APPENDICES TO THE REPORT
1. Memorandum from the Mental Health Act Commission
Thank you for your letter of the 3 July 2002.
The Committee will be aware that its deadline for submissions has fallen early within the period of the Government's consultation on the draft Mental Health Bill. The Commission is currently in discussion with its membership in order to formulate its response to the Government's consultation. Consequently I am not yet in a position to set out a formal Commission view on the provisions of the draft Bill. I am able to provide comments from an initial study of the Bill based upon the general experience of the Commission, in the hope that these will be helpful to the Committee.
The Committee will also be aware of the contentiousness of elements of the proposed legislation. Numerous media reports have highlighted concerns regarding, for instance, compulsory psychiatric treatment in the community or specific proposals relating to "dangerousness" as a criterion for compulsion. Whilst some such media reports have lacked balance and comprehension of the proposals, they do appear to reflect some genuinely held concerns of many mental health professionals and patients over the potential human rights consequences of aspects of the Bill.
It is clear that the impetus behind many of the draft Bill's departures from existing mental health legislation is a concern to make the law relating to the compulsion of psychiatric patients compliant with the European Convention of Human Rights. Some of the proposed measures should address aspects of the present law that have been raised as human rights concerns by the MHAC, such as the recasting of the 1983 Act's "nearest relatives" as "nominated persons".
However, particularly given the widespread concern that has been expressed over aspects of the proposals, the Committee may wish to consider on a more fundamental level whether the criteria and mechanisms for compulsion are compatible with the Convention.
DANGEROUSNESS AS A CRITERIA FOR COMPULSION
The requisite conditions for compulsion as set out in Clause 6 of the Bill allow for the compulsory treatment of patients who pose substantial risk of serious harm to others even where it cannot be stated that such treatment is necessary for the patient's own health or safety or that it could not be provided without compulsion (clause 6(4)(a)).
This removes the "treatability test" operative in the 1985 Act for patients suffering from psychopathic disorder or mental impairment (section 3(2)(b)). It is this aspect of the proposals that has raised concerns with some practitioners and legal commentators.
Under the present law, the "treatability test" does not apply to patients with mental illness or severe mental impairment (although to justify long-term detention such patients must either pass such a test or be deemed incapable of caring for themselves if discharged). However, the Government's announced intention of providing powers of coercion over "dangerous people with severe personality disorder" demonstrates that this re-casting of the criteria for compulsion has the specific purpose of allowing the detention of persons considered to be a risk to others but who would currently fall outside of the scope of mental health legislation.
The Government's announced intention to use healthcare legislation to authorise the detention of persons for purposes other than health outcomes may be viewed by the Committee as reason enough to consider the draft Bill in more detail.
The Mental Health Act Commission set out its view on the Green Paper proposals relating to personality disordered patients in its paper "Managing Dangerous People with Severe Personality Disorders; Response of the Mental Health Act Commission to the Proposals for Policy Development" (January 2000). A copy is appended to the paper copy of this response, and can be accessed from the electronic version at www.mhac.trent.nhs.ukldspdnew.pdf.
SCOPE OF THE LEGISLATION
The consultation over the draft Bill allows that the broad use of a single definition of "mental disorder" may not be sufficient legal safeguard against the inappropriate use of compulsory powers. The consultation paper highlights the removal of the 1983 Act's explicit prohibition of detention "by reason only of promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs" (MHA 1983 Section 1(3)). The Government has suggested that the criteria for compulsion at clause 6 will provide a sufficient safeguard against inappropriate use of compulsory powers, making explicit exclusions such as appear in the 1983 Act unnecessary and potentially misleading. It is, perhaps, not clear that the criteria set out in clause 6 are sufficiently strict, particularly in relation to "dangerous" patients, to support this argument.
SAFEGUARDS FOR PATIENTS SUBJECT TO COMPULSION IN HOSPITAL
Under the present law, the Mental Health Act Commission may visit patients subject to detention in hospital. The Mental Health Act Commission was established by the 1983 Act as a special health authority that is independent of both those, who provide and commission services for the care and treatment of detained patients. Whilst part of the Commission's purpose in visiting patients in hospital is to inform its general monitoring of the use of the powers and discharge of the duties conferred or imposed by the Act, such visits also fulfil something of a habeas corpus function. Commissioners may scrutinise the detention documents of patients, hold private meetings with patients or meet with patients on an informal basis. Over the two years 1999-2001 the Commission met with a total of 22,593 patients, 13,042 of which were private meetings with document checks. Commissioners also examined the detention documents of a further 11,285 patients without meeting them.
