International Journal of Law and Psychiatry 32 (2009) 176–183

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International Journal of Law and Psychiatry

Making sense of ‘consent’ in a constrained environment

Michael Larkin a,⁎, Elizabeth Clifton b, Richard de Visser c

a School of Psychology, University of Birmingham, Birmingham, B15 2TT, UKb St. Andrew's Hospital, Northampton, UKc University of Sussex, UK

⁎ Corresponding author. Tel.: +44 121 414 6036.E-mail address: m.larkin@bham.ac.uk (M. Larkin).

0160-2527/$ – see front matter © 2009 Elsevier Ltd. Adoi:10.1016/j.ijlp.2009.02.003

a b s t r a c t

a r t i c l e i n f o

Keywords:

ConsentMental Health ActInpatientsPsychiatristsInterpretative Phenomenological Analysis

Background: This project investigates patients' and practitioners' experiences and understandings of theconsent process, as it is governed by the Mental Health Act in Great Britain.Aims: We aim to illuminate our respondents' experiences of the consent process, and to explore theirattempts to make sense of that process.Method: Semi-structured interviews with 5 Responsible Medical Officers, and 7 of their consenting adult

patients, were conducted at a medium-secure psychiatric hospital. We approached the analysis from theperspective of Interpretative Phenomenological Analysis.Results: Our analysis begins with an account of some of the common phenomenological consequences of theconsent process as our participants understand them, but then moves on to discuss some of the contextualconstraints which are evident from their negotiation of these understandings.Conclusions: We conclude by outlining a number of emergent issues relevant to the current development ofnew Mental Health legislation. These include: mechanisms to allow collaboration with user groups; a moreconsultative role for users in their own treatment decisions; formal training and support for thoseconducting competency assessments; and more flexible and transparent legislative frameworks.

© 2009 Elsevier Ltd. All rights reserved.

1. Introduction

This project set out to illuminate issues resulting from severalcomplementary requirements of theMental Health Act (1983; ‘the Act’)in Great Britain — particularly the assessment of capacity/competency,and thenegotiation of consent to treatment. Amongother things, theActaddresses the rights of patients and the responsibilities of practitioners,with regard to consensual and non-consensual detention and treatmentfor ‘mental disorder.’ In the accompanying Code of Practice, consent isthen defined as the ‘voluntary and continuing permission’ of the patientto receive treatment, and is judged to be an outcome of the patienthaving ‘adequate knowledge’ of the consequences of that treatment.

Human rights principles require that a patient with the capacity tomake an informed decision should not be given treatment withoutconsent, and that patients with capacity should be appropriatelyinformed and free to give or deny consent, without coercion (Gendreau,1997; United Nations, 1991; Wong, Clare, Gunn, & Holland, 1999). Thistopic is particularly interestingwhenapplied to thefield ofmental health,because mental illness is often held to interfere with patients' ability toaccept the necessity of treatment, to be involved in medical decisionmaking, and to comply with medication (Airaksinen, Larsson, Lundberg,& Forsell, 2004; Murphy, Rubinsztein, Michael, & Rodgers, 2001; Rossell,Coakes, Shapleske,Woodruff, &David, 2003). However, the issues are not

ll rights reserved.

straightforward. Medical professionals, lawyers, and lay people do notnecessarily draw upon the same understandings of ‘competence toconsent to treatment’ (Kitamura et al., 1999), and such competence canbe defined and measured in different ways (Kitamura et al., 1998).

Under Common Law, patientswho are judged to be capable of givinginformed consent to any treatment, cannot be treated without havinggiven that consent. With regard to the more specific area of mentalillness, which comes under the remit of the Act, there are a series offurther requirements (of the practitioner) and restrictions (upon thepatient), which must be considered. The most important of these are:

• Patients may be detained for assessment, without their consent, forup to 28 days.

• Somepatients canbe treated formental disorderswithout their consent.This includes a number of short-term measures which are largelyintended to allow patients to be assessed. It also includes patients whohave been detained subject to Section 3 of the Act (i.e. for their ownhealth or safety, or the safety of others).

• In general, detained patients may be treated for up to 3months withor without their consent, provided that their ‘mental disorder is of anature or degree which makes it appropriate.’ (Section 37). Beyondthis point, the Responsible Medical Officer (RMO) is required toassess the patient's capacity to give consent to further treatment.Patients identified as incapable of giving informed consent may thencontinue to be treated without it— provided that a ‘Second OpinionAppointed Doctor’ (SOAD) concurs with the assessment (documen-ted on ‘Form 39’).

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• Detained patients deemed capable of giving consent (to treatment),and who give their consent, are documented on ‘Form 38’. Inprinciple and in practice, these patients may choose to refusetreatment. However, some detained patients who are judged to becapable of giving informed consent (to treatment) may still betreated without that consent (Section 58), subject to a secondopinion from a SOAD. These patients are also documented on ‘Form39’.

• Under Section 62, patients may be treated without their consent, ifthe situation is judged to be an ‘emergency.’

