DMH 396
Memorandum from Rosie Winterton,
Minister of State,
Department of Health
MENTAL HEALTH BILL - NECESSITY VS
CAPACITY
1. We are aware that one of the
themes of the evidence that has been given to the pre-legislative
committee is that compulsory powers should be used only when a
person lacks capacity to make decisions on treatment. As you know,
the draft Mental Health Bill is based on necessity, not on capacity
- the risk of harm that a patient poses to himself or to others
is the key factor in a decision about whether or not compulsory
powers need to be used. We thought it might be helpful to set
out why we have taken this approach.
History of the necessity vs capacity
issue
2. The 1983 Act does not require
any decision on a patient's capacity to be taken when the decision
to detain for treatment is made.
3. As you know, in 1998, the Government
commissioned an Expert Committee, chaired by Genevra Richardson,
to advise on how mental health legislation should be shaped to
reflect contemporary patterns of care within a framework which
balances the need to protect the rights of individual patients
and the need to ensure public safety. The report sets out the
difficulties associated with a system which allowed people with
capacity to refuse treatment:
- the safety of the public must be
allowed to outweigh individual autonomy where the risk is sufficiently
great and, if the risk is related to the presence of a mental
disorder for which a health intervention of likely benefit to
the individual is available, then it is appropriate such intervention
should be authorised as part of health provision
- mental disorder unlike most physical
health problems may occasionally have wider consequences for the
individual's family and carer, and very occasionally for unconnected
members of the public affected by the individual's behaviour,
acts and omissions
- there is a disinclination to allow
someone with a mental disorder, whether or not they formally retain
capacity, to deteriorate beyond a certain point
- not to allow intervention to protect
the patient from serious harm despite his or her capable refusal
will lead in practice to the adoption of a very broad interpretation
of incapacity, ie in order to allow intervention.
4. They also set out the arguments
in favour of unfettered individual autonomy for people with capacity
and concluded that:
"As a committee in receipt of these
arguments we are aware they are powerfully held on both sides
and are effectively irreconcilable. We believe they reflect a
difference in fundamental philosophy which can only be resolved
by according preference to one approach over the other. We have
set out the alternative views as best we can and invite politicians
to make the moral choice between them."
5. In discussing the conditions
for compulsion elsewhere in the report they suggested a two-pronged
approach, setting out conditions for people with capacity and
conditions for people without capacity. The conditions which would
allow people with capacity to be brought under compulsion were:
- there is a substantial risk of serious
harm to the health or safety of the patient or to the safety of
other persons if he or she remains untreated, and
- there are positive clinical measures
included within the proposed care and treatment which are likely
to prevent deterioration or secure improvement in the patient's
mental condition.
6. Thus, the Richardson Committee
report effectively concluded that there were circumstances when
necessity (in terms of the risk of harm to self and others) should
trump capacity.
7. The Government's view on this
was that, by having an assessment of capacity before the assessment
of necessity, the Richardson report approach would lead to different
outcomes for patients with the same or similar risk attached to
them. The Green Paper (Reform of the Mental Health Act 1983)
noted: "[The Richardson Committee report] introduces a notion
of capacity which, in practice, may not be relevant to the final
decision on whether a patient should be made subject to a compulsory
order. It is the degree of risk that patients with mental disorder
pose, to themselves or others, that is crucial to this decision.
In the presence of such risk, questions of capacity - while still
relevant to the plan of care and treatment - may be largely irrelevant
to the question of whether or not a compulsory order should be
made."
8. The White Paper (Reforming
the Mental Health Act) maintained the position in terms of
the primacy of the risk, and this has continued to be our approach
in the 2002 and 2004 drafts of the Bill.
Why we support a necessity based
set of conditions
9. As we have said, the conditions
in the 1983 Act are based on the necessity of compulsion. Having
carefully considered the issue, we decided to maintain this approach.
