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Joint Committee on the Draft Mental Health Bill Written Evidence
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SUMMARY OF KEY ISSUES
The Royal College of Psychiatrists
is the leading medical authority on mental health in the United
Kingdom and Ireland. The College is pleased to be afforded the
opportunity to present written and oral evidence to the Committee.
The Royal College of
Psychiatrists is a member of the Mental Health Alliance.
SUMMARY OF KEY RECOMMENDATIONS
1. The draft Codes of Practice must
be made available, alongside the draft Bill, in order to fully
to understand the provisions of the Bill.
Question 1
2. Principles should include: non-discrimination,
respect for diversity, respect for personal autonomy, informal
care where possible, reciprocity, least restrictive alternative,
patient participation and consensual care where possible, respect
for carers, patient benefit, child welfare.
Question 2
3. The definition of mental disorder
in the draft Mental Health Bill is satisfactory ONLY if combined
with extremely tight conditions and limitations. Otherwise either
the New Zealand or Australian definitions of mental disorder should
be adopted.
4. The Bill should
contain the following exclusions: Nothing in the conditions for
compulsion shall be construed as implying that a person may be
dealt with under this Act as suffering from mental disorder solely
by reason of: cultural, political or religious beliefs or promiscuity,
sexual deviancy or other immoral conduct or dependence on, or
misuse of alcohol or drugs or impairment of intelligence or the
commission, or threat, of illegal or disorderly acts.
5. Use of the Act should
be prohibited in cases where the capacitous patient willingly
accepts assessment and treatment as recommended by the medical
practitioner.
6. Patients who lack
decision-making capacity must not be excluded from receiving treatment
because they resist treatment and yet present only moderate risk
to their health.
7. There should be
two important additional conditions for compulsion in the draft
Bill:
a. Impaired decision-making
by reason of their mental disorder.
b. In relation to a
treatment order: therapeutic benefit for the patient.
8. Community Treatment
Orders should be available for patients only on authorisation
of the Tribunal after a period of in-patient assessment and whilst
the person suffers impaired decision-making by reason of their
mental disorder. Leave of absence powers enable assessment and
treatment in the community during the assessment period.
Question 3
9. A Tribunal should
not be permitted to authorise a treatment order if it is hearing
an appeal within the first 14 days of the period of assessment.
Question 4
10. Compulsion should
only be possible, other than in an emergency, if two doctors certify
that the patient suffers from a mental disorder satisfying the
conditions.
11. Clinical supervisors
must be qualified to assess if a person meets the conditions for
compulsion in order to be able to keep under review if the conditions
continue to be met.
12. The Mental Health
Tribunal should be permitted to authorise specified medical treatments
only if they are agreed as necessary by both the clinical supervisor
and medical expert panel member.
13. There should be
no limitation of the right to discharge by the Clinical Supervisor
for patients detained under civil sections. The College would
also wish those rights (and associated limitations) currently
available to the nearest relative to be available to the nominated
person.
14. Transfer between
hospitals should require consultation, other than in an emergency,
but without specific time limits.
Question 5
15. Medical treatment,
provided it is not irreversible or hazardous, may be given under
the direction of a registered medical practitioner, within the
first 5 days, if it is necessary to alleviate, or prevent a deterioration,
in the patient's condition.
Question 6
16. Safeguards, both
legal and clinical, for persons under 16 years of age must be
re-evaluated.
17. Changes to the
medication plan after 28 days should be authorised by a medical
member of the Expert Panel, with similar requirements to consultation
as specified. If a full Tribunal was to be required there is a
real danger that either:
a. necessary changes
in medication would be significantly delayed leading to prolonged
suffering and increased risks or
b. the initial treatment
plans authorised would be very broad giving limited or no protections
to the patient.
18. It should be clear
from the legislation, or Code of Practice, that one option for
a care plan presented to a Tribunal would include the statement
that identified treatments will only be given with the patient's
consent (subject to an emergency treatment clause).
19. Electro-convulsive
therapy (ECT) should only be prescribed by qualified psychiatrists.