• Informal patients — who are not detained, but who presentthemselves for treatment — tend to be subject to a less formalprocedure of consent and documentation.

This situation has implications for psychiatrists and allied profes-sionals, and for patients and their relatives. For psychiatrists, theassessment of capacity should normally be an objective judgement,with a clear focus on the patient's capacity to understand theconsequences of a given treatment decision. It is an importantprinciple of human rights that patients with the capacity to makedecisions about their treatment must be allowed to make ‘bad’decisions, as well as ‘good’ ones. Equally, patients without the capacityto make decisions about their treatment should not be expected tomake such choices. Unfortunately, the context of any capacityassessment places the psychiatrist in a dual role: simultaneouslyresponsible for protecting patients' rights to make autonomousdecisions (through their role under the Act), and for promotingpatients' well-being (through their professional training and commit-ments). The reader will see the potential dilemma. The danger in thefield of mental health is that, over time, ‘bad’ decisions made by‘capable’ patients risk being construed as evidence of ‘incapacity.’

Beyond the assessment of capacity, clinicians also have to makedecisions about the ‘risk’ posed by the patient— to self, and to others.Increasingly, RMOs have to consider the consequences of suchdecisions for their own professional status (Morgan, 2004). Thislatter point has been of particular importance in the controversiessurrounding the various draft proposals for new legislation in GreatBritain, provoking criticisms from user groups and professionalbodies. For example, the British Psychological Society stated that theaims of one draft Bill had been “perverted by disproportionaterequirements of risk management rather than protection of vulner-able people (Kinderman, 2002, p.2).”

From the point of view of patients, there are further tensions.Crises of one kind or another may lead patients or their families toseek emergency help, but hospitalisation is obviously associated witha stronger ‘concentration’ of medical treatment, such as medicationsand ECT (Johnstone, 2000). Such events and treatments can beunpleasant. They may be experienced as coercive (Hiday, Swartz,Swanson, & Wagner, 1997; Hoge et al., 1997, 1998), and may evenincrease distress (e.g. Morrison, Bowe, Larkin, & Nothard,1999; Parker,Georgaca, Harper, McLaughlin, & Stowell-Smith, 1995; Shaw, McFar-lane, & Bookless, 1997). Even when patients revise their opinionsabout the need for hospitalisation (following discharge), their viewsabout coercion may not become more positive (Gardner et al., 1999).Some patients are detained and treated as a result of courtjudgements. For them, the issue of ‘consent’ is clearly paradoxical.Furthermore, in the U.K, the ‘Bournewood Gap’ (the absence of clearlegal safeguards for informal patients lacking capacity to consent) hasmeant that many other patients have received treatment without thepresence of formal checks.1

A previous qualitative study of consent by Marriot, Audini, Lelliot,Webb and Duffett (2001) provides a useful context for the closer and

1 One of the 2007 amendments to the Mental Health Act is intended to remedy thissituation.

more focused study that we report here. That study indicated thatprofessionals, users and carers all needed to be better informed; thatthe safeguards against, and criteria for, detention were not seen to beapplied consistently; and that the responsibilities attached to variousroles were rarely felt to be matched with the support or powernecessary to fulfil them (Marriot et al., 2001).

The perspective taken in our paper is psychological. Although theauthors are not therapists or prescribers, we are all professionallycommitted to contributing to the well-being of people experiencingpsychological distress, and therefore have a stake in the development ofgood practice. Here this relates to the implementation and interpreta-tion of this complex legislation in practice. The aim to understandthe personal meaning and consequences of the legislative and clinicalprocesses. To achieve this, we set out to identify and clarify some of theways in which consent is experienced and understood, from theperspectives of both psychiatrists and patients, in the context of currentpractice in theUnitedKingdom.As a result of our analysis,we also aim toidentify implications for the development of new legislation.

In this paper, the term ‘patient’ is used to refer to people receivingpsychiatric treatment. The research was conducted in a hospitalenvironment where ‘patient’ is used more widely than ‘service-user,’‘client,’ ‘consumer’ or ‘survivor.’ In this setting, to consciously prefer analternative might entail overlooking an important feature of theculture we hope to understand (Newnes, 2005). Choice of this termwasmadewith caution, andwith an awareness of its connotations andconstitutive effects.

2. Method

2.1. Context

Qualitative data were collected within a particular setting: amedium-security, independent sector, psychiatric hospital with awide range of specialist tertiary, acute and secure units. This hospitalprovides mental health care to a national catchment area— 95–98% ofits patients are from NHS trusts (i.e. public health services) around thecountry. It was selected because it offers a form of ‘extreme case’ (i.e. alarge number of detained patients) with plentiful opportunities forobserving participants' relationships with the Act. Although thefindings may not translate simply and directly to secondary servicesin the NHS, or to health services in other countries, we trust that thecritical reader will be able to estimate the transferability of theanalyses presented here, and their relevance to other salient settings.

