Memorandum submitted by the General Medical Council (MH 43)
1. The General Medical Council (GMC) is an associate member of the Mental Health Alliance, a coalition of 80 organisations with an interest in the proposals to reform mental health legislation in the UK.
2. The GMC licenses doctors to practise medicine in the UK under the provisions of the Medical Act 1983 (as amended). Our objective, as defined in the Medical Act, is to "protect, promote and maintain the health and safety of the public". Our four main functions are:
a. to keep up-to-date registers of qualified doctors;
b. to foster good medical practice;
c. to promote high standards of medical education; and
d. to deal firmly and fairly with doctors whose fitness to practise is in doubt.
3. Our governing body, the Council, is made up of both medical and lay members.
4. Within the terms of Section 35 of the Medical Act, we have the power to advise doctors on standards of professional conduct and medical ethics. We do this primarily through published guidance, which sets out standards that society and the profession expect doctors to follow throughout their working lives.
GMC's interest in the Mental Health Bill
5. We have an interest in the proposals in the Mental Health Bill as they have implications for doctors' ability to meet the standards of conduct and care expected in their relationships with a particularly vulnerable group of patients. We believe it is important to ensure that people with mental disorders are able to get the treatment and care which they need, and are not subjected to compulsory assessment and treatment without appropriate safeguards of their rights and interests.
6. We also acknowledge that there are difficult issues surrounding the management and care of the minority of people with mental disorders who pose (or may pose) a serious risk to public safety. On this point, there is clearly a tension between the public interest in protecting individuals' rights to personal freedom and, on the other hand, protecting the public against risks of serious harm. It is a difficult task to decide how the balance should be struck. However, it is important that any steps taken to address public safety concerns do not impose responsibilities on doctors which conflict with their professional obligations towards patients and their families and carers.
7. The Government has announced that it intends, during the passage of the Bill through the House of Commons, to overturn all of the amendments made to the Bill by the House of Lords. We support the amendments made by the House of Lords as we believe that they help to redress many of the concerns that we have previously expressed about the Government's proposals for changes to the Mental Health Act.
8. In this submission to the Public Bill Committee, we focus on three areas which have potentially significant consequences for doctors and their ability to meet their professional and ethical obligations towards their patients. These are:
a. Impaired decision-making capacity
b. The so-called 'treatability' requirement
c. The power to renew detention
9. The House of Lords passed an amendment adding a condition to the requirements for detention under the Mental Health Act, that a person's ability to make decisions about treatment for their mental disorder must be significantly impaired. This amendment means that a person who has capacity to make a decision about treatment for their mental disorder cannot have it forced upon them because a doctor disagrees with their decision.
10. The requirement that a person's decision-making ability must be significantly impaired before they can be detained and treated without their consent is consistent with the guidance the GMC issues to doctors, in which we make clear that doctors are expected to respect the wishes of patients who have capacity to make their own decision (about treatment or care or disclosures of confidential information), and to act in the best interests of patients who lack such capacity. These are fundamental principles of good medical practice which we would expect to see applied to decisions involving patients with mental disorders in the same way as those suffering from physical conditions.
11. A test of significantly impaired decision-making ability is included in the Scottish legislation, the Mental Health (Care and Treatment) (Scotland) Act 2003. Volume 2 of the Code of Practice for this Act provides further guidance on the application of the impaired decision making test and the distinction between impaired decision making ability and incapacity:
One difference between incapacity and significantly impaired decision-making ability arguably is that the latter is primarily a disorder of the mind in which a decision is made, resulting in the decision being made on the basis of reasoning coloured by a mental disorder. Incapacity, by contrast, broadly involves a disorder of brain and cognition, which implies actual impairments or deficits which prevent or disrupt the decision-making process.
It is important to emphasise that the criterion listed at paragraph 19 above with respect to a significant impairment of decision-making ability means a significant impairment with respect to decisions about the provision of medical treatment for mental disorder."
Extract from the Mental Health (Care and Treatment) (Scotland) Act 2003 Code of Practice Volume 2 - Civil Compulsory Powers (Parts 5, 6, 7 & 20), Scottish Executive, September 21, 2005.
