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Joint Committee On Human Rights Fifteenth Report


Community Treatment Orders and Treatment in the Community

Appendix 1b: Letter dated 10 May 2007 from the Office of the Children's Commissioner for England and The Royal College of Psychiatrists

We understand that the Joint Committee on Human Rights (JCHR) may undertake further consideration of the Mental Health Bill and we are writing to endorse the need for a further review and support your suggestion that such a review should take into account issues relating to children and young people. We have written the enclosed paper jointly with colleagues at the Royal College of Psychiatrists who share our concerns.

As you are aware, the question as to how to ensure that children and young people with mental health problems are placed in age appropriate settings has been the subject of intense debate. Other key issues of concern include the need for specialist mental health advocacy and ensuring that the refusal of treatment by Gillick-competent children is not overridden by those with parental responsibility. We hope that all these issues will be considered by the JCHR. However, we would urge that that the JCHR's review pays particular attention to community treatment orders (CTOs) and their likely impact upon children and young people and their families. This is because although the regime for CTOs has been subject to close scrutiny, the implications for applying CTOs to children and young people have not.

CTOs and children and young people

There is no age restriction for CTOs. Thus potentially a child of any age could be made subject to a CTO. Although the Government suggests in its draft Illustrative Code of Practice to the Mental Health Act 1983 that very few children and young people will be made subject to CTOs, no support is given for this statement. CTOs will only apply to individuals who have been admitted to hospital for treatment, but it is not known how many children and young people this will affect as currently data on the age of detained patients is not collected nationally. While the House of Lords' amendment places more stringent restrictions on the use of CTOs and would therefore be likely to reduce the number of people made subject to them, the Government has made clear that it intends to remove this amendment.

CTOs and community treatment provisions

We have very serious concerns about the provisions concerning treatment of community patients who lack capacity (in the case of those aged 16 or over) or competence (in the case of those aged under 16) to make treatment decisions. It is unclear how these provisions will work in practice and there are insufficient safeguards for individuals under the age of 18. The attached paper details our collective concerns in more detail which can be summarised as follows:

●  Insufficient guidance on 'competence': Child community patients (individuals under 16 years) can be treated without their consent if they are not competent to consent to the treatment proposed. However, there is no definition of 'competence' in relation to child community patients and there is insufficient guidance on how to assess it.

●  Lack of involvement of those with parental responsibility: The Bill makes no provision for those with parental responsibility to be consulted in relation to treatment decisions on behalf of child community patients who lack competence to make such decisions. It is not clear whether a person with parental responsibility for a young person aged 16 or 17 who lacks capacity would be consulted about the proposed treatment.

●  There are fewer safeguards for children and young people under 18 years than for individuals aged 18 or over: The Bill makes provision for certain individuals authorised to act on the patient's behalf under the Mental Capacity Act 2005 (MCA 2005) to be consulted about treatment decisions in relation to an adult community patient who lacks capacity. However, there is no provision for any person to be consulted as to whether a child community patient who lacks capacity should be given the treatment proposed. Although adult community patients are able to make advance refusals of treatment or appoint individuals ('donees') under the Lasting Power of Attorney provisions of the MCA 2005 to make decisions (including treatment decisions) on their behalf, these powers are not available to individuals under the age of 18. (The main provisions of the MCA 2005 do not apply to individuals under 16 years and the powers to make advance refusals of treatment or appoint a donee apply only to those 18 years or over.)

●  Lack of clarity on the interrelationship with the Mental Capacity Act 2005: There may be cases in which the Court of Protection or a deputy appointed by the Court of Protection is engaged in decision making in relation to a young person aged 16 or 17 years but it is not clear how the role of deputies or the Court of Protection in authorising/refusing treatment in relation to community patients will work in practice.

●  Lack of clarity on when a patient's objection to treatment may be overridden: The provisions relating to non-emergency treatment for both adult and child community patients provide that treatment can be given irrespective of the patient objection if it is not necessary to use force against the patient in order to give the treatment. However, 'force' is not defined. Thus it is not clear what action would fall within this term and therefore not be permitted and what action would be authorised.

