Law and Mental Illness

Table of Contents

Law has relevance in nearly all aspects of nursing practice, but in no other area of nursing is the law more intimately involved than in psychiatric nursing.

This is because psychiatric clients may;

be placed on treatment against their own will
pose a risk to them selves
have been charged to have committed crime while legally insane
be un able or unwilling to consent to treatment
be incapable of fully understanding medical risks
require constant restraints for their safety or others
make threats to others
under go forensic evaluations that require nurses to testify in court

Forensic psychiatry

Forensic psychiatry is a branch of psychiatric nursing that deals with disorders of mind and their relationship with the legal principles.

It is also concerned with the assessment, investigations, diagnosis and treatment of mental disorders among three broad categories of individuals i.e.;

individuals who have are alleged to have committed an offence and face prosecution
convicted prisoners who develop mental illness in the course of serving their sentence
individuals who have not committed an offence but are at risk because of their mental capacity

Under existing mental health legislation in Uganda, its not expected that the primary health care provider will provide this service. its however advised that a PHC provider knows something about prisoners’ mental health needs for the purpose of early and appropriate referrals to centres where a psychiatrist or other mental health professionals are available.

The basic forensic psychiatry includes;

crime and psychiatric disorders
criminal responsibility
civil responsibility
laws relating to psychiatric disorders
admission procedures of patients in psychiatric hospital
civil rights of mentally ill
psychiatrists and court

Crime and psychiatric disorders

There is a close association between crime and psychiatric disorders like schizophrenia, affective disorders, epilepsy, drug dependency, personality disorders etc.

Mentally ill people may commit crime because;

they do not understand the implication of their behaviour
due to delusions and hallucinations
abnormal mental states like confusion or excitements
drug related violence

Instances when an individual facing prosecution may come to attention of a psychiatrist

when police notices signs of mental disorder in individual under their custody
when the judge observes signs of mental disorder
when relatives raise issue of mental disorder
when prisoner reports history of treatment for psychiatric disorder
when suspect pleads insane during court proceedings

Under any of the above, the magistrate may order assessment and observation of an individual to ascertain;

whether the individual is mentally disordered
the individual’s ability to stand trial if mentally disordered
whether the accused is criminally responsible for the offence he is charged with

Responsibilities of a psychiatrist in order to find answers for the above questions

hospitalize the accused for the purpose of observations and possible treatment or attend to matter as an out- patient case
take a full psychiatric history including history of previous episodes of illness and treatment
order an observation of patient by other nursing staff on dairy basis
conduct laboratory, psychological and social investigations
make a report to the magistrate who will then decide on the best course of action on the basis of a psychiatric report

Criminal responsibility

Criminal responsibility is a legal concept which refers to the extent to which an individual can be held liable for his or her offence.

According to section 84 of the Indian penal code act of 1860, “Nothing is an offence which is done by a person who, at a time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of act, or that he is doing what is either wrong or contrary to the law”.

A clinical test of responsibility may be used to determine whether an individual is responsible for an offence or not.

Criteria for criminal responsibility

Criteria for Criminal Responsibility[CCR]	SCORE
1. offence required careful planning
2. offence was unrelated to symptoms of mental disorder
3. identifiable motive for the crime was not a product of mental disorder
4. mental capacity at a time of crime was unimpaired or did not impair rational judgement
5. amnesia if present is incongruent with relevant key features of crime and mental state

Score each item 1 for a Yes response and 0 for No response. The maximum score is 5. A score of 3 and more indicates that the individual is probably responsible for an alleged crime.

Other criteria used to determine criminal responsibility

M’Naghten’s rule

This states that the individual at a time of the crime did not know the nature and quality of the act and if he did know what he was doing, he did not comprehend it to be wrong.

The Irresistible impulse act

According to this rule, a person may have known an act was illegal but as a result of mental impairment lost control of their actions.

The Durham test or Product rule

This states that an accused is not criminally responsible if his unlawful act was the product of mental disease or abnormality

American law institute

This states that a person is not responsible for criminal conduct if at time of such conduct, as a result of mental disease or defect he lacks adequate capacity either to appreciate the criminality of his conduct or to conform his conduct to requirements of the law

Ability to Stand Trial

An individual will not be expected to have an ability to stand trial under the following circumstances;

mentally ill with active signs of mental disorder
lacks ability to understand court proceedings

in cases of the above, the psychiatrist may recommend that the individual receives relevant treatment for the mental disorder and after full recovery, the individual may then stand trial. However in cases of severe psychotic illness like schizophrenia, the case might be disposed.

