Mental capacity and mental health Acts part 1: advance decisions Richard Griffith Mental health matters The Department of Health is undertaking a review of the Mental Health Act 1983 code of practice and as part of that review has opened a consultation on what changes should be made. One key area for change is a chapter that provides clearer information about the interface between the Mental Health Act 1983 and the Mental Capacity Act 2005. Both the House of Commons Health Select Committee and the House of Lords Mental Capacity Act Committee have argued that poor understanding of the interface has led to flawed decision making by doctors and nurses. In the first of a short series of articles, Richard Griffith considers the interface between these two important statutes, beginning with advance decisions to refuse treatment (ADRT). Key words: Advance decisions to refuse treatment ■ Mental Health Act 1983 ■ Mental Capacity Act 2005 ■ Treatment as a whole approach ■ Abuse of power

T

he Mental Health Act 1983 (as amended) provides for the admission, treatment, discharge and aftercare of people with a mental disorder, including compulsory admission and treatment where necessary. The Mental Capacity Act 2005 promotes valid choice by putting the patient at the centre of decision making and sets out a statutory framework for assessing decision-making capacity and determining the best interests of a person who lacks capacity. It is inevitable that there will be times where both the Mental Health Act 1983 and the Mental Capacity Act 2005 will apply in cases where the patient has a mental disorder and lacks capacity. How to proceed where this interface occurs has been found to be a source of confusion and poor decision making by health professionals such as nurses and both the House of Commons Health Select Committee (2013) and the House of Lords Mental Capacity Act Committee (2014) have called for clearer information explaining the interface between the two Acts. Both Houses of Parliament see the current review (Department of Health,

Richard Griffith, Lecturer in Health Law, College of Human and Health Sciences, Swansea University

812

2014) of the Mental Health Act 1983 code of practice as an opportunity for the Department of Health to put in a chapter with up-to-date comprehensive information that sets out the interface and how to resolve conflicts between the provisions of the two Acts. This article, the first of a short series examing the interface between the Acts, considers the relationship between an advance decision to refuse treatment (ADRT) under the Mental Capacity Act 2005 and its effect on the provisions of the Mental Health Act 1983.

Valid refusal of future treatment As the name suggests, an advance ADRT allows a capable adult to set out in advance decisions about the treatment they would wish to refuse, if at some future point they lacked the capacity to make that decision themselves (Mental Capacity Act 2005, section 24). The decision may be set out in layman’s terms and would generally be binding on health professionals if valid and it applied to the person’s situation. If made out in writing, signed by the maker, witnessed in their presence and containing a statement that it is to apply even if life is at risk then the ADRT can validly refuse lifesustaining treatment (HE v A Hospital NHS Trust [2003]).

In order to set out the parameters of the interface between the two statutes section 28 (1) of the Mental Capacity Act 2005 states that: ‘Nothing in this Act authorises anyone— ■■ to

give a patient medical treatment for mental disorder, or

■■ to

consent to a patient’s being given medical treatment for mental disorder,

if, at the time when it is proposed to treat the patient, his treatment is regulated by Part 4 of the Mental Health Act.’ Part 4 of the Mental Health Act 1983 sets out the safeguards and extent of the compulsory treatment provisions of the Act. As a general rule it can be seen that an ADRT for a mental disorder can be overruled if the patient is detained under a qualifying section of the Mental Health Act 1983. Section 63 of the 1983 Act sets out the general power for the compulsory treatment of detained patient. It provides that: ‘The consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering, not being a form of treatment to which section 57, 58 or 58A above applies, if the treatment is given by or under the direction of the approved clinician in charge of the treatment.’ Some treatments, such as psychosurgery, require the consent of the patient and a second opinion from an appointed doctor before they can proceed (Mental Health Act 1983, section 57). Other treatments, such as continuing with medication for a mental disorder beyond the first 3 months of administration, require either the consent of the patient or a second opinion (Mental Health Act 1983, section 58).

© 2014 MA Healthcare Ltd

Abstract

British Journal of Nursing, 2014, Vol 23, No 14

British Journal of Nursing. Downloaded from magonlinelibrary.com by 137.189.170.231 on November 19, 2015. For personal use only. No other uses without permission. . All rights reserved.

