31st October 2023

Ethics of Psychiatry

Underlying principles

This chapter will provide an overview of the key ethical concepts we encounter in Paper A. Broadly speaking, ethics can be divided into schools: Duty based and utilitarianism.

Duty based ethics

Duty based ethics are the rules imposed on us from above; a ‘top down’ approach such as GMC guidance, Department of Health framework and guides from the RCPsych. Duty based ethics are also called deontology. A criticism of duty based ethics is that they can feel inflexible.

A distinct area of deontology is Kant’s moral theory, which claims that the ultimate principle of morality is goodwill. This can only be achieved through reason. Kant describes the idea of a categorical Imperative, which is a rule to live by that is entirely unrelated to the outcome and only informed by what a person ‘ought’ to do.

Utilitarianism

Utilitarian schools of thought find that the best outcome is one that promotes the most happiness, pleasure, and the absence of pain. This is included under the broader category of consequentialism, which in itself is seen as part of teleology. As already discussed in this chapter, teleology is about the purpose something serves. In this case, it is concerned with achieving the greatest good for the greatest number, focusing on the collective above the individual.

Rule consequentialism: A combination of the above

Consequentialism at its core in promoting maximum good, but with certain fundamental rules that are seen as being important to follow. However, such rules that are chosen to follow will be based on the consequences that the selected rules will have.

Virtue theory

Virtue theory differs from the above ethical schools in that its focus is on striving for the individual rather than following rules (duty based) or attending to positive outcomes (utilitarianism). Virtue theory posits that in order to lead a good life, virtues should be identified and aligned with. Aristotle was a philosopher whose works focused on achieving a state of ‘human flourishing’, also known as eudemonia. Virtue systems are often subjective and influenced by the prevailing utilitarian or rule based thinking within a society.

A history of medical ethics

Hippocratic oath

The Hippocratic oath dates from approximately 400 BCE, and it is still required for many newly qualified doctors to recite. The oath outlines a moral code that physicians should apply to their practice and includes striving to do good and avoid causing harm, not performing surgery (leave this to surgeons), maintaining solidarity with other health professionals, not assisting in abortion or suicide, and not to seduce patience.

Declaration of Helsinki – 1964

This is a statement that came from the Assembly of the World Medical Association and is developed from the Nuremberg Code and the Declaration of Geneva. It outlines ethical principles for medical research on human participants. The important themes from the Declaration of Geneva are that the priority of any medical research should be the wellbeing of the participants and that accepted scientific principles should be adhered to.

Nuremberg Code of Ethics – 1947

The Nuremberg Code of Ethics came into being following trials of doctors who had committed crimes in the name of human experimentation and murder in 1930s and 1940s Germany. As well as sentencing, the trials led to the development of 10 principles to prevent such crimes from occurring again. These principles, including the importance of informed consent in experiments, are collectively known as the Nuremberg Code.

Declaration of Geneva – 1948

Another response to the medical crimes of the Second World War, the Declaration of Geneva, is an oath for medical professionals. It highlights the humanitarian goals of physicians and their commitment to human rights.

Applied ethics in the context of the legislation of England

The four principles of biomedical ethics

Within medical ethics, there are a few other theories to consider. Notably, there are the four principles that make up the biomedical ethics framework (Beauchamp and Childress, 1979). The four principles approach suggests that when faced with a dilemma, a clinician should formulate their decision based on the autonomy of the patient, the capacity to benefit the patient (beneficence), the avoidance of harm to the patient (non-maleficence) and justice. Justice can be either in regard to what is just for the patient or what is just for the greater good of society with regard to the distribution of resources.

These four principles can themselves be in conflict. For example, autonomy and justice can be in conflict whereby the clinician must weigh up the wishes of the patient versus what is fair for all of society. A patient may request admission to a hospital, which is an expression of their autonomy, but they may not be admitted due to being less unwell than other patients in a community (this relates to justice).

