Vignette 1 – Capacity

Interpreting principles

The apparent simplicity of the four principles model hides a significant but everyday philosophical problem: namely that, although we can all agree on the importance of respecting autonomy, pursuing justice and achieving good outcomes, we often disagree about what these concepts mean. Different participants in the decision-making process will often interpret them in different ways. These differences of interpretation may arise from important human group influences such as culture, class and gender; they may be influenced by the power differentials between the patient (whose capacity may be compromised by mental illness) and the psychiatrist (who has legal powers to detain and treat involuntarily). They may also reflect the fact that reasonable people will disagree with one another.

For example, the principle of non-maleficence states that doctors should act in ways that do no harm and the principle of beneficence states that they should act in ways that maximise the patient's welfare. In ordinary medical practice this largely involves weighing up the costs and benefits to the patient of one course of action rather than another. In mental health services though, most psychiatrists will be required to think about the risk of harm in a broader sense. They are often expected to act in ways that prevent their patients doing harm to others, even if that means overriding the wishes of their patient. Psychiatrists can find themselves prioritising the welfare of people other than their patients on the basis that prevention of harm to others is beneficent, which of course it is. However, as in Re C, from the patient's point of view there may be nothing beneficent in having their liberty removed, their autonomy overridden and their values dismissed as less important than risk reduction. This problem has probably become more acute since the introduction of healthcare delivery in the form of businesses that fear reputational risk and legal action.

Conflicting principles

Even where there is agreement on what the principles themselves mean, there is still the problem of what to do when the principles conflict or how and when to prioritise one principle over another. Psychiatric practice is remarkable for operating within a legal framework that directly empowers doctors to make significant compromises between these principles. It allows them, for example, to trump a patient's autonomy in the pursuit of good consequences – as happens whenever a person is detained involuntarily for treatment. Of course, the fact that detention is legally sanctioned does not mean that the ethical dilemma is resolved, only that there has been some kind of social consensus that overriding autonomy may be justified.

Mr C's case raises questions about the interaction between the principle of autonomy and the principle of beneficence: where there is disagreement about what is a good outcome, who gets to decide? Most would agree that if someone lacks capacity to take care of themselves it is morally justifiable to try to do what is best for them, even if they are not able to exercise choice and agree formally to this. But in many cases in psychiatry, it is not always clear that people lack capacity; in fact, they may seem to be making decisions that are very harmful to themselves and yet their decision-making capacity is not obviously compromised. Conversely, it is all too common that professionals do not explore a patient's capacity to make choices because the patient's decisions align with the professionals’ views. This dilemma over capacity was at the heart of the 2007 amendments to the Mental Health Act 1983; there were powerful arguments put that no one who has capacity should be treated involuntarily, but this argument failed and it is still legally possible to give involuntary treatment for a mental disorder to a person who has full capacity.

Interpreting facts

In Re C, the court decided that Mr C had the capacity to take a decision that was risky, albeit ‘in his own way’, and that decision had to be respected. It is relevant that the clinical assessment of the ‘facts’ turned out to be incorrect: the anticipated harmful outcomes did not occur.

In the CPD module by Pearce & Tan (Reference Pearce and Tan2019), models of ethical reasoning as used by CECs are set out and they usually ask that we begin with an analysis of the facts. However, just as professionals may interpret ethical principles differently from patients, so they may also see the facts in different ways, especially in terms of the possible consequences of any course of action and their likelihood. In Re C, the clinicians had one view of the facts of what might happen without surgery and the patient had a different view of those facts and perhaps a different emotional response too.

When mental health professionals disagree with patients about the facts of the case, these disagreements are very likely to be based on their experience, which is, of course, often different from those of the patient. They do not come to these dilemmas in an ethically ‘neutral’ state of mind; their accounts and interpretation of the facts may be biased by many factors, including their emotional response to the situation, their professional concerns about the response of the institution in which they work and their past experiences as professionals or patients.

We should note too that many of the ‘facts’ of a case are not descriptions of things as they are now, but are instead forecasts about what things could be like in the future. As when thinking about principles, reasonable people can differ in their predictions of the future. It would be a mistake to assume that these forecasts can be treated as incontestable. Like principles, they permit better or worse interpretations.

In any ethical dilemma there are an almost unlimited number of facts to draw on and many more contestable predictions – it is an ethical choice in itself as to which are given more or less attention and emphasis.

Identity

We suggest that there is a final complex concept to address here, which is the concept of personal identity (Glover Reference Glover2003), an issue not directly addressed by the principle of autonomy but often implicit in any discussion about a psychiatric patient's care. The issue of identity and how this relates to choice is often the first question that strikes psychiatric trainees as they begin their training. They may not be sure what to make of a family’s talk of their relative not being ‘their usual self’ or, conversely, their reassurances that the more unusual behaviour is in fact ‘just them’. Age and social context are relevant here: consider a young man who suffers a sudden onset of a first episode of psychosis during which he becomes paranoid and refuses treatment. Such a person often has family and friends who can provide a background history of who this person is, their interests, values, hopes and aspirations, helping doctors to look beyond the patient in front of them and make decisions on behalf of their ‘usual’ rather than their ‘pathological’ self. Such a case looks relatively straightforward in terms of trying to be respectful of the personal values that constitute that person's identity.

But consider by contrast a 60-year-old man who has lived with chronic schizophrenia for 40 years with few social or family contacts and a long history of ill health. It is less straightforward to see how the psychiatrist is going to be able to connect with this man's premorbid personality. After so many years that person may in a sense be lost and the patient's illness may have come to define much about him. In such instances, do psychiatrists address the patient directly according to the values they express now (although they may be symptoms of their disease) or do they search for deeply hidden or maybe even never-developed interests? Perhaps they act on an account of what a reasonable person would want in such circumstances.

