130.Memorandum from Mind (MIB 1060)
Mind is the leading mental health charity and
works for a better life for everyone with experience of mental
Advancing the views, needs and ambitions
of people with experience of mental distress.
Promoting inclusion through challenging
Influencing policy through campaigning
Inspiring the development of quality
services which reflect expressed need and diversity.
Achieving equal civil and legal rights
through campaigning and education.
Mind is a member of the Making Decisions Alliance
and supports the general thrust of the response submitted on behalf
of the Alliance. We therefore confine our response to some additional
issues, which in our view are particularly relevant for people
with mental health problems.
Central to the Bill is a concept of best interests.
The Bill states that "Regard must be had" to the individual's
past and present wishes and feelings. However this fails to give
adequate weight to the individual's past and present wishes and
feelings, or to the views of any person appointed by the individual
to act on their behalf. Often the past and present wishes and
feelings of a person diagnosed with a mental health problem are
easily ascertainable, as they may have lost capacity only recently
or have fluctuating capacity.
We would also like to see the list of factors
to take into account in determining best interests to be expanded
in line with the Scottish Adults with incapacity Act to emphasise
protecting the individual from on overzealous use of the power
and to enhance the principle of autonomy.
In our view there should be
more weight should be given to the views of a person
who has been specifically nominated to be consulted (for instance
under the Mental Health Act) or appointed as an attorney under
a Lasting Power of Attorney; and
3. MEDICAL TREATMENT
The general authority
This covers the right to consent to and to refuse
medical treatment on the individual's behalf (subject to an advance
decision). However nothing in the Act authorises anyone to give
a patient medical treatment for mental disorder, or to consent
to a patient being given medical treatment for mental disorder,
when this is governed by Part IV of the Mental Health Act 1983,
that is for people who have already been sectioned.
The general authority does not authorise a person
"to use, or threaten to use, force
to secure the doing of an act which P resists, or to restrict
P's liberty of movement whether or not P resists, unless the person
reasonably believe that it is necessary to do so to avert a substantial
risk of significant harm to P".
We are concerned about the situation for those
who are not subject to the compulsory treatment provisions under
the Mental Health Act.
People with mental health problems should not
be subject to confinement or unregulated coercion, force, or potentially
dangerous treatments for their mental health problems without
adequate safeguards as would apply under mental health legislation.
In our response to the Law Commission in 1995 Mind stated that
we believed that a person should not be confined or forced to
act "unless such action is essential to prevent an immediate
risk of serious physical harm to that person or others".
It follows that we would recommend narrowing the provisions of
the current Bill to require an immediate risk and also to limit
it to physical harm. Outside that situation we believe that there
should be no power to administer medical treatment for a person's
medical condition when they are resisting treatment.
Where a patient gives another (the donee) a
power to make medical decisions on their behalf the situation
may seem a little different. If a person nominates someone they
trust to take care of their health in the event of their incapacity
they may prefer that this person has the power (either under an
LPA or by advance directive) to decide whether treatment should
be given in the face of their opposition than for them to be subject
to the control of medical professionals under compulsory powers.
The Draft Mental Health Bill limits the clinical supervisor's
power to impose treatment on resisting patients who lack capacity
to a situation of "urgency".
There needs to be a balance between respect
for the patient's choice and for the patient's safety. There may
be room for some interventions (for instance the routine administration
of medication) that could occur with a second opinion or a court
order rather than through compulsory powers. There is also a distinction
between a situation where the person without capacity is reluctant
to take regular prescribed medication and one where real force
must be administered. We acknowledge that it will require some
consultation and further thought to draft appropriate criteria
but the Code of Practice could be used to give examples. In our
view the Bill as drafted is too broad.
4. MEDICAL TREATMENTSAFEGUARDS
Even where the person without capacity is not
resisting treatment we believe that there should be a second medical
opinion in the same circumstances as one is required under the
Mental Health Act (long-term medication, ECT). Extra safeguards
should exist for more invasive or controversial procedures (including
but not limited to invasive treatments for mental disorder).
No provision is made for identifying the person
responsible for determining whether P has capacity at the relevant
time. If a person is sectioned or has a diagnosis of mental disorder
we believe there may be problems if it is solely up to the treating
psychiatrist to determine capacity.
There is a risk in relation to treatment for
mental disorder that a person will be assessed as not having capacity
when they are refusing treatment and someone else may consent
on their behalf, or a LPA or the general authority will be used.
Again this would bring people outside of the safety structure
as the Bill is currently drafted.
We believe that there needs to be clearer guidance
about who assesses capacity and when. This will need to be clarified
in the Code of Practice.
