[33]
This is recognised in the Mental Health (Care and Treatment)
(Scotland) Act 2003
which provides that the patient's ability to make treatment
decisions must be 'significantly impaired' by mental disorder
before a compulsory order can be made.[34]
Furthermore, where a patient is deemed
to be "at substantial risk of causing serious harm to other
persons" he/she will be subject to compulsory powers regardless
of the patient's willingness to accept treatment.[35]
This does not accord with the principle stated in the Bill that
interference to patients and restrictions should be kept to the
minimum necessary.[36]
Under Part 2 of the 1983 Act people with a mental disorder which
would render them a danger to others are not subject to compulsory
powers if they accept treatment voluntarily.
2a) Is the definition of Mental Disorder appropriate
and unambiguous?
"Mental disorder" is defined in the
Bill as "an impairment of or a disturbance in the functioning
of the mind or brain resulting from any disability or disorder
of the mind or brain".[37]
The Law Society is concerned that this is a circular definition
and fails to exclude people who suffer a temporary impairment
or disturbance in the functioning of the mind or brain as a result
of a physical condition such as diabetes. We believe that this
definition is too wide and many conditions that could never result
in detention or compulsory treatment under the current legislation
will come within the scope of the Bill.[38]
The Mental Health (Care and Treatment) (Scotland) Act 2003 provides
a far tighter and more straightforward definition of mental disorder.[39]
2b) Are the conditions for treatment
and care under compulsion sufficiently stringent?
The relevant conditions
are set out in clause 9. The first condition is that the
patient is suffering from mental disorder. Please see comments
above at 2a).
The second condition is that
the mental disorder is of such a nature or degree as to warrant
the provision of medical treatment to the patient.
The Law Society is concerned that this
condition is too broad, as it provides that the mental disorder
must be of a nature or degree to warrant the provision of medical
treatment rather than the provision of compulsory medical treatment.
This means that the mental disorder does not have to be serious
enough to justify overriding the wishes of the patient, but merely
serious enough to justify specialist treatment. This is a lower
threshold than the one in the 1983 Act whereby the mental disorder
must be of a nature or degree to require compulsory detention
in hospital.[40]
We are also concerned
that the definition of 'medical treatment' further undermines
the purpose of this condition, which the explanatory notes argues
is "to ensure that only those with a serious mental disorder
can meet the conditions."[41]
Medical treatment is defined as "treatment for mental disorder
provided under the supervision of an approved clinician"
and the explanatory notes confirm that approved clinicians will
be senior specialists such as consultant psychiatrists and consultant
psychologists.[42]
Under this definition of medical treatment, the 'nature or degree'
of the mental disorder would not need to be particularly serious.
For example, it could apply to a person with schizophrenia who
is stable and compliant with oral medication prescribed by a GP
and receives monthly visits from a Community Psychiatric Nurse
and who then decides, against the advice of the Nurse, to discontinue
these visits.[43]
Such a person would fall within the ambit of compulsory powers
even if they retained capacity to make treatment decisions. This
may provide an unintended incentive not to accept help from the
community mental health team.
The third condition is that it
is necessary that medical treatment be provided to the patient
to protect him/her from suicide or serious self-harm, or from
serious neglect by the patient of his/her health and safety, and/or
to protect other people.
The Law Society believes that this condition
is flawed because of the Bill's failure to take into account the
patient's capacity to make treatment decisions. The requirement
that treatment must protect the patient from 'suicide or serious
self-harm, or from serious neglect by him of his health and safety'
is too narrow for people who lack capacity and come within the
ambit of the Bill. For example, it would prevent treatment being
provided to an incapacitated patient who resists treatment but
presents a low level of risk.[44]
On the other hand, where a person has capacity to make treatment
decisions this condition is too wide. Such a person should only
be subject to compulsory powers in clearly defined and limited
circumstances, such as where there is a significant risk to the
health and safety of the patient or the safety of others.
We are also concerned that the phrase
'to protect other people' is potentially very wide indeed. Crucially
the Bill breaks the link in the 1983 Act between the need to protect
the public and the requirement that it is necessary for the patient
to receive treatment in hospital. The Bill therefore establishes
a lower threshold for the use of compulsion and in a risk-averse
society such as ours, it is quite easy to imagine that mere nuisance
behaviour could be used to justify making a person subject to
compulsory powers in the community. This raises the alarming
possibility of using mental health legislation to create psychiatric
ASBOs.[45]
The fourth condition is that
the treatment cannot be lawfully provided to the patient without
him/her being subject to the provisions of the Act. This would
exclude from the remit of the Bill people who lack mental capacity
whose treatment could lawfully be provided under the Mental Capacity
Bill.[46] It is therefore
likely that the Bill will mainly be used to impose treatment on
people who have capacity but refuse treatment.
