico-legal dilemma when deciding whether to detain a patient whose mental healthis likely to deteriorate in the future. They constantly struggle to find the right balancebetween ensuring that necessary treatment is provided and maintaining a goodtherapeutic relationship with the patient. Although the Code of Practice includesguidance for them about matters which they should consider when a patients health isat risk,3 it does not directly address the question of how severely disordered a personmust be before the statutory grounds for detention are satisfied. As to this problem, aDepartment of Health report published in August 1993, "Legal powers on the care ofmentally ill people in the community," stated that a patient could not be compulsorilyadmitted to hospital simply because her/his past medical history suggested that s/hewould relapse in the future. Richard Jones, in the fourth edition of his Mental HealthAct Manual, similarly expressed the opinion that an anticipated relapse in the patientscondition was not sufficient to meet the criteria for admission under section 3.4Consequently, many psychiatrists appeared to believe that a patient could not bedetained simply because his mental health was likely to deteriorate and it was normalpractice to wait "for psychotic symptoms to ripen before resorting to the powers in theMental Health Act." This view about when compulsion becomes possibleunderpinned the management of Andrew Robinsons case and the Committee ofInquiry considered it to be a misunderstanding of the law.The Committees interpretation of the statutory conditions for detentionThe inquiry team were surprised that the case of Devon County Council v Hawkinshad not been cited in any of the leading textbooks.5 In that case, having found that thepatient was likely to suffer further epileptic seizures if he ceased taking hismedication, the court held that whether a person "suffers from" epilepsy depends onthe prognosis of what will occur if anti-convulsant medication is withdrawn. The thenLord Chief Justice observed that it had been said with much force "that so long as it isnecessary for a person to be under treatment for a disease or disability, then thatperson must be held to be suffering from that disease or disability. In my judgmentthat is in general right." By analogy, whether or not a person who has been receivingpsychiatric treatment, but who presently shows no signs of mental disorder, still3 The Code of Practice states that those assessing the patient must consider:— (a) any evidencesuggesting that the patients mental health will deteriorate if he does not receive treatment; (b) thereliability of such evidence, which may include the known history of the individuals mental disorder;(c) the views of the patient and of any relatives or close friends, especially those living with the patient,about the likely course of his illness and the possibility of it improving; (d) the impact that any futuredeterioration or lack of improvement would have on relatives or close friends, especially those livingwith the patient, including an assessment of his ability and willingness to cope; (e) whether there areother methods of coping with the expected deterioration or lack of improvement. Code of Practice(Department of Health/ Welsh Office, 2nd Ed., 1993), para. 2.9.4 As to the meaning of the statutory phrase "suffering from," Jones had commented that, "Ananticipated relapse based on the patients medical history of mental disorder is not sufficient to meetthis criterion." R. Jones, Mental Health Act Manual (Sweet & Maxwell, 4th ed., 1994), p.24. Thatwriter has included a more detailed commentary about the deteriorating patient in the fifth edition ofhis textbook, published after the inquiry report was issued. See R. Jones, Mental Health Act Manual(Sweet & Maxwell, 5th ed., 1996), pp. 31–32.5 Devon County Council v Hawkins [1967] 2 Q.B. 26. Since the reports publication, the case has beenincluded in subsequent editions of Hoggetts Mental Health Law and Jones Mental Health Act Manual.See R. Jones, Mental Health Act Manual (note 2); B. Hoggett, Mental Health Law (Sweet & Maxwell,4th ed., 1996). 2
  • 3. Legal and Ethical Special Interest Group Discussion Paper"suffers from" mental disorder depends on the likely effect of discontinuing treatment.And, as to the severity of any mental disorder still present, the fact that an illness isasymptomatic does not mean that it cannot have gradations of severity or, in thestatutory language, gradations of a nature or degree which warrant detention. Thatbeing so, the inquiry team concluded that it was wrong to hold that the 1983 Actobliges practitioners to wait for a patients psychosis "to ripen" before exercising theirpowers of detention. The present statute in fact allows a patient who becomes non-compliant to be admitted simply on the grounds that her/his medical history suggeststhat s/he will relapse in the future. Indeed, the domestic law has, for good reasons,long permitted such early intervention and the inquiry team quoted with