The draft Bill has no proposals for the continuance of a Commission-like body with a visiting function. The consultation document accompanying the Bill suggests that the various functions of the Mental Health Act Commission be divided amongst other bodies, including a new health care inspectorate and a new specialist mental health advocacy service. The visiting functions of the Commission would fall to the latter.
Although one part of the amalgam of functions that is served by the Commission's present visiting activity (in particular, the presentation of individual patients' concerns to hospital managers) could and perhaps should be the preserve of advocacy services, it is not clear how advocacy services could fulfil all of the purposes of Commission visits without compromising their advocates' roles. The particular difficulty lies in the expectation, fundamental to the concept of advocacy, that advocates will never operate independently of patients' expressed views and wishes. Commissioners visiting hospitals are not bound by such restrictions, and can use their knowledge of the general concerns and experiences of patients, alongside their own observations, to raise more general issues, whether these relate to compliance with the law or the care and treatment of patients.
Perhaps in recognition that the processes of advocacy cannot replace all of the functions of Commission visiting, the consultation paper suggests that special powers of investigation and visiting for cause be given to the advocacy service. Such powers could not, of course, provide the safeguard of routine visits, and the exercise of such powers would almost certainly compromise advocacy roles.
In this way it may be the case that, rather than building on existing arrangements for the independent scrutiny of the use of powers and discharge of duties in relation to patients subject to compulsion, new legislation will provide a much weakened safeguard.
SAFEGUARDS FOR PATIENTS SUBJECT TO DE FACTO COMPULSION ("BOURNEWOOD" PATIENTS)
The judgment in R v Bournewood Community & Mental Health Trust ex parte L (1998) 3AER confirmed that under the present law is acceptable to care for such patients informally, even though this was described as an indefensible gap in mental health law in the judgment.
Part V of the draft Bill attempts to address this lack of legal process and safeguards. One such safeguard is that incapacitated but compliant patients will be allocated a "nominated person". The nominated person appears to have an effective veto over any non-urgent medical treatment that he or she feels would not have received consent were the patient able to make such a decision (clause 128). It is presumably the intention that, where this veto is used, the patient's medical supervisor could only override it by applying for authority for formal compulsion.
Incapacitated patients will also have to be notified of help available from advocacy services. It is questionable how effective a safeguard access to advocacy can be for this patient group, and it is not yet clear how advocacy services will operate in relation to patients without the capacity to instruct them.
The third safeguard will require the care plans of mentally incapacitated but compliant patients to be approved by an independent doctor (the "medical adviser"). The Tribunal will only become involved approving the care plan where the medical adviser does not approve it within a specific time, or where no agreement can be reached between the medical adviser and the patient's doctor. The described threshold for the approval of a care-plan for an incapacitated but compliant patient appears to be very low, relating only to whether the treatment can be lawfully given without the invocation of formal powers (clause 130(4)). Although the explanatory note to the Bill (para 197) suggests that this test will include consideration of best interests (an established requirement for treatment in such circumstances), the Bill itself could be more specific.
By contrast, care plans for patients subject to formal powers will have to be approved by the Mental Health Tribunal, with the independent doctor playing only an advisory role. It is unclear whether this procedural difference will be significant in practice, but it raises the danger that the level of review of an incapacitated but compliant patient's care plan will be less than that applied to a patient subject to formal compulsion, even though the distinction in practice between such patients can be very slight when both are incapacitated by their illnesses.
The distinction in law between the formal and informal care of incapacitated patients can be important to some patients and carers, and the ability to care for patients without the use of formal powers was held to be a progressive step in twentieth century mental health legislation. It is understandable that Government should want to preserve this legal distinction. It is less clear why it is thought appropriate to provide different levels of practical scrutiny of the treatment of patients who are subject to formal coercive powers and for those who are subject to de facto coercion. If the procedural safeguards of a Tribunal decision are required to satisfy ECHR Article 5 for patients subject to Part II of the new legislation, it is difficult to see why lesser safeguards are sufficient for patients falling within Part V.
SAFEGUARDS FOR PATIENTS SUBJECT TO COMPULSORY TREATMENT
The procedures set out for the medical adviser's visit to the patient to consider care plans (eg clauses 48(3), 120(7), 130(3)) do not specify that he or she should consult with any other professionals than the doctor who has proposed the treatment. The current equivalent provision in law (MHA 1983 Section 58(3)(b)) holds that Second opinion Appointed Doctors (SOADS) must consult with a nurse and with another professional who is neither a nurse nor a doctor before authorising any treatment. This part of the SOAD procedure has been taken to be an important aspect of the legal process in determining whether a patient should be treated without consent. Although, in some cases, the medical adviser will only be operating in an advisory capacity to the Tribunal which itself will have multi-disciplinary composition, there is a danger in these arrangements of both excluding non-medical professionals from influencing the medical adviser, and also of excluding non-medical professionals who know the patient from participation in the legal process of authorising treatment.
