Memorandum submitted by Dr Philip Howard (MH 58)

 

BOURNEWOOD SAFEGUARDS" IN THE MENTAL HEALTH ACT 2005

 

I am Dr Philip Howard, a Consultant Physician at Epsom and St Helier University Hospitals NHS Trust and a Senior Lecturer in Medicine at St George's Hospital Medical School, London.

 

I have degrees in Physiological Sciences (Oxford), a doctorate in Medicine (London) and Masters Degrees in Bioethics (Surrey) and Law (Cardiff). I am a fellow of the Royal Colleges of Physicians of London and Edinburgh.

 

I am principle co-author of a widely used textbook of medical law: "Lecture Notes on Medical Law and Ethics. Blackwells Ltd. 2005.

 

 

Contents

 

1.1 Need for 'Bournewood safeguards'

 

1.2 Requirements for the lawful deprivation of the liberty for adult medical patients

 

1.2.1 Need for medical expertise

1.2.2 Assessment of incapacity and medical illness

1.2.3 Requirement for medical review of ongoing need for detention

1.2.4 Need to provide appropriate treatment and care.

 

1.3 Proposed amendments

 

1.3.1 First suggested amendment: Deprivation of liberty for care and medical treatment

1.3.2 Second suggested amendment

1.3.3 Third suggested amendment: Provision of ordinary nursing and personal care

 

1.4 General explanation for amendments

1.4.1 Need for a clear practical and legal distinction between mental incapacity arising form medical and psychiatric illness.

1.4.2 Deprivation of liberty for custodial care and medical treatment

1.4.3 Abuse of vulnerable adults

1.4.4 It is not in patients' best interests to withhold to withdraw ordinary nursing care and personal care

1.4.5 Conclusion

 

1.5 Legal basis for amendments

 

1.5.1 Explanatory note for amendment regarding

"Deprivation of liberty for care or treatment"

1.5.2 Explanatory note for amendment regarding

"Provision of ordinary nursing and personal care"

 

1.1 Need for "Bournewood safeguards"

 

The Mental Health Bill [HL] is an amending bill to two important Acts, namely the Mental Health Act (MHA) 1983 and the Mental Capacity Act (MCA) 2005. This briefing is confined to changes to the Mental Capacity Act 2005.

 

The Government has said that "it intends to close the 'Bournewood gap' by amending the Mental Capacity Act 2005. These proposals will strengthen the rights of hospital patients and those in Care Homes, as well as ensuring compliance with the European Convention on Human Rights (ECHR). The context for the Bournewood policy proposals is the government commitment in the White Paper Our Health, Our Care, Our Say that people with ongoing care needs, whether their needs arise in older age, or through illness and disability, should be cared for in ways that promote their independence, well-being and choice." The proposed Bournewood provisions will cover patients in hospitals, and people in Care Homes registered under the Care Standards Act 2000, whether placed under public or private arrangements.[1]

 

The Bournewood case (H.L v UK) involved a 44 year old man with severe mental impairment and autism. He was effectively deprived of his liberty following admission to Bournewood Hospital in Surrey after a bout of disturbed behaviour during an outing, when his guardians, Mrs and Mrs E, could not be contacted. Issues surrounding his detention were eventually decided in the European Court of Human Rights (ECHR) in October 2004. As a result the Government has recognised the need to provide safeguards within the Mental Capacity Act 2005 for the admission and treatment of mentally incapacitated adults who are non-compliant.

 

The European Court held that a 'non-compliant' patient is not merely one who has refused admission or treatment but includes the patient who has not expressed his views either way. There was no doubt that HL, as a result his severe mental impairment, was not in a position either to consent to or refuse admission. The evidence was that he had not expressed any opinion on the matter. The Court also decided that the distinction between restraint and detention was a matter of intensity and degree[2] [3]. Restraint was a limited and temporary form of detention. Whether a patient has been detained is a matter of fact and must be determined by the circumstances of the case. A patient may be detained even though there had been no question of actual coercion. If in response to the question, "would the patient have been detained had he tried to leave?" the answer is "yes" then he was effectively detained. There was no question that HL ever resisted his admission (his degree of mental impairment would have precluded this). He was in a lockable ward that was never in fact locked. The important point is that he would have been prevented from leaving Bournewood had he tried to leave. The ECHR also established that patients could not be deprived of their liberty under Common Law and that deprivation of liberty must only occur within a statutory framework[4]. It was held that such a legislative framework was provided by the Mental Health Act 1983. Furthermore, everyone who has been detained has a right for their case to be reviewed by a court[5].

 

Understandably, not all mentally incapacitated patients need to be 'sectioned' under the MHA 1983 for assessment and/or treatment. There is an understandable reluctance to stigmatise medical patients who are mentally incapacitated as suffering form mental illness. The Strasbourg judgment now requires that legislative safeguards for the admission and treatment of mentally incapacitated adult 'medical' patients are provided by amendments to the Mental Capacity Act 2005.

 

Amendments are suggested below to provide "Bournewood safeguards' for non-complaint medical patients who are admitted for treatment in a way that amounts to deprivation of liberty.

