for clinicians

Mental Health and Masking – A Case in Point

sam — Thu, 05 May 2022 13:41:14 +0000

Mental Health and Masking – A Case in Point

sam Thu, 05/05/2022 - 13:41

I’ve written before about mental health and ‘masking’, the often-automatic concealment of symptoms by acting ‘normally’ when around others. My attention was recently drawn to a case at the Solicitors Disciplinary Tribunal (SDT), in which this phenomenon was very much relevant.

I am not a legal professional, nor any other sort of legal expert, so I shan’t make much observation about the case. Put briefly, a junior – fairly recently qualified – solicitor by the name of Claire Matthews (her name being not only a matter of public record but the subject of considerable publication on legal websites) was asked to do some work one evening, and mislaid a briefcase containing the relevant files on the journey home. She lost her job, and an individual whose personal data was included in the files – an individual who was bringing action against a client of the firm – made a complaint to the Solicitors Regulation Authority (SRA), who investigated and decided to bring disciplinary proceedings to the SDT, who can decide on penalties when a solicitor has acted improperly.

(This is all complicated by the fact that the SRA was the client in question, indeed the firm was one heavily used by the SRA. I do not know enough to say whether this might have affected the SRA’s actions in result of the complaint – given the complainant was already bringing action against them. One would naturally hope not, a regulator being expected to be impartial as a matter of course, but we are all human, so I do not dismiss the possibility.)

This inexperienced solicitor was not represented at the tribunal, and I am sure that most of you will have heard the old saw about lawyers who represent themselves having a fool for a client. However, it costs money to be represented, if you cannot find someone willing to act pro bono; it also costs money to provide expert evidence, the relevance of which will become clear shortly. Overall, it is understandable that people early in their career don’t see any alternative but representing themselves.

Mental health was raised as a factor before the tribunal, as it can mitigate or entirely excuse behaviour that might otherwise be considered a breach of professional conduct. This was not successful, and the tribunal found a range of misconduct had occurred, and did not find sufficient mitigation to apply any lesser penalty than that of striking off – removing the ability of this woman to work as a solicitor. In line with what is apparently normal practice, they also asked the tribunal to order that the costs of the investigation and prosecution be paid by the solicitor. It is most important to note that the misconduct that occurred was largely a matter of dishonesty – dishonesty towards her seniors in failing to report in a timely manner and misrepresenting the circumstances and timing involved. Apparently, dishonesty is particularly amenable to mental health-related defences.

Given the severity of this outcome, she did seek legal advice, and the solicitors who acted for her have written about the case of Claire Matthews and the successful appeal that was made. With pro bono legal advice and representation, and expert medical evidence, the appeal was allowed ‘by consent’, which is to say the two parties agreed on an outcome and the court gave it the okay. The argument was that, given that she was unrepresented, and mental health had been raised as an issue, and that the SRA and SDT both have public duties under the Equality Act and the power to take steps to investigate her mental health, there was a degree of what I would describe as, and I make no attempt to use legal terminology, unfairness to the proceedings. Supported by the newly-acquired expert evidence, the SRA conceded that the matter should be remitted to the SDT for a fresh hearing, without explicitly conceding the actual grounds of appeal.

I now turn to the analysis of the matter I read in the publication to which my attention was first drawn – the Law Society Gazette. This is a publication of the Law Society, which is both a representative and regulatory body for solicitors; however, the regulatory matters are handled by the Solicitors Regulation Authority, which operates independently of the Law Society while being technically part of it. Thus, the actions of the Law Society under that name are generally supporting and representing the interests of solicitors (at least, that is how I have understood it, and I am happy to be corrected in the comments). The Gazette has, I would thus presume, a degree of pro-solicitor bias, though perusing its website makes clear that it is not in general prone to defend solicitors who have acted inappropriately – though it has been known to be critical of the SRA and SDT.

In both a recent news report regarding Matthews, and an opinion piece, more detail – and criticism of the SRA – is apparent. Having agreed last year to the consent order, remitting the case to the SDT, the SRA eventually applied to the SDT to withdraw the case, with no order as to costs. Matthews is thus entirely free to practice again, without the costs or the case as a whole hanging over her, although the SRA has applied conditions to her practising certificate. The SRA instructed their own medical expert for an assessment, and found in the end no public interest in pursuing the case.

