Joint Committee on the Draft Mental Health Bill Written Evidence

DMH 20 Memorandum from the Mental Health Act Commission

Introduction & summary of concerns

(i).  The Mental Health Act Commission is a special health authority charged with keeping under review the powers and duties of the Mental Health Act 1983 as it relates to the detention and treatment of psychiatric patients. We are pleased to have this opportunity to comment upon the draft Mental Health Bill's provisions.

(ii).  The Commission supports reform of mental health legislation to establish legal criteria for psychiatric compulsion fit for developing services and expectations in the twenty-first century. We share much of the conceptual basis upon which the Bill is established, with some important reservations. For example, we welcome the model of single-entry formal powers that do not have a necessary connection with detention in hospital. We support the general notion of formal reviews at the early stage of civil compulsion, speedy access to a Tribunal in accordance with the UN Declaration of the rights of mentally ill people, and statutory access to advocacy for all patients. We are pleased that the Bill would address the 1983 Act's incompatibility with human rights requirements regarding dealings with patients' families. There are many benefits to be gained in reforming the present legislation.

(iii).  However, we have important reservations as follows:

(a).  We are concerned about the complexity of the Bill's drafting and at its length. The likelihood of the Bill being misapplied is greatly increased in proportion to the opacity of its construction. Mental health law must be accessible to persons without legal qualification for it to be effective.

(b).  Despite the complexity of drafting, many provisions of the Bill provide broadly defined and therefore ambiguous powers to practitioners and authorities over the rights of patients. We are particularly concerned at the potential for over-inclusive readings of the conditions for compulsion, particularly given the ambiguities in the meaning of key terms such as 'mental disorder', 'treatment' and 'appropriate' (see paragraphs 2.1 -2.30 below). We also note some instances of rather ill defined powers consequent to these conditions, such as the apparently unrestricted power given to the Tribunal to order that any non-residential patient does not engage in any conduct that the Tribunal chooses to specify (para 3.8). These ambiguities endanger the appropriate application of the proposed powers in relation to patients' human rights. Alongside the potential for abusive practice, this could lead to a great many applications to the courts to test practical applications of the law and establish its boundaries. Wide reliance on the courts to resolve disputes over the meaning of the law would be unhelpful to practitioners and is likely to have serious financial implications for Government and health service providers.

(c).  The broad scope for defining mental disorder, coupled with the uncertainty over what practical use may be made of powers of compulsion in the community, undermine the attempt to establish a threshold for compulsion in the community. Although the conditions require that medical treatment must, for example, be necessary to protect a patient from serious harm or self-neglect, 'necessity' and indeed 'seriousness' are not fixed values, but may be judged relative to the invasiveness of any intervention.

(para 2.17)

(d).  The Bill leaves matters that will determine the thresholds of compulsion, and therefore interference with personal liberty, in the gift of ministerial regulation[37]. As draft regulations are unavailable at the present time, we are unable to establish a clear picture of some of the likely effects of the proposed legislation.   (see para 7.2)

(e).  The Bill affords weak status to the principles it establishes: practitioners will be required only to 'have regard to' such principles as are stated in a Code of Practice. This weakness is compounded by the provision that they may be disapplied where inappropriate or impractical, and that principles shall not be binding upon the Secretary of State in making regulations and determinations under the Bill's powers.

(see paras 7.3 - 7.6)

(f).  The Bill's provisions appear to lessen the safeguards available to patients under the current consent to treatment provisions of part IV of the 1983 Act as these apply to the day-to-day treatment of detained patients' mental disorder:

• The protections available to patients of Tribunal authorisation of a care-plan could easily be compromised by the adoption of generic care-plans that describe, in broad terms, a range of types of medication and other interventions. The proposals for primary legislation would seem to require that only such treatments as are being given in the absence of consent should be detailed on the care plan submitted to the Tribunal.
• The workings of the Tribunal in authorising amendments to plans of patients that they have admitted to compulsion may be overly bureaucratic and not cost-effective in terms of patient protection. The Bill will replace the current single-doctor 'second-opinion' approval of medication or ECT with a three-stage Tribunal process (doctor's application, expert second opinion visit, Tribunal negotiation with original doctor and authorisation). It is not clear whether this will increase patient safeguards, and it is doubtful that it is necessitated by the ECHR. (para 5.5)
• The Bill is inconsistent in its proposals regarding ECT and psychiatric medication. It would abolish the current Act's requirements regarding the recognition of patients' consent to medication, whilst retaining such requirements with regard to ECT, and adding a right of refusal to ECT treatment. The Bill would abolish current powers of emergency treatment for medication. These changes in the legal safeguards and powers regarding psychiatric medication would leave such matters to the common law, reducing patient protection.   (paras 6.14 -6.19)
• The Bill provides no specific regulatory powers in relation to the control and management of patients, and no provision equivalent to section 63 of the 1983 Act which can provide a general authority for such interventions. This would appear to make uncertain what powers are available for the control and management of patients in hospital, and may inadvertently require clinicians to anticipate emergency control and restraint procedures (including seclusion) in patient's approved care-plans, to avoid having to seek justification under common law. This is impractical, and may be counter-productive in reinforcing measures such as seclusion as standard 'treatment' options for difficult to manage patients. (para 6.21)

(g).  In establishing quasi-judicial procedures for admission to long-term compulsion, the Bill appears also to have incorporated concepts and mechanisms that are currently only applicable to mentally disordered offenders dealt with through the criminal justice system. In particular, we are concerned about the introduction of the equivalent of restriction orders for civil patients deemed to be at substantial risk of serious harm to others, where the Tribunal may reserve powers of leave, discharge or transfer to itself.                    (para 3.4)

(h).   We question the general necessity or desirability of making particular provision in the conditions for compulsion of civil patients who are deemed to be at 'substantial risk of serious harm ' to others, above and beyond those provisions that set a threshold for the compulsion of civil patients for the protection of other persons. We question whether it is reasonable to expect the risk-assessment of civil patients to distinguish between those patients who pose a serious risk of substantial harm and those patients whose risk to others cannot be so described, but is nevertheless sufficient to warrant the application of formal powers.          (para 2.23)

(i).   Whilst we would not have wished for the demise of the Mental Health Act Commission, we are less concerned about organisational structure than about safeguarding functions. We would want to ensure that the rights of detained patients are given the same high priority within the Healthcare Commission as under the current structure, and that monitoring the use of legal powers does not become subsumed under the wide focus of general healthcare inspection. We are concerned that without functions protected by legislative requirement and specific accountability, the pressures on a general body such as the Healthcare Commission will be bound to marginalise specialist monitoring and therefore patient protection. (paras 5.6 -5.12)

(iv)   A summary of our recommendations and suggestions for further consideration is given overleaf.

Summary of MHAC Recommendations and suggestions for further consideration
	Recommendation / suggestion for further consideration	Para no
1	We propose that the following principles should have statutory force without restriction: (i)  That informal treatment is always to be preferred over compulsion when circumstances permit. (ii)  That treatment and care should be provided in the least restrictive manner compatible with ensuring the health or safety of the person concerned or the safety of other people. (iii)  That treatment and care should, insofar as is possible, be determined by or reflect the wishes of the patient concerned. (iv)  That treatment and care must be provided in such a way as to respect the qualities, abilities and diverse backgrounds of individuals, and properly takes account of age, gender, sexual orientation, social, ethnic, cultural and religious backgrounds without making general assumptions on the basis of any of these characteristics. (v) That all powers under the Act shall be exercised without any direct or indirect discrimination on the grounds of physical ability, age, gender, sexual orientation, race, colour, language, religion or national, ethnic or social origin.	1.6
2	We recommend that the exclusions in the current Act relating to the definition of mental disorder should be retained in an updated form in new legislation, such as, for example: no person should be considered to be suffering from mental disorder for the purposes of the Act solely on the grounds of: dependence upon, or recreational use of, alcohol or drugs; sexual behaviour or orientation; or commission, or likely commission, of illegal or disorderly acts, although the presence of one or more above grounds must not be used to exclude the possibility of concurrent or underlying mental disorder	2.5
3	We question whether it is appropriate that the definition of medical treatment, and therefore the scope of the Bill, is in part dependent upon regulatory powers identifying the requirements for approval of professionals to be 'clinical supervisors'.	2.14
4	We recommend caution over legislating far-reaching but ill-defined powers for the restriction of civil liberties	7.2
5	We believe that a Code of Practice can and should play a pivotal role in determining how new legislation is operated, but it should support rather than establish legal thresholds. If the Code is used appropriately, as we suggest, its authority could be strengthened without making its guidance legally binding, by the creation of a statutory duty to record and provide reasons for departures from such guidance in patients' clinical records	7.6
6	We are concerned that the fourth condition for compulsion is not to be applied in the case of a certain category of patients whose definition will itself not be without problem. We recommend that further thought be given as to whether this is appropriate.	2.21
7	The Commission has suggested to Government that the problem of ensuring that patients are not detained without appropriate reason could be addressed by the adoption of the concept of therapeutic benefit	2.30
8	How mental health professionals should proceed in their dealings with a patient requiring treatment under formal powers in the absence of resources is an issue that requires some clarification in relation to the proposals and indeed the current law.	2.31
9	We recommend that the intention that "normally assessment or treatment in hospital will be needed before someone is judged suitable for treatment in the community" should be established and clarified on the face of the Bill rather than in regulations.	2.33
10	We urge that the primary legislation and its regulations provide a sufficiently robust safeguard against a two-tier threshold for imposition of formal powers: one for new patients, and one, less stringent, for patients known to services.	2.40
11	We urge reconsideration of the empowerment of the Tribunal to restrict to itself clinical decisions in the case of civil patients, particularly given the indeterminacy of the category of patients suggested.	3.5
12	We urge reconsideration or clarification of the proposed empowerment of the Tribunal to authorise minimum periods for inpatient treatment.	3.7
13	We recommend that: (i)  Care-plans submitted to Tribunals in respect of patients with mental capacity must be required to state what treatment, if any, the patient does consent to, as well as those treatments for which authority in the absence of the patient's consent is sought; (ii)  Provison should be made in the Bill to regulate the assessment and recording of a patient's consent to psychiatric medication when that patient is otherwise subject to compulsion, as with the 1983 Act; (iii)  Emergency powers to provide psychiatric medication should be provided in the draft Bill on the model of the 1983 Act; and Consideration should be given to less bureaucratic means of authorising changes to approved treatment plans, possibly allowing the medical expert powers of authorisation relating to specific treatments (such as ECT and psychiatric medication) under specific circumstances, such as in amending extant orders.	5.6
14	We hope that further consideration will be given to establishing in law powers, duties and accountability that will preserve a specialised monitoring focus upon patients subject to compulsion irrespective of organisational structures	5.11
15	We urge reconsideration of the acceptability of differences in the principles underlying the use of the Children Act 1989 and the Mental Health Bill, when either legislation may be used to require the formal residency of children aged 16 - 18.	6.1
16	The Commission supports the Government's proposal to allow the High Court to authorise Neurosurgery for Mental Disorder for incapacitated patients.	6.6
17	We feel that there should be a clear justification for ending the equivalence of legal protections and rights of patients under the present law in relation to the imposition of ECT and long-term psychiatric medication.	6.13
18	We recommend that there should be specific provision on the face of the Bill with regard to treatment with medication for mental disorder, allowing that a patient's consent can provide authority for such treatment, and setting out provisions for safeguards in relation to authority for treatment without consent. Where treatment is authorised by the patient's consent, regulatory powers should establish requirements for records to be made in statutory form that assessments of mental capacity and consent status have taken place.	6.17
19	The Bill should be amended to include provision for emergency administration of medication for mental disorder, modelled upon the clauses providing such powers in respect of ECT	6.19
20	We urge that naso-gastric feeding of patients subject to formal powers be afforded the protections of type B treatment arrangements	6.20
21	We recommend that there should be a dedicated regulatory power in relation to issues over the control and management of patients where regulation can be made over training, use of staff, and record keeping etc in relation to seclusion and restraint. Such a power could also enable future regulation of problem issues such as searching, confiscation of property, use of CCTV etc.	6.21
22	We recommend reconsideration of the interface between the Mental Capacity Bill and draft Mental Health Bill, particularly in light of H.L. v UK.	8.7

1.  Is the draft Mental Health Bill rooted in a set of unambiguous basic principles? Are these principles appropriate and desirable?

      

1.1  In recent years the Mental Health Act Commission has repeatedly stressed its view that the task of Government in preparing the next mental health legislation is to ensure fairness, certainty and transparency in the legal framework for the compulsion of psychiatric patients. We know that a culture of human rights cannot be imposed upon services from above, and that the law is a blunt instrument for instilling good practice in the care of patients. But we also recognise that for Government to fulfil its obligation to ensure that powers used in its name are implemented in accordance with human rights principles, it must provide a robust framework that balances the empowerment of professionals to provide necessary treatment and the needs of public protection with safeguards to protect individual liberties. We do not believe that the draft bill, in its current form, does provide a sufficiently robust legal framework.