2.1.1. Data collectionEthical approval was obtained from the hospital's research ethics

committee. A series of semi-structured interviews was conductedwith 5 RMOs and 7 psychiatric patients during the Spring and Summerof 2002. The aim of our idiographic, qualitative approach (see Smith,1995) was to collect rich and detailed data which illuminated theparticipants' experiences of consent issues.

Participants were sampled purposively, in order to capture some ofthe varieties of experience common to staff and patients at thehospital. Hence, RMOswere approached fromdifferent units, and thenpatients selected from within those units. The RMOs were contacteddirectly, by the second author. Patients were only approachedfollowing consultation with their RMOs and nurses. A protocol wasprepared to guide the process of informing patients and their keyworkers of the nature of the research, and obtaining their informedconsent. Only patients already judged to be capable of understandingand consenting (i.e. Form 38) to their treatment were considered forparticipation at this stage.

Interviews were carried out by the first and second authors.Two schedules of questions were developed — one for patientsand one for RMOs. These schedules provided the basic topics for a‘guided conversation.’ Interviews were tape-recorded, and were

178 M. Larkin et al. / International Journal of Law and Psychiatry 32 (2009) 176–183

then transcribed in full, with interviewer comments indicated initalics.

2.2. Ethical considerations

Participants gave informed consent. They were thus informed ofthe aims and emphasis of the study, and given prior notice of the likelycontent of the interview via the interview schedule. Participants werewarned that verbatim excerpts from their interviews would beincluded in final reports, but were assured that all data would beanonymised, and that no one but the research teamwould see the datain its raw unedited form.

Participants were informed that they were under no obligation totake part in the study. Those who elected to take part were informedof their right to terminate the interview at any time, and to refuse toanswer any questions they deemed inappropriate. All participantswere offered a cassette copy of their interview. Raw data were storedsecurely in anonymised form only. It was agreed, on the advice of thehospital's own ethics committee, that a nurse should be present atinterviews with the patients. Notes for briefing these nurses (as totheir own role, and the confidentiality of what they were about tohear), and for discussing this with patients prior to the interview,were included in the protocol. This presented a methodologicalproblem with new ethical implications: the presence of a staffmember could have constrained what participants felt able todiscuss. However, the hospital's own ethical concerns — expressedin terms of patients' well-being and researchers' safety — hadpriority.

As a further safeguard, an external evaluator — a clinicalpsychologist from another institution — was invited to monitor theethical procedures at key intervals. The evaluator was also available toadvise the research team on how best to address any emergentconflicts of interest. All participants were willing and able to discussthe topic at hand, and there were no threats to the patients' well-being, or to the researchers' safety, and no conflicts of interestrequiring consultation with the external advisor.

2.3. Data analysis

Anonymised transcripts were coded systematically using Inter-pretative Phenomenological Analysis (IPA: Smith, 1996; Smith,Jarman, & Osborn, 1999). IPA is part of the hermeneutic phenom-enological tradition which attempts to make sense of experience,whilst recognising that the interpreter's position is inextricablefrom any emergent interpretation. The defining characteristic of IPAis in-depth idiographic analysis of a small number of accounts whichaims to balance experiential claims against more overtly interpreta-tive analyses (Reid, Flowers, & Larkin, 2005). IPA's emphasis onmaking sense of experience-in-context is consistent with the aimsof this project.

IPA utilises a process of thematic analysis which generates firstcodes (i.e. detailed line-by-line annotations), and then themes (i.e.concepts which make sense of the patterns within the codes). Thisprocess is iterative, moving gradually from the particular to thegeneral, and from the descriptive to the interpretative (Larkin, Watts,& Clifton, 2006; Smith et al., 1999). This approach combines a richdescription of a phenomenological ‘core’ (which aims to capturesomething of the claims and concerns of the ‘person-in-context’) withthe development of a more interpretative account (which considersthe meaning of such claims and concerns). This latter aspect isparticularly important— the interpretative range and flexibility of IPAallows the analyst to engage with issues relating to discourse,cognition and affect. Our analytic account therefore draws uponvarious different aspects of these data.

3. Analysis

Three major themes emerged from the analysis. The first themeaddresses the experiences and concerns of the participants in relationto patient consent. The second theme examines some of thecommunicative features which frame these experiences. The thirdtheme explores relationships between doctors and detained patients.Discussion of these three themes is followed by a discussion ofpertinent issues for any new legislation.

3.1. Experience in the institutional environment

All but one of the patients (Andrew) described or displayeddifficulties in understanding at least some of the information providedto them about their treatment. Professionals were perceived to bequite variable in both the kinds of information that they provided, andtheir skill at communicating that information clearly. On the otherhand, information often came frommore than source, and the patientsthemselves were generally keen to seek clarification from othersources. Jimmy provides a typical example of this experience:

R: Yeah, exactly, you don't always see it when it's explained to youthe first time.

I: Yeah.

R: Sometimes you have to talk to somebody else about it, and say,‘Well, what was that they meant?’ Did they, you know, explain itmaybe more? Some people explain better.