There should be no compulsory ECT in the face of the refusal of
a capacitous patient. The current provision in relation to surgery
for mental disorder (requiring capacitous consent) should not
be extended.
Question 7
20. The College believes
the principles underpinning the legislation should be on the face
of the Bill, as with the Mental Capacity Bill.
Question 8
21. The rights, and
safeguards, for patients should be the same under the Mental Capacity
and the Mental Health Bills.
Question 9
22. The Mental Health
Act for England and Wales must meet the requirements both of Human
Rights legislation and the recommendations of the Council of Europe.
Question 10
23. Further research
is required to assess the realistic likely impact of the proposals,
on the workforce, in relation to numbers, recruitment and morale.
Additional information
24. A review of the of the Bill's workforce
and service impact in Wales should be undertaken.
25. The
principles and essential provisions of mental health legislation
should not differ significantly between different parts of the
United Kingdom.
INTRODUCTION
Reform of mental health legislation
must be set in context. Improving patient care (including issues
of safety) depends on a range of measures. First it must relate
to reducing stigma and discrimination. Enabling people to feel
able to seek help early, to talk about their fears and difficulties,
without fearing scorn, humiliation or loss of status, freedom,
job and friends would result in a marked improvement in care.
Secondly we cannot escape the need for resources including an
adequate, well-trained workforce and access to a range of treatments
including psychological therapies and new generation of medications.
Patient choice and involvement in their own care and treatment
is as important in psychiatry as any other part of the health
service. Thirdly all law in relation to healthcare should exist
to enable patients to receive treatment, within a clear legal
framework, to improve personal health and well-being, to protect
against abuse and, through these measures, to increase the health
and safety of the nation.
The College has welcomed the many important
Government initiatives (including making mental health a priority,
the NHS plan, the National Service frameworks, the additional
financial investment, the Mental Capacity Bill, the Disability
Discrimination Bill and the report on social exclusion report)
in mental health
Against this background the College
welcomes reform of the Mental Health Act. The provisions of the
current Act (based on the recommendations of the Royal Commission
which set the framework for both the 1959 and the current Mental
Health Act) have fulfilled their functions very well. Nonetheless
the practice of psychiatry (new treatments, more multi-disciplinary
working, much greater patient and carer involvement) and the expectations
and aspirations of patients, their families and staff have changed
substantially. Medicine as a whole, of which psychiatry is an
integral part, has recognised the central importance of both patient
choice and the patient/doctor partnership in decision making.
Discrimination and stigma are unacceptable and their elimination
must be our goal.
One of the unexpected changes, since
the introduction of the 1983 Act, is the doubling in the number
of patients detained under the Act. There is no suggestion of
an equivalent increase in rates of severe mental illness. Likely
explanations include the Nation's reduced tolerance of risk, the
climate of blame within which mental health professionals work
and the reduction in number of acute psychiatric beds. Psychiatrists
are increasingly reluctant to risk their reputation, and perhaps
their career, by respecting a patient's choice if there is ANY
risk in that decision (this is particularly important in the light
of the conditions for compulsion in the draft Bill).
The Royal Commission (Percy Commission)
of the 1950s helped frame mental health legislation which led
the world in reinforcing enlightened psychiatric practice. New
legislation should do the same for the 21st century.
Clinical discretion and a Code of Practice cannot rescue a bad
Mental Health Act.
A significant question, as described
in the report of the Joint Committee on the draft Mental Incapacity
Bill, is whether or not it is either necessary or appropriate
to have separate legislation for those suffering from mental disorder
(given the Government's intention to pursue both bills we acknowledge
it is their view that separate legislation is warranted). The
Mental Capacity Bill sets out a legal framework for the health
and social care of those who are unable to make decisions for
themselves. The College believes the principles and provisions
of this Bill will significantly aid the care, treatment and safeguards
for a vulnerable section of the community. The final provisions
of the Mental Capacity Act are not currently decided.