 

1.2 Requirements for the lawful deprivation of the liberty for adult medical patients

 

Detention is always a serious matter. However, it is not difficult to justify in ordinary clinical practice to protect the healthy and safety of a patient or when life is at risk. This is a common situation in a medical context.

The Government stated in relation to the Mental Capacity Bill that:

"We are undertaking further work in relation to [clause 6] and the use of force and restriction of liberty. Bearing in mind ECHR rights, the Government agrees that detention should be as short and least restrictive as possible. We want to capture that requirement in the Bill whilst allowing the care of people with particular needs to continue without undue restriction".[6]

1.2.1 Need for medical expertise

The Joint Committee on Human Rights has recently expressed the view that:

"Without express limitation on the face of the [Mental Health] Bill, the Committee is concerned that these provisions are likely to lead to deprivations of liberty which are not compatible with Article 5(1) ECHR, because they do not satisfy the long established requirements that deprivations of liberty be based on objective medical expertise and are necessary in the sense of being the least restrictive alternative. The Bill as drafted therefore does not appear to contain sufficient safeguards against arbitrary deprivation of liberty".[7]

The European Court of Human Rights has held that the deprivation of liberty of person of unsound mind will not be in accord with Article 5(1)(e) without the opinion of a medical practitioner. Without this medical expertise the deprivation of liberty would not provide the necessary protection against arbitrariness according to Article 5[8]. The only exceptions are in cases of emergency and when dealing with the arrest of a violent person when the opinion should be sought as soon as possible afterwards. Even in such cases the approach must be necessary in the circumstances in order to be lawful within the meaning of Article 5(1)(e) ECHR.[9]

1.2.2 Assessment of incapacity and medical illness

Mental incapacity ought to be assessed by a medical practitioner in relation to any medical treatment or admission to hospital or a Care Home. For hospital admissions this is likely to be a Consultant and for Care Homes a General Practitioner.

"As we have stated, in order for a non-emergency detention on grounds of unsoundness of mind to conform to the requirements of Article 5(1)(e) ECHR, there must be reliable evidence of a true mental disorder."[10]

The Joint Committee cites the case of Varbanov v Bulgaria[11] to show objective medical evidence and expertise is required for any detention on medical grounds:

"The Court considers that no deprivation of liberty of a person considered to be of unsound mind may be deemed in conformity with Article 5 1 (e) of the Convention if it has been ordered without seeking the opinion of a medical expert. Any other approach falls short of the required protection against arbitrariness, inherent in Article 5 of the Convention".

The medical practitioner who is responsible for the care of the patient not only has the necessary expertise but is also in the best position to assess the mental capacity of the patient at the time of admission and throughout the hospital stay. Indeed, if the patient were judged to have capacity, the provisions of the MCA would not apply. Mental capacity may fluctuate and is 'functional' is so far as it is gauged in relation to the seriousness and complexity of any given treatment. The doctor is therefore well placed to determine the extent to which the patient may actually consent (or refuse) any treatment offered.

1.2.3 Requirement for medical review of ongoing need for detention

It is important that the doctor responsible for the patient's care is available to assesses the ongoing incapacity of the patient and need for treatment or care. The Joint Committee rightly pointed out that ongoing detention might be determined by the responsible clinician who may not be medically qualified.

"Initial detention under the Act as amended will still be based on objective medical expertise, in the form of reports from registered medical practitioners. However, renewal of detention will be carried out by the responsible clinician, who need not be a doctor, furnishing a report to the managers of the hospital that the conditions justifying detention continue to be met. If initial detention must be based on objective medical expertise to be compatible with Article 5 ECHR, there is an argument, following Winterwerp, that the same should apply to its prolongation. The Bill proposes that the person in charge of a detained patient's treatment should no longer be the responsible medical officer (RMO), who must be a doctor, but would in future be the responsible clinician (RC) who need not be medically qualified".[12]

The fact that a patient may lack the capacity to refuse admission to hospital but have sufficient capacity to refuse simple treatment is also reflected in the HL v UK[13]. A detained patient need not loose all rights to consent to or refuse treatment:

"The right to liberty in a democratic society is too important for a person to lose the benefit of Convention protection simply because they have given themselves up to detention, especially when they are not capable of consenting to, or disagreeing with, the proposed action."

1.2.4 Need to provide appropriate treatment and care.

Hospital admission is justified only in so far as the treatment is appropriate, necessary and proportionate to the patient's ongoing needs.

The Joint Committee on Human Rights, in its conclusions, had no difficulty with replacing "the treatability" test with an "appropriate treatment" requirement:

"In our view, in terms of the Convention, there would appear to be no obstacle to replacing 'treat ability' with 'availability of appropriate treatment' as a condition of detention. (Paragraph 20)"

However, many mentally incapacitated adults, including those with dementia and learning disability, will be vulnerable and their main requirement will be custodial care and security, rather than treatment. That said, the majority of vulnerable elderly persons in residential homes will also be taking medication and may need help in remembering to take it and assistance with basic needs. A failure to take their regular medication may have serious consequences for patients and precipitate unnecessary hospital admission. Elderly residents of Care Homes may also need assistance with washing, dressing and various with medical appliances and devices such as catheters and stoma. This may constitute 'ordinary' nursing care or 'personal' care depending on the circumstances. This perhaps underlines the need to distinguish 'medical treatment' from 'ordinary nursing care' and 'personal care' and allows greater precision in determining care plans.