I: Yeah.

R: Yeah, sometimes you don't see it at all, and then sort of justagrees with it, and that's it.

We can see here that the problem with this system lies in itspotential to mistake ‘compliance’ for ‘informed consent.’ In thehospital, RMOs work with patients who have a complex range ofneeds, and within a legislated system which generates many ‘greyareas.’ Patients are potentially disempowered by their doctors'authority. Part of the problem for patients is that the status of theirexperiential claims is always in question in the institutional context ofthe Act. One patient provided two powerful examples:

R: [The judge] looked at his watch when I finished, and he said,‘Do you realise,’ he said, ‘that you've been talking for three-quarters of an hour?’ I thought, ‘Bloody hell, I'm talking about ayear of my life here, you know? — Your next tribunal?’

I: Yes.

R: And he's begrudging me talking for forty-five minutes.(Andrew, patient).

R: It's like/say when I hit Doctor White. The first week after I hitDoctor White, ‘Doctor Brown,’ I said, ‘Do you know why I hit DoctorWhite?’ He said, ‘Because you was angry.’ I said, ‘Spot on.’ The nextweek he said, ‘I think you was suffering persecutory delusions.’ Thenext week he says, ‘It was a psychosis.’ But that’s it you see, the firstweek it was anger, which it was. It was just anger. (Andrew, patient).

Despite his articulacy, Andrew does not ‘warrant voice’ (Gergen,1994) in these environments. This is not a point about a particularjudge, doctor, or hospital: we are interested here in the patient'sperception of the cultural context as it is constituted by the Act.Andrew is keen to speak for himself, and to provide an account of hisactions, but his accounts appear to him to be devalued, or unheard.Wecan see in the second excerpt that he perceives a steady degradation inthe received validity of his own claims, in relation to his escalatingdiagnosis. The point is a powerful one: a person may have unusual

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beliefs — and Andrew is quite clear about his own, elsewhere in theinterview — but these do not necessarily explain all of his actions. Inthe context of the Act and its constituted environs, there is a dangerthat all actions are seen to be indicators or consequences of ‘madness,’thus appearing to reinforce the decision to detain and treat. Similarphenomena have been observed in earlier research (Rosenthal, 1973).

One RMO pointed out the nature of the underlying dilemma forpsychiatrists working within a system perceived to be coercive, ratherthan facilitative of patient autonomy:

R: Of course, if you have detained patients, there is no such thing asfreely-given consent […] Evenwith the patients that are consentingto take themedication, they're not reallyconsentingpatients becausethey are detained and they know the system, and they know if theyrefuse the medication they're likely to get second-opinioned, andthey're to get given the medication anyway, and that if they refuseoral medication they're likely to get given I.M. [intra-muscular]medication […] They know that takingmedication regularly and in acompliant manner is likely to lead to their swift discharge fromhospital. So, the whole system's coercive. (William, RMO).

Faced with this heavily legislated system — which placesprofessionals and patients in oppositional roles — both sets ofparticipants have to be content with small victories. In terms ofbeing seen to do the right thing, or knowing that the right thing isbeing done to/for oneself, the opportunities for action are limited.However, our participants were able to tell stories of successful‘resistance.’ For example, Andrew noted that an advantage of being onmedication which is only available in oral form is that he canphysically resist its unwanted administration:

R: I've refused all my medication at some time.

I: Yeah.

R: You know, the lithium as well. Er, and they've said, ‘Well I can'tforce you to take lithium.’ Because he knows he can't squeeze it inbetween your teeth.

I: No, no.

R: And you can't get an injection for them, so I've refused to takethat. (Andrew, patient).

Similarly, William confirms what many other participants suspectabout SOADs — that they rarely ever contradict the RMO (‘I must say Ithink it is somewhatof amechanistic rubber-stampingprocess’), thoughhe is able to tell a rewarding story about having done this once himself:

R: I knew I'd made the right decision when I said in the nursingoffice, ‘I'm terribly sorry, but I'm going to reject this application forECT,’ and the nurses cheered. [LAUGHS] (William, RMO).

These are limited opportunities for resisting or re-interpreting thelegislation, however. Both Andrew and William describe ‘smallvictories’ won within the constraints of the wider legislative system(e.g. compare these with the more dramatic forms of ‘expressive’ and‘instrumental’ resistance, described by Herman and Musolf, 1995).Each of these instances are borne out of an ability to exploit theoccasionalmismatches between the requirements of the Act, and theirown knowledge of the requirements of practice (forWilliam, a clinicaljudgment prevails; for Andrew, his awareness of the administrativelimitations of lithium pays off).