The need for, and content
of, a Mental Health Act will clearly depend, in part, on the provisions
of the Mental Capacity Act. It is essential therefore that, as
has recently taken place in Scotland, the capacity legislation
should be passed prior to the introduction of any Mental Health
Bill.
It is essential that
the proposed Codes of Practice are available if the provisions
and likely effects of this Bill are to be fully understood.
"Recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world".
United Nations declaration of Human
Rights 1948 "The use of compulsion also raises some more fundamental questions about discrimination between people with mental disorders and everyone else. Why should the conditions for treatment for mental disorder be different from the conditions for treatment for physical disorder? In other words, why should not this too depend upon consent or incapacity? And why should capacitated people be able to make advance directives about treatment for future physical disorder but not about treatment for future mental disorder? If incapacity were the criterion, rather than the severity of symptoms or the prospect of harm to others, then some people might be given the help they need before their situation became too desperate."
Baroness Hale 2004
1) It must be consistent with the Human
Rights Act 1998 which embodies the European Convention on Human
Rights (ECHR).
2) It must be recognised that legislation
in relation to health care may, like medication, do harm as well
as good. The Hippocratic Principle of "first do no harm"
should apply in the field of legislation as in any other medical
intervention. Harm may be done to the patient (in terms of reducing
personal autonomy, breaching individual liberty, damaging health,
social or employment prospects) or to the population at large
(by increasing stigma and discrimination). It may also cause
harm by damaging both the professional and public perception of
psychiatry, which in turn would impact adversely on recruitment
to an already heavily under-recruited specialty
3) The Expert Committee set up to review
the Mental Health Act 1983 (Richardson Committee) in its report
of November 1999 included the following underlying principles:
a) Non-discrimination (that wherever
possible the principles governing mental health care should be
the same as those which govern physical health).
b) Patient autonomy.
c) Informal care wherever possible.
d) Least restrictive alternative.
e) Consensual care.
f) Participation by service users.
g) Reciprocity (where society imposes
an obligation on an individual to comply with a programme of treatment
and care it should impose a parallel obligation on the health
and social care authorities to provide appropriate services).
h) Respect for diversity.
Non-discrimination as between those
suffering between mental and physical illnesses is a central area
of concern (and being addressed in a number of areas such as the
proposals in the Disability Discrimination Bill). The Joint Committee
on Human Rights when reviewing the draft Mental Health Bill stated,
"we have doubts about whether it should be possible to override
the wishes of the patient, expressed when capable of making a
decision, about treatment. The ECHR permits treatment to keep
a person alive against his or her will, if he or she is suffering
from a mental disorder at the time, because the state can rely
on its positive obligation to preserve life. The same duty would
justify the state in compulsorily providing treatment to someone
who would otherwise be likely to cause death or serious harm to
others. But we have doubts as to whether this duty would justify
overriding a direction given with proper capacity where the patient
later became ill, but not a threat to himself or others."
If proper regard is given to advance
directives by people capable of making them, then it would clearly
be nonsense for directions given by a capable person, at the time
the decision needs to be made, to be disregarded.
Finally, any new Act must not have
an adverse effect on voluntary (consenting) patients e.g. by limiting
the amount of resource available for such patients or by directing
services and resources in such a way that there will be access
to resources without cost for compelled (detained) patients but
at a cost for those who willingly accept treatment.
Specified principles should include:
A) DEFINITION
OF MENTAL DISORDER
Current position (Mental Health Act
1983)
Mental disorder is sub-divided into
four categories: mental illness, mental impairment, severe mental
impairment and psychopathic disorder. The major category (over
80%) of detentions is mental illness and this is undefined. The
absence of a definition, along with guidance from the Courts,
has enabled a practical and developmental use of the category
to ensure that when patients are described as mentally ill it
is in line with developing practise.
In relation to learning disability,
the definitions in the current Act for mental impairment and severe
mental impairment include the requirement for the person to have
"abnormally aggressive or seriously irresponsible conduct"
in addition to having a learning disability.
