The law in a liberal society tolerates behaviour which is irrational or socially deviant and will only intervene to prevent or punish it when a person either threatens to infringe some legal right of another or contravenes a provision of the criminal law. This tolerance includes an acceptance of self-destructive behaviour; suicide is no longer a crime in most countries even if it may be a criminal offence to assist another to commit suicide. It is therefore open to a person to embark on conduct that threatens his or her health or life, even to a significant degree. Medicine cannot force people to act in what it judges to be their own best interests, and the law will, in general, afford medicine no assistance towards the achieving of this aim. The law recognizes, then, a right to be idiosyncratic.
Legally sanctioned intervention in irrational or deviant behaviour becomes possible when the cause of the behaviour is medically identified as being a mental disorder and where certain other criteria are met. A psychiatric diagnosis therefore begins a process that may render the patient liable to medical intervention. It is still necessary, however, for the intervention to be directed towards the treatment of the disorder rather than towards some other, incidental goal. The legal right to impose psychiatric treatment is not a police power, nor is it a power which may be used to treat a non-psychiatric condition.
This difficult point is revealed in a number of cases involving medically inappropriate refusals of treatment on the part of pregnant women. In the case of St George's Healthcare NHS Trust v.S,(9) the Court of Appeal in England set out clear limits to the use of the Mental Health Act 1983 ('the 1983 Act') as a means of forcing a woman to submit to a Caesarean section. The patient had been admitted to hospital for assessment after she had refused to accept medical advice. The court held that no matter how unusual, irrational, or contrary to public opinion an individual's views might be, a person is nevertheless entitled to refuse medical treatment, and mental health powers should not be used to circumvent this refusal. A similar point is made in the Canadian case of Winnipeg Child and Family Services (Northwest Area) v.GFG.(1„0) This case involved an attempt by social service authorities to detain a pregnant women who was addicted to glue sniffing. Again, in the absence of a mental disorder of a sort which would justify detention for treatment, the court accepted the woman's right to pursue conduct that threatened the life of the fetus she was carrying.
In neither of the two cases discussed above could a legally relevant mental disorder be diagnosed; the conduct in question fell outside the boundary for intervention set out in the legislation. A different issue of boundaries arises where there has been a diagnosis of mental disorder but treatment is indicated for a non-psychiatric condition. Pregnancy was again the context for this issue in Tameside and Glossop Acute Services NHS Trust v. CH (a patient)}11) The patient in this case suffered from acute paranoid schizophrenia and was detained for treatment under the 1983 Act. It became apparent in the 38th week of her pregnancy that she required to undergo a Caesarean section if the death of her fetus was to be avoided. She resisted this strongly, but the court ruled that she could be subjected to the procedure against her will as the birth of a healthy baby would assist in her recovery from her mental disorder, whereas the death of the fetus would have a negative effect on her mental state. The Caesarean section would therefore be considered to be part of the treatment of the mental disorder.
The mere fact that a person is suffering from a mental disorder will not prevent them from making a legally valid refusal of treatment for a condition unconnected with their mental disorder. Authority for this is found in the case of Re C (Adult: Refusal of Medical Treatment)A2) The patient in this case was a chronic paranoid schizophrenic, living in an open ward of a parole house, who developed a necrotic ulcer in a grossly infected leg. He understood medical advice to the effect that without the amputation of the leg below the knee there was a strong possibility of death, but he was adamant in his refusal of an operation. The court held that this refusal should be respected on the grounds that in spite of his general capacity being impaired by schizophrenia, the patient appeared to have had the ability to understand the treatment being proposed and the implications of its refusal. In these circumstances, the court ruled, the patient was entitled to decline medical treatment. It should be noted, of course, that the patient in this case would not have been entitled to refuse treatment for schizophrenia had he wished to do so.
The effect of decisions such as Re C is not to make it impossible for medical and nursing staff to attend to the physical ills of those compulsorily detained patients. Nursing procedures are covered by the authority to detain and treat for mental disorder, and the decision in the case of Re F ^ suggests that there is authority to carry out day-to-day medical procedures on detained patients. More significant procedures may require more careful evaluation, and the approval of a court. Where it is clear that the mental disorder does not preclude an understanding of the condition and its treatment, careful consideration may be required as to whether the patient's refusal is attributable to the mental disorder or has some other basis.
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