These challenges raise another important question: what is the aim of treatment of mental illness? As Michael Slade explains, conceptual clarity is required when talking of ‘recovery’ in psychiatry. A medical model may emphasise only a remission in symptoms and a return to ‘normal levels of functioning’, what Slade describes as clinical recovery. Important too though is personal recovery – enabling and supporting a patient to develop individual ambitions, satisfactions and meaning to their life, whether unwell or not (Slade Reference Slade, Amering and Oades2008).

Undoubtedly, these are some of the questions that will have troubled Mr C's treating team. His case also reminds us that many patients with chronic mental illnesses rely on others to help them make their choices and their autonomy is best understood as a ‘relational’ autonomy, which is based on the relationships with those who care for them (Agich Reference Agich1993).

Vignette 2 – Consent

Vignette 3 – Informed consent

Suboptimal outcomes and bad feelings

Important to note is that ethical dilemmas often arise in situations where there do not appear to be any good options available. Put another way, if there were an obvious good option then psychiatrists would likely pursue it. Ethical tension arises when the psychiatrist cannot see good outcomes, or fears that the outcomes have significant costs that render them less good or ‘suboptimal’. This ethical reality adds an important caveat to the use of any model for ethical reasoning, which is that they do not always identify an ideal outcome. They may only offer the ‘least-worst’ course of action.

It should also be noted that, even when the ethical ‘answer’ seems justified – whether by a model of ethical reasoning or not – it can still lead to strong emotions in staff and ‘bad’ feelings. Silva et al (Reference Silva, Till and Adshead2017) describe a case where a patient was forcibly treated with clozapine via nasogastric tube. Although the patient made a full recovery and went home (after years of detention), many members of the clinical team felt very uncomfortable about the treatment, finding the patient's distress upsetting. Not all ethically justifiable decisions will come with a promise of professional peace of mind.

Interpersonal and institutional pressures

The case as described in Silva et al also highlights that, as in any team endeavour, ethical dilemmas will always contain complex interpersonal dynamics. The influence of other members of the clinical team is important and there is an expectation that the psychiatrist will be a team player, whose view is only one of many. The General Medical Council requires doctors to work in teams and yet the psychiatrist is the responsible clinician legally and ethically. If things go wrong, it is the psychiatrist who is likely to be the focus of criticism. In the Silva case, the consultant was heavily criticised for pursuing their course of treatment against the views of staff who felt upset by the process. This criticism persisted even when the patient wrote to thank his team and the consultant for their help in his recovery.

Given this, in any ethical dilemma in mental health it is vital to consider the relational context. Some ethical ‘dilemmas’ will resolve if the relationship between relevant parties changes. For example, a psychiatrist may be reluctant to discharge a person to their home because of the family dynamics, although the patient is keen to go. If the family dynamics could change (with therapy, say) then the dilemma would disappear.

Ethical models may sometimes fail to capture the relational context to an ethical dilemma. In some institutional contexts ethical models may be forgotten altogether. Reflecting on some of the atrocities that humankind has committed over the past century, ethicist Jonathan Glover (Reference Glover1999) asked how good people can bring themselves to do such terrible things. One answer, among others, is the tendency for humans to act as tribes and, in doing so, create a moral distance between themselves and others. Respect for another's human dignity can be discouraged through a culture of dehumanising behaviour and language, such as dark humour or metaphor. In institutions where this behaviour is commonplace individuals can evade responsibility or deny involvement in wrong-doing, perpetuating injustices and creating a ‘culture of denial’ (BBC News 2020). It is salutary to recall that the history of psychiatric practice is chequered with injustices and abuses. At its most essential, ethical medicine requires each clinician to have the courage to recognise when wider institutional or team behaviour encourages bad practice – and to challenge it.

When there is no clinical ethics committee

Not everyone will have access to a CEC nor be in a position to set one up, so all psychiatrists need to enhance their ethical reflective and communication skills to help bring about the most morally respectable decisions. Robust ethical decision-making involves recognising and trying to avoid the personal, interpersonal and institutional biases that can distort moral reasoning. It includes considering the values of all those involved in the decision-making process. Perhaps the really difficult aspect of ethical dilemmas in mental health is not that the moral principles falter, but that professionals do not always take enough time to reflect on them. It is important to remain calm and not let other people's anxiety create an urgency that is actually illusional. Taking time to do the process of ethical reflection properly may be the most ethically respectful and defensible thing to do.

Ethical reasoning is also a self-reflective process that should ask questions such as ‘What am I worried about most?’ and ‘What makes me most uncomfortable about other people's views on this dilemma?’. This is a practice that goes back to the probing questions of Socrates to the people of Athens. Socratic questioning remains a challenge because it aims to reveal muddled thinking where there was certainty and uncover issues that had not been previously thought of, making things more complex than they first seemed. Many can find this a difficult and unwelcome experience. However, psychiatrists are well placed to engage in these discussions because they involve some of the same skills that they need for their clinical work: listening before speaking, not jumping to conclusions, resisting black and white thinking and practising the kind of imagination that sees what a situation might look like from another person's perspective, even if they think that perspective is invalid or irrational.

Finally, when the going gets tough, the tough get help and advice. If faced with an ethical dilemma, the virtuous psychiatrist consults with senior colleagues and those who have experience in these matters, which may include the chaplaincy, local moral philosophy departments and legal experts.