approval theLunacy Commissioners interpretation of the conditions for certification under theLunacy Act 1890: "If it is necessary to wait until the signs of disorder were so grossthat they would be obvious to a lay Magistrate, then it would often be too late toinstitute effective treatment." The inquiry team were further of the opinion that thecase law does not suggest that prompt re-intervention when a patient defaults onmedication is contrary to Article 5 of the European Convention on Human Rights,which requires that a person detained on the ground that s/he is mentally disordered is"of unsound mind." However, each case turned on its own facts and the Committee ofInquiry stressed that they were not suggesting that every patient who defaults onmedication should immediately be compulsorily admitted to hospital. Psychiatristsmust act on evidence, not hunch or suspicion. In the absence of a very clear pattern ofrelapse, waiting to see whether psychotic symptoms emerge may be the only possibleclinical approach. Furthermore, different patients require different indices of caution.Nevertheless, it is essential to discriminate between the legal and the clinicalconstraints. If the statutory powers should be used in such cases in an indiscriminatemanner, there exist sufficient safeguards to protect patients, e.g. the right to apply to amental health review tribunal.Andrew Robinsons caseApplying these principles to Andrew Robinsons case, the inquiry team concluded thatit was possible that prompt restoration of the guardianship regime might havesustained the previous dynamics of the relationship and restored his full co-operationwhen he refused half the prescribed dose in October 1992. Nevertheless, his historyleft no doubt that a relapse would occur when he refused further medication and byJanuary 1993, when he refused the entire dose, the opportunity to retrieve thesituation short of compulsory admission was probably lost. The history alsodemonstrated that, when psychotic, he became "chillingly violent" and aggressive andhis index offence in 1978 was proof that he was capable of being extremelydangerous. Caution and early intervention were therefore essential and, when such apatient refused further medication, which on previous evidence would lead to relapse,there was "probably no legal impediment to his readmission to hospital at the point ofloss of insight." More particularly, there was no legal need to await a significantdeterioration in his health before taking action and a mental health practitioner wouldbe justified in using the powers conferred by Part II. The Inquiry team also consideredwhether or not there should have been any breaks in the medication given to AndrewRobinson and whether or not there should have been any strategy which includedreducing or continuing the medication. Because he posed a risk to others, and becauseof the harm to himself caused by further relapses, they concluded that every possibleeffort should have been made to ensure that his medication was continuous. The lawin fact permitted this although the professional carers did not appreciate it at the time. 3
  • 4. Legal and Ethical Special Interest Group Discussion Paper COMMENTARYThe Committee of Inquirys findings and recommendations (the lessons which theyconsidered to be generally applicable) very much turned on their interpretation of thefacts of Andrew Robinsons case. The Mental Health Act Commissions Legal andEthical Special Interest Group makes the following comments in relation to theanalysis set out in the report—1. Good practice relies on good morale and a feeling amongst practitioners that they will be supported if they act reasonably given the circumstances known to exist at the time when a decision is taken. It is not just to criticise them when decisions properly made have unfortunate, even catastrophic, consequences.2. Risk cannot be avoided. Every decision about the need, or the continuing need, to detain a person in hospital involves the assumption of a risk. If an individual is not detained, or a tribunal releases a patient who has been detained, the individuals taking that decision risk catastrophe and, if the patient then commits suicide or a serious offence against a third party, public criticism. Yet, however careful the assessment of the nature and extent of the risks involved, it is inevitable that some patients will later take their own lives or, more rarely, commit a serious offence outside hospital. These events also happen in hospitals, as in Andrew Robinsons case. The occurrence of such tragedies does not per se demonstrate any error of judgement on the part of those who decided that supervising the individual outside hospital did not involve assuming an unacceptable risk. Even a very low risk, such as winning the lottery, from time to time becomes an actuality.3. The group accepts that the incident which occurred was inherently unpredictable. However, on the published evidence, it does not also accept that, simply because Andrew Robinson obtained a knife