Mental capacity and mental health acts part 4: a new framework Richard Griffith
Key words: Mental Health Act 1983 ■ Mental Capacity Act 2005 ■ Decision-making ■ Northern Ireland ■ Mental disorders
T
he last three articles in this column have highlighted the complex interface between the Mental Health Act 1983 and the Mental Capacity Act 2005 in England and Wales. Although the 1983 Act sets out provisions for the detention and treatment of people with a mental disorder regardless of their decision-making capacity, the influence of the 2005 Act in cases where the statutory frameworks come together is increasing. In recent months the Court of Protection has ruled that the valid and applicable advance decision of a man detained for treatment under the Mental Health Act 1983 must be respected (Nottinghamshire Healthcare NHS Trust v RC [2014]) and that continued compulsory treatment for a woman with anorexia nervosa was not in her best interests (A NHS Foundation Trust v X [2014]).
Richard Griffith, Senior Lecturer in Health Law, College of Human and Health Sciences, Swansea University
1090
Given the complex interface between mental health and mental capacity law, Northern Ireland is proposing a new approach that establishes a single statutory framework to govern all decisions relating to care, treatment and welfare for both physical and mental illness (Northern Ireland Department of Health, Social Services and Public Safety (DHSSPS) and Northern Ireland Department of Justice (DoJ), 2014).
Draft Mental Capacity Bill Northern Ireland is proposing to put decision-making capacity at the centre of its new approach and will place mental disorder on the same footing as physical disorder for the purpose of consent to treatment. That is, anyone over 16 years of age who has decision-making capacity will be entitled to consent to or refuse care and treatment for a mental disorder in the same way they can for a physical disorder. If the proposal goes ahead, compulsory provisions for the detention and treatment of patients with a mental illness or learning disability, set out in Northern
Decision-making capacity and mental health law The Northern Ireland proposal, if adopted, will be the first instance anywhere that a single statutory framework will make provision for both mental and physical disorders. Limiting mental health intervention without consent to those occasions where a person lacks capacity will also be a major departure from both the Mental Health Act 1983 in England and Wales and the Mental Health (Care and Treatment) (Scotland) Act 2003 in Scotland. Concerns about providing compulsory treatment to an adult who has the capacity to refuse have previously been raised by the Council of Europe and the Court of Appeal in England and Wales. The Council of Europe, the body that created the European Convention of Human Rights (1950), monitors the care and treatment of detained mental health patients through the European Committee for the Prevention of Torture, Inhuman or Degrading Treatment or Punishment. In its general report of 1997 the committee argued that: ‘Patients should, as a matter of principle, be placed in a position to give their free and informed consent to treatment. The admission of a person to a psychiatric establishment on an involuntary basis should not be construed as authorising treatment without his consent. It follows that every competent patient, whether
© 2014 MA Healthcare Ltd
Abstract
The increasingly complex interface between the Mental Health Act 1983 and the Mental Capacity Act 2005 has been discussed in this column over the last three months. The boundaries between the two statutes is becoming increasingly blurred with the Court of Protection, a specialist court that considers cases about people lacking decision-making capacity, commonly being asked to make decisions on mental health law as well. Northern Ireland is proposing to resolve the interface problem by repealing its mental health laws and replacing them with a single statutory framework for mental capacity law. If passed, it will give all adults with capacity the right to consent to or refuse any form of treatment. Physical and mental conditions will be on an equal footing and there would be no compulsory detention or treatment of adults with capacity. For those whose lack capacity, treatment will be available in their best interests with arrangements in place to authorise situations where the care arrangements amount to a deprivation of liberty. In this article Richard Griffith considers the new proposals for Northern Ireland and wonders where these proposals point the way for the other devolved nations to develop their mental health and mental capacity law for a 21st century Britain.
Ireland under the Mental Health (Northern Ireland) Order 1986, will no longer apply. Those who lack capacity to consent to care and treatment for a physical or mental disorder will have decisions made in their best interests under a new mental capacity law. If adopted, the draft Mental Capacity Bill for Northern Ireland will retain safeguards for certain treatments and allow for the authorisation of a deprivation of liberty in a patient’s best interests (DHSSPS and DoJ, 2014).
British Journal of Nursing, 2014, Vol 23, No 20
British Journal of Nursing. Downloaded from magonlinelibrary.com by 193.061.135.112 on October 20, 2015. For personal use only. No other uses without permission. . All rights reserved.