This raises the issue of what level
of service needs to be offered to an individual on a voluntary
basis before the use of compulsory powers can be justified. There
is clear evidence that many patients are willing to accept treatment
voluntarily if they are given high levels of support.[47]
There may be discrimination issues if patients in some parts
of the country are more likely to be subject to compulsory powers
than those in other areas due to the patchy distribution of high
level good quality community services.
The fifth condition is that medical
treatment is available which is appropriate in a patient's case,
taking all circumstances into account. The explanatory notes
state that no one can be brought under formal powers unless treatment
is available in the individual case.[48]
The Law Society is disappointed
that the Bill does not specify that medical treatment must provide
a health benefit to the patient. It may be that the Government
intends 'appropriate' to mean 'a health benefit' but if this is
the case it should be stated on the face of the Bill. The Government
has argued that some people with personality disorders have not
been brought under formal powers because of uncertainty about
whether their personality disorder can be 'treated'.[49]
However, court judgements have clearly established a wide meaning
of treatability under the 1983 Act.[50]
The Law Society believes that that the concept of a 'health benefit'
would ensure that the use of compulsory powers is in the best
interests of the patient's health needs.
The Law Society is also concerned that
the Bill has removed the exemptions under the 1983 Act which specified
that a person cannot be dealt with as suffering from a mental
disorder by reason only of promiscuity or other immoral conduct,
sexual deviancy or dependence on alcohol or drugs.[51]
This helps to ensure that conditions and behaviour, which on
their own should not be regarded as a mental disorder, are excluded
from mental health legislation. We also believe that exemptions
help ensure that practitioners consider carefully the basis for
compulsory detention and treatment.
We believe that the Bill's conditions
for compulsory care and treatment are too broad. This is illustrated
by the fact that a smoker, who has tried and failed to give up,
would apparently meet all the relevant conditions in clause 9.[52]
The Government may claim that such situations are unlikely to
arise because the good sense and discretion of doctors can be
relied upon. However the Bill gives clinicians no discretion
about the use of compulsory powers if the relevant conditions
are satisfied.[53] The
Law Society believes that patients' rights will only be protected
by tightly defined relevant conditions and by providing clinicians
with discretion about the use of compulsory powers.
In addition, the Law Society believes
that the criteria for treatment and care of patients who are subject
to criminal proceedings under Part 3 of the Bill are not sufficiently
stringent. We are concerned that the conditions for remand or
committal for compulsory medical treatment are significantly broader
than the criteria for compulsory treatment under Part 2. This
provides greater opportunities to subject people to compulsory
treatment as an alternative or in addition to a criminal disposal.
Any person charged with a criminal offence could be brought within
the exercise of compulsory powers if he/she is suffering from
a mental disorder of a nature or degree to warrant the provision
of medical treatment and where appropriate medical treatment is
available. This is irrespective of whether treatment is necessary
for their health or safety or the protection of others. We believe
there should be greater congruence in the criteria for compulsory
treatment for civil patients and those subject to criminal proceedings
and under sentence.
2c) Are the provisions for assessment and treatment
in the community adequate and sufficient?
The Law Society believes that the Government plans
for community assessment and treatment are impracticable. The
experience of supervised discharge under s25A of the 1983 Act
illustrates that where people in the community are 'required'
to comply with certain conditions, this has proved difficult to
enforce.[54]
Under the Bill, a clinical supervisor is given the power to 'take
and convey' a non-resident patient back to hospital where he/she
fails to comply with the conditions, however it is not made clear
how this is to be achieved.[55]
The use of a warrant under clause 225 may be intended for this
purpose but would be dependent on police and ambulance availability
and resources. Also, since the patient must be detained within
24 hours, it is likely that a hospital bed must be kept free thus
putting extra strain on limited resources.[56]
The Government intends to use regulations to limit
the types of cases where a patient can be compulsorily assessed
in the community without an immediately preceding hospital admission.
The explanatory notes give the example of a "revolving door"
patient.[57]
However, in light of the wide definitions and low thresholds
for compulsory treatment in the Bill, we are concerned that this
provision will be applied to a wider group of patients than intended.
