Memorandum from the Law Society (MH 20)
1. This evidence has been prepared by the Law Society, the representative body for over 100,000 solicitors in England and Wales. The Society negotiates on behalf of the profession and lobbies regulators, government and others.
2. We strongly opposed the original version of the Mental Health Bill as introduced into the House of Lords. The Bill lacked sufficient legal precision and relied too much on profession discretion. It is crucial that mental health law which governs the use of coercive powers overriding individual autonomy is sufficiently precise and clearly defined. This helps protect patients from unjustified interference in their human rights.
3. We believe that the expert scrutiny undertaken by the House of Lords and the amendments made to six key areas of the Bill - that received cross party support - provide a welcome opportunity to achieve ethical mental health legislation. The Society urges the Committee not to overturn these measured and judicious changes.
4. We welcome the decision by the House of Lords to include a list of 'exclusions' in the Bill which ensures that people cannot be detained under the Mental Health Act 1983 (the 1983 Act) solely on the basis of:
· drug or alcohol misuse;
· sexual identity or orientation; or
· illegal acts; or cultural, religious or political beliefs.
5. This provides a clear and powerful statement about the purpose of mental health law and will ensure that behaviour and preferences, which on their own should not be regarded as a mental disorder, are excluded from such law. It is unacceptable to widen the scope of mental health legislation where there is no evidence of a true mental disorder. This approach to the definition of mental disorder is also in keeping with the equivalent mental health laws in Ireland, Scotland, New South Wales and New Zealand which contain exclusions similar to those set out in the amended Bill.
6. The government maintains that the current exclusions in the 1983 Act have been misunderstood, resulting in people with a mental disorder being excluded from the ambit of the Act. We are not aware of any evidence that this is the case. The 1983 Act is clear - as is the amended Bill - that where the impugned conduct is associated with or leads to a mental disorder, then the use of compulsory powers is not precluded. If the law is misunderstood, the problem should be addressed by guidance and training.
7. The government also argues that inappropriate detentions are best avoided through clinical discretion - but in our view the interpretation of the law which authorises detention and compulsory medical treatment is too important to rest on individual interpretations and clear legal exclusions are essential to prevent inappropriate detention. In fact the argument for their retention, in an updated form, is stronger under the Bill's revised definition of mental disorder which is deliberately simplified and free of diagnostic categories.
The treatability test
8. The amended Bill would require that a person can only be detained if they can be given treatment that is likely to alleviate or prevent deterioration in their condition. We strongly support this provision. As a matter of medical and legal ethics, mental health law should not be used to lock people away because they are perceived to be dangerous but for whom no beneficial treatment can be found. That is the province of criminal law.
9. The government claims that this amendment would lead to people with a personality disorder being discharged or turned away because they are not thought treatable. We do not agree that this legal test would exclude any significant group of patients - including people with a personality disorder for whom effective treatments exist. If people are being denied access to treatment programmes, then this is not the fault of the law or definitions, but is either because of resources or because clinicians have misunderstood the law.
10. The government also contends that under the current treatability test people with a personality disorder can refuse to accept the psychological treatments that are appropriate for them thereby forcing the psychiatrist to discharge them because they are untreatable. However the amendment addresses this concern by first providing that in order to be detained appropriate treatment must be available to the patient - and second by defining appropriate treatment as "treatment which is likely to alleviate or prevent a deterioration in his condition". This ensures that whether or not the patient agrees to accept medical treatment, he/she can be kept under detention.
11. A government amendment, which was defeated in the House of Lords, proposed to define the "purpose" of medical treatment as "to alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or effects". The Society opposes this amendment because it is too wide and imprecise. First, the use of the term "purpose" stops short of requiring any likelihood of a detained person benefiting from treatment. We are not suggesting that the treatability test should require a prediction that a particular outcome will be achieved for the patient but simply a likelihood that the situation will improve or that the deterioration will be prevented. Second, the amendment would make the effect of someone's condition a trigger for compulsory detention - which might include for example the alarm or affront that a mentally disordered person's behaviour causes to the general public.
Impaired decision making test
12. The Bill as amended ensures that people who retain full decision making capacity cannot be detained and forcibly treated under the 1983 Act. We fully support this change. Currently mental health patients can be admitted to hospital and treated against their will irrespective of their ability to make their own decisions - the sole criterion is whether, as a result of the nature or degree of the mental disorder, detention is necessary for their health and safety or the protection of others. This contributes to the stigma and discrimination experienced by people diagnosed as mentally ill who - even though competent to make their own decisions - do not have the right under the 1983 Act to refuse to consent to medical treatment.
