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Memorandum submitted by the British Psychological Society (MH 6)
The British Psychological Society
The British Psychological Society is the learned and professional body, incorporated by Royal Charter, for psychologists in the United Kingdom. The Society has a total membership of over 40,000 and is a registered charity. The key Charter object of the Society is "to promote the advancement and diffusion of the knowledge of psychology pure and applied and especially to promote the efficiency and usefulness of members by setting up a high standard of professional education and knowledge". The Society is authorised under its Royal Charter to maintain the Register of Chartered Psychologists. It has a code of conduct and investigatory and disciplinary systems in place to consider complaints of professional misconduct relating to its members. The Society is an examining body granting certificates and diplomas in specialist areas of professional applied psychology. It also has in place quality assurance programmes for accrediting both undergraduate and postgraduate university degree courses.
Executive summary
The British Psychological Society is a member of the Mental Health Alliance and we generally support the Alliance's calls for the House of Commons to support amendments made to the Bill in the Lords. In this briefing we wish to submit evidence to support:
1. The need to maintain the amendment which allows compulsory treatment only if the person's judgement is impaired by mental disorder. 2. The need to maintain the amendment which only allows treatment to be given compulsorily if it provides some therapeutic benefit to the patient. 3. The need to set much narrower criteria for the use of Supervised Community Treatment. 4. The need to include principles on the face of the Bill, in particular: for treatment to be the least restrictive alternative; and for the law to be applied in a non-discriminatory manner, with respect for diversity. 5. The need to maintain the amendment relating to exclusions.
However, we also note one amendment (relating to the renewal of treatment orders) which we think is problematic and needs to be reviewed. We therefore submit that:
6. The role of 'approved' (or 'responsible') clinician should be defined in a way that ensures full compliance with the European Convention on Human Rights, but is not limited to members of the medical profession alone. We believe the Government's original proposals in this respect were well-judged.
Finally, we discuss three other issues which we would like to see addressed:
a) The need for further safeguards for children and young people. b) The need for further safeguards in relation to consent for treatments, especially ECT. c) The need to further strengthen advance decisions and statements.
In general we support the Alliance's submissions, and here we wish to draw attention to some in particular which we feel we could helpfully comment on.
1. An 'impaired judgement' criterion
Rationale for the amendment: To restrict compulsory treatment to those who are not able, at that moment, to make a decision about consent to healthcare. To achieve this, the Bill should include a clause noting that 'because of his mental disorder, his ability to make decisions about the provision of medical treatment is significantly impaired' as in the Scottish Mental Health Act. Government's argument against: That the use of detention will no longer be determined by patients' needs but by an impairment in the patient's capacity to make decisions about treatment. If it cannot be shown to be impaired, then detention will be forbidden - however much the patient needs treatment and however much they or other people will be at risk without it. The case for the amendment: Over-riding the valid decision of another person, detaining them against their will and giving them treatment against their will (treatment which often has unpleasant side effects and other risks) requires very strong justification.
We have consistently agreed with the proposal for a broad definition of mental disorder provided this is accompanied by stringent criteria for its use. In our view the notion of impaired decision-making is one of the most important criteria.
The Human Rights Act states that "No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law", with an exception for "persons of unsound mind". The British Psychological Society believes that someone can only be considered 'of unsound mind' if they are either unable to make decisions (as defined in the Mental Capacity Act, 2003) or if a person's mental disorder is of a nature or kind to make the person significantly impaired in their ability to make relevant decisions for themselves.
To be 'of unsound mind' does not simply mean having a mental disorder (1 in 7 of the population - or about 100 Members of Parliament - would meet this criterion). Indeed, one of the problems with mental health legislation is the danger of 'diagnostic over-shadowing' where, simply because someone has a mental disorder, their decisions and actions are automatically viewed as symptomatic of the disorder rather than valid in their own right. That is why it is necessary to add this further criterion. As well as enhancing compatibility with the Scottish Mental Health Act (we see no reason why patient autonomy should only be safeguarded in Scotland), and equating mental health care to physical health care, the amendment would also make the links between the Mental Capacity Act (where people cannot make decisions for themselves) and the Mental Health Act (where, with this amendment, people would receive care if they were impaired in their decision-making through mental disorder) more obvious.
