A cut above?

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The practice of self harm-minimisation appears to be developing more quickly than the legal framework that would support it. If so, some nurses are at risk: they will be practising in a vacuum, with little to guide or protect them. This post won’t fill that vacuum; it will merely set out some of the legal issues to which the practice could give rise and suggest how the possibility of civil law challenge might be reduced. (Criminal proceedings are a quite different, though no less likely, prospect.)

Definitions
A person might ‘self-harm’ in a variety of ways - by cutting or burning, perhaps, by swallowing broken glass, or by abusing drugs, alcohol or other substances - and it is possible to imagine many interventions aimed at minimising the effects of such behaviour. For cutting, for example, a nurse might actually wield the blade (a most unlikely prospect) or hold a patient's arm while he or she does so. Alternatively, the nurse might provide the blade, assure the patient that any wound will be properly dressed, or simply advocate the use of self-harm in a general sense or discuss what it might involve. Most if not all of these ‘self harm-minimisation’ (SHM) interventions can probably be made as easily in the community as in hospital. If any one of them is to be lawful there will have to be a legal box into which it can be put.

A legal box
Self-harm is often encountered in a psychiatric context. The Mental Health Act 1983 (MHA) permits ‘medical treatment’ to be given for mental disorder and adopts a broad definition of the term. The central purpose of the MHA, however, is to enable such treatment to be given compulsorily. It will surely be difficult, and it would surely be considered highly dubious, to attempt to practise SHM without a patient's consent. The MHA is therefore unlikely to provide the legal box that is required. The same is true of the Mental Capacity Act 2005 (MCA), which permits all manner of interventions in the best interests of a patient, but only if he or she is incapable of consenting to them.

It seems, therefore, that common law is the only relevant authority, and that it is only with the consent of a capable patient that a SHM-intervention will be lawful. That consent will have to be truly informed - the patient will have to be given the reason for the intervention and told about any alternatives to it and their respective risks and benefits - and capacity will have to be assessed according to the MCA.

A SHM-intervention will be lawful only if meets two further criteria. First, it will have to fall within the definition of ‘medical treatment’. English law (which also covers Wales, but not Scotland) defines medical treatment very broadly; so broadly, in fact, that it represents, in Lord Denning’s memorable words from 1954, “the homely art of making people comfortable and providing for their well-being”. (Minister of Health v Royal Midland Counties Home for Incurables at Leamington Spa [1954] Ch 530) Although many SHM-interventions will be medical treatment, the courts might take some convincing that they are: the practice is still novel and somewhat startling, at least when set against the notion that one must do no harm (and not just less harm than would otherwise have been done). Secondly, the intervention will have to be made without negligence. In other words, it must be consistent with a practice accepted as proper by a responsible body of relevant opinion, and so satisfy the Bolam test. A SHM-intervention will not do that if, even though it has a number of ardent supporters, it cannot withstand logical analysis.

Civil claims
The claim that SHM is not truly medical treatment, and that its use is therefore an assault, might be the basis for a civil law challenge. On a less exalted level, a patient might say simply that the intervention itself did not pass the Bolam test.
There are many aspects of SHM to which Bolam might be applied. They include the decision to intervene at all or to make a particular kind of intervention, and also the way in which the intervention was made. It might be said, for example, that SHM was inappropriate because the patient had not previously harmed himself or herself. (The NICE guideline mentioned below implies that SHM should only be used with a patient who has already self-harmed.) A court might therefore ask: how thoroughly was the patient's background – and in particular, any history of self-harm – researched, and how well understood? How carefully were his or her needs considered? And how closely did those needs correspond to the intervention that was made?

In judging whether Bolam is satisfied, and therefore whether a SHM-intervention is lawful, a court might also want to consider any official pronouncement on the subject. Most recently, the National Institute for Health and Clinical Excellence (NICE) has published a clinical guideline, stating that “where service users are likely to repeat self-injury”, practitioners might discuss a number of things with patients, including “harm minimisation issues/techniques” and “appropriate alternative coping strategies”. (NICE (2004) National Clinical Practice Guideline 16, paragraphs 7.13.2.1 & 7.13.2.2)

As a court would surely note, the NICE guideline extends no further than the 'discussion' of appropriate techniques and strategies, and it places that discussion on the same footing as discussion of other “appropriate alternative coping strategies”. Furthermore, the guideline does not impose a positive obligation to discuss at all and only embraces “appropriate alternative coping strategies”. Which rather begs the question.

The recent guideline also states that for SHM, "suitable material is available from many voluntary organisations". But some of that material might advocate practices that would not pass the Bolam test. And it is surely inaccurate to imply, as the guideline seems to do, that a practice might be appropriate simply because it finds favour with a particular organisation. If the practice is to be lawful, then, as mentioned above, it will have to satisfy Bolam. That is a far more rigorous test and the civil courts are likely to see it as the only one that matters.

Causing harm
Even where a SHM-intervention has failed the Bolam test and therefore been held negligent, a claimant will only succeed, and damages will only be awarded, if the intervention can be shown to have caused him or her harm.

In fact, a defendant won’t usually be able to deny that harm has occurred. He or she (or it) will instead have to show that harm would have occurred in any case, and possibly that it would have been more extensive but for the intervention. That is likely to be an extremely difficult task: there is no guarantee that the patient would have chosen to harm himself or herself without the intervention, and there might be no pattern to previous self-harm attempts and therefore no way of predicting what form the attempt that was forestalled would have taken.

This suggests that the SHM-interventions that will be least difficult to defend are those involving patients who have tried to harm themselves before, and who have done so in a fairly consistent way and to a fairly consistent degree. (Paradoxically, it might be that where the criminal law is concerned, those are the patients with whom such interventions will be most difficult to defend.)