Another example is examining the balance between beneficence and non-maleficence. In the case of clozapine treatment for resistant schizophrenia, the benefits (reduction in positive symptoms and distress) must be weighed against the risks (metabolic syndrome, myocarditis, agranulocytosis).

Informed consent and the Mental Capacity Act 2005

Informed consent is a key concept within medicine. It derives from the principle of autonomy, as described above. By providing a treatment or procedure on a patient without their permission, a doctor’s actions could legally be considered battery.

The following criteria must be fulfilled for consent to be valid informed consent:

• Given voluntarily (with no coercion or deceit).
• Given by an individual who has capacity.
• Given by an individual who has been fully informed about the issue.

In order to give valid consent, a patient must have the capacity to make this decision. Capacity is dynamic and must be reassessed regularly and taking into context the nature of the decision in question. According to the Mental Capacity Act 2005, a person is deemed to have capacity if they can:

• Understand the information given to them (when reasonable measures have been taken to give the information in a way that is understandable to that person).
• Retain the information.
• Weigh up the information.
• Communicate their decision (again, reasonable measures must be taken to help a patient with difficulty with communication).

If a patient does not have the capacity to make the decision in question, efforts must be taken to find the least restrictive option in the patient’s best interest. There may be an appointed lasting power of attorney (LPA), an adult with legal permission to make decisions in the best interest of the patient. This has to be registered at the Office of the Public Guardian and can be revoked if the LPA is deemed to not be acting with the patient’s best interest in mind. The key principles involved here are beneficence and non-maleficence.

Compulsory treatment and the Mental Health Act – 1983

The Mental Health Act covers the assessment and treatment of mental disorders. As of 2007, the Mental Health Act defines a mental disorder as ‘any disorder or disability of the mind’. There are no longer exclusions for sexual deviancy, nor a ‘treatability’ prerequisite – this means it is easier to justify detaining sex offenders in hospital.

Drug and alcohol misuse alone is not deemed to be a mental disorder.

For someone to be detained in hospital, the following three criteria should be fulfilled:

• The patient has a disorder of the mind.
• The disorder is of sufficient severity to require treatment in hospital.
• The health and/or safety of the patient or the general public’s protection requires hospital detention.

The Mental Health Act overrides the MCA 2007 in the sense that even a patient with the capacity to consent to treatment may be given treatment without their consent if the Mental Health Act covers that treatment. For example, a patient detained under sections 2, 3, 35 or 36 can be given treatment for their mental illness without their consent. A common pitfall is the belief that section 2 is only for assessment; it is for both assessment AND treatment.

Detained patients can also be given treatment for physical illness that is a consequence of their mental illness (such as severe malnutrition in the case of a patient with anorexia nervosa or an infected bed sore in the case of a patient with a depressive stupor).

Key exceptions to this are ECT and psychosurgery. These treatments can only be given with the consent of the patient, or else a second opinion must be sought. In practice, ECT can be given an emergency treatment if either of the following are fulfilled:

• It will be immediately life saving.
• It will prevent deterioration in a patient’s health and not have irreversible physical or psychological sequelae.

Human Rights Act – 1998

The Human Rights Act 1998 incorporates the European Convention of Human Rights into the law of England, Wales and Northern Ireland. A key feature of the Human Rights Act is the significance it places on proportionality.

The Human Rights Act has been used when contesting detention under the Mental Health Act. The detention of someone against their will is in contravention of their human rights, but the Mental Health Act can be seen as an exception, provided the violation of human rights is to the minimum extent possible.

Ethics in the treatment of children

The Children Act – 1989

This legislation is aimed at court cases involving children. It is used to uphold the welfare of children and ensure their views are appropriately considered. It defines who has parental responsibility and allows anyone with parental responsibility to act alone to give consent.

Although it is mostly aimed at legal cases, there are some aspects relevant to medical settings, as considering the views, feelings and understanding of children is important when decisions about medical treatment are being made.