LEGAL voluntary or involuntary, should be given the opportunity to refuse treatment or any other medical intervention. Any derogation from this fundamental principle should be based upon law and only relate to clearly and strictly defined exceptional circumstances.’(Council of Europe, 1997: para 41) In R (Wilkinson) v Broadmoor Hospital [2001], in his judgment on the case of a man detained for treatment under the Mental Health Act 1983 who was refusing antipsychotic medication, Lord Justice Simon-Bowne in the Court of Appeal, argued that the Committee on the Prevention of Torture, Inhuman or Degrading Treatment or Punishment’s remarks gave an indication of modern thinking on the subject, and that having provisions that allow for the compulsory treatment of competent but nonconsenting patients was increasingly difficult to justify. If the patient had the capacity to refuse consent to the proposed treatment, then it was difficult to argue that he should nevertheless be forcibly subjected to it. Lord Justice Simon-Browne’s view was in the minority, and subsequent cases that tried to test his view were rejected by the Courts. Nevertheless, the Mental Health Act 2007 did introduce a provision allowing detained mental health patients with decision-making capacity to refuse electroconvulsive therapy (ECT), but this is currently the only form of compulsory mental health treatment that can be refused in this way (Mental Health Act 1983, section 58A).
Northern Ireland’s case for change
© 2014 MA Healthcare Ltd
In Northern Ireland, the argument for having a single framework for all care, treatment and welfare decisions is based on; ■■ Promoting autonomy and valid choice for physical and mental disorder ■■ Reducing the stigma that arises from a separate mental health law ■■ nhancing protection for those who lack decision-making capacity. The challenges for Northern Ireland’s proposed single framework approach that will allow people with capacity to lawfully refuse care and treatment for mental disorder,
are reflected in the Code of Practice for the Mental Capacity Act 2005 that applies in England and Wales (Office of the Public Guardian, 2013). Chapter 13 of the Code of Practice makes recommendations for when using mental health law would be more suitable than using mental capacity law including where: ■■ The person will regain capacity before completing their treatment then refuse to continue with treatment ■■ The person lacks capacity to decide on some elements of treatment but has capacity to refuse a vital part of it ■■ The person with capacity refuses aftercare for their mental disorder and requires frequent readmission when their mental health and capacity deteriorates becoming what is sometimes called a ‘revolving door’ patient.
laws that have arisen in England and Wales. Northern Ireland’s proposals may point the way to a more enlightened, rights-led 21st century approach to the care and treatment of people with mental disorders in England, Wales and Scotland but it is likely that the governments in those devolved nations will need to be convinced that arguments for the compulsory care and treatment of adults with capacity under current mental health law can be safely set aside, and the needs of those with fluctuating capacity and of the ‘revolving door’ patient can continue to be met. The consultation period on Draft Mental Capacity Bill for Northern Ireland ended at the beginning of September 2014 but the proposals can be found at: http://tinyurl. BJN com/capacitybillconsultation Conflict of interest: none
Conclusion Northern Ireland’s proposals for a single statutory framework to regulate decisions about care, treatment and welfare in relation to physical and mental disorder are radical. They go further than previous suggestions from the Council of Europe and the Courts in England and Wales, both of which only argued for more autonomy for detained mental health patients with capacity within a mental health law framework. Allowing people with capacity to lawfully refuse treatment for both physical and mental disorders, while providing a single statutory framework for the care and treatment of those without capacity, will remove the many difficulties created by the interface between separate mental health and mental capacity
Council of Europe (1950) European Convention on Fundamental Human Rights and Freedoms. Council of Europe, Rome.1 Council of Europe (1997) 8th Annual Report of the European Committee for the Prevention of Torture, Inhuman or Degrading Treatment or Punishment’s activities covering the period 1st January to 31st December 1997. http://tinyurl.com/nwknp4r (accessed 28 October 2014) Mental Health (NI) Order 1986 (SI 1986/595) A NHS Foundation Trust v X [2014 EWCOP 35 Northern Ireland Department of Health Social Services and Public Safety and Northern Ireland Department of Justice (2014) Draft Mental Capacity Bill Consultation. Government of Northern Ireland, Belfast Nottinghamshire Healthcare NHS Trust v RC [2014] EWHC 1317 Office of the Public Guardian (2013) Mental Capacity Act Code of Practice. http://tinyurl.com/mfyf3hh (accessed 28 October 2014) R (Wilkinson) v Broadmoor Hospital [2001] EWCA Civ 1545
KEY POINTS n In the UK mental health laws allow for the compulsory detention and treatment of patients even where they have the capacity to refuse n Northern Ireland is proposing to allow all people aged 16 or over with capacity to refuse care and treatment for physical and mental disorders n If adopted, this will mean that a person with capacity would not be subject to compulsory detention or treatment for mental disorders n It is proposed that a single statutory framework will make provision to allow for the care, treatment and protection of those individuals who lack capacity to make decisions about a physical or mental illness.
Have an idea for BJN?
( 020 7738 5454 8 [email protected] British Journal of Nursing, 2014, Vol 23, No 20
@BJNursing 1091
British Journal of Nursing. Downloaded from magonlinelibrary.com by 193.061.135.112 on October 20, 2015. For personal use only. No other uses without permission. . All rights reserved.
