Recently in the news there was an article concerning the detention of an individual suffering from tb for public health reasons.
I have just read an interesting article on the ethics of legally detaining tb patients at http://www.nursingtimes.net/nursing-practice-clinical-research/the-ethics-of-legally-detaining-a-patient-who-has-tuberculosis/204146. The article is dated (2004) but nevertheless some of the questions raised remain important.
The case concerns a patient named Ms Green. Following investigations it was discovered that Ms Green had tb and as such was a considerable risk to other patients.
'An application was therefore made to the consultant in communicable disease control to obtain enforced isolation under section 38 of the Public Health (Control of Disease) Act 1984. The magistrate agreed to grant this for one month.
Implementing section 38
The act states that 'any officer of the hospital may do all acts necessary' to effect the order to detain an infectious person in hospital. The ethical dilemma was how to carry out this order if Ms Green decided to leave. Nurses may not wish to confuse their caring role with a custodial function.
On a previous occasion, before the introduction of the Human Rights Act 1998, a security guard had been employed to implement the order. As the isolation room has a lock we considered if this could be used.
The senior nurse had the following questions:
- Would Ms Green's rights be infringed by locking her door - especially as the ward was not a secure unit?
- Would Ms Green's confidentiality be infringed by posting a security guard at the door - especially if she or he were in uniform, as this would draw attention to Ms Green's detention?
- Would the guard be physically able to detain Ms Green if she tried to leave - considering her infectious state, frail medical condition and the local security services policy regarding hands-on restraint? (This policy regards the hands-on restraint of a patient to be a last resort).
- Would placing a lock on the door constitute a health and safety risk in the event of fire or a similar event?
In view of these concerns, the senior nurse instructed the ward to employ a nurse special to provide one-to-one supervision for Ms Green. This nurse was to encourage Ms Green to stay in her room, accept treatment and to alert other staff if she tried to leave.
Two days after starting this course of action, Ms Green left the ward when the assigned nurse was taking a break and other staff were engaged with patient care.
The senior nurse suggested an urgent meeting with the ward manager, matron, TB specialist nurses and the consultant to discuss developing a protocol for future management if Ms Green returned.
Code of professional conduct
The senior nurse was concerned that she had underestimated the legal implications of this case and questioned her professional accountability.
The Code of Professional Conduct (NMC, 2002) lists seven key values, of which the following were particularly relevant in this case:
- Respect the patient or client as an individual;
- Obtain consent before giving treatment or care;
- Protect confidential information;
- Cooperate with others in the team;
- Act to identify and minimise risk to patients and clients.
The senior nurse was concerned that she may have compromised these as a consequence of the complex nature of this case. She sought further advice from the trust's director of nursing and chief executive (CE).
Ms Green's consultant also e-mailed the CE to put forward his concerns about the hospital's ability to carry out the magistrate's order to detain the patient.
Devising a management protocol
The CE convened a meeting the next day and instructed the trust's solicitor to attend. The consultant, senior nurse, head of security, matron and a staff nurse from the ward were also present at the meeting. There was much debate about the interpretation of the Public Health (Control of Disease) Act 1984 against the Human Rights Act 1998 (Box 1).
The security team said their permanent staff accessed occupational health services, but many of their staff were employed on temporary contracts and there was no guarantee they were screened and protected against TB.
Also, a guard would be unable to restrain without a clinical 'partner' (a nursing or medical team member able to advise from a clinical perspective). This would therefore require two people to be involved in the detention.
The central theme in the discussion was one of 'proportion' - the action to restrain Ms Green must be proportionate to the risk. A protocol was developed from these discussions and agreed by the CE (Box 2).
All parties involved (including the trust's solicitor) were satisfied with these proposals. The ward staff in particular felt happier.'
In October 2007 A man from Rochdale was forcibly detained at North Manchester General Hospital to stop him spreading TB. see http://www.rochdaleonline.co.uk/news-features/2/news-headlines/2074/rochdale-man-with-tb-forcibly-detained
Detention in cases such of these is compatible with ECHR art 5. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants.
Each of these permissible forms of detention depends for its legitimacy on the availability of review. In other words, there must be periodic scrutiny of the legality of the detention by an independent court or tribunal.
The importance of speedy referrals for review can be seen in the case of R v Secretary of State. This case concerned the time delay in referral to the Mental Health Tribinal to review the legality of the detention of the individual held under the Mental Health Act. The Court held that the statutory scheme dealing with the referral of the case of a recalled mental patient to a mental health review tribunal was not incompatible with the patient’s rights under ECHR art 5.
1/10/11: Dementia Patients
Some more about issues of restraint (follows from post on detention of patients with TB):
Laws which which were supposed to offer safeguards to the vulnerable elderly and people with learning difficulties have failed, experts have warned. The safeguards were introduced in 2009 in an attempt to stop the scandal of dementia patients being locked up and restrained in care homes and hospitals, without authority, or any checks that such measures could be justified.
Staff working with the elderly and those with learning disabilities now have to seek legal permission from special panels, if they intend to bring in measures which would reduce their freedom. The panels can only allow a "deprivation of liberty" if a formal assessment allows particular measures, finding that they are in the person's best interests. But a major study has found that the experts making such decisions cannot agree which kinds of cases require such legal protection.
The consultant psychiatrist at South London and Maudsley Hospital NHS Foundation trust said: "This legislation was introduced in order to safeguard and protect potentially vulnerable people; the problem is it is incredibly complex. If the professionals working in this field - including the expert lawyers - can't agree about what constitutes a deprivation of liberty, it is hard to have any confidence that the system is working."
The legal changes were triggered by a test case, when the European Court of Human Rights ruled in 2004 that a hospital was wrong to "informally" detain an adult patient with learning difficulties, and to deny him visits from foster parents, for fear they would take him home. In cases which are deemed to constitute a "deprivation of liberty" a hospital or care home has to have two experts formally assess a person, to judge what level of restriction is required, and the person is entitled to an independent advocate, and right of appeal.
Again this post raises the ethical problem of discerning the 'best interests' of the patient. How is it possible to decide this?