●  Inadequate safeguards for children and young people: The provisions relating to non-emergency treatment raise serious concerns for children and young people subject to CTOs. They will be particularly vulnerable to the threat of the use of 'force' and may allow treatment to be given without understanding its nature or purpose.

●  Lack of clarity on circumstances in which emergency treatment may be given: The circumstances in which emergency treatment - and the use of force to provide such treatment - will be authorised are unclear. The power to forcibly treat children and young people in the community who may be actively resisting such treatment is very worrying. Further guidance on when emergency treatment would be appropriate is essential.

CTOs: human rights implications for children and young people

We believe that the concerns we have outlined above raise important human rights issues. For example, the assessment of an individual's capacity/competence and decisions to treat without consent (in some cases overriding the patient's objection and using force) are likely to engage Article 8 of the European Convention of Human Rights (the right to private and family life). Issues relating to the involvement of those with parental responsibility are also likely to engage Article 8.

The United Nations Convention on the Rights of the Child (UNCRC) is also of significance. As you know, two key principles of the UNCRC are that the best interests of the child must be a primary consideration in all actions concerning children (Article 3) and that children's views must be considered and taken into account in all matters affecting them (Article 12). We are concerned that insufficient attention has been given to these principles in the provisions relating to CTOs. In particular we are concerned that there is insufficient protection afforded to children subject to CTOs. Furthermore, there are no provisions on the face of the Bill to ensure that the views of the child or young person subject to a CTO are taken into account.

For these reasons, we hope that the further review of the Mental Health Bill undertaken by your Committee will address issues relating to children and young people and, in particular, will inquire into the community treatment provisions of CTOs and how they might impact on children and young people.

We would welcome the opportunity of discussing our concerns with the JCHR in more detail.

Mental Health Bill

Issues of Concern

Summary

1  This paper has been prepared on behalf of the Royal College of Psychiatrists and the Children's Commissioner for England.

2  The Children's Commissioner for England ('the Commissioner') was established under the Children Act 2004 as an independent organisation with the responsibility for promoting awareness of the views and interests of children in England.

3  The Royal College of Psychiatrists ('the RCP') is the leading medical authority on mental health in the United Kingdom and the Republic of Ireland and is the professional and educational organisation for doctors specialising in psychiatry.

4  Currently the Mental Health Bill [HL] ('the Bill') is being considered by the Mental Health Public Bill Committee in the House of Commons. The Commissioner's submission to this Committee is included as Appendix 1 of this paper.

5  This paper sets out the particular concerns of the Commissioner and the RCP in relation to the treatment provisions for community patients subject to CTOs who are under the age of 18.

6  The Government has stated on numerous occasions that CTOs are not intended to introduce powers to forcibly treat people in the community. However, under the provisions of the Bill, individuals subject to CTOs can be treated without their consent if they lack 'capacity' (in the case of a person 16 or over) or 'competence' (in the case of a person under 16) if certain conditions are met. In relation to emergency treatment the use of force may be permitted. The general concerns of the Commissioner and the RCP about these provisions are as follows:

●  There are insufficient safeguards for treatment without consent.

●  The provisions are complex, cumbersome and confusing.

●  There is insufficient guidance in the Draft Illustrative Code on the Mental Health Act 1983 ('the draft Code') on how these provisions are intended to work.

7  The draft Code suggests that very few children and young people will be made subject to CTOs.[50] No support is given for this statement. Given the problems inherent in the CTO provisions, the disadvantages for children and young people under the age of 18 years would seem to far outweigh any purported benefits.

8  The RCP and Commissioner's specific concerns are as follows:

●  Insufficient guidance on 'competence': Child community patients can be treated without their consent if they are not competent to consent to the treatment proposed. However there is no definition of 'competence' in relation to child community patients and there is insufficient guidance on how to assess it.

