DMH 378 Memorandum from Genevra Richardson
At the conclusion of my oral evidence to the Committee
on 20 October 2004 I was invited to submit further evidence on
the relationship between the Mental Health Bill and the Mental
Capacity Bill with particular reference to the Bournewood
gap. I now do so.
The Relationship between the Mental Health
and the Mental Capacity Bill
1. The government has published two Bills concerning
similar, but not identical, populations and dealing with some
similar decisions. The Mental Capacity Bill (MC) concerns those,
mainly adults, who lack decision-making capacity, while the Mental
Health Bill (MH) covers people, including children, who have a
mental disorder of the required severity. Both Bills deal with
decisions relating to care and treatment for mental disorder.
So adults:
- who have a mental disorder of sufficient severity
to attract MH powers,
- who require care and treatment for mental disorder,
and
- who lack decision-making capacity,
could fall under the remit of either Bill.
The Present Confused Relationship:
2. MC, clause 28, gives priority to MH powers where
these have already been engaged, but offers no indication of how
the initial choice is to be made. MC further provides that people
acting under the Bill (clause 6), including attorneys and court
appointed deputies (clauses 11 and 20), may in certain circumstances
restrain the incapable person (P). MC therefore envisages the
need to override physical objections on the part of P, suggesting
that its intended remit is to extend beyond the compliant.
3. MH, clause 9, sets out the conditions for the
use of compulsory powers. These would cover people with a mental
disorder, who require treatment for that disorder in order to
protect them from suicide, serious self-harm or serious self-neglect,
or in order to protect others. There is no requirement that the
person must first lack capacity, but many of those who met these
conditions would certainly do so. However, clause 9(5) specifically
excludes from MH powers those who can be lawfully treated without
the use of those powers, provided they pose no serious threat
to others. This suggests that MC might take priority in cases
where care and treatment for mental disorder can be provided under
its remit, provided there is no substantial risk of serious harm
others. This would include most cases where the person lacks capacity.
Indeed, on a very literal reading of MH clause 60, a person who
entered MH powers while having capacity would have to be discharged
from those powers if he or she subsequently lost that capacity.
This could impose on the clinical supervisor a continuing duty
to keep capacity under review.
4. Further clause 9 does not cover people who need
treatment for mental disorder and who lack capacity, but who present
no threat to others and the danger they pose to themselves is
insufficiently severe to meet the clause 9 threshold of risk of
suicide, serious self-harm or serious self-neglect. Such people
would have to be treated under MC, if at all, even if they were
non-compliant.
5. There is therefore a considerable area of ambiguity
and possible overlap. This uncertainty matters in a number of
different ways and in certain crucial respects cannot be left
to resolution through the Codes of Practice.
Implications for patients.
6. It matters for patients because the choice of
framework will carry significant implications. In many respects
the provisions of MC might be preferable because all decisions
would have to be made in P's best interests, the principle of
least restriction would apply, a valid advance decision would
be respected, a single framework would apply to all decisions
P was unable to make for him or herself and there would be less
stigma. However, under MC P would enjoy less rigorous safeguards
than those which would apply under MH (see below).
Implications for carers and health professionals.
7. The uncertainty also matters for carers and for
health professionals who need to know with as much clarity as
possible which framework to apply. It is possible that they too
might have a preference for MC powers because they would involve
less bureaucracy and would place all decisions under the same
framework, an issue of particular importance in relation to medical
care and treatment. To some extent the required clarity might
be achieved through Codes of Practice but some of the issues reach
beyond the proper scope of a Code.
Safeguards and Bournewood.
8. While it might be possible to accommodate most
of the above issues by selective redrafting of both Bills and
the production of carefully co-ordinated Codes of Practice, this
would not deal with the central issue of safeguards. MC provides
far less rigorous safeguards to the patient, in relation to both
treatment and the deprivation of liberty, than does MH. It is
hard to justify this distinction in anything other than pragmatic
terms and it is now evident that no pragmatic justification for
the absence in MC of adequate safeguards in relation to the deprivation
of liberty will suffice. The HL decision of the ECrtHR
is quite clear that the common law regime under which individuals
who lack the capacity to consent are currently deprived of their
liberty in hospital fails to comply with the requirements of either
article 5.1 or article 5.4. The detention in hospital under the
authority of the common law is itself unlawful, since there are
no formal admission procedures, no clarity over the purpose of
admission and insufficient safeguards to protect against arbitrary
detention, as required by article 5.1. Also there is no access
to a court to determine the legality of the detention under article
5.4. Although this note is primarily concerned with those people
who are deprived of their liberty within hospital, the reasoning
of the court in HL could apply equally in respect of those
detained in non-hospital institutions.
HL and both
Bills.
9. In broad terms the provisions of MH are designed
to comply with the requirements of article 5. The same is not
true of MC. Significantly perhaps the explanatory notes accompanying
MC make no mention of article 5 in their section Compatibility
with ECHR .
10. Article 5.1: MC has been drafted with
no appreciation of the implications of the fact that the people
resident in hospital under its provisions would often be detained
in the terms of the ECHR. As a consequence no provision has been
made for the formal recognition of detention, its recording, its
justification and its review. While the substantive provisions
of the Bill are such as to render detention under its powers potentially
lawful under 5.1, there are insufficient procedural safeguards.