Moreover, by making the distinction between 'treatment' and nursing and personal 'care' it is easier to distinguish the need for ongoing hospitalisation as opposed to the less restrictive regimes in Nursing Homes and residential care settings. It is currently routine practice to determine the levels of care required for patients following discharge from hospital. The determination and provision of various levels of social care and support as well as nursing care as part of discharge arrangements also has significant funding and resource implications.

Best practice and a proper legal framework both require that admission to hospital and Care Homes is tailored to the individual needs of patients in order to provide appropriate care in the least restrictive manner possible. Indeed, since 'deprivation of liberty' depends upon circumstances and the measure of control placed upon an individual, it may well be that placement in a Care Home might not always be regarded as a 'detention'. Most hospital regimens are more restrictive of a patient's freedom than living in a Nursing or Residential Home. Proper discharge planning and placement could well mean that the patient entering a Care Home is no longer being legally detained. It important that proper legal safeguards reflect good clinical practice.

"The detention of an individual is such a serious measure that it is only justified where other, less severe measures, have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained. The deprivation of liberty must be shown to have been necessary in the circumstances (see Witold Litwa v. Poland, no. 26629/95, 78, ECHR 2000-III)".[14]

It might also be argued that the issue of restriction of freedom and detention ought to be viewed in the light of the patient's actual condition. For example, in what sense is a patient rendered totally unconscious as a result of a severe head injury being deprived of liberty when admitted to hospital and treated in Intensive Care? Can a confused demented patient be said to be restricted by being admitted to hospital when to be left at home would not provide any more freedom of action and would risk serious harm or self-neglect? Can a patient whose freedom is already grossly limited by their condition be further restricted by admission to hospital for appropriate medical treatment? It might be hoped that the courts would balance the question of detention in the light of the patient's condition and needs on the one hand and the demands of medical treatment in the most appropriate setting on the other. Where admission to hospital is a contingent necessity for the appropriate treatment to be given to an incapacitated person it should not be regarded as an unreasonable or unlawful detention. For example, major neurosurgical intervention after a head injury simply cannot occur outside of a hospital context.

The BMA has confirmed that public authorities have a duty to provide adequate care and treatment for those under their care: [15]

"Article 2 imposes positive and negative obligations on public authorities (X-v-FRG Appl, (1984)), such that they have a duty to take adequate and appropriate steps to protect the life of individuals in their care (X-v-UK (1978) 14 DR 31), as well as not to take life intentionally".

Once a patient is admitted to hospital, there is a positive duty of care to act in the patient's best interests, which in the light of the Leslie Burke[16] judgment, means the clinical best interests of the patient:

 

"Once a patient is accepted in a hospital, the medical staff come under a positive duty at common law to care of the patient" (para. 32).

"It seems to us that it is best to confine the use of the phrase 'best interests' to an objective test, which is of most use when considering the duty owed to a patient who is not competent and is easiest to apply when confined to a situation where the relevant interests are medical" (para 29).

 

 

1.3 Proposed amendments

 

1.3.1 First suggested amendment:

 

Page 42 line 24 delete current clause 4A "Restriction on deprivation of liberty" and substitute new clause 4A-

 

"4A Deprivation of liberty for care or medical treatment

 

(1) P may not be deprived of liberty under this Act unless P has been examined and assessed by a registered medical practitioner who is responsible for the medical treatment and care of P and who is satisfied that the following requirements are met:

 

(i) P has been found to lack capacity

(ii) The deprivation of liberty is necessary for P's health or safety

(iii) That P's condition is of a nature and degree that requires deprivation of P's liberty and that the restriction of P's freedom is proportionate to the expected benefit to P

(iv) There is appropriate care or medical treatment available that will benefit P

 

(2) P may be deprived of liberty in accordance with a relevant decision of a court under section 16 in relation to a matter concerning P's personal welfare.

 

(3) Where P has been admitted under section (1) it shall be the duty of the Primary Care Trust or relevant Health Authority and of the local Social Service Department to provide, in co-operation with relevant voluntary agencies, after care services until such time as the relevant Trust or Authority is satisfied that P is no longer in need of such services.

 

(4) "Medical treatment" means a diagnostic or therapeutic intervention performed by, or under the supervision of, a registered medical practitioner in the management of disease or illness."

 

 

1.3.2 Second suggested amendment:

 

Page 42 line 38 In section 4B (1) delete "while a decision as respects any relevant issue is sought from the Court".

 

1.3.3 Third suggested amendment:

 

Page 43 After sub-section 4B insert -

 

"4C Provision of ordinary nursing and personal care

 

Nothing in this Act permits or authorises the withdrawal or withholding of ordinary nursing care or personal care whether or not P has been deprived of his liberty.

 

For the purposes of this Act -

 

(1) "Ordinary nursing care" means care provided by a registered nurse that does not need supervision by a registered medical practitioner.

 

(2) "Personal care" means care which relates to the day-to-day physical requirements and needs of the person cared for and includes, though is not limited to, the provision of personal hygiene, hydration and nutrition, warmth, shelter, and, where appropriate, assistance with mobility, medication and the maintenance of physical and psychological well being."

