Forensic Proposals
12. What do you think about our suggestions to either remove or significantly restrict the ‘serious harm’ test introduced in 1999?
Please share your thoughts about our suggestions to either remove or significantly restrict the ‘serious harm’ test introduced in 1999?
Comments on Chapter 7, Scottish Mental Health Law (Scott) Review Forensic Proposals: the “serious harm test”
The requirement for psychiatrists to provide a view on whether as a result of a patient’s mental disorder it is necessary in order to protect any other person from serious harm, for the patient to be detained in hospital whether or not for medical treatment is an inappropriate and unreasonable question for a doctor to address. Sections 183(3)(b) and 193(2) of the 2003 Act should be abolished.
Ethical and legal obligations
In their day-to-day practice responsible medical officers (RMOs), in common with all doctors, are required to have regard to certain ethical obligations. First, in 2013 the General Medical Council (GMC) published guidance on Good Medical Practice. It states that “as a good doctor you will make the care of your patient your first concern” (Good Medical Practice, GMC 2013). Coupled with this is the legal obligation the doctor has to a patient, namely to adhere to a standard of reasonable care, commonly known as the “duty of care”. These matters are important when considering the issues that arise for RMOs when asked to give opinions in relation to s.183(3)(b) of the 2003 Act.
Second, RMOs are required to have regard to the matters set out in section 1 of the 2003 Act, namely the principles of the Act. In particular: “the importance of providing the maximum benefit to the patient” (s.1(3)(f)); and ensuring the patient is not “treated in a way that is less favourable” compared with a person “who is not a patient might be treated in a comparable situation” (s.1(3)(g)).
The ethical conflict for psychiatrists with responsibilities for CORO patients
At the court sentencing stage two doctors will have addressed the issue of risk to others in two ways. First, the doctor is required to consider whether without medical treatment there would be a significant risk “to the safety of any other person” (s.57A(3)(c)(ii),CPA). Second, the doctor will have provided additional evidence that a restriction order is necessary for the protection of the public from serious harm (s.59(1),CPA).
However, crucially and in addition to these matters, the doctors must satisfy the court that there is available beneficial treatment to prevent worsening of the disorder or to alleviate its effects. Indeed the compulsion order (and thereby any accompanying restriction order) cannot be made unless the court is satisfied that beneficial treatment is available (s.57A(3)(b),CPA). In other words, the court cannot order detention in hospital under a CORO for any purpose other than for beneficial medical treatment. Indeed it would be unthinkable for a psychiatrist to make a recommendation for compulsory admission to hospital under a CORO for any reason other than other than for treatment.
The RMO who then becomes responsible for the medical treatment of a CORO patient admitted to hospital must, two months before the first anniversary of the CORO and annually thereafter, address the 183(3)(b) whether-or-not-for-treatment test.
The ethical conflict for the psychiatrist is that he is asked to address a question on the continued compulsory detention of a patient in hospital, under highly restrictive conditions, for a purpose other than the provision of beneficial medical treatment. It is quite unlike any other issue in mental health law that the psychiatrist is required to address. Simply put, opining on whether a patient should continue to be detained in a hospital whether or not for medical treatment is a non-medical matter. It does not require any medical expertise to answer the question. Whether detention in hospital should continue whether or not for treatment moves the issue more appropriately to a judicial arena rather than being a matter on which a medical opinion is appropriate.
Moreover the consequent restriction of liberty for the patient who is detained in a hospital for a reason other than to receive beneficial medical treatment may reasonably be construed as inflicting harm upon him. Therefore addressing a question that, if answered positively, may lead to harm for the patient cannot be reconciled with adherence to GMC ethical obligations and Mental Health Act principles, both of which emphasise the primacy of doctors acting in ways that benefit patients.
Alternatives to s.193(2)
The Scott Review lists various proposals including abolition of S.193(2). The proposal to abolish the whether-or-not-for-treatment test is strongly supported. For currently detained CORO patients who do not have a treatable mental disorder, if any exist, the Scott Review proposal to allow the case to be referred back to court for resentencing is also strongly supported. The basis for the referral back to court is that new evidence has become available regarding the mental disorder of the patient, namely that he no longer has a mental disorder for which treatment is available to prevent worsening of the disorder or to alleviate its effects. The important issue of public protection would then be a matter for the court to consider.
