University of Southampton, Knowle, UK
Correspondence: Dr Luke Birmingham, Community Clinical Sciences Research Division, University of Southampton, Ravenswood House, Knowle, Hampshire PO17 5NA, UK. Tel: 01329 836000; fax: 01329 834780; e-mail: L.Birmingham{at}soton.ac.uk
See editorial, pp.
287288, this issue.
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ABSTRACT |
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Aims To develop a policy for providing treatment under the common law to prisoners with mental disorders who lack treatment decision-making capacity, while arrangements are made to transfer them to hospital.
Method The policy was developed through literature review and consultation with the Faculty of Law at Southampton University and health care staff at Winchester prison in the UK.
Results The policy provides guidelines for establishing decision-making capacity, standards for documentation, and guidelines for implementation based on the Mental Health Act Code of Practice, other best-practice guidelines and case law.
Conclusions It can be argued that case law allows more-extensive treatment to be provided in the best interests of the incompetent prisoner, beyond emergency situations. The policy has ethical implications and its use should be carefully monitored.
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INTRODUCTION |
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THE SCOPE OF THE PROBLEM |
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No part of a prison is recognised as a hospital under the Mental Health Act 1983. Because there is no statutory provision for the treatment of people with mental disorders in prison, circumstances in which treatment can be enforced are limited. Without consent, treatment can be given only in emergencies or where the common-law justification of necessity permits medical or other interventions to an extent that might be considered reasonable under the circumstances. If a patient or prisoner lacks capacity, treatment may be justified in their best interests, as defined in Bolam v. Friern Hospital Management Committee (1957), modified by Bolitho v. City and Hackney Health Authority (1997). The latter is based upon assessment of clinical need rather than risk of serious harm. This means that prisoners with mental illness that requires urgent treatment, including treatment in the absence of consent, need to be transferred promptly to NHS treatment facilities. Sections 47 and 48 of the Mental Health Act 1983 provide a legal framework for this. In reality many prisoners with mental disorders wait for long periods for a suitable bed, or are not accepted by services (Reed & Lyne, 1997, 2000). For those who remain in prison the situation is exacerbated by the fact that the Care Programme Approach is not widely implemented in prisons, and standards of health care are inferior to those provided outside prison (Smith, 1999). This means that until adequate resources are provided by the NHS, enabling those with serious mental illness to be quickly transferred to hospital, prison doctors and visiting psychiatrists will continue to be confronted by considerable ethical and legal dilemmas posed by prisoners with serious mental illness, on a frequent and regular basis.
In order to address these issues and to tackle the other health care needs of mentally disordered offenders outlined in the report by the joint working party of the Home Office and Department of Health (HM Prison Service & NHS Executive, 1999), we have been working with the prison health care team at Her Majesty's Prison Winchester to develop mental health care for prisoners held there. One aspect of this has involved consultation with the Law Faculty at the University of Southampton and examination of the relevant case law to produce a policy for use in providing treatment under the common law to prisoners with mental disorders who lack treatment decision-making capacity, while arrangements are made to transfer them to hospital. In this paper we present the policy and discuss implications for its use.
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THE POLICY |
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Guidelines for establishing capacity
Where there is a necessity to act in the best interests of a patient who is
thought to lack capacity, an assessment of capacity is made by the prison
medical officer according to the Mental Health Act Code of Practice
(Department of Health & Welsh Office,
1999) criteria based on Re C
(1994) and supported by the
Law Commission (1995). This
should be done in consultation with the prison multi-disciplinary team, in
accordance with best practice for the care of prisoners with mental disorders.
Where practicable a second opinion from a visiting NHS psychiatrist should
also be obtained. According to Re C, to have capacity a person must
be able to:
Competent adults have an unassailable right to refuse all treatment under common law, even if this will result in their death (Re AK, 2001). Someone with a mental disorder may make a treatment decision that seems irrational to the clinical team, but this does not necessarily equate with incapacity (Re MB, 1997). A specific diagnosis of mental disorder is not required to make a finding of incapacity there must simply be some impairment or disturbance of mental functioning, which may be temporary or permanent (Re JT, 1998).
Real consent in prisons is contentious owing to the coercive nature of the institutions. In Freeman v. Home Office (1984) the effect of a coercive institution upon consent issues was considered, with the conclusion that the presence or absence of real consent was a question of fact to be considered on a case-by-case basis.
Guidelines for documentation
The prison inmate should be informed of the purpose of the assessment, and
the findings documented in the Inmate Medical Record (IMR). As a minimum, the
entry in the IMR should include:
Guidelines for implementation
It is the practitioner responsible for the care of the inmate who must
decide the issue of competence. This should be guided by discussion with other
health professionals and where practicable a second opinion from a visiting
psychiatrist. Although the law does not require the standard of treatment
given in prison to match that provided by specialist psychiatric services
(Knight v. Home Office,
1990), this policy contains the following guidelines to
ensure that the best standard of treatment is given when transfer to hospital
under the Mental Health Act 1983 is not expedient:
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DISCUSSION |
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Integration with Human Rights law
Any policy of this nature will need to be compatible with the Human Rights
Act 1998. Prisons are included in those public establishments required to
abide by this legislation. Article 2 states that everyone's right to
life shall be protected by law. It may be argued that, for those with
serious mental disorder, this equates to a right to receive treatment for
their illness, whether they are consenting or not
(Keenan v. UK, 1998).