3. Does the draft Bill achieve the right balance
between protecting the personal and human rights of the mentally
ill on one hand, and concerns for public and personal safety on
the other?
The Law Society believes that the Bill unfairly
discriminates against people with mental disorders. It makes
non-offending individuals with a mental disorder who have capacity
subject to compulsory powers, but does not explain why this is
justified when people without mental disorders who have capacity
and who pose as much risk to themselves or others, such as binge-drinkers,
are subjected to the same powers.
This may be based on the misconception that it
is a lack of legal powers which places the public at risk from
people suffering from mental disorder. The various homicide inquiries
overwhelmingly show that it is lack of resources, lack of information
and lack of communication that causes care and treatment to break
down in such a way as to increase the likelihood of a tragedy.[58]
Increased legal powers, such as community treatment orders, will
not improve this situation unless they are backed-up by sufficient
resources and if patients in the community are properly supported
there would be less need for compulsory powers.
We also believe that a significant number of patients
will be denied access to the safeguards provided in the Bill.
Many people who lack capacity due to mental disorder will be
excluded from the Bill and the safeguards it offers, such the
Mental Health Tribunal, because they could be 'lawfully' treated
under the Mental Capacity Bill.[59]
This would include many people who are currently detained under
the 1983 Act. The safeguards provided by the Mental Capacity
Bill are far more limited.[60]
We also believe that the apparent safeguards in
the Bill will not necessarily protect the rights of patients.
For example, a patient would be able to apply to the Mental Health
Tribunal to review the use of compulsory powers, but in order
to be discharged the patient must show that he/she does not meet
the relevant conditions, which are extremely wide (see 2a) above).
Furthermore, the Tribunal has no discretion to discharge an individual
if all the relevant conditions are met and therefore it may be
extremely difficult for a patient to be discharged from the provisions
of the Bill.[61]
4. Are the proposals contained in the Draft Mental
Health Bill necessary, workable, efficient and clear? Are there
any important omissions in the Bill?
We believe that the Bill will only be
workable if there is a dramatic increase in resources. For example,
the new Mental Health Tribunal system would require a significant
increase in the numbers of mental health professionals, approved
clinicians, tribunal members and expert panel members, together
with proper administrative support. However it seems unlikely
that resources will be available in the foreseeable future given
the current staff shortages in the provision of mental health
services.[62]
The proposals are extremely resource
intensive, both in terms of time and money. The Mental Health
Review Tribunal system is struggling to manage at present with
many appeals being cancelled and delayed.[63]
The Bill will lead to a significant increase in the numbers of
hearings and a vast expansion in the types of decisions that tribunals
will have to consider, such as authorising care plans, displacing
nominated persons, authorising ECT and examining whether the relevant
conditions apply. This will require a major change in the culture
of Tribunals.[64] It
is also likely that hearings will be significantly longer, which
will have massive resource implications for recruitment and training.[65]
Furthermore, although the Bill will
require a Mental Health Tribunal to make decisions about a patient's
ongoing treatment and to authorise care plans, the Tribunal will
not be in a position to monitor or police its decisions. This
may result in considerable amounts of litigation when the arrangements
go wrong and people suffer as a result of a Tribunal decision.
Equally, there are likely to be many appeals to the Mental Health
Appeal Tribunal.[66]
We therefore have grave concerns about whether the new expanded
system is realistic and practicable.
As to whether the proposals are clear, the Law
Society refers the Committee to Schedule 5 of the Bill as just
one of many examples of impenetrable lack of clarity.
We believe that the major omission in the Bill
is the right to an assessment of need and the provision of services
for people with mental health problems and their families.[67]
The provision of well-resourced community services reduces the
need for compulsory hospital admission and reflects the principle
of the least restrictive alternative. This is recognised in the
Mental Health (Care and Treatment) (Scotland) Act 2003 which provides
that a local authority shall provide services for people with
a mental disorder, which includes care and support services and
services designed to promote well-being and social development.[68]
The Act also includes a duty to inquire into individual cases
where it appears that a person with a mental disorder is being
ill-treated or neglected.[69]
This issue is ignored in the Bill, which instead focuses on detention
and the use of compulsory powers.
5. Is the proposed institutional framework appropriate
and sufficient for the enforcement of measures contained in the
Draft Bill?
The Law Society believes
that the proposals to create a new Tribunal system are elaborate
and far-reaching. However, even if sufficient resources can be
provided to ensure a fully operational Tribunal system, there
remain serious doubts as to whether it would safeguard patients'
rights.