Key words: Mental Health Act 1983 ■ Mental Capacity Act 2005 ■ Decision-making ■ Northern Ireland ■ Mental disorders
T
he last three articles in this column have highlighted the complex interface between the Mental Health Act 1983 and the Mental Capacity Act 2005 in England and Wales. Although the 1983 Act sets out provisions for the detention and treatment of people with a mental disorder regardless of their decision-making capacity, the influence of the 2005 Act in cases where the statutory frameworks come together is increasing. In recent months the Court of Protection has ruled that the valid and applicable advance decision of a man detained for treatment under the Mental Health Act 1983 must be respected (Nottinghamshire Healthcare NHS Trust v RC [2014]) and that continued compulsory treatment for a woman with anorexia nervosa was not in her best interests (A NHS Foundation Trust v X [2014]).
Richard Griffith, Senior Lecturer in Health Law, College of Human and Health Sciences, Swansea University
1090
Given the complex interface between mental health and mental capacity law, Northern Ireland is proposing a new approach that establishes a single statutory framework to govern all decisions relating to care, treatment and welfare for both physical and mental illness (Northern Ireland Department of Health, Social Services and Public Safety (DHSSPS) and Northern Ireland Department of Justice (DoJ), 2014).
Draft Mental Capacity Bill Northern Ireland is proposing to put decision-making capacity at the centre of its new approach and will place mental disorder on the same footing as physical disorder for the purpose of consent to treatment. That is, anyone over 16 years of age who has decision-making capacity will be entitled to consent to or refuse care and treatment for a mental disorder in the same way they can for a physical disorder. If the proposal goes ahead, compulsory provisions for the detention and treatment of patients with a mental illness or learning disability, set out in Northern
Decision-making capacity and mental health law The Northern Ireland proposal, if adopted, will be the first instance anywhere that a single statutory framework will make provision for both mental and physical disorders. Limiting mental health intervention without consent to those occasions where a person lacks capacity will also be a major departure from both the Mental Health Act 1983 in England and Wales and the Mental Health (Care and Treatment) (Scotland) Act 2003 in Scotland. Concerns about providing compulsory treatment to an adult who has the capacity to refuse have previously been raised by the Council of Europe and the Court of Appeal in England and Wales. The Council of Europe, the body that created the European Convention of Human Rights (1950), monitors the care and treatment of detained mental health patients through the European Committee for the Prevention of Torture, Inhuman or Degrading Treatment or Punishment. In its general report of 1997 the committee argued that: ‘Patients should, as a matter of principle, be placed in a position to give their free and informed consent to treatment. The admission of a person to a psychiatric establishment on an involuntary basis should not be construed as authorising treatment without his consent. It follows that every competent patient, whether
© 2014 MA Healthcare Ltd
Abstract
The increasingly complex interface between the Mental Health Act 1983 and the Mental Capacity Act 2005 has been discussed in this column over the last three months. The boundaries between the two statutes is becoming increasingly blurred with the Court of Protection, a specialist court that considers cases about people lacking decision-making capacity, commonly being asked to make decisions on mental health law as well. Northern Ireland is proposing to resolve the interface problem by repealing its mental health laws and replacing them with a single statutory framework for mental capacity law. If passed, it will give all adults with capacity the right to consent to or refuse any form of treatment. Physical and mental conditions will be on an equal footing and there would be no compulsory detention or treatment of adults with capacity. For those whose lack capacity, treatment will be available in their best interests with arrangements in place to authorise situations where the care arrangements amount to a deprivation of liberty. In this article Richard Griffith considers the new proposals for Northern Ireland and wonders where these proposals point the way for the other devolved nations to develop their mental health and mental capacity law for a 21st century Britain.
Ireland under the Mental Health (Northern Ireland) Order 1986, will no longer apply. Those who lack capacity to consent to care and treatment for a physical or mental disorder will have decisions made in their best interests under a new mental capacity law. If adopted, the draft Mental Capacity Bill for Northern Ireland will retain safeguards for certain treatments and allow for the authorisation of a deprivation of liberty in a patient’s best interests (DHSSPS and DoJ, 2014).
British Journal of Nursing, 2014, Vol 23, No 20
British Journal of Nursing. Downloaded from magonlinelibrary.com by 193.061.135.112 on October 20, 2015. For personal use only. No other uses without permission. . All rights reserved.