●  Lack of involvement of those with parental responsibility: The Bill makes no provision for those with parental responsibility to be consulted in relation to treatment decisions on behalf of child community patients who lack competence to make such decisions. It is not clear whether a person with parental responsibility for a young person aged 16 or 17 who lacks capacity would be consulted about the proposed treatment.

●  There are fewer safeguards for children and young people under 18 years than for individuals aged 18 or over: The Bill makes provision for certain individuals authorised to act on the patient's behalf under the Mental Capacity Act 2005 (MCA 2005) to be consulted about treatment decisions in relation to an adult community patient who lacks capacity. However, there is no provision for any person to be consulted as to whether a child community patient who lacks capacity should be given the treatment proposed. Although adult community patients are able to make advance refusals of treatment or appoint individuals ('donees') under the Lasting Power of Attorney provisions of the MCA 2005 to make decisions (including treatment decisions) on their behalf, these powers are not available to individuals under the age of 18. (The main provisions of the MCA 2005 do not apply to individuals under 16 years and the powers to make advance refusals of treatment or appoint a donee apply only to those 18 years or over.)

●  Lack of clarity on the interrelationship with the Mental Capacity Act 2005: There may be cases in which the Court of Protection or a deputy appointed by the Court of Protection is engaged in decision making in relation to a young person aged 16 or 17 years but it is not clear how the role of deputies or the Court of Protection in authorising/refusing treatment in relation to community patients will work in practice.

●  Lack of clarity on when a patient's objection to treatment may be overridden: The provisions relating to non-emergency treatment for both adult and child community patients provide that treatment can be given irrespective of the patient's objection if it is not necessary to use force against the patient in order to give the treatment. However, 'force' is not defined. Thus it is not clear what action would fall within this term and therefore not be permitted and what action would be authorised.

●  Inadequate safeguards for children and young people: The provisions relating to non-emergency treatment raise serious concerns for children and young people subject to CTOs. They will be particularly vulnerable to the threat of the use of 'force' and may allow treatment to be given without understanding its nature or purpose.

●  Lack of clarity on circumstances in which emergency treatment may be given: The circumstances in which emergency treatment - and the use of force to provide such treatment - will be authorised are unclear. The power to forcibly treat children and young people in the community who may be actively resisting such treatment is of deep concern to the RCP and the Commissioner. Further guidance on when emergency treatment would be appropriate is essential.

Introduction

The Children's Commissioner for England

9  The Children's Commissioner for England ('the Commissioner') was established under the Children Act 2004 as an independent organisation with the responsibility for promoting awareness of the views and interests of children in England. Professor Sir Al Aynsley-Green became the first Children's Commissioner for England on his appointment in July 2005.

The Royal College of Psychiatrists

10  The Royal College of Psychiatrists ('the RCP') is the leading medical authority on mental health in the United Kingdom and the Republic of Ireland and is the professional and educational organisation for doctors specialising in psychiatry.

The Children's Commissioner's main concerns about the Mental Health Bill

11  The Mental Health Bill [HL] ('the Bill') is being considered by Mental Health Public Bill Committee in the House of Commons. The Commissioner's submission to this Committee is included as Appendix 1 of this report. The Commissioner's five key areas of concern relate to:

●  Retaining the amendment to the Bill that requires children and young people to be admitted to age appropriate mental health facilities;

●  Ensuring that the refusal of treatment by Gillick-competent children are not overridden by those with parental responsibility;

●  Highlighting the need for specialist mental health advocacy services to be made available to children and young people receiving mental health services.

●  Highlighting the need to improve discharge arrangements and care planning for children and young people detained under the MHA 1983.

●  Raising questions about the likely effectiveness of the Bill's proposed community treatment orders (CTOs) in relation to children and young people and highlighting concerns about the treatment provisions for community patients who lack capacity/competence.