The draft Mental Health Bill defines
mental disorder 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". This is the same definition
as in the Mental Capacity Bill and includes neurological and other
physical causes of brain dysfunction including intellectual impairment,
head injury, multiple sclerosis and so on. Whilst it is clear
that this would not result in any inappropriate exclusions it
undoubtedly gives the potential for serious over inclusion. If
such a broad definition is to be used then it is imperative that
the conditions for compulsion, including exclusion conditions,
which follow this definition, must be extremely strict, a matter
overlooked in the 2004 draft Mental Health Bill.
It should be noted that in New Zealand
and Australia (countries quoted by the Government because of their
use of community treatment orders) there is a much narrower definition
of mental disorder.
"An abnormal state of mind shown
by delusions or disorders of mood, perception, volition or cognition.
"Mental illness means a condition
which seriously impairs, either temporarily or permanently, the
mental functioning of a person and is characterised by the presence
in the person of any one or more of the following symptoms:
a) Delusions
b) Hallucinations
c) Serious disorder of thought form
d) A severe disturbance of mood
e) Sustained or repeated irrational
behaviour indicating the presence of one or more of the symptoms
referred to in paragraphs a-d
The College believes the draft Mental
Health Bill definition to be satisfactory ONLY if combined with
extremely tight conditions and limitations, as described below.
Otherwise either the New Zealand or Australian definitions of
mental disorder should be adopted.
Most definitions of mental disorder
have a number of exclusions. Indeed the College is not aware of
any mental health act which has no exclusions from the definition
of mental disorder, or required conditions for compulsion, in
any other common-law jurisdiction. For example the current Mental
Health Act (1983) states that people may not be "dealt with
under this Act as suffering from mental disorder, or from any
form of mental disorder described in this section, by reason only
of promiscuity or other immoral conduct, sexual deviancy or dependence
on alcohol or drugs".
The Draft Mental Health Bill has no
exclusions.
"A person is not mentally disordered
by reason only of any of the following;
a) Sexual orientation
b) Sexual deviancy
c) Transexualism
d) Transvestism
e) Dependence on, or use of alcohol
or drugs
f) Behaviour which causes, or is likely
to cause harassment, alarm or distress to any other person
g) Acting as no prudent person would
act
New Zealand - Exclusions
"That persons political, religious,
or cultural beliefs; or that persons sexual preferences; or that
persons criminal or delinquent behaviour; or substance abuse;
or intellectual disability.
"Certain words or conduct may
not indicate mental illness or disorder. A person is not a mentally
ill person or a mentally disordered person merely because of any
one or more of the following;:
a) That the person expresses or refuses
or fails to express or has expressed or refused or failed to express
a particular political opinion or belief
b) That the person expresses or refuses
or fails to express or has expressed or refused or failed to express
a particular religious opinion or belief
c) That the person expresses or refuses
or fails to express or has expressed or refused or failed to express
a particular philosophy
d) That the person expresses or refuses
or fails to express or has expressed or refused or failed to express
a particular sexual preference or sexual orientation
e) That the person engages in or refuses
or fails to engage in or has engaged in or refused or failed to
engage in a particular political activity
f) That the person engages in or refuses
or fails to engage in or has engaged in or refused or failed to
engage in a particular religious activity.
The Bill should contain the following
exclusions:
Nothing in the conditions for compulsion
shall be construed as implying that a person may be dealt with
under this Act as suffering from mental disorder solely by reason
of: cultural, political or religious beliefs or promiscuity, sexual
deviancy or other immoral conduct or dependence on, or misuse
of alcohol or drugs or impairment of intelligence or the commission,
or threat, of illegal or disorderly acts.
