DMH 90 Supplementary memorandum from the
Mental Health Act Commission
Annette Toft
Inquiry Manager
Joint Committee on the
Draft Mental Health Bill
Scrutiny Unit
House of Comons
London
SW1P 3JA
Supplementary memorandum
from the Mental Health Act Commission
25 October 2004
Dear Ms Toft
As requested by the Committee,
I have set out below some further points over the interrelation
of the Mental Capacity Bill and the draft Mental Health Bill,
with specific reference to Clause 28 of the Mental Capacity Bill.
1.1 We believe that the
objective of the Mental Capacity and Mental Health Bills must
be to afford the maximum possible protection for individuals who
are subjected to treatment under their powers whilst also providing
a robust legal framework for decision-makers. To this end, it
is necessary in our view to establish as great a certainty in
the consequences of the wording and interrelation of each Bill
as possible. This implies that it should be apparent which of
the two legal frameworks provided by mental capacity and mental
health laws should form the basis of a patient's treatment, whether
the determining factors rest upon classifications of patients,
classifications of treatments, or classifications of wider circumstances.
1.2 It is evident that
both the Mental Capacity Bill and draft Mental Health Bill deal
potentially with the same range of medical treatments. It follows
from this that there is a wide potential overlap between 'medical
treatment for mental disorder' as defined under the draft Mental
Health Bill and matters regarding the care and treatment of patients
that would fall to decision-making under the Mental Capacity Bill.
1.3 The Mental Capacity
Bill at Clause 28 appears to establish the relationship between
that Bill and the Mental Health Act. It provides that nothing
in that Bill would authorise anyone to give a patient 'medical
treatment for mental disorder' (or to consent to such treatment
being given to that patient) if, at the time of that treatment,
the patient's medical treatment for mental disorder is regulated
under Part 4 of the Mental Health Act (or its equivalent: Part
5 of the draft Mental Health Bill).
1.4 The effect of the
Mental Capacity Bill's Clause 28 is simply to state that, where
a patient is already receiving treatment under the authority of
the Mental Health Act, the Mental Health Act's powers will always
be deemed to override powers of the Mental Capacity Bill. We
think that this statement, although setting a priority of effect
that is not in itself without value (although itself far from
clear in practical effect), fails to address the more fundamental
question of which law practitioners should turn to when considering
the administration of treatments in the absence of consent.
1.5 As any type of medical
treatment for mental disorder will fall within Part 4 of the current
Act (or Part 5 of the draft Bill), the reference to these parts
at the Capacity Bill Clause 28 neither includes nor excludes any
forms of day-to-day psychiatric treatment from the reach of either
Bill. In this way the treatment proposed will have no bearing
over which of the Mental Capacity or Mental Health Acts might
be the appropriate legal framework for its imposition in the absence
of consent.
1.6 Clause 28 of the Mental
Capacity Bill is similarly unhelpful in determining whether there
are certain groups of patients, or certain circumstances, that
may be relevant factors in making this choice. It seems to us
very unclear how practitioners are to decide, at the point where
psychiatric treatment of an incapacitated patient is initiated,
whether to use the powers of the Mental Capacity or Mental Health
Acts.
1.7 In our evidence to
the Committee we have pointed to what we see as potential confusion
over whether incapacitated patients' psychiatric treatment will
fall under the Mental Capacity Bill or Mental Health Act. The
draft Mental Health Bill proposes as a condition of using its
formal powers that, except in the case of patients posing a substantial
risk of serious harm to others, there must be no other lawful
route to provide necessary treatment. This would appear to prioritise
the Mental Capacity Bill's powers over those proposed by the draft
Mental Health Bill when practitioners are initiating treatment
of an incapacitated patient. The Mental Capacity Bill provides
no check on its powers being used in the face of resistance from
the patient, so there could be no distinction made between patients
who are compliant to treatment and those who are resisting their
treatment. We do not believe, however, that the Mental Capacity
Bill was drafted with the intention that its powers should extend
to provide the authority and safeguards for the psychiatric treatment
of all mentally incapacitated patients, with Mental Health Act
powers used only to provide treatment in the face of competent
refusals of consent, or in situations where there is substantial
risk of serious harm to others.