Dr Derek Chiswick MB ChB MPhil FRCPsych
Retired consultant forensic psychiatrist
13 July 2022
The requirement for psychiatrists to provide a view on whether as a result of a patient’s mental disorder it is necessary in order to protect any other person from serious harm, for the patient to be detained in hospital whether or not for medical treatment is an inappropriate and unreasonable question for a doctor to address. Sections 183(3)(b) and 193(2) of the 2003 Act should be abolished.
Ethical and legal obligations
In their day-to-day practice responsible medical officers (RMOs), in common with all doctors, are required to have regard to certain ethical obligations. First, in 2013 the General Medical Council (GMC) published guidance on Good Medical Practice. It states that “as a good doctor you will make the care of your patient your first concern” (Good Medical Practice, GMC 2013). Coupled with this is the legal obligation the doctor has to a patient, namely to adhere to a standard of reasonable care, commonly known as the “duty of care”. These matters are important when considering the issues that arise for RMOs when asked to give opinions in relation to s.183(3)(b) of the 2003 Act.
Second, RMOs are required to have regard to the matters set out in section 1 of the 2003 Act, namely the principles of the Act. In particular: “the importance of providing the maximum benefit to the patient” (s.1(3)(f)); and ensuring the patient is not “treated in a way that is less favourable” compared with a person “who is not a patient might be treated in a comparable situation” (s.1(3)(g)).
The ethical conflict for psychiatrists with responsibilities for CORO patients
At the court sentencing stage two doctors will have addressed the issue of risk to others in two ways. First, the doctor is required to consider whether without medical treatment there would be a significant risk “to the safety of any other person” (s.57A(3)(c)(ii),CPA). Second, the doctor will have provided additional evidence that a restriction order is necessary for the protection of the public from serious harm (s.59(1),CPA).
However, crucially and in addition to these matters, the doctors must satisfy the court that there is available beneficial treatment to prevent worsening of the disorder or to alleviate its effects. Indeed the compulsion order (and thereby any accompanying restriction order) cannot be made unless the court is satisfied that beneficial treatment is available (s.57A(3)(b),CPA). In other words, the court cannot order detention in hospital under a CORO for any purpose other than for beneficial medical treatment. Indeed it would be unthinkable for a psychiatrist to make a recommendation for compulsory admission to hospital under a CORO for any reason other than other than for treatment.
The RMO who then becomes responsible for the medical treatment of a CORO patient admitted to hospital must, two months before the first anniversary of the CORO and annually thereafter, address the 183(3)(b) whether-or-not-for-treatment test.
The ethical conflict for the psychiatrist is that he is asked to address a question on the continued compulsory detention of a patient in hospital, under highly restrictive conditions, for a purpose other than the provision of beneficial medical treatment. It is quite unlike any other issue in mental health law that the psychiatrist is required to address. Simply put, opining on whether a patient should continue to be detained in a hospital whether or not for medical treatment is a non-medical matter. It does not require any medical expertise to answer the question. Whether detention in hospital should continue whether or not for treatment moves the issue more appropriately to a judicial arena rather than being a matter on which a medical opinion is appropriate.
Moreover the consequent restriction of liberty for the patient who is detained in a hospital for a reason other than to receive beneficial medical treatment may reasonably be construed as inflicting harm upon him. Therefore addressing a question that, if answered positively, may lead to harm for the patient cannot be reconciled with adherence to GMC ethical obligations and Mental Health Act principles, both of which emphasise the primacy of doctors acting in ways that benefit patients.
Alternatives to s.193(2)
The Scott Review lists various proposals including abolition of S.193(2). The proposal to abolish the whether-or-not-for-treatment test is strongly supported. For currently detained CORO patients who do not have a treatable mental disorder, if any exist, the Scott Review proposal to allow the case to be referred back to court for resentencing is also strongly supported. The basis for the referral back to court is that new evidence has become available regarding the mental disorder of the patient, namely that he no longer has a mental disorder for which treatment is available to prevent worsening of the disorder or to alleviate its effects. The important issue of public protection would then be a matter for the court to consider.
Dr Derek Chiswick MB ChB MPhil FRCPsych
Retired consultant forensic psychiatrist
13 July 2022
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