Law and Mental Illness
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 themselves
- have been charged to have committed crime while legally insane
- be unable 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
- undergo forensic evaluations that require nurses to testify in court
Forensic Psychiatry
Forensic psychiatry is a specialized branch of psychiatry that deals with the interface between mental health and the law.
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 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, it is not expected that the primary health care provider will provide this service. It is 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
I. 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 daily 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
II. 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.
III. Criteria for Criminal Responsibility
Criteria for Criminal Responsibility (CCR) Score:
| SCORE |
Yes (1) / No (0) |
| 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.
IV. 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.
V. 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.
VI. 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
Civil Responsibilities and Rights of Mentally Ill Persons
Beyond the criminal justice system, individuals with mental illness interact with the law concerning their civil responsibilities and fundamental human rights.
I. Civil Responsibilities of a Mentally Ill Person:
Mental illness can, under specific legal circumstances, impact an individual's capacity to exercise certain civil responsibilities. When a person is deemed of "unsound mind" to a degree that impairs their judgment or decision-making, the law provides mechanisms to protect their interests and the interests of others.
- 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." This highlights the legal provision for protecting the assets of individuals who lack the mental capacity to manage their own financial affairs. The appointed manager acts in the best interest of the person with mental illness.
- Marriage: "Hindu Marriage Act 1995" states that "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." Furthermore, "Unsoundness of mind for a continuous period can be sighted as a ground for obtaining divorce." If this unsoundness continues for a period of two years, the other party can file for divorce, though "divorce is granted with a precondition that one has to pay maintenance charges for the mentally ill."
- Testamentary Capacity (Making a Will): "Testamentary capacity or the mental ability of a person is a precondition for making a valid will." For a will to be legally binding, "The testator must be the major, free from coercion, understanding and displaying soundness of mind." This means that at the time of making a will, the individual must possess sufficient mental clarity to understand the nature of the document, the property they are disposing of, and the beneficiaries. Mental illness might invalidate a will if it demonstrably impaired this capacity.
- Right to Vote: "A person of unsound mind cannot contest for elections or exercise the privilege of voting." This is a civil responsibility directly tied to mental capacity, reflecting the legal requirement for electors and candidates to possess sound judgment in political processes.
II. Rights of Psychiatric Patients:
The legal framework, particularly within the context of mental health care, also aims to protect the fundamental human rights and dignity of individuals receiving psychiatric treatment.
- Right to wear their own clothes: Promotes dignity, personal expression, and normalization.
- Right to informed consent: Ensures patients understand and voluntarily agree to treatment, or have a legally authorized person consent on their behalf when capacity is compromised. This is a cornerstone of ethical medical practice.
- Right to habeas corpus: The right to challenge the legality of one's detention before a court, ensuring that involuntary hospitalization is subject to judicial review.
- Right to have individual storage space for their private use or right to privacy: Protects personal belongings and maintains a sense of autonomy and privacy within a treatment setting.
- Right to keep and use their own personal possessions: Allows patients to maintain connection to their identity and comfort items.
- Right to spend some of their money for their own expenses: Affirms financial autonomy and choice.
- Right to have reasonable access to all communication media like telephones: Maintains connection with the outside world, family, and legal counsel.
- Right to see visitors: Prevents social isolation and supports recovery through family and social connections.
- Right to treatment in the least restricted setting: Advocates for treatment environments that impose the fewest limitations on personal freedom, consistent with safety and effective care.
- Right to hold civil service status or enter into legal contracts e.g., marriage, personal last will etc.: These rights indicate that a diagnosis of mental illness alone does not automatically remove civil capacities. Such capacities are only removed if a court specifically determines an individual is of "unsound mind" to the extent that they cannot exercise these rights responsibly.
- Right to refuse treatment especially ECT: Acknowledges bodily autonomy and the patient's right to decline medical interventions, particularly those with significant implications like Electroconvulsive Therapy (ECT), unless there is a specific legal provision for compelled treatment in emergency situations or under court order.