In our view, if a person retains the ability to make an unimpaired decision about their healthcare then they should be free to make whatever decision they wish. A judgement of risk to themselves should not over-ride this - in the same way that we do not over-ride the decisions of other patients who might refuse treatment (e.g. for terminal cancer). This amendment would not "expand the right to suicide" or give people a right to harm others. If a person is impaired in their decision-making ability as a result of mental disorder, the Bill, with this amendment, makes it clear that compulsion is valid. What this amendment does is to define the Human Rights Act (1998) condition of 'of unsound mind' appropriately. People do occasionally decide to end their lives. In the vast majority of cases this occurs because their decision-making processes are impaired by mental disorder. The law would appropriately address this issue. We do know, however, that some people in extreme circumstances (such as terminal illness) make decisions not to receive treatment or even to end their lives in the absence of such impairment. Such decisions are, although sad, perfectly lawful. We recognise that this approach may mean that a very small number of people believed to be at risk of self-harm or suicide would be permitted to refuse treatment if their decision-making was not considered to be significantly impaired. But we believe that there will be very few such cases and there will be many more cases where a person will avoid grossly inappropriate violations of their autonomy. As healthcare professionals, we are naturally distressed when we hear of those very few patients who appear unimpaired in their decision-making but who threaten or commit suicide. However, we believe that these issues can best be addressed through the provision of widely available and appropriate consensual services. Indeed, it is important to stress that the Mental Health Act does not, in itself, prevent suicide as it is - as the government's own National Suicide Prevention Strategy notes, 'around 5000 people take their own lives in England every year. In the last 20 years or so, suicide rates have fallen in older men and women, but risen in young men'[1] . This high number of suicides (and a rise in suicide amongst young men) has occurred despite a 71% increase in compulsory admissions to psychiatric hospitals over the last 17 years. Moreover only about one quarter of people killing themselves have had contact with mental health services in the year before their suicide[2].
We think that mental health legislation should be focused primarily on health and not issues of public safety which are more appropriately addressed via other mechanisms (e.g. criminal justice legislation). Where the risk is primarily to others (i.e. an issue of public safety) then we think that this is best addressed through currently available (or new) criminal justice legislation rather than mental health legislation. Indeed, powers to constrain people convicted of homicide, rape, serious physical assault and child sexual abuse are already available in the current criminal justice system. If the government feels these are under-used, they should address this directly, rather than through the avenue of mental health law.
The real problem arises from the government's wish to use mental health legislation to detain people, on the basis of a prediction that they may commit an offence in the future but where they have not previously been convicted of such an offence. The only way the government can do this currently is through mental health law because the Human Rights Act allows the detention of people of 'unsound mind'. However, research continues to show that mental health professionals' predictions of future risk are very uncertain, particularly when attempting to predict things which happen, statistically, relatively rarely (e.g. a homicide committed by a person with no previous history of this or a homicide committed by a person with psychosis). A number of commentators have noted the inherent inaccuracy of most risk assessments when judging very rare events - George Szmukler has calculated that the average risk assessment instrument for predicting homicide risk will be wrong 92 times out of 100[3]. Such inaccuracy is clearly a concern when deprivation of liberty and compulsory treatment are concerned.
If the person is considered a risk to others but has not committed an offence and their judgement about treatment decisions is not impaired by their mental health problems then our view is that new criminal justice legislation is preferable to address this. To use Mental Health legislation to address this issue is both inherently discriminatory and will mean that people who are as much at risk of committing violence but who do not have a mental health problem are not targeted.
There is a need for perspective about risk. For example, whilst homicides have been rising nationally, perhaps 11% are due to mental disorder and the percentage has steadily fallen over the last fifty years[4]. Moreover, only a small proportion of these cases were 'stranger homicides' where the victims were unknown to the assailant[5]. We know that a diagnosis of major mental illness is far less predictive of violence than being "young, male, single, lower class, and substance abusing or substance dependent'[6]. So, of the 858 deaths in the UK initially recorded as homicides in 2001-2002[7], perhaps 94 were related to mental disorder, but this still leaves 764 homicides that might have been just as preventable but did not involve anyone with a mental disorder.
Far from being a significant risk to others, the risk often lies in the other direction: people with mental health problems are six times more likely to die by homicide than the general population and are also at a raised risk of dying as a result of suicide and accident[8]. The focus on risk of homicide has much to do with negative media coverage which has been well-documented for many years[9]. These portrayals have consequences for users of mental health services with half the respondents of one survey reporting that their mental health had been negatively affected and a third saying others had reacted negatively towards them as a result of such reports[10].
The British Psychological Society's Code of Ethics and Conduct requires psychologists to respect people's rights to self-determination. If legislation required health professionals to over-ride the valid choice of a person with capacity (i.e. whose judgement was unimpaired) this would create an ethical conflict for our profession. What this amendment therefore does is to clarify the difference between autonomous decisions - where the normal laws, both civil and criminal, apply - and decisions impaired by mental disorder. This distinction does not extend a right to suicide, but it does clarify the limits of that right. It does not confer a right to place others at risk, but it clarifies when mental health legislation as opposed to the criminal law should apply.
2. A 'therapeutic benefit' criterion
Rationale for the amendment: That proposed treatment should not only be appropriate and available but also likely to be of therapeutic benefit to the service user. This would, for example, prevent indefinite detention alone being seen as an appropriate treatment.