1.2  We are sympathetic to the aim of Government in establishing a legal framework that has no arbitrary or unhelpful limitations on mental health powers (as, for example, are presently established by the current Act's apparent exclusion of patients with acquired brain injuries). We note, from Improving Mental Health Law[38] and from our correspondence with Government departments, that it is the Government's stated intention that the legislation should be 'inclusive':

'What we do want to achieve is inclusive legislation which enables practitioners, at their own discretion, to provide treatment which they assess as necessary and appropriate… that leaves us with the serious task to redress the legitimate concerns of those who fear a more intrusive, as opposed to more inclusive, legislative structure… It will be hard to demonstrate how the balance works until it is used in practice'

Home Office Mental Health Unit, 13 July 2004, personal communication with the MHAC

1.3  A balance must be reached between 'inclusive' legislation and a meaningful framework of defined powers and duties. We view with some caution the Government's overly positive reading of the measures that it proposes, which we think may overlook the potential for use of powers in ways other than it intends. We do not think the potential for overly broad interpretation of mental health powers is sufficiently safeguarded against by reason only of the duty provided by the Human Rights Act 1998 upon public authorities to construe the powers of mental health legislation in a way compatible with the European Convention. This may be true particularly over the question of who can be made subject to the powers of mental health legislation, which we deal with in paragraphs 2.1 - 2.3 below. The Convention itself can be interpreted quite widely in terms of acceptable interventions regarding the mentally disordered[39]. We cannot accept the premise that the wide powers proposed in the Bill should be curtailed through the checks and balances of professional judgment and the Tribunal. For the law to be of value - to patients, State administrators, mental health professionals, the police, the courts or the Tribunal - its meaning cannot rest upon the discretion of those working within its framework. We do not find it difficult to envisage the inappropriate use, however well meant, of mental health legislation for non-medical purposes of social control[40].

1.4  The Commission believes that the scope and purpose of the legislation should be defined as far as is possible through a statement of principles on the face of the Bill at the start of its provisions. There are precedents for such principled statements within legislation (in particular the Children Act 1989, section 1). We accept that certain statements of principle that should be set out for those using the proposed powers of the Bill are, in part, established by existing primary legislation, such as the Race Relations and the Disability Discrimination Acts. If this means that the detail of principles needs to be established in a Code of Practice, then we would suggest that the Bill's description of what such principles are designed to secure should be strengthened.

1.5  We consider that it is unacceptable for the Bill to allow that principles will have no universal application, but will be conditional in that they can be disapplied wherever 'inappropriate' or impractical'; and will be excluded from applying to functions of the Secretary of State in making certain regulations or directions[41].

1.6  We therefore propose that the following principles should have statutory force without restriction:

(i)  That informal treatment is always to be preferred over compulsion when circumstances permit.

(ii)  That treatment and care should be provided in the least restrictive manner compatible with ensuring the health or safety of the person concerned or the safety of other people.

(iii)  That treatment and care should, insofar as is possible, be determined by or reflect the wishes of the patient concerned.

(iv)  That treatment and care must be provided in such a way as to respect the qualities, abilities and diverse backgrounds of individuals, and properly takes account of age, gender, sexual orientation, social, ethnic, cultural and religious backgrounds without making general assumptions on the basis of any of these characteristics.

(v)  That all powers under the Act shall be exercised without any direct or indirect discrimination on the grounds of physical ability, age, gender, sexual orientation, race, colour, language, religion or national, ethnic or social origin.

2.   Is the definition of Mental Disorder appropriate and unambiguous?

  

2.1  Mental disorder is defined in the Bill as "impairment of or disturbance in the functioning of the mind or brain resulting from any disability or disorder of the mind or brain"[42]. We support the emphasis of effect over cause, but we are concerned that the definition is liable to extremely broad interpretation. It has been pointed out that the 2002 Bill definition potentially covered a range of conditions for which compulsion under mental health legislation is not appropriate, from multiple sclerosis to nicotine addiction[43]. The redraft does nothing to alter this.

2.2  The Government proposes its definition of mental disorder as 'a neutral description of the gateway to the use of formal powers'[44]. It does not matter, according to this argument, what the scope of the definition is, as no-one will be subjected to compulsion simply because their mental state falls within its description. This argument, quite properly, defers the question of defining the boundaries of compulsion to the effect of the conditions considered as a whole[45]. We are not convinced that the Bill's 'relevant conditions', considered as a whole, are sufficiently demanding for this purpose. We discuss our concerns at paragraphs 2.6 - 2.31 below.

2.3  We believe that not reproducing the 1983 Act's exclusion relating to drugs and alcohol in new legislation could lead to counterproductive compulsion being imposed on the basis of substance misuse alone[46]. The technical definitions of mental disorder as outlined in the American DSM-IV and World Health Organisation classifications (ICD-10)[47] encompass conditions that we would not consider to be appropriately within the scope of compulsion under the Bill proposals. We therefore cannot support the Government's proposal to define mental disorder without including equivalent clauses to the 1983 Act's exclusions regarding sexual deviance, immoral conduct or dependence on alcohol or drugs as sole factors constituting 'mental disorder' for the purposes of the Act. The Government's proposal would leave as a matter of professional discretion (possibly guided by a Code of Practice, and no doubt liable to judicial interpretation) whether dependence on or harmful use of psychoactive substances, or disorders of sexual preference, etc, could be construed as the sole basis of mental disorder and thus compulsion under mental health law[48].

2.4  The Government justification for its proposal to set aside exclusions is that the excluding clause has been widely misunderstood by clinicians as a bar to the detention of persons with drug or alcohol problems under the current law, even in the face of a coexisting mental disorder. We are not aware of strong evidence that the law is the real problem here: it is quite possible that mental health services seek to turn away such persons, or divert them to addiction services, but this may be more to do with practical resource limitations than mistaken ideas about the limit of mental health powers. Even if the extant law is being misapplied by some practitioners, we view this as a training issue rather than a justification for reducing the protections established against misuse of mental health powers.

2.5  We recommend that the exclusions in the current Act relating to the definition of mental disorder should be retained in an updated form in new legislation, such as, for example:

no person should be considered to be suffering from mental disorder for the purposes of the Act solely on the grounds of:

• dependence upon, or use of, alcohol or drugs;
• sexual behaviour or orientation; or
• commission, or likely commission, of illegal or disorderly acts,

although the presence of one or more above grounds must not be used to exclude the possibility of concurrent or underlying mental disorder.

Are the conditions for treatment and care under compulsion sufficiently stringent?             

2.6  We do not consider that the conditions for compulsion proposed by the Bill are sufficiently stringent or clear.

2.7  At figure 1 below we set out a comparison of the conditions for compulsion in the current Act and the draft Bills of 2002 and 2004. For the purposes of comparison, to show the essential differences between the current law and what is proposed, we have summarised provisions and rearranged their order, but notwithstanding this we note the very similar conceptual structures in each.

2.8  We believe that the following aspects of the conditions for civil compulsion under the current Act are unsatisfactory:

a)  It is apparent that the current Act uses hospitalisation itself as a threshold to establish whether a disorder is serious enough to warrant intervention (line 1 in our table).

b)  There is no requirement for patients classed under the mental illness or severe mental impairment categories that such intervention will provide any therapeutic benefit (line 2) - and such patients may therefore be initially detained solely for their protection or for the protection of others (line 3)[49].

c)  The criterion of 'necessary for health' (line 3) is liable to broad interpretation.

	1983 Act	2002 Bill	2004 Bill
1	Nature or degree of disorder makes treatment in hospital appropriate	Nature or degree of disorder warrants medical treatment under the supervision of an approved clinician	Nature or degree of disorder warrants medical treatment under the supervision of an approved clinician
2	In the case of personality disorder or mental impairment, treatment in hospital will alleviate or prevent deterioration of condition	Appropriate medical treatment is available in the patient's case	Medical treatment is available which is appropriate in the patient's case, taking into account the nature and degree of the mental disorder and all other circumstances of his case
3	It is necessary for the patient's health or safety (or the protection of other people) that treatment in hospital is provided[50]	It is necessary for the patient's health or safety (or the protection of other people) that medical treatment is provided	It is necessary to protect the patient from suicide, serious self-harm, or serious neglect of health or safety (or to protect other people) that medical treatment is provided
4	The treatment cannot be given lawfully without the use of compulsion	The treatment cannot be given lawfully without the use of compulsion, unless the patient is at substantial risk of causing serious harm to others	The treatment cannot be given lawfully without the use of compulsion, unless the patient is at substantial risk of causing serious harm to others and is over 16 years of age

Fig 1: The conditions of civil compulsion for treatment in the current Act compared with the 2002 and 2004 Bills

2.9  The proposals in the 2004 draft Bill are based upon a recognition of these problems in current law, but it is not evident that they are successful in providing a firm basis upon which the restriction of liberties can be founded. We examine the proposed conditions below.

The first and second conditions: the patient is suffering from mental disorder of such a nature or degree as to warrant the provision of medical treatment to the patient under the supervision of an approved clinician.

2.10  We have explored the very wide potential definition of 'mental disorder' in our answer to question 1 above. The first two conditions (read alongside the definition in clause 2(7) of 'medical treatment'[51]) attempt further description of the sort of mental disorder, or the circumstances associated with any particular mental disorder, that are to fall within reach of the Bill's powers. But they fail to do so in any way that establishes a minimum threshold against which compulsion may be justified.

Medical treatment under the supervision of an approved clinician

2.11  The uncertainty over thresholds for compulsion are in part caused by a problem in defining the nature of the 'medical treatment' that must be necessary for formal powers to be invoked. The Bill defines this as 'treatment for mental disorder' that may include:

• nursing;
• care;
• therapies, counselling and other psychological interventions; or
• rehabilitation or habilitation, including education or training in work, social or independent living skills,

provided that these are given under the supervision of an 'approved clinician'[52].

2.12  The definition of 'medical treatment of mental disorder' is thus fundamentally reliant upon the definition of 'approved clinician'. Although regulations are to establish the exact criteria for the approval of such clinicians, the Bill itself attempts to provide a core requirement in the statement that this must be someone 'with special experience in the diagnosis or treatment of mental disorder'[53]. The definitions of 'medical treatment for mental disorder' and 'approved clinician' in the Bill itself are therefore circular. This, coupled with the wide definition of 'mental disorder' discussed at question 1 above, provides very little certainty regarding the potential scope of the Bill's powers. It will depend entirely upon the content of regulations (establishing requirements for the approval of clinicians to supervise treatment) to limit this scope.

2.13  Just as compulsory psychiatric treatment is linked under the current Act to detention in hospital, so the professional who is responsible for such treatment must be a registered medical practitioner. The Government has signalled that it intends to pass regulation allowing that 'clinical supervisors' of patients subject to compulsion under the Bill need not be registered medical practitioners, but may be, for example, psychologists[54]. Whilst Government has no apparent intention of further extension of the role to, for example, drug or alcohol service workers, there is nothing in the Bill that would prevent such regulation in future, in which case the nature of treatment under the Act could shift accordingly.

2.14  We question whether it is appropriate that the definition of medical treatment, and therefore the scope of the Bill, is in part dependent upon regulatory powers identifying the requirements for approval of professionals to be 'clinical supervisors'.

Mental disorder… warrants the provision of medical treatment

2.15  For a patient to be made subject to long-term compulsion under section 3 of the 1983 Act, practitioners must be of the view that it is necessary to administer treatment in hospital under conditions of detention. The first condition of compulsion under the present law is therefore that the nature and degree of the mental disorder makes treatment in hospital appropriate. The Bill has only that the nature and degree of mental disorder must warrant treatment of some kind. This condition would be met by the majority of mental disorders.

2.16  Although all the proposed conditions for compulsion must be viewed in conjunction to assess their overall effect, it is apparent from this problem in the first condition that the Bill needs to provide an equivalent to the practical threshold for intervention provided by the current legal connection between the instigation of formal powers and detention in hospital. There has been widespread concern that powers of community treatment proposed under the draft Bill could be applicable to persons who, under present law, are not 'detainable'. Although Improving Mental Health Law states that 'there is no intention to reduce the threshold of the use of formal powers'[55], it is questionable whether this intention will be realised by the overall effects of the proposed Bill[56].

The third condition: 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.

Necessary for the protection of the patient

2.17  We welcome the replacement of the current Act's concept of treatment being 'necessary for health or safety' with the more exacting 'necessary for the protection of the patient from suicide, serious self-harm or serious neglect of…health'. The current Act's phrasing gives no indication that its powers cannot be used for the general benefit to a patient's well-being, even where there is no real risk to a patient of not using such powers. However, even with the more robust wording proposed under the Bill, it is the case that 'necessity' and indeed 'seriousness' are not fixed values, but may be judged relative to the invasiveness of any intervention. This condition could therefore be undermined as an effective protection for patients if the practical threshold of using formal powers is lessened by the Bill's proposals. We discuss such potential use of the Bill's proposed powers at paragraph 2.40 below.

Necessary for the protection of others

2.18  As with the current Act, in this condition the Bill does not define what it is that persons other than the patient may be protected from. This leaves its scope very wide, although perhaps appropriately so, as any qualification (such as, for example, protection 'from serious harm') would imply that there is an acceptable level of harm to others that it would be inappropriate to prevent by use of formal powers. However, in combination with very broad definitions of mental disorder and treatment, this condition provides a wide scope for the inappropriate use of mental health legislation for reasons of social control rather than medical treatment (see also paragraphs 225 - 2.30 below).