- Right to manage and dispose of property and execute wills: Reaffirms that these civil responsibilities are generally retained unless a formal legal determination of incapacity has been made.
Legal Responsibilities and Potential Liabilities for Nurses in Psychiatric Service
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.
I. Legal Responsibilities of a Nurse:
Nurses, particularly in psychiatric care, bear specific legal responsibilities designed to protect both the patient and themselves from liability. These include:
- Adherence to Laws and Standards: Nurses must be intimately familiar with all relevant laws and regulations in their state or region of practice. This includes understanding mental health legislation, patient rights, and the criminal and civil responsibilities associated with mental illness. Practicing within the scope of state laws and the Nurse Practice Act is fundamental.
- Patient Rights Protection: Actively safeguarding patients' rights is a core responsibility. This involves ensuring patients are informed of their rights and that these rights are respected throughout their care.
- Documentation: Accurate, thorough, and timely legal documentation is crucial. Nurses must clearly and accurately maintain records of all assessment data, treatments given, interventions performed, and the patient's responses to care. These records must be kept safely and confidentially.
- Confidentiality: Maintaining strict confidentiality of all patient information is a paramount legal and ethical duty, given the sensitive nature of psychiatric diagnoses and treatments.
- Informed Consent: Obtaining informed consent from patients or their legal representatives for any procedure or treatment is a fundamental requirement. Explanations of procedures must be tailored to the patient's anxiety level, attention span, and capacity to make decisions.
- Collaboration: Working effectively with colleagues to determine the best course of action for patient care, ensuring a multidisciplinary approach.
- Ethical Practice: Always prioritizing patients’ rights and welfare and developing effective interpersonal relationships with patients and their families.
- Reporting: Recognizing and reporting instances of abuse, neglect, or any unsafe practices is a professional and legal obligation.
II. Nursing Malpractice:
Malpractice in nursing signifies a failure by a professional to provide the proper and competent care expected from members of their profession, leading to harm to the patient.
To successfully argue a case of malpractice against a healthcare provider, three conditions typically must be proven by the patient:
- Established Standard of Care: There existed a recognized standard of care applicable to the situation.
- Breach of Responsibility: The nurse or physician breached their professional responsibility by failing to adhere to this established standard.
- Causation and Injury: This breach of responsibility directly caused injury or damage to the plaintiff (patient).
If malpractice is proven, compensatory damages may be awarded to the patient to cover medical expenses, lost wages, and physical or emotional suffering. In cases of gross negligence or extreme carelessness, punitive damages may also be awarded, intended not to compensate the patient but to punish the negligent professional.
III. Common Areas of Liability in Psychiatric Service:
The unique aspects of psychiatric care create specific vulnerabilities for liability. Nurses must be particularly vigilant in these areas:
- Patient Committing Suicide: This remains a leading cause of liability. It involves inadequate risk assessment, failure to implement appropriate suicide precautions, or insufficient monitoring.
- Failure to Prevent Self-Inflicted Injury: This encompasses situations where patients cause harm to themselves (e.g., cutting, head-banging) without direct suicidal intent, often due to their mental state, and where supervision or protective measures were inadequate.
- Patient Assaults: Liability can arise from failure to prevent patients from assaulting other patients or staff. This often links to inadequate risk assessment, poor environmental management, or insufficient de-escalation skills.
- Misuse of Psychoactive Prescription Drugs: This includes medication errors (wrong drug, dose, route, time) or inappropriate administration leading to harm.
- Failure to Obtain Consent: Providing treatment without proper informed consent, particularly crucial in a setting where capacity to consent may fluctuate.
- Failure to Report Abuse: Neglecting to report suspected abuse of a patient is a serious legal and ethical failing.
- Inadequate Monitoring of Patients: Insufficient observation or supervision, especially for high-risk patients, leading to adverse events.