13. We are clear that this amendment would not exclude a mentally disordered person who, as a result of their disorder, is a danger to themselves or other people from compulsory detention and treatment under the 1983 Act - since it is axiomatic that their decision making ability would be impaired. Indeed it is more likely that if people have the right to have their decision-making capacity taken into account, and therefore retain some decision-making capacity about their treatment, they will be more likely to present themselves for treatment in the first place and to comply with it once it is recommended to them.
14. This amendment brings mental health law more closely into line with physical health care. Any individual with capacity who has a physical illness has the legal right to refuse treatment even if this refusal would have serious consequences, e.g. treatment for terminal cancer - and it is clearly discriminatory not to extend that right to the people with a mental health diagnosis who refuse treatment for mental disorder. Where the risk is primarily to others then we think that this is best addressed through currently available criminal justice legislation rather than health legislation.
15. The Mental Health (Care and Treatment) (Scotland) Act 2003 provides that a patient cannot be made subject to compulsory powers unless their ability to make decisions about medical treatment is deemed to be significantly impaired as a result of mental disorder. The Joint Parliamentary Scrutiny Committee recommended that mental health legislation include a condition for compulsion "that by reason of mental disorder the patient's ability to make decisions about the provision of medical treatment is significantly impaired".
Renewals of detention
16. We welcome the amendments passed by the House of Lords which ensure that every renewal of an existing detention must be agreed by a doctor. The government takes the view that this decision can be taken by other professionals - such as psychologists, nurses, social workers and occupational therapists - who need not be medically qualified. We believe that the decision to renew detention or a community treatment order is an extremely serious step - and no less a serious step than deciding to detain someone in the first place - and therefore the legislation should ensure that a fully qualified medical practitioner is always required to examine a patient and to agree before detention can be renewed.
17. The Society strongly believes that the government's proposals fail to satisfy the requirement under the European Convention on Human Rights (ECHR) that deprivation of liberty must be based on 'objective medical expertise'. The Joint Committee on Human Rights also disagreed with the Government's definition of objective medical evidence and expressed concern that the Mental Health Review Tribunal may be required to seek additional medical evidence to verify that the conditions of detention continue to be met in cases where the Responsible Clinician is not a doctor.
18. It would also be inconsistent and create confusion in the law not to require a doctor to agree the renewal of Mental Health Act detentions - when under the Bournewood proposals a doctor is required to agree the renewal of detention for mental incapacitated people in hospitals or care homes.
19. A government amendment, which was defeated in the House of Lords, would have required a non medically qualified responsible clinician to consult a doctor who has examined the patient before the detention is renewed. We believe that consultation is too insufficient a safeguard for such an important decision - only one person would still be deciding whether to detain at renewal whereas at the stage of the original detention there must be agreement between two doctors and an Approved Mental Health Practitioner. The amendment also still falls short of ECHR requirements since the medical opinion could be overridden by the Responsible Clinician - and therefore a patient could be detained despite a lack of "objective medical evidence of a mental disorder of a nature or degree warranting compulsory confinement".
Community treatment orders
20. The eligibility criteria for community treatment orders (CTOs), which were agreed by the House of Lords, would ensure that these orders are only used for genuine 'revolving door patients' - which is precisely the group of patients the government says it wants this provision to cover. We support these amendments - which are based on existing eligibility criteria that are used for CTOs in New South Wales. The new criteria would require evidence of at least one previous admission to hospital under the 1983 Act and previous refusal of appropriate medical treatment before a CTO may be imposed. The criteria would also ensure that a patient cannot be placed on a CTO where he/she willingly accepts the treatment that is proposed and there is no reason to assume that this situation will change. The overall effect of the House of Lords amendments would be to prevent CTOs from being overused as a substitute for hospital inpatient treatment - since clinicians would need to think carefully before imposing a CTO which will interfere with a person's right to respect to family and private life under article 8 ECHR.
21. We are also concerned by the Bill's proposal that a Second Opinion Approved Doctor (SOAD) can certify what medical treatment may be imposed on a community patient should - at some future point - the patient be recalled to hospital. This anticipates that a SOAD, whose role should be to safeguard against unnecessary or unsafe compulsory treatment, will authorise the forced application of medication in circumstances that he or she cannot foresee at some unpredictable point in the future. We believe it is important to preserve the role of the SOAD in considering what treatment should be given on the basis of the actual presentation of the patient at the time of their examination. The Bill should be amended to require that a SOAD examines and authorises compulsory medical treatment after a community patient has been recalled to hospital - except in cases of emergency.
