5 Organisation and delivery of psychiatric services5.6 Human rights and mental health
5.6.2 Civil rights, ethics, confidentiality, seclusion, duty to warn and duties to protect
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Written by Resident Doctor Committee · Published
Civil rights
Psychiatric diagnosis alone does not remove civil rights. The test is whether the person can make the particular decision at the time.
The Mental Capacity Act 2005 presumes capacity and requires each decision to be assessed separately.
Least restrictive practice means using a restriction only when it is justified, proportionate and necessary, and for the shortest possible time.
Independent Mental Health Advocacy is offered to qualifying patients, and the advocate represents the person's views.
Principles of medical ethics
Principle | Meaning | Example |
|---|---|---|
Autonomy | Respecting the person's right to decide | Assess capacity when needed |
Beneficence | Acting for the patient's benefit | Compulsory treatment still needs lawful authority |
Nonmaleficence | Avoiding harm | Refusing antipsychotics in dementia, which raise the risk of stroke and death, for calling out that causes no distress or danger |
Justice | Fair and equal access to care, with reasonable adjustments where needed | Excluding someone for a group characteristic rather than clinical need breaches it |
Truth-telling | Honest disclosure of what happened, errors included | Disclosing errors to the patient under the duty of candour |
Proportionality | A restriction serves a legitimate aim and goes no further than needed | Brief, reviewed restriction |
The professional duty of candour expects disclosure of errors that could have caused harm, not only those that did.
Consent
Implied consent is given through cooperative behaviour, as when a capable patient silently cooperates with a simple, low-risk procedure.
Express consent is given in words or in writing.
Consent to research is ongoing and revocable: people with intellectual disability, like any participant, may withdraw at any point without giving a reason and without penalty.
Confidentiality and its limits
Disclosure outside direct care usually needs consent for the stated recipient and purpose. Share the minimum necessary and record why.
A young person aged 16 or 17 is presumed to have capacity and has the same right to confidentiality as an adult, so answer a parent's request by first seeking the young person's agreement.
A carer's involvement does not by itself permit disclosure.
Where only the patient is at risk, a capacitous refusal is usually respected.
The recognised exceptions in the UK are:
A court order or another statutory power can require disclosure.
A statutory reporting duty can require disclosure.
The public interest justifies disclosure when there is a risk of death or serious harm to identifiable people, children or the public.
A routine third-party request is not an exception.
Situation | What to do |
|---|---|
Delusional (morbid) jealousy with a specific threat to kill a named partner | Disclose promptly to the partner without consent |
Abuse of a vulnerable adult who lacks capacity | Pass the concern promptly to the responsible safeguarding authority, even if the informant asks for secrecy |
Patient keeps driving against advice | General Medical Council (GMC) guidance allows disclosure to the DVLA in the public interest, usually after telling the patient |
Minor offence with no victim and no risk of serious harm | The public interest threshold is not met, so keep it confidential |
Duty to warn and duty to protect
Tarasoff v Regents of the University of California (1976) followed a patient killing a woman after telling his therapist he intended to.
Tarasoff is the precedent for a clinician's duty, not merely a permission, to warn or protect an identifiable person threatened by a patient, overriding confidentiality.
Tarasoff is a Californian ruling, not a general UK rule. UK decisions rest on confidentiality law, statutory duties and GMC guidance.
W v Egdell: a psychiatrist disclosed risk findings to the treating hospital and Home Office after the commissioning solicitors withheld his report, and the Court of Appeal upheld limited disclosure in the public interest.
A warning is one protective action among several. Seek consent where safe, but do not delay necessary protection to obtain it.
Most people with severe mental illness are not violent. Assess symptoms, substance use, previous violence, context and protective factors.
Human Rights Act 1998
Article | Right | Breach or duty |
|---|---|---|
2 | Life | An operational duty to take reasonable steps against a real and immediate risk to life; Rabone v Pennine Care (2012) confirmed it covers informal patients |
3 | Prohibition of torture and inhuman or degrading treatment | Absolute, so no clinical reason justifies a breach |
5 | Liberty and security | A person under continuous supervision and control, not free to leave, is deprived of liberty without a legal procedure or way to challenge it (HL v United Kingdom, Bournewood) |
8 | Private and family life, home and correspondence | Opening every patient's letters under a blanket rule with no individual risk is disproportionate |
Restrictions under Articles 5 and 8 need a lawful basis and, where applicable, a proportionate justification.
Seclusion
Seclusion is supervised isolation in an area the patient cannot leave, used to contain severe behavioural disturbance likely to harm others. Its purpose decides whether it is seclusion, whatever it is called.
England's Mental Health Act Code of Practice says seclusion is for detained patients, so an informal patient who needs it as an emergency last resort is assessed at once for emergency detention.
Seclusion is never a punishment, a substitute for staff or the only response to self-harm.
Seclusion can be lawful, but humiliating conditions whose length takes them past the minimum level of severity are degrading treatment under Article 3.
R (Munjaz) v Mersey Care NHS Trust: the House of Lords held that the Code is guidance, and departing from it needs cogent reasons.
Review | Who | When |
|---|---|---|
Observation | Skilled professional within sight and sound | Continuous, recorded at least every 15 minutes |
First medical review | Responsible clinician or duty doctor | Within 1 hour |
Nursing review | Two registered nurses, one not involved in the decision | Every 2 hours |
Medical review | Doctor or approved clinician | Every 4 hours until the first internal multidisciplinary team (MDT) review, then at least twice daily |
Independent MDT review | Staff independent of the incident, with advocacy | After 8 hours continuously or 12 hours intermittently within 48 hours |
Long-term segregation is used when continuing risk to others prevents safe shared ward care. It needs MDT agreement, commissioner involvement and a plan to reduce restriction.
Long-term segregation needs at least hourly observation, daily approved clinician review, weekly MDT review, and external review every three months once it has lasted three months.