Joint Committee on the Draft Mental Incapacity Bill Written Evidence

102.Memorandum from Genevra Richardson, Professor of Public Law, Queen Mary, University of London (MIB 556)

  1.  Introduction: I have a longstanding interest in mental health law and in questions of mental incapacity. In 1998-99 I chaired an Expert Committee established to advise ministers within the Department of Health on the reform of mental health legislation. In 2001 I visited Victoria and New South Wales in order to examine the relationship between mental health and adult guardianship legislation in two jurisdictions where parallel structures have existed for some years.

  2.  Scope of memorandum: I will restrict this memorandum to the relationship between the Mental Incapacity Bill (MI) and the current draft Mental Health Bill (MH) with regard to the provision of medical care and treatment. In very general terms it will address the last four themes described in the call for evidence, 17 July 2003. I appreciate that the government has not yet introduced its Mental Health Bill, but much of what is said below applies equally to the current Mental Health Act 1983.

  3.  The two bills: In relation to the provision of medical care and treatment both bills provide substitute decision-making structures. The relationship between the two is important because they cater for similar, though not identical, populations and there are significant differences in approach between the bills. MI provides for those who lack the capacity to make decisions, while MH covers people with mental disorder who require care and treatment for that mental disorder. Many, but not all, of those who fall within the possible remit of MH will lack decision-making capacity and could be covered by MI. Similarly many who lack capacity and fall within MI may need treatment for mental disorder and so could be covered by MH.

  4.  The main differences between the two bills which are significant here include:

    —  Capacity: MI applies only to those who lack capacity: MH does not require an absence of capacity;

    —  Best Interests: MI requires decisions to be made in P's best interests: MH has no such express 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.

  5.  Their areas of application: The possible areas of overlap between the two bills can be illustrated by using three distinctions: with capacity/without capacity, compliant/resisting, and physical/mental disorder. If these distinctions are applied the following pattern emerges:

    —  Resisting people with capacity needing treatment for mental disorder: MH only;

    —  Resisting people with capacity needing treatment for physical disorder: common law only, resistance must be respected;

    —  Compliant people without capacity needing treatment for mental disorder: primarily MI although MH Part V would apply where the person is resident in hospital;

    —  Compliant people without capacity needing treatment for physical disorder: MI only;

    —  Resisting people without capacity needing treatment for mental disorder: primarily MH although MI could apply;

    —  Resisting people without capacity needing treatment for physical disorder: MI only.

  6.  So where treatment is required for physical disorder and P lacks capacity MI must be used. Where treatment for mental disorder is required MH must be used if P has capacity and is refusing. Where P lacks capacity and requires treatment for mental disorder both MI and MH may be available, and the remaining paragraphs will consider the possible implications of the choice between these two structures.

  7.  Clause 27: the MI bill, clause 27, states that MI powers cannot be used to authorise treatment where that treatment "is regulated" by the Mental Health Act. On the face of it this appears to mean that where MH powers are in fact assumed MI will not apply and treatment decisions must be made under MH. There is, however, an alternative interpretation, that MI powers must not be used in any case where MH could potentially be applied. This second interpretation would have far reaching implications and would give rise to significant practical difficulties unless the coverage of MH powers were to be defined with absolute precision. It will therefore be assumed that the first interpretation will prevail and that there is nothing in clause 27 to require the use of MH in every case where it could potentially apply. For the removal of all doubt, however, it will be necessary to clarify the position before the bill is introduced.

  8.  The choice of structure: in theory it might be assumed, as in paragraph 5 above, that MI would be preferred in cases of compliance and MH in cases of resistance. Certainly when P lacks capacity and is resisting, Part 5 of the MH bill seems to imply that full MH regulation should be used. But since the MI bill, clause 7 and 10, would allow resistance to be overborne in certain circumstances, it appears that MI would be available in those circumstances despite P's resistance. Some clarification will be required here before these structures are finalised and the following points might be borne in mind.

  9.  From the point of view of the care providers the process of applying for MH powers might be regarded as cumbersome and, if P is already receiving care under MI, there might be every incentive to continue under that scheme. From P's point of view, on the other hand, there are advantages and disadvantages to both systems. Decisions taken under MI would have to be in P's best interests, not so under MH. But MH might offer better automatic safeguards through the need for tribunal approval. Under MI there would be supervision by the Public Guardian (cl 48(1) (c) and (h)) but it seems unlikely that the Public Guardian will be sufficiently resourced to provide regular automatic supervision of all donees of lasting powers of attorney. In Victoria the absence of effective safeguards for those under guardianship was a common concern.

  10.  In addition the relevance attaching to advance decisions to refuse treatment must be considered. Under MI advance decisions, when valid and applicable, must be respected. Under MH there is no such provision and, since the refusal of treatment by a patient currently having capacity can be overridden under MH, there is no suggestion that a refusal made in advance will attract any more respect. This issue certainly requires clarification. It would obviously be possible for either MI or MH to change its position. But if, as seems more likely, both the MI provisions on, and the MH attitude towards advance decisions remain unaltered, then the decision to use MH rather than MI would deprive P of the benefit of any advance decision in relation to treatment for mental disorder. In such circumstances guidelines might have to be developed to govern the choice of structure. Unless such guidelines were to deny all significance to advance decisions in relation to treatment for mental disorder by recommending the invariable use of MH, they would have to recommend the use of MI in certain circumstances. Ironically, this could mean that a refusal of treatment made in advance would carry greater weight than a refusal made with capacity at the time.

  11.  Finally, when P is not resisting the presumption is likely to be that MI will be used unless P is in hospital, in which case Part 5 of the MH bill, as presently drafted, would be relevant. The use of MI rather than MH in these cases has advantages for carers and professionals and for P herself, but it raises again the question of safeguards. The non-resisting person who lacks capacity may be very severely disabled and hence peculiarly vulnerable. Such a person might be effectively "detained" either in his or her home or in some form of residential care, and might be subject to regular medication. Every effort must be made to ensure an adequate level of safeguard particularly when P is not resident in hospital. The position here may of course require revision subsequent to the awaited ECrtHR decision in Bournewood.

  12.  In summary the position of those people who could potentially be covered by either bill needs extensive clarification. In particular attention needs to be paid to the precise meaning of clause 27, the relative advantages and disadvantages of both structures for all those concerned, and the significance of advance decisions.

August 2003

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