Purpose of this paper

12  This paper sets out the RCP and the Commissioner's particular concerns in relation to the treatment provisions for community patients subject to CTOs under the age of 18. It is unclear how these provisions will work in practice and there are insufficient safeguards for individuals under the age of 18. This paper sets out the reasons for the RCP and Commissioner's concerns.

Application of CTOs to children and young people

13  The RCP and Commissioner's general concern in relation to CTOs is that there is insufficient information on the effectiveness of such provisions in relation to children and young people. It is not clear why the Government has decided that such powers should be applicable to children and young people, particularly given that the powers that currently apply to individuals living in the community (guardianship and supervised discharge) have a lower age limit of 16.

14  The draft Illustrative Code of Practice to the Mental Health Act ('the draft Code') suggests that very few children and young people will be made subject to CTOs[51]. No support is given for this statement. Furthermore, given the problems inherent in the CTO provisions in relation to CTOs the disadvantages for children and young people under the age of 18 years would seem to far outweigh any purported benefits.

Overview of CTOs

15  Chapter 4 of the Bill sets out the general regime for CTOs. These include the criteria for making a CTO, the conditions that can be applied to a person subject to a CTO, the duration of the CTO, the power to recall a person subject to a CTO to hospital and the authority to treat individuals who are subject to a CTO and who have not been recalled to hospital. There is no age restriction on CTOs. The provisions will '…allow some patients with a mental disorder to live in the community whilst still subject to powers under the 1983 Act…' They will '…remain under compulsion and liable to recall to hospital for treatment.'[52]

Scope of the CTO treatment provisions

16  Clause 35 ('Authority to treat') introduces a range of consent to treatment provisions which will apply to those individuals who are subject to CTOs and have not been recalled to hospital. They cover 'adult community patients' (those aged 16 years and over) and 'child community patients' (those aged under 16 years). The provisions apply to 'relevant treatment' which includes medication for mental disorder but not treatments falling within section 57 MHA 1983 (treatment such as psycho-surgery) or ECT (electro-convulsive therapy)[53]. The Bill provides that relevant treatment cannot be given to a community patient unless there is authority to give the treatment. For certain types of treatment it will also be necessary for 'the certificate requirement' to be met[54].

17  Individuals subject to CTOs who have capacity (or in the case of child community patients 'competence') to make treatment decisions can only be treated in the community if they consent to such treatment. If they refuse treatment this is likely to lead to their recall to hospital, where they can be treated without their consent.

18  The circumstances in which the Bill authorises the treatment of a community patient who lacks capacity/competence fall into three broad categories:

●  Consent by a person authorised to make decisions on the patient's behalf: Clause 64G(2)(b) of the Bill provides that individuals authorised under the Mental Capacity Act 2005 (the MCA 2005)[55] to act on the patient's behalf may give consent to treatment being proposed where the patient lacks capacity to make such decisions.

●  Non-emergency treatment: Adult and child community patients can be given non-emergency treatment without consent if they lack capacity/competence and specified conditions are met. (See clauses 64D and 64F.)

●  Emergency treatment: An adult or child community patient who lacks capacity/competence can be given emergency treatment and in such cases the Bill provides that force can be used where it is a proportionate response to prevent harm to the patient. (See clause 64G.)

Comments on the Community Treatment Provisions

General concern: insufficient safeguards for treatment without consent

19  The Government has stated on numerous occasions that CTOs are not intended to introduce powers to forcibly treat people in the community. However, under the provisions of the Bill, individuals can be treated without their consent if they lack 'capacity' (in the case of a person 16 or over) or 'competence' (in the case of a person under 16) if certain conditions are met. In relation to emergency treatment the use of force may be permitted.

20  The CTO provisions relating to treatment in the community are complex, cumbersome and confusing. There is insufficient guidance in the Draft Illustrative Code on the Mental Health Act 1983 ('the draft Code') on how these provisions are intended to work.

21  Furthermore, for the reasons set out below, the RCP and the Commissioner believe that there are insufficient safeguards for those individuals receiving treatment in the community without their consent. There are particular concerns about the provisions relating to children and young people.

