25: Emergency Medicine and the Law

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Section 25 Emergency Medicine and the Law

Edited by George Jelinek

25.1 Mental health and the law: the Australasian and UK perspectives

Introduction

The ED is frequently the interface between the community and the mental health system. In recent years changes in health policy have resulted in ‘mainstreaming’ of mental health services, so that stand-alone psychiatric services are less common and services are more likely to be provided in a general hospital setting. Linked to this has been a move away from managing long-term psychiatric patients in institutional settings, so that many of these former patients are now living in the community with or without support from mental health services.

Traditionally, by virtue of their accessibility, EDs have been a point of access to mental health services for persons with acute psychiatric illness, whether this be self or family referral or by referral from ambulance, police or outside medical practitioners. An important function of an ED is to differentiate between those who require psychiatric care for a psychiatric illness, and those who present with a psychiatric manifestation of a physical illness and who require medical care. Admission of a patient with a psychiatric manifestation of a physical illness to a psychiatric unit may result in further harm to or death of the patient.

In the UK and Australasia, doctors in general are empowered by legislation to detain a mentally ill person who is in need of treatment. Mental illness, particularly its manifestation as self-harm, is a common ED presentation (in the UK, making up around 1–2% of new patient attendances, and up to 5% of attendances in Australasia), and emergency physicians require not only the clinical skills to distinguish between those who require psychiatric or medical intervention, but also a sound working knowledge of the mental health legislation and services relevant to the state where they practise. This ensures that patients with psychiatric illness are managed in the most appropriate way, with optimal utilization of mental health resources and with the best interests and rights of the patient and the community taken into consideration.

Whilst there are variations in mental health legislation between the UK, Australia and New Zealand, all legislation recognizes fundamental common principles that respect individual autonomy and employ least restrictive management practices. The World Health Organisation (WHO) advises 10 basic principles of mental healthcare law, including enshrining geographical, cultural and economic equity of access to mental health care, acceptable standards of clinical assessment, facilitating self-determination, minimizing restrictive treatment and enshrining regular and impartial decision-making and review of care.1 These themes are all present in Australasian and UK law, and awareness of such principles aids the clinician in delivering humane and ethical treatment for mentally unwell patients who seek emergency care.

Variations in practice

Mental health legislation in England and Wales

Mental Health Act

Detention of patients with mental illness

The Mental Health Act 1983 provides legislation with regard to the management of patients with a mental illness unwilling to be admitted or detained in hospital voluntarily, where this would be in the best interests of the health and safety of patients and others. For the purposes of the Act, patients in the ED are not considered inpatients until they are admitted to a ward. In order for legislation to be imposed it is necessary for two conditions to be satisfied: the patient must be suffering from a mental illness and emergency hospital admission is required because the patient is considered to be a danger to themselves or others.

Detention under the Mental Health Act does not permit treatment for psychiatric or physical illness. Treatment can be given under common law where the patient is considered to pose a serious threat to themselves or others. Otherwise all treatment must be with the patient’s consent.

Section 2 of the Mental Health Act facilitates compulsory admission to hospital for assessment and treatment for up to 28 days. The application is usually made by an approved social worker or the patient’s nearest relative and requires two medical recommendations, usually from the patient’s general practitioner and the duty senior psychiatrist (who is approved under Section 12 of the Mental Health Act). In the ED, the responsibility for coordinating the procedure often lies with the emergency physician.

Section 3 of the Mental Health Act covers compulsory admission for treatment. Once again, recommendations must be made by two doctors, one of whom is usually the general practitioner and the other a psychiatrist approved under Section 12 of the Act. The application is usually made by an approved social worker or the patient’s nearest relative. Detention is for up to 6 months but can be renewed.

Section 4 of the Mental Health Act covers emergency admission for assessment and attempts to avoid delay in emergency situations when obtaining a second recommendation could be dangerous. It requires the recommendation of only one doctor, who may be any registered medical practitioner who must have seen the patient within the previous 24 h. The order lasts for 72 h. Application can be made by the patient’s nearest relative or an approved social worker. In practice, the application of Section 4 of the Mental Health Act rarely happens. Usually Section 2 or 3 is the preferred option.