The fourth condition: medical treatment cannot be provided to the patient unless he is subject to the provisions of this Act.

2.19  The Bill provides that, generally, powers should continue to be applied on a 'last resort' basis, in that clause (9)(5) states as a condition of compulsion that medical treatment cannot otherwise lawfully be provided. This is a continuation of the 1957 Royal Commission's assumption of favouring voluntary treatment over formal compulsion wherever possible.

2.20  In conjunction with the third condition's requirement of intervention being necessary, the fourth condition should provide assurance that compulsion is only used where there is no acceptable medical or legal alternative. However, considered in isolation, the fourth condition may be met in any case where the patient refuses consent. In this sense the fourth condition cannot make good the deficiencies of other conditions of compulsion, particularly in relation to the definition of mental disorder and the scope of the general powers of the Bill.

The function of 'substantial risk of serious harm' in the conditions for compulsion

2.21  We are concerned that the fourth condition is not to be applied in the case of a certain category of patients whose definition will itself not be without problem. We recommend that further thought be given as to whether this is appropriate.

2.22  The Bill proposes that, in the case of any patient at 'substantial risk of causing serious harm' to others, the condition that treatment may only be given under compulsion if no lawful alternative exists is to be waived. The concept of 'substantial risk of serious harm' was introduced into mental health legislation by the Mental Health (Patients in the Community) Act 1995, as a threshold for the risk that must be posed by a patient to himself or others to warrant the imposition of supervised discharge[57]. In the current law it therefore applies to 'revolving-door' patients, for whom it serves as a threshold for establishing whether the dangers of relapse and repeated formal admissions due to non-compliance with medication justify the use of formal powers. The Bill uses the concept only to describe risk of harm to others, which of course must restrict its scope from that of present usage.

2.23  The principle that a patient's apparent (if perhaps disingenuous[58] or fluctuating) consent may not be a bar to the use of formal powers where safety requirements predominate is established in current practice and described by the Mental Health Act Code of Practice. The Code suggests that the use of formal powers should be considered where a mentally capable patient's current medical state, together with reliable evidence of past experience, indicates a strong likelihood that he or she would have a change of mind about informal admission or treatment prior to its commencement, with a resulting risk to the health or safety of the patient or the safety of others[59]. This does not provide a very certain footing for the use of formal powers where a patient is willing, however temporarily and perhaps with a view to obstructing authorities in the provision of care, to 'consent' to interventions. It may therefore be sensible to establish in primary legislation exactly where practitioners stand in this situation. But the Bill's provision at Clause 9(7) fails to do this, and we draw the Committee's attention to the following problems that it presents:

a)  The proposal does not address the issue of patients who are a risk to themselves.

  Firstly, the 1983 Act's Code of Practice suggests that all safety considerations - that is, regarding not only risk to others but also risks to patients themselves - should be considered where a capacitated patient's consent is a fluctuating or otherwise doubtful basis upon which to provide informal care. The Bill's proposed removal of the 'last resort' principle only for those patients posing substantial risk of serious harm to others would therefore leave untouched the question of how the principle of last resort is to be applied with patients whose consent is fluctuating and who pose a serious risk to themselves. Given that mentally disordered patients are statistically more likely to be a danger to themselves than they are to pose a danger to others, we question why the Bill's proposal only addresses the minority group.

b)  The proposal apparently posits two levels of dangerousness in civil patients.

Secondly, it is difficult to arrive at a clear conceptual picture of a patient who may be made subject to civil compulsion 'for the protection of other persons' (clause 9(4)(b)) who does not pose 'a substantial risk of serious harm to others', although the Bill appears to intend the latter group as an especially dangerous subset of the former. The courts have interpreted 'substantial risk' as a risk that is more than remote and not merely minimal[60], which we believe should be the standard for any definition of risk that meets the most basic threshold for the civil use of psychiatric compulsion. It is similarly difficult to accept that harm which is not 'serious' can or should be considered to provide justification for compulsory powers[61]. As such the Bill appears either to provide a wide-ranging exception to the principle of last resort, or, in an attempt to specify a particular group of patients posing a risk to others, extends too greatly the potential meaning of 'protection of others' as a basic reason for the civil use of mental health law.

2.24  We raise these concerns in the knowledge that the Parliamentary Joint Committee on Human Rights (JCHR) has questioned whether risk-assessments could provide strong predictors of future violence in civil cases and has recommended that Government should make publicly available an account of risk factors that are to be taken into account, and their reliability[62]. The JCHR raised this issue as an aspect of its concern that the powers proposed in the 2002 Bill could be used to justify preventive detention, which is the fourth and final concern that we wish to raise in relation to the conditions of compulsion. The JCHR was also told that risk prediction in this area was extraordinarily difficult.

The fifth condition: medical treatment is available which is appropriate in the patient's case, taking into account the nature and / or degree of his mental disorder and all other circumstances of his case.

The question of non-therapeutic detention.

2.25  The Bill proposes as a universal condition for the application of powers 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"[63]. We welcome the idea of a universally applicable test, but have some doubts that the Bill's drafting achieves a proper protection for patients against detention or other restrictions on liberty without the reciprocity of meaningful or appropriate treatment.

2.26  In its report on the 2002 Bill, the Parliamentary Joint Committee on Human Rights (JCHR) stated that

the …condition that appropriate medical treatment is available to the patient, would offer no protection against use of the powers in a manner inconsistent with the Government's intention, particularly in a case where powers are used to protect others, because the only possible treatment might be no more than day-to-day care (perhaps with education, training or rehabilitation) under the supervision of an approved clinician…[64].

Although the JCHR accepted that preventive detention is not unlawful under the European Convention[65] and that the proposals, in themselves, would not lead to a violation of human rights, it did state that 'this raises human rights issues, flowing mainly from the breadth of the circumstances in which a patient could be subjected to compulsory, non-consensual treatment'[66]. It also warned that precedent case-law regarding the Mental Health (Public Safety and Appeals) (Scotland) Act 1999, which dealt with patients convicted of violent offences and subject to restriction orders, cannot be regarded as necessarily supporting the compatibility of preventive detention in civil cases with the Convention right under ECHR Article 5[67].

2.27  We do not think that the Government has answered the concern of the JCHR with the condition that 'appropriate medical treatment is available in the patient's case' 'taking into account the nature and degree of the mental disorder and all other circumstances of the case'. The criterion of 'appropriateness' has no necessary connection to any potential benefit to the patient. In the eyes of the deciding authority, detention of a person for the protection of others may be appropriate in all the circumstances notwithstanding that for the patient concerned it is no more than warehousing under preventive detention.

2.28  We are not reassured by the Government's answer to fears over preventive detention as set out in Improving Mental Health Law, which is essentially that detention for the protection of others 'has been with us since 1959' and that it will be for clinical and social care staff to decide whether all the conditions for compulsion are met, including the condition that appropriate treatment is available[68]. We accept that 'there is no intention of requiring general facilities to detain people for whom no treatment is available'[69], but we are not convinced that this intention is will necessarily shape the future interpretation of the law once it is enacted.

2.29   The 'treatability' requirements of current law are not ideal from the patient's perspective. They initially only apply to certain categories of patient (including, however, persons classified as having psychopathic disorders, who are perhaps most at risk of non-therapeutic detention)[70]. The broad definition of treatment under the 1983 Act provides them with questionable rigour as safeguards. However, these requirements do at least make a clear connection that the beneficence of treatment under formal powers must extend to the patient, in that treatment is likely to alleviate or prevent deterioration in the patients' condition. The Bill's proposal to replace this with a requirement that available treatment is 'appropriate', taking into account all the circumstances of the case, does not necessarily relate to therapeutic benefit for the patient, and may as easily be met by preventive, non-therapeutic detention as by a therapeutic intervention.

2.30  The Commission has suggested to Government that the problem of ensuring that patients are not detained without appropriate reason could be addressed by the adoption of the concept of therapeutic benefit, which was introduced in the Government's White Paper of 2000[71] but subsequently dropped. Improving Mental Health Law acknowledges stakeholder suggestions for the reinstatement of 'therapeutic benefit' but gives no reason why this concept is deemed less suitable than the test being proposed[72].

Availability of treatment as a condition of compulsion

2.31  Mental health law cannot provide a right to treatment for which no resources are available. The condition of treatment being 'available' for a patient to become liable to formal intervention seems nevertheless to raise some problematic questions. The effect of the provision would appear to be that treatment appropriate to the patient's disorder must be known to be available for the individual at the time of the determination whether to examine the patient for possible use of formal powers. There must be agreement with service providers that the services that are needed, at least initially, will be provided. There is a risk of bureaucracy here, but also a question of principle. Services for certain types of patient (such as people with personality disorder or dual diagnosis) can be relatively scarce, and we believe that, under the present law, it is scarcity as much as any misunderstanding of the law that excludes such patients from services. We would be concerned that the requirement of availability should not be open to misuse to exclude patients inappropriately from services by limiting services' responsibilities. How mental health professionals should proceed in their dealings with a patient requiring treatment under formal powers in the absence of resources is an issue that requires some clarification in relation to the proposals and indeed the current law.

Are the provisions for assessment and treatment in the Community adequate and sufficient?                  

  

2.32  Government has acknowledged fears that treatment under formal powers in the community could be used inappropriately leading potentially to an increase in the overall numbers of patients subject to compulsion[73]. It proposes to limit the applicability of community powers:

It will not be possible for a patient who is brought under the formal powers to be assessed in the community without previously having had an assessment in hospital at some time. [Regulations] will define which patients will be eligible, from the outset, to be a non-resident patient. Primarily, these will be people who have previously been treated in hospital and who are well known to services, but who are prone to cycles of discharge, relapse and readmission into hospital (sometimes called "revolving door" patients)[74].       

The explanatory notes to the Bill also state that "normally assessment or treatment in hospital will be needed before someone is judged suitable for treatment in the community"[75].

2.33  We are very concerned that the important question of the scope of proposed community powers will be established by regulation, and recommend that the intention that "normally assessment or treatment in hospital will be needed before someone is judged suitable for treatment in the community" should be established and clarified on the face of the Bill.

2.34  The Committee may wish to consider further with Government the precise implication of the statement that patients subjected to powers in the community at the outset of their compulsion 'primarily' will be revolving-door patients[76]. It is unclear exactly how such a patient group will be defined by proposed regulation, and which other patient groups will be liable to initial compulsion in the community. The Bill also makes provision for courts to make mental health orders for non-resident treatment, and these presumably will not be fettered by such regulation[77].

2.35  Although the exact scope of the proposed non-residential orders is yet to be determined, the powers proposed for such orders are similar to existing provisions of the Mental Health (Patients in the Community) Act 1995 (supervised discharge) and Guardianship under the 1983 Act[78]. Government has indicated its expectation is that the majority of patients under compulsion at any one time will continue to be in hospital[79]. This would seem to be a reasonable expectation, given the relatively slow take up of existing community powers[80].

2.36  Alongside patients subject to formal community-based powers under the present legislation, however, there is an unknown but probably relatively significant proportion of the approximately 13,500 patients detained under the 1983 Act at any one time[81] whose care and treatment involves significant periods of leave from hospital. Case law in 2002 established that a patient detained under section 3 may be on leave and not in receipt of inpatient care at the time of that detention's renewal[82]. Because of this change in the current law, there is now probably an increasing number of patients managed outside hospital under legal conditions that closely approximate those proposed as 'non-residential' orders. However, the current legal position would still appear to prevent a patient from being made subject to the 1983 Act without an initial inpatient period[83]. This extended scope of the 1983 Act is not easily applicable to patients detained under section 2, whose detentions are neither renewable nor, if such a patient is on leave at the time, convertible to section 3, although there is little to stop an inpatient's detention under section 2 from being converted to a section 3 with the aim of granting long-term leave[84]. As such the proposed general power to use formal powers on a non-residential basis could provide something of a consolidation of existing but diffuse and uncertain legal powers.

2.37  It is possible that the proposal to establish a duty upon supervisors to keep the residency status of their patients under review[85] is thus equivalent to proposing a requirement under the current legal structure for responsible medical officers to grant leave at the earliest safe opportunity. This is a welcome recognition in law of the current good practice requirement that patients should be treated in as least restrictive manner possible[86], although it must be acknowledged that in reality, the pressures of bed-occupancy often result in professionals reluctantly using leave as a form of bed-management, with the tendency being towards over-use of leave rather than under-use.

2.38  The Government has made it clear that the Bill does not allow enforced treatment outside of hospital. Our reading of the Bill suggests that, in cases where intervention was deemed necessary as a result of a patient's non-compliance, the least restrictive option available to clinical supervisors would be to use powers of conveyance to take that patient to hospital where he or she could be treated forcibly. Clinical supervisors are also empowered to change the residency requirements of patients subject to community powers who fail to comply with treatment, so that they can be taken and detained in hospital as resident patients[87], provided that such conveyance takes place within 24 hours of the clinical supervisors' determination that the patient's material conditions are changed[88]. The Tribunal or court making any non-residency order will be required to recommend to the clinical supervisor what action she might take if the patient fails to comply with treatment[89]. The clinical supervisor must 'have regard' to such recommendations[90], but will effectively be empowered to admit a patient to hospital without further safeguards. If these powers are used to manage patients following assessment in hospital, then they extend no further than existing powers available to clinicians who grant their detained patients leave. As such, non-residency is for all purposes a form of leave arrangement from hospital, and the thresholds for keeping a patient under such powers should be appropriately high. If, however, such powers are applied in the case of patients who have not been made subject to detention in hospital and whose treatment requirements are of a different order, then they are broad and potentially excessive powers. Although patients subject to non-residency orders may not be physically detained in hospital, the possibility of such detention and enforced treatment with no further formality will hang over them as a possibility at any given time.