The relevant conditions in the Bill
are extremely wide (see 2a) above). The Mental Health Tribunal
has no discretion to discharge if all the relevant conditions
are met, and as the conditions are so widely defined, it may be
extremely difficult for a person to be discharged once he/she
has been made subject to the provisions of the Bill.[70]
The Bill does not address the difficulty
that will arise if the Mental Health Tribunal and the approved
clinician cannot agree on the care plan.[71]
If the Tribunal is to have a real role in monitoring the treatment
of patients, the care plans will need to be detailed and precise.
The opportunities for disagreement will be considerable, not
only between any particular Tribunal and the approved clinician,
but also between one Tribunal and the next. It will be logistically
impossible to ensure continuity of tribunal membership as a patient's
care develops. It will therefore be necessary for the approved
clinician to re-argue the whole case before each Tribunal, as
the new Tribunal members will have to be satisfied on their own
account that the treatment plan is appropriate.
We are also concerned that the Bill
proposes to give criminal courts the power to issue Mental Health
Orders for up to 6 months on a person subject to criminal proceedings.[72]
The court will be required to approve a care plan authorising
compulsory treatment for resident and non-resident patients.
We believe that criminal courts will lack the benefit of the experience
and expertise of the Mental Health Tribunal.[73]
We are particularly concerned that the court is not under a duty
to appoint a member of the Expert Panel to assist in this task.
Furthermore, all discussions about care plans will need to be
held in closed sessions for reasons of confidentiality and the
length of time these discussions could take may cause major disruption
to court lists.
6. Are the safeguards against abuse
adequate? Are the safeguards in respect of particularly vulnerable
groups, for example children, sufficient? Are there enough safeguards
against misuse of aggressive procedures such as ECT and psychosurgery?
The role of carers and the nominated person
The Law Society is concerned that the
Bill removes the status of nearest relative and abolishes some
of the important rights which families have in relation to the
exercise of compulsory powers.[74]
The Bill provides that any carer and any person with parental
responsibility must be consulted before a determination is made.
However this is subject to the significant limitation, that it
does not apply if the consulter considers it 'inappropriate' or
'impracticable'.[75]
The Law Society is concerned at the reduction of rights for families
to question the need for compulsory powers. We believe that this
is an inadequate replacement of the right of the nearest relative
under the 1983 Act to be consulted over compulsory admission,
and, more importantly the right to object to compulsory admission
for treatment.
The Law Society does not believe that
the role of the nominated person will provide an adequate replacement
of the rights and powers of the nearest relative. Under the Bill
the nominated person is not appointed until after the patient
becomes liable to assessment, whereas under the 1983 Act the nearest
relative is involved prior to the decision to impose compulsory
powers.[76] This is
a major reduction in an important safeguard. The nominated person
has rights to be consulted over the wishes and feelings of the
patient in relation to compulsory treatment and can apply to the
Mental Health Tribunal for the patient's discharge.[77]
However, this is again an inadequate replacement of the nearest
relative's right to ask the hospital managers to grant discharge
under the 1983 Act.[78]
The safeguards in relation to ECT
and other aggressive treatment.
The Bill identifies ECT as a treatment
calling for special safeguards, in that a patient who retains
capacity may refuse it.[79]
However, this is this is subject to an emergency power to give
ECT.[80] It is difficult
to envisage circumstances where the emergency power will apply
yet the patient would retain capacity. The Law Society would
therefore question the need for this emergency provision.
7. Is the balance struck between
what has been included on the face of the Draft Bill and what
goes into Regulations and the Code of Practices right?
The Law Society is concerned that the amount of
information left to Regulations and the Code makes it impossible
to understand the full aspects of the Bill. The Bill sets out
that most patients will be assessed in hospital but a small group,
to be outlined in Regulations, will be assessed in the community
without a preceding hospital admission.[81]
Regulations will enable Ministers to disqualify certain categories
of people from being nominated persons.[82]
The Bill also fails to define what it means by 'type B' medical
treatments, which would be subject to special safeguards. Once
again this will be defined in regulations, as will the safeguards
which will be available.[83]
It may be that the Regulations and Code
of Practice will render less objectionable some of the provisions
in the Bill. However, it is just as likely that the Regulations
and Code of Practice will limit or undermine some of the apparent
safeguards and benefits of the Bill. Until we see the Code of
Practice and the Regulations, we cannot really comment any further.