 

1.4 General explanation for amendments

 

1.4.1 Need for a clear practical and legal distinction between mental incapacity arising form medical and psychiatric illness.

 

The Mental Health Bill seeks to amend two Acts, namely the Mental Health Act 1983 and the Mental Capacity Act 2005. The first deals with mental health patients who may, or may not, be mentally competent, the other with mentally incapacitated medical patients.

 

It is therefore important to be separate patients who have mental incapacity by virtue of an underlying medical problem from those who are mentally impaired by virtue of mental illness. However, from a clinical standpoint the distinction between mental disorder arising from a primary psychiatric illness on the one hand and from underlying medical illness on the other is not always easy. Mentally disturbed 'medical' patients will often improve with the appropriate medical treatment. Indeed, it may not always be possible to determine if there is an underlying mental illness until any medical problem has been properly addressed. In practice, therefore, the distinction between mental disturbance arising from psychiatric or medical illness may need to be determined both by the initial clinical assessment of the patient and the response to treatment. Obviously a confused elderly patient with a chest infection is going to respond to antibiotics and not to cognitive behavioural therapy. Less commonly, patients with atypical depression may be identified by their response to antidepressant medication.

 

In practice, patients will be deemed to be a 'medical' so long as they are being given medical treatment in hospital. It is clearly appropriate in cases of doubt to provide medical treatment first. This will not only protect the physical well being of the patient but also mean that the patient is not stigmatised as having a psychiatric illness and made subject to compulsory powers of treatment and detention under the Mental Health Act 1983. Nevertheless, the overlap between mental disturbance arising from medical and mental illness is considerable especially in the elderly. Under the Mental Capacity Act it would be lawful to treat such patients if the clinician had a 'reasonable belief', based upon his professional judgment, that he was acting in the patient's (clinical) 'best interests'.

 

In short, whilst the distinction between mental disorder arising from medical conditions or from psychiatric illness might theoretically be made by using diagnostic criteria, in practice the response to appropriate therapy may be needed to clarify matters. A "therapeutic test" may therefore be required to confirm the diagnosis in cases of doubt.

 

In order to avoid confusion between the use of the term 'treatment' in the Mental Capacity Act 2005 which means bona fide medical treatment and 'medical treatment' in the Mental Health Act 1983 which means really means 'mental health treatment' ('psychiatric treatment') it would be useful to define 'medical treatment' (subsection 4).

 

 

1.4.2 Deprivation of liberty for the purpose of custodial care and treatment

 

Deprivation of liberty is always a serious matter. Following the Bournewood judgment, it has become necessary to provide a statutory framework for non-compliant, mentally incapacitated medical patients who need admission to hospital or a Care Home (nursing or residential home) who are effectively being deprived of their liberty. The commonest example of this is the elderly patient with cognitive impairment who becomes confused due to an intercurrent illness e.g. pneumonia and requires admission to hospital. Such patients should not be stigmatized by being labeled as psychiatrically ill and should not be admitted under 'section' using the Mental Health Act 1983. It is therefore important to amend the Mental Capacity Act 2005 in order to provide adequate statutory Bournewood safeguards without recourse to the provisions of the Mental Health Act 1983 (in particular sections 2 and 3) for compulsory admission and treatment.

 

The current section A1 in Schedule 6 is unduly cumbersome - and runs to 186 clauses! Schedule A1 seeks to provide Bournewood safeguards by amending the Mental Capacity Act. In practice, it may well increase the difficulties of both admitting patients to hospital for treatment and discharging patients to Care Homes following a period of admission.

 

The essential requirements for legitimate admission following Strasbourg case law are that the assessment (and clinical review) would be made by a competent person - namely a registered medical practitioner. This will usually be a Hospital Consultant in the case of admission to hospital or a Consultant or GP in the case of admission to a Care Home in the Community.

 

The additional criteria are that the admission must be a proportionate response, there must be appropriate care or treatment available and that this will benefit the patient. There must also be provision for clinical review and challenge to the admission, if necessary b y recourse to the Court. Applications to the Court of Protection are already provided for elsewhere in the MCA in relation to section 16 powers.

 

The new substituted Clause 4A would simplify admission arrangements and would be consistent with current practice without being unduly cumbersome. Most medically incapacitated patients will regain their mental capacity when any intercurrent illness has been dealt with. For the majority of non-compliant patients therefore treatment of their underlying medical problem will restore mental capacity so that often patients will then be able to make their own decisions. There will, however, b e a small percentage of patients who remain with significant cognitive impairment after admission and may need to be admitted to a Care Home for further care or treatment.

 

Subsection (2) is necessary because there may be patients who have refused treatment or care in advance. By definition, the deprivation of a patient's liberty is done without his or her consent and may even be done in the face of a refusal. This is of the nature of what is effectively compulsory admission of a patient for treatment. Where a patient agrees to the admission for treatment there is no issue. Patients may be non-compliant either by not expressing a view either way, (as in the case of H.L) or refusing perhaps in advance, admission for care or medical treatment. Therefore, where there is dispute, it is necessary to make provision for application to the Court of Protection under Section 16.