whilst absent without leave, which became "the" knife a week later, the death was necessarily preventable. As a matter of pure logic, it may just as well be said that the incident was preventable in that it would not have occurred had no section 3 application been made, in which case he would not have been in hospital at the relevant time. The patients previous absence from hospital and his possession of a knife were neither sufficient nor necessary causes of the professionals death, as distinct from the mode of death.64. It is noteworthy that the death occurred in hospital and during a period when the patient was liable to be detained in hospital under the Act. Any suggestion that it would or might not have occurred, and by implication that some other equally serious incident would also not have occurred, had a section 3 application been made some months earlier can only be pure speculation.6 The fact that Andrew Robinson was absent without leave, and obtained a knife whilst so absent, was acontributory cause in a particular causal sequence. However, an outcome "often occurs as a result of awhole chain of events which are best regarded together as an effective causal complex. None of thevarious causes in the sequence may be essential even though, colloquially, they are regarded as theprimary cause. A different set of causal factors could have the same end result and the choice of anyone particular causal factor in this complex may be arbitrary." G.W. Bradley, Disease, Diagnosis andDecisions (John Wiley & Sons, 1993), p.39. 4
  • 5. Legal and Ethical Special Interest Group Discussion Paper5. While insight and co-operation may become progressively harder to restore following each relapse, the clinical picture is most often profoundly coloured, and sometimes decisively shaped, by factors specific to the individual and his environment. Variability is the law of life and no two individuals react alike and behave alike under the abnormal conditions which we know as disease.7 Each case must be judged by mental health professionals according to what they know of that individual. It is again pure speculation to imply that Andrew Robinsons case would necessarily have had a materially different outcome if treatment had been resumed at an earlier stage.6. Notwithstanding this observation, the group accepts that early intervention following a withdrawal from treatment is often desirable. However, it also accepts that such an approach carries its own peculiar risks, in that the patient may refuse further contact with the psychiatric services once that admission is over. The consequence of an early intervention policy aimed at ensuring continuity of medication and treatment is then that the patient subsequently receives neither medication nor supervision — in which case, the policy is self- defeating. All that can be done is to balance the competing risks as judiciously as possible, in the knowledge that the decision will necessarily be based on an incomplete knowledge of all those factors which may affect the outcome.7. The group further accepts that each case turns on its own facts; that psychiatrists must act on evidence, not hunch or suspicion; that, in the absence of a very clear pattern of relapse, waiting to see whether psychotic symptoms emerge may be the only possible approach; and that different patients require different indices of caution. More particularly, it also accepts that Andrew Robinsons history constituted strong evidence that a cessation of medication was soon followed by relapse, that relapse led to psychosis, and that, when psychotic, he had a proven capacity for extremely dangerous behaviour. Caution and early intervention were therefore indicated even though he had been compliant and successfully treated outside hospital between 1989 and 1992.8. If the phrase "psychosis" was used by the Committee of Inquiry to indicate the presence of hallucinations, delusions, or severely abnormal behaviour, the subsequent debates about "ripening psychoses" are mere puff, revolving around nothing more substantial than an imprecise analogy.8 For, while an apple which has not ripened is still an apple, a psychosis without evidence of psychotic phenomena is not a psychosis. It is to be remembered that the inquiry team began by referring to "the now-discredited approach of ophthalmologists advising patients to wait for their cataracts to ripen before seeking a lens replacement." They then referred to the fact that psychiatrists often similarly waited — unnecessarily and unadvisedly — "for a patients psychosis to ripen"7 Sir W. Osler, Medical education in Counsels and Ideals (Houghton Mifflin, 2nd ed., 1921).8 The term "psychotic" is retained in the ICD-10 classification "to indicate the presence ofhallucinations, delusions, or a limited number of severe abnormalities of behaviour, such as grossexcitement and overactivity, marked psychomotor retardation, and catatonic behaviour." Classificationof Mental and Behavioural Disorders: Clinical Descriptions and Diagnostic Guidelines (World HealthOrganisation, 1992), pp.3–4. The term "psychosis" was devised by Feuchtersleben in 1845 as acommon term for a variety of mental and personality disorders. Subsequently, it acquired a range ofmeanings, being used inter alia to describe certain classes of mental disorder such as theschizophrenias ("the psychoses"). 5