Note that they instructed their own medical expert – this is what is meant above, in the description of the arguments on appeal, by the SRA having powers to take steps to investigate a solicitor’s mental health in an investigation. Taking into account the assertion of mental health issues, the Gazette’s opinion piece argues, along with her lack of representation, the SRA should have done this in the first place, and may not have taken action, or the SDT could have ordered it – or weighed differently the evidence before it in a way that was more understanding of mental health problems.

This is where we come back to the topic of masking. The SDT apparently heard evidence of trauma that had led to long-standing mental health problems. There was no expert evidence either way, but absence of evidence is not, as the saying goes, evidence of absence. The SRA presented Matthews as dishonest, and self-serving in that dishonesty, while she presented herself as a person who was experiencing an exacerbation of long-standing mental health difficulties, a person in crisis, due to the very events in question. She provided evidence in support of this from those who knew her, and could see her with her mask off, particularly her family. The countervailing evidence? Statements from former colleagues that she was acting normally at work at the time. Even describing her as ‘bubbly’.

To anyone with a proper understanding of how mental ill-health presents, that people mask their symptoms when around those they don’t trust completely, this should not be convincing. The standard of proof in this case was (and I didn’t know that such disciplinary tribunals used this) the criminal standard – beyond reasonable doubt. Even if a finder of fact were to take the view that the doubt raised did not quite reach the standard of a reasonable doubt – a higher bar than is commonly thought – they ought to consider it enough of a doubt to raise questions as to why, given their power to do so, the SRA hadn’t looked more deeply into the mental health question. Instead, it seems that the evidence regarding what could easily be masked behaviour was seen as entirely quashing the doubt raised by evidence of those who saw Matthews with her mask off.

Masking is a complicated thing. It is a broad term in psychology, applied to neurodevelopmental disorders such as autism as well as to mental illness such as depression or schizophrenia. It is broadly described as acting in a way not consistent with one’s own genuine personality or emotions, generally to conform to social pressures or as a reaction to abuse or harassment. It is very common in women and girls with autism, as many behaviours typical of autism are thought to be rather unfeminine, thought to be a factor in under-diagnosis of autism in women and girls. The pattern for girls with autism is more often one of apparently ‘normal’ behaviour at school, potentially extreme behaviour on return home due to the stress of masking all day, and perhaps more typically autistic behaviours when away from school and allistic (non-autistic) friends, where it is not seen by teachers and thus not captured in diagnostic questionnaires.

I would go further and say that masking is not done simply to conform to social norms or in reaction to abuse. There is a common, underlying drive behind both reasons, and it is broader than them – the avoidance of negative or undesirable reactions from others. It is very difficult to explain to other people why one is acting in a depressed manner. It can be distressing for other people. You get a far better reaction, and thus reduced immediate stress-in-the-moment if you do not act in a depressed way. This is especially true in contexts where there is a proximal cause (as in this case, the losing of the paperwork) that you do not feel able to disclose to the people with whom you are interacting.

The fact that it may increase stress overall doesn’t seem to be part of the (in my opinion, largely sub-conscious) ‘decision’ to mask.

Masking also often leads to overcompensation, a fact I can attest from my own experience. A person with ADHD may do their (again, potentially subconscious) utmost to seem attentive, and it may even work for a time. A person with autism may ape neurotypical social behaviours and seek social contact. A person who is depressed may seem extra cheerful – even, as in this case, ‘bubbly’.

The message I want to get across to everyone is quite simple. How a person behaves in public, or even with health professionals, is not a brilliant guide to how they are feeling or how they would behave ‘naturally’. Judging people on their public behaviour is likely to give a misleading idea of how they really are, and doesn’t show you the toll that masking takes on them. Mental state examinations that judge people’s ‘objective’ mood should be approached with caution – even if a patient trusts their health professional completely such that they might drop the mask, they have generally just been in an environment where the mask was up (such as a waiting room), and inertia might keep it up. It should also go without saying that a patient will not always trust their health professional enough for this.

Masking can even go beyond the situations in which it may be automatic. Where those closest to a person – those in front of whom they might otherwise feel most comfortable dropping their mask – are themselves vulnerable, or more likely to be distressed by natural expression or react negatively to it, there can be a conscious decision to mask, which is even more difficult than ‘automatic’ masking in public. If this goes on long enough, it may become automatic, making it less difficult but removing an important outlet for a person’s true feelings or behaviour. Reports on behaviour and mood from those close to a person are thus more likely to be reliable, but may still reflect masking.