10. We would however like to emphasise
that we fully support the general principle of individual autonomy
whenever appropriate - hence the requirement in clause 1 that
the general principles in the codes of practice must be designed
to secure that where possible patients are involved in the making
of decisions and that decisions are made fairly and openly. Throughout
the Bill there are requirements to consult patients about their
treatment, and this is seen as central to achieving successful
outcomes and to protecting individuals' rights.
11. We should explain that our reasoning
below applies whether "capacity" is taken to mean capacity
as defined in the Mental Capacity Bill or the less strict test
of "significantly impaired decision-making" used in
the new Scottish mental health legislation. The difference between
impaired judgement or decision-making and incapacity is probably
more one of degree - the Millan committee said they were "broadly
similar concepts".
12. We see the following problems
with moving to a capacity based approach:
- it would be ineffective in relation
to people who present a risk of harm to others, for the reasons
that the Richardson report highlighted.
- there is a practical difficulty
with having fundamentally different approaches for those who present
a risk of harm to others and for those who present a risk of harm
to themselves. Many patients when acutely ill fall into both categories,
and it does not make sense to have clinicians working to different
criteria in these related clinical circumstances. This difficulty
is evidenced by a journal article quoted in the Mental Health
Act Manual which sets out the reasons given by doctors for
supporting section 2 applications under the 1983 Act:
- o 1%
of applications were solely for the protection of other people
- o 32%
of applications were solely in the interests of the health or
safety of the patient
- o 67%
of applications were for a combination of the two.
- we are concerned that, with a capacity
based approach, there could be a risk of people being able to
refuse treatment until they are so seriously ill that they would
then be covered by the incapacity/impaired judgement criterion.
- as the Richardson report pointed
out, a capacity based approach could result in professionals feeling
obliged to use a very wide interpretation of impaired judgement.
If anyone with a mental disorder who refuses treatment is considered
to have impaired judgement, there is effectively no point in having
an impaired judgement criterion. If the concept is tested in the
courts, and a much narrower interpretation results through case
law, there is a significant danger that professionals could be
required not to treat certain people refusing treatment who they
believe to be at significant risk of suicide or serious self-harm
or self-neglect. Take as an example a young person with serious
depression who wants to commit suicide - who appears to be fully
aware of the consequences of their action and for whom it is likely
that treatment would have a high likelihood of success. Would
the clinician force treatment on them on the basis that they must
have impaired judgement, to want to kill themselves, or could
there be a danger that the person would be considered to have
capacity so that nothing could be done to prevent their suicide?
We do not think it right to require clinicians to stand by and
watch their patients harm themselves in these circumstances, when
they know that treatment itself might very well lead to patients
changing their mind.
- there is a risk that a capacity
based approach could disadvantage people with fluctuating capacity
(eg someone fluctuating day by day). When a disorder responds
to treatment, then an individual who was incapacitated might move
to having capacity, and then refuse treatment, until they lost
capacity again.
- a capacity based approach could
have the effect of making it impossible to provide treatment under
compulsion for many people with personality disorder. It is not
the Government's intention that people with personality disorder
should be excluded from treatment if they meet the conditions
for compulsion. On the contrary, the Government takes the view
that people with personality disorder (who may be at significant
risk of self-harm, as well as a risk to others) have often been
inappropriately excluded from treatment in the past. (See Personality
Disorder: no longer a diagnosis of exclusion.)
- a capacity-based approach would
discriminate against mentally disordered people who had offended,
possibly as a result of their disorder. Most mentally disordered
offenders are capable of decision making at the time they are
sentenced. To make incapacity a precondition of compulsion could
deprive them of the chance of diversion from a criminal justice
disposal. (We recognise that it would be possible to have separate
conditions for offenders but this would mean treating capacitous
mentally disordered offenders differently from others with the
same mental disorder who have not offended.)
Conclusion
13. Accordingly, we have concluded
that existing mental health legislation relies on the only practicable
basis for compulsion to prevent harm. Whilst a capacity based
system may suffice to protect people from unnecessary intrusion,
it is ineffective to prevent the harm to themselves or others
which may result from their disorder.
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