Mentally disordered or lacking capacity? Lessons for management of serious deliberate self harm

Mental capacity perspective

The coroner’s court focused on whether Miss Wooltorton was legally competent to refuse life saving treatment when she was admitted to hospital on 18 September. The coroner later put out a statement saying that the letter Miss Wooltorton brought to the hospital was not “an advance decision” under the 2005 Mental Capacity Act.1 This meant that it was not binding, although it did provide “powerful evidence of [her] wishes and intentions.” It was her present mental state that was determinative. A person lacks capacity in relation to a matter if at the time they are unable to decide for themselves in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. Unable means unable to understand and retain information relevant to the decision, to use or weigh that information in coming to a decision, and to communicate a decision. The law does not set a threshold for these abilities or stipulate that any combination of them must be in doubt. There is a legal assumption of capacity.

Although Miss Wooltorton was able to communicate her refusal of treatment, her decision seemed on the surface to be imprudent and she refused to discuss her reasons. A patient’s refusal to discuss the reasoning behind a decision makes it difficult to assess capacity. When the outcome of refusing treatment is death or serious harm, especially where the underlying condition is self inflicted, refusal to explain the reasoning may rebut the initial assumption of capacity and justify further investigation.

Is it correct to say that Miss Wooltorton had mental capacity to end her life? It could be argued from the evidence we have seen that she had an “impairment of or disturbance in mind or brain” that might affect decision making—the minimal diagnostic threshold demanded by the Mental Capacity Act. And given her apparently severe personality disorder, her ability to use or weigh information about her condition and prognosis may have been distorted. The mere act of going into hospital with a letter asking for palliation but refusing life saving treatment may be interpreted in the clinical context to imply ambivalence, even though McLean concluded that “no legal inference can necessarily be drawn from Miss Wooltorton’s past behaviour and acceptance of life saving treatment.”2

The clinical team and coroner relied on her apparent retention of information and “understanding” and less on her ability to use (which can include the ability to appreciate that she might have an illness that affects her mood or thinking) or weigh information (being able to reason with the information in accord with her life choices, preferences, and values). The latter, less quantifiable abilities seem to be the predominant drivers of incapacity according to research on psychiatric inpatients3 (as opposed to medical inpatients4). Setting aside delusions and thought disorder, serious emotional turmoil, often seen in people who self harm after interpersonal conflict, is commonly associated with incapacity. Impaired use and weighing of information is also seen when there is a more persistent distortion of values. An example would be someone with anorexia nervosa who values being thin more highly than being alive.5

How do you determine if the values driving the patient’s decision are distorted or pathological? Relevant considerations include an understanding of whether these values have changed recently and why. How coherent are these new values with those that have thus far shaped the person’s life choices? And could they become the subject of regret if acted on?6 That said, it is difficult to reliably judge mental capacity solely on the weighing criterion. But if Miss Wooltorton had been judged to lack capacity on these grounds, it could have been lawful to give her life saving treatment provided it was agreed that this was in her best interests.

Mental disorder perspective

It follows from the coroner’s finding that Miss Wooltorton was competent to refuse treatment on 18 September, that the Mental Capacity Act was not applicable. This leaves open the question of the Mental Health Act and its application. Did Miss Wooltorton have a mental disorder “of a nature or degree” that would have warranted detention and treatment under the Mental Health Act for her health or safety? Mention is made of her personality disorder. This is one of the most controversial diagnostic categories within psychiatry, partly because of the obvious shading with “normal” variants of temperament and personality but also because of doubts about whether it can be treated. The 2007 amendment of the act stresses that treatment should be appropriate rather than necessarily curative.

Most people would accept that Miss Wooltorton was disturbed and vulnerable. Her challenging behaviour will be familiar to many psychiatrists and will be seen as falling within their remit. Such patients generate considerable anxieties and difficulties for clinical teams, and there is often disagreement about the extent to which patients should be coerced into treatment that is often seen as potentially counterproductive. Management usually includes trying to form a therapeutic relationship; providing limits and structure while encouraging autonomy; and dealing with other psychiatric phenomena such as mood instability and anxiety symptoms. Nevertheless, careful assessments of risks will have to be made and shared by the multidisciplinary team at various points to prevent suicide and other serious complications. Moreover, several randomised controlled trials have found that borderline personality disorder (the DSM-IV equivalent of emotionally unstable personality disorder) can be significantly improved with psychological approaches.7

A psychiatrist considering the evidence presented in the coroner’s report could find grounds for the suspicion that Miss Wooltorton had a mental disorder in the lead up to her death. The case notes mention mood and emotional disturbance frequently. Her behaviour remained unexplained; whether it was to relieve tension or to escape from an intolerable situation is often unclear. Putting aside the specifics of the Wooltorton case and the extent to which the clinical team sought or had access to a psychiatric opinion, the Mental Health Act provides a legal framework that can place potentially lethal self harming behaviour within the context of mental disorder that justifies involuntary assessment and treatment. All the additional safeguards and agreements for the relevant section of the act would, of course, need to be put in place.

Use of the Mental Health Act might then permit the necessary life saving intervention depending on the meaning attributed to treatment for mental disorder. In cases heard before the recent amendments to the act the courts have been prepared to regard nasogastric feeding in cases of anorexia nervosa and borderline personality disorder as such treatment.8 9 The amended statutory definition now reflects more directly the courts’ approach in these cases, and although the question has not yet been decided, it seems likely that life saving treatment in the form of renal dialysis would be regarded as treatment for mental disorder when the psychiatric disorder was considered to be intrinsically bound up with the self harm. A similar argument may be applied to blood transfusion in patients who deliberately exsanguinate.10

A single law?

The adoption of two separate legislative instruments, one (sometimes termed guardianship) to cover patients with incapacity and the other (usually termed mental health legislation or civil commitment) to cover patients with mental disorders is common throughout developed legal jurisdictions (box). The criteria for mental health powers are usually based on the risk of harm to the patient or others rather than incapacity.11 The Wooltorton case shows the confusion that may be engendered by two legislative frameworks of this kind—the mental capacity and mental health acts—governed by different sets of rules that could both be applicable to a single patient in determining whether involuntary treatment can be given.

A single statute governing involuntary treatment for all patients, whether they have a physical or mental disorder, would avoid such ambiguity. A moral case can also be made since the failure to respect the right of a person with a mental disorder to refuse treatment, despite retaining capacity, in the same way as one with a physical disorder may be seen as discriminatory.12 In practice, however, most people detained under the Mental Health Act lack capacity.3 An advantage of fusing the two acts is that the criteria and authorisation for detention and the use of force, areas dealt with only vaguely in the Mental Capacity Act, would be clearly spelt out.

Best practice

Cases such as Miss Wooltorton’s present formidable practical and ethical challenges. Despite extensive statutory frameworks, there remains ambiguity about how the mental capacity and mental health acts should be used in such circumstances. This stems from differences in the values that underpin the legislation. We have drawn on the law and our clinical experience to provide the following guidance.