Joint Committee on the Draft Mental Incapacity Bill Written Evidence

130.Memorandum from Mind (MIB 1060)

  Mind is the leading mental health charity and works for a better life for everyone with experience of mental distress by:

    —  Advancing the views, needs and ambitions of people with experience of mental distress.

    —  Promoting inclusion through challenging discrimination.

    —  Influencing policy through campaigning and education.

    —  Inspiring the development of quality services which reflect expressed need and diversity.

    —  Achieving equal civil and legal rights through campaigning and education.


  Mind is a member of the Making Decisions Alliance and supports the general thrust of the response submitted on behalf of the Alliance. We therefore confine our response to some additional issues, which in our view are particularly relevant for people with mental health problems.


  Central to the Bill is a concept of best interests. The Bill states that "Regard must be had" to the individual's past and present wishes and feelings. However this fails to give adequate weight to the individual's past and present wishes and feelings, or to the views of any person appointed by the individual to act on their behalf. Often the past and present wishes and feelings of a person diagnosed with a mental health problem are easily ascertainable, as they may have lost capacity only recently or have fluctuating capacity.

  We would also like to see the list of factors to take into account in determining best interests to be expanded in line with the Scottish Adults with incapacity Act to emphasise protecting the individual from on overzealous use of the power and to enhance the principle of autonomy.

  In our view there should be


    "a duty to take account of" these wishes and feelings;


    more weight should be given to the views of a person who has been specifically nominated to be consulted (for instance under the Mental Health Act) or appointed as an attorney under a Lasting Power of Attorney; and


    the list of factors should be those in the Adults with Incapacity Act.


The general authority

  This covers the right to consent to and to refuse medical treatment on the individual's behalf (subject to an advance decision). However nothing in the Act authorises anyone to give a patient medical treatment for mental disorder, or to consent to a patient being given medical treatment for mental disorder, when this is governed by Part IV of the Mental Health Act 1983, that is for people who have already been sectioned.

  The general authority does not authorise a person—

        "to use, or threaten to use, force to secure the doing of an act which P resists, or to restrict P's liberty of movement whether or not P resists, unless the person reasonably believe that it is necessary to do so to avert a substantial risk of significant harm to P".

  We are concerned about the situation for those who are not subject to the compulsory treatment provisions under the Mental Health Act.

  People with mental health problems should not be subject to confinement or unregulated coercion, force, or potentially dangerous treatments for their mental health problems without adequate safeguards as would apply under mental health legislation. In our response to the Law Commission in 1995 Mind stated that we believed that a person should not be confined or forced to act "unless such action is essential to prevent an immediate risk of serious physical harm to that person or others". It follows that we would recommend narrowing the provisions of the current Bill to require an immediate risk and also to limit it to physical harm. Outside that situation we believe that there should be no power to administer medical treatment for a person's medical condition when they are resisting treatment.

  Where a patient gives another (the donee) a power to make medical decisions on their behalf the situation may seem a little different. If a person nominates someone they trust to take care of their health in the event of their incapacity they may prefer that this person has the power (either under an LPA or by advance directive) to decide whether treatment should be given in the face of their opposition than for them to be subject to the control of medical professionals under compulsory powers. The Draft Mental Health Bill limits the clinical supervisor's power to impose treatment on resisting patients who lack capacity to a situation of "urgency".

  There needs to be a balance between respect for the patient's choice and for the patient's safety. There may be room for some interventions (for instance the routine administration of medication) that could occur with a second opinion or a court order rather than through compulsory powers. There is also a distinction between a situation where the person without capacity is reluctant to take regular prescribed medication and one where real force must be administered. We acknowledge that it will require some consultation and further thought to draft appropriate criteria but the Code of Practice could be used to give examples. In our view the Bill as drafted is too broad.


  Even where the person without capacity is not resisting treatment we believe that there should be a second medical opinion in the same circumstances as one is required under the Mental Health Act (long-term medication, ECT). Extra safeguards should exist for more invasive or controversial procedures (including but not limited to invasive treatments for mental disorder).


  No provision is made for identifying the person responsible for determining whether P has capacity at the relevant time. If a person is sectioned or has a diagnosis of mental disorder we believe there may be problems if it is solely up to the treating psychiatrist to determine capacity.

  There is a risk in relation to treatment for mental disorder that a person will be assessed as not having capacity when they are refusing treatment and someone else may consent on their behalf, or a LPA or the general authority will be used. Again this would bring people outside of the safety structure as the Bill is currently drafted.