 

It is necessary to define 'medical treatment'. The term for what is effectively medial treatment in the Mental Capacity Act is "treatment". In the Mental Health Act 1983, psychiatrically treatment is somewhat confusingly called "medical treatment". The term "mental health treatment" might be less confusing in the Mental Health Act since psychiatric treatment now involves a range of modalities including cognitive behavior therapy, psychological treatment, physical treatments such as ECT (rarely), as well as drug therapy. However, that said, 'medical treatment' in the MHA as amended by the MHB does take into account this extended range of therapeutic modalities. Since the MCA is not concerned with mental health problems, per se, the definition of medical treatment in Clause 4A is perhaps self-explanatory and is unlikely to be confused with '; medical treatment' in the MHA. However, it might be helpful in amendments to the Mental Health Act to "substitute for "medical treatment" the term "mental health treatment". Mental health treatment then includes "drug therapy, nursing and also psychological intervention and specialist mental health habilitaiton, rehabilitation and care, for mental disorder and its consequences, under the supervision of the responsible clinician". This would require an amendment to Section 145 (1) of the 1983 Act. Such an amendment was indeed proposed by Lord Carlile to clause 8 of the Mental Health Bill [HL].

 

 

1.4.3 Abuse of vulnerable adults

 

There is considerable concern about the care of patients in some hospitals and Care Homes.

 

Elder Abuse is not uncommon and may take many forms, including neglect.

 

There are numerous documented examples of such abuse detailed in the House of Commons Health Committee Report on Elder Abuse published on 24th March 2004 which concluded:

 

"Abuse of older people is a hidden, and often ignored, problem in society. The profile of child abuse has been dramatically raised in the past few years and the Government has acted to introduce controls and measures to identify and tackle that problem; but abuse of older people remains in the background. It has been put to us that 500,000 older people in England are being abused at any one time, yet many people are unaware of the problem and few measures have been taken to address it" (p.7)

 

The Committee defined six areas of abuse including physical, sexual, psychological and financial, as well as neglect and discrimination.

 

Neglect and acts of omission were defined as "ignoring medical or physical care needs, failure to provide access to appropriate health, social care or educational services, the withholding of the necessities of life, such as medication, adequate nutrition and heating."

 

Elder Abuse is well documented and the following examples are taken from the Report:

 

"A survey of community and district nurses, commissioned by the Community and District Nursing Association last year, indicated that the vast majority of respondents encountered elder abuse at work (88%) and in 12% of cases this was on a monthly, or more frequent basis". (para 21. p. 15).

 

"Dame Deirdre Hine, Chairman of CHI, agreed that accurate figures

about the prevalence of abuse were difficult to identify; however she noted:

 

All the evidence that we have and we can put before you is that concerns about services for older people in the NHS are one of the most frequent matters brought to our attention ... Of the 11 investigations into serious clinical failure that we have completed and reported on, three of those involved cases of serious abuse of older people". (para 24. p.5)

 

"We explored estimates of the prevalence of elder abuse with the Minister, Dr Stephen Ladyman. He told us that there was some disagreement over the figure of half a million older people experiencing abuse, which he felt was perhaps an over-estimate:

 

We probably have a dispute over the number. I do not dispute that it is a very significant problem and that there is a very significant number of elderly people who are abused ... The figure of 500,000, because it is an extrapolation of 1992's figures assumes that nothing has been done since 1992 to improve the situation. I would suggest the figure is probably lower than 500,000, but I do not dispute that it is a very

significant problem. (para 26. p 16).

 

"Abuse in domiciliary settings is the commonest type of abuse, but the most difficult to combat. Contact between victims of abuse and statutory services may be limited, and those abused will often feel under threat, or obligation, to those abusing them. (para 38. p 19).

 

"Elder abuse has until recently been regarded primarily as a domestic phenomenon, as illustrated by the 1993 Department of Health guidelines, No Longer Afraid: The Safeguard of Older People in Domestic Settings. By contrast, a report published in 2000 by the Royal College of Psychiatrists stated that: "Abuse does not only occur in rare, dramatic and well-publicised incidents; it is a common part of institutional life." (para 41. p20).

 

"The UK Central Council for Nursing, Midwifery and Health Visiting, now replaced by the Nursing and Midwifery Council, receives on average about 1,000 allegations of abuse per annum. Some 50% of these relate to physical, verbal or sexual assault. In 1998, 84 nurses (mostly employed in Nursing Homes) were struck off the register for abuse". (para 41. p 20)

"The National Care Standards Commission is an independent, non-departmental public body established by the Care Standards Act 2000, to regulate a wide range of social care and private and voluntary health care services in England. The NCSC registers and inspects approximately 29,000 Care Homes for older people, which provide just under half a million places. The NCSC stated in their written evidence that only 50% of Care Homes for older people are meeting or exceeding the relevant standards for complaints or protection.

The Commission received 12,685 complaints in 2002-03. Of these, 1,278 (10%) made specific allegations of abuse, but the majority of complaints alleged poor practice or neglect, which could also be classified as forms of abuse". (para 42. p 20).

 

Elder abuse may also take the form of failing to provide proper assistance with ordinary medication with its attendance medical complications:

 

"The responsibility for the administration of medicines for older people in Care Homes rests with care staff, but many lack sufficient experience or knowledge of the management of medicines. This may lead to errors occurring, particularly when the care workers have not received adequate training in the safe practice of administering medicines. (para 51. p 23).