Government's argument against: The government argues that this, in effect, introduces a new treatability test with exactly the same effect. They say it will mean those patients with personality disorders currently being denied services will continue to be turned away.
The case for the amendment: We consider that the criteria of appropriateness and availability, whilst necessary, are not sufficient. These criteria would not prevent, for example, the indefinite detention of someone with a diagnosis of personality disorder since it could be argued that detention, by itself, could be considered an appropriate and available treatment even though the patient might not improve and might even well deteriorate. There is a good deal of evidence that indefinite detention has deleterious mental health consequences. We can think of no other situation where patients are not only to be forced to accept treatment against their will but forced to accept treatment which might not help them and might even make their problems worse. We do not think that safeguarding the rights of patients to receive treatment which will benefit them is unreasonable or should be considered a 'loophole'.
We would agree that, historically, people with a diagnosis of personality disorder have been poorly served by consensual mental health services[11]. However, that has begun to change with the efficacy of psychological formulations and interventions being more widely recognised[12].
However, we are less convinced that the key problem in accessing services has been a problem with the legal framework. Many people with this diagnosis are successfully treated without the use of mental health law and so changes in the law will not affect them. In our view, the problem has been that, in the past, many services inappropriately used the notion of 'treatability' as an excuse not to offer useful and consensual interventions to people with a diagnosis of personality disorder - something that is now thankfully changing with increased investment in personality disorder services.
There is a need to update the definition of treatability in the 1983 Act since many psychological approaches might not meet the Act's definition of 'treatment'. However, there is still a need to have a test of therapeutic benefit -- while psychological approaches do not 'treat', they are intended to alleviate or prevent a deterioration of many mental health problems.
3. Supervised Community Treatment
Rationale for the amendment: We agree with our Alliance colleagues that the Government needs to put clear limits on who can be given a community treatment order. Only the small number of people who would benefit from such an order should have their freedom restricted in this way. This amendment thus inserted a new set of narrow criteria for a patient's entry onto a Supervised Community Treatment (SCT) order in order to limit their use to those who people who can be described as 'revolving door patients' as has been the stated intention of the Government previously. We agree with three out of four of these criteria. The fourth (that a medical practitioner opinion be sought if the responsible clinician is not a doctor) is one that we think needs to be further amended - see our comments in the section headed 'renewals' (p.11). The three criteria we support are: · that a person cannot be placed on a CTO if they have full decision making capacity; · that an assessment of the nature and degree of the mental disorder and the likelihood of compliance with medication, together with the risk of the patient relapsing, must take place; and · the retention of supervised discharge as a less coercive means of keeping a patient who has been discharged under supervision.
In addition we are calling to change the criterion (introduced as an amendment by the House of Lords) that a medical practitioner's opinion be sought if the responsible clinician is not a doctor to instead require the agreement of two approved clinicians (we explain this in more detail in the section headed 'renewal of orders', below). Government's argument against: The government argue that the introduction of these criteria will mean that far fewer patients will benefit from SCT and they argue that this will mean that patients will either have to stay longer in hospital, or be discharged without proper supervision. The case for the amendment: It is widely accepted that compulsory psychiatric treatment should only be used as a last resort, when other less restrictive and more consensual approaches have been tried. However, we know that it is far from being used as a last resort: there were a total of 47,400 compulsory detentions in England in 2005-2006 - 27,400 formally admitted under a section of the Act and a further 20,000 who were admitted voluntarily but who are later detained[13]. We also know that the increased use of compulsory treatment is subject to concerns about risk and by fear which encourage mental health professionals to engage in defensive practice[14]. In fact there has been a massive rise in compulsory treatment over the last two decades. In the years 1988-1989 there were 16,000 initial formal admissions to psychiatric hospital under the Mental Health Act[15]. By 2005-2006 this figure had risen to 27,400 - a rise of 71%.
The Mental Health Act Commission report that this increase has been driven by a number of factors including:
The promotion of risk-management by mental health policy makers, the criticisms of post-incident inquiries or even generally less permissive societal attitudes may account for some of the rise. These factors may encourage medical and social care professionals to use the Act more readily, either through lowering the perceived thresholds for such use or through fostering defensive professional practice.[16]
Moreover, increases in the numbers subject to compulsory treatment, coupled with staff vacancies have led to difficulties in administering the Mental Health Act Review Tribunals, many of which are currently cancelled or postponed.