2.39  If non-residential powers can serve little purpose that is not provided for by leave in the management of patients who begin their compulsion as inpatients, they may still find a role as a form of enhanced guardianship or as an alternative to use of the Powers of Criminal Courts Act 1973 to make a psychiatric probation order. Case Study 5 in Improving Mental Health Law provides an example of a court using the new powers in the latter sense[91]. The use of non-residential orders by the courts to divert mentally disordered offenders seems to us to be a relatively uncontroversial use of the proposed powers; not least because, by the time of a conviction, there will have been opportunity to make an initial mental health assessment of the offender.

2.40  It is less clear how such powers might be used reasonably in a civil context to initiate a period of compulsory treatment. It seems possible that the practical thresholds for imposing some legal restraints on patients under non-residency powers may be lower than those for the use of residency powers. We remain sceptical over the implication that the decision whether to impose serious legal restrictions on a patient's liberties could be taken through community-based assessment if the patient is known to services. We would urge that the primary legislation and its regulations provide a sufficiently robust safeguard against a two-tier threshold for imposition of formal powers: one for new patients, and one, less stringent, for patients known to services.

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?          

3.1  Because we view the definition of mental disorder and the consequent conditions for compulsion as unnecessarily wide-ranging, we are bound to conclude that the Bill as currently drafted fails to achieve a balance between individual rights and personal or public safety concerns.

3.2  In our discussion of the conditions of compulsion (paragraphs 2.25 - 2.30) we have expressed our concern that the Bill provides no adequate safeguard against the use of civil powers for the preventive non-therapeutic detention of patients judged to be at risk of causing harm to others.

3.3  In establishing quasi-judicial procedures for admission to long-term compulsion, the Bill appears also to have incorporated other concepts and mechanisms that are either only applicable to mentally disordered offenders dealt with through the criminal justice system, or otherwise redolent of criminal justice measures. The following examples demonstrate our concerns:

Civil Restriction Orders

3.4  The Tribunal will be empowered in certain civil cases to restrict to itself the exercise of the power of discharge from compulsion, granting leave from hospital or arranging transfer from one hospital to another. The categories of patient to whom such civil restriction orders may apply is yet to be determined by regulation, although it seems likely that patients 'at risk of causing serious harm to others' will qualify[92]. This indeterminacy precludes the Committee from proper examination of the proposal, and also means that the boundaries for this restriction over civil patients would be subject to change by Ministerial regulation after enactment of the Bill. We are concerned that decisions regarding the compulsion of any civil patient should be taken out of the hands of clinicians in the way proposed. Our concern about the use of the concept of 'substantial risk of serious harm', which we set out at paragraph 2.23(b) and 2.24 above, is relevant in this context.

3.5  We urge reconsideration of the empowerment of the Tribunal to restrict to itself clinical decisions in the case of civil patients, particularly given the indeterminacy of the category of patients suggested.

Tribunal power to order residency for a set period

3.6  The Tribunal appears to be enabled to direct that a civil patient be held as a resident patient for a period of time specified in the order, and thereafter, whilst the order remains in force, as a non-resident patient[93]. The Bill's explanatory notes give no indication of the intended purpose of this power. It is possible that this is intended simply for administrative convenience, where arrangements need to be made to establish a patient safely as a non-resident patient. It gives the appearance of detention in hospital being used in a penal context rather than as a medically necessary requirement for treating mental disorder. There can be no justification for hospital orders of any kind to have a minimum time-limit that may extend beyond what is clinically necessary.

3.7  We urge reconsideration or clarification of the proposed empowerment of the Tribunal to authorise minimum periods for inpatient treatment.

Tribunal powers over patients in the community

3.8  The Tribunal is empowered, when making a non-residential order, to make it a condition 'that the patient does not engage in specified conduct'[94]. In this context, 'specified' means specified by the Tribunal itself, and does not imply any limitation by regulation or otherwise on the scope of this power. Consequently, this power is extremely broad and has a wide potential for use as a form of social control that is only tangentially related to medical treatment. Our concerns over this are heightened by the over-inclusive definition of 'mental disorder', the broad scope of conditions for compulsion, and the uncertainties over how so-called 'revolving door' patients or other categories are to be identified as eligible for assessment in the community without inpatient assessment.

4.   Are the proposals contained in the draft Mental Health Bill necessary, workable, efficient, and clear? Are there any important omissions in the Bill?  

The necessity for change

4.1  The draft Bill, despite its length and complexity, does not provide a paradigm shift in the underlying principles used to justify compulsory treatment since 1959. In particular, its basis for providing compulsion is the necessity of treatment, rather than the inability of a patient to make their own choices. From the Expert Committee's consultation in 1999, we have taken the sometimes-unpopular position that it would be premature to embrace such a shift, given as yet unresolved problems in defining mental capacity in the context of taking decisions about the treatment of mental disorder (see also paragraphs 6.8 - 6.9 below). We considered that even the Expert Committee's proposals, which nominally embraced mental capacity as the threshold of compulsion, in the end were unable to avoid perpetuating a threshold determined in many cases by the necessity of providing treatment to a patient, rather than whether the patient's refusal of that treatment was capacitated.

4.2  Aspects of the 1983 Act require urgent amendment. In particular, the 1983 Act's provision regarding 'Nearest Relatives' have been deemed incompatible with ECHR Article 8, and it may be that the current Tribunal arrangements will not withstand challenges based upon the requirements of Article 5 of the ECHR. It would be possible to deal with such matters through an amendment Bill, if perhaps no less complicated than redrafting the law as a new Bill.

Unnecessary changes

4.3  Given that the draft Bill is built upon the foundations of extant law, and has not proposed a radical review of the principles of compulsion, we question whether some of the changes to the current legal position of patients are necessary or indeed likely to be beneficial. We have particular concerns, for example, at the inconsistent rewriting in the draft Bill of the 1983 Act's consent to treatment provisions. These could undo the protections currently provided to patients in relation to compulsory psychiatric medication (see paragraph 6.14 - 6.19 below). We can see no reason to depart under this Bill from the basic structures regarding consent to treatment for medication for mental disorder under current law, and we would expect any change to be justifiable in terms of benefit to patient protection. In our view there is no such justification for the proposals as drafted.

Are the changes workable?

4.4  At paragraph 5.5(e) below we question whether the proposed Tribunal procedure will be cost effective in providing safeguards for patients that are balanced against the resource implications for front-line professionals as well as others. It will be important that a balance is struck, not least to counter any tendency of judicial-style commitment proceedings towards routine and ritual hearings[95], or the rubber-stamping of standardised applications containing stock phrases[96].

Omissions

4.5  A number of omissions are dealt with elsewhere in our response:

a)  We note the omission of important consent to treatment powers and safeguards (see paragraphs 5.5 & 6.14 - 6.19 below)

b)  We have urged the Government to take the opportunity of new legislation to establish statutory regulation of the administration of naso-gastric feeding to patients (para 6.20)

c)  We have urged Government to take the opportunity of new legislation to establish statutory regulation of the use of seclusion and restraint in hospitals, and to consider other issues of the management of patients (para 6.21)

d)  In our view the omission of defining exclusions for the term 'mental disorder' is unhelpful and could lead to misuse of powers (paras 1.5 - 1.6)

Inefficiencies

4.6  The Bill may be said to be inefficient in that it does appear, in some instances, to establish numerous unenforceable duties by stating that persons must do something at their discretion, and, in other instances, appears to wish to limit the discretion that it has given to professionals with arbitrary rules.

4.7  We have already highlighted an example of the former inefficiency in paragraph 2.38 and footnote 52 above, where the Bill appears to propose a duty upon an individual that is dependent upon, or at the discretion of, that individual's subjective judgments. This is the oddity of establishing a legally binding time-scale on a clinical supervisor that starts from the point at which he or she determines that a patient's circumstances have changed. The Bill's various duties of consultation with nominated persons or carers are also questionably enforceable, given that the person on whom the duty rests usually has discretion to put it aside. We would not question that it is appropriate to allow discretion in the latter case (indeed one problem with the current law is that it does not provide such discretion), but we do wonder whether duties that are conditional upon their subjects are really duties at all.

4.8  The most serious example of the second inefficiency (i.e. attempts to limit the discretion given to professionals with arbitrary rules) is perhaps the Bill's use of the concept of 'substantial risk of serious harm' by Tribunals in fettering clinical discretion over civil patients (see paragraph 3.4 above). The following are also examples where the Bill appears to limit discretion in places where this may be otiose:

a)  One serious inefficiency that we have previously raised with Government is the establishment at clause 16 of a prohibition on the full examination of any potential patient from the point that any one of the three examiners (two doctors and a social worker) concludes that all the conditions are not met. This legal duty appears to disallow discussion amongst the professionals as to the best outcome for a patient, or for an examiner to set aside any doubts pending discussions with his or her examining colleagues. Whilst sensible examiners could, where fulfilment of this duty would be detrimental to the patient's welfare, easily circumvent it by reserving their judgment for such time as it takes for a full examination to be made, it is perhaps unwise to rely on all parties taking such a pragmatic view of the law. By preventing a full examination, the Bill may foster poor decision-making over whether the conditions are met, and it may also hamper sensible alternative arrangements being made where the use of formal powers is unnecessary.

b)  Although the Bill leaves the 'suitability' of a patient's preferred 'nominated person' to the discretion of the professional who acts as appointer, regulations are also promised that will set out 'certain categories of people'[97] who will be automatically disqualified from being eligible for appointment as nominated persons. It would appear that Government wishes to establish beyond doubt certain legal categories of unsuitable person so that their exclusion from the role of nominated person would not rely upon the exercise of the professional discretion that the Bill provides. We are not at all convinced that it is easy to establish categories of such unsuitable persons that will not arbitrarily discriminate against people who might be categorised as unsuitable due to, for example, their having a criminal record of a certain kind[98]. It will be vital, not least to ensure that the law relating to the appointment of a patient's nominated person is not in breach of Article 8 of the ECHR, that genuine and appropriate nominations are not fettered by arbitrary constraints of law[99].

5.   IS THE PROPOSED INSTITUTIONAL FRAMEWORK APPROPRIATE AND SUFFICIENT FOR THE ENFORCEMENT OF MEASURES CONTAINED IN THE DRAFT BILL?

        
The role of the Tribunal

The right of appeal against liability to assessment

5.1  The Tribunal under the Bill proposals has a dual function of hearing patients' appeals against the imposition of formal powers and providing the authority for such impositions. There appear to be unresolved difficulties in the right of appeal for a patient who is liable to assessment. (i.e. during the 28 day period prior to the Tribunal's necessary involvement in a case). A patient under assessment can appeal to the Tribunal at any time, although the Tribunal will consider the case within 28 days even if no appeal is forthcoming. The right to appeal assessment is therefore a right to bring forward the hearing date.

5.2  A Tribunal that convenes earlier in the assessment process as a result of an appeal by the patient does not, however, consider only whether or not to discharge the patient from the form of compulsion that is the subject of the appeal. The Tribunal also can impose additional formal powers over the patient, for example extending the detention period to a maximum of six months[100]. From the patient's point of view, appealing against liability for assessment is therefore a hazardous business, as it may result in more stringent legal powers being applied than were in place at the time of the appeal[101].

5.3  It would seem to us to be a requirement of justice that Tribunals held in the first 14 days of assessments should not be empowered to make further orders, but should only consider the patient's appeal against the existing compulsion.

Care-planning and the Tribunal process

5.4  We recognise that the involvement of the Tribunal in authorising compulsory treatment is designed to meet human rights requirements and support the Government's policy of the Care Plan Approach. However, there are aspects of this process that could compromise these aims, rendering the Tribunal process effectively meaningless.