A practice accepted as proper
The NICE guideline might have had at least one real effect: it seems that in theory, SHM – or at least the discussion of it – is finally on the agenda. In practice, however, clinicians who make such interventions will certainly have to show that they satisfied Bolam. Which begs a further question: how might one get one's practice accepted as proper?

It is clear that practice may precede acceptance. In 2002, the President of the Family Division of the High Court said that Bolam should not to be allowed to inhibit medical progress. (PA v JA and A NHS Trust [2002] EWHC (Fam) 2743) Nurses should only practice SHM if they are competent, and sufficiently confident, to do so. But those who wish to change perceptions of SHM might therefore find it helpful to say so, and to do so often and conspicuously. In this as in all other areas, they will be judged according to the standards of their profession, and they can be expected to shift over time. As for health care organisations: they should seek to gauge the nature and extent of SHM-interventions in the services for which they are responsible and to confine those interventions, by the use of policies and protocols, to no more than Bolam would allow.

Discussion
It is ironic, and one of several paradoxes bedevilling SHM, that every attempt to devise or even discuss an appropriate level of care runs the risk of elevating that level. But nurses should not be discouraged from seeking to promote acceptance of, and to procure lawful authority for, the practice: it is only by doing that that they can hope to protect themselves - and their patients - from the unfortunate consequences of self-harm.

Nearest relative objections

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Where a nearest relative has discharged a patient from hospital that alone might count as an objection to a subsequent detention. So said the High Court in a case which, though it was heard in February, has only recently been reported.

Objection
Under the Mental Health Act 1983 (MHA), someone suffering from mental disorder may be detained in hospital for up to six months, but only if his nearest relative (NR) has not objected to such a course. (MHA, ss 3 & 11(4)) (A county court may remove the NR from office because of his objection, but only if it was unreasonable: MHA, s 29(1)(c))

In this case, Mr M had been detained under section 3 of the MHA, even though his NR had registered a clear objection. Ordinarily, of course, that objection would have prevented use of the Act, but the Approved Mental Health Professional (AMHP) who applied for Mr M’s detention said she believed it had been withdrawn. Though the court found she was sincere, it ruled there were no reasonable grounds for her belief, and that as a result, Mr M’s detention was unlawful. (M v East London NHS Foundation Trust, CO/1065/2009, QBD (Burton J) 11 February 2009)

In reaching this decision, the court reviewed the authorities. When an AMHP intends to apply for a person to be detained under the MHA, he will usually have to tell the NR and explain why. That is so as to give the NR a proper opportunity to object to – and thereby prevent – the detention. (Re: Whitbread (Mental Patient: Habeas Corpus) [1997] EWCA Civ 1945. See also: MHA Code of Practice, paras 4.58 et seq) Adding a gloss to the existing law, the court said an AMHP need not go so far as to say to the NR, “Do you object”, unless he has been given reason to doubt whether the NR has objected or whether a previous objection (or non-objection) has been reversed. (Burton J at [36])

Previous discharges
Mr M had been admitted to hospital before, and, using the power contained in section 23(2)(a) of the MHA, his NR had purported to discharge him from detention at least twice. The court held that those discharges might also have been relevant here, as suggesting that the NR would object to any new detention.

One might criticise this conclusion, of course, for these were discharges from a current detention, not objections to one that was merely proposed, and they came some time before, in this case, that proposal was made. Nevertheless, the court said that when considering whether to admit someone under the MHA, it was part of an AMHPs’s duty to reflect upon all the circumstances of his case. Any previous discharges (and the detentions that preceded them) would form part of those circumstances. “Clearly,” the court said, “the nearer in time the previous events are, the more relevant they become, particularly if they show … a state of mind of the nearest relative which is unlikely to be changed.” (Burton J at [29]) (Because of the NR’s subsequent, unambiguous objection, these earlier events were of limited relevance in this case.)

In fact, the court accepted that the NR’s state-of-mind might change, and “there may well be many cases in which even the passage of a few hours, never mind days, might dramatically alter the view of how a patient is or should be treated in the mind of a nearest relative.” (Ibid)

It seems clear, therefore, that a NR may object to a MHA detention, even though he has previously failed to do so. The court was at pains to stress, however, that any such objection would only be effective if it was made by reasonable means and before detention had been carried into effect. (Ibid)

It is helpful to have the confirmation the High Court has provided in this case. If an AMHP’s actions are to be lawful, it seems sensible that they will have to be based upon a view that is not just genuinely held, but also objectively fair. And it will come as no surprise to practitioners to learn that an objection, or a non-objection, to detention can be reversed.

The most striking element of this decision, however, is the suggestion that a previous discharge by a NR might count as his objection to a subsequent admission. That is likely to prove controversial and it might also be burdensome. Clearly, an AMHP cannot take account of a previous discharge of which he is unaware. He might be deemed to have a duty of reasonable enquiry, of course, but another question arises: where he knows about such a discharge, is an AMHP bound to treat it as the objection of a NR who, for whatever reason, he has decided not to consult?

Open the envelope ... OPEN THE ENVELOPE

I am delighted, and slightly humbled, to announce that the second edition of The Nearest Relative Handbook has been nominated for a BMA Book Award. It was published earlier this year and has already been highly commended in the popular medicine category. The book will now go forward to a formal awards ceremony, in London on September 8.

I am grateful, both to the BMA for considering the book and to my publisher, Jessica Kingsley, for putting it forward. I wanted it to be of help to patients and their carers as much as to professionals in the field, and this nomination suggests that it might have gone some way towards achieving that objective.

Further details about the book, together with an order form, may be found here