Mental capacity and mental health acts part 2: a gap in statutory provision Richard Griffith

Abstract

The revised Mental Health Act 1983 code of practice will have a new chapter providing 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 (2013) and the House of Lords Mental Capacity Act Committee (2014) have argued that poor understanding of the interface has led to flawed decision making by doctors and nurses. In the second of a series of articles, the author discusses a gap in statutory provision that has been inadvertently created by Parliament’s eagerness to avoid a conflict between these statutes in relation to a deprivation of liberty. Key words: Deprivation of liberty ■ Ineligibility criteria ■ Inherent jurisdiction ■ Gap in statutory provision

T

he deprivation of liberty safeguards were put in place to close a gap in statutory provision, identified by the European Court of Human Rights, where patients who lacked decision-making capacity but were compliant with treatment were being deprived of their liberty (Ministry of Justice, 2008). A deprivation of liberty in these circumstances was outside the scope of the detention powers of the Mental Health Act (MHA) 1983; these powers were reserved for those who actively objected to admission and treatment for their mental disorder (Mental Health Act 1983, section 1). There are times, however, when the provisions of both the Mental Health Act 1983 and the Mental Capacity Act 2005, that authorise a deprivation of liberty, could apply in cases where the patient has a mental disorder and lacks capacity. How to proceed with authorising the deprivation of liberty where this interface occurs has been a source of confusion and often led to poor decision making by health professionals such as nurses. Parliament recognised the potential for conflict between the two regimes when the amendments to the Mental Capacity Act 2005 creating the deprivation of liberty safeguards Richard Griffith, Senior Lecturer in Health Law, College of Human and Health Sciences, Swansea University

900

were going through their parliamentary stages. Ineligibility criteria were set out in schedule 1A of the 2005 Act to try and prevent conflict between the Mental Health Act 1983 and the Mental Capacity Act 2005 deprivation of liberty safeguards. Cases were set out where a person would be ineligible to be deprived of their liberty under the safeguards if doing so would conflict with a provision of the Mental Health Act 1983. Under the Mental Capacity Act 2005, schedule 1A a person is ineligible to be subject to the deprivation of liberty safeguards if they are: ■■ Subject to a hospital regime and detained in hospital under that regime ■■ Subject to a hospital regime but not detained in hospital ■■ Subject to a community regime ■■ Subject to guardianship ■■ Within the scope of the MHA but not subject to any mental health regime and objects to being a mental health patient. The first requirement means that a person cannot be subject to a deprivation of liberty safeguard if they are already detained in hospital under the Mental Health Act 1983. At first glance Parliament appears to have imposed a sensible restriction on the use of the deprivation of liberty safeguards. Why should it ever be necessary to deprive a person of their liberty under the safeguards when they are already detained under the 1983 Act?

Despite Parliament’s best efforts it is now apparent that there are occasions where a person’s care and treatment might require deprivation of liberty that is beyond the scope of the Mental Health Act 1983. In An NHS Trust v A [2014] an Iranian doctor went on hunger strike in protest at the refusal of asylum status and the removal of his passport by the UK Border Agency. He was later detained under the Mental Health Act 1983, section 3 after he was diagnosed with a delusional disorder and judged to lack capacity. His physical condition continued to deteriorate but his Responsible Clinician argued that he could not be force fed under the provisions of the Mental Health Act 1983, section 63, because the refusal to eat was not a manifestation or symptom of his mental disorder.The Court of Protection was asked to authorise the force feeding in A’s best interests. The Court of Protection agreed that the evidence showed that Dr A was suffering from a delusional disorder and lacked capacity to make decisions about his own nutrition and hydration. On balance, therefore, the Court held that forcible feeding by artificial nutrition and hydration was appropriate and in his best interests. The Court also accepted that the provision of artificial nutrition and hydration would need to be forcibly given under conditions that would amount to a deprivation of liberty. As the force feeding was not medical treatment for Dr A’s mental disorder it could not be authorised under the Mental Health Act 1983. As Dr A was already detained in hospital under the 1983 Act Baker J held that he could not order the deprivation of liberty under the Mental Capacity Act 2005 deprivation of liberty safeguards as the patient was ineligible under schedule 1A of the Act. Nor could the Court of Protection authorise a deprivation of liberty under section 16 of the 2005 Act. The provisions of the Mental Health Act 2005, section 16 generally allow a court to settle a matter concerning the welfare of a person who lacks decision-making capacity. This includes authorising a person to be

© 2014 MA Healthcare Ltd

A new gap in statutory provision

British Journal of Nursing, 2014, Vol 23, No 16

British Journal of Nursing. Downloaded from magonlinelibrary.com by 129.096.252.188 on December 10, 2015. For personal use only. No other uses without permission. . All rights reserved.

LEGAL deprived of their liberty. However, the court’s authority to deprive a person of their liberty is limited by section 16A of the Act and a welfare order cannot order a deprivation of a person’s liberty if they would have been ineligible under schedule 1A. The ruling in An NHS Trust v A [2014] identified a gap in the statutory provision that was inadvertently created by Parliament’s eagerness to avoid conflict between the Mental Health Act 1983 and the Mental Capacity Act 2005. As Dr A was detained in hospital under the Mental Health Act 1983 he was ineligible to be deprived of his liberty to allow for the forcible provision of artificial nutrition and hydration under the deprivation of liberty safeguards and was also ineligible to be deprived of his liberty by a court welfare order.