8. Is the Draft Mental Health Bill adequately
integrated with the Mental Capacity Bill (as introduced in the
House of Commons on 17th July 2004)?
The Law Society is concerned that the relationship
between the Draft Mental Health Bill and Mental Capacity Bill
will be complex and confusing.
Under the Mental Capacity Bill a doctor can treat
an incapacitated person in his/her best interests.[84]
This includes using restraint, whether or not the incapacitated
person resists, if this is necessary to prevent harm and is proportionate
to the likelihood of the incapacitated person suffering harm and
the seriousness of that harm. Treatment cannot be provided where
the incapacitated person has an Attorney or a court appointed
deputy who objects.[85]
In that case the doctor could apply to the court to challenge
that person's objection but in the meantime could provide life-sustaining
treatment or do any act which he/she reasonably believed to be
necessary to prevent a serious deterioration in the incapacitated
person's condition.[86]
The Draft Mental Health Bill provides that an
individual cannot be subject to compulsory powers unless "medical
treatment cannot lawfully be provided to the patient without him
being subject to the provisions of this Part".[87]
This means that if a person lacks capacity and can be treated
under the Mental Capacity Bill, he/she cannot come under the Draft
Mental Health Bill. However if the incapacitated person's Attorney
or deputy refuses to agree to medical treatment, the Mental Capacity
Bill cannot be used to authorise treatment and they would be subject
to the Draft Mental Health Bill if the other conditions under
clause 9 are met. This raises a number of complicated scenarios:
-
- A person ('P') with a mental disorder has
capacity to make treatment decisions but does not have an Attorney
or a deputy. If P refuses treatment
and the other relevant conditions are met, P will be made subject
to Draft Mental Health Bill. However if P then loses capacity
he/she will have to be discharged from the Draft Mental Health
Bill and treated under the Mental Capacity Bill. If P then regains
capacity, P can no longer be treated under the Mental Capacity
Bill and he/she will have to be re-assessed under the Draft Mental
Health Bill.
- A person ('D') with mental disorder has
capacity and has made a valid Lasting Power of Attorney.
If D refuses treatment and meets the relevant conditions, he/she
will be made subject to the Draft Mental Health Bill. If D then
loses capacity and the Attorney consents to the continuing treatment,
D must be discharged from the Draft Mental Health Bill because
treatment could lawfully be provided under the Mental Capacity
Bill.
However if the Attorney does not consent to the
continuing treatment, the doctor must apply to the Court of Protection
to continue treatment. In the meantime the doctor can continue
to treat the patient under the Mental Capacity Bill.
- A Person ('C') has made a valid advance
decision under the Mental Capacity Bill refusing admission to
psychiatric hospital and/or the provision of psychiatric medication
should they lose capacity in the future.
In this case C could not be treated under the Mental Capacity
Bill, whether or not his/her Attorney or deputy consented and
would have to be treated under the Draft Mental Health Bill, so
long as all the relevant conditions in clause 9 applied.
Under the Draft Mental Health Bill, the clinical
supervisor must discharge a treatment order if at any time he/she
is not satisfied that all of the relevant conditions are met in
the patient's case.[88]
This means that if the patient loses capacity and can be treated
under the Mental Capacity Bill, he/she must be discharged from
the Draft Mental Health Bill.[89]
Therefore the clinical supervisor must keep the patient's capacity
under constant review and discharge the patient as soon as he/she
becomes aware that the patient has lost capacity to make treatment
decisions (unless the patient has an Attorney or deputy who opposes
treatment, or an advance directive refusing treatment, in which
case treatment cannot be authorised under the Mental Capacity
Bill).
Where a person ('F') has fluctuating capacity
and knows that he/she is likely to need psychiatric treatment
in the future, F could decide beforehand which legislation he/she
wishes to be treated under. If F believes that the Draft Mental
Health Bill provides greater protection, he/she could make an
advance decision to refuse treatment and if F is also intending
to create a Lasting Power of Attorney, he/she could exclude decisions
about psychiatric treatment so that the Attorney cannot override
the advance decision.[90]
If F prefers to be treated under the Mental Capacity Bill legislation,
he/she would not make an advance decision and would exclude decisions
about psychiatric care from any Lasting Power of Attorney. This
would prevent the Attorney refusing to consent to treatment on
behalf of F thus bringing into effect the powers of the Draft
Mental Health Bill.
The Law Society believes that the relationship
between the two Bills is so complex that, in many cases, it would
be practically impossible to work out when one Act should be used
and the other should not.