And, according to the court in HL, lawfulness under 5.1
requires 'the existence in domestic law of adequate legal protections
and "fair and proper procedures"'(para115).
11. Article 5.4: The breach of article 5.4
is perhaps even more obvious. In HL the court refused to
accept that either proceedings for judicial review or habeas corpus,
or the ability to seek declaratory relief from the High Court
could satisfy the requirements of article 5.4. Neither the developments
in judicial review following the Human Rights Act nor the present
extension of the role of the Court of Protection under the Bill
would be sufficient to fill the gap. In theory the role of the
Court of Protection could be amended to do so, but it is not the
obvious body for the task since its expertise lies in the assessment
of decision-making capacity and in the determination of the best
interests of people lacking capacity, not in reviewing detention,
imposing compulsory treatment or approving care plans.
.
12. Quite clearly steps have to be taken to bring
the new provisions into compliance with article 5 and, against
the uncertainties outlined above, those steps must involve redrafting
the primary legislation. There is no single obvious solution but
two distinct and, to some extent, polar options present themselves.
Each has both advantages and disadvantages but it is possible
that a combination of their strengths might eventually be achieved.
As a first step the two options are described below.
The Extension of the Mental Health Bill.
13. On the assumption that the admission and discharge
procedures in MH will comply with article 5, one option would
be to extend the ambit of MH to cover all those who lack capacity
and need treatment for mental disorder in hospital. This could
be done by amending clause 9 to restrict the scope of clause 9(5),
and by extending the conditions to include those with mental disorder
who need medical treatment in hospital in the interests of their
own health and/or safety and who lack the capacity to make the
necessary decisions themselves. This would include both compliant
and non-compliant patients and, because of the breadth of the
definition of medical treatment (clause 2(7)), could include those
who simply require secure accommodation in the interests of their
own safety. Further, in order to remove any residual borderline
issues, it might be necessary to restrict the use of restraint
amounting to the deprivation of liberty under MC to situations
of emergency.
14. Advantages:
- Such an extension would ensure compliance with
article 5.
- It would also clarify the relationship between
MH and MC.
15. Disadvantages:
- The application of full MH requirements to all
patients lacking capacity and requiring treatment in hospital
would have unrealistic resource implications. In part this could
be dealt with by reintroducing provisions similar to those included
in Part 5 of the 2002 Draft Mental Health Bill. These could be
adjusted to enable them to relate specifically to the amended
clause 9 conditions and to provide sufficient procedural formality
within the process of admission to ensure compliance with article
5.1
- Patients without capacity who would now move
from MC to MH would be at a disadvantage unless MH was also amended
to reflect the provisions in MC in relation to best interests,
the least restrictive principle, advance decisions etc.
- The relevance of the MC framework would be significantly
reduced for a significant proportion of those for whom it was
specifically designed: those lacking capacity who require medical
treatment for mental disorder (very broadly defined, clause 2(7))
in conditions amounting to detention under the ECHR.
The Introduction of Enhanced Safeguards in the
Mental Capacity Bill.
16. The procedure for admission to detention could
be tightened up in MC and access to a tribunal to review the legality
of that detention could be introduced. The MC framework might
then become the preferred option for the provision of treatment
and care for mental disorder in hospital in cases where the individual
lacked capacity.
17. Advantages:
- It would achieve compliance with article 5 for
all people detained in hospital who lack capacity.
- It could reduce the need to use MH powers with
all their resource and stigma implications.
- It would enable the provision of treatment for
both mental and physical disorder under the same provisions.
- It would extend the remit of capacity legislation
designed in accordance with the principles of non-discrimination
and respect for patient autonomy.
18. Disadvantages:
- It might be difficult to achieve at this late
stage in the progress of the MC Bill, but it could perhaps be
effected through consequential amendments to the MC Act made subsequently
in the MH Bill.
- There may be a concern that the article 5.1 safeguards
included in MC would be too resource intensive if they replicated
those in MH and included the early automatic involvement of the
tribunal. However, article 5.1 compliant admission procedures
could be devised which were essentially administrative with a
right of appeal to a tribunal.
- There might be fears that the provision of article
5 safeguards in MC would lead to the creation of a second tribunal.
This could be avoided by the creation of a single body to operate
under both MC and MH
- If MC were to become the primary framework for
the provision of treatment in hospital in cases of incapacity,
then attention would need to be paid to the safeguards relating
to treatment provided within that framework: the inclusion of
regular reviews of care and treatment plans, for example, and
access to advocacy services.
- An extension in the coverage of MC would not
solve all the borderline issues unless a matching restriction
in coverage were to be expressly introduced in MH. Thus MH might
be expressly restricted to, for example, the core population of
those who, whether capable or incapable, present a substantial
risk of serious harm to others and possibly those who, despite
being capable, present a similar risk to themselves.
- There would remain a need to provide for the
transfer of an individual from MC to MH if he or she remained
a sufficient risk after regaining capacity.
19. The preceding paragraphs do not provide a comprehensive
answer to the difficulties raised by the interface between the
two Bills, nor to the issues presented by HL. The solution
which is eventually chosen will have to reflect government priorities.
However, it is possible to argue from the above that the weight
of advantage lies with an extension of the Mental Capacity Bill
and a corresponding restriction in the scope of the Mental Health
Bill.
|