  • 6. Legal and Ethical Special Interest Group Discussion Paper before taking steps to have him admitted to hospital. Since, in the first situation, the patient does actually have a cataract, the analogy misleadingly suggests that the individual in the second situation has a psychosis, albeit one that has not ripened. Furthermore, this unripened psychosis justifies immediate intervention.9. If the Committee of Inquiry were using the term "psychosis" simply as a descriptive term to indicate people still diagnosed as suffering from a serious mental illness such as schizophrenia ("the psychoses"), the issue may be more accurately formulated without any reference to ripening psychoses. It is simply whether a patient diagnosed as suffering from a serious mental illness may be compulsorily readmitted to hospital even though there are presently no signs that his thinking, mood or behaviour is abnormal.10. Taking this to be the issue, it is one thing to say (as the Lunacy Commissioners did) that it is not necessary to wait until the signs of disorder are so gross that they would be obvious to a lay Magistrate, because it would often then be too late to institute effective treatment, another to say that a person can be detained even though there are no signs of disorder. Again, there is a lack of precision in the Committee of Inquirys use of language. This laxity is unfortunate because it tends to result in a lack of clarity, whereas the logic of terminology should be exploited to reinforce the conceptual framework.11. As to the legal constraints, the group is of the opinion that the Committee of Inquiry was unduly selective in its references to the existing case law. Although, in exceptional cases, the admission criteria may be satisfied even though the patient is virtually asymptomatic, the "unsoundness of mind, whose presence is essential to justify a compulsory order, manifestly means more than mental illness which qualifies a person to be a voluntary patient ... in ordinary language "certifiable" is perhaps more likely to be used to express the same idea."912. The fact that a person taking anti-convulsant medication may still be liable to have further seizures, particularly if he ceases taking prescribed medication, has no direct bearing on the issue of whether the 1983 Act, properly interpreted, allows professionals to compel an asymptomatic patient to take uncomfortable mind altering drugs for an indefinite period. Furthermore, whether it is necessary for the patients health or safety or to protect others that he receives in-patient treatment raises issues different from those which determine whether a person with epilepsy should be permitted to drive. While the risk of someone with epilepsy having a fit whilst driving is very low but the danger to himself and others if that happens is extremely high, the risk that a person diagnosed as having schizophrenia may relapse if he ceases medication is often very high but it is not necessarily clear that either s/he or others will be endangered by this.9 Buxton v. Jayne [1960] 2 All E.R. 688 at 697, per Devlin L.J. 6
  • 7. Legal and Ethical Special Interest Group Discussion Paper OPINIONWith regard to the primary issue of whether a patient may lawfully admitted tohospital under Part II despite the absence of any signs of mental disorder, the MentalHealth Act Commissions Legal and Ethical Special Interest Group is of the followingopinion—1. A person who has suffered from schizophrenia, mania or depression and whose symptoms are merely controlled by medication still "suffers from" mental illness specifically and mental disorder generally.10 Furthermore, the fact that a person is in remission, and there are no longer any symptoms or signs of mental disorder, is not proof that the underlying disorder is not of a severe nature. In this the group agrees with the main conclusion reached by the Committee of Inquiry.2. In the case of admission under section 2, it does not suffice that two medical practitioners are of the opinion that the individual is presently suffering from mental disorder notwithstanding the absence of any symptoms or signs of mental disorder. Any disorder present must be of a nature or degree which warrants his detention in hospital for assessment. It must also be the case that he ought to be detained for assessment in the interests of his own health or safety or with a view to the protection of other persons.3. The present degree of mental disorder being nil, it follows that the individual cannot be detained for assessment in hospital unless the nature of his disorder warrants this.4. The nature of a persons disorder is revealed by its history and, if the historical evidence is