1.8 In our evidence to
the Committee we have already flagged our concern that the safeguards
provided for patients under the Mental Capacity Bill would be
insufficient in the light of the judgment in H.L v United Kingdom.
If patients are to be detained for psychiatric treatment under
Mental Capacity Bill's proposed powers then there is surely a
strong case for instigating stronger safeguards, including Tribunal-based
approval of long-term powers and reviews of treatment. The strengthening
of safeguards in the Mental Capacity Bill could, of course, encourage
its use as a means of psychiatric detention alternative to the
Mental Health Bill. Inconsistencies across the two Bills in relation
to practical measures (such as advocacy arrangements) and more
conceptual matters (such as the role of capacitated decision-making)
may cause legal difficulties, particularly as some patients' care
may move back and forth from one statutory framework to the other
as their mental capacity changes over time. There will surely
be considerable pressure, even after enactment, for a standardisation
of the effects of each Bill in respect of psychiatric treatment
without consent.
1.9 Alternatively, the
Committee may wish to consider whether it could be appropriate
to seek a formulation that reserves powers of enforced psychiatric
treatment to a Mental Health Act, leaving only less coercive measures
in the scope of a Mental Capacity Bill. This would not, in our
view, necessarily absolve the Capacity Bill from its current difficulties
following H.L v United Kingdom, nor is it easily apparent
how such a formulation is to be achieved. In the time available
to the Commission we have not been able to provide any concrete
suggestions as to how a distinction of this sort might be formulated,
and we do recognise the difficulties of definition that arise.
I hope that this letter
has gone some way towards setting out the problem that needs to
be addressed, even if I have not been able to suggest any ready
solution to it. I hope that the Committee finds this of use and
I shall be happy to expand upon any of these points, or address
any other questions that Committee members may have of the Commission.
Yours sincerely
Christopher Heginbotham
Chief Executive
The definition
of 'medical treatment for mental disorder' in the Mental Health
Bill (and indeed in the current Mental Health Act) is very broad.
The Bill at Clause 2(7) proposes the definition to encompass
nursing; care; therapies; and 'habilitation', the latter to include
education or training in work, social or independent living skills.
The whole of the broad spectrum of 'medical treatment for mental
disorder' will be covered by Part 5 of the draft Mental Health
Bill (in a similar way Part 4 of the current Act covers all such
treatment). Both the current Act and the draft Bill provide authority
to clinicians over certain specified treatments subject to some
safeguards, as well as a general authority for any 'other' (i.e.
unspecified treatments), provided that patients fall within the
legal categories to which each part applies.
See footnote 7 below
The exception here is Neurosurgery
for Mental Disorder and any other treatment listed under section
57 of the Mental Health Act 1983, or any 'Type A' treatment under
the draft Mental Health Bill (Clause 191 et seq). These
rare and hazardous treatments will only be able to be authorised
through the framework of the Mental Health Act.
DMH 20, para 8.3
Draft Mental Health Bill Clause 9(7)
Draft Mental Health Bill Clause 9(5)
It would seem, in part as a consequence
of Clause 28 of the Mental Capacity Bill itself, that where a
practitioner wishes to override any safeguard provided to a patient
under the Mental Capacity Bill (i.e. refusal of consent via an
advance directive, deputy or attorney), this wish may itself constitute
the required condition for formal treatment under the Mental Health
Act. Because of the very different criteria for imposing treatments
(i.e. treatment with ECT may not be given under the Mental Health
Bill in the face of a capacitated refusal of consent, whereas
treatment with medication may be given in such circumstances),
it is unclear what legal consequences might follow from a practitioner
choosing to use Mental Health Act powers to override certain decisions
made under the Mental Capacity Bill, for example an advance directive
refusing consent to ECT. Clause 28 of the Mental Capacity Bill
does not clarify whether, in such circumstances, the patient should
be treated for the purposes of the Mental Health Act as having
refused consent, or to having been incapable of refusing consent.
We can envisage arguments made to the courts of either case.
DMH 20, paras 8.5
- 8.6
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