Chapter/

paragraph number

Comment

Chapter 1 (Guiding Principles)

The College is concerned that the hierarchy of principles in the Code differs from those in section 118 of the amended Act. Given that the Act is about detention and forced treatment it seems right that the first principle be respect for patients’ past and present wishes, as in the Act, rather than risk reduction (minimising the importance of autonomy) as in the draft revised Code.

We also consider that the wording of the Welsh Code is preferable in that it presents risk reduction in terms of well being and safety of the patient or public safety. The words “minimising the harm of mental disorder” as the opening to the chapter seem to us unnecessary and unhelpful.

1.3

It is difficult to understand the point of the qualification (“having regard to the purpose for which they are imposed”) to this principle of least restriction. While it may be intended to bring in the legitimate concept of proportionality it is so broadly expressed it could be used in a quite different way, to negate the operation of the principle in some circumstances.

1.4

(Respect Principle)

We particularly welcome the inclusion of the respect principle in view of the good evidence to suggest that there is an over representation of patients belonging to Black and Minority Ethnic communities among patients who are detained under Mental Health Act.

However we consider it improper to state that “respect” should only be required when appropriate

1.5

(Participation Principle)

Although we welcome the inclusion of the participation principle, the application of this principle needs to be in the light of clinicians’ duties of confidentiality (e.g. General Medical Council guidelines), especially when involving carers and family members.

Chapter/

paragraph number

Comment

Chapter 2

(Communication)

General comments

This is a helpful and useful chapter. However we would welcome specific mention of urgent and emergency situations, when it is all the more important that a professional with appropriate language skills or professional interpreters to be used in order to enable an appropriate assessment. This is because diagnostic errors (including missing a physical illness) are more likely in patients with limited skills in English in such emergency situations.

If it is not possible to use an interpreter, then we recommend that the reasons for this should be documented as should the grounds for proceeding without an interpreter.

Chapter 2 - General comments

We would suggest that there is a statement that information should not be given to a relative purely as a means of conveying the information to the patient who does not speak English (rather than using a professional interpreter) unless this has been specifically agreed with the patient.

We would also suggest that there is a line (perhaps added onto 2.15) stating everything possible should be done to increase communication with relatives (which may include, if appropriate, the use of professional interpreters)

2.2

This paragraph should be strengthened to better reflect the principles of respect and participation. We suggest the words “and seeking to engage them in decisions about their care” should be added to the penultimate sentence.

2.7

Where patients have concerns about confidentiality when interpreters are employed for assessments within small local communities, these concerns should be recognized and satisfactory alternative arrangements made.

2.7

In chapter 2.7, we suggest that ‘and ethnicity’ should be added after ‘dialect and age’.

2.11

The information provided must take account of communication difficulties, or limited development of communication skills in for example children and young people or people with learning disabilities.

Chapter 3 (Mental disorder)

3.2

‘Mental disorder’ cannot be determined solely by reference to ‘good clinical practice’. Although good clinical practice ought itself to include adoption of internationally accepted diagnostic criteria this should be made explicit in the Code, by reference both to the WHO ICD10 and DSMIV.

It should, of course, be made clear that mere inclusion within ICD10 or DSMIV is not sufficient for detention. Some terms are listed solely for the purpose of classification and are deemed not to be mental disorders, others are legally excluded by the Act, and, of course, the presence of a mental disorder is only one of the necessary criterion for detention.

3.3 Bullet point 1

Organic mental disorders include disorders caused by illnesses arising outside the brain that seriously affect mental functioning – examples would include infections and metabolic disorders giving rise to delirium.

We would therefore suggest including delirium under this bullet point

3.3

Inclusion within ‘recognised conditions which could fall within (the) definition (of mental disorder)’ of ‘mental and behavioural disorders due to psychoactive substances is confusing, given the ‘exclusion’ Section 1(3) within the Act of substance misuse. If what is intended is reference to inclusion of conditions which are secondary to prolonged substance misuse but which are ‘free standing’, then that should be made clear (see also paragraph 3.8).

More generally, use of examples in a list is more likely to be unhelpful than helpful, since it runs the risk of being seen as ‘a significant list’. It would be much better simply to state that any diagnostic category can amount to ‘mental disorder’, unless excluded by the legislation, and accepting that establishing of ‘mental disorder’ is merely the first step towards detention under the Act (since there are other criteria necessarily to be satisfied)

3.4

It is likely that there will be confusion over which brain disorders are also mind disorders. It would be helpful to give some further explanation of what it would be about a particular brain disorder which would make it not a mind disorder. Here some examples, as illustrative of the guidance, might be useful.