No definition of 'competence' and lack of guidance on how to assess it

22  Adult community patients may be treated in community without their consent in certain circumstances provided that they have been assessed to lack capacity. The Bill makes clear that the person's capacity will be considered in accordance with the Mental Capacity Act 2005[56] ('the MCA 2005'). Child community patients may also be treated in the community without their consent in certain circumstances, provided that they have been assessed to lack 'competence'. However there is no definition of 'competence' in the Bill.

23  It is assumed that the term 'competence' refers to 'Gillick competence'. The Draft Illustrative Code on the Mental Health Act 1983 ('the draft Code') refers to a 'Gillick competent child'. In Gillick v West Norfolk and Wisbech Area Health Authority[57] the House of Lords held that a child under the age of 16 can give valid consent to any medical treatment if the child has the capacity to make such a decision for him/herself. The draft Code states that a 'Gillick competent child':

'…can give a valid consent to medical treatment. A child should be regarded as 'Gillick competent' if the doctor concludes that he or she has the capacity to make the decision to have the proposed treatment and is of sufficient understanding and intelligence to be capable of making up his/her own mind,' (31.9)

The draft Code provides very little guidance on assessing whether a child is 'Gillick competent' and there is no specific guidance on assessing a child community patient's competence to consent to treatment.

Lack of involvement of those with parental responsibility

24  The Bill provides that individuals authorized under the MCA 2005 to act on the adult community patient's behalf may give consent or object to treatment being proposed where the patient lacks capacity to make such decisions.

●  There is no equivalent provision in relation to child community patients. Where the child is not competent to make such treatment decisions, would a person with parental responsibility be able to consent or object to the treatment on the child's behalf?

●  The situation for individuals aged 16 or 17 is also unclear. This is because, although they are treated as adult community patients, some of the key provisions incorporating powers under the MCA 2005 do not apply to individuals under 18 years. These issues are discussed below. It is not clear whether a person with parental responsibility would be consulted about the proposed treatment.

Fewer safeguards for children and young people under 18 years

25  The Bill provides that adult community patients who lack capacity cannot be treated if giving such treatment conflicts with decisions made in accordance with powers under MCA 2005. Table 1 below sets out some of the conditions which must be met in non-emergency situations before a person can give treatment for mental disorder to patients who lack the capacity/competence to make treatment decisions.

Table 1: Conditions for non-emergency treatment
Adults 18 & over Adults aged 16- 17 years Child under 16
Patient does not object/force not required Patient does not object/force not required Patient does not object/
force not required
No conflict with advance refusal of treatment under Mental Capacity Act 2005    
No objection from donee of LPA    
No objection from deputy /
Court of Protection
No objection from deputy /
Court of Protection
 

26  As Table 1 shows, there is a significant distinction between the provisions for adults and children and young people in relation to non-emergency treatment. For example:

●  If an adult community patient had made an advance refusal of treatment when s/he had capacity, such treatment could not be given to the patient if s/he subsequently lacks capacity. Individuals under the age of 18 years cannot make advance refusals of treatment.

●  If the person had appointed a person to make decisions on his/her behalf under a Lasting Power of Attorney (the donee), then the donee can object to the treatment being given. Individuals under the age of 18 years cannot appoint donees under the Lasting Power of Attorney provisions of the MCA 2005.

●  If the Court of Protection had appointed a deputy to make decisions about the person's treatment then the deputy can object to the treatment being given. A deputy might be appointed to act on behalf of a 16 or 17 year old but not for a person under 16 years (the main provisions of the MCA apply to individuals aged 16 or over).

27  Whereas the Bill makes provision for certain individuals to be consulted in relation to the treatment of an adult community patient who lacks capacity, there is no provision for any person to be consulted as to whether a child community patient who lacks competence should be given the treatment proposed. There is no specific reference to individuals with parental responsibility either in the Bill or in the Code in relation to the provision of treatment to a child community patient who lacks competence. Presumably those with parental responsibility would need to be consulted but this needs to be clarified.