particularly compelling, the law would permit early intervention. Nevertheless, the right to liberty is highly prized by English law. The "unsoundness of mind, whose presence is essential to justify a compulsory order, manifestly means more than mental illness which qualifies a person to be a voluntary patient ... in ordinary language "certifiable" is perhaps more likely to be used to express the same idea."115. That being so, and given the present absence of any symptoms and signs of unsoundness of mind, there must be reliable evidence of a continuing unsoundness of mind the nature of which warrants compulsory detention for assessment. That evidence would need to be sufficiently compelling that it could properly be said that the individual "ought to be" deprived of his liberty in the interests of his own health or safety or with a view to protecting others.10 Whether that persons symptoms are merely being controlled by medication or whether there hasbeen an improvement in the underlying condition may, of course, be difficult to determine.11 Buxton v. Jayne [1960] 2 All E.R. 688 at 697, per Devlin L.J. "The term mental illness is notdefined. Its interpretation is a matter for medical judgment, but it is expected that when it is qualifiedby the words of a nature or degree which warrants the detention of the patient in hospital for medicaltreatment ... it will be taken as equivalent to the phrase a person of unsound mind which has been inuse hitherto in connection with compulsory detention ... When it is not qualified by these limitingwords, however, the term ... carries its normal (much wider) meaning." Mental Health Act 1959:Memorandum on Parts I, IV to VII and IX, (D.H.S.S., 1960), para. 40. 7
  • 8. Legal and Ethical Special Interest Group Discussion Paper6. At the very least, there would need to be reliable evidence (a) that the patients symptoms are merely being controlled by the residual effect of the medication which he has recently ceased taking; (b) that he therefore continues to suffer from mental disorder; (c) that the natural course (i.e. the nature) of that disorder is that relapse inevitably follows the discontinuation of medication; (d) that his health or safety, or other persons, are significantly at risk when the manifestations of his disorder are not controlled; and (e) that these risks justify depriving him of his general right to liberty, including his freedom to refuse medical advice and treatment.7. In addition, it is probably the case that there must be some evidence that the patients mental health has begun to deteriorate. That is, there must be some evidence of an abnormality of mental functioning which enables a doctor to reach an opinion on evidence, rather than pure conjecture, that this familiar chain of events is once more in motion.12 Only if there is evidence of the continuing existence of a disorder which has this nature, and which is developing along its natural course, could one be justified in concluding that future events will follow the previous pattern if not checked, so that deprivation of liberty is justified. Certainly, the Commission would need clear statutory or judicial authority before it accepted that Parliament intended that persons whose mental functioning was not abnormal could be detained in a hospital for treatment. Holding otherwise would mean that persons whose mental functioning is not presently abnormal may be denied their liberty and compelled to accept treatment.138. The group therefore further concludes that detention under section 2 also requires reliable evidence (f) of abnormality of mental functioning of a kind known to be associated with the underlying disorder when it is not controlled by medication. There does not need to be evidence that the patient is psychotic in the sense that hallucinations, delusions, or severely abnormal behaviour is apparent provided that it is clear that the disorder is beginning to manifest itself in the familiar way (see footnote 7).9. Subject to judicial supervision and guidance, the group concludes that, provided a medical practitioner is of the opinion that conditions (a) to (f) exist, s/he may lawfully complete a section 2 medical recommendation. The underlying purpose would no doubt be to assess the current situation, and in particular the risk to others, in the light of the recent, familiar, deterioration in the patients mental health. That is not to say that there is a duty to give a recommendation in those circumstances or that it would be negligent not to do so. The Act allows mental health professionals a considerable discretion in terms of how best to help the patient and how best to manage the situation facing them.10. If two medical recommendations are forthcoming in such a case, the focus shifts to the prospective applicant, who will usually be the approved social worker12 As to this, it is worth noting that the main purpose of the supervision register is to record warningsigns and other practical information about the identified risks in the particular case.13 The group again draws attention to what the Lunacy Commissioners actually said, which is that it isnot necessary to wait until the signs of disorder are so gross that they would be obvious to a lay person,i.e. by implication, there must be some signs of disordered mental functioning. 8