3.5

Line 5 is poorly worded. We suggest the line should read, “…circumstances, may not be so in another person”

3.8

This paragraph, unlike the second bullet of paragraph 3.3, makes clear the distinction between intoxication or dependence and disorders secondary to long term dependence (see paragraph 3.3 above)

3.9

This paragraph seems to contradict the exclusion Section 1(3) in that withdrawal syndromes are a core aspect of dependence.

3.10

This paragraph further confuses the advice as regards substances in that it suggests that there can be compulsory treatment of a condition despite that condition not being a basis for detention, so long as there is some other condition which warrants detention. Is it really intended that a condition which is explicitly excluded as a basis for detention can, nevertheless, be compulsorily treated so long as there is some other condition used as a basis for legal detention?

3.13

We welcome the attempt to give guidance on the definitions of ‘abnormally aggressive’ and ‘seriously irresponsible’ behaviour.

Although the guidance goes some way to clarifying the issue, the inclusion of examples would help greatly.

3.16

Detaining people with personality disorder under the unamended Act relied on the ‘treatability’ condition being met. It therefore would be extremely helpful if this small section on personality disorders made reference to how the law has changed, specifically that “appropriate treatment” should be available. Reference should be made to chapter 6 on the appropriate medical treatment test where reference is made to section 145(4) defining the meaning of medical treatment in relation to mental disorder, namely “the purpose of which is to alleviate, or prevent a worsening of, the disorder or one or, more of its symptoms or manifestations”.

We think that clinicians may find paragraph 3.16 misleading if it fails to make reference to this provision of the Act.

Chapter 4 (Assessment)

4.5

It is notable that it is only considered good practice for doctors to discuss with AMHP – it is not designated as mandatory or essential.

The previous Code said that it was essential for at least one doctor to discuss with the applicant and we would suggest that this is retained in the new Code. Not to have such a discussion would constitute very poor practice in our view.

4.10

It would be helpful to make specific reference to advance directives and to the views of the nearest relative under the second bullet point.

4.14

A reference to the definition of capacity to consent in the Mental Capacity Act would be helpful here.

4.17

It is unclear what ‘an explanation in neutral terms’ actually means in practice. Could the description be more explicit?

4.21 – 4.28

It is helpful that the Code does consider in some detail the position of people without capacity and gives some advice at para 4.21-4.28 on when the MCA deprivation of liberty provisions may be more relevant.

However much key information is missing, notably:

1) The statutory requirement for s.12 doctors and AMHPs to have received specific mental capacity training before they can undertake assessments for the deprivation of liberty procedures.

(See draft regulations Mental Capacity (Deprivation of Liberty,:Eligibilty, Selection of Assessors, Assessments, Requests for Standard Authorisations and Disputes about the Place of Ordinary Residence) clause 3(b) -

primary legislation is MHA 2007 Sch7 s.129(3)).

2) What to do in the frequent circumstances where capacity fluctuates.

3) What is the position of a patient who is able under MCA to make a decision, but not retain information for long enough to allow treatment to be completed (see MCA s3(3)).

4) The amended Mental Capacity Act states that the Managing Authority for an NHS hospital:

“if the hospital is vested in a PCT, NHS trust or NHS foundation trust, that trust”

But who is the person in the Trust that will make the application for deprivation of liberty? It would be helpful to have some clear guidance for practitioners on this point.

4.21

Deprivation of liberty safeguards can only be used if appropriately trained assessors are available

4.28 - box 2

It would be helpful if in Box 2 the issue of people with fluctuating capacity or poor memory was specifically addressed. The second paragraph of Box 2 correctly identifies the issue of people with “partial” capacity but there is no guidance of what to do in this situation.

4.32

We do not consider that this explanation of the use of section 2 or section 3 sufficiently highlights the importance of there having been a recent assessment of the patient and that there is no reason to believe that the issues covered in that assessment have significantly changed We support the MHAC in its view that any ‘recent assessment’ that might justify the use of s.3 to admit a patient to hospital should have encompassed the circumstances leading to the need for detention, and not just the nature or degree of the patient’s mental disorder.

4.35

Compliance with this paragraph may have significant resource implications for specialist services which should be drawn to the attention of commissioners of services.

4.45

This paragraph says that the patient should be given the opportunity of speaking to AMHP alone. However information disclosed in such an interview is likely to be disclosed to the assessing doctors, and the patient should be made aware of this.