Inherent jurisdiction To overcome this inadvertent gap in the statutory provision Baker J resorted to the Court’s inherent jurisdiction to authorise the force feeding and accompanying deprivation of liberty in Dr A’s best interests. At English common law a superior court of record, such as the Court of Protection, has the jurisdiction to hear any matter that comes before it, and allows the court to control its own processes and the procedures before it. Before the introduction of the Mental Capacity Act courts routinely dealt with matters concerning adults who lacked decision-making capacity under their inherent jurisdiction as long as it was considered a seriously justiciable issue (Re S (Adult’s Lack of Capacity: Carer and Residence) [2003])

Calls to close the new statutory gap In its post-legislative scrutiny of the Mental Capacity Act 2005 the House of Lords Mental

KEY POINTS n Ineligibility criteria were set out in Mental Health Act 2005 to prevent conflict between the Mental Health Act 1983 and the Mental Capacity Act 2005 deprivation of liberty safeguards n It is now apparent that on rare occasions a person’s care and treatment might require deprivation of liberty beyond the scope of the Mental Health Act 1983 n An NHS Trust v A [2014] identified this gap in the statutory provision that was inadvertently created by Parliament’s eagerness to avoid conflict between the Mental Health Act 1983 and the Mental Capacity Act 2005 n To overcome this gap in statutory provision the Court must resort to its inherent jurisdiction to authorise a deprivation of liberty

Capacity Act Committee argued that the gap in statutory provision gave rise to a gap in the protection of vulnerable persons. It recommended closing the gap by amending the ineligibility criteria under schedule 1A of the Act to allow, in appropriate cases, the deprivation of liberty of a person lacking capacity, for the purpose of medical treatment, which is separate from the person’s mental disorder (House of Lords 2014). The Government in its response to the House of Lords report calls to close the gap in statutory provision arguing that the very small number of cases that would arise could be properly dealt with by the Courts exercising their inherent jurisdiction. In the Government’s view there is no need for legislative amendments (HM Government, 2014).

Conclusion The rigidly drawn ineligibility criteria set out under schedule 1A of the Mental Capacity Act were introduced to prevent conflict in the interface between the Mental Health Act 1983 and the Mental Capacity Act 2005. However,

the have now given rise to a gap in statutory provision. A person detained in hospital under the Mental Health Act 1983 who needs to be deprived of their liberty to treat an unrelated physical disorder is ineligible to have that deprivation of liberty authorised under the Mental Capacity Act 2005. Nurses will have to ensure that the treatment and deprivation of liberty is authorised by a Court exercising its inherent jurisdiction BJN before it can be lawfully given.  Conflict of interest: none

HM Government (2014) Valuing every voice, respecting every right: Making the case for the Mental Capacity Act The Government’s response to the House of Lords Select Committee Report on the Mental Capacity Act 2005 Cmd 8884. The Stationary Office, London 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. The Stationary Office, London Re S (Adult’s Lack of Capacity: Carer and Residence) [2003] 1 FLR 292

Clinical Leadership: Bridging the divide will be relevant to clinicians of all professional backgrounds and for health care managers and policymakers. It aims to provide a better understanding of the key topics surrounding clinical leadership today and provides practical tips and advice on ways to make your organisation function better to deliver higher quality, more efficient patient care. It was also written in the hope that it will shed light on many of the conundrums of the health service. This book is the first to provide a comprehensive and inspiring overview of the knowledge, skills and behaviou rs required for effective clinical leadership today. It reflects the growing emphasis on quality of care and clinicians ’ role in building and running great services as outlined in the National Health Services’ Next Stage Review. This book is unique in that it is written by junior doctors who are all passionate to develop as leaders, in combinat ion with senior leaders who have extensive experience of leadership. The authors are a group of specialist registrars , selected to participate in NHS London’s 2008 ‘Prepare to Lead’ scheme. Through this scheme, each junior doctor was matched with a senior leader from within the NHS who became their mentor. This book presents the challenges and lessons they encountered in their efforts to be effective future leaders.

“I believe this book will become essential reading for any clinician learn more about leading within who wishes to the NHS.” Professor the Lord Darzi of Denham Professor of Surgery, Imperial College London

© 2014 MA Healthcare Ltd

ISBN: 978-1-85642-398-4; 234 x 156mm; paperback; 200 pages; publication 2009; RRP £19.99 ISBN 1-85642-398-0

Order your copies by visiting

www.quaybooks.co.uk

or call our Hotline

9

+44(0)1722 716 935 Clinical Leadership press.indd

www.quaybooks.co.uk

781856 423984

Clinical Leadership Bridging the divide edited by Emma Stanton, Claire Lemer and James Mount ford

edited by Emma Stanton, Claire Lemer and James Mountford

• Comprehensive overview of the knowledge, skills and behaviours required for effective clinical leadership today. • Practical tips and advice on ways to deliver higher quality, efficient patient care. • Co-authorship by aspiring and enthusiastic junior doctors with experienced senior leaders. • Reflects the growing emphasis on quality of care and clinicians’ role in building and running great services at the NHS. • Foreword written by Lord Darzi of Denham

Clinical Leadership: Bridging the divide

Develop and improve your clinical leadership skills

foreword by Professor the Lord Darzi of Denha m

1

29/10/09 17:36:56

British Journal of Nursing, 2014, Vol 23, No 16

901

British Journal of Nursing. Downloaded from magonlinelibrary.com by 129.096.252.188 on December 10, 2015. For personal use only. No other uses without permission. . All rights reserved.

Mental capacity and mental health acts part 2: a gap in statutory provision.

The revised Mental Health Act 1983 code of practice will have a new chapter providing clearer information about the interface between the Mental Healt...
983KB Sizes 1 Downloads 5 Views