The government has committed itself to reducing the number of people subject to compulsory treatment. However, the broad definition of mental disorder, without impaired decision-making as a criterion together with SCT runs the risk that numbers will increase. The reason for this is that an increasing number of inpatient beds have been occupied by those treated compulsorily[17] and some have argued that the total number of beds available acts as an informal upper limit on the numbers of people who can be 'sectioned' at any one time. The introduction of SCT means that, since compulsory treatment would no longer rely on a person being an in-patient (and therefore on the number of beds available), this move could fuel a continued increase in the number of people being treated compulsorily. For example, the Kings Fund have estimated that, over time, it is likely that several thousand people will be in receipt of Supervised Community Treatment rather than the government's estimate of about 1,450[18]. Thus, if it is to be used, SCT should apply only to a small delimited group of service users otherwise it is likely that the Government will not achieve the decrease in the use of compulsory treatment it has said it wants.
The criteria added by the House of Lords would limit the use of SCT to 'revolving door' patients. Although the government have stated that this was their intention for SCT the original criteria did not ensure that - the new criteria added by the Lords would.
We remain concerned about the poor evidence base for SCT. We think that such a radical change in compulsory treatment with potentially invasive effects on the lives of people with mental health problems should be warranted by rigorous research. Unfortunately, as the recent Department of Health-funded review found, the evidence base for SCT is quite weak, with a number of methodological problems, and there is a lack of support for many of the assumptions driving government policy on SCT (i.e. that it will reduce hospital stays, that it will increase compliance with treatment etc)[19]. As a result, we think that a much more cautious approach to SCT is necessary. SCT orders have the potential to permit both inappropriate interference in a person's life (because they extend into the community) and also a genuine 'least restrictive alternative' (because they do not mean that a person subject to compulsion has no alternative to residential hospital care). In order to address this potential paradox, the safeguards introduced by the Lords are beneficial. In addition, in order to ensure this, the criteria must be the same as for residential orders (as they are at present), so that they do not require a lower level of necessary conditions, and are rather an alternative once these conditions are met. In these circumstances, SCT may offer a legitimate set of 'least restrictive alternatives'. The new Supervised Community Treatment orders place unprecedented controls on service users. They will require them to: make themselves available to professionals; reside in a certain place and not engage in specific activities. If these conditions are not met, service users can be recalled back to hospital. We think that, in particular, the requirement to abstain from certain conduct is an unwarranted invasion into the private lives of mental health service users and is potentially discriminatory - we support calls for this requirement to be removed. In addition, we agree with our Alliance colleagues that the Bill should be amended to allow a patient to appeal to the Mental Health Review Tribunal against any of the conditions imposed on them. 4. The principles on the face of the Bill including the principle of 'minimum restriction'
Rationale for an amendment: It is important that the legislation includes a set of principles (currently listed in the Code of Practice) on the face of the Bill. This raises their legal status and ensures that they will be given sufficient consideration by professionals. It is particularly important that the principle that clinicians must pursue the least restrictive alternative is incorporated into legislation.
Government's argument against: There are inherent tensions in the aims of mental health legislation to safeguard patient autonomy, least restriction and public safety and so including principles in the Bill would cause confusion. Instead the government has proposed including certain principles in the Code of Practice.
The case for the amendment: Mental health legislation has always involved balancing conflicting principles (e.g. balancing the rights of service users against concerns about their welfare). Indeed, much current law (e.g. the Human Rights Act) requires potentially conflicting principles to be balanced against each other - something which the Courts are very experienced in. As a result we do not see why including principles on the face of the Bill as the Lords amendment does, creates a unique set of problems. The government's proposal to include principles in the Code of Practice does not fully address the concern of professionals who seek clear guidance since it is an inevitably weaker safeguard than if they were included in the Bill.
As a professional society we do not want our members - who may undertake a variety of roles under new legislation -- to act in ways which might be ethically or professionally compromised. The Bill is, in its nature, an enabling legislative tool, empowering professionals with sweeping powers. In addition to the legal processes and procedures of the Bill, it is reasonable for there to be principles to counter-balance these powers.
In addition, we agree with our Alliance colleague's call for a principle of non-discrimination and respect for diversity to be included on the face of the Bill. Currently, there is an in-built discrimination in who is treated compulsorily: young people, black people and other minority ethnic groups[20] and people living in London[21] are far more likely to be detained.
5. Safeguarding 'exclusions' related to the definition of mental disorder
Rationale for the amendment: Specifying exclusions in the legislation will prevent people being detained and treated compulsorily primarily because of their substance misuse, sexual behaviour, criminal acts and religious, cultural or political beliefs. Government's argument against: That these exclusions will open up new avenues for patients and their lawyers to use to try to secure premature discharge for some of the most dangerous patients. The case for the amendment: Mental health legislation inevitably involves the interpretation of somewhat broad criteria and there is a concern that extraneous factors will influence the decisions of clinicians. There were exclusions specified in the 1983 Act and this simply continues this established principle. There has been a long history of compulsory psychiatric treatment being used against those who breach social and political conventions. The fact that the 1983 Act excluded certain categories of people has meant that this has been less of a concern in the UK. However, we should not be complacent about the possibility that this might happen were there to be no exclusions.