4.52

This paragraph would benefit from more explanation and perhaps an example

4.57

It would be helpful to clarify that where the nearest relative objects, the nearest relative must be displaced before an application can be made under section 3, and that a patient can continue to be detained under section 2 pending the outcome of an application under section 29 to displace the nearest relative.

4.61

In consulting with ‘other people’, other than with nearest relative, it would be helpful to refer to whether the patient had the capacity to agree to this and in fact did so, as well as their right to respect for privacy under Article 8

4.60 – 4.62

It would be helpful to have specific guidance on consultation with deputies and donees of Lasting Power of Attorney with health and welfare responsibilities.

4.60 – 4.62

These paragraphs refer to consultation with other people. There is no reference to the situation for children and young people and their parents. This is not dealt with in Chapter 39, save in relation to confidentiality (see above comments). Further guidance, specific to children and young people and their parents is required.

4.67

Doctors are required to ‘take the necessary steps to secure a suitable hospital bed’, but this is not only the doctor’s responsibility. The final responsibility lies with Trusts and Commissioners of services, and this should be stated.

4.90 – 4.91

Since approved clinicians who are doctors are automatically approved under section 12, Strategic Health Authorities will need to ensure that the approved clinician training also trains doctors to make assessments under the Act.

Chapter 5 (Emergency Applications)

This chapter seems to have been little changed since current edition of the Code. It is unfortunate that no account has been taken of the implementation of the European Working Time Directive and the enormous practical difficulties in arranging for 2 appropriately qualified medical practitioners to be available at all times in sparsely populated areas (paragraphs 5.8-5.9). There is possible conflict with the resources principle.

Chapter 6 (Appropriate Medical Treatment test)

6.2

We welcome the explicit statement ‘the test is intended to ensure that detention will be clinically appropriate – not simply preventive detention without the offer of treatment’. However, contrasting the offer of medical treatment with preventive detention, rather than the prospect of some scintilla of benefit to the patient (beyond the prevention of further offending), is unhelpful, particularly given the extremely broad definition of what constitutes medical treatment, and what constitutes treatment for mental disorder. The latter two definitions place no effective limit upon the possibility of preventive detention, despite the statement in this paragraph.

It would be helpful to have more guidance as to what can amount to treatment which is ‘clinically appropriate’. Given that the notion of treatment, within healthcare generally, itself implies benefit to the patient (even if it also implies benefit to others also, for example in the case of infectious diseases), it should be made plain that ‘treatment’ can only have a ‘clinically appropriate purpose’ if there is a realistic prospect of ‘some benefit to the patient’

6.3

The requirement of ‘a professional decision’ concerning whether an appropriate package of treatment is available should, again, include the proviso that no professional opinion could find that an appropriate package was present unless the patient is likely themselves to benefit from that package.

6.6

This paragraph effectively allows for preventive detention, by way of determining that ‘appropriate medical treatment’ can be such as to include measures solely to alleviate or prevent a worsening of ‘the symptoms or manifestations’ of the disorder. Since violence can be a manifestation of mental disorder per se, especially in regard to personality disorder, this amounts to sanctioning preventive detention.

Reference to ‘it should always be remembered that not every thought or emotion, or every aspect of the behaviour of a patient suffering from mental disorder will be a manifestation of that disorder’ fails to contradict the implication of the other wording of the paragraph, as described immediately above. Since there is no way, and certainly no guidance is given as to how a clinician, or tribunal, is to determine which aspects of a person’s mental functioning and behaviour are, and which are not manifestations of their mental disorder. Even in regard to psychotic illness it is often difficult to express a reliable and robust view on the issue. In regard to personality disorder the disorder ‘is the person’ and the distinction suggested by this paragraph of the guidance is effectively meaningless. And it is, of course, in regard to personality disorder that there will be most concern about inappropriate detention in hospital, which does effectively amount to preventive detention.

6.9

There is a typographical error in the first line where the seventh word, ‘the’, should be omitted.

The final bullet of the paragraph seems perhaps to ignore the fact that, where a person with mental disorder is not currently convicted of a criminal offence, the ‘alternative’ of ‘a prison sentence’ will not be available, unless the phrase ‘which for some mentally disordered offenders’ is taken to include such individuals not currently convicted of an offence.

6.9

The need for age appropriate accommodation must apply to older people as well as to children and adolescents (even though only the latter is referred to in the Act). The accommodation always must be appropriate to a patient’s needs.

For example, it is wrong that frail elderly man should be coerced into a ward designed for robust people of working age – but equally, a physically healthy man of 66 would be inappropriately cared for in an environment intended for immobile people.