28  Individuals aged 16 or 17 years cannot make advance refusals of treatment or appoint donees under the Lasting Power of Attorney provisions of the MCA 2005. Thus, unless a deputy has been appointed to act on the person's behalf, those aged 16 and 17 who lack capacity to make treatment decisions will be in the same position as individuals under 16 who lack the competence to make treatment decisions. It is not clear whether in such cases those with parental responsibility would be consulted.

Lack of clarity on the interrelationship with the Mental Capacity Act 2005

29  As Table 1 shows, the Bill provides for the involvement of individuals authorised under the Mental Capacity Act 2005 (the MCA 2005) to act on the person's behalf in relation to adult community patients (i.e. those over 16) who lack capacity. As discussed above, the provisions relating to advance refusals of treatment and donees acting under the Lasting Power of Attorney provisions of the MCA 2005 do not apply to individuals under the age of 18 years.

30  There may be cases in which the Court of Protection or a deputy appointed by the Court of Protection is engaged in decision making in relation to a young person aged 16 or 17 years but it is not clear how the role of deputies or the Court of Protection in authorising/refusing treatment in relation to community patients will work in practice. For example, under the provisions of the Bill, adult community patients who lack capacity cannot be given non-emergency treatment if this conflicts with 'a decision made by a donee or deputy or the Court of Protection'.[58] This raises a number of points requiring clarification:

●  Deputies are required to act within the scope of their authority and in accordance with the MCA 2005. This means that when considering whether to object to the treatment being given the deputy must consider whether this is in the patient's best interests (see section 4 of the MCA 2005). What if the deputy refuses to agree to the treatment being given on the basis that it is not in the person's best interests? Would this be an issue that could be referred to the Court of Protection?

●  Deputies are intended to be given powers that are 'as limited in scope and duration as is reasonably practicable'. Given that the duration of a CTO is not fixed (CTOs will be made for an initial period of six months but can then be renewed) in what circumstances would the appointment of a deputy with powers to make decisions about treatment under a CTO be considered appropriate?

●  In what circumstances is it likely that the Court of Protection would be asked to authorise treatment for a community patient and over what duration?

Lack of clarity on when a patient's objection to treatment may be overridden

31  The provisions relating to non-emergency treatment for both adult and child community patients provide that treatment can be given irrespective of the patient objection if it not necessary to use force against the patient in order to give the treatment. Treatment can be given if person giving the treatment has:

'…reason to believe that the patient so objects, but it is not necessary to use force against the patient in order to give the treatment.'

The draft Code gives little guidance on this, save to reiterate that it is permissible to treat a patient who objects if no force is needed[59]. There is no definition of 'force' in the Bill. Paragraph 16.23e of the draft Code states:

'Force here means the application of physical force (to whatever extent) to the patient.

It goes on to state:

'…However if force is needed and the person giving the treatment reasonably believes that the person objects to being given it, or would object if they were in a position to do so the treatment cannot be given in the community (unless it is an emergency) and recall to hospital may be necessary.'

32  Thus it is not clear what action would be authorised in treating a patient who is objecting. In comparison, the MCA 2005 places restrictions on the use of restraint, stating that a person restrains another if the person 'uses, or threatens to use, force to secure the doing of an act which P [the person who lacks capacity] resists'[60]. The lack of definition of 'force' raises questions such as:

●  Would injecting a person who has made clear that they object to the treatment being given be a use of 'force' even if the person did not resist this?

●  Is the term 'force' limited to physical action or would psychological power, coercion or veiled threats be included? For example, would the threat of recalling the patient to hospital be considered to be 'force'?