 

Failure to assist with necessary medication is one problem, the over prescription of sedatives and anti-psychotics is another:

 

"A recent study of 22 South London Nursing Homes, accommodating 935 residents aged over 65, established that 24.5% of them were prescribed anti-psychotic drugs. Of these, 82% were found to be inappropriate. Most prescriptions were inappropriate for more than one reason including the absence of any condition that would respond to medication, a lack of documentation, a failure to adopt a dose reduction and a failure to review medication within the past six months.

Evidence from the NCSC highlighted the issue of inappropriate prescribing and administration of medication. Their analysis of the problem suggested that for older people only 40% of residential Care Homes met the standards for administering and handling medication.

NCSC told us that 12% of providers failed to meet the National Minimum

Standards on medication". (paras 55 and 56. p 24).

 

"Jenny Potter, National Officer for the CDNA, told us that her members were "seeing elder abuse in the community and they have no mandatory training to help them deal with this problem when they meet it."

She continued "I think if we could have training in the recognition of abuse, you would get an awful lot more figures and a lot more reporting, but certainly most health professionals do not know about abuse and how to recognise it."

When we asked Mrs Potter about the triggers for elder abuse and the order of importance she stated that lack of training was at the head of the list and continued:

 

A lot of unqualified people in residential Care Homes and Nursing Homes are doing tasks that they should not be doing and in the community, social services are doing an awful lot of personal care for people which at one time was undertaken by health services. It was branched off a few years ago and social services now undertake more of the personal care in the community". (para 92. p 31).

 

"Written evidence from the NCSC observed that "the single most important way to tackle elder abuse is to raise awareness of the way that older people should be treated by society as a whole, and the standards of care and behaviour to which they are entitled."

We agree that a clearer understanding and better information about the standards of care that people should be able to expect should help in tackling both the unintentional abuse reflective of poor practice, as well as ensuring that abusive behaviour is more likely to be challenged". (para 106. p 34).

 

Whilst it is important that procedures are in place to prevent abuse of the elderly in institutions, it is also important to ensure such preventative measures as part of the "Bournewood safeguards" within the Mental Capacity Act to provide statutory recognition that minimum care standards must be followed. It should not be regarded as in patients' 'best interests' to have ordinary nursing and personal care withdrawn.

 

The Health Committee recommended:

 

"In addition, the national minimum standards specify, through requirements placed on the service provider, that service users are to be protected from abuse. These include requirements to ensure that......service users are safeguarded from physical, financial or material, psychological or sexual abuse, neglect, discriminatory abuse or self-harm, inhumane or degrading treatment, through deliberate intent, negligence or ignorance, in accordance with written policies" (para 155, p. 45).

 

1.4.4 It is not in patients' best interests to withdraw or withhold ordinary nursing care and personal care

 

In view of the well-recognized phenomenon of abuse of the elderly and those with learning disability, it is therefore important to state in the MCA that it should not be regarded as in patient's best interests to withdraw or withhold 'ordinary nursing care' and 'personal care'. Nursing care can be defined in relation to the context in which it is given and the person who is primarily responsible. For example the use of non-invasive ventilation using a face make (e.g. BIPAP) might be regarded as 'medical treatment'; when the patient is admitted acutely to intensive care, as ordinary nursing care when the patient is returned to the general ward and as personal care when the patient goes home and the ventilatory device is managed by the patient themselves or a relative. Hence, it is possible for what was once medical treatment for a patient in hospital to become ordinary nursing care or even personal care when the patient goes home. Some patients are even able to manage haemodialysis at home without the need for direct medical or nursing supervision.

 

Ordinary nursing care when the nurse is acting autonomously without the need for medical input can be distinguished from specialist nursing care for example in ITU or CCU when the nurse is more directly supervised by a doctors. Personal care requires the supervision of neither a doctor nor nurse.

 

Any authority responsible for depriving someone of his or her liberty must provide a basic level of safe care. Care. This underlines the need to ensure that it is clear in the Mental Capacity Act that basic care in the form of 'ordinary nursing care' and 'personal' care must not be withheld or withdrawn.

 

1.4.5 Conclusion

 

'Bournewood safeguards' should not only serve to provide an adequate legal framework, but should also provide a minimum standard of care for patients who have been detained. There is a lack of a clear separation between 'medical treatment' on the one hand 'nursing' and 'personal care' on the other. Hence, a wide range of procedures and care activities may be regarded as 'treatment' under the Act. Since the Mental Capacity Act 2005 gives donees of Lasting Powers of Attorney the right to refuse 'treatment', it is important to ensure that detained patients are not denied ordinary nursing care and personal care on the basis that these have been 'refused'. It is important also that the determination of 'best interests' is not construed to mean that such basic care can be legitimately withdrawn. Furthermore it is essential that bad nursing practice in hospitals and Care Homes is not excused on the basis that the patient 'refused' to feed, get out of bed, wash or dress or comply with medication as this would conceal a lot of elder abuse. "Refusal' of care could become an easy excuse to cover abuse.