© 2014 MA Healthcare Ltd

An amendment introduced by the Mental Health Act 2007 has seen a limited shift in the interface between the Mental Health Act 1983 and the Mental Capacity Act 2005 in relation to electro-convulsive therapy (ECT). Section 58A of the 1983 Act now allows a patient who lacks capacity to lawfully refuse ECT in advance through a valid and applicable ADRT, even where they are detained under the Mental Health Act 1983. Such an advance decision would be binding on the patient’s responsible clinician unless it could be shown that ECT met the urgent treatment requirements of the Act (Mental Health Act 1983, section 62). The provisions of part 4 of the Mental Health Act 1983 allow for the compulsory treatment of those detained patients to whom it applies subject to the safeguards set out in sections 57, 58 and 58A. Treatment for a mental disorder adopts a treatment as a whole approach that allows for the treatment of the physical manifestation of that disorder, such as the feeding of patients with anorexia nervosa (Re E (Medical treatment: Anorexia) (2012)). The provisions also allow for the compulsory treatment of the aftermath of a suicide attempt even where that treatment was largely for a physical disorder, such as the stitching of wounds (B v Croydon Health Authority [1995]). Unless the treatment being proposed was ECT, the combined effect of section 28 of the Mental Capacity Act 2005 and section 63 of the Mental Health Act 1983 is to allow a responsible clinician to direct the compulsory treatment of a detained patient who lacked capacity, even where an advance decision is in place. However, in Nottinghamshire Healthcare NHS Trust v RC [2014] the Court of Protection held that a patient detained under a provision of the Mental Health Act 1983 should, in some cases, have their advance deicision respected by their responsible clinician even where compulsory treatment for the mental disorder was available. Nottinghamshire Healthcare NHS Trust v RC [2014] concerned a detained patient who was self-harming by cutting and who had made an advance decision refusing blood transfusions on religious grounds. Despite the efforts of the nurses caring for him there was a real possibility he might open an artery and lose a lot of blood, requiring a blood transfusion. His responsible clinician was aware that they could order the transfusion under section 63 of the Mental Health Act 1983 as treatment for a mental disorder, but

British Journal of Nursing, 2014, Vol 23, No 14

was concerned about overriding the patient’s religious beliefs to treat his mental disorder. The Court of Protection held that the advance decision was valid and would be applicable if the patient lost capacity to consent to or refuse a blood transfusion. The Court further held that it would be an abuse of power to impose a blood transfusion in defiance of a clearly expressed wish based on religious grounds notwithstanding the existence of compulsory treatment powers under section 63 of the Mental Health Act 1983. The Court of Protection advised that in cases where overriding a person’s valid refusal or valid applicable advance decision using compulsory powers would be likely to result in the denial of a basic freedom, such as freedom of religion or belief then the matter should come to court for a decision.

Conclusion The applicability of ADRT in mental health care provides a good illustration of the complex interface between the Mental Health Act 1983 and the Mental Capacity Act 2005. When enacted in 2005 the Mental Capacity Act, section 28 made it clear that none of its provisions, including ADRTs could be used to prevent treatment for a mental disorder under part 4 of the Mental Health Act 1983. Yet an amendment to the Mental Health Act now allows a person who lacks capacity to refuse ECT in advance through an ADRT. More recently, the general power to compulsorily treat detained patients for their mental disorder under section 63 of the Mental Health Act 1983 has been modified by a decision of the Court of Protection that

AnthonyTX/istockphoto

LEGAL

allows for the provisions of a valid applicable ADRT to apply where it would be an abuse of power and denial of basic freedom to enforce compulsory treatment in the face of a religious or other fundamental objection (Nottinghamshire Healthcare NHS Trust v RC [2014]). The next article will consider the interface between the two statutes in relation to BJN deprivation of liberty.  Conflict of interest: none B v Croydon Health Authority [1995] 2 WLR 294 Department of Health (2014) Stronger Code: Better Care. Consultation on proposed changes to the Code of Practice: Mental Health Act 1983. http://tinyurl.com/qzopv59 (accessed 16 July 2014) HE v A Hospital NHS Trust [2003] EWHC 1017 House of Commons (2013) Health Committee Post Legislative Scrutiny of the Mental Health Act 2007 First Report of Session 2013-14 HC-584. TSO, London House of Lords (2014) Report of the select committee on the Mental Capacity Act 2005: Post legislative scrutiny HL139. TSO, London Nottinghamshire Healthcare NHS Trust v RC [2014] EWHC 1317 Re E (Medical treatment: Anorexia) (2012) EWHC 1639 (COP)

Key points ■ The

interface between the Mental Health Act 1983 and Mental Capacity Act 2005 is complex and unclear leading to poor decision making by nurses

■ An

advance decision to refuse treatment (ADRT) allows a capable adult refuse treatment in advance of their losing capacity

■ As

a general rule an advance decision that refuses treatment for a mental disorder can be overruled if it is regulated by the compulsory treatment provision of Part 4 of the Mental Health Act 1983

■ Section

58A of the 1983 Act allows a patient who now lacks capacity to lawfully refuse ECT through a valid and applicable advance decision to refuse treatment

■ The

Court of Protection has now held that the provisions of a valid applicable ADRT apply where it would be an abuse of power and denial of basic freedom to enforce compulsory mental health treatment in the face of a religious or other fundamental objection by the patient

813

British Journal of Nursing. Downloaded from magonlinelibrary.com by 137.189.170.231 on November 19, 2015. For personal use only. No other uses without permission. . All rights reserved.

Mental Capacity and Mental Health Acts part 1: advance decisions.

The Department of Health is undertaking a review of the Mental Health Act 1983 code of practice and as part of that review has opened a consultation o...
847KB Sizes 0 Downloads 3 Views