The issue of excluding
from compulsion 'solely by reason of misuse of drugs or alcohol'
is more contentious than the other exclusions. There is little
doubt that in the past there has, at times, been a misunderstanding
of this provision. A small number of patients who should have
been detained were not on the grounds of their substance misuse
despite the presence of serious mental illness. This is a matter
for training. It is the College's view that including compulsion
solely due to alcohol or drug misuse will have significantly damaging
consequences in the following areas:
Clinical:
A central tenet for the treatment of people who misuse substances
is the acknowledgement of their difficulties and the need to accept
responsibility for them. Taking control away and making others
responsible for their behaviour may seriously damage the prospect
of recovery. Patients with drug and alcohol problems do not generally
see themselves as 'mentally ill'. Many, for example, will not
attend psychiatric hospitals specifically because of the inferred
'label' of a psychiatric disorder. The addiction services have
developed widespread community-based services so as to increase
access and the availability of services to those with drug and
alcohol problems. Fear of being made subject to compulsion is
likely to discourage people coming forward for treatment and to
be a major retrograde step in the addiction field. It may also
lead to a decrease in patients presenting for help to statutory
services, with an increase in the number of complex cases attending
non-statutory agencies. This could have implications in terms
of management of the more complex problems.
Resources: The mental health resources,
including new teams being developed under the National Service
Framework such as Crisis Teams, would be overwhelmed by drug and
alcohol consumers' emergency assessments and admissions. These
individuals may only be intoxicated for one night, but still trigger
the proposed new system to detain them. This will have considerable
resource implications for Accident and Emergency units and out
of hours assessments in police custody suites, as well as mental
health on call services. It is not appropriate to apply a Mental
Health Act to a person with intoxication.
Inpatient units: In the care of people
with substance misuse or dependence, use of the Mental Health
Act (and, in the absence of consensual treatment, detention would
be necessary) is likely to be detrimental to their care. Individuals
with chronic drug and alcohol problems if admitted compulsorily
into mental health wards may also pose difficulties for other
patients through damaging the therapeutic environment for those
with functional mental illness.
The College proposes
that people with a learning disability should only be liable to
compulsion under the Act if they have a mental disorder in addition
to their learning disability. The use of the 'impairment of intelligence'
exclusion condition should enable this. It is Government policy,
as set out in 'Valuing People', that people with learning disability
should access services in the same way as anyone else, and this
proposal would achieve that aim.
If the 'impairment of intelligence'
exclusion is not included, then the definition of mental disorder
in the draft Bill would include almost all people with learning
disability, who would then be liable to compulsion at any time
they decline medical treatment (including education and training).
Leaving aside the serious ethical issues, this would lead to
the inappropriate detention of more people with learning disability,
and the growth of institutional care. This would not be in keeping
with the aims of 'Valuing People'.
Most people with mental disorder do
not commit offences. Most offenders do not suffer from a mental
disorder. Diagnosing mental disorder solely on the basis of illegal
acts, or for the prevention thereof, would enable this legislation
to be used for political purposes. Any possible perception of
this would be extremely damaging to psychiatry, the mental health
services and the law.
Current position (MHA 1983)
The current conditions are that it
is necessary for the person to be in hospital (this immediately
defines the severity of the patient's condition which is necessary
prior to compulsion), that they need to be detained in the interest
of their own health or safety or with a view to the protection
of others, that the treatment cannot be provided unless the patient
is detained, and, in those people who are deemed to be suffering
from mental impairment or psychopathic disorder, that the treatment
is likely to alleviate or prevent a deterioration in the patients
condition.
Many people would argue that patients
should only be made subject to compulsion if they are unable to
make a decision for themselves. Others have argued that doctors
would be unable to stand back and see people harm themselves on
the basis that the patient retained capacity and would broaden
the definition of incapacity until it essentially meant anyone
who disagreed with their doctor. However, the inclusion of an
incapacity requirement is the only way to ensure lack of discrimination
from those suffering from physical illnesses. It is worth repeating
the law in relation to those suffering a physical illness. This
was most recently spelt out by Dame Elizabeth Butler-Sloss in
the case of Ms B (2002):
"A competent patient has an
absolute right to refuse to consent to medical treatment for any
reason, rational or irrational, or for no reason at all, even
when that decision may lead to his or her death".
It should be noted that Dame Butler-Sloss had, inadvertently,
excluded the mentally ill from her words. A person diagnosed as
mentally ill, even though competent, does not have the right to
refuse to consent to medical treatment.