 

If such 'basic care' is withheld, then the onus is on anyone withdrawing such assistance to justify his or her actions. This is already clear in relation to the duties of the relevant authorities in relation to those in custody. There are clear British and Strasbourg case law that establishes the need to provide basic medical attention and to guard against suicide. At risk patient must be placed on a 'suicide watch'. Intoxicated patients who may have experienced injuries e.g. head injuries or internal bleeding following trauma must receive adequate medical attention to prevent deaths in custody. Patients in NHS hospitals and Care Homes should receive no less a standard of care and protection.

 

 

More detailed explanatory notes for the legal basis of the two principle amendments are given below.

 

1.5 Legal basis for amendments

 

1.5.1 Explanatory note for first suggested amendment.

 

"4A Deprivation of liberty for care or treatment

 

(1) P may not be deprived of liberty under this Act unless P has been examined and assessed by a registered medical practitioner who is responsible for the medical treatment and care of P and who is satisfied that the following requirements are met:

 

(i) P has been found to lack capacity

(ii) The deprivation of liberty is necessary for P's health or safety

(iii) That P's condition is of a nature and degree that requires deprivation of P's liberty and that the restriction of P's freedom is proportionate to the expected benefit to P

There is appropriate care or medical treatment available that will benefit P

 

(2) P may be deprived of liberty in accordance with a relevant decision of a court under section 16(2) (a) in relation to a matter concerning P's personal welfare.

 

(3) Where P has been admitted under section (1) it shall be the duty of the Primary Care Trust or relevant Health Authority and of the local Social Service Department to provide, in co-operation with relevant voluntary agencies, after care services until such time as the relevant Trust or Authority is satisfied that P is no longer in need of such services.

 

(4) "Medical treatment" means a diagnostic or therapeutic intervention performed by, or under the supervision of, a registered medical practitioner in the management of disease or illness."

 

 

 

1. Depriving patients of their liberty is always a serious matter. Lawful detention requires that the procedures for admission and review are in accordance with domestic law and recognized clinical procedures. The detention must be both necessary and proportionate to P's welfare. There must be appropriate care or treatment which will benefit P and the detention must not be arbitrary.

 

2. The Bournewood consultation estimates that around 50,000 permanent admissions to Care Homes and at any one time 22,000 hospital inpatients could be affected by the judgment in HL v UK[17].

 

3. The distinction between restraint and detention is one of degree and intensity to be determined by the circumstances of the case.

 

"In order to determine whether circumstances involve deprivation of liberty, the starting point must be the concrete situation of the individual concerned and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question. The distinction between deprivation of and restriction upon liberty is merely one of degree or intensity, and not one of nature or substance." Ashingdane v. the United Kingdom - 8225/78 [1985] ECHR8 (28 May 1985)

 

4. The detention of a patient must be in conformity with Convention rights.

 

5. Article 5 (1) of the ECHR requires that:

 

"Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(e) the lawful detention ... of persons of unsound mind....":

 

6. Article 5 (4) states:

"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

7. However:

"The judicial proceedings referred to in Article 5 (4) need not, it is true, always be attended by the same guarantees as those required under Article 6 (1) for civil and criminal litigation. Nonetheless, it is essential that the person concerned would have access to a court and the opportunity to be heard either in person, or where necessary, through some form of representation, failing which he will not have been afforded "the fundamental guarantees of procedure applied in matters of deprivation of liberty." Winterwerp v. The Netherlands - 6301/73 [1979] ECHR 4 (24 October 1979) Para 60.

8. The judgment in HL v UK[18] also demands that health and social care authorities must provide a sufficient standard of care and treatment for vulnerable people, which promotes a culture of respect for human rights and ensures that deprivations of liberty are wherever possible avoided.

 

 

9. In HL v UK it was also held that:

 

"It is recalled that an individual cannot be deprived of his liberty on the basis of unsoundness of mind unless three minimum conditions are satisfied: he must reliably be shown to be of unsound mind; the mental disorder must be of a kind or degree warranting compulsory confinement; and the validity of continued confinement depends upon the persistence of such a disorder (the Winterwerp judgment, at $ 39; Luberti v. Italy judgment of 23 February 1984, Series A n. 75 $ 27, Johnson v. the Untied Kingdom, judgment of 24 October 1997, Reports 1997-VII, $ 60 and Hutchison Reid v. the United Kingdom, no 50272/99, $ 47, ECHR 2003- IV)".

 

10. Subsection 3 is necessary because there must be a clear need to justify the continued detention of P.

 

"Certainly, the 'lawfulness' of any detention is required in respect of both the ordering and the execution of the measure depriving the individual of his liberty. Such 'lawfulness' presupposes conformity in domestic law in the first place and also, confirmed by Article 19, conformity with the purposes of the restrictions permitted by Article 5 (1). More generally, it follows from the very aim of Article 5 (1) that no detention is arbitrary can ever be regarded as 'awful'. Ashingdane v. the United Kingdom - 8225/78 [1985] ECHR 8 (28 May 1985).

 

 

1.5.2 Explanatory note for third amendment

 

"4C Provision of ordinary nursing and personal care

 

Nothing in this Act permits or authorises the withdrawal or withholding of ordinary nursing care or personal care whether or not P has been deprived of his liberty.

 

For the purposes of this Act -

 

(1) "Ordinary nursing care" means care provided by a registered nurse that does not need supervision by a registered medical practitioner.