3.2. Modes for communicating meaning in institutional culture

Agency— and lack of agency — is one of the most obvious featuresdistinguishing the language typically used by RMOs from that used by

their patients. In the extract below, an RMO orients herself towardsthe interviewer, and towards the issue of consent in an active andproprietorial manner:

R: Erm all my patients are detained under the Mental Health Act, sofor/after threemonths of treatment erm Ihave to/I'mallowed to treatpeoplewithout them/having their consent for the first threemonths.Erm and then after three months, I have to assess their capacity toconsent to their treatment, and then, if I feel they're able to consent,then I do a certain form — 38 — and if I don't think they're able toconsent, or they're notwilling— they're capable but notwilling to giveconsent— then Iwould ask for a second-opinion Act-quality doctor—an SOAD. Erm, so I have to assess people's capacity to consent on afairly frequent basis. (Barbara, RMO).

Thus, Barbara refers to ‘my patients,’ and she is empowered withresponsibility for them: ‘I have to/I'm allowed to.’ These agenticconstructions (first person, present tense, and future-facing) arerepeated throughout this excerpt, and also elsewhere in the RMOinterviews. In contrast, Sue (a patient), uses many more second-person pronouns. For us, this is suggestive either of a reduced sense ofagency, or of an attempt to mediate her own powerlessness for theinterviewer. In the latter reading, the use of ‘you’ functions as a kind of‘generalised other’ — this discourse suggest that ‘we’ (patients) are allin this position in our relationships with doctors:

I: Erm and can you tell me anything you'd ask the doctors to dodifferently in that process of the search?

R: No. Because if you want the doctor/if you ask somebody to do itdifferently, yeah?

I: Yes?

R: And the doctor agrees to do it differently, yeah? It could fail. Itcould go wrong. So, if you do it the doctor's way, you've morechance of succeeding.

I: Ah. So you kind of think, then, it's better to go-

R: In some [circumstances

I: Agree] with the doctor?

R: Yeah, in some circumstances, yeah.

I: So do you trust the doctor, then, to, in cer-/ in certain[circumstances?

R: Well] I have to, don't I?

I: Yes. What/what certain circumstance?

R: Well, I don't know because each thing's different. You know,like moving on to [INAUDIBLE — another ward] that's different.Like going home, that's different. Like going out, that's differentagain. So, each thing is different. […] So I have to trust/well she'snever lied to me yet. So, I do trust her, I suppose. (Sue, patient).

Here, Sue's language is perfusedwith a sense of the contingent limitson her own agency. Her orientation towards the issue of consent isspeculative (‘if you want,’ ‘if you ask’). Where Barbara's account isgrounded in authoritative mechanisms (‘SOAD,’ ‘Section 38’), Sue'sversion is adrift in uncertainty (‘I don't know because each thing'sdifferent’). Sue depends entirely upon her doctor's advice, andwhen shedoes use the first-person, it is only to emphasise this dependency (‘Well,I have to, don't I?’). Although a range of discursive strategies weredeployedbyall participants, thereweremanynotabledistinctionsof thiskind between the language of the patients and their doctors. Thesecontextual constraints are thus an important part of the broad culturalframe within which our participants' sense-making activities occur.

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One further aspect of the constraints of the Act and its culture isprovided by the patients' histories of their experiences. These historiesof detention and treatment in a variety of institutions influencepatients' expectations of their situation at the hospital. Thus, Geoffdemonstrates that his experiences at a previous secure hospital haveled him to formulate a picture of a ‘good patient:’

I: Is there something that's/that's like important to you about consent?

R: Er, no. I've learnt over the years to do as I'm told [inaudible]

I: [laughs]

R: One way or another.

I: Is that/is that a way of being a good patient?

R: [laughs] Yeah.

I: Yeah? Okay, is that something that you erm you/you see other patientsand/how, when you see other patients and/and they're not being goodpatients

R: Oh, you had no choice at [Other Secure Hospital].

I: Oh right.

R: You had to be a good patient.

I: Or else?

R: Or they sorted you out.

I: Okay. So you learnt the hard way, really?

R: No, I took me meds. (Geoff, patient).

Although the term ‘goodpatient’was introducedby the interviewer, itwas taken up by Geoff, as it was consistent with his account. Geoffdescribed the advantages of displaying conformity within this system,and implicitly demonstrated thepervasive effects of his ownhistoryuponhis understanding of his rights to consent (or not) to his treatment.Despite there being no suggestion that hewill be (or has been) dealtwithat this hospital in the manner that he was elsewhere, the threat is stillimplied by his previous experiences. Patients' histories provide achallenge to any legislative or clinical attempts to encourage greaterdialogue between patient and physician about treatment decisions.Attempts to bring mental health legislation in line with internationalhuman rights legislation may need to take this into account.

3.3. Mechanisms for the maintenance of existing power relationships

This last point leads to the third major theme: the relationshipbetween doctors and patients. Just as patients have histories, so too dodoctor–patient relationships. These may be experienced as problematic(e.g., Andrew's account ofDoctorWhite andDoctor Brown) or supportive(e.g., Sue's account of her trusting relationship with her doctor). Thehistory of such relationships affects the negotiation of ‘consent:’

R: It's less formal. Imean, I think inpart, perhapsbecause/Imean Ihaveeighteen patients and, well, one of them, with a year's break, I'velooked after for the last seven years […] So, um, the patients in myservice tend to stay for quite a long time. I tend to get to know thempretty well, um, and so following some formalised structure wouldprobably be a little bit arbitrary, really. […] It's following the changesand alterations in their mental state and making a judgement abouthow that might affect their capacity. Um, you know, there are somevery obvious ones, like a quite a psychotic patient. (Jenny, RMO).