It may be that there is a source of
confusion here. The vast majority of people with mental illnesses
retain fully their ability to make decisions throughout their
illness. Most patients with mental illnesses, who require medical
intervention are treated by General Practitioners or as informal/voluntary
patients by psychiatrists.
Both the current Mental Health Act
and the draft Mental Health Bill require psychiatrists to force
treatment on patients who are perfectly capable of making decisions
for themselves whilst offering no protection, or legal framework,
for patients who lack capacity but, because of their illness,
do not object to the treatment (this is the so-called Bournewood
Gap). The absurdity of both the current position and the proposals
may be clarified with two examples.
Example 1: A patient with depression
recognises that he is ill. He understands that he is at increased
risk of suicide but feels he is safe enough at home, with the
support of his family, and does not wish to be admitted to hospital.
He wishes to be treated with cognitive therapy. His family support
this plan. The doctors believe that because of the suicide risk
it would be unsafe to leave him at home. They feel obliged to
make the patient subject to compulsion, in hospital (to be on
the safe side), and, because of the waiting time for availability
of cognitive therapy he is forced to have medication.
Example 2 (the Bournewood
Gap): A patient with depression believes he is responsible for
all the ills of the world. He wishes to die. He agrees to be admitted
to hospital as he believes he will be killed in hospital - which
is what he believes he deserves. Such a patient will be admitted
to hospital and treated informally, with none of the protections
(statutory second medical opinions, Tribunals etc) offered by
being subject to a mental health act.
A recognised difficulty is that there
are different ways of determining capacity. It is argued that
the definition in the Mental Capacity Bill centres around cognitive
(thinking) ability without giving weight to the importance of
factors such as emotion or delusions. The Common Law determination
of capacity in 'Re C' (the person should be able to understand,
remember, believe, weigh in the balance and express a decision)
may be a little better. However the College's preferred approach
is that taken in Scotland. This is to recognise that patients
may have impaired capacity, which damages their ability to make
decisions, without losing capacity altogether.
Other issues, which it is important
to consider, are whether or not patients should be compelled to
accept "treatment" if they cannot benefit from the treatment
(the draft Mental Health Bill has no benefit requirement) and
whether or not it is necessary for the treatment to be in their
best interests (the Mental Capacity Bill requires any treatment
to be in the person's best interest, the draft Mental Health Bill
has no such requirement).
The Bill lists the following conditions:
A) The first condition is that the
patient is suffering from mental disorder.
B) The second condition is that that
mental disorder is of such a nature or degree as to warrant the
provision of medical treatment to him.
C) The third condition is that it is
necessary -
a) For the protection of the patient
from -
i) Suicide or serious self-harm, or
ii) Serious neglect by him of his health
or safety, or
b) For the protection of other persons,
that medical treatment be provided to the patient.
D) The fourth condition is that medical
treatment cannot lawfully be provided to the patient without him
being subject to the provisions of this Part.
E) The fifth condition is that medical
treatment is available which is appropriate in the patient's case,
taking into account the nature or degree of his mental disorder
and all other circumstances of his case.
(The definition of medical treatment
(clause 2(7)) includes:
a) Nursing
b) Care
c) Cognitive
therapy, behaviour therapy, counselling or other psychological
intervention
d) Habilitation (including education
and training in work, social and independent living skills) and
e) Rehabilitation)
F) The fourth condition does not apply
in the case of a patient aged 16 or over who is at substantial
risk of causing serious harm to other persons. (It should be noted
that this deviates from the 'least restrictive option' principle)
G) For the purposes of this Part, a
determination as to whether a patient is at substantial risk of
causing serious harm to other persons is to be treated as part
of the determination as to whether all of the relevant conditions
appear to be or are met in his case.