This amendment would only serve to exclude people whose mental disorders were solely expressed in terms of the issues listed. It would not mean that people engaging in these behaviours or having such beliefs were immune from compulsion, should they otherwise meet the relevant criteria.
6. An amendment we see as problematic: The renewal of orders
The House of Lords voted in one amendment which we would argue needs to be revised. This amendment requires a medical practitioner to examine the patient and agree to the detention before a renewal of detention can occur. We think this amendment is wholly inappropriate and is also based on a misunderstanding of human rights law relating to mental disorder.
The British Psychological Society considers that the proposed amendments in this regard undermine the professional ability of nurses, psychologists and other members of the multidisciplinary teams in mental health services to carry out clinical assessments and duties which are clearly within their competence. We recognise and welcome the requirement to consult other professionals concerned with the patient's care. Such a requirement already exists in the Mental Health Act 1983. However, the differentiation between classes or types of mental health professionals explicit in the proposed additional amendment is unjustified.
Psychologists, nurses, psychiatrists, occupational therapists and social workers all have clear roles to play in the care of mental health patients. Patients repeatedly demand both multidisciplinary care and psychological alternatives to medical approaches in mental healthcare. Working as part of a multi-disciplinary team, we would expect professionals to consult with each other on the most appropriate course of treatment.
The Draft Approved Clinician's Directions (published by the Government to accompany the Bill) make it clear that to be recognised as an "approved clinician" one must be competent to provide the objective medical expertise which would satisfy the European Court of Human Rights as to the legality and appropriateness of compulsory powers. We strongly recommend that an amendment to the Mental Health Act 1983 requiring a responsible clinician to consult with another approved clinician should be appropriate.
While the Society supports the intention to offer stronger protections for patients who may be deprived of their liberty under the proposed new regime, we believe that these amendments as worded overlook the reality of the treatment and management of some client groups by healthcare professionals other than registered medical practitioners. The Society has been in discussions with UNISON, the Royal College of Nursing and the College of Occupational Therapists all of whom share our concerns about the Bill as currently drafted.
We believe that the concerns in respect to this issue are misplaced, fail to appreciate the details of the Regulations and procedures associated with the approved clinician role and misunderstand the Human Rights Act implications of the Bill.
In preparation for the Bill, the Department of Health established a comprehensive and extensive procedure for developing the competencies of the approved clinician (and the approved mental health professional). The consultation process included all professional bodies, including the Royal College of Psychiatrists as well as representatives of mental health service users. The procedures and the list of competencies included in the draft Regulations were unanimously 'signed up to' as appropriate. These procedures include specific training and quality control mechanisms overseen by the statutory regulatory bodies. These competencies were specifically developed in order to meet the stringent tests of the European Convention on Human Rights and the Human Rights Act 1998.
The Human Rights Act 1998 requires a professional to have 'objective medical expertise' (c.f. the Winterwerp case) but does not specifically say this can only be given by a doctor. In fact, the main case cited in support of the argument that a doctor is required (Varbanov v. Bulgaria) did not specifically rule on this - instead it ruled on whether a prosecutor's or police officer's (as opposed to a psychiatrist's) examination was enough to warrant detention. It did not set out to rule on the competencies different mental health professionals might have.
The British Psychological Society commissioned the leading Counsel Richard Gordon QC to investigate the extent to which the Bill as originally introduced was compatible with the Human Rights Act. His clear advice was that the Mental Health Bill 2006 was compliant with the European Court of Human Rights requirements as originally drafted when you take into account the associated Regulations (requiring certain competencies of approved clinicians) were taken into account. "Objective medical expertise" is a test of substance (i.e. competency) rather than form (i.e. professional qualification) [see Appendix A].
As a result, we agree that any decision to renew a detention should be based on 'objective medical expertise' but, we agree with the Government that the draft regulations are sufficient to ensure that all approved clinicians and responsible clinicians have such competence. Therefore, we think that for detention to be renewed it should need the agreement of two approved clinicians (the responsible clinician and one other approved clinician) but we do not think one of these must always be a doctor.
We therefore agree with the Government's contention that its proposals for 'approved clinicians' are appropriate. As noted above, we believe that two ECHR-compliant experts should approved material changes to compulsion, and we therefore believe that this amendment should be replaced with a clause requiring the agreement of two approved clinicians, without mention of professional qualification.