5.5  Our particular concern is that the protections available to patients afforded by Tribunal authorisation of a care-plan could easily be compromised by the adoption of generic care-plans describing, in terms that allow for wide discretion concerning prescription, medication and other treatments to be given in the absence of consent. The main elements of our concern are set out below.

a)  We are alarmed at the implication that only such treatments as are being given in the absence of consent should be detailed on the care plan submitted to the Tribunal (see 6.15 above). We recommend that care-plans submitted to Tribunals in respect of patients with mental capacity must be required, as a matter of primary legislation, to state what treatment, if any, the patient consents to, as well as those treatments for which authority in the absence of the patient's consent is sought. This information should be required by provision on the face of the Bill, with requirements for its submission by statutory form established within regulations.

b)  The lack of provision to provide medication under emergency powers (see 6.18 below) will increase the pressure on clinicians to produce generic and wide-ranging care-plans. Practitioners would seek to avoid reliance on common-law powers in emergencies through anticipating any emergency administration of medication in care-plans.

c)  Medical treatment for mental disorder has been very broadly defined by the courts and continues to be so in the Bill. It is unclear, therefore, whether interventions such as seclusion[102] or control and restraint would need to be anticipated in care-plans authorised by the Tribunal. Without advance authorisation practitioners will have to rely on common-law powers to impose such controlling measures, which will reduce their protection and the protection of patients from the current position. We continue to call for statutory regulation of seclusion and control and restraint practice (see 6.21 above).

d)  The medical expert undertaking a role equivalent to that of a Second Opinion Appointed Doctor (SOAD) is not required to consult with nursing and non-medical professionals before writing a report to the Tribunal on the merits of the case.

e)  Unlike a SOAD, the medical expert is not empowered to provide authority for treatment, but must report to the Tribunal on the merits of the proposal for treatment for a Tribunal decision. Also unlike a SOAD, the Tribunal is not empowered to authorise treatment without first negotiating the agreement of the clinical supervisor[103]. The Bill will thus replace the current single-doctor 'second-opinion' approval of medication or ECT with a three-stage Tribunal process (doctor's application, expert second opinion visit, Tribunal negotiation with original doctor and authorisation). It is not clear whether this will increase patient safeguards, and it is doubtful that it is necessitated by the ECHR. This could be cumbersome and bureaucratic, and the role of the Tribunal may be perfunctory in some circumstances (particularly where the issue at stake is an amendment to a care-plan for a patient already admitted to compulsion by the Tribunal). It may be just as effective protection for patients, and may relieve pressure on the Tribunal system, to provide the medical expert with powers of authorisation relating to specific treatments (such as ECT and psychiatric medication), perhaps limited to specific circumstances, such as amending extant orders.

5.6  We recommend that:

i)  Care-plans submitted to Tribunals in respect of patients with mental capacity must be required to state what treatment, if any, the patient does consent to, as well as those treatments for which authority in the absence of the patient's consent is sought;

ii)  Provison should be made in the Bill to regulate the assessment and recording of a patient's consent to psychiatric medication when that patient is otherwise subject to compulsion, as with the 1983 Act;

iii)  Emergency powers to provide psychiatric medication should be provided in the draft Bill on the model of the 1983 Act; and

iv)  Consideration should be given to less bureaucratic means of authorising changes to approved treatment plans, possibly allowing the medical expert powers of authorisation relating to specific treatments (such as ECT and psychiatric medication) under specific circumstances, such as in amending extant orders.

Future Monitoring Arrangements

5.7  The legal remit of the Mental Health Act Commission is stated in the Mental Health Act 1983, which requires the body to keep under review the exercise of the powers and discharge of duties conferred or imposed by that Act in respect of the detention of patients for psychiatric care and treatment[104]. This role focuses primarily on meeting in private with such patients, as required by statute, monitoring the implementation of the Act in healthcare establishments. It includes the examination of documents and other evidence of practice in the use of the Act to detain and treat patients, culminating in a report to the hospital managers on our findings. Our core function is the general protection of detained patients, in recognition of such patients' unique position in not being able to discharge themselves from care[105].

5.8  It was considered important upon its establishment that the functions of the MHAC were kept separate from other inspectorial bodies. The MHAC was not to inspect and report on services in psychiatric units in the way in which then extant inspectorial bodies did:

The Commission's concern will be the particular problems which arise from detention…the name 'Mental Health Act Commission' has been chosen deliberately to emphasise its responsibilities for seeing that patients have full advantage of all the available legal safeguards under the Act[106].

5.9  The Commission also meets with representatives of social services and engages with the police over their use of the Act's powers. The Bill's proposal reflects this cross-disciplinary aspect of the current MHAC focus, although it unfortunately does not extend powers to areas where the MHAC would suggest that monitoring of the use of powers is required, such as by the police in using emergency powers, or by prison authorities where prisoners are assessed for detention under mental health law[107]. It also, crucially, does not extend a specific monitoring role to patients who are subject to detention or treatment under the proposed powers of the Mental Capacity Bill, although the MHAC has called for its monitoring role to be extended to similarly de facto detained patients from its earliest days.

5.10  THE DRAFT BILL PROPOSES THAT MONITORING OF THE MENTAL HEALTH ACT WILL BE TRANSFERRED TO THE COMMISSION FOR HEALTHCARE AUDIT AND INSPECTION, COMMONLY KNOWN AS THE HEALTHCARE COMMISSION. WHILST WE WOULD NOT HAVE WISHED FOR THE DEMISE OF THE MENTAL HEALTH ACT COMMISSION, WE ARE LESS CONCERNED ABOUT ORGANISATIONAL STRUCTURE THAN ABOUT SAFEGUARDING FUNCTIONS. WE HAVE WORKED ENTHUSIASTICALLY WITH THE HEALTHCARE COMMISSION TO EFFECT JOINT WORKING AND TO ESTABLISH THE GROUNDWORK FOR A TRANSFER OF RESPONSIBILITIES SHOULD THIS BE ENACTED BY PARLIAMENT. WE DO WANT TO ENSURE THAT THE RIGHTS OF DETAINED PATIENTS ARE GIVEN THE SAME HIGH PRIORITY WITHIN THE HEALTHCARE COMMISSION AS UNDER THE CURRENT STRUCTURE, AND THAT MONITORING THE USE OF LEGAL POWERS DOES NOT BECOME SUBSUMED UNDER THE WIDE FOCUS OF GENERAL HEALTHCARE INSPECTION. THE BENEFITS OF RATIONALISATION AMONGST HEALTH SERVICE BODIES MUST BE BALANCED AGAINST THE NEED TO ENSURE THAT THE CORE STATUTORY FUNCTION AND DUTIES TOWARDS PATIENTS SUBJECT TO CARE UNDER THE STATE'S COMPULSION, INCLUDING AND ESPECIALLY VISITING PRACTICES, ARE NOT LOST.

5.11  To this end we hope that further consideration will be given to establishing in law powers, duties and accountability that will preserve a specialised monitoring focus upon patients subject to compulsion irrespective of organisational structures.

5.12  We have previously suggested powers and duties based upon those of the Children's Rights Director as a model for the sorts of powers and duties that could be set out within a broader inspectorate to protect the specific monitoring focus of compulsion[108], although we are unconvinced that the structural relationship between the Director and the inspectorate is exemplary[109]. We are concerned that without functions protected by legislative requirement and specific accountability, the pressures on a general body such as the Healthcare Commission will be bound to marginalise specialist monitoring and therefore patient protection. We believe that it should be possible to develop proposals which, without necessarily implying the continued existence of a separate monitoring body, retain the advantages of having an identifiable mental health division of the Healthcare Commission while providing for a separate and independent role in overseeing the strategic planning and implementation of monitoring functions in relation to patients under compulsion.

6.   Are the safeguards against abuse adequate? Are the safeguards in respect of particularly vulnerable groups, for example children, sufficient?      

      
Children

6.1  The Bill proposes that children under the age of 16 will be exempt from its provision at clause 9(7), which states that any patient who poses 'substantial risk of serious harm' to other persons may be made subject to powers of compulsion even where legal alternatives exist[110]. It is therefore the case that clause 9(7) can be applied to children aged between 16 and 18. We question at paragraphs 2.21 - 2.23 above whether clause 9(7) needs to apply to any patient, but in the context of child and adolescent services we remain particularly concerned that the provision appears to sets a different standard for decision-making in respect of adolescent patients (i.e. aged 16 - 18) from that which is established under s1 of the Children Act 1989[111]. As compulsory psychiatric admission or treatment could be provided to adolescents under either the Children Act or the Mental Health Act, we question whether such differences of fundamental approach are appropriate.

6.2  We are broadly supportive of the provisions of the Bill specifically relating to children's treatment. The provision ensuring that, except in emergency situations, all proposals for ECT to under-16s are subject to Tribunal approval will, we believe provide a welcome safeguard to clinicians on the rare occasions where they feel that such treatment is necessary, and should provide a helpful support to parents, who at present are usually placed in the difficult position of providing or withholding consensual authority for ECT to be given to their child. The Commission has recently been involved in one such case where this change in the law would have been welcomed by all concerned.

Black and minority ethnic patients

6.3  The Commission has taken a leading role in working alongside Government over initiatives to address questions raised by the over-representation of Black and minority patients in the detained psychiatric population, and by the adverse care pathways experienced by many Black patients[112]. It is well established that Black and minority ethnic patients are over-represented in the detained patient population under the current Act. The numbers of Black patients assessed for possible detention is also disproportionately high[113]. A recent systematic review of published research suggested that the statistical odds on a Black and minority ethnic patient being detained under the Act, compared to a similarly unwell white patient, are at least 4:1[114]. Black patients, particularly from Black Caribbean and Black African communities, may fare worse than white patients in risk-assessments and can become caught in a cycle of fear and prejudice that leads to increasingly adverse pathways into mental health care.

6.4  We consider it to be highly likely that Black patients' care is adversely affected under the current law by stereotyping and prejudice. Black and ethic minority patients may be deterred from early contact with services by (perhaps not unjustified) perceptions of the likelihood of detention or compulsory treatment, and may well be likely to be assessed as a higher risk of non-compliance or of potential violence than their White counterparts once such contact is made. We consider it important that the principles for the implementation of the Bill should reinforce the requirements of respect for diversity and anti-discrimination established under other primary legislation. But we are concerned that any such statement of principles could be undermined in practice by the Bill's wide scope for defining the conditions of compulsion, alongside the emphasis placed upon perceived dangerousness as a criterion for such compulsion. These factors are unlikely to help in reversing the adverse care experiences of many Black and ethnic minority patients.

Are there enough safeguards against misuse of aggressive procedures such as ECT and psychosurgery?  

'Aggressive' treatments

6.5  ECT and Neurosurgery for Mental Disorder (NMD) are controversial treatments and there are aspects of each treatment that warrant special safeguards against their misuse. However, all psychiatric treatment, such as detention in hospitals, as well as the administration of psychiatric medication, has potential for 'aggressive' misuse, and it is of course part of the purpose of mental health law to provide a framework to safeguard against this.

Allowing the High Court to authorise NMD for incapacitated patients

6.6  The Commission supports the Government's proposal to allow the High Court to authorise Neurosurgery for Mental Disorder for incapacitated patients. We are aware of the case referred to in the Government's explanatory notes to the Bill, where a patient with obsessive-compulsive disorder was mentally incapacitated by another condition, and was therefore precluded in law from receiving the NMD that has been deemed in his best interests[115]. It does not seem to us to be helpful that the law designed to safeguard patients should prevent individual consideration of their cases in relation to NMD. We can therefore see no reason why the High Court should not be empowered to consider such cases and provide authority for treatment where it finds it appropriate to do so in accordance with the criteria suggested at clause 194 of the Bill. We do not believe that such cases will be numerous, and we are confident that the Court will appreciate the gravity of the decisions placed before it when they occur.

Electro-Convulsive Therapy

6.7  The Bill proposes that ECT shall not be given to patients under compulsion, where such patients refuse consent, except in an emergency. Many stakeholders have also demanded that the thresholds for compulsion as a whole should be based upon a capacity test, so that patients with mental capacity would have a right to refuse hospital admission or treatment in general, except where safety considerations might override this. The Government has not acceded to this demand, and many aspects of compulsion - including admission to hospital and treatment with medication - can be imposed notwithstanding capacitated patients' refusal of consent if the conditions for compulsion are met.

6.8  Because the 2002 draft Bill did not adopt the capacity-based model proposed by the Richardson Committee, we suggested last year that the problems and dilemmas of capacity-based thresholds for compulsion would not have to be put before Parliament in relation to a Mental Health Act in the immediate future[116]. The 2004 Bill's proposal of a capacity test as the threshold for imposition of ECT treatment has perhaps brought the issue back into the centre of the debate. The Commission is sympathetic to calls for an approach to compulsion that gives proper regard to mentally capacitated patients' wishes. We do, however, have concerns as to whether the concept of mental capacity can provide the panacea of natural justice that its supporters seem to suggest. The concept is adopted in a wide variety of definitions for different purposes and in different jurisdictions[117]: in the current Mental Health Act Code of Practice it is defined in relation to the judgment of Re C (Adult: Refusal of Treatment) [1994], as essentially a test of cognitive ability, and one that may be viewed as a point on a sliding scale rather dependent upon the seriousness of the procedure under consideration.

6.9  We have concerns that any indeterminate concept of mental incapacity, prematurely adopted as a legal threshold in the context of psychiatric compulsion, may too easily be equated with a failure to agree to a treatment that is considered necessary by a supervising clinician. As such, capacity-based legislation could merely result in an increase in the proportion of patients considered to lack capacity to consent or refuse consent. Conversely, there are dangers that a rigorous capacity test could mean that patients who have mental capacity but whose conditions are deteriorating would either have to be denied clinical intervention until such time as their conditions have deteriorated to the point of loss of capacity or, perhaps more likely, clinical intervention will be justified under emergency treatment powers to prevent such deterioration. There is also, of course, the question of when a danger to the patient or others should provide reason to override a capacitated refusal to treatment.