This is important for clinicians to remember, when assessing someone’s mental health; if their objective mood is at odds with their subjective mood, that shouldn’t automatically call into question their subjective report or their description of symptoms. Objective mood can certainly be seen as supportive a self-reported subjective experience, or if objective mood is other than euthymic in a way other than that reported subjectively, that can be very clinically relevant, but “they seem euthymic” should not be a reason to dismiss a person’s reported distress or symptoms.

It is important for everyone else, as well. In this case, it was people passing judgement on someone in a literal, legal sense, and it would obviously be important in such a case, but it is important in others as well. Employers must realise that a person who has outward signs of being ‘fine’ can be in a great deal of distress. Even in terms of social relationships, it is easy to judge someone – to distrust them – if they seem to present different ‘faces’ at different times.

“But you don’t look sick” is a thing often heard by people with some sorts of invisible long-term physical conditions, such as various autoimmune conditions, fibromyalgia or ME/CFS. “But you don’t seem> depressed” is something that people with depressive mood disorders are also very familiar with. It is more than disheartening – even more so than with physical conditions, it strikes at a person’s integrity, at their self-image, and causes them to feel that others distrust or disbelieve them. That is, obviously, not a good thing when already dealing with mental ill-health, and can be far more damaging than one might expect.

Please, whatever your role in life or relationship with such a person, please don’t contribute to that damage.

Shared Decision Making – What is it, and Why should I care?

sam — Thu, 24 Mar 2022 08:13:01 +0000

Shared Decision Making – What is it, and Why should I care?

sam Thu, 24/03/2022 - 08:13

Shared decision making (SDM) is a bit of a hot topic in medical circles. Well, it should be, but it mostly seems to be a hot topic among people who are researching clinician-patient interactions and people who have ‘caught the bug’ for it and are trying to drive change. It’s making a fair bit of headway here in Britain, with England’s National Institute for Health and Care Excellence (NICE) publishing a guideline on Shared Decision Making last summer calling for the “embedding of shared decision making across every organisation or system regardless of its size”. With increasing patient-facing roles for pharmacists, the European Association of Hospital Pharmacists Congress has a keynote today about it; I’m co-presenting, though couldn’t make it to Vienna, so my contribution was recorded as video used during the presentation.

The NICE Guideline is quite strongly put, with several ‘do’ recommendations (as opposed to ‘consider’ ones). This doesn’t mean these things will happen; NHS healthcare providers in England are only required to have regard to NICE Guidance, though the regulator and funding bodies will use them (and accompanying Quality Standards) as benchmarks. The guideline is clear that a senior leader should be accountable for embedding SDM, that there should be one or more organisation-wide ‘service user champions’ (“recruited from people who use services”, and it’s worrying that they had to make that explicit), one or more senior health professionals working as ‘professional champions’, and that organisations should consider appointing a patient director (“from a service user background”) to work with the senior leader, the professional and service user ‘champions’ being there to support both the patient director (if there is one) and the senior leader.

(If any organisation in my area is in the market for such a service user director or champion, I could be available, by the way)

There’s a lot of more bureaucratic stuff about implementation, supporting and training staff, and even what sort of posters should be up in areas where patients/service users spend time. It does go on to make some very specific points about how to ‘do’ shared decision making, focussed on a few areas – discussions, decision aids, involvement of family, friends, carers, advocates etc, the need to support people who have more difficulty with SDM or don’t have support from family etc, the importance of clear communication about risks and benefits, that sort of thing. It’s all very good, as far as it goes, though what I consider the most important thing to know about SDM is only really there by implication (more on which below), and it leaves a lot of detail up to interpretation.

That’s understandable, given NICE Guidelines aren’t there to tell clinicians how to be a clinician, but SDM is still a new way of doing things, and there are a lot of doctors and other health professionals who won’t know much about it, and won’t have confidence in doing it. The first wave of ‘involving patients in making decisions about their care’ resulted in a lot of doctors just asking patients what they thought the doctor should do, sometimes having provided options, sometimes not. I have to say, that’s not very helpful for the vast majority of patients, even knowledgeable ones like me. Before that, and still with some doctors, especially some specialisms, the approach is more paternalistic – the doctor knows best, tell the doctor things, they do tests, they tell you what is going to happen. Of course, patient consent is still important in that scenario, but doctors following that model tend to assume the patient will consent. The way some clinical guidelines are presented – particularly those with ‘pathways’ for care – can reinforce this approach, but rather than being driven by a paternalistic attitude it is driven by the algorithmic nature of guidance.