ISSUES
The wording in relation to the third
condition presents a problem in that some patients' diagnoses
are associated with a significant risk of suicide or self harm
at all times. For example up to 10% of patients with schizophrenia
may commit suicide. In the context of the 'blame culture' and
society's low tolerance of risk it seems likely that clinicians
will err on the side of safety leading to inappropriate detention
in hospital (with a significant impact both on the individual
who is deprived of his liberty and the resources available for
mentally ill people who would benefit from hospital care and yet
do not display such behaviours). If the wording were as in the
1983 Act "In the interest of" rather than " for
the protection of" it would enable the clinician to weigh
up relative risks.
Furthermore, because the conditions
now centre on risk it would appear to be unlawful to apply the
Bill's provisions for patients with mental illness who have lost
capacity (and so refuse effective treatment) if the consequences
of the illness cause moderate physical or mental damage to the
individual.
The fourth condition would presumably
require patients to be treated with the authority of the Mental
Capacity Act if they lack capacity and are compliant. It may be,
we do not know the final provisions of that legislation, that
this will also apply to incapacitated patients who resist treatment.
In either case this is likely to lead to confusion.
In relation to point (F),the principle
of least restrictive alternative should apply to all categories
of patient.
The College finds it difficult to understand
the meaning of the fifth condition. It does not appear to equate
to a condition that treatment should be available which will provide
therapeutic benefit to the patient.
In addition the final paragraph, if
taken as stated, to apply to all other conditions, may be interpreted
as suggesting that a determinations of dangerousness is, of itself,
evidence of mental disorder. The two conditions, taken together,
suggest that a 'clinically appropriate' determination might be
solely to prevent criminal behaviour.
There are no exclusion conditions (see
below).
The Conditions in Scotland (Mental
Health (Care and Treatment) (Scotland) Act 2003)
The conditions for an assessment order
are:
a) The patient has a mental disorder
b) That because of the mental disorder
the patient's ability to make decisions about the provision of
medical treatment is significantly impaired.
c) That it is necessary to detain the
patient in hospital for the purpose of
I. Determining what medical treatment
should be given to the patient or
II. Giving medical treatment to the
patient
d) That if the patient were not detained
in hospital there would be significant risk to
I. The health, safety or welfare of
the patient or
II. To the safety of any other person
e) That the granting of a short-term
detention certificate is necessary.
The conditions for a treatment order
are:
1) That the patient has a mental disorder.
2) That medical treatment which would
be likely to
a) Prevent the mental disorder worsening
b) Alleviate any of the symptoms or
effects of the disorder is available for the patient
3) That if the patient were not provided
with such medical treatment there would be a significant risk
a) To the health, safety or welfare
of the patient
b) To the safety of any other person
4) That because of the mental disorder
the patients ability to make decisions about the provision of
such medical treatment is significantly impaired
5) That the making of a compulsory
treatment order in respect of the patient is necessary
6) Where the Tribunal does not consider
it necessary for the patient to be detained in hospital such other
conditions as may be specified in regulations.
The phrases underlined are particularly
pertinent here.
RECOMMENDATION
The College believes there are two
important required conditions additional to those in the draft
Bill.
1. Impaired decision-making
by reason of their mental disorder. The concept of impaired decision-making
may be easier to use in a clinical setting than lack of capacity
whilst still ensuring that there is no compulsion in the face
of a fully competent refusal AND no failure to treat an incapacitated
person on the grounds that the person does not present sufficient
risk.
2. In relation to a treatment
order:
Therapeutic benefit for
the patient. Therapeutic benefit means medical treatment which
is likely to bring about an "improvement in the symptoms,
or signs, of mental disorder, or reduce or prevent deterioration
in the person's mental or physical health".
The College preferred
conditions would mirror those in the new legislation in Scotland
both in relation to short-term detention and compulsory treatment
orders. An alternative would be that the conditions for England
are left looser than those for Scotland but combined with a tighter
definition of mental disorder and stronger exclusion condition
(as in New Zealand or Australia). It is recognized that should
impaired decision-making be accepted as a necessary requirement
for compulsion then particular consideration will need to be given
in relation to offenders (see below).
