Mental Health - April 2010

Self-harm minimisation and the law

There’s a limit to how often you can counsel caution – whether you’re a nurse or a lawyer.

Kate is approaching middle age and for much of the last 25 years, she has cut herself. There are proud weals, and also fresh, livid scars, on her arms and thighs. What she does might be about control or exhilaration; it might have its roots in abuse or even mental disorder. It certainly makes other people uneasy.

Kate is a cipher, of course; someone to stand for the 170,000 people who are said to attend A & E every year after deliberately harming themselves. Sometimes, she finds sympathy there and a comforting word. More often, her wounds are stitched up disinterestedly and maybe, as some kind of lesson, without anaesthetic. Occasionally, Kate even finds herself being detained under the Mental Health Act.

Lately, though, something has begun to change. It seems to Kate that the nurses and doctors are less quick to condemn, and some have even begun to say that to prevent her cutting herself might actually compound the problem.  None has gone so far as to hand Kate a razor, but she has been told which part of her body is safest to cut, and she has been given both privacy and sterile dressings. There is a name for that approach: self-harm minimisation. 

Until recently, anyone practising such an approach did so in a vacuum, with little to guide them.  Little, that is, but the still, small voice that counsels caution, but that might equally ask whether there isn’t a better way of doing things. 

Now, the position is a little surer. In 2004, the National Institute for Clinical Excellence published guidance that put minimisation alongside other techniques practitioners might choose to discuss with their self-harming patients. This was a modest start, but two years later, at its annual congress in Bournemouth, the RCN gave self-harm minimisation qualified support. Meanwhile, pilot projects supported by the Department of Health have been underway in Stafford and Newcastle.

There is, undoubtedly, something unsettling about self-harm, and, for the lawyer, about any intervention that seeks to do something other than prevent it entirely. But should such an intervention be viewed any differently from surgery, physiotherapy or the giving of medicine? How does it differ from handing our syringes and needles to drug-addicts?

It seems likely, in fact, that self-harm minimisation falls within accepted notions of ‘medical treatment’, which Lord Denning once defined, rather broadly, as “the homely art of making people comfortable and providing for their well-being”.  What matters, surely, is that any intervention satisfies the ‘Bolam test’.

That, of course, is the standard test for health care negligence (and for many other forms of negligence besides). To be lawful, an intervention, or a failure to intervene, must be consistent with a practice accepted as proper by a responsible body of relevant opinion. Doctors and nurses, in short, are to be judged by the standards of their peers.

When deciding whether self-harm minimisation was lawful, a court might consider how well the patient's background – and in particular, any history of self-harm – was researched, and how well understood; how carefully her needs were considered; and how closely those needs corresponded to the intervention that was made. An intervention might be least difficult to defend where a patient had tried to harm herself before and had done so in a fairly consistent way and to a fairly consistent degree. The NICE guidance said much the same thing. There is no guarantee, of course, that an intervention – or the decision to use self-harm minimisation in the first place – would comply with Bolam.  Now, however, we need no longer assume that it would not.

Even where they favour self-harm minimisation, those who encounter Kate will tread cautiously. That would be sensible, for the law is particularly suspicious about anything new. It has long recognised, however, that the requirements of the Bolam test cannot be allowed to impede clinical progress.

There is, of course, a danger for advocates of self harm minimisation: if they get what they want, they will raise the expectations of Kate and many thousands like her, and those raised expectations will be difficult to manage. As all clinical innovators have found, every attempt to devise or even discuss an appropriate level of care runs the risk of elevating that level even higher.

And the still, small voice persists: how can it be lawful to help someone cut – or burn or bruise - themselves?  It would be understandable if lawyers faced with that question gave the advice they would have doctors and nurses give to their patients: don’t do it. Yet, that is an unimaginative response, and it is also becoming an irrelevant one.  In far too many cases, it neglects the realities of the situation as surely as a nurse who does no more than scour a patient’s bedroom for sharps.

David Hewitt, Partner
Weightmans LLP

The NICE guidance may be found here.