12. The Government opposes this amendment. They believe that it will exclude from the provisions of the Act people who need treatment. They have stated, "If it cannot be shown that a patient's judgement is impaired, they cannot be detained - regardless of how much the person needs treatment and however much they, and others, are at risk without it".
13. We do not share the Government's concerns that people who pose a risk to themselves or others could be excluded from the provisions of the Act because of this amendment. In determining whether a person is able to make a decision about medical treatment for their mental disorder, doctors would need to follow a process which assesses whether:
a. the person is able to understand that they have a mental disorder, what treatment is proposed and why the doctor believes it is necessary
b. they can retain and weigh up this information and make a reasoned decision whether to accept or refuse the treatment
c. their understanding or reasoning is distorted or impaired by their mental disorder.
14. We envisage that following this process would lead, in practice, to the conclusion that although a person who is suicidal or poses a risk to others may still have some capacity to make decisions, their ability to make decisions about medical treatment for their mental disorder is impaired and they are, therefore, able to be detained under the Mental Health Act, provided the other conditions under the Act are met.
15. The GMC supports the House of Lords amendment to reinstate a treatability requirement into the 1983 Act. It provides that a person should only be detained if treatment is available which is 'likely to alleviate or prevent a deterioration of his or her condition'.
16. The Mental Health Bill, as introduced in the House of Lords in November 2006, removed the 'treatability' requirement from the Mental Health Act 1983, replacing it with a requirement that 'appropriate' treatment was 'available' for the person. In our view, this fell short of the treatment having to provide any discernable benefit for the patient. This was compounded by the vagueness of the terms used in the Bill and the Draft Illustrative Code of Practice, including 'appropriate treatment' and taking into account 'all the other circumstances of his case'.
17. We are concerned that if the House of Lords amendment is overturned, doctors may be required to become involved in the detention of people who: are seen to pose a risk to others; have not been convicted of a serious offence; and for whom no treatment is available which would provide a therapeutic benefit. This would represent a fundamental change in the role of doctors and would be in conflict with their professional obligations, for example the duty to make the care of patients their first concern and the responsibility to provide treatment and care based on clinical need and the likely effectiveness of the treatment.
18. We support the Mental Health Alliance's view that the reintroduction of a treatability requirement, as proposed by the House of Lords, is a balanced amendment. It achieves the Government's intention - of ensuring that the small group of people with dangerous personality disorder who refuse to comply with treatment are not excluded from the scope of the legislation because they claim to be untreatable - without broadening the powers of compulsion to permit preventative detention.
Renewal of detention
19. The decision to renew a person's detention under the Mental Health Act (or to place them on a Community Treatment Order) requires a decision to made as to whether a person continues to meet all of the conditions for detention, including that their mental disorder is of a nature or degree that requires treatment in hospital and that they are a risk to themselves or others.
20. This is a decision that can have significant consequences for the person detained and it is important that there is a robust system for ensuring that these decisions are carefully considered and involve people who are best placed and with the necessary qualifications and skills to assess whether the necessary conditions are met.
21. The Government's proposal was for the decision to renew detention to be taken by the person's Responsible Clinician with a requirement to consult with a registered medical practitioner (if the Responsible Clinician was not one). We were concerned that the duty to consult included in the Bill was too vague and did not include any mechanism to resolve disagreements between the responsible clinician and those who they were required to consult. This could place 'consulted' doctors in the difficult position of being involved in the continued detention of a person who they do not believe meets the criteria for detention.
22. The GMC welcomes the House of Lords amendment to require a registered medical practitioner to examine a patient and agree before the patient's detention can renewed or they can be placed on a Community Treatment Order. This has the effect of ensuring that decisions about renewal of detention (or commencement of Community Treatment Orders) receive a similar degree of consideration as the original order for detention.
23. This amendment also provides an additional safeguard for people detained under the Act. We believe this provision could be extended to the situation where the Responsible Clinician is also a registered medical practitioner by requiring agreement in these circumstances with another registered medical practitioner who is an Approved Clinician.