Lack of clarity on circumstances in which emergency treatment may be given

33  In his message to the Mental Health Act Scoping Study Review Team (also known as the Richardson Committee) which was established by the government to advise on how the Mental Health Act 1983 could be reformed, Paul Boateng, then Parliamentary Under Secretary of State for Health stated:

'But let me be absolutely and unequivocally clear on one point about this. We are not talking about forcibly administering treatment over the individual's kitchen table. The new arrangements should only require compliance with treatment within an appropriate clinical setting and therefore may need powers for compulsory conveyance.'[61]

34  On 28th November 2006, during the Bill's Second Reading Debate, the Minister of State, Department of Health (Lord Warner), Mental Health Bill, stated that the provisions are:

'…not about forcing people to have treatment in the community'. [62]

However, as Lord Warner's additional comments acknowledge, despite these assertions the Bill does allow patients to be treated forcibly in the community in certain circumstances:

'Forcible treatment against a patient's will cannot be given in the community where the patient lacks the capacity to consent unless the treatment is immediately necessary—for example, to save the patient's life.'

35  The circumstances in which treatment can be forcibly administered are wider than to save the patient's life. The circumstances provided for by the Bill include being immediately necessary to prevent a serious deterioration of the patient's condition and preventing the patient from behaving violently. Paragraph 16.24a of the draft Code states:

'Within certain limits, section 64G permits force to be used in emergencies to treat a patient who lacks capacity or competence to consent to it. This is intended to be used where the patient's interests are better served by being treated with the use of force in the community than by being transported to hospital for treatment'.

The paragraph then goes on to state:

'…Any decision to treat a patient without capacity or competence in an emergency under s64G by an approved clinician or by a person under the direction of that clinician must take the following considerations into account…' [The considerations include that reasonable steps are required to ascertain whether the person has capacity/competence to consent and whether the force to be used is necessary.]

36  Although the draft Code refers to treatment being given by, or under the direction of, an approved clinician this is not included in the legislation. Although this is a condition for non-emergency treatment under clause 64D (adult community patients) and 64F (child community patients), Clause 64G (emergency treatment) does not include a requirement that the treatment is given by an approved clinician or by a person under the direction of that clinician.

37  Thus the circumstances in which emergency treatment - and the use of force to provide such treatment - will be authorised are unclear. The power to forcibly treat children and young people who may be actively resisting such treatment in the community is of deep concern to the RCP and the Commissioner. Further guidance on when emergency treatment would be appropriate is essential.


50   Para. 31.37. The draft Code is available at: http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsLegislation/DH_062946. Back

51   Para. 31.37. The draft Code is available at: http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsLegislation/DH_062946. Back

52   Explanatory Note to the Bill, para. 108.  Back

53   See clause 64A(b).  Back

54   A second opinion appointed doctor (SOAD) must certify in writing that the treatment may be given. This is not required for emergency treatment under clause 64G. Nor does it apply to the administration of medication for mental disorder for an initial period, of '…one month from when a patient leaves hospital or three months from when the medication was first given to the patient (whether that medication was given in the community or in hospital) whichever is later).' (see Explanatory Note to the Bill para. 138, footnote 2). Back

55   The MCA 2005 sets out the legal framework for making decisions (including treatment decisions) on behalf of people over the age of 16 who lack capacity to make such decisions for themselves. The main provisions are due to come into force in October 2007.  Back

56   See 64K (2) and (3). Back

57   [1985] 3 All ER 402. Back

58   A 'donee' is a person who has been appointed to act under the Lasting Powers of Attorney provisions of the MCA 2005. A deputy is a person who has been appointed by the Court of Protection to make decisions on behalf of a person who lacks capacity. The Court of Protection is a court with powers to make a range of decisions in relation to individuals who lack capacity, including determining disputes as to whether individuals lack capacity or not. For further information see the Mental Capacity Act 2005 and the Code of Practice to the Mental Capacity Act 2005.  Back

59   Para. 16.23e. Back

60   See section 6(4) MCA 2005. Back

61   Appendix C, Report of the Expert Committee, Review of the Mental Health Act 1983, November 1999. Back

62   House of Lords, col. 654. Back


 
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