LEGAL voluntary or involuntary, should be given the opportunity to refuse treatment or any other medical intervention. Any derogation from this fundamental principle should be based upon law and only relate to clearly and strictly defined exceptional circumstances.’(Council of Europe, 1997: para 41) In R (Wilkinson) v Broadmoor Hospital [2001], in his judgment on the case of a man detained for treatment under the Mental Health Act 1983 who was refusing antipsychotic medication, Lord Justice Simon-Bowne in the Court of Appeal, argued that the Committee on the Prevention of Torture, Inhuman or Degrading Treatment or Punishment’s remarks gave an indication of modern thinking on the subject, and that having provisions that allow for the compulsory treatment of competent but nonconsenting patients was increasingly difficult to justify. If the patient had the capacity to refuse consent to the proposed treatment, then it was difficult to argue that he should nevertheless be forcibly subjected to it. Lord Justice Simon-Browne’s view was in the minority, and subsequent cases that tried to test his view were rejected by the Courts. Nevertheless, the Mental Health Act 2007 did introduce a provision allowing detained mental health patients with decision-making capacity to refuse electroconvulsive therapy (ECT), but this is currently the only form of compulsory mental health treatment that can be refused in this way (Mental Health Act 1983, section 58A).
Northern Ireland’s case for change
© 2014 MA Healthcare Ltd
In Northern Ireland, the argument for having a single framework for all care, treatment and welfare decisions is based on; ■■ Promoting autonomy and valid choice for physical and mental disorder ■■ Reducing the stigma that arises from a separate mental health law ■■ nhancing protection for those who lack decision-making capacity. The challenges for Northern Ireland’s proposed single framework approach that will allow people with capacity to lawfully refuse care and treatment for mental disorder,
are reflected in the Code of Practice for the Mental Capacity Act 2005 that applies in England and Wales (Office of the Public Guardian, 2013). Chapter 13 of the Code of Practice makes recommendations for when using mental health law would be more suitable than using mental capacity law including where: ■■ The person will regain capacity before completing their treatment then refuse to continue with treatment ■■ The person lacks capacity to decide on some elements of treatment but has capacity to refuse a vital part of it ■■ The person with capacity refuses aftercare for their mental disorder and requires frequent readmission when their mental health and capacity deteriorates becoming what is sometimes called a ‘revolving door’ patient.
laws that have arisen in England and Wales. Northern Ireland’s proposals may point the way to a more enlightened, rights-led 21st century approach to the care and treatment of people with mental disorders in England, Wales and Scotland but it is likely that the governments in those devolved nations will need to be convinced that arguments for the compulsory care and treatment of adults with capacity under current mental health law can be safely set aside, and the needs of those with fluctuating capacity and of the ‘revolving door’ patient can continue to be met. The consultation period on Draft Mental Capacity Bill for Northern Ireland ended at the beginning of September 2014 but the proposals can be found at: http://tinyurl. BJN com/capacitybillconsultation Conflict of interest: none
Conclusion Northern Ireland’s proposals for a single statutory framework to regulate decisions about care, treatment and welfare in relation to physical and mental disorder are radical. They go further than previous suggestions from the Council of Europe and the Courts in England and Wales, both of which only argued for more autonomy for detained mental health patients with capacity within a mental health law framework. Allowing people with capacity to lawfully refuse treatment for both physical and mental disorders, while providing a single statutory framework for the care and treatment of those without capacity, will remove the many difficulties created by the interface between separate mental health and mental capacity
Council of Europe (1950) European Convention on Fundamental Human Rights and Freedoms. Council of Europe, Rome.1 Council of Europe (1997) 8th Annual Report of the European Committee for the Prevention of Torture, Inhuman or Degrading Treatment or Punishment’s activities covering the period 1st January to 31st December 1997. http://tinyurl.com/nwknp4r (accessed 28 October 2014) Mental Health (NI) Order 1986 (SI 1986/595) A NHS Foundation Trust v X [2014 EWCOP 35 Northern Ireland Department of Health Social Services and Public Safety and Northern Ireland Department of Justice (2014) Draft Mental Capacity Bill Consultation. Government of Northern Ireland, Belfast Nottinghamshire Healthcare NHS Trust v RC [2014] EWHC 1317 Office of the Public Guardian (2013) Mental Capacity Act Code of Practice. http://tinyurl.com/mfyf3hh (accessed 28 October 2014) R (Wilkinson) v Broadmoor Hospital [2001] EWCA Civ 1545
KEY POINTS n In the UK mental health laws allow for the compulsory detention and treatment of patients even where they have the capacity to refuse n Northern Ireland is proposing to allow all people aged 16 or over with capacity to refuse care and treatment for physical and mental disorders n If adopted, this will mean that a person with capacity would not be subject to compulsory detention or treatment for mental disorders n It is proposed that a single statutory framework will make provision to allow for the care, treatment and protection of those individuals who lack capacity to make decisions about a physical or mental illness.
Have an idea for BJN?
( 020 7738 5454 8 [email protected] British Journal of Nursing, 2014, Vol 23, No 20
@BJNursing 1091
British Journal of Nursing. Downloaded from magonlinelibrary.com by 193.061.135.112 on October 20, 2015. For personal use only. No other uses without permission. . All rights reserved.