Convicted prisoner

In case a prisoner who is serving sentence falls ill, he or she may be referred to a mental hospital under magistrates court Act for assessment, observation and treatment. Unfortunately, under existing laws, such an individual will not be excused from serving his prison sentence on ground of mental illness otherwise he will be released at the end of a prison sentence.

Civil responsibilities of mentally ill person

Management of property

In case the court ascertain that a person is of unsound mind and incapable of managing his property, a manager is appointed by court of law to take care of his property which may include selling or disposal of property to settle debts or expenses.

Marriage

As per the Hindu marriage act 1995, marriage between any two individuals one of whom was of unsound mind at a time of marriage is considered null and void in the eyes of the law. Unsoundness of mind for a continuous period can be sighted as a ground for obtaining divorce. The other party can file divorce when unsoundness continues for a period of 2 years however divorce is granted with a precondition that one has to pay maintenance charges for the mentally ill.

Testamentary capacity

Testamentary capacity of the mental ability of a person is a precondition for making a valid will. The testator must be the major, free from coercion, understanding and displaying soundness of mind.

Right to vote

A person of unsound mind cannot contest for elections or exercise the privilege of voting.

Rights of psychiatric patients

Right to wear their own clothes
right to informed consent
right to habeas corpus
right to have individual storage space for their private use or right to privacy
right to keep and use their own personal possessions
right to spend some of their money for their own expenses
right to have reasonable access to all communication media like telephones
right to see visitors
right to treatment in the least restricted setting
right to hold civil service status or enter into legal contracts e.g marriage, personal last will etc
right to refuse treatment especially ECT
right to manage and dispose of property and execute wills

Aims of management in forensic work

diagnose to form a basis for treatment and recommendations to court
make report and submit to court
rehabilitate as part of management
promote acceptance of individual in his community
resettle individual back in community
promote after care following discharge from court and hospital

Legal responsibilities of a nurse

Psychiatric nurses are confronted on daily basis with the interface of legal issues as they attempt to balance the rights of the patient with the rights of the society. Nurses and other health care providers should never in any way violate the rights of the mentally ill.

Nurses should be aware of;

All the laws in the state in which they practice so as to protect herself from liability and patient from unnecessary detention and mistreat
patients’ rights
criminal and civil responsibilities of ill patients
legal documentation

In addition to knowing the above, the nurse should also;

protect patients’ rights
keep legal records safely
maintain confidentiality of patients information
take informed consent from patients of relatives for any procedure
explain based on the level of anxiety, span of attention and level of ability to decide

Nursing Malpractice

Malpractice involves failure of professionals to provide proper and competent care that is given by members of their profession, resulting in harm to the patient.

Common areas of liability in psychiatric service

patient committing suicide
misuse of psychoactive prescription drugs
failure to obtain consent
failure to report abuse
breach of confidentiality
failure to diagnose
inadequate monitoring of patients

Steps to avoid liability in Psychiatric nursing Services

reporting information to co-workers involved in patient care
clearly and accurately maintaining records
maintaining confidentiality of patients information
practice within the scope of state laws and nurse practice act
collaborate with colleagues to determine the best course of action
use established practice standards to guide decisions and action
always put patients’ rights and welfare first
develop effective interpersonal relationship with patients and family.
document all assessment data, treatment given, any interventions and evaluation of the patients response to care accurately and thoroughly.

To successfully argue a case of malpractice against a physician or psychiatric nurse;

The Patient must prove 3 conditions;

There is an established standard of care.
The physicians breached his/her responsibility to the plaintiff.
The physicians breach of responsibility caused injury or damage to the plaintiff.

Compensatory damages are awarded to the patient and reimbursed medical expenses, lost salary or physical suffering.

Punitive damages are awarded to the patient only in order to punish the doctor or nurse for gross negligence or carelessness.

Mental Treatment Act

LEGAL DOCUMENTS AND ADMISSION OF CIVIL PATIENTS.