22. The Society is also concerned that the conditions that can be attached to a CTO are extremely wide and could include "a condition that the patient abstains from a particular conduct". This is a potential interference with rights under Article 8 ECHR and raises the alarming possibility of CTOs being used as psychiatric ASBOs. It is essential that this condition is either removed - or that patients should be given the right to seek review of the conditions in a CTO before a Mental Health Review Tribunal. The government has stated that the Code of Practice will provide guidance to the effect that conditions attached to a CTO must be kept to a minimum necessary to prevent risk to self or others. We are extremely concerned by the lack of statutory safeguards in an area where Article 8 is engaged and the Society supports the conclusion of the Joint Committee on Human Rights that the inability of the MHRT to review the conditions would amount to a breach of the patient's Article 5 ECHR rights.
Children and young people
23. We welcome the House of Lords amendments which would place a duty on health authorities to provide age appropriate accommodation for children detained under the 1983 Act. This would help to reduce the widespread practice of placing vulnerable children on acute adult psychiatric wards. The changes would also require children to be assessed and supported by specialist child and adolescent mental health clinicians - which would help to ensure that inpatient services cater to the specific needs of children with serious mental health problems.
Other key issues in the Bill
24. Under the 1983 Act the nearest relative has extensive powers including the power to block admission and discharge a patient. The appointment of the nearest relative is determined by a hierarchical list and the patient has little say in this - even if they dislike the person or have an abusive relationship with them.
25. We welcome the government's agreement in the House of Lords to give further consideration to a proposal that a patient should be able to choose their nearest relative. This proposal would allow a person with capacity to nominate in advance their nearest relative - but only from the current list of nearest relatives set out in section 26(1) of the 1983 Act. To do this they would need to fill out a legal form - similar to an Enduring Power of Attorney - which would need to be certified by a mental health clinician such as a psychiatrist or Approved Mental Health Professional. It is in our view iniquitous that a person with capacity is able to nominate a representative to make serious health care decisions on their behalf under a Lasting Power of Attorney should they loose capacity in the future - including end of life decisions - but the same person is not able to choose their nearest relative who can protect their best interests should they be detained under the Mental Health Act.
26. We believe that the amendment put forward in the House of Lords is both reasonable and measured - and seeks to address the government's objections expressed in the House of Lords to granting patients' unfettered choice of their nearest relative. This proposal would help to avoid the unnecessary legal costs of requiring a patient to go to court to displace a nearest relative they objected to. It would also provide greater legal clarity - since the identification of a person's nearest relative can be one of the most complex issues in the 1983 Act and where mistakes are commonplace.
The Bournewood proposals
27. Since the Bill has been published there have been two important judgments which have a direct bearing on the Bournewood proposals. In JE v DE & Surrey CC the decision of Munby J on when there may be a 'deprivation of liberty' arising out of a care home placement established a significant change in the definition of "deprivation of liberty." More recently in a follow-up judgment Sunderland v PS, he said at (at §23) the following minimum requirements are necessary where detaining an individual under the inherent jurisdiction in order to comply with Article 5:
(i) The detention must be authorised by the court on application made by the local authority and before the detention commences.
(ii) Subject to the exigencies of urgency or emergency the evidence must establish unsoundness of mind of a kind or degree warranting compulsory confinement. In other words, there must be evidence establishing at least a prima facie case that the individual lacks capacity and that confinement of the nature proposed is appropriate.
(iii) Any order authorising detention must contain provision for an adequate review at reasonable intervals, in particular with a view to ascertaining whether there still persists unsoundness of mind of a kind or degree warranting compulsory confinement.
28. This, if correct, would appear to severely undermine the government proposals for detention under the Mental Capacity Act 2005 contained in Schedules 6-8 of the Mental Health Bill, which allows detention to be authorised by a 'supervisory body' which may be a PCT or local authority. We would welcome a response from the government on the issues raised by these cases.
Charging Bournewood patients for detention
29. The government indicated in response to amendments tabled in the House of Lords that the principle of means testing will apply to people deprived of their liberty in residential care homes under the 'Bournewood' provisions, who will therefore be liable to charges for the accommodation in which they are detained. We agree with the Joint Committee on Human Rights that this is discriminatory and a potential breach of Articles 5 and 6 and Article 14 of the ECHR since a person deprived of liberty in a hospital in their own best interests will not be charged for the detention whereas a person detained for their own best interests in a care home will.
30. We are aware that there may be concerns about the cost implications of the State having to pay the care home costs of people detained under the Bournewood provisions. However, we believe that as a basic legal principle people cannot be charged for care whilst they are deprived of their liberty under health care law.
31. The government contends that because the basis of Bournewood is that people are deprived of their liberty in their best interests to provide high quality care, it follows that the means-testing element should not be disapplied. In our view the fact that the detention is in the person's best interests does not negate the responsibility of the state to pay for the detention it has authorised. Many decisions to detain patients under the Mental Health Act 1983 can also be equated with decisions taken in the patient's best interests but that does not cancel out the state's responsibility to pay for the detention.