6.10  The Commission administers the Second Opinion Appointed Doctor (SOAD) system, through which all impositions of ECT upon refusing patients under current law are processed. We set out below at figure 2 data collected through that administration that has not, as yet, been considered as a part of this policy formation[118].

Refusing consent	Female	615 (29%)		100%	Emergency powers used	Yes	67 (11%)		100%
						No	548 (89%)
	Male	219 (11%)			Emergency powers used	Yes	23 (11%)		100%
						No	196 (89%)
Incapable of consent	Female	865 (41%)			Emergency powers used	Yes	124 (14%)		100%
						No	741 (86%)
	Male	390 (19%)			Emergency powers used	Yes	46 (12%)		100%
						No	344 (88%)

Fig 2: ECT SOAD authorisations 2002-03 by consent status, gender and use of emergency powers

6.11  The data in figure 2 above shows that, in England and Wales over the financial year 2002-03, 40% of SOAD authorisations of ECT were in respect of mentally capacitated patients who were refusing consent. ECT was authorised on 834 occasions in such circumstances, which is an average of between three and four such authorisations every working day. Under present law, similar thresholds for the emergency use of ECT apply as are proposed under the Bill[119], and our data shows that for 11% of refusing patients emergency powers are used before the SOAD authorisation is secured[120].

6.12  For each authorisation, two separate medical practitioners have concluded that ECT is in the patient's best interests[121]. Given this, and our concerns at the indeterminacy of the concept of capacity, we do have some doubts that the proposed change in the legal framework for administering ECT under formal powers would lead to all of these patients not receiving treatment. Although it is possible that there would be some reduction in the numbers of patients treated overall, we therefore suggest two equally likely effects of the change:

a)  The apparent fluidity between categories of 'refusing' and 'incapable' patients in current practice suggests that, were the law to make mental capacity the determinant over whether ECT could be given, a number of patients currently considered to be 'refusing' would be classified as 'incapable'; and

b)  For those patients who could not be classified as incapable, the use of 'emergency' powers could increase as a means for practitioners to provide ECT where clinicians feel it is necessary for the patient's treatment. The invocation of emergency powers does, of course, deprive the patient of any safeguard over potential misuse of an intervention.

6.13  We are also uncertain of the basis upon which mental incapacity may be deemed suitable as the legal threshold for the imposition of ECT, but not for other forms of psychiatric treatment. In particular, we feel that there should be a clear justification for ending the equivalence of legal protections and rights of patients under the present law in relation to the imposition of ECT and long-term psychiatric medication. We discuss this further below.

Abolition of consent to medication under the provisions of a Mental Health Act

6.14  Unlike the 1983 Act, the Bill gives no express provision that allows for a patient who is subject to the general powers of compulsion to consent to psychiatric medication and thereby provide authority for its administration[122]. We have grave reservations over the advisability of this change from the current legal framework. There is a serious imbalance in the Bill, in that patients with capacity are being given the right to consent and refuse ECT, but the right to do neither for medication[123].

6.15  Under the Bill's proposals, psychiatric medication would be classified in the catch-all category of 'other treatments' (i.e. those that are neither ECT nor type A nor type B treatments). For such treatments, the Bill provides simply that such patients' consent 'is not required' in the initial 28 days or for any treatment plan subsequently authorised by the Tribunal or court[124]. Therefore, any patient who consents to his or her medication whilst otherwise subject to compulsion under the Bill will do so, and may receive it, under the general powers of the common law. The Bill also provides that care-plans submitted to the Tribunal will only require a record of psychiatric medication (and any other treatment) for which the patient has not consented or cannot consent[125]. The recording of either details of the treatment being given under consent, or the details of the consent itself, will be a matter outside the provisions of the Mental Health Act and a matter of policy guidance at best.

6.16  We are very concerned at this reversal of the position established under the 1983 Act, for the following reasons:

a)  This looser structure in the law pertaining to consent to treatment could allow less regard to be given by practitioners to consent status, and therefore have a deleterious effect on the recognition of patients' rights and an effect counter to Government's intention.

b)  Practitioners are often nervous of administering treatment under the common law to patients subject to detention in hospital, which may lead to practitioners becoming reluctant to recognise patients' valid consent as they may feel more exposed to legal challenge in giving treatment on that basis.

c)  The Bill's provisions are very unclear over the authority to give medication to patients who are subject to compulsion. There could be a real danger of practitioners misreading clause 199 to imply that such patients' consent is superfluous or irrelevant.

d)  The recording of patients' consent to medication will be outside of statutory provisions, leaving the form of such records to local practice. This will make such records difficult to review or monitor (and indeed will prevent any such monitoring under the reviewing powers contained in the Bill itself[126]), even where such records or the reality of the consent that they attest to is questionable. Lack of statutory requirements in assessing and recording consent status will hamper legitimate challenges to practice by patients' representatives or inspecting bodies. Good practice gains in encouraging records of consent discussions, capacity assessments, etc could be reversed.

e)  Care-plans submitted to the Tribunal, if they are only required to state what treatment is being administered without consent, will give an incomplete and misleading picture of patients' treatment. This will hamper reasonable decision-making (i.e. to establish whether compulsion is necessary the Tribunal must consider what treatment could be provided without compulsion) and will mean that care plans for the Tribunal will be unsuitable for use in documenting Care Plan Approach requirements for the patient's overall treatment.

f)  The proposal regarding medication is not consistent with other provisions of the Bill, which provide that a patient subject to powers of compulsion under the Bill may consent to ECT or NMD under the powers of the Bill. In both cases, the Bill provides detailed requirements regarding the certification of the patient's consent. The requirements in relation to certification of consent to ECT[127] provide a model for similar provision in relation to medication and should be adopted. There is no reason for inconsistency of approach between ECT and medication over this issue.

6.17  We recommend that there should be specific provision on the face of the Bill with regard to treatment with medication for mental disorder, allowing that a patient's consent can provide authority for such treatment, and setting out provisions for safeguards in relation to authority for treatment without consent. Where treatment is authorised by the patient's consent, regulatory powers should establish requirements for records to be made in statutory form that assessments of mental capacity and consent status have taken place.

Abolition of emergency treatment powers regarding psychiatric medication

6.18  We consider it to be a serious oversight that the Bill provides no legal framework for the emergency administration of medication for mental disorder. In the absence of such a framework, practitioners will have to rely on common-law powers to administer any medication in an emergency to a patient whose Tribunal-approved care-plan does not specify that such treatment should be given. This:

a)  encourages over-inclusion of proposed treatments on care-plans;

b)  provides practitioners and patients with less safeguards than under the present law;

c)  is inconsistent with the proposals to allow emergency administration of ECT[128] and

d)  denies the possibility of monitoring the use of emergency medication.

6.19  The Bill should be amended to include provision for emergency administration of medication for mental disorder, modelled upon the clauses providing such powers in respect of ECT.

Other treatments requiring safeguards - naso-gastric feeding

6.20  The Commission has long called for the regulatory powers of the 1983 Act to be used to provide equivalent safeguards for naso-gastric feeding of patients under the Act's powers as are provided for ECT. We are disappointed that it appears there are no plans to use the regulatory power to specify such interventions as 'type B' treatments for this purpose[129]. We urge that naso-gastric feeding of patients subject to formal powers be afforded the protections of type B treatment arrangements.

Issues of control and management requiring safeguards

6.21   The Bill provides no specific regulatory powers in relation to the control and management of patients, and no provision equivalent to section 63 of the 1983 Act which can provide a general authority for such interventions. This would appear to make uncertain what powers are available for the control and management of patients in hospital, and may inadvertently require clinicians to anticipate emergency control and restraint procedures (including seclusion) in patient's approved care-plans, to avoid having to seek justification under common law. This is impractical, and may be counter-productive in reinforcing measures such as seclusion as standard 'treatment' options for difficult to manage patients. We recommend that there should be a dedicated regulatory power in relation to issues over the control and management of patients, where regulation can be made over training, use of staff, and record keeping etc in relation to seclusion and restraint. Such a power could also enable future regulation of problem issues such as searching, confiscation of property, use of CCTV etc.

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?

Matters established by regulation

7.1  In its report on the 2002 Bill, the Joint Committee on Human Rights established that 'in general … elements in a statutory scheme which are vital to the capacity of the scheme to operate compatibly with human rights should be spelt out in legislation itself'[130].

7.2     We have indicated in several of our answers to the Committee's questions that the scope of matters dealt with by regulation in the draft Bill is of concern to us. Regulatory powers are used, wholly or in part, to define fundamental conditions and thresholds of compulsion, including:

a)  the definition of mental disorder (para 2.12), and therefore the conditions for compulsion;

b)  the scope for instigating compulsion from a community assessment (para 2.32 - 4); and

c)  the scope of civil restriction orders (para 3.4).

The positing of legally weak principles underpinning the use of the Act, to which regulation-makers need not have regard, heightens our concern over this broad scope of regulation. We recommend caution over legislating far-reaching but ill-defined powers for the restriction of civil liberties.

Matters left to a Code of Practice

7.3  The Bill appears to leave issues of serious importance to the operation of formal powers within a human rights framework to its Code of Practice:

a)  the principles upon which the law is to be interpreted (see question 1 above);

b)  seclusion and restraint (it is conceivable that, in emergency situations, the Bill can provide no powers for such interventions and that the common-law would have to be relied upon) (see paragraph 6.21);

c)  other control and discipline issues, such as searching of patients or control and confiscation of patient's property (para 6.21).

d)  consent to treatment issues, including the regard to be given to questions of mental capacity, refusal of consent and advance directives; the framework for consent to psychiatric medication for people subject to compulsion; and the emergency administration of psychiatric medication (for which the Bill proposes no powers, so that the common-law will be relied upon) (see paras 6.14 - 6.19 above).   

  

7.4  Although the judgment is subject to appeal to the House of Lords, we draw the Committee's attention to the conclusion of the Court of Appeal regarding this aspect of the present legal framework[131]. The Court of Appeal confirmed that the State has an obligation to ensure that public authorities act compatibly with the ECHR and that the law is sufficiently defined for this purpose. Where the law lacks the transparency and predictability required for ECHR compliance, and this can only be provided by 'guidance' in a Code of Practice, then this guidance should be afforded a status consistent with its purpose. Therefore, where the Code takes on a quasi-legislative role, it should be observed by all hospitals unless there is a good reason for particular departures in relation to individual patients or identified groups of patients. It is not acceptable to depart from the Code as a matter of policy, although policies may identify circumstances when such departures might be considered on a case-by-case basis.

7.5  Ideally, we would like the Code to have such authority, and for matters vital to the operation of compulsion compatibly with human rights to be dealt with by primary legislation. However, under the Bill proposals, the Code appears to take on a quasi-legislative role and yet practitioners must only 'have regard to' its general principles[132]. We view such a status for the Code as inconsistent with the use to which it is put under the proposals.

7.6  We believe that a Code of Practice can and should play a pivotal role in determining how new legislation is operated, but it should support rather than establish legal thresholds. If the Code is used appropriately, as we suggest, its authority could be strengthened without making its guidance legally binding, by the creation of a statutory duty to record and provide reasons for departures from such guidance in patients' clinical records.

8.  Is the draft Mental Health Bill adequately integrated with the Mental Capacity Bill (as introduced in the House of Commons on 17 July 2004)?

8.1  We have serious concerns that the potential scope of the Mental Capacity Bill and the draft Mental Health Bill will overlap and interfere with each other in a way that could be inherently unworkable. The following problems seem to us to require further exploration.

8.2  The Bills are based upon different conceptual approaches to decision-making regarding mentally disordered persons. The determining threshold of the Mental Capacity Bill is whether or not a person is able to make a decision over his or her own affairs, and the key determining threshold in the draft Bill is a professional opinion regarding the necessity of providing treatment. This difference of approach may be problematic in areas where the Bills propose overlapping powers, especially where a patient is treated under the powers of each legislative framework during the course of treatment and care as his or her circumstances change.

    

8.3  The Mental Capacity Bill proposes broad powers concerning the treatment of patients without capacity, even in the face of their resistance[133], provided that they have not made an advance directive refusing consent[134] or their attorney / deputy does not refuse consent on their behalf[135]. As the powers of draft Mental Health Bill may only be used where treatment may not lawfully be provided by other means (unless the patient poses a serious risk of substantial harm to others)[136], where an incapacitated patient has neither made an advance statement nor has an attorney / deputy who refuses consent on their behalf, the Mental Capacity Bill's powers would seem to take priority over the draft Mental Health Bill. Conversely, where a patient is provided with safeguards through the Mental Capacity Bill, such as the right to make advance directives, these safeguards may both be overridden by, and indeed the justification for, the use of powers proposed in the draft Mental Health Bill.

8.4  The Mental Capacity Bill thus modifies the operation of the Mental Health Bill and vice versa. It will be possible for a compliant incapacitated person to be treated under either Bill even though the lack of capacity might be due to a diagnosed mental illness which falls squarely within the definition of mental disorder in the Mental Health Bill.

8.5  The recent judgment in H.L v United Kingdom[137] must raise the question of whether the powers proposed in the Mental Capacity Bill provide adequate safeguards to ensure their compatibility with Article 5 of the European Convention. It would seem likely that the safeguards available to any patient given medical treatment in hospital under the powers proposed in the Mental Incapacity Bill must be reconsidered in the light of a requirement to prescribe by law procedures regulating admission and mechanisms of appeal. This could, for example, imply an extension of the Mental Health Tribunal's scope to have an overview of all mentally incapacitated patients' mental health care.