Note: The usual argument
against impaired decision-making or incapacity as a condition
is that some people might decide that they did not want medical
treatment without which they would die. It is worth recalling
the case of Ms B (2002). She had become paralysed by a bleed into
her brain. She wished the hospital to remove the ventilator which
was keeping her alive. The Court determined that, given she retained
full decision-making capacity, this was her right as an autonomous
individual. Ms B's condition would fit within the proposed definition
of mental disorder. Consequently the provisions of this Bill would
have deprived Ms B of this human right.
The College is able to give details
in relation to other European countries if this would be helpful
to the committee.
Current position
It is often, mistakenly, assumed that
treatment in the community (under compulsion) is not available
under the '83 Act. It occurs under the following circumstances:
a) Patients subject to guardianship
under the Mental Health Act. They may be required to live in a
particular place, to attend a health or social care facility for
treatment or education or training. Patients subject to guardianship
must permit access to health or social care professionals. There
is no authority to administer medication in the absence of consent
or compliance. There is no authority to convey a person.
b) Section 25 of the Mental Health
Act. This is similar to guardianship other than it can only be
applied once a person has already been detained in hospital under
a treatment order (Section 3 or Section37) but does include a
power to convey patients including the authority to compel a patient
to attend a health care or social facility. Again there is no
authority to compel a patient to accept medication.
c) Section 17 leave of absence. Patients
detained under Section 2, 3 or 37 of the Mental Health Act may
be sent on leave. Whilst they cannot be forced to have medication
in the community there may be grounds for recall to hospital if
the patient does not comply with their medication. Patients certainly
believe they will be returned to hospital if they stop their medication.
For practical purposes, therefore, this is a form of community
treatment order.
d) Patients detained under Section
37 with a 41 restriction order currently on conditional discharge.
Such patients are in the same position as those on Section 17
leave, i.e. they have a right to refuse medication whilst in the
community but most patients feel that they would be ill advised
so to do given the authority to recall to hospital.
In addition there are patients who
lack capacity to consent but who are compliant with the treatment
and receive it under the common law (c.f. Bournewood).
Recent history
Prior to 1986 it was established practice
that under certain relatively rare circumstances patients coming
to the end of their Section would be readmitted overnight in order
that their Section might be renewed (under Section 20 of the Mental
Health Act) following which they would then again be sent on leave
under Section 17. This, as described above, was a form of continuing
community treatment order in all but name.
Following a Court Case (Halstrom) in
1986 this was declared unlawful in England and Wales and the practise
ceased.
That decision was modified by the Court
of Appeal in 1999. The Court held that it was lawful to renew
the detention of a patient (Section 20) as long as the patient's
medical treatment viewed as a whole involved treatment as an inpatient
(the particular patient, at the time of the renewal, had a treatment
plan which consisted of five days on leave and two days in hospital
each week).
The circumstances in which a renewal
of section could take place were further amended in 2002 (D.R.).
Here the Court determined that a patient's Section could be renewed
(Section 20) if the patient was required to attend a hospital
once a week (this patient was required to attend occupational
therapy at the hospital once a week and also to attend a ward
round). This has markedly increased the opportunity for the renewal
of Section 3 leading to what has been termed a "long leash"
arrangement.
It has been argued that there are a
small number of patients, well known to the service, whose clinical
history includes serious mental illness, repeated compulsory admission
to hospital, ceasing medication when discharged from the order
and prompt and inevitable relapse.
One model for enabling such patients
to be placed directly on a community treatment order is that
from Saskatchewan:
1) A person must suffer
from a mental disorder, for which he or she is in need of treatment
or care that can be provided in the community.
2) There must be a likelihood that
if the person were not to receive treatment while residing in
the community, he or she would likely cause harm to self or others
or suffer substantial mental or physical deterioration as a result
of the mental disorder.
3) The services the person requires
in order to reside in the community must be available in the community.
4) The person is unable to understand
and to make an informed decision regarding his or her need for
treatment, care or supervision as a result of the mental disorder.
5) The person must be capable of complying
with the requirement for treatment and supervision contained in
the CTO.
It should be noted that this requires
the patient to lack capacity.
The arguments in favour of community
treatment orders are:
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