Section 5 (2) – doctors holding power and Section 5 (4) – nurses holding power of the Act allow the detention of patients who are already admitted to hospital until a more formal Mental Health Act assessment can take place. Unfortunately, presence in the ED is not considered to constitute admission to hospital, and this section is, therefore, not applicable to the ED.

A new draft Mental Health Bill published in 2002 was opposed by professional and patient groups alike. It aimed to introduce a new legal framework for the compulsory treatment of people with mental disorders in hospitals and the community. The new procedure involved a single pathway in three stages: a preliminary examination, a period of formal assessment lasting up to 28 days and treatment under a Mental Health Act order. In order for the compulsory process to be used, four conditions needed to be satisfied: the patient must have a mental disorder, the disorder must warrant medical treatment, treatment must be necessary for the health and safety of the patient or others, and an appropriate treatment for the disorder must be available. The draft Bill made provision for treatment without consent as it is justified under the European Convention on Human Rights Article 8 (2) in the interests of public safety or to protect health or moral standards.

The resulting debate saw much of the draft Bill being scrapped in favour of amendments being made to the existing Mental Health Act. This included the creation of community treatment orders and a broader definition of mental disorder.

Mental Capacity Act

The Mental Capacity Act relates to decision-making, for those whose mental capacity is in doubt, on any issue from what to wear to the more difficult issues of medical treatment, personal finance and housing.

Lack of capacity can occur in two distinct ways. Firstly, that capacity is never achieved – for example someone with a severe learning difficulty. Secondly, capacity can be lost either as a result of long-term conditions such as dementia or for a short period because of a temporary factor such as intoxication, shock, pain or emotional distress.

It is also important that decision-making is task specific. An individual may be able to make decisions about simple matters such as what to eat or wear but may be unable to make more complex decisions, for example about medical care.

Use of sedation or physical restraint

This is covered in detail elsewhere (Chapters 20.6 and 21.5). From the perspective of the mental health legislation, there are occasions where physical or pharmacological restraint is needed. Sedation or restraint must be the minimum that is necessary to prevent the patient from self-harming or harming others. Generally, a patient committed involuntarily is subject to treatment necessary for their care and control, and this may reasonably include the administration of sedative or antipsychotic medication as emergency treatment. Transporting these patients to a mental health service should be done by suitably trained medical or ambulance staff, and not delegated to police officers or other persons acting alone.

Mental health legislation in Australasia

In Australia mental health legislation is a state jurisdiction, and among the various states and territories there is considerable variation in the scope of mental health acts, and between definitions and applications of the various sections. Since the National Mental Health Strategy in 1992, there has been an effort in Australia to adopt a consistent approach between jurisdictions, with an emphasis on ensuring legislated review mechanisms and a broad spectrum of treatment modalities.2 Nevertheless, key differences apply between mental health acts and therefore specific issues should be referred to the Act relevant to the emergency physician’s practice location.

The Australian and New Zealand mental health acts referred to in this chapter are the following:

Sections of the various mental health acts relevant to emergency medicine include those dealing with:

Definition of mentally ill or mental illness

For the purposes of their respective mental health acts, New Zealand and all the Australian states and territories define mental illness or disorder as follows.

Involuntary admission

The process of involuntary admission varies quite markedly across the states. It is variously known as recommendation, certification or committal. All jurisdictions require doctors to examine patients and carefully document on prescribed forms the date and time of examination as well as the particular reasons why the doctor believes that the person has a mental illness that requires involuntary treatment. In addition, patients or their advocates are to be informed of the decisions made about them and their rights under the law at all stages of the involuntary admission process.

New South Wales

The Mental Health Act in New South Wales allows for a patient requiring involuntary admission to be detained in hospital on the certificate of a doctor who has personally examined the patient immediately or shortly before completing the certificate.

For a mentally ill patient the certificate is valid for 5 days from the time of writing, whereas for a mentally disordered patient the certificate is valid for 1 day. Mentally disordered patients cannot be detained on the grounds of being mentally disordered on more than three occasions in any 1 month.

Part of the certificate, if completed, directs the police to apprehend and bring the patient to hospital and also enables them to enter premises without a warrant.