These interpersonal understandings are bound to affect decisionsabout consent, but must be placed within the wider context of thebureaucratic culture of hospitals and their legislative frameworks.Indeed, ‘bureaucracy’ is the principle experiential object in the

consent process, in the RMOs' accounts. The bureaucracy of consentprocedures is primarily experienced and understood as if it were‘empty’ of practical meaning. At best, it is explicitly described as anecessary feature of the job, at worst as an impediment to getting thejob done: ‘tedious,’ ‘tiresome,’ and ‘repetitive’ are the prevailingadjectives used. Despite this, our participants' accounts implicitlysuggest that bureaucracy has a central role to play. In fact, itspractical meaning appears to be that it enables psychiatrists to makedifficult decisions, and to carry out distressing procedures, withouthaving to treat every such occasion as a moral and philosophicaldilemma:

R: Do people withdraw their consent? Yeah, I mean I have adifficult one/er, example: if someone consents to having an intra-muscular injection when they're disturbed. You might be satdown and they say, ‘Yeah, that's fine, ’cause I/I know I shouldn'tdo that, and that, you know, it's the best way to calm me downwhen I'm really erm distressed.’ But when it actually comes to it, Idon't think anybody could-?

I: Sure.

R: When you're being held down […] You know, point to the form38 and say, ‘Well, you consented to it.’ […] You know, ‘cause that'snot consent.

I: No.

R: So I would, for those ones, I would/even though they consentedto it, I'd used a form 62. (Barbara RMO).

In this example, Barbara is able to demonstrate that she has actedcorrectly, by demonstrating that she has logged her interventions onthe right form. Obviously, this does not change the nature of herintervention at all — it is still essentially invasive, potentiallydistressing, and given without the person's consent. It is importantto note that Barbara's account demonstrates that she recognises this.However, the only action available to her within the salient frameworkof the Act is to introduce an additional level of paperwork. Thebureaucratic procedures of the Act serve to absolve RMOs of treatingevery such intervention as problematic: as such they allow patients tobe ‘managed.’

For most of the patients in this study, bureaucracy and legislationwere either not acknowledged, or were acknowledged as obstacles tounderstanding and agency. Sue's earlier difficulty in establishing herposition (‘I don't know because each thing's different’) is an exampleof this. In most cases, the level of information and technical languageinvolved in consent procedures means that patients depend upondoctors and pharmacists for knowledge about their treatment andrights. A striking variation, foregrounded against the prevailingpattern, was provided by Andrew:

I: What/what do you actually think that er, erm, consent meansthen?

R: Valid consent?

I: Valid consent, [what does that mean to you?

R: It means that] you're not put under any pressure. You know,none of this erm you know, ‘If you don't take it you'll be moved toanother ward.’ That's definite pressure. Er, even if you say, ‘I'm notsure,’ you know, then they should get out a/a/a second opinionapproved doctor. And it actually says that in a White Paper/er, Ithink it was in 1974, that the/it says that the/the second opinionapproved doctor has got to/has got to certify that the medicationis essential. (Andrew, patient).

Andrew positioned himself as an ‘expert patient.’ As an articulateand intellectually able patient, he was able to use the consent

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legislation as ameans of protecting his rights (‘I've gotme ownMentalHealth Act manual, the Richard Jones one, sixth edition’), protestingagainst treatment which he does not want, and even providing aconsultative service for other patients (‘I'll go and check it out, and ifnecessary I'll write it out for them’). In a later extract he voices aconcern, which was also implied or expressed by several otherparticipants, about the impartiality of information received frommedical staff:

R: Erm well generally, I/I, don't/I think doctors tell you the bitsthat they want you to know. I think you're better off looking at theleaflets out the erm medication packs — you know, when/whenthey prescribe you a new/new medication? — or from first-handexperience from another person, you know, who's already takenthat medication. I think you find out more that way than from adoctor. A doctor will just tell you the good bits about themedication, he won't/he'll very rarely tell you about the/thedownside. (Andrew, patient).