Other issues
a) Children and young people
In common with our Alliance colleagues, we welcome the House of Lords amendments to the Bill which would place health authorities under a duty to admit children to an age appropriate setting and to provide specialist assessment and supervision for detained children. We also welcome the Government's amendment to the Bill to allow 16 and 17-year-olds to override the wishes of their parents if they want to refuse treatment - although we would like to see this extended to 'Gillick competent' children under 16.
b) Consent to treatment
We welcome the Government's amendment to the Bill which will ensure that patients with capacity cannot be forcibly given ECT and those who lack capacity could not have ECT administered to them in the face of a valid advance decision, or decision by the Court of Protection. However we do not agree such a refusal should be overridden in cases of 'emergency'. We agree with our Alliance colleagues that the period of drug treatment before which a second opinion is required should be reduced from three months to 28 days, requiring clinicians to have regard to the patient's views and provide written reasons for refusing a requested treatment.
We think that, in order to be used compulsorily, only treatments meeting the following criteria should be allowed: that there is clear and widely accepted evidence of efficacy; that they have proven effectiveness in terms of the purpose for which the treatment is being applied; and that they offer both the least harm and most benefit to the individual There is, despite confident assertions to the contrary, no hard evidence that ECT prevents death or suicide. The paper often quoted in support of this view in fact states '[i]n the present study, treatment was not shown to affect the suicide rate'[22]. Various other review articles have also failed to find any reduction in suicide rates[23]. One of most rigorous studies (comparing 'sham' with real ECT) is relevant to the situation where patients are refusing food. While they did find, as noted above, that very severely depressed patients had some short-term benefits from ECT[24]. However, in an earlier version of the trials, they concluded that 'many depressive illnesses, even if severe, may have a favourable outcome with intensive nursing and medical care even if physical treatments are not given'[25]. As result it is reasonable to use alternatives to ECT even for the small number of people, including those who are suicidal or are refusing food, who may show short-term benefits from it. This can also be seen as a preferable option. This is because in any medical treatment the benefits must be weighed against the risks. In the case of ECT this means not only asking 'does it help?' but also 'can it do harm?'
The consensus view from a range of studies does appear to demonstrate a range of cognitive problems following ECT administration[26]. It is also worth noting that several studies have found increased mortality rates in ECT patients[27]. One study found significantly reduced survival rates in elderly ECT recipients at 1, 2 and 3 years later[28]. While the precise reasons for this are unclear, it seems that any short-term benefit may be bought at the expense of higher long-term risk of death from various causes. It is sometimes forgotten that ECT inevitably carries some risk of mortality if only because of the use of a general anaesthetic. In Texas, which keeps a record of all deaths that occur within 14 days of ECT, the mortality figures for the elderly (elderly women are the most likely to be given ECT[29]) are an alarming 1 in 200, mostly due to cardiac problems[30]. Finally there is evidence of emotional and psychological harm caused by ECT[31]. There is very wide variation in the use of ECT in the UK with some doctors prescribing it a lot whilst other doctors hardly, if ever, prescribe it[32]. This suggests that some services cope quite effectively without it. There is also wide international variation in its use suggesting the same thing (ECT is rarely used in Canada, Germany, Japan, China, the Netherlands and Austria). Italy has recently outlawed the use of ECT on non-consenting patients. We are not aware that these countries have particularly raised levels of psychiatric mortality as a result.
There is now consistent evidence that two thirds of units giving ECT do not meet the basic quality standards of the Royal College of Psychiatrists and that there has only been a slight improvement since 1991[33]. ECT is most often given by junior doctors who are inexperienced in the use of ECT - for example a third have not been supervised by an experienced psychiatrist on the first occasion they administered ECT and 45% lack knowledge about one or more basic issue related to the effective administration of ECT[34].
We are concerned about continuing to allow ECT to be given to under-18s. There are no well-controlled studies and there are clinical, moral, legal, philosophical and ethical grounds for objections. There is a low level of reporting on the use of ECT with this client group - one review could only find published studies on 217 cases world-wide over a 49 year period between 1947-1996[35]. Given the claims that ECT is used with children as a treatment of 'last resort' after other treatments have failed and as a life-saving measure, this review specifically looked at the evidence for these assertions. They reported that 'although many children and adolescents had been given pharmacological therapies ... few had received other psychotherapeutic approaches. None had received a range of alternative treatments' (p.460). They also report that 'in only 11/217 (5%) instances was suicide mentioned in the case presentations, and on only three occasions had suicide been attempted. From this analysis the justification of ECT as a 'life-saver' is disconfirmed' (p.461). Worryingly, they note that consent was only mentioned in eight out of 217 cases.
As a result we would agree with our Alliance colleagues that valid consent should not be over-ridden even in cases seen as 'emergencies' or as 'life saving'. However, we would go further and call for ECT to never be used without valid consent, or, in the case of those lacking mental capacity, without an order from the Court of Protection.
c) Advance decisions and advance statements
In common with our Alliance colleagues, we also believe that the Bill should give patients more say in other aspects of their medical treatment - they should have their wishes respected unless there is good reason to override them. This would also make the Bill consistent with the Mental Capacity Act in respect of advance decisions and for advance statements when determining someone's best interests. We believe that to ensure equity and parity in both legal and practical terms, advance decisions and advance statements must be included in the Mental Health Act. Indeed, there is some evidence that advance statements may reduce the need for compulsory treatment in the first place[36].