An involuntary patient must be examined by the ‘medical superintendent’ as soon as practicable, but within 12 h of admission. The patient cannot be detained unless further certified mentally ill or disordered. This doctor cannot be the same doctor who requested admission or certified the patient. After their own examination, the ‘medical superintendent’ must arrange for a second examination as soon as practicable, this time by a psychiatrist. If neither doctor thinks that the person is mentally ill or disordered, then the person must be released from the hospital.

A patient who has been certified as mentally disordered, but not subsequently found to be mentally ill, cannot be detained for more than 3 days and must be examined by the ‘medical superintendent’ at least once every 24 h and discharged if no longer mentally ill or disordered, or if appropriate and less restrictive care is available.

Northern Territory

Any person with a genuine interest in or concern for the welfare of another person may request an assessment by any medical practitioner to determine if that person is in need of treatment under the Northern Territory Mental Health Act. The assessment must then occur as soon as practicable, and a subsequent recommendation for psychiatric examination made if the doctor believes that the person fulfils the criteria for involuntary admission on the grounds of mental illness or mental disturbance. The person may then be detained by police, ambulance officers or the doctor making the recommendation and taken to an approved treatment facility, where the person may be held for up to 12 h. The Northern Territory Act acknowledges that delays in this process are likely and enshrines a process to account for this, including the use of interactive video conferencing. A psychiatrist must examine and assess the recommended person at the approved treatment facility and must either admit as an involuntary patient or release the patient if the criteria for involuntary admission are not fulfilled.

A patient admitted on the grounds of mental illness may be detained for 24 h or 7 days if the recommending doctor was also a psychiatrist. Patients admitted on the grounds of mental disturbance may be detained for 72 h or have that extended by 7 days if two examining psychiatrists believe that the person still requires involuntary treatment and cannot or will not consent. Frequent psychiatric reassessment of detained and admitted patients is required to either extend admission or release patients who do not fulfil involuntary criteria.

Victoria

A person may be admitted to and detained in an approved mental health service once the ‘request’ and the ‘recommendation’ have been completed. The request can be completed by any person over 18 years of age, including relatives of the patient, but cannot be completed by the recommending doctor. The recommendation is valid for 3 days after completion, and the recommending doctor must have personally examined or observed the patient.

The request and recommendation are sufficient authority for the medical practitioner, police officer or ambulance officer to take the person to a mental health service or to enter premises without a warrant and to use reasonable force or restraint in order to take the person to a mental health service. Prescribed medical practitioners (psychiatrists, forensic physicians, doctors employed by a mental health service, the head of an ED of a general hospital or the regular treating doctor in a remote area) are also enabled to use sedation or restraint to enable a person to be taken safely to a mental health service.

Once admitted, the patient must be seen by a medical practitioner employed by the mental health service as soon as possible, but must be seen by a registered psychiatrist within 24 h of admission. The admitting doctor must make an involuntary treatment order, which allows for the detention of the patient until psychiatrist review and the urgent administration of medication if needed. The psychiatrist can then either authorize further detention, a community treatment order, or discharge the patient.

Use of sedation or physical restraint

From time to time a patient may need to be sedated or even restrained. The various mental health acts vary considerably in dealing with this issue, and accepted clinical practice has evolved differently in each jurisdiction and does not necessarily reflect subtleties within the legislation.

Generally, patients committed involuntarily are subject to treatment necessary for their care and control, and this may reasonably include the administration of sedative or antipsychotic medication as emergency treatment. In general, sedation or restraint must be the minimum that is necessary to prevent the patient from self-harming or harming others, and careful documentation of the reasons for restraint and the types of restraint is required.

Patients who are physically or pharmacologically restrained must be closely supervised and not left alone or in the care of persons not trained or equipped to deal with the potential complications of these procedures. Transporting these patients to a mental health service should be done by suitably trained medical or ambulance staff and not delegated to police officers or other persons acting alone.

The ACT specifies that sedation may be used to prevent harm, whereas Western Australia specifies that sedation can be used for emergency treatment without consent, and that the details must be recorded in a report to the Mental Health Review Board. Queensland allows a doctor to administer medication for recommended patients without consent to ensure safety during transport to a health facility.

Victoria specifically permits the administration of sedative medication by a ‘prescribed medical practitioner’ to allow for the safe transport of a patient to a mental health service. There is a schedule to complete if this is undertaken.