Civil patients are admitted under the mental treatment act which was passed in 1964 in parliament to replace the mental treatment ordnance which was passed in 1938.

REASONS FOR PASSING THE MENTAL TREATMENT ACT

To safeguard the people with unsound mind from the public and vice vasa
To authorize the mental hospitals to detain, treat, and discharge the mentally ill patients.

There are four orders under which civil patients are admitted in mental hospitals. These ;

Urgency order
Temporary detention order
Reception order
Voluntary order

URGENCY ORDER

This is provided by sec 7 of MTA. It is for quick removal of the mentally ill from the public to the mental hospital. It is signed by any of the following;

A medical practitioner who is licensed eg registered nurse, dr, pco etc
A police officer not below the level of the assistant inspector of police.
A gazzetted chief eg a RDC,

This order remains in place for a period of 10 days. If the patient has not improved, another urgency order is signed. It is not renewed. If not cancelled after 10 days the patient has the right to sue the hospital for illegal detention.

TEMPORARY DETENTION ORDER

This is section 3 of MTA

This is the standard procedure for detaining the mentally ill patients in the mental hospital. The first and important thing is the information of the lunacy.

It can be made by any one at the ward, but in practice, it is made by the ward in charge.

This order remains in place for 14 days but can be renewed for another 14 days when it expires and cannot be renewed any further.

RECEPTION ORDER

This is section 5 of MTA

If the patient does not improve after renewing of the temporary detention order, a magistrate appoints 2 medical practitioners not related to the patient to dig out patent’s information pertaining his behavior and illness.

After the magistrate has received the medical reports, and is satisfied with the reports, he sign the order. This order remains in place for a period of 1 year. If the patient does not improve within one year, it can be renewed for another year, if still the patient has not improved, the order is renewed for 3 years, and will be renewed every 3 years.

Patients under this section are said to be satisfied and nor allowed to sign a will, vote, or stand as witness in court or marry.

VOLUNTARY ORDER

This not under the MTA but is usually legally accepted.

Here the patient comes to the hospital by himself and is directed to the medical superintendent or director who examines the patient and confirms he is mentally sick or not.

The patient will promise to abide by hospital rules and regulations.

If this patient feels he wants to leave the ward, he informs the ward in charge with in 72 hrs who in turn informs the ward doctor that will also inform the medical director or superintendent.

DISCHARGE OF CIVIL PATIENTS

Role of a nurse in discharge procedure

Identify the fitness of the patient and inform the ward doctor ( psychiatrist)
Provides feed back and information about patients discharge and seek patient’s opinion.
Make sure all the paper work and forms are ready, signed and copies sent to the records.
Ensure the patient hands over all the hospital property to the ward manager.
All necessary information especially regarding medications, follow up dates, should be made clear to the patient.
The nurse must bare in mind that the patient may be having mixed minds about staying in the hospital and going back to the community. And so must help the patient to coup.
Depending on circumstances, the patient’s community should be well prepared to receive and stay with the patient.
The nurse should at least escort the patient out of the ward or hospital compound.

Civil patients are discharged under the following sections in MTA

SEC 18; FOR RECOVERED PATIENTS

After the nurse has approved the fitness she informs the ward doctor who recommends the fitness and writes to the director reply and authorizes the doctor to discharge the patient on treatment. But in case the patient is on temporary detention or reception order, the magistrate if informed who then authorizes the discharge of the patient on treatment.

SEC 19; DISCHARGE OF A PATIENT UNDER THE CARE OF THE RELATIVES

If the relatives so wishes to take their patient, they should make a statement indicating that they are going to take care of the patient at home. If the patient becomes un manageable at home with in 28 days from the day of discharge, he/she can be re admitted using the previous order. But if 28 days have expired, then a new order is signed.

No drugs shall be provided unless they pay for it because it is a discharge against medical advice.

SEC 20; DISCHARGE FOR A PAYING PATIENT.

If the relatives think that they may not be able to pay the increasing costs of medical bills, they may request the medical suppretendant to discharge the patient. If the patient is still not yet well but relatives insists on discharge, the patient is discharged on a condition that if anything happens at home, the hospital will not be counted responsible. No medication is provided on discharge unless they pay for it.