  • 9. Legal and Ethical Special Interest Group Discussion Paper asked to assess the appropriateness of compulsory admission. It is that professionals business, rather than the doctors, "to see that the statutory powers are not used unless the circumstances warrant it."14 That being so, an approved social worker must, before making any application, "satisfy himself that detention in a hospital is in all the circumstances of the case the most appropriate way of providing the care and medical treatment of which the patient stands in need."15 More particularly, such a person is only ever under a duty to make an application if satisfied that such an application ought to be made and of the opinion that it is necessary or proper for the application to be made by her/him.1611. Again, it would, we suggest, be lawful to make a section 2 application provided that conditions (a) to (f) exist but, equally, it would be lawful not to do so if the social worker was not satisfied that such an application ought to be made and was not of the opinion that detention in a hospital was the most appropriate way of providing any care and medical treatment of which the patient stood in need.12. To this extent, the group agree with the Committee of Inquiry that the legal and clinical constraints must be distinguished. Although there may be no legal reason why an application may not be made, the professionals may properly conclude that such an application is not appropriate, because of the need to maintain a relationship with the patient and to continue attempts to establish a framework for her/his care in the community.13. Turning to admissions under section 3, the considerations are similar to those applicable in assessment cases. It again does not suffice that two medical practitioners are of the opinion that the individual is presently suffering from mental illness notwithstanding the absence of any symptoms or signs. That mental illness must be of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital. Furthermore, it must be the case that it is necessary for the individuals health or safety, or for the protection of others, that s/he should receive in-patient treatment, which cannot be provided unless s/he is detained under section 3.14. A section 3 medical recommendation must set out the grounds for the doctors opinion that these statutory conditions are satisfied. More particularly, it must also state the reasons for the doctors opinion, firstly, that it is necessary for the patients health or safety, or to protect others, that s/he should receive medical treatment in a hospital and, secondly, that such treatment cannot be provided unless s/he is detained under the section. That statement must specify whether other methods of dealing with the patient are available and, if so, why they are not appropriate.15. The present degree of mental disorder being nil, it follows that in-patient treatment could only be appropriate if the nature of the patients mental illness makes this appropriate. As already noted, the nature of a persons mental illness is revealed by its history and, if the historical evidence is particularly compelling, the law would permit early intervention.14 Buxton v. Jayne [1960] 1 W.L.R. 783, per Devlin L.J.15 Mental Health Act 1983, s.13(2).16 Mental Health Act 1983, s.13(1). 9
  • 10. Legal and Ethical Special Interest Group Discussion Paper16. However, the use of the word "necessary" in the section 3 admission criteria indicates that nothing short of in-patient treatment will adequately safeguard the patients health or safety, or protect others, and that in-patient treatment cannot be provided except by recourse to section 3. This is a stronger test than that which applies under section 2 and the group is of the opinion that, where a person is detained on the ground that the nature but not the degree of his disorder requires this, detention for a short defined period of assessment will usually be more appropriate.17. In Andrew Robinsons case he was "highly co-operative" during his period under guardianship which ended in July 1992 and, following that "successful period of treatment," his doctor was struck on 25 January 1993 by how well he seemed. He noted that Andrew showed some insight into his condition and that he accepted the need to be under the care of a consultant psychiatrist. That being the doctors opinion, it is difficult to see how he could properly have completed a medical recommendation at that time. The more so since the recommendation would have had to specify his reasons for considering that in-patient treatment was necessary and he could hardly recite that he was struck by how well the patient seemed.18. However, by 18 February 1993, Andrew Robinson appeared to