Stephanie Prior, Partner
Personal Injury Law Journal - July/August 2009
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The main aim of the Mental Health Act (MHA) 1983 is to govern the reception, care and treatment of mentally disordered persons. It also deals with the management of their property and other related matters. More importantly, it provides legislation by which people suffering from a mental disorder can be detained or sectioned in hospital and have their disorder assessed or treated against their wishes. MHA 1983 is closely regulated by the Mental Health Act Commission.
The term ‘mental disorder’ is very loosely defined under MHA 1983, and includes any disorder or disability of the mind. In essence, there are four distinct subcategories of mental disorder stipulated within the definition: mental illness, mental impairment, severe mental impairment and psychopathic disorder. Some forms of mental disorder fall outside the scope of these categories, for example mental and behavioural disorders caused by psychoactive substance use, eating disorders, non-organic sexual disorders, learning disabilities, autistic spectrum disorders, or behavioural and emotional disorders of children and adolescents. Other exclusions are drug and alcohol dependence, and learning disabilities not associated with abnormally aggressive or seriously irresponsible behaviour.
The most relevant sections of MHA 1983 for most legal practitioners are:
- Section 136, which relates to taking someone who is found in a public place who appears to have a mental disorder. That person can be taken by the police to a place of safety and detained for a maximum of 72 hours.
- Section 4, which relates to emergency patient admissions for up to 72 hours initially.
- Section 2, which relates to admission to hospital for assessment for up to 28 days.
- Section 3, which is admission of a patient for treatment for up to six months initially.
There are guidelines attached and procedures that must be followed relating to admission and discharge of a person to a place of safety or hospital.
Mental Capacity Act (MCA) 2005
MCA 2005, on the other hand, provides a statutory framework to empower and protect vulnerable people who are not able to make their own decisions. Essentially, it governs decision making on behalf of people who may lose mental capacity at some point in their lives, or where an incapacitating condition has been present since birth. MCA 2005 makes it clear who can make decisions, in what circumstances, and how they should go about this. Its main aim is to better support people unable to consent to proposals for serious medical treatment and to enable people to plan ahead for a time when they may lose their capacity.
Importantly, the definition of capacity is clear:
A person is unable to make a decision for himself if he is unable:
(a) to understand the information relevant to the decision;
(b) to retain that information;
(c) to use or weigh that information as part of the process of making the decision; or
(d) to communicate his decision (whether by talking, using sign language or any other means).
Mental Health Act 2007
Recently, MHA 2007 was introduced, which has the effect of significantly amending the MHA 1983 and MCA 2005. Although an Act of Parliament of the UK, it applies only to people in England and Wales. It received royal assent in July 2007.
The significant changes include:
- Introduction of a new definition of mental disorder by removing the subcategories. A single definition now applies throughout the Act.
- Introduction of a requirement that someone cannot be detained for treatment unless appropriate treatment is available. Removal of the treatability test.
- Introduction of ‘supervised community treatment’. This new power replaces supervised discharge with a power to return the patient to hospital if the medication regime is not being complied with in the community.
- Broadening the range of professionals who can be responsible for the treatment of patients without their consent.
- Making it possible for some patients to appoint a civil partner as their nearest relative. Also, the right to make an application to the court to displace the nearest relative. The court also has the power to displace a nearest relative if it is of the opinion that the nearest relative is not suitable to act.
- Introduction of the Mental Health Review Tribunal (MHRT) to improve patients’ safeguards by providing independent review of the need for the patient’s continued detention the MHA. The MHRT has the power to discharge the patient from treatment.
- ECT safeguards are now in place, to protect people with or without capacity, as well as competent children or adults under 18.
- A patient with capacity who refuses treatment (or has an advance directive in place) may now be overidden.
Deprivation of liberty safeguards
The deprivation of liberty (DoL) safeguards are a further measure of protection carefully introduced into MCA 2005 by MHA 2007. These safeguards are to prevent decisions that deprive vulnerable people of their liberty. They have been developed to protect people, and are formally known as the Bournewood Safeguards, after HL v UK (Bournewood) [2005], in which an autistic man was kept in Bournewood Hospital by doctors against his wishes. The safeguards apply to anyone:
- aged 18 or over;
- who suffers from a mental disorder or disability of the mind, such as dementia or a profound learning disability;
- who lacks the capacity to give informed consent to the arrangements made for their care and/or treatment; and
- for whom deprivation of liberty (within the meaning of Article 5 of the European Convention on Human Rights) is considered after an independent assessment to be a necessary and proportionate response in their best interest, to protect them from harm.