- Breach of Confidentiality: Unauthorized disclosure of sensitive patient information.
- Improper Use of Seclusion and Restraints: Applying these interventions without strict adherence to legal guidelines, clinical necessity, and monitoring protocols.
- Failure to Diagnose: While primarily a physician's role, nurses contribute to the diagnostic process through their observations and reporting. A failure to recognize and report critical symptoms that lead to a missed diagnosis and subsequent harm could involve nursing liability.
IV. Steps to Avoid Liability in Psychiatric Nursing Services:
Proactive measures are essential for psychiatric nurses to mitigate legal risks:
- Effective Communication: Reporting relevant patient information clearly and thoroughly to co-workers involved in patient care.
- Meticulous Documentation: Accurately and thoroughly documenting all assessment data, treatments given, interventions, and evaluations of patient responses.
- Confidentiality: Consistently maintaining the confidentiality of patient information.
- Scope of Practice: Practicing strictly within the defined scope of state laws and the Nurse Practice Act.
- Collaboration: Working collaboratively with colleagues and the interdisciplinary team to determine the best course of action for patient care.
- Standards of Practice: Utilizing established practice standards and guidelines to inform and direct clinical decisions and actions.
- Patient-Centered Care: Always prioritizing patients’ rights and welfare above all else.
- Therapeutic Relationships: Developing effective and professional interpersonal relationships with patients and their families.
MENTAL TREATMENT ACT (MTA)
Legal Documents And Admission Of Civil Patients.
The Mental Treatment Act (MTA), enacted in 1964, is a piece of legislation governing the admission, treatment, and discharge of individuals with mental illness in psychiatric hospitals. It replaced the earlier Mental Treatment Ordinance of 1938, aiming to safeguard persons with unsound mind from harm, protect the public, and legally authorize mental hospitals to detain, treat, and discharge patients. The MTA primarily addresses civil patients, distinguishing them from forensic patients who enter the system via criminal justice proceedings.
I. Orders for Admission of Civil Patients:
The MTA outlines four primary orders under which civil patients can be admitted to mental hospitals, each with specific criteria and durations. While the Voluntary Order is not strictly under the MTA, it is legally accepted as a pathway to admission.
1. Urgency Order (Section 7 of MTA):
- Purpose: Designed for the rapid removal of an individual with mental illness from the public into a mental hospital, especially when there is an immediate need for intervention due to potential danger to themselves or others.
- Authorization: Can be signed by a licensed medical practitioner (e.g., registered nurse, doctor), a police officer not below the rank of Assistant Inspector, or a gazetted chief (e.g., a Resident District Commissioner - RDC).
- Duration: Remains in effect for a period of 10 days. It cannot be renewed; if further detention is required, a new order must be initiated. If the patient is not discharged or a new order is not signed after 10 days, the patient has the right to sue the hospital for illegal detention.
2. Temporary Detention Order (Section 3 of MTA):
- Purpose: This serves as the standard initial procedure for detaining patients requiring psychiatric hospitalization. The process begins with the "information of lunacy," which can be made by anyone aware of the patient's condition, though in practice, it is often initiated by the ward in charge.
- Duration: Valid for 14 days. It can be renewed once for an additional 14 days, but no further renewals are permitted under this order.
3. Reception Order (Section 5 of MTA):
- Purpose: This order is sought if a patient's condition does not improve after the Temporary Detention Order and its renewal expire. It signifies a longer-term commitment to care.
- Process: A magistrate appoints two medical practitioners (who are not related to the patient) to thoroughly investigate the patient's behavior and illness. Upon receiving and being satisfied with these medical reports, the magistrate signs the Reception Order.
- Duration: Initially valid for one year. If the patient's condition has not improved, it can be renewed for another year. If improvement is still not observed, subsequent renewals are for three-year periods.
- Implications: Patients under a Reception Order are considered "satisfied," implying a legal determination of diminished capacity. They are generally not permitted to sign a will, vote, stand as a witness in court, or marry, reflecting a curtailment of certain civil rights due to their mental state.