be more agitated, with a paranoid flavour to the content of his speech, and to have lost the earlier insight. He had failed to keep his out-patient appointment and there had been police reports that he had been following a boy. Later still, on 3 March, he sent a letter which indicated that he was preoccupied with killing again whilst, on 12 March, a doctor found that he was "evidently deteriorating." The situation on 18 February was therefore that the patients history was strong evidence (a) that the nature of his disorder was such that a cessation of medication was soon followed by relapse; (b) that relapse led to psychosis; and (c) that, when psychotic, he had a proven capacity for extremely dangerous behaviour. In addition, (d) there was evidence that he was relapsing, i.e. there was evidence of an abnormality of mind and that the familiar chain or pattern of events was in motion.19. The groups opinion is therefore that it would have been lawful at this point for a medical practitioner to complete a recommendation on the basis that the nature of his disorder warranted his detention in hospital for assessment and that he ought to be detained with a view to the protection of others. That is not to say that it was negligent not to do so for the Act allows professionals a discretion and they might properly have thought that the situation was retrievable. For the reasons given, the group is not persuaded that it would have been lawful to have detained him in October 1992, simply because he refused half his prescribed medication, or on 3 January 1993, when he refused his depot injection in its entirety. 10
  • 11. Legal and Ethical Special Interest Group Discussion Paper APPENDIXIn October 1976, at the age of 19, Andrew Robinson commenced an economicsdegree at a university in Lancashire. He became pre-occupied with his nose andreferred himself to a surgeon in London during the winter vacation, undergoingplastic surgery. He did not return to that university in the new year.In October 1977, he went to read French at a university in Wales. After two weeksthere he met Miss B, with whom he had a brief relationship and became obsessed. Hisdeteriorating mental health culminated in an overdose of aspirin and paracetamol andan admission to a local psychiatric unit.On his return to the university at the beginning of the second term, Mr. Robinsonunderwent psychotherapy with a clinical psychologist. However, his depression andfixation on Miss B continued. He cut his wrists and sought, and obtained, furtherplastic surgery on his nose. At this stage, the diagnosis was of a personality disorderand there were no obvious symptoms of psychosis.On 3 June 1978, Mr. Robinson took a shotgun from a fellow students room and wasfound hiding in a toilet by the guns owner. He ran off, was followed, loaded theshotgun, fired it once, and then ran to Miss Bs room. He pushed her into the room andplaced the gun against her forehead. Another student arrived on the scene, a struggleensued, and shots were fired at the wall. The gun was wrenched from his possessionand he then grasped Miss B by the neck. Following his arrest, he told the police thathe had gone to Miss Bs room "not fully certain of my intentions but with thought ofseriously hurting her and killing myself."Mr. Robinson subsequently pleaded guilty to counts of possessing a firearm withintent to endanger life and assault occasioning actual bodily harm. The court was ofthe opinion that his illness and potential dangerousness were likely to be long lasting,and it directed his admission to Broadmoor Hospital in pursuance of a hospital orderand a restriction order without limit of time.At Broadmoor, it was reported that Mr. Robinsons "psychotic illness markedlyimproved with neuroleptic medication although by no means in full remission. Hewas admitted as a non-violent person, remained non-violent throughout and he wasdischarged non-violent." His psychiatrist considered his condition could be controlledprovided that he remained on injectable medication in the community, although thepossibility of relapse had to be considered.Just under three years after his admission to Broadmoor, Mr. Robinson wastransferred to the care of Exe Vale/Wonford Hospital in Exeter. The following year,he was discharged to his parents home, near Tavistock, and variously lived with hisfamily, friends or in bed and breakfast accommodation between 1983 and 1985.During this period the psychiatrist in charge of his case considered that he generallyremained well. However, his family and other professionals at various timesexpressed some concern for his mental health and behaviour. He also started tocomplain about the side effects of medication and his consultants were finallypersuaded to stop all medications. 11