SEC 21; DISCHARGE ON TRIAL LEAVE

The director of medical services authorizes the medical sup or ward Dr to discharge the patient an a trial leave for a specified period of time usually 28 days to return to the hospital for review. If the patient exceeds the 28 days given, then the patient if he /she is to be re admitted, afresh order must be signed.

SEC 22; DISCHARGE FOR ESCAPEE PATIENTS

If the patient escapes and does not return with in28days, the if brought back, he/she should not be re admitted unless a fresh order is signed. this section caters for for the safety of the hospital and management.

SEC 23; DISCHARGE OF A PERSON OF SOUND MIND;

If the person of a sound mind is detained against his will, the magistrate examines the person together with the psychiatrist and will direct the medical supretendant or ward doctor to immediately discharge the person.

SEC 36; TRANSFER OF PATIENTS

This section has 2 sub sections,

Transfer of a patient from one hospital to another within the same country. If the patient or relatives or doctor deems it necessary to transfer the patient this section will allow the transfer.
Transfer of a patient from one country to another. This section allows the transfer of a mental patient from one hospital to another hospital in a different country.

Sec 38; TRANSFER OF A FOREIGNER BACK TO THEIR OWN COUNTRY.

This provides the mandate to transfer a foreign mental patient back to his/her own country of origin.

ADMISSION AND DISCHARGE OF A CRIMINAL MENTAL PATIENT.

These are forensic patients. They can be classified into 2.

Remand patients
Class A, B and C patient.

REMAND PATIENTS (panel code act 106)

These are accused persons charged with an offence but are suspected to be of un sound mind while undergoing court proceedings .

They are taken to the mental hospital by the magistrate for ;

Observations
Investigations
Medical report as requested by the magistrate

ADMISSION OF A REMAND PATIENT.

They are brought to the mental hospital on a warrant of commitment on remand signed by the judge or a magistrate. With affixed date or open date to re appear in court.

FIXED DATE REMAND.

This is when the date of the accused to appear in court is specified. When the date reaches, the patient is sent to court accompanied by the medical report stating whether the patient is capable or incapable of pleading. If capable then he is straight away sentenced but if incapable then he/she is brought back to the hospital as class B patient.

OPEN DATE REMAND.

This is when the date of next hearing is not indicated on the warrant of commitment and when a need arises the patient is collected on a production warrant signed by the magistrate.

CLASS A PATIENT.

These are prisoners who develop mental disorders while serving their sentences in prison

ADMISSION OF CLASS A PATIENTS

They are transferred from prison to the mental hospital on the following orders.
Temporally detention order or reception order
Warrant of commitment indicating the offence committed
Warrant slip on which the expiring of the sentence is indicated’

DISCHARGE OF CLASS A PATIENT.

If the patient recovers when the sentence has not yet expired, he/she is taken back to the prison to finish his sentence on a production warrant signed by the magistrate.

If the sentence expires when the patient is in the hospital he will be discharged directly home under sec 18 of the MTA.

If the sentence expires when the patient is in the hospital and has not shown any signs of improvement he/she is called off from the register and transferred to a civil hospital on civil orders.

CLASS B PATIENTS

These are patients admitted from the court having been incapable of making their own defense and follow the court proceedings due to insanity.

They are admitted on in a mental hospital for observations and treatment on the following orders.

Warrant of detention of the accused person incapable of making a self defense signed by the minister of justice or attorney general.
Warrant of detention of accused person incapable of making a self defense signed by the magistrate or judge pending the minister’s order.

DISCHARGE OF CLASS B PATIENT

When the patient is able to plead, a psychiatrist makes a certificate of mental fitness which is taken to the director of public prosecutions who will arrange for the hearing in court.

After pleading, if the accused is found guilty, he/she is sentenced directly. But if found not guilty, due to reasons of insanity he is sent back to the mental hospital as class C patient.

CLASS C PATIENTS.

They are admitted from the court after pleading not guilty due to reasons of insanity. They are admitted on the following orders.

Warrant of detention signed by the judge or magistrate pending minister’s order
Minister’s order with a heading ORDER OF DETENTION of a person of un sound mind not found guilty due to reasons of insanity.

DISCHARGE OF CLASS C PATIENTS.

Depending on the ministers order the patient after recovery is discharged directly home unless otherwise ordered by the minister.

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