4. Voluntary Order:
- Status: Although not strictly under the MTA, this is a legally accepted pathway for admission.
- Process: The patient voluntarily presents themselves to the hospital. The Medical Superintendent or Director examines the patient to confirm their mental health status. The patient agrees to abide by hospital rules and regulations.
- Discharge: If a voluntary patient wishes to leave, they inform the ward in charge, who then informs the ward doctor and subsequently the Medical Director or Superintendent. There is typically a 72-hour period within which this notification and processing occurs, allowing for assessment of the patient's decision-making capacity and potential transition planning.
II. Discharge of Civil Patients:
The discharge process for civil patients under the MTA involves several sections, each catering to different circumstances, and nurses play a crucial role throughout.
A. Role of a Nurse in Discharge Procedure:
Nurses are instrumental in ensuring a safe and effective discharge by:
- Identifying the patient's fitness for discharge and informing the psychiatrist.
- Providing feedback and information about the discharge plan and seeking the patient's input.
- Ensuring all paperwork and forms are completed, signed, and copies sent to medical records.
- Confirming the patient has returned all hospital property to the ward manager.
- Clearly communicating all necessary information, particularly regarding medications and follow-up appointments, to the patient.
- Recognizing and addressing any mixed feelings the patient may have about leaving the hospital and returning to the community, offering support and coping strategies.
- Preparing the patient's community (family, caregivers) to receive and support the patient, depending on the circumstances.
- Escorting the patient out of the ward or hospital compound.
B. Discharge Sections under the MTA:
- Section 18: For Recovered Patients:
When a nurse assesses a patient as fit for discharge, they inform the ward doctor (psychiatrist), who then recommends the patient's fitness. The doctor writes to the Director for authorization to discharge the patient with treatment. For patients admitted under Temporary Detention or Reception Orders, the magistrate is informed and authorizes the discharge.
- Section 19: Discharge of a Patient Under the Care of Relatives:
If relatives request to take the patient home, they must provide a written statement confirming they will care for the patient. If the patient becomes unmanageable within 28 days of discharge, they can be readmitted using the previous order. After 28 days, a new admission order would be required. In such cases, if the discharge is against medical advice, no medications are provided unless paid for.
- Section 20: Discharge for a Paying Patient:
If relatives of a paying patient face increasing medical costs and request discharge, even if the patient is not fully recovered, the Medical Superintendent may grant it. This often comes with a condition that the hospital will not be held responsible for any subsequent incidents at home. Similar to Section 19, no medications are provided without payment if the discharge is against medical advice.
- Section 21: Discharge on Trial Leave:
The Director of Medical Services authorizes the Medical Superintendent or ward doctor to discharge a patient on trial leave for a specified period (typically 28 days), during which the patient is expected to return for review. If the patient exceeds this 28-day period without returning, a fresh admission order would be required for readmission.
- Section 22: Discharge for Escaped Patients:
If a patient escapes and does not return within 28 days, should they later be brought back, a fresh admission order must be obtained for readmission. This provision addresses safety and management concerns for the hospital.
- Section 23: Discharge of a Person of Sound Mind:
If an individual of sound mind is detained against their will, a magistrate, in conjunction with a psychiatrist, will examine the person. If they are indeed found to be of sound mind, the Medical Superintendent or ward doctor will be directed to immediately discharge them.
III. Transfer of Patients:
The MTA also includes provisions for the transfer of patients:
- Section 36: Transfer of Patients: This section covers two types of transfers:
- Intra-national Transfer: Allows for the transfer of a patient from one hospital to another within the same country if deemed necessary by the patient, relatives, or medical professionals.
- Inter-national Transfer: Permits the transfer of a mental patient from a hospital in one country to a hospital in another country.
- Section 38: Transfer of a Foreigner Back to Their Own Country: This section specifically grants the authority to transfer a foreign mental patient back to their country of origin.