Obviously, these claims need to be offset against the descrip-tions of good practice provided by RMOs. One might reasonablysuppose that the information generally supplied to patients fallssomewhere between the concerns of patients and the legislativeideal (RMOs were quick to point out the difficulty of makingcapacity assessments, and of pitching information at an appro-priate level). Although their everyday actions were constrained bylegislated procedures, the RMOs were reflective practitioners,nonetheless:

R: The fact that someone has a lucid moment and you can have asensible conversation in five minutes/for five minutes whereasthe rest of the day they're totally out of it. […] Erm you know, youhave to take a sensible sort of average. Erm you know, but one/oneis sometimes fooled. I saw an elderly lady who was supposed to behaving ECT over at [hospital] some months, and she was verysensible, she was very compos mentis, and she said, ‘I realised I'mill. I will/now I know I need the ECT and although I don't like it,yes I'll have it.’ So I actually signed form 38 as a second opiniondoctor saying, ‘This woman has the capacity to give her consentand has given it.’ […] Erm I got rung up two days later saying thatshe'd withdrawn her consent, so I had to go back and do a form39. (William, RMO).

For RMOs, the problem of interpreting and implementing the term‘adequate knowledge’ was a persistent concern. Their many reflec-tions on this issue showed an awareness of general questions (e.g.adequate for whom, or what purpose?) and also illustrated theirproblems in applying it across a range of specific cases. Here, Andyoffers a general rule of thumb:

R: I suppose the issue is what information/because this is always amoot point — is do you give them the BNF and tell them to look ateverything and every possible side-effect that may occur, or doyou give them the main/do you inform them of the main side-effects they are likely to experience?

I: So what do you actually do?

R: I go for the main, because, I mean, if I gave them the BNF[British National Formulary], it's a long list which they'll neverremember anyway. (Andy, RMO).

This would appear to be more convenient for Andy than for hispatients — but he then goes on to describe a series of contingentjudgments which he has to make. These suggest that his ‘rule ofthumb’ obscures a more sophisticated and responsive position, but

also that there is little in the way of a guiding framework to help himto make these decisions:

R: Erm so erm it's/it's/I go for/for the most common/the morecommon side-effects, and for the most frequent side-effects.Obviously somebody/I mean, there're, obviously, a lot of generalpatients who are quite able to read something like the BNF, and Iwouldn't give them that, but for somebody who has/erm whose/whose intellectual capacity is [INAUDIBLE], and therefore needinformation of a more kind of digestible form erm then it'sobviously/er, I give it to them in that/give them the main side-effects. The other thing I think is about giving them writteninformation, again I suppose, I say a number of my patients wouldn'tbe able to read something like the BNF or ermyou know, the/the/theinformation, I think those are quite useful.

I: The patient information leaflets?

R: Yeah. So erm I mean certainly we give them writteninformation, I mean I suppose in a way we don't/we don't, er/Ihave to admit I don't do that as a standardized/I mean we do ermhave erm also things like [the] mental health issues group[INAUDIBLE] with patients erm given information about theirmedication.

This complex set of overlapping and contingent judgments (and tosome extent, the confusionwhich here ensues from it) is typical of theexperience described by the psychiatrists in our study.

Under the legislation, careful assessments are required todifferentiate between patients who have the capacity to consent andthose who do not. We might presume that there is considerablepressure upon the practitioner to err on the side of caution in suchevaluations. Pollack & Billick (1999) point out that “psychiatricpatients, despite their illness, are often capable of making rationaltreatment choices for themselves” (p. 303). From a patient perspec-tive, ‘erring on the side of caution’ means ‘favouring patient rightsover compulsory treatment’. However, in these interviews, ‘caution’was generally understood to mean the opposite:

I: I was asking you about what, what you meant by ‘erring on the sideof caution’ in capacity assessments.

R: Oh yeah, yes. I think if I was unsure, I would err on the side onthe person being incapable of giving consent, or, yeah.

I: Being incapable?

R: Being incapable.

I: So/so from your position with these patients, the/the mostimportant thing for patient welfare is/is probably maintainingtreatment in most, er

R: Well, well yeah, ‘cause that's why I prescribed it [laughs] Buterm if you err on the side of that they're incapable when you'renot completely sure, then another doctor will come in and/andgive an, er/an opinion on your treatment plan. (Barbara, RMO).

Here, ‘caution’ is understood fromtheperspective of a ‘dutyof care’ —rather than from a ‘rights’ perspective.We do notmake this observationto suggest that Barbara's actions are somehow inappropriate. However,it is important to note that ‘caution’ comes with an implicit connotationhere, which is likely to seem counter-intuitive to a layperson. As thework ofHoge et al. (1998) demonstrates, patientsmay viewprocesses ascoercive when clinicians and families do not. It is important to note that‘caution’ may also imply respect for the patient's rights (an under-standing which we have seen in some of the preceding quotes fromAndrew). In the current system, of course, Barbara's view of ‘caution’does ensure that a SOAD will check that the capacity assessment isaccurate, and that the treatment is appropriate. However, we have

182 M. Larkin et al. / International Journal of Law and Psychiatry 32 (2009) 176–183

already seen that the SOAD system is not held to be a particularly testingcheck by our participants. It is worth noting that, nationally, 80% ofrecent SecondOpinions have been observed to support the initial RMO'srecommendation (Mental Health Act Commission, 2005).