APPENDIX A
British Psychological Society Opinion by Richard Gordon QC
Pt 1 - INTRODUCTION
1. I am instructed on behalf of the British Psychological Society ('BPS') in relation to amendments made by the House of Lords to the Mental Health Bill 2006 ('MHB'). This Opinion follows a Consultation held on April 4th 2007. I agreed to provide a written Opinion expeditiously. This Opinion is, necessarily, shorter than I would have wished because of the urgency with which it is required.
2. In summary, I am asked to address the following questions: (i) Whether MHB, as originally introduced to the House of Lords on November 16th 2006 ('the first stage') complied with the European Convention on Human Rights ('ECHR'). (ii) Whether the analysis of the Joint Committee on Human Rights ('JCHR') to the effect that MHB was not compatible with the ECHR at the first stage is correct. (iii) Whether all the amendments to MHB made by the House of Lords ('the second stage') are necessary in order for MHB to comply with the EC HR.
3. The remainder of this Opinion is structured as follows. Pt 2 outlines MHB as introduced to the House of Lords at the first stage. Pt 3 analyses the response of the JCHR. Pt 4 provides a summary of the nature of the amendments made to MHB at the second stage. Pts 5-7 address the three questions posed in my instructions. Finally, Pt 8 sets out my main Conclusions.
Pt 2 - MHB AT THE FIRST STAGE[37]
4. MHB at the first stage was concerned to introduce a range of medical expertise driven by competency requirements rather than professional qualifications. To that end, the Responsible Medical Officer ('RMO') was proposed to be replaced by a new statutory construct, the Responsible Clinician ('RC') which - in turn - bore a relationship with another statutory creation, the Approved Clinician ('AC').
5. The RMO (as defined in s. 34 of the Mental Health Act 1983) is 'the registered medical practitioner in charge of the treatment of the patient.' The position is, invariably, held by a consultant psychiatrist.
6. Under MHB the RC replaces the RMO. It means (materially) 'the approved clinician with overall responsibility for the patient's treatment' (see clause 8(10)(a)). This takes one to clause 13(5) which defines AC by reference to a person approved by the Secretary of State. The (draft) Approved Clinician Directions ('Approvals') envisaged in clause 13(5) include (see Schedule 1) persons without professional medical qualifications (though they also include a registered medical practitioner).
7. Crucially, too, the draft Approvals define the term 'relevant competencies' without which approval will not be given (see Schedule 2). Those competencies reflect a comprehensive knowledge of mental disorder and its evaluation and treatment.
8. The effect of MHB at the first stage was that a person other than a registered medical practitioner but who had demonstrated a relevant competence and, hence, been approved by the Secretary of State, would possess important statutory powers under MHB (as, eg, renewal of detention: see Pt 3 below).
Pt 3 - THE JCHR RESPONSE TO MHB AT THE FIRST STAGE 9. The preliminary legal advice (see JCHR 4th Report) was that there were significant human rights issues engaged in MHB at the first stage.
10. The JCHR was particularly concerned that while initial detention under MHB would still be based on objective medical expertise (see Winterwerp v. TheNetherlands (1979) 2 EHRR 387), renewal of detention would be by the RC, who need not be a doctor, reporting to the Managers of the Hospital that the conditions justifying detention continued to be met (see Report at paragraph 21).
11. It is, perhaps, unfortunate that the Government advanced a somewhat equivocal understanding of what was entailed in the notion of objective medical expertise. As recorded in paragraph 23 of the 4th Report, it said this: '[T]his [i.e. the Winterwerp reference] means relevant medical expertise,and not necessarily that of a registered medical practitioner. For example, a psychologist would have relevant skills in this context and be able to recognise that a person was suffering from a mental disorder and the knowledge to go to someone else with the appropriate expertise whenneeded.'
12. The JCHR did not agree with that understanding, and (see paragraph 26 of the 4th Report) by reference to the decision of the European Court of Human Rights in Varbanov v. Bulgaria (judgment October 5 2000, especially at paragraph 47) suggested that Strasbourg always contemplated that a medical assessment, in the context of the presence or absence of mental disorder, would always be undertaken by a psychiatrist.
13. As explained below, I consider this to be a misreading of Verbanov and far too rigid a reading of the likely approach of the Strasbourg Court were the question of whether medical professional qualification - as opposed to a demonstration of medical competence - was a pre-requisite to objective medical expertise, was in issue before the Court.