Admission and Discharge Procedures for Criminal Mental Patients
Criminal mental patients, also known as forensic patients, are individuals who interact with the mental health system due to their involvement with the criminal justice system. They are broadly classified into two categories: Remand patients and Class A, B, and C patients, each with distinct admission and discharge protocols governed by specific legal frameworks.
I. Remand Patients (Penal Code Act 106):
Remand patients are individuals who have been accused of an offense and charged, but during court proceedings, they are suspected of being of "unsound mind." They are referred to a mental hospital by a magistrate for observation, investigation, and the preparation of a medical report detailing their mental state, as requested by the court.
A. Admission of a Remand Patient:
Remand patients are admitted to a mental hospital under a warrant of commitment on remand. This warrant is signed by a judge or a magistrate and specifies either a fixed date or an open date for the patient to reappear in court.
- Fixed Date Remand: The warrant explicitly states the date for the accused's next court appearance. When this date arrives, the patient is returned to court, accompanied by a medical report indicating their capacity to plead. If found capable, they may be sentenced immediately. If deemed incapable, they are typically returned to the hospital and reclassified as a Class B patient.
- Open Date Remand: In this scenario, the warrant of commitment does not specify a date for the next hearing. The patient is recalled to court as needed, upon presentation of a production warrant signed by a magistrate.
II. Class A Patients:
Class A patients are prisoners who develop mental disorders while serving their sentences in a correctional facility.
A. Admission of Class A Patients:
These patients are transferred from prison to a mental hospital based on several orders:
- A Temporary Detention Order or Reception Order, similar to those for civil patients, but applied within the context of their incarceration.
- A warrant of commitment that specifies the offense they committed.
- A warrant slip indicating the expiration date of their prison sentence.
B. Discharge of Class A Patients:
The discharge process for Class A patients depends on their recovery and sentence status:
- Recovery Before Sentence Expiration: If a patient recovers while their sentence has not yet expired, they are returned to prison to complete their sentence. This transfer is facilitated by a production warrant signed by a magistrate.
- Sentence Expiration While Hospitalized (Recovered): If the patient's sentence expires while they are in the mental hospital and they have recovered, they are discharged directly home under Section 18 of the Mental Treatment Act (which pertains to recovered patients).
- Sentence Expiration While Hospitalized (Not Recovered): If the sentence expires but the patient has not shown signs of improvement, they are removed from the forensic register and transferred to a civil hospital, where their care continues under civil orders.
III. Class B Patients:
Class B patients are individuals admitted from court who have been deemed incapable of making their own defense or following court proceedings due to insanity.
A. Admission of Class B Patients:
They are admitted to a mental hospital for observation and treatment under specific warrants:
- A warrant of detention for an accused person incapable of making a self-defense, signed by the Minister of Justice or the Attorney General.
- Alternatively, a warrant of detention for an accused person incapable of making a self-defense, signed by a magistrate or judge, pending the Minister's order.
B. Discharge of Class B Patients:
When a Class B patient recovers and is deemed able to plead, a psychiatrist issues a certificate of mental fitness. This certificate is submitted to the Director of Public Prosecutions, who then arranges for a court hearing.
- If, after pleading, the accused is found guilty, they are sentenced directly.
- If found not guilty due to reasons of insanity, they are returned to the mental hospital and reclassified as a Class C patient.
IV. Class C Patients:
Class C patients are those admitted from court after being found not guilty of an offense due to reasons of insanity.
A. Admission of Class C Patients:
Their admission to a mental hospital is based on:
- A warrant of detention signed by a judge or magistrate, pending the Minister's order.
- A Minister's order, which will explicitly state "ORDER OF DETENTION of a person of unsound mind not found guilty due to reasons of insanity."
B. Discharge of Class C Patients:
Depending on the minister's order the patient after recovery is discharged directly home unless otherwise ordered by the minister.