Article 3 states that no one shall be subjected to torture or inhuman
or degrading treatment or punishment. Herczegfalvy v. Austria
(1992) states, A
measure which is a therapeutic necessity cannot be regarded as inhuman or
degrading. Side-effects of intramuscular depot antipsychotic medication
were claimed to be inhuman and degrading; however, these claims have not been
upheld (Grare v. France,
1992). Nevertheless, the use of depot antipsychotic preparations
under the common law is contentious. A patient might regain capacity but
remain subject to the therapeutic and adverse effects of the drug for a
considerable time even though he or she might be competently refusing consent.
This is not dissimilar to emergency treatments undertaken in surgery, where
effects from the intervention last well in excess of the period during which
the patient lacks competence. It may be argued that for those with a history
of persistent or relapsing psychotic conditions who are not
neuroleptic-naïve, treatment with depot antipsychotic medication
represents treatment in the best interests of the patient.
Potential shortfalls and ethical implications
The standard of health care provided in prison has been a source of concern
for many years (Smith, 1984).
Careful consideration must be given to the impact of implementing any policy
that extends treatment provision within a prison setting where health care
inadequacies exist. For example, the policy that led to the development of
surgical units at Liverpool and Parkhurst prisons during the 1980s failed
because these units never functioned effectively and they proved very costly
to run (Home Office, 1990). These two units were eventually shut down and a third, planned for Wormwood
Scrubs, never became operational.
There are undoubtedly inadequacies in mental health care provision in prisons. A study of the in-patient care of people with mental illness in prison based on the inspection of 13 prisons with in-patient beds in England and Wales revealed that no doctor in charge of in-patients had completed specialist psychiatric training, suitably trained nursing staff were in short supply, patients' lives were unacceptably restricted and the availability of therapy was limited (Reed & Lyne, 2000). It is also recognised that there are unacceptable delays in arranging the transfer of prisoners with mental illness to the NHS, and in some cases the NHS does not give such patients the same priority as they would have if they were admitted from the community (Department of Health & Prison Service, 2001).
It must be stressed that this policy is adjunctive to the process of seeking a hospital bed; it is not intended to provide an alternative to organising immediate assessment under the Mental Health Act. This policy also seeks to provide a consistent set of standards for the treatment of people with mental illness in prison awaiting transfer, based on best-practice guidelines. It could be argued that provision of some treatment within prison might adversely affect prisoners' chances of transfer to a hospital facility, because if they have shown partial response the perceived need for rapid transfer might decline and scarce resources might be prioritised elsewhere. However, against this, the ethical issues associated with leaving untreated a prisoner with a serious mental illness, and the longer-term implications of that person remaining in prison, must be taken into consideration. In our view the clinical needs of the patient will often outweigh other considerations, and we argue that prisoners with mental disorders should receive ongoing treatment for their disorder more frequently than occurs at present.
Resource implications and outcome measures
In order to meet the guidelines for implementation, we propose that this
policy is suitable for use only in prisons with established health care
centres supported by regular input from NHS psychiatrists. The standard of
care expected would be that of a primary care or community mental health team
initiating treatment in the community. This precludes treatment that should be
initiated on an in-patient basis, such as pharmacotherapy with high-dose
antipsychotic medication or clozapine. It must also be integrated with
existing prison policies. The implementation of this policy has clear
implications for the training of prison staff. The use of the policy requires
careful monitoring and it should be subject to regular audit. We recommend
that the outcomes for all patients who undergo treatment according to this
policy be assessed by such measures as clinical response, adverse events,
result of the Mental Health Act assessment process, and whether the patient
was transferred to NHS facilities.
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Clinical Implications and Limitations |
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LIMITATIONS
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ACKNOWLEDGMENTS |
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REFERENCES |
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Department of Health & Prison Service (2001) Changing the Outlook. A Strategy for Developing and Modernising Mental Health Services in Prisons. London: Department of Health.
Health Advisory Committee for the Prison Service (1997) The Provision of Mental Health Care in Prisons. London: Home Office.
HM Inspectorate of Prisons (1996) Patient or Prisoner? A New Strategy for Health Care in Prisons. London: Home Office.
HM Prison Service & NHS Executive (1999) The Future Organisation of Prison Health Care. London: NHS Executive.
Home Office (1990) Report of an Efficiency Scrutiny of the Prison Medical Service. London: Home Office.
Law Commission (1995) Mental Incapacity (Cmnd 231). London: HMSO.
Office for National Statistics (1998) Psychiatric Morbidity Among Prisoners in England and Wales. London: Stationery Office.
Reed, J. & Lyne, M. (1997) The quality of
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Smith, R. (1984) Prison Health Care. London: British Medical Association.
Smith, R. (1999) Prisoners: an end to second
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Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582.
Bolitho v. City and Hackney Heath Authority [1997] 3 WLR 1151.
Freeman v. Home Office [1984] 1 OB 524.
Grare v. France [1992] 15 EHRR CD 100.
Herczegfalvy v. Austria [1992] 15 EHRR 427.
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Knight v. Home Office [1990] 3 AIIER 237.
Re AK (Adult: Medical Treatment: Consent) [2001] 1 FLR 129.
Re C (Adult: Refusal of Medical Treatment) [1994] 1 FLR 31.
Re JT (Adult: Refusal of Medical Treatment) [1998] 1 FLR 48.
Re MB (Caesarean Section) [1997] 2 FCR 541.
Received for publication March 19, 2002. Revision received May 20, 2002. Accepted for publication June 6, 2002.
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