4. Pertinent issues for any review of legislation

The data illustrate that patients' insights and experiential claims aredevalued by the current legislation. Their experiences are open tochallenge, manipulation and reconstruction. Consequently, they havefew opportunities to express agency or choice in relation to their treat-ment. When RMOs exercised ‘caution’, this generally meant assumingconsent to treatment rather than non-consent. It is important to notethat ‘treatment’ in the context of consent was inevitably taken to implymedication only. Only two participants (one RMO, one patient) raisedthe issue of needing to obtain informed consent for psychologicalinterventions. When asked about such interventions, the RMOs tendedto presume that attendance at any other form of intervention wasequivalent to consent. However, this is not consistent with the principleof informed consent, and is not supported by the patients' under-standings of their rights in this area. Either way, at present, patients'‘rights’ arepurely nominal. This is evident in thevariation of institutionalpractices under the Act (consider Geoff's experiences across variousinstitutions). The first step towards clarifying patients' rights ought tobe a more systematic means of communicating accessible informa-tion about those rights, and about treatment options. Expertise existsamongst the user/survivor movements, which can help with this task,and it should be mobilised.

Thedata showthat the legislationplacesRMOs' personal experiencesand professional concerns in a more secondary role than perhaps theyshould be. RMOs do have agency and responsibility (especially incomparison to patients), but only within very narrow parametersdefined by the Act and its institutional mechanisms. A more collabora-tive system, allowing the distribution of shared responsibility, mightenable more reflection on good practice than the ‘rubber-stamping’described by SOADs.

A related issue is the problem of ‘competency assessments’. Tosome extent this now falls under the remit of the newMental CapacityAct (2005), but it also has implications for any new mental healthlegislation (Holloway & Szmukler, 2003). RMOs noted that theyreceived no formal training in this area, and that there is no forum forsharing accepted good practice or comparing evaluative criteria(Pollack & Billick, 1999). They decried the lack of clarity over themeaning of the term ‘adequate knowledge’ in the Code of Practice. Itwas evident that sometimes patients needed information to berefreshed, too; a one-off discussion was sometimes insufficient,because the need for consent may be ongoing rather than a one-offdecision. These are critical issues, given the kinds of dilemmasdescribed by the participants, and yet they could all be easilyaddressed. It makes a nonsense of any legislation to proceed fromthe point of competency assessments, without first having agreedupon standards for conducting them. According to Grimes, McCul-lough, Kunik, Molinari and Workman (2000), new strategies forpsychiatric capacity evaluations should be developed to address theclinical challenges of an increasingly complex view of decisionalautonomy. Foti, Candilis and Holzer (2001) noted the requirement fora more robust understanding of decision-making capacity — onewhich includes intentionality and voluntariness, along with under-standing. They suggested that taking a more comprehensive con-ceptual approach to capacity assessments will expand, rather thanlimit, the autonomy of psychiatric patients.

5. Summary

The data presented here relate to participants' psychologicalorientation towards a particular cultural environment (a psychiatric

hospital governed by the 1983 Mental Health Act), with theassumption that, in important respects, the features of this environ-ment are not entirely unique. Participants were reflective andengaging: all were keen to discuss the strengths and weaknesses ofthe current system, and to describe positive experiences at thisparticular hospital as well as more problematic features of the system,and of their own personal histories. It must be noted that because allparticipants gave informed consent to participate in this study,patients deemed unable to give consent to treatment were excluded.

The interpretative endeavour aimed to discuss the most powerfulpatterns of meaning within their accounts, and to reflect upon theimplications for those systems governed by the Act. This endeavourwas situated within the context of proposals for new legislation. It isnot easy to engage with the detail of those proposals; they havechanged several times during the course of our project, and againwhile the paper was reviewed. However, those who are developinglegislative changes must reflect upon some of the coercive anddehumanising aspects of the current system. A key finding of thisstudy was that whereas the dual functions of bureaucracy (as anobstacle and a mechanism) were a principal feature of the RMOs'strongly agentic accounts of the consent process, such bureaucracywas experienced by patients as an obstacle to agency. Only one patient(Andrew)was able tomobilise the legislative mechanisms to anythinglike his own advantage.

People developing legislative changes should also consider thevarious ‘double-binds’ in which the current legislation places thepsychiatric profession. Oppositional roles (e.g. providing care vs.managing risk; assessing capacity vs. offering treatment; obtainingconsent vs. information-giving) should be avoided where possible.Where they cannot, they require: robust mechanisms to ensurecollaboration with user groups; adequate training, supervision andsupport; more flexible legislative frameworks; and more transparentprocesses and practices. Service-users should be involved whereverpossible in making choices about their treatment (Hofman, Mueller-Spahn, Malhi, & Farmer, 1999). This is not simply a matter of humanrights (Gendreau, 1997; United Nations, 1991). It is also a matter ofpsychological good sense. A systemwhich gives people agency seemslikely to increase their wellbeing, too (e.g. Layard, 2006).

Acknowledgements

Linda Clare, Scott Yates, Jean Stubbs and Geoff Dickens.

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