Joint Committee on the Draft Mental Incapacity Bill First Report

12 Chapter 12: (Clause 27) Linkage with the Mental Health Act/Bill

Clause 27: Interface with mental health legislation

213. It has been pointed out to us that, in relation to the provision of healthcare and treatment for mental disorder, there is potential for a significant overlap between the draft Mental Incapacity Bill (MI) and mental health legislation (MH), either the existing Mental Health Act 1983 or any future Bill to reform mental health law.[242] Both provide substitute decision-making structures for a similar, but not identical, population yet there are significant differences in approach between them. In particular, Professor Genevra Richardson stressed that "the position of people who could potentially be covered by either [statute] needs extensive clarification".[243]

214. The purpose of the draft Bill is to provide a comprehensive statutory framework for decision-making on behalf of adults who lack capacity to make their own decisions because of mental disability. However, mental health legislation, as it is envisaged at present, has a more specific purpose - to provide a legal framework covering the use of compulsory powers to require people with mental disorder to comply with medical treatment for their disorder without their consent. It is a requirement of the European Convention on Human Rights (Article 5) that any deprivation of liberty, including detention or compulsory treatment of "persons of unsound mind", must be in accordance with a procedure prescribed by domestic law. Under the current law, the Mental Health Act 1983 sets out the required procedure, although this may be replaced by a new MHA in the not-too-distant future.

215. In her submission to us, Professor Richardson helpfully summarised the main differences in approach as follows:[244]

  • Capacity: MI Bill applies only to those who lack capacity: MH does not require an absence of capacity
  • Best interests: MI requires decisions to be made in [the incapacitated person's] best interests: MH has no such requirement
  • Medical treatment: MI deals with medical treatment for all conditions: MH covers only treatment for mental disorder
  • Resistance: MI allows care and treatment despite resistance in certain circumstances only: MH is specifically designed for cases of active non-compliance
  • Safeguards: MH contains more automatic safeguards for the patient
  • Advance decisions: MI codifies the common law rules on advance decisions to refuse treatment: MH makes no mention of advance decisions.

216. A number of witnesses emphasised the need for priority to be given to introducing mental incapacity legislation first and then reviewing the exact place of mental health legislation in the light of experience following the passing into law of any Mental Incapacity Act.[245] In particular, the Royal College of Psychiatrists expressed the view that, once a comprehensive Mental Incapacity Act is in place, there may be no need for a Mental Health Act other than to deal with people with mental disorder who may pose a danger to others.[246] Our task in considering the interface between both pieces of legislation has been made more difficult by a number of uncertainties, not only concerning the timing of law reform, but also whether our recommendations should relate to the Mental Health Act 1983 and/or the draft Mental Health Bill issued for consultation in 2002[247] or to future proposals for reform of mental health law to be introduced after this Bill.

217. We recommend that priority should be given to introducing the Mental Incapacity Bill so that account can be taken of these provisions in framing new mental health legislation.

218. Where incapacitated adults require treatment for mental disorder, they can be treated informally (at present under the common law and in future under the general authority provided by the draft Bill), so long as the treatment is considered to be in their best interests. Alternatively, and in particular for people without capacity who are resisting treatment, the compulsory powers available in the MHA 1983 may be used. We have therefore considered the interface between the Bill and the 1983 Act.

Mental Health Act 1983

Clause 27 of the draft Bill states that the Bill's decision-making powers cannot be used to give or to consent to treatment for mental disorder if the treatment "is regulated by Part 4 [sic] of the Mental Health Act 1983". The purpose of Part IV of the 1983 Act is to clarify the extent to which treatment for mental disorder can be imposed on detained patients in hospital. We believe the intention of Clause 27 is to ensure that once an incapacitated person has been detained in hospital under the MHA 1983, the powers available under Part IV would 'trump' the decision-making powers under the Bill. However, it has been put to us that an alternative interpretation would be that the MI Bill would not apply in any case in which treatment regulated under Part IV may be required, i.e. when the MHA could potentially be applied.[248] The effect of this would be to require the compulsory detention under the MHA of any person lacking capacity to consent to treatment for mental disorder, regardless of the circumstances. This would seem to be both undesirable and impractical.

219. The Department of Health has since clarified that a narrower interpretation is intended, so that: "Where a person with mental disorder is … brought under the formal powers of the MHA, it is right that the provisions of the Mental Incapacity Bill are not applied in relation to their treatment for mental disorder".[249] However, for all other decisions affecting that person, the principles and provisions of the draft MI Bill would apply. We recommend that the drafting of Clause 27 be amended to clarify its intended purpose.

220. Since Clause 27 is only intended to apply to patients who are brought under formal powers of the MHA, there would then seem to be a choice of decision-making structure for clinicians who wish to give treatment for mental disorder to people lacking capacity to consent. Guidance issued by the Department of Health indicates that for incapacitated patients who are non-compliant or who resist treatment, an application should be made for compulsory admission to hospital under the MHA in order that treatment for mental disorder can be given.[250] However, it has been pointed out to us that since Clauses 7 and 10 of the draft Bill allow an incapacitated person's resistance to be overborne in certain circumstances to avert a risk of harm, it may also be possible for treatment to be given under the general authority, or with the consent of a donee of an LPA, even if the person resists.[251] We have already recommended that the drafting of clauses 7 and 10 should be tightened up to restrict their use to urgent situations and for as short a period as possible and not where there is an on-going need for restriction of the person's liberty (see paragraph 132).