  • 12. Legal and Ethical Special Interest Group Discussion PaperIn April 1986, Mr. Robinson was detained under section 3 at the Moorham Hospital inSouth Devon. In September 1986, a Mental Health Review Tribunal discharged thehospital and restriction orders. This was in accordance with his supervisingpsychiatrists recommendation but against the advice of both the Home Secretary andhis supervising social worker.17During 1987 and 1988, Mr. Robinson lived at various establishments in thecommunity punctuated by a number of formal and informal admissions to the EdithMorgan Centre. He was also arrested on three occasions and, on another occasion, alandlady found a gun in his room.In 1989, he was transferred to the Butler Clinic Regional Secure Unit in Devon andthen, in November of that year, discharged back into the community following themaking of a guardianship application under section 7. He was required by hisguardian to reside at a specified address and to attend a Day Centre and weeklymeetings with his community psychiatric nurse. A contract was drawn up in anattempt to ensure compliance with these requirements. In the event, Mr. Robinsonwas "highly co-operative" and a "successful period of treatment" ensued even thoughhe realised that the guardian had no power to compel him to receive prescribedmedication. His desire to co-operate caused him to accept medication, because he didnot want to "fall out" with those caring for him.The guardianship was eventually discharged in July 1992, some eleven months beforeGeorgina Robinsons death, because both the patients responsible medical officer andsocial worker were of the opinion that its continuance would not confer any furtherbenefit.In September 1992, Mr. Robinson moved into his own flat in Torquay. In October, thedoctor seeing him, Dr. W., who was not section 12 approved, was aware that he wasrefusing half his full depot injection.18 On 4 January 1993, the patient then declinedhis depot injection entirely. On 25 January 1993, Dr. W. saw the patient and "was struck by how well he seemed. The meeting was clearly amicable. Andrew even showed some insight into his condition. He accepted the need to be seen to be under the care of a consultant psychiatrist, and appeared to be ready to meet his new psychiatrist, Dr. M, three weeks later." However, by the time that Dr. W saw him next, on 18 February 1993, there had been reports from the Sidmouth police that Andrew had been following a boy there. He had failed to keep his appointment with Dr. M. two days earlier. Dr. W. went to Andrews flat in Torquay when he appeared to him more agitated, with a paranoid flavour to the content of his speech; he appeared to have lost the earlier insight. He became angry and accusatory when he was asked about his missed appointment with Dr. M., and demanded that his visitors leave. Dr. W. thought that, in17 The inquiry team noted that the tribunals decision meant that the Secretary of State no longer had apower to recall him to hospital if he defaulted on taking medication in the community. It was of theopinion that, had the restrictions remained in force, firmer action would have been taken (by theSecretary of State) when he later refused medication as an out-patient.18 The inquiry team were of the opinion that it was possible that prompt restoration of the guardianshipmight have sustained the previous dynamics of the relationship, and with it restored his full co-operation, when he began to refuse half of the dose in October 1992: "We certainly think that thisshould have been tried, given its previous success. But with passing time it became less likely that itwould ... Certainly by January 1993, when he refused the entire dose, the opportunity to retrieve thesituation short of compulsory admission was probably lost." The Falling Shadow: One Patients MentalHealth Care 1978–1993 (Duckworth, 1995), pp.162–163. 12
  • 13. Legal and Ethical Special Interest Group Discussion Paper the absence of psychotic features, it would be difficult to justify compulsory admission ... Dr. M. ... felt ... that Andrew should be given time to cool off. Andrew Robinsons father, by now back from South Africa ... wrote ... on 8 March saying that, since ceasing to take medication, his son was again very unwell, that he feared a disaster, and that it was like waiting for a time bomb to go off. On 12 March, after some strange letters had been received, Andrew was seen by Dr. M., who found him evidently deteriorating. Dr. M. was aware of a letter sent on 3 March by Andrew indicating that he was preoccupied with killing again. This did not produce the resolve to 19 section him."Mr. Robinson remained living in the community until June 1993, when he wasadmitted under section 4 to the Edith Morgan Centre. This was his seventh admissionto that hospital. A section 3 application was subsequently made. On 25 August 1993,whilst apparently absent without leave, he purchased a Prestige kitchen knife withwhich he fatally wounded Georgina Robinson a week later. He was convicted inMarch 1994 of manslaughter on the ground of diminished responsibility and is nowagain detained in a special hospital.19 The Falling Shadow: One Patients Mental Health Care 1978–1993 (Duckworth, 1995), pp.155–156. 13

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