Shared decision making is different – it is based on the idea of the patient, the doctor (or other clinician, or several clinicians), and other people the patient wants involved, sharing information with one another, things going both ways, and making a decision together. While that principle can be discerned reading the Guideline as a whole, I’m not sure it is clearly stated. There are formulas for how to go about doing SDM, which if read correctly will lead to this happening, but it isn’t clearly stated – and it should be. The paternalistic model involves the patient telling the doctor things, and the doctor making decisions; patient-led decision making (as I shall call it, not being sure if there is a technical term) involves the doctor telling the patient what their test results mean, what their symptoms point to, what the implications of their diagnosis are, what the options are for treatment, what risks are involved – and the patient making decisions. Judging by some American medical YouTubers, the patient-led model is dominant and considered ‘best’ in America.

That isn’t shared decision making. You don’t even get shared decision making by combining elements of the two approaches, though you can see elements of both in well-done SDM. Shared decision making takes more time than either approach, and a level of empathy that one would hope was normal among clinicians (though experience suggests otherwise). Shared decision making is about back-and-forth, about clinicians understanding a patient’s life in ways they might not otherwise need, about high quality communication and making sure patients understand risks and benefits to the best of their ability.

Because of this dynamic, because of the wide scope of information exchanged, it allows patients who aren’t willing or able to really look at options in detail to still end up with a decision that is likely to match what they would choose if they did so. It allows curious patients who want to know as much as possible to learn it. It allows clinicians to incorporate patient priorities that they might not even realise were there. It can even optimise the involvement of patients in decision-making where they aren’t legally capable of making a decision.

I’ll be writing more in the near future about shared decision making, different aspects of the process and the great opportunities it presents for improved outcomes – especially subjective outcomes, patients getting what they want rather than what a policy-maker has decided is the best outcome. There’s far too much to it to do justice in one blog post, without making it so long that you would give up reading. What I hope to do is help clinicians and patients understand what shared decision making is, why it’s good, and how to do it properly, based on how patients experience such interactions – not from the clinical perspective. The ‘how’ is obviously more aimed at clinicians, but if patients understand as well then they will be more able to participate fully. I’ll just finish with a couple of examples where properly done SDM can lead to better outcomes for patients.

To take an obvious, and very emotive case, you may have a patient who is likely (or even definitely) going to die of some condition, and sooner (say in the order of years) rather than later. There may be some important life event coming up that they want to participate in fully, which might mean that their priorities lead to a path of treatment that doesn’t maximise the quantity of time they have left. Instead, they would be focused on quality of life, not now, not over the whole remaining time of their life, but over some short period of time in the future.

Pain management is always a difficult proposition, but it’s even harder for people who particularly value clarity of thought – for example, those whose work or recreational activities are intellectually-focused. Pain isn’t great for clarity of thought, but nor are a lot of pain relieving medications, whether they be opioids or gabapentinoids, among many others. Rather than pain management being about minimising both pain and the risks related to pain relief, such as tolerance, dependence, misuse, or side-effects in general, it becomes about balancing pain and pain relief to optimise cognitive function, an entirely different proposition.

As a final example for today, I’ll use myself. My wife and I are mutual carers, both disabled, both with long-term health conditions that affect us day-to-day. We each have limitations, some different, some shared. Together, we muddle through pretty well – alone, we would struggle massively, and it would be hard for someone else to substitute and provide a lot of the care. That means that both of us would very much rather avoid any sort of treatment that would prevent us caring for the other; elective surgery is something we would avoid more than your average person, and where we need a procedure that could be done with sedation or general anaesthetic, or could be done with only local anaesthetic, we’re usually going to choose the local. If our doctors, and other health professionals, know about our mutual caring role, and the implications of it, they can start off discussions from the basis of avoiding inpatient stays and similar. If they don’t, and if a good process of shared decision making isn’t followed, they may be quite confused (or draw incorrect conclusions) from the choices we end up making.

for clinicians

Mental Health and Masking – A Case in Point

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Shared Decision Making – What is it, and Why should I care?

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