In addition, it may be necessary to be more
explicit in the Code of practice that "irrational" decisions
will not necessarily indicate a lack of capacity. The Bill says
that a person is entitled to make unwise decisions, but we do
not believe this goes far enough. There may be a difference in
substance between a lack of wisdom and what may be seen as irrationality.
In particular, decisions based on unshared perception should not
lead to a presumption of incapacity.
No provision appears to be made for appealing
a medical capacity/incapacity decision. Complexity or difficulties
in obtaining public funding may mean that in fact capacity decisions
continue to be made by psychiatrists treating P (or RMOs) and
this would constitute a disincentive to appealing such decisions.
This is particularly significant, as the validity of advance decisions
will depend upon the assessment of capacity. We are concerned
to ensure that the opportunities for disregarding such decisions
are minimised. It may be worth considering whether there needs
to be a procedure for independent second opinion doctors and recording/certification
in relation to assessment of capacity as well as treatment decisions.
(cf. SOADs under current MHA).
The Bill arguably leaves uncertainty as to when
independent scrutiny of capacity/incapacity decisions may occur.
There is provision for the Court to exercise a power to call for
reports and a Medical Visitor can carry out a medical examination
of P in private. But this only occurs if the case comes to court,
and even then, not always. Rather, it is only if the Court requires,
and the circumstances when this may happen are left open. It could
be commented that the Bill makes more comprehensive provision
for protection of attorneys from liability! (eg Part 5, Schedule
6. ADVANCE DECISIONS
The Bill makes specific provisions for the recognition
and enforcement of advance refusals to accept treatment.
Although we welcome the inclusion of advance
decisions no direct reference is made to the relationship between
Advance Decisions and the Mental Health Act. We are disappointed
that an individual cannot use an advance decision to refuse treatment
authorised under the compulsory treatment provisions of the Mental
Health Act. This is a development that Mind wished to be included
and would have enhanced the other provisions concerned with bodily
integrity as protected by the European Convention on Human Rights.
This would have been in line with our view that treatment under
mental health legislation should be also be based on incapacity
and best interests.
We understand the reasons that positive advance
decisions are not included in the Bill. However, we do not see
why expressions of preference should not be taken into account
when they relate to method rather than result. This is particularly
relevant for people with fluctuating capacity, who may be able
to plan for periods of incapacity and may well have learned from
past experiences. If a person knows that a particular medication
or treatment works for them then we believe that they should be
able to record that fact. Because the Bill is not robust enough
in relation to the duty to take wishes and feelings into account
we believe that it would be helpful to allow people to express
their wishes in advance in limited circumstances. Further more
many features of an advance decision could cover matters other
7. CODES OF
The binding power of the Code could be strengthened
on the face of the Billespecially since the Court of Appeal
decision in relation to the Mental Health Act Code of Practice.
Why say that the duty is merely to "have regard to"
the Code? We believe that it will be unlawful for a public body
to depart from a Code of Practice unless there are compelling
circumstances in an individual case. This is particularly so where
the Code relates to rights protected under the European Convention
(as most of them will under Art 8right to respect for private
and family life). The group protected by the proposed legislation
is a vulnerable one and in many cases they will find it hard to
bring legal proceedings. The status of the Codes of Practice should
be upgraded and simplified so as to confer greater immediate protection
from decisions that may infringe human rights. This in turn could
reduce the need to go to court for the purpose of determining
when the Code may be departed from.
Related to this point is the fact that there
is no obvious sanction for not complying with the legislation.
Because of the generality of the Bill we suspect that it will
actually be incredibly difficult to challenge decisions made under
it. People concerned with the care of a person without capacity
will retain a huge amount of discretion and there will be a lot
left to subjective determination. The provisions about assessment
and treatment, and the status of the Codes, should be much more
robust if they are to afford any real protection to people without
mental capacity, or guidance to those involved with their care.
Mind is in favour of advocates being available
to anyone who would find them helpful. However, we believe that
there are important differences between mental health legislation
and incapacity legislation. Mental health law provides the power
to detain and treat a person against their express wishes, and
regardless of their capacity or "best interests". For
this reason we feel much more strongly about their involvement
in such decisions.
Where advocates are available we believe that
they should have some status so that what they say on behalf of
their client cannot easily be disregarded. Otherwise there is
a risk that their involvement will merely be tokenism. If advocates
have a recognised status they will also have a corresponding duty,
which might involve greater regulation and training. It should
also be acknowledged that access to advocates is not a substitute
for access to legal advice and redress.