  We believe that there needs to be clearer guidance about who assesses capacity and when. This will need to be clarified in the Code of Practice.

  In addition, it may be necessary to be more explicit in the Code of practice that "irrational" decisions will not necessarily indicate a lack of capacity. The Bill says that a person is entitled to make unwise decisions, but we do not believe this goes far enough. There may be a difference in substance between a lack of wisdom and what may be seen as irrationality. In particular, decisions based on unshared perception should not lead to a presumption of incapacity.

  No provision appears to be made for appealing a medical capacity/incapacity decision. Complexity or difficulties in obtaining public funding may mean that in fact capacity decisions continue to be made by psychiatrists treating P (or RMOs) and this would constitute a disincentive to appealing such decisions. This is particularly significant, as the validity of advance decisions will depend upon the assessment of capacity. We are concerned to ensure that the opportunities for disregarding such decisions are minimised. It may be worth considering whether there needs to be a procedure for independent second opinion doctors and recording/certification in relation to assessment of capacity as well as treatment decisions. (cf. SOADs under current MHA).

  The Bill arguably leaves uncertainty as to when independent scrutiny of capacity/incapacity decisions may occur. There is provision for the Court to exercise a power to call for reports and a Medical Visitor can carry out a medical examination of P in private. But this only occurs if the case comes to court, and even then, not always. Rather, it is only if the Court requires, and the circumstances when this may happen are left open. It could be commented that the Bill makes more comprehensive provision for protection of attorneys from liability! (eg Part 5, Schedule 3).


  The Bill makes specific provisions for the recognition and enforcement of advance refusals to accept treatment.

  Although we welcome the inclusion of advance decisions no direct reference is made to the relationship between Advance Decisions and the Mental Health Act. We are disappointed that an individual cannot use an advance decision to refuse treatment authorised under the compulsory treatment provisions of the Mental Health Act. This is a development that Mind wished to be included and would have enhanced the other provisions concerned with bodily integrity as protected by the European Convention on Human Rights. This would have been in line with our view that treatment under mental health legislation should be also be based on incapacity and best interests.

  We understand the reasons that positive advance decisions are not included in the Bill. However, we do not see why expressions of preference should not be taken into account when they relate to method rather than result. This is particularly relevant for people with fluctuating capacity, who may be able to plan for periods of incapacity and may well have learned from past experiences. If a person knows that a particular medication or treatment works for them then we believe that they should be able to record that fact. Because the Bill is not robust enough in relation to the duty to take wishes and feelings into account we believe that it would be helpful to allow people to express their wishes in advance in limited circumstances. Further more many features of an advance decision could cover matters other than medication.


  The binding power of the Code could be strengthened on the face of the Bill—especially since the Court of Appeal decision in relation to the Mental Health Act Code of Practice. Why say that the duty is merely to "have regard to" the Code? We believe that it will be unlawful for a public body to depart from a Code of Practice unless there are compelling circumstances in an individual case. This is particularly so where the Code relates to rights protected under the European Convention (as most of them will under Art 8—right to respect for private and family life). The group protected by the proposed legislation is a vulnerable one and in many cases they will find it hard to bring legal proceedings. The status of the Codes of Practice should be upgraded and simplified so as to confer greater immediate protection from decisions that may infringe human rights. This in turn could reduce the need to go to court for the purpose of determining when the Code may be departed from.

  Related to this point is the fact that there is no obvious sanction for not complying with the legislation. Because of the generality of the Bill we suspect that it will actually be incredibly difficult to challenge decisions made under it. People concerned with the care of a person without capacity will retain a huge amount of discretion and there will be a lot left to subjective determination. The provisions about assessment and treatment, and the status of the Codes, should be much more robust if they are to afford any real protection to people without mental capacity, or guidance to those involved with their care.


  Mind is in favour of advocates being available to anyone who would find them helpful. However, we believe that there are important differences between mental health legislation and incapacity legislation. Mental health law provides the power to detain and treat a person against their express wishes, and regardless of their capacity or "best interests". For this reason we feel much more strongly about their involvement in such decisions.

   Where advocates are available we believe that they should have some status so that what they say on behalf of their client cannot easily be disregarded. Otherwise there is a risk that their involvement will merely be tokenism. If advocates have a recognised status they will also have a corresponding duty, which might involve greater regulation and training. It should also be acknowledged that access to advocates is not a substitute for access to legal advice and redress.

September 2003

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