Consent in under 18s

Although a patient is not a legal adult until the age of 18, their ability to consent to treatment is assessed on a sliding scale related to their understanding, maturity, and the nature of the treatment.

According to the Family Law Reform Act of 1969, a child aged 16 or older has the same right to consent to medical treatment as an adult, even without consent from their guardian.

Gillick competence – 1985

Relates to the 1985 legal case of Gillick vs West Norfolk and Wisbech Area Health Authority. This case examined the matter of doctors prescribing contraception to those under 16. When medical professionals are deciding whether a child under the age of 16 has the capacity to consent, they are assessing Gillick competence.

Factors involved include the chronological age of the child, their level of maturity, their understanding of the problem, its risks, consequences and course, the risks and benefits of the treatment, their understanding of alternative ways forward, and their ability to weigh up and communicate their decision.

Gillick competence is related to any healthcare decision in a minor.

Fraser guidelines

Within the Gillick Case, Judge Ian Fraser laid down criteria specifically related to doctors’ responsibilities when prescribing contraceptives to those under 16 without parental consent. When prescribing, the professional must be satisfied that:

• The young person understands the advice being given.
• The young person cannot be convinced to involve parents/carers.
• It is likely that the young person will begin or continue having intercourse with or without treatment/contraception.
• Unless he or she receives treatment/contraception, their physical or mental health is likely to suffer.
• The young person’s best interests require contraceptive advice, treatment or supplies to be given without parental consent.

Medical negligence

An important case relating to medical negligence is that of Bolam vs Friern Barnet Management Committee 1957. Bolam was a patient undergoing electroconvulsive therapy who suffered severe injury as muscle relaxants were not administered. He claimed that his doctor was negligent for not giving him muscle relaxants, restraining him during the procedure, or informing him of the risks. The judge in this case ruled that Bolam’s doctor had not been negligent, as restraint and muscle relaxants were not common practice at that time. What’s more, the risk of injury was not disclosed to patients unless they asked.

The Bolam test means a doctor must be able to show that any medical professional who was in the same position as them would have done the same. If this is true, then they’re not guilty of negligence.

References

• Ackroyd, M. (2021) Ethics and philosophy in psychiatry, TrOn (Trainee Online). RCPsych. Available online at: https://elearninghub.rcpsych.ac.uk/product?catalog=51_TRON_Eth_phil_psych. [Accessed Feb 2023]
• Beauchamp and Childress. 1979 The Principles of Biomedical Ethics.
• Decision Making and Consent – Ethical Guidance (no date) General Medical Council. Available at: https://www.gmc-uk.org/ethical-guidance/ethical-guidance-for-doctors/decision-making-and-consent [Accessed April 2023]
• Declaration of Geneva (no date) The World Medical Association. Available at: https://www.wma.net/policies-post/wma-declaration-of-geneva/ [Accessed April 2023]
• Declaration of Helsinki – Ethical Principles for Medical Research Involving Human Subjects (no date) The World Medical Association. Available at: https://www.wma.net/policies-post/wma-declaration-of-helsinki-ethical-principles-for-medical-research-involving-human-subjects/ [Accessed April 2023]
• GP Mythbuster 8: Gillick Competency and Fraser Guidelines (2022) Care Quality Commission. Available at: https://www.cqc.org.uk/guidance-providers/gps/gp-mythbusters/gp-mythbuster-8-gillick-competency-fraser-guidelines [Accessed April 2023]
• Mental Health Act 1983, Available at: http://www.legislation.gov.uk/ukpga /1983/20/contents [Accessed April 2023]
• The BMA (2020) Key Principles of Ethics for Medical Students, The British Medical Association is the trade union and professional body for doctors in the UK. BMA. Available at: https://www.bma.org.uk/advice-and-support/ethics/medical-students/ethics-toolkit-for-medical-students/key-principles-of-ethics-for-medical-students [Accessed April 2023]