It is regrettable, given the emphasis recently placed upon the giving of reasons in Ex parte Wooder (reasons as to the approval of medical treatment) and H v Ashworth Hospital (reasons for a MHRT decision), that no such emphasis is incorporated into the provisions dealing with the medical adviser's visit (clauses 48(3),120(7) and 130(3)).
The draft Bill does not appear to provide clear criteria for Tribunals to consider when authorising patients' care plans. Whilst this may be rectified subsequently in regulations, this does seem to leave open a very fundamental question about the use of compulsion.
Real or perceived encumbrances in obtaining authorisation for care plans from the Tribunal or its medical advisers could lead clinicians to seek authority for the most inclusive plans possible, so as to cover all eventualities, rather than permission only to administer treatment that was required in the immediate future. This could negate the safeguard that approval of such plans should provide, and is therefore one reason why it is important to set out the criteria by which the approval of care plans will be considered.
PROPOSALS RELATING TO THE INTERFERENCE WITH PATIENT'S MAIL AND OTHER COMMUNICATIONS
The consultation paper suggests that powers to intercept and withhold patients' correspondence (MHA 1983 section 134) could be extended to media other than postal packets and to patients in medium secure units as well as high-secure care.
The criteria for interference with patients' mail remains as in the current law. In the Commission's experience, these criteria are often misinterpreted and can be misapplied. As such, the existence of the criteria alone may not be sufficient safeguard to ensure that patients' rights under Articles 8 and 10 are not abused.
The review of decisions to withhold patients' correspondence is currently undertaken by the Mental Health Act Commission under a very broad remit. There is no equivalent review or appeal provision in the draft Bill. It would seem a retrograde step to remove patients' ability to appeal and to fail to provide an independent point of review.
LACK OF PROVISIONS RELATING TO CONTROL, RESTRAINT, AND SECLUSION OF PATIENTS
There is currently no provision in legislation for the control, restraint and seclusion of patients, although guidance is included in the non-statutory Code of Practice. The Commission has recommended that new legislation should address this lack. The draft Bill contains no overt provision for the regulation of these areas. The lack of legal process could be the basis for future human rights challenges to the use of these patient management techniques.
LACK OF PROVISION REGARDING NASO-GASTRIC FEEDING
Similarly, there is currently no specific provision in the Mental Health Act 1983 relating to the use of naso-gastric feeding, although the Commission has asked that it be included as a treatment to which Section 58(1)(a) applies. No explicit provision has been made in the draft Bill to provide for this, although a is possible that naso-gastric feeding may be included by Regulation at a later date.
23 July 2002
1 See, for example, Department of Health (2002) Draft Mental Health Bill Explanatory Notes. Cm 5538-11 paras 7, 40, 219. Back
2 See MHAC (2001) Ninth Biennial Report, London Stationery Office, p 16. Back
3 Mental Health Act 1983, Section 20(4). Back
4 MHAC(2001) Ninth Biennial Report. London, Stationery Office, p 100. Back
5 Department of Health (2002) Mental Health Bill Consultation Document Cmnd. 5538-III p 9-10. Back
6 MHAC (2001) Ninth Biennial Report. London, Stationery Office, p 80. Back
7 Under the 1983 Act a "nearest relative" may object to a patent's admission to hospital for treatment (section 11(4)) but this objection may be overridden by their displacement (section 29(3)). The draft Bill contains a provision for the "disqualification" of the nominated person (clause 148(4)), but there is no indication that this would be relevant in the situation where a nominated person objects on behalf of an incapacitated patient to informal treatment. Rather, the situation would seem to be determined by the relation between clauses 128(2) and 121(4). If the nominated person knows that the patient would not consent to a proposed treatment from the patient's past indications, the patient must be considered to be likely to resist the treatment and therefore cannot be treated informally. This is because clause 121(4) defines a patient to be resisting treatment if he or she has "at any time indicated that [s/]he does not want to receive treatment for mental disorder" (emphasis added). It might be asked whether Section 121(4) is reasonable, or whether it places an intolerable burden of investigation on those who seek to give mental health care, and might not lead to the exclusion of many patients from "qualifying patient" status on the flimsiest pretext. Back
8 Mental Health Act 1983 section 121(7)-(10). Back
9 MHAC (2001) Ninth Biennial Report. London, Stationery Office. Recommendation 46, page 48. Back
10 MHAC (1997) Guidance on the Treatment of Anorexia Nervosa under the Mental Health Act 1983. Nottingham, MHAC. Available from www.mhac.trent.uk/publications. Back
11 MHAC (1999) Eighth Biennial Report. London, Stationery Office. Para 6.14, page 172. Back