Essentially, the safeguards apply to patients in hospitals and people in care homes registered under the Care Standards Act 2000, whether placed in public or private arrangements.
The government’s main aim is to implement these safeguards from April 2009. It is an extensive process. The safeguards are designed to protect the interests of an extremely vulnerable group of people, predominantly the elderly in care homes or those with severe learning difficulties, to ensure that people can be given the care they need in the least restrictive regimes, to prevent arbitrary decisions that deprive vulnerable people of their liberty, and to provide safeguards for all vulnerable people. It is also a way of providing these people with rights of challenge against any unlawful detention, and of avoiding unnecessary bureaucracy.
Usually people who suffer from a disorder or disability such as dementia or a profound learning disability, and who lack the mental capacity to consent to the care or treatment they need, should be cared for in a way that does not limit their rights or freedom of action. In some cases, people in these vulnerable groups need to be deprived of their liberty for treatment or care to protect them from harm.
The combination of the following factors could be a DoL:
- a locked ward;
- keypad or double door handles;
- bringing back a patient who has wandered;
- benign force being used to take a confused person to hospital;
- placing reasonable limitations on the visiting of a patient by relatives; and
- refusing to let a patient leave without an escort whose job is to support the patient.
One or more of the following would be a DoL:
- restraint (including sedation) being used to take a resisting person to hospital;
- force being used to prevent a person leaving hospital when they specifically try to leave;
- severely restricting access to the patient by relatives and carers;
- the decision to admit being opposed by relatives or carers who live with the patient;
- denying a request by relatives to have the person discharged into their care; and
- staff exercising control over care and movement for a significant period.
Assessment process
There must be two assessors, usually a best interest assessor and a section 12 (Mental Health Act) approved doctor, to carry out six assessments to ascertain whether or not an individual is being deprived of their liberty:
- age assessment;
- mental health assessment;
- mental capacity assessment;
- best interest assessment;
- eligibility assessment; and
- no refusals assessment.
The provisions are not appropriate if that person is younger than 18 and a DoL is not in their best interest, possibly because that person has made an advance directive to refuse treatment. Furthermore, if the detention of the patient conflicts with the decision of an attorney, deputy or Court of Protection then an application for assessment cannot be made.
It is for the hospital or care home managers to identify those patients at risk of DoL, and to request authorisation from the supervisory body. An assessment based on the six criteria above must then be commissioned by that supervisory body.
If any of the six assessments are negative, the request for authorisation is declined. If, on the other hand, all the assessments support authorisation, two other options are available:
- The best interest assessor recommends a period for which DoL should be authorised. Thereafter authorisation is granted and a person’s representative is appointed and implemented by the managing authority.
- The best interest assessor recommends a person to be appointed as representative, and authorisation is implemented by the managing authority in the same way. Thereafter the managing authority may request a review because circumstances change, or the person or their representative may request a review because of their change in circumstances. A review then takes place.
It is essential to point out that the DoL safeguards do not introduce a new system for determining whether a person who lacks capacity to decide the matter for themselves should receive care or treatment. Nor do they provide new powers to take and place a person in a hospital or care home. The safeguards are merely to ensure that there are appropriate measures when it is deemed that a person who lacks the capacity to decide the matter for themselves needs to receive the care or treatment in their best interests in a hospital or care home in circumstances that deprive them of their liberty. The new regulations place duties on hospital and care home managers to take all practical steps to ensure that the person concerned and their representatives understand the implications of any decisions made and how they can apply to the Court of Protection or request a review.
There is also an onus on the managers to ensure that the individual patients’ circumstances are monitored and updated on a regular basis, and any changes may require them to request that any authorisation is reviewed. It is believed that the vast majority of people lacking capacity who are deprived of their liberty will be in hospital (often long term) or in a care home.
Expectations
These new regulations will bring new challenges and possibly further burdens, as well as extra financial implications. However, government funding will be provided to meet the additional cost to the NHS and local authorities of the assessments required by the DoL safeguards. Whether the funding will be adequate to meet the full cost of these assessments and safeguards is impossible to predict at such an early stage of this ongoing, extensive process. It is likely that inconsistencies between local authorities will arise, with some dealing efficiently and effectively with the assessment process and others taking their time to absorb the process and make any changes.
Stephanie Prior is a Partner at Anthony Gold. She specialises in complex personal injury and clinical negligence work, with a particular interest in birth injuries, child abuse claims and fatal accident cases. For further information email Stephanie Prior or call 020 7940 4000.