14. I also note that the JCHR reasoning does not appear to address the relationship between MHB and the Approvals.
Pt 4 - AMENDMENTS TO MHB BY THE HOUSE OF LORDS
15. The effect of amendments to MHB made by the House of Lords at the second stage would require the endorsement of a registered medical practitioner (i.e. a qualified doctor) to relevant decisions made by an RC who was not a registered medical practitioner (see clause 32 resulting in revisions to clauses 17A and 17F of MHB).
Pt 5 - QUESTION 1: DID MHB AT STAGE ONE COMPLY WITH THE ECHR?
16. In my view, MHB at the first stage was ECHR-compliant. Importantly, one should not - from a Convention perspective - look at MHB in isolation from the Approvals.
17. As explained above, the (draft) Approvals - at least in their current form - require a relevant competence. The competence required by the Approvals is extremely comprehensive. It includes (for example) the ability in the context of assessment to[38]: · identify the presence or absence of mental disorder and the severity of the disorder; · undertake a broad mental health assessment and formulations incorporating biological, psychological, cultural and social perspectives; · have a broad understanding of all mental health related treatments (i.e. physical, psychological and social interventions).
18. Of course, if either: (i) the Approvals were less comprehensively drafted or (ii) the State failed to implement the Approvals and approved persons who did not demonstrate the required competencies, there might be a Convention breach.
19. To say that, however, is very different from the proposition that MHB read with the Approvals fails to comply with the ECHR because it does not require specific medical professional qualifications.
20. In my view, the Strasbourg Court requires substance over form. Although the issue of whether a psychiatric medical qualification is required to constitute objective medical expertise has not arisen before the Court I do not consider it likely that Strasbourg would hold that national legislation that required the relevant competencies mandated by these Approvals would be other than Convention compatible.
Pt 6 - QUESTION 2: DO I AGREE WITH JCHR's ANALYSIS?
21. It follows that I do not agree with the JCHR's initial advice. The Varbanov decision on which much reliance has been placed appears to have involved the question of whether a prosecutor's or police examination would be sufficient authority for compulsory detention on the particular facts of that case. As I read the ruling the Strasbourg Court held (unsurprisingly) that it would not and contrasted it with an assessment by a psychiatrist.
22. However, nothing in that decision (or, therefore, in the JCHR's analysis) compels the conclusion that a mandatory State requirement to demonstrate the competencies required to be shown by Schedule 2 of the Approvals would amount to anything other than objective medical expertise.
23. As indicated earlier, the JCHR preliminary legal advice does not appear to grapple with these Approvals and, I consider, has assumed that which it would in any event be necessary to prove (and which seems to me to be unlikely), namely that Strasbourg would hold a detailed and mandatory competency requirement of the kind to be found in Schedule 2 of the Approvals to be less than Convention compliant.
Pt 7 - ARE THE AMENDMENTS TO MHB AT THE SECOND STAGE NECESSARY?
24. It follows from the above analysis that the House of Lords amendments are, in my view, unnecessary to ensure Convention compliance.
25. In Consultation I suggested a possible amendment which would incorporate an express competency requirement into MGB itself either by setting out a detailed scheme of competences currently to be found in the draft Approvals or else by requiring Approvals to contain a scheme of relevant competencies. Either of these amendments would make absolutely clear what is in any event implicit, namely that only suitably competent persons should be approved by the Secretary of State to exercise the relevant statutory functions in MHB.
Pt 8 - MAIN CONCLUSIONS
26. My main Conclusions are these: (i) MHB at the first stage was entirely Convention compliant. (ii) This is because MHB must be read in conjunction with the Approvals. (iii) Only highly competent persons would, under the legislative scheme, then envisaged be permitted to exercise relevant statutory functions under the MHB. I consider and advise that the competencies required to be demonstrated under Schedule 2 of the Approvals (and referred to in MHB) amount to objective medical expertise as required by the ECHR in respect of those functions[39]. (iv) I do not agree with the JCHR provisional view that a professional medical qualification is required or that Strasbourg has ever ruled to that effect. Properly analysed the case relied on by the JCHR is not authority for that proposition. (v) It follows that the House of Lords' amendments are and were unnecessary. I can, though, see the desirability of an amendment that incorporated the idea of required competences into the MHB itself.
27. I hope that this, necessarily skeletal expression of view, is helpful.
April 2007
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[36] Henderson, C., Flood, C., Leese, M., Thornicroft, G., Sutherby, K. & Szmukler, G. (2004). Effect of joint crisis plans on use of compulsory treatment in psychiatry: Single blind randomised controlled trial. British Medical Journal, 329, 136-138. [37] References to MHB in Pt 2 are references to MHB at the first stage.
[38] This list is far from exhaustive. There are (for example) also detailed leadership, multi disciplinary team working, treatment and care planning requirements. [39] I agree with the JCHR that such expertise is likely to be required for many of these functions. |