The legislation is more specific with regard to the use of physical restraint or seclusion. In the ACT this can be done to prevent an immediate and substantial risk of harm to the patient or others, or to keep the patient in custody.

Queensland requires that restraint used for the protection of the patient or others can only be done on an ‘order’ but is permissible for the purposes of treatment if it is clinically appropriate. Tasmania permits its use, on the approval of the responsible medical officer, for the medical treatment or protection of the patient, other persons or property. Victoria permits the restraint of involuntary patients for the purposes of medical treatment and the prevention of injury or persistent property destruction. Victoria also allows the use of restraint by ambulance officers, police or doctors in order to safely transport the patient to a mental health service, but this must be documented in the recommendation schedule.

Both the Northern Territory and Western Australia permit the use of restraint for the purposes of medical treatment and for the protection of the patient, other persons or property. In Western Australia this authorization must be in writing and must be notified to the senior psychiatrist as soon as possible, whilst in the Northern Territory, it must be approved by a psychiatrist or the senior nurse on duty in the case of an emergency.

The New Zealand Mental Health Act makes minimal specific reference to restraint or sedation but enables any urgent treatment to protect the patient or others and allows hospitals and police to take all reasonable steps to detain patients for assessment and treatment. Authority is given to administer sedative drugs if necessary, but the Act mandates a record of this for the area mental health service.

Powers of the police

The police in all states and New Zealand have powers in relation to mentally ill persons who may or may not have been assessed by a doctor. For someone who is not already an involuntary patient and who is reasonably believed to be mentally ill, a risk to self or others and requiring care, police are able to enter premises and apprehend, without a warrant, and to use reasonable force if necessary, in order to remove the person to a ‘place of safety’. Generally, this means taking the person to a medical practitioner or a mental health service for examination without undue delay.

South Australia and Queensland specifically include ambulance officers within this legislation and acknowledge that they often work together with police to detain and transport people for mental health assessment. In Tasmania, people may only be held in protective custody for the purposes of medical assessment for no longer than 4 h and then released if no involuntary admission order has been made.

Some states (ACT, New South Wales and Victoria) make special mention of a threatened or actual suicide attempt as justification for police apprehension and transfer to a health facility. New South Wales allows police discretion, after a person who appears mentally disordered has committed an offence (including attempted murder), to determine whether it is beneficial to their welfare to be detained under the mental health act rather than under other criminal law. The Victorian Act, in contrast, acknowledges that police do not need clinical judgement about mental illness but may exercise their powers based on their own perception of a person’s appearance and behaviour that may be suggestive of mental illness.

In New Zealand, detention by police is limited to 6 h, by which time a medical examination should have taken place. Ideally, police should not enter premises without a warrant, if it is reasonably practicable to obtain one.

The same powers apply to involuntary patients who abscond or are absent without leave, although some states have specific schedules or orders to complete for this to be done. In general, once police become aware of the patient they are obliged to make attempts to find and return them to what can be viewed as lawful custody.

Prisoners with mental illness

Mental illness amongst people in prison is extremely prevalent, either as a cause or as a result of incarceration. New Zealand and most Australian states and territories include provisions for prisoners with mental illness within their mental health legislation. Whilst the health care of prisoners is generally managed within regional forensic systems, EDs in rural and less-well-resourced areas can become a site of care for prisoners with acute psychiatric illness.

The New Zealand Act states that prisoners with mental illness who require acute care can be transferred to a general hospital for involuntary psychiatric treatment, if the prison is unable to provide that care. Australian Acts in New South Wales, the Northern Territory and Victoria all include similar specific provisions for mentally ill prisoners to be able to access involuntary care in public hospitals if needed. The Victorian Act is most detailed in this matter, although in practice rarely relies on public hospitals due to the development of a stand alone forensic psychiatric hospital. Both Queensland and Western Australia enshrine the same principle of allowing prisoners access to general psychiatric treatment, although their legislation is less specific, whilst the Tasmanian, South Australian and ACT Acts do not mention prisoners at all. In all jurisdictions, there is significant overlap with other laws such as Crimes and Prisons Acts, which also mention health needs of prisoners.

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