8.6  However the European Court's ruling in H.L. v UK is interpreted by Government, we are of the view that the safeguards available to patients generally as proposed under the Mental Capacity Bill's powers are in any case inadequate, but especially if any incapacitated patient (i.e. whether compliant or not) would be liable to treatment under its powers rather than the powers of a Mental Health Act. In particular:

a)  The Mental Capacity Bill's requirement for the treating authority of patients who are incapacitated but compliant to first appoint an "independent consultee" (who may or may not be a registered medical practitioner, dependent upon regulation) and then 'take account' of his or her views in the patient's subsequent treatment is much weaker than the Tribunal-based safeguards of the Mental Health Bill (even taking account of our reservations over the latter); and falls very short of a meaningful safeguard against unreasonable detention and/or treatment;

b)  Patients treated under mental incapacity legislation would have no right to advocacy, whereas patients subject to Mental Health Bill powers would; and

c)  The specific duties of visiting and review afforded to the Commission's successor body under the draft Mental Health Bill would not extend to patients treated under mental incapacity legislation.

  Such differences in provision across the two Bills, if not already unacceptable as a result of H.L. v UK, are surely equally susceptible to similar legal challenge.

8.7  We recommend reconsideration of the interface between the Mental Capacity Bill and draft Mental Health Bill, particularly in light of H.L. v UK.

9.   Is the draft Mental Health Bill in full compliance with the Human Rights Act?   

9.1  In our evidence above we have pointed to the wide scope provided by the European Convention on Human Rights in relation to the State's intervention in respect of mentally disordered people[138]. We have noted, for example, the Joint Committee on Human Rights' conclusion that preventive detention is not unlawful under the Convention and that the proposed measures of the 2002 Bill, whilst raising human rights concerns, would not in themselves lead automatically to violations of human rights[139]. Government has stated that it believes its proposals in this draft Bill are compatible with the Human Rights Act 1998. Our study of the proposals would suggest that, even so, they raise human rights concerns and there is likely to be a considerable volume of legal challenge that will test, or in some cases establish, the boundaries of the law.

9.2  Areas of particular difficulty appear to be:

a)  The broad scope of possible interventions created by the conditions for compulsion, including the definition of mental disorder (questions 1 and 2 above) .

b)  The lack of certainty over the relationship between the draft Mental Health Bill and the Capacity Bill. Any psychiatric treatment that may amount to detention that is given under the proposed framework of the Mental Capacity Bill may fail the requirements of ECHR Article 5 (see question 8 above).

c)  The criteria and threshold for instigating compulsory powers in the community where a patient has not been assessed in hospital immediately beforehand (para 2.39)

d)  Powers of restriction provided over civil patients that may have questionable links to clinical need: non-therapeutic detention (para 2.25 -2.30 above); civil restriction orders, orders requiring residency in hospital for a minimum period and requirements that patients in the community do not engage in specified activities (paras 3.4 - 8 above).

e)  The use of powers in respect of adolescents aged between 16 -18 (para 6.1).

f)  Decisions made by the Tribunal on the basis of care-plans that may only indicate treatment to which the patient is opposed (para 6.16(e)).

g)  The adequacy of safeguards regarding consent to treatment provision, particularly where a patient refuses consent (questions 5, 6).

h)  The continued legal authority for control and restraint measures, including seclusion (para 6.21).

Our previous recommendations and comments have touched upon these matters.

10.  What are likely to be the human and financial resource implications of the draft Bill? What will be the effect on the roles of professionals? Has the Government analysed the effects of the Bill adequately, and will sufficient resources be available to cover any costs arising from implementation of the Bill?          

10.1  The Commission does not have a general view over the resource implications of the Bill, except to note that these are widely accepted to be considerable. The new systems would require more resources than at present, especially to operate the Tribunal structures required to authorise all compulsion at 28 days and any changes to such authority thereafter. Inevitably, these resources would include 'front-line' services, and would in particular provide additional pressures of work on psychiatrists in preparing for and attending Tribunal hearings.

10.2  It is important that the Bill should be cost-effective, in that the diversion of resources to administer it should be justified by the benefit and safeguards to patients, and the assurance that it provides to professionals. On the basis of the criticisms contained within this paper we are concerned that the Bill at present may fail this test.

10.3  In particular, we think that the proposed Tribunal's effectiveness when measured against its resource requirements will be questionable. This is partly a question of whether the Bill establishes adequate conditions for compulsion that the Tribunal may use as criteria (as discussed in our evidence to questions 1 and 2 above), and partly due to our concerns over how the Tribunal safeguards may work in practice as set out at paragraph 5.5 above.

Mental Health Act Commission

12 October 2004

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37   i.e. the definition of a clinical supervisor (paras 2.12 - 2.13 below); the categorisation of patients who may be eligible for compulsory powers initiated without inpatient assessment (paras 2.32 - 2.41); the scope of civil restriction orders (para 3.4). Back

38   Improving Mental Health Law: Towards a New Mental Health Act , para 3.20.  Back

39   The European Convention does of course allow for the lawful detention of persons of unsound mind, alcoholics or drug addicts or vagrants (Article 5(1)(e), and allows restrictions on liberties as prescribed by law for the protection of health or morals (Articles 8(2), 10(2)). The Convention itself could not therefore be relied upon to exclude the use of mental health law to incarcerate drug addicts, alcoholics or other persons where the law itself made no clear limitation on such use. Although the interpretation of Convention rights is dynamic in nature, leading cases such as Herczegfalvy v Austria (1993) have also shown that treatment which falls below acceptable practice standards may nevertheless not be in breach of the Convention.  Back

40   Where mental health powers have extended to the compulsory detention or treatment of alcohol abuse it has on occasion been used widely for that purpose. For example, a three-year study of the Cavan/Monaghan Psychiatric Service (Eire) between 1989 - 1991 found that alcoholics accounted for 24% of all compulsory admissions under the then extant 1945 Irish Mental Treatment Act. Most of these admissions were of short duration, 'which suggested that certification was being used as a way of dealing with social and behavioural crises in relation to intoxication' (Carey, T and Owens, J (1993) "Involuntary admissions to a district mental health service - implications for a new mental treatment act". Irish Journal of Psychological Medicine, 1993 October; 10(3):139-144).  Back

41   Draft Mental Health Bill, clause 1; schedule 1. Such broad criteria for disapplication must compromise the purpose of establishing principles at all. The present Code of Practice, which has more legal weight than the Bill's proposals will allow is successor (see discussion below at paragraphs 7.4 - 7.5), establishes principles without such qualification of their applicability. We can see no reason why principles on the lines of those we suggest should not be universally applicable. Back

42   Draft Mental Health Bill , clause 2(5)  Back

43   These examples of the potential reach of the 2002 Bill proposals are from the Royal College of Psychiatrists' response to the 2002 Bill consultation exercise (Journal of Mental Health Law 8:377).  Back

44   Improving Mental Health Law, para 3.12 Back

45   The Richardson Committee took a similar position, and concluded that for a broad definition of mental disorder to be acceptable, 'it becomes essential to ensure that the other criteria are sufficiently demanding to prevent the inappropriate use of compulsion'. Although it determined that an inclusive definition of mental disorder was appropriate and appeared confident that it had established 'sufficiently demanding' criteria for compulsion, the Committee nevertheless suggested retaining the exclusions of the 1983 Act in a modified form, suggesting that the ICD-10 category of 'disorders of sexual preference' be excluded from the Act's definition, and that drug or alcohol misuse should be excluded as a sole ground for believing mental disorder to be present. See Department of Health (1999) Review of the Mental Health Act 1983: Report of the Expert Committee (the Richardson Report), page 49 para 5.17, and page 38 -39, paras 4.9 et seq. Back

46   Richardson Report, para 4.11 Back

47   The ICD-10 does however state that 'social deviance alone, without personal dysfunction, should not be included as mental disorder'- see World Health Organisation (1992) ICD-10 Classification of Behavioural and Mental Disorders, page 5 ('Problems of terminology: Disorder'). We do not, however, conclude from this note in the introductory pages of ICD-10 that a legal threshold is thereby established.  Back

48   We note in this context that recent mental health legislation in Scotland and the Republic of Ireland has contained explicit exclusions from the definition of mental disorder. In 2001 the Irish Government passed the Mental Health Act 2001, which provides that a person may not be admitted to hospital under its powers by reason only that he/she is socially deviant or is addicted to drugs or intoxicants (see footonote 4 above on the use of mental health powers to detain intoxicated persons In Eire prior to this change). The Mental Health (Care and Treatment) Scotland Act 2003 states that a person cannot be considered mentally disordered for the purposes of that Act "by reason only of sexual orientation; sexual deviancy; transexualism; transvestism; dependence on, or use of alcohol or drugs; or behaviour which causes, or is likely to cause harassment, alarm or distress to any other person; or acting as no prudent person would act". Back

49   The treatability test does apply to any category of mentally disordered patient in the case of renewing detention for treatment - see Mental Health Act 1983, section 20(3),(4).  Back

50   Under section 2 of the 1983 Act, (detention in hospital for assessment for up to 28 days with treatment powers) this threshold is simply 'ought to be detained in the interests of his own health or safety…'. Back

51   Draft Mental Health Bill, Clause 2(7); this provides that all references to 'medical treatment' are to be understood as references to treatment for mental disorder provided under the supervision of an approved clinician.  Back

52   Draft Mental Health Bill, Clause 2(7) Back

53   Draft Mental Health Bill, Clause 3(2) Back

54   Improving Mental Health Law proposes the qualification of 'approved clinician' as a 'specialist doctor or senior mental health practitioner' (page 11). The closest equivalent role under current law is the responsible medical officer (RMO), who must be a registered medical practitioner and is, as the title suggests, responsible in law for the patient's treatment (MHA 1983 s64(1)). It is not clear that a clinical supervisor who is not a registered medial practitioner could, in fact, be 'responsible' for their patient's treatment in an equivalent sense, having, for example, no legal authority to prescribe medication. In this sense the 'clinical supervisor' role would seem potentially much more of a co-ordinating one, closer to the role of 'supervisor' under supervised discharge arrangements in current law. This shifting of roles and responsibilities is of concern to us in that it may imply a potential for the use of the Bill's powers for purposes less directly connected with medical necessity than is acceptable under the present law.  Back

55   Improving Mental Health Law, page 28, paragraph 3.35 Back

56   In part, this will depend upon as yet undetermined limitations to be placed upon the use of proposed community powers as a patient's entry into compulsion by regulation: see paragraphs 2.32 - 2.40 below.

 Back

57   See Mental Health Act 1983, section 25A(4)(b) Back

58   By 'disingenuous' consent, we refer to the apparent voluntary agreement of a patient to engage with services, given to avoid use of compulsion, but liable to be withdrawn before services are provided.  Back

59   Mental Health Act 1983 Code Of Practice, paragraph 2.7 Back

60   See Jones, Richard (2003) Mental Health Act Manual, Eighth edition, paragraph 1-324. This definition was made in the context of the Contempt of Court Act 1981(Att.-Gen v. English [1982] 2 All E.R. 903 at 919 and Att.-Gen. v. News Group Newspapers Ltd [1986] 2 All E.R. 833 at 841).  Back

61   Similar points are made in relation to the 2002 Bill proposals in Bartlett and Sandland (2003) Mental Health Law: Policy and Practice, Second edition. Oxford University Press, page 175.  Back

62   Joint Committee on Human Rights (2002) Draft Mental Health Bill; Twenty-fifth Report of Session 2001-02. HL Paper 181, HC 1294. (JCHR Report) page 18, para 46. Back

63   Draft Mental Health Bill, clause 9(6).  Back

64   JCHR Report, page 17, para 42 Back

65   JCHR Report, page 14, paras 34 -5. Back

66   JCHR Report, page 15, para 37. Back

67   JCHR Report, page 18, paras 45-46. The case law in question is Anderson, Reid and Doherty v The Scottish Ministers and the Advocate General for Scotland [2001] DRA Nos 9, 10 & 11 of 2000. Back

68   Improving Mental Health Law, page 8, figure 2.  Back

69   Improving Mental Health Law, page 26, para 3.23. The Committee may wish to consider whether the use of the phrase 'general facilities' in this statement implies that detention of people for whom no treatment is available is envisaged in any other facility, such as DSPD units.  Back

70   See paragraph 2.8 and footnote 13 above. Back

71   Reforming the Mental Health Act. Cm 5016-I, December 2000. Para 3.21 Back

72   See Improving Mental Health Law, page 25-6, para 3.21-23. Back

73   Improving Mental Health Law para 3.33  Back

74   Improving Mental Health Law para 3.37 Back

75   Explanatory Notes, para 7. Back

76   Improving mental health law para 3.37 Back

77   Mental Health Bill, clause 119 Back

78   Patients may be required to reside in a specified place, attend specified places at specified times, and make themselves available for treatment. As with supervised discharge (MHA 1983 s25D(4)), a power to take and convey the patient can be used to enforce these requirements (see clauses 80 - 81, 119, 121). There is an additional power to require a patient not to engage in specified conduct (clauses 46(7)(b), 49(7)(b), 119(7)(b)), which we discuss further at paragraph 3.8. In addition to these provisions, the Bill allows that patients subject to non-residential orders can be given medical treatment without consent (see paragraphs 2.38 below).  Back

79   Improving Mental Health Law, para 3.38 Back

80   Guardianship: As of the 31 March 2004 there were 932 persons subject to guardianship under the 1983 Act in England. The use of guardianship is not uniform across the country, in that roughly 10% of local authorities have for some years accounted for a significant proportion (roughly 40%) of cases (Department of Health (2004) Guardianship under the Mental Health Act 1983, England, 2004). Upon enactment of the Bill's provisions, all guardianship powers would cease and any person subject to guardianship would be considered as discharged (schedule 14, para 5). Many of these patients, of course, would be likely to lack mental capacity and could fall within the reach of mental capacity legislation.