 

(2) "Personal care" means care which relates to the day-to-day physical requirements and needs of the person cared for and includes, though is not limited to, the provision of personal hygiene, hydration and nutrition, warmth, shelter, and, where appropriate, assistance with mobility, medication and the maintenance of physical and psychological well being."

 

 

1. All mentally incapacitated patients should receive a minimum standard of ordinary nursing care and personal care, whether or not they are deprived of their liberty.

 

2. Patients have rights under Article 2 (right to life) and article 3 (Freedom from inhuman and degrading treatment) of the Human Rights Convention. Both these rights would be infringed by the deliberate withholding or withdrawing of hydration and nutrition which would inevitably cause the patient's death through dehydration or starvation. For a patient to die because of dehydration or to die in a state of dehydration is both inhumane and degrading. No patient should be subject to neglect, least of all dehydration or starvation.

3. "Neglect" was defined by Sir Thomas Bingham MR in R v HM Coroner for North Humberside and Scunthorpe, Ex p Jamieson[19] as follows:

 

"Neglect in this context means a gross failure to provide adequate nourishment or liquid, or provide or procure basic medical attention or shelter or warmth for someone in a dependent position (because of youth, age, illness or incarceration) who cannot provide it for himself".

 

4. Ordinary nursing care can be distinguished from specialised nursing care as the former can be carried out by a registered nurse without the need for medical supervision.

 

5. "Personal care" is already largely defined in Scottish legislation in the Regulation of Care (Scotland) Act 2001 and Schedule 1 of the Community Care and Health (Scotland) Act 2002. Schedule 1 of the 2002 Act includes in personal care such matters as: personal hygiene, continence management, food and diet, problems with immobility, counselling and support and help with simple medication, surgical appliances and prostheses and various mechanical aids.

 

6. The Mental Capacity Act 2005 does not contain such provisions nor can it safely be assumed that they are implied since new powers are accorded to 3rd parties under that Act to act as if they were the patient themselves and so they are able to refuse such basic care. These amendments are designed to ensure that such protection continues to be afforded the patient when both the Mental Health Bill and the Mental Capacity Act 2005 come into force.

 

 

April 2007

 



[1] http://www.dh.gov.uk/assetRoot/04/13/68/45/04136845.pdf Bournewood Briefing Sheet - June 2006 1

Gateway reference: 6794

[2] "It is not disputed that in order to determine whether there has been a deprivation of liberty, the starting-point must be the specific situation of the individual concerned and account must be taken of a whole range of factors arising in a particular case such as the type, duration, effects and manner of implementation of the measure in question. The distinction between deprivation of and restriction upon liberty is merely one of degree or intensity and not one of nature or substance." (para 89 of the judgment)

 

[3] Turning therefore to the concrete situation as required by the Ashingdane judgment, the Court considers the key factor in the present case to be that the health care professionals treating and managing the applicant exercised complete and effective control over his care and movements from the moment he presented acute behavioural problems on 22 July 1997 to the date he was compulsorily detained on 29 October 1997".(para 91).

[4] "The Court therefore finds that this absence of procedural safeguards fails to protect against arbitrary deprivations of liberty on grounds of necessity and, consequently, to comply with the essential purpose of Article 5 1 of the Convention. On this basis, the Court finds that there has been a violation of Article 5 1 of the Convention". (Para 124).

[5] "Article 5 4 provides the right to an individual deprived of his liberty to have the lawfulness of that detention reviewed by a court in the light, not only of domestic law requirements, but also of the text of the Convention, the general principles embodied therein and the aim of the restrictions permitted by paragraph 1: the scheme of Article 5 implies that the notion of "lawfulness" should have the same significance in paragraphs 1 (e) and 4 in relation to the same deprivation of liberty." (Para 135).

[6] This was stated in the Government response to the Joint Committee on the Draft Mental Capacity Bill. Response 43 which can be found at: www.publications.uk/pa/jt200304/jtselect/jtrights/210/21017.htm

[7] Joint Committee on Human Rights. Forth Report. 2/02/07

[8] Varbanov v Bulgaria, App. No. 31365/96 (5 October 2000), at para 47

[9] The detention of an individual is such a serious measure that it is only justified where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained. Witold Litwa v Poland, above, at para. 78 

[10] Joint Committee on Human Rights. Froth Report. Paragraph 14.

[11] Varbanov v Bulgaria. App. No. 31365/96 ( 5 October 2000) at para 47.

[12] Ibid. Para 21.

[13] HL v United Kingdom (2004) 40 EHRR 761.

[14] Varbanov v Bulgaria. App. No 31365/96 at para 46.

[15] Committee on Medical Ethics, British Medical Association, October 2000.

[16] R (Burke) v GMC [2005] EWCA Civ 1003.

[17] Bournewood Consultation: The approach to be taken in response to the judgement of the European Court of Human Rights in the 'Bournewood' case. http://www.dh.gov.uk/Consultations/ClosedConsultations/ClosedConsultationsArticle/fs/en?CONTENT_ID=4113613&chk=oDJvUU

 

[18] H.L v. the United Kingdom - 45509/99 [2004]ECHR 471 (5 October 2004)

[19] [1995] QB 1.