221. The differences in approach of the draft Bill and the MHA carry both advantages and disadvantages. Decisions taken under the draft MI Bill must be in the patient's best interests, which involves taking account of the patient's past and present wishes and feelings, consulting with relatives and carers and seeking the least restrictive option. People who have prepared in advance for their incapacity, by making an LPA or an advance decision to refuse treatment, should have their decisions respected (although detention under the MHA would appear to overrule these decisions). On the other hand, detention under the MHA provides an entitlement to certain statutory safeguards which are not available to patients treated informally. These include:

  • Application for admission to hospital made by an approved social worker on the basis of two medical recommendations
  • Right of appeal to the Mental Health Review Tribunal
  • Right to a second opinion for longer-term treatment and for specified forms of treatment (such as electro-convulsive therapy or psychosurgery)
  • Right of discharge by the 'nearest relative'
  • Oversight by the Mental Health Act Commission

222. We recommend that the Codes of Practice include clear guidance to govern the choice of legal powers to provide treatment for mental disorder of people lacking capacity to consent.

The 'Bournewood gap'

223. In considering these differences in approach, we have received conflicting evidence as to whether the provisions of the draft Bill are sufficient to fill the so-called gap in the law identified in the Bournewood case.[252] As a result of the House of Lords decision in this case, it appears that it may now be wrong to use the Mental Health Act when admitting an apparently assenting incapacitated person to hospital for the treatment of their mental disorder. In the words of Lord Steyn, "The general effect of the decision of the House of Lords is to leave compliant patients without the safeguards enshrined in the 1983 Act. This is an unfortunate result."[253] A decision is currently awaited from the European Court of Human Rights in this case as to whether the current law is incompatible with the European Convention.

224. In evidence to the Committee, Health Minister Ms Rosie Winterton confirmed the Government's view that there was no incompatibility, but indicated that the opportunity of new legislation could be used to build on existing common law safeguards and provide additional protection for compliant incapacitated people.[254] The examples she gave (right to advocacy, appointment of a 'nominated person' and access to a tribunal) are those proposed in Part 5 of the draft Mental Health Bill, and not the Mental Incapacity Bill, although she said there was an issue about which Bill should contain the proposed safeguards. Correspondence from the Department has indicated that the awaited judgment of the European Court of Human Rights will inform a reassessment of policy and hence affect the drafting of both Bills.[255]

225. We request clarification as to whether it is intended to incorporate additional safeguards for compliant incapacitated patients into the draft MI Bill if there is likely to be a delay in implementing the provisions proposed in Part 5 of the draft Mental Health Bill.

226. Part 5 of the draft Mental Health Bill, if implemented, would only provide safeguards for people being treated in hospital and not to those treated in residential care or nursing homes or in their own homes. Under the draft Mental Incapacity Bill, if a medical practitioner wanted to treat an assenting incapacitated person at home or in hospital, this could be done under the general authority, so long as the practitioner reasonably believed it to be necessary and in the best interests of that patient. Under the best interests test, the medical practitioner would be required to consult with anyone involved in caring for the person and, where appropriate, with an attorney or deputy. While this would probably be satisfactory in most cases, action taken under general authority does not have the safeguards provided by the requirement for a second opinion under the Mental Health Act. We have already suggested in our recommendations relating to the general authority that a second opinion should be obtained for certain treatments when the patient cannot consent, even if they are apparently assenting. Such a safeguard could also apply to serious forms of treatment for physical conditions, to be specified in regulations, as well as to the types of treatment for mental disorder which currently require a second opinion under the MHA.

227. We recommend that the provisions for obtaining a second opinion currently available to patients detained under the Mental Health Act should be extended to compliant incapacitated patients requiring specified forms of treatment for mental disorder or for physical conditions, whether in hospital or in the community. The Bill should include a regulation making power to specify the types of treatment requiring a second opinion, which can be amended as new treatments are developed.

242   See for example Ev 372 MIB 556, Ev 104 MIB 824, Ev 203 MIB 1030, Ev 85 MIB 1188 Back

243   Ev 372 MIB 556 para 12 Back

244   Ev 372 MIB 556 para 4 Back

245   See for example Ev 85 MIB 1188, Ev 203 MIB 1030, Ev 104 MIB 824 Back

246   Q297 (Dr Zigmond) Back

247   Department of Health, Draft Mental Health Bill (2002) Cm 5538 I-III Back

248   Ev 372 MIB 556 para 7 Ev 104 MIB 824 para 3.13 Back

249   Letter from Department of Health to the Clerk of the Joint Committee, 6 November 2003 Back

250   Mental Health Act 1983 Codes of Practice, para 19.27; Health Service Circular 1998/122 Back

251   Ev 372 MIB 556 para 8 MIB 1110 para 13.3 Back

252   See for example Qs 86-87 (Dr Lyons), Q294 (Dr Zigmond)  Back

253   R v Bournewood Community and Mental Health NHS Trust ex parte L [1998] 3 All E R 289, HL at 308 Back

254   Q709 (Ms Winterton) Back

255   Letter from Department of Health to the Clerk of the Joint Committee, 6 November 2003 Back

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