Supervised Discharge: Statistics available for the financial year 2002/03 show 606 patients made subject to supervised discharge in England over that year, and an average of 575 patients made subject to supervised discharge in each of the previous three years (Department of Health (2003) Statistical Bulletin 2003/22). Upon enactment of the Bill's provisions, extant supervised discharge orders will be allowed to run their course (i.e. no more than one year) but will not be renewable. The transitional provisions of the Bill suggest that some patients subject to aftercare under supervision at this time will be likely to become liable to assessment under the new Act's provisions (Schedule 14, para 31(7)(8)). Back

81   Department of Health (2003) Statistical Bulletin 2003/22.  Back

82   R (on the application of D.R.) v Mersey Care NHS Trust [2002] August 7 2002, QBD.  Back

83   See Jones, Richard (2003) Mental Health Act Manual, Eighth edition, page 28-29 for a discussion of the D.R. case in relation to the admission criteria for section 3.  Back

84   Similarly, a patient detained under section 2 may not be discharged under supervised discharge arrangements, and it is, in theory at least, unlawful to convert a detention from section 2 to section 3 for the sole purpose of initiating supervised discharge  Back

85   Improving Mental Health Law, page 28, para 3.38  Back

86   MHA 1983, Code of Practice, para 1.1  Back

87   Draft Mental Health Bill, clauses 48, 51, 121 Back

88   Draft Mental Health Bill, clauses 48(7), 51(9), 121(6). It is not clear from the Bill and explanatory notes what purpose this time-limit has, although we surmise that it may be intended either to ensure that action is taken speedily where a patient may be at risk and/or to limit this power as an emergency measure. The imposition of a time limit in these circumstances is a questionably enforceable requirement, not least because establishing when the 24-hour period starts can surely only be determined subjectively by the clinical supervisor, who is then bound by the time limit that it imposes. Furthermore, what happens if the time limit is exceeded but action needs to be taken?  Back

89   Draft Mental Health Bill, clauses 46(6), 49(6), 119(6)  Back

90   Draft Mental Health Bill, clauses 48(5), 51(7), 121(4) Back

91   Improving Mental Health Law, page 19 Back

92   Draft Mental Health Bill, clause 46(5). This provides that a Tribunal may only reserve powers to itself in the case of patients found falling within a description to be established by regulation.  Back

93   Draft Mental Health Bill, clause 46(4)(c) Back

94   Draft Mental Health Bill, clauses 46(7)(b), 49(7)(b), 119(7)(b) Back

95   See, for example, Warren, C (1982) The Court of Last Resort; Mental Illness and the Law, University of Chicago. This is a study of the Los Angeles mental health court's use of the Californian Lanterman-Petris-Short Act (LPS). Under LPS, involuntary hospitalisation of more than 72 hours had to be sanctioned through adversarial court proceedings, with either 'grave disability' (essentially similar to incapacity) or 'dangerousness' as the key criteria for compulsion. Under the first criteria commitment was then subject to annual judicial review; under the second it had to be renewed every 90 days, with evidence that the patient continued to act violently under confinement. Less than a decade after the establishment of the LPS Act, all commitment hearings were for patients deemed to be gravely disabled, and hearings took even less time than the five-minute average prior to the Act, the statistic which had prompted legislative interest in the first place. See Scull A (1989) Social Order / Mental Disorder, Anglo-American Psychiatry in Historical Perspective. University of California, p287-289. Back

96   The accusation that the Board of Control, which between 1913 and 1959 had a role for certain types of patient similar to that proposed for the Tribunal under the Mental Health Bill, was the uncritical recipient of stock-phrases justifying involuntary commitment, has been reported to the MHAC by a psychiatrist who worked under the system of that time.  Back

97   Explanatory notes, para 414. See also Improving Mental Health Law, para 4.12 Back

98   It is unfortunate that no detail is available for parliamentary scrutiny on the question of how 'certain categories of people' are to be defined as disqualified in regulations established under clause 232(4)(a). The Bill's Explanatory Notes gives as an example 'a convicted child abuser in the case of a child patient' (para 414). It is not clear how regulations would define a convicted child abuser (presumably it would be with reference to the sexual offenders register). The Government's example is relatively sensible, but very specific. We do not see how the principle that appears to underlie it can easily be extended to adult patients and their relationships with other people in their lives. We would be very concerned if, as has been mooted during the development of this policy, conviction of any serious criminal offence automatically disqualified a person from nomination by a patient. Back

99   It may be that the law will therefore have to rely largely upon the discretionary powers of appointers to not appoint a nominee whom they find unsuitable. The power of the patient to appeal any disregard of their nomination (clause 243) provides protection against the arbitrary or unjust use of this discretion. There is, however, no right of appeal (short of application for judicial review) for the disregarded nominee.  Back

100   If the Tribunal declines to discharge the patient from compulsion, the Bill provides it with the following options:

· it may confirm the patient's liability for assessment, leaving the patient subject to the original 28-day assessment period; or

· it may make a further assessment order, giving the clinical supervisor another 28 days to consider applying for a treatment order; or

· it may make a treatment order lasting up to six-months.

In any option the Tribunal is empowered to change the residency status of the patient (clauses 35 - 36 ).  Back

101   The hazards of appealing against assessment can be demonstrated by the scenario given in the Government's own case study showing the working of the Tribunal (Improving Mental Health Law: Case Study 3 - The Tribunal, page 16-17). Patient P has been detained in hospital for assessment for two weeks and appeals to the Tribunal. His clinical supervisor not only contests the appeal, but submits an application to the Tribunal for a treatment order which is heard simultaneously with the patient's appeal against the use of formal powers. In the Government's scenario the Tribunal finds something of a middle-way between patient and clinician, and is able to gain the clinician's agreement to a non-residential treatment order of up to six months. In this scenario the patient, who is suffering from depression, gains discharge from hospital but is made subject to a lengthier order than that which he appealed against. Other outcomes that could have resulted from patient P's appeal are his discharge, the extension by the Tribunal of his assessment period to run for up to another 28 days before reconsideration, or his detention in hospital for up to six months. Back

102   Seclusion was found to fall within the definition of medical treatment for mental disorder in R (on the application of Colonel Munjaz) v Mersey Care NHS Trust & Another; S v Airedale NHS Trust [2003] EWCA Civ 1036  Back

103   Under the 1983 Act, Second Opinion Appointed Doctors (SOADs) are not required to gain the agreement of treating doctors when authorising treatment plans. SOADs may, for example, authorise a limited version of a proposal even in the face of continued disagreement by the treating clinician. Under the Bill proposals, the Tribunal has no equivalent power to change a treatment plan without the agreement of the clinical supervisor.  Back

104   Mental Health Act 1983, s 120(1) Back

105   Reform of Mental Health Legislation Cmnd 8405. London: HMSO, November 1981, para 29.  Back

106   Cmnd 8405: para 34 Back

107   Draft Mental Health Bill, clause 258(2)  Back

108   MHAC response to the Draft Mental Health Bill Consultation, September 2002, para 1.15. The powers and duties that we suggested included:

1. to secure as far as possible that the inspectorate safeguards and promotes the rights and welfare of patients subject to compulsion and gives proper consideration to their views;
2. to monitor action taken by the inspectorate to review the implementation of the mental health legislation and Code of Practice and advise it on the staff necessary for this purpose;
3. to provide advice to service providers on good practice and to ensure consistent application of mental health legislation;
4. to ensure that appropriate action is taken in relation to any concerns raised about individual patients or groups of patients subject to compulsion; and
5. to report on the availability and effectiveness of services provided for patients subject to compulsion. Back
   
   

109   MHAC response to the Draft Mental Health Bill Consultation, September 2002, para 1.16 Back

110   Clause 9(7).  Back

111   Children Act 1989, s.1: 'the child's welfare shall be the…paramount consideration'  Back

112   See Improving Mental Health Law, paragraphs 3.27 -30 Back

113   See MHAC (2003) Placed Amongst Strangers, Chapter 16.10 -14.  Back

114   Bhui, K; Stansfield, S; Hull, S, Priebe, S, Mole, F & Feder, G (2003) Ethnic variations in pathways to and use of specialist mental health service in the UK; systematic review. British Journal of Psychiatry 182:105-116  Back

115   Draft Mental Health Bill Explanatory Notes; page 71, paragraph 371 Back

116   Mental Health Act Commission (2003) Placed Amongst Strangers; The Mental Health Act Commission Tenth Biennial Report 2001-2003, Chapter 4.5. This report was published and laid before Parliament in December 2003.  Back

117   See Mental Health Act Commission (2003) Placed Amongst Strangers; Chapter 4.  Back

118   The report commissioned by the Department of Health (Pearson, Middleton & Shaw (2000) Analysis of information obtained upon patients detained in England and Wales and visited by Second Opinion Doctors administered by the Mental Health Act Commission, Nottingham University, August 2000) does not distinguish between data relating to ECT and medication authorisations in its analysis of the ratio between refusing and incapable patients.  Back

119   See Mental Health Act 1983, s62; Draft Mental Health Bill, clause 182. The lowest threshold for using such powers will be that such treatment is necessary to prevent serious suffering (provided that the doctor will state that the ECT is neither irreversible nor hazardous). If the use of ECT in a particular circumstance is considered hazardous, it may only be given to prevent a serious deterioration in a patient's condition. If its use in a particular circumstance is considered both hazardous and irreversible it can only be used to save a patient's life. Any of these thresholds potentially can be met by circumstances in which emergency ECT is considered. Back

120   As the application of ECT under emergency powers should trigger a request for a second opinion, we are relatively confident that the numbers on our table give a fair representation of the total emergency use of ECT over the year. The table does of course, indicate how many patients have received emergency treatment, and not how many times ECT was applied during those emergencies. In the majority of cases, however, this is likely to have been a single application. The Commission advises that any emergency use of ECT should be followed by a request for a second opinion, and aims to provide a second opinion doctor within 2 working days of any request to consider ECT treatment.  Back

121   The criteria for overriding a patient's refusal of consent under s58 of the MHA 1983 was dealt with in R (on the application of PS) v (1) Dr G and (2) Dr W [2003] EWHC 2335 (Admin). The Commission has issued a guidance note on this case (GN 2/04, January 2004).  Back

122   The 1983 Act (s58) provides an initial three month period for a detained patient's treatment with medication, after which the treatment cannot be given unless either the patient consents or a second opinion appointed doctor authorises its administration in the absence of consent. Where a patient consents at the end of the three-month period, his or her doctor must complete a statutory form listing the medication and certifying that the patient has the mental capacity to consent and does so. The 1983 Act also has a 'catch-all' category of medical treatment other than medication (or ECT and NMD) for which a detained patient's consent is not required (s63).  Back

123   The 1983 Act is more consistent in this respect, if less rights-orientated, in that it provides patients the right to give consent to but not refuse either form of treatment.  Back

124   Draft Mental Health Bill, clause 199 Back

125   e.g. Draft Mental Health Bill, clauses 39(5)(b), 58(6)(b). We have consulted with Department of Health officials over our interpretation of the meaning of these clauses and related provisions.  Back

126   Draft Mental Health Bill, Part 10.  Back

127   Draft Mental Health Bill, clause 179 Back

128   Draft Mental Health Bill, clauses 182 - 184.  Back

129   It appears that there are no plans to make regulations under clause 197 identifying or providing safeguards for any 'type B medical treatment'. See Improving Mental Health Law, para 7.17, explanatory notes para 372. Back

130   Joint Committee on Human Rights (2002) Draft Mental Health Bill; Twenty-fifth Report of Session 2001-02. HL Paper 181, HC 1294. Page 12, Para 26.  Back

131   R (on the application of Colonel Munjaz) v Mersey Care NHS Trust & Another; S v Airedale NHS Trust [2003] EWCA Civ 1036, especially paras 58 - 76.  Back

132   Draft Mental Health Bill, Clause 1(2) Back

133   Mental Capacity Bill, clauses 5, 6.  Back

134   Mental Capacity Bill, clauses 24-26.  Back

135   Mental Capacity Bill, clause 11.  Back

136   Draft Mental Health Bill, clause 9(5), (7)  Back

137   H.L v UK, Appplication No 45508/99, 5 October 2004  Back

138   See footnote 3 above  Back

139   See paragraph 2.26 above Back

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Prepared 15 October 2004