6.12

This paragraph is very confusing to read. So far as it is potentially understandable, it appears to suggest that detention might be justified where there is no benefit to the individual. The College would, as already suggested, oppose such a position.

6.13

We suggest this paragraph is omitted.

The suggestion ‘what is appropriate will vary greatly between patients’ might be taken to imply that there is no real evidence base, originating from studies of aggregates of patients, to mental health care and treatment. This would be incorrect. And where there is no evidence base, what other basis can there be for, specifically, compulsory treatment of a patient?

6.14

Again this paragraph effectively sanctions preventive detention. We suggest it is omitted.

6.16

The statement ‘psychological therapies and other treatments which require the patient’s co-operation to be effective are not inappropriate simply because a patient does not wish to engage with them’ lays the foundation for potentially years of legal detention in the absence of treatment taking place. That, effectively, again amounts to preventive detention in the absence of treatment. We suggest this paragraph is omitted.

Chapter 7 (Conflicts of Interest)

7.6

7.6 does not make reference to the distinction between parts 2 and 3 of the Act. Where a patient is admitted under part 3 of the Act the two doctors may, in our understanding, be from the same hospital.

7.7

Where admission to an independent hospital is being considered, neither doctor (for purposes of medical recommendations) should be on the staff of that hospital. This also applies in current code of practice. It would be helpful if the code were clear on whether this applies to a further detention once admitted (eg admitted on Section 2 and then decision to apply for Section 3).

7.10

7.10 has a typing error and should read “none of the assessors should be in a direct line management relationship”

Chapter 8

(Nearest Relative)

The main change here is the possibility that patients will have agreed a lasting power of attorney for personal welfare or have an appointed deputy (under the MHA) prior to a decision to admit to hospital. This guidance suggests that even where this applies there may a different person identified as the nearest relative and correctly states that there could be occasions when the nearest relative disagrees with an attorney or deputy (8.23)

It would seem more logical and less open to dispute to state that where a patient has agreed a lasting power of attorney for personal welfare or has an appointed deputy, then this person should automatically carry the rights of the nearest relative if the Mental Health Act is being considered.

8.3

Paragraph 8.3 should state that interpreters should be used wherever they are needed during the process of confirming the nearest relative or where advising a patient of their rights.

8.9

It is not clear what form any written authority should take and further guidance would be helpful

8.10

The patient can now apply to remove the Nearest Relative. If there is a minimum age limit for the applicant this should be stated.

Chapter 9 (Places of Safety)

It would be helpful if the text on p60 and the scenario on p58 there is a reference to the requirement for there to be an Appropriate Adult under the PACE procedures, if a minor or a person with mental disorder is detained by the police.

9.5

We recommend that it should be considered good practice for the doctor involved in executing the s135 warrant to be approved under section 12.

9.9

Re s135: It would aid practitioners to make clear that there is no requirement to warn the patient when they are coming to execute a warrant. This is such a common area of misunderstanding by magistrates in practice that it should be specifically mentioned here. Alerting the patient to the assessment may mean that they leave the property and risk putting themselves and others at greater risk.

9.15

First bullet point: It should be made clear that the provision of accommodation in health care settings should provide “safe” accommodation for all but the most severely disturbed, to minimise the use of the Police Station as the Place of Safety. Such health care settings should be staffed accordingly.

Second bullet point: To add “further assessment and” before treatment as many will require further assessment, for example under section 2.

9.18

It would be helpful for the Code to offer guidance as to the choice of Place of Safety as there are clear principles that should be applied. There should be an expectation that an acute psychiatric facility will be used unless the person is so disturbed that they could not be safely managed or their physical health requires urgent assessment and management. Transfers should occur for the same reason or to increase the likelihood that the assessment will be more effective, (for example if it facilitates involvement of the local mental health team or carer).

9.20

It would be helpful for the sake of clarity to give examples of alternative places of safety other than police stations if the first choice is not immediately available.

9.20

In the second line we believe the second ‘if’ was intended to be ‘is’.

9.22

Second bullet point: We think that a ward may sometimes be appropriate as a place of safety to allow ongoing assessment and it is important that the person is admitted so that they get appropriate care. The use of the word ‘formal’ in this context is confusing because it may be taken to mean admission under the Act, which would not be the case for someone being assessed under section 135 or 136.

Third bullet point: The FME may not be approved under section 12 of the Act and similarly in health care settings the first assessment may be carried out by a trainee psychiatrist without section 12 approval. In those circumstances, given their powers to discharge from the section 136, before the AMHP arrives, (see 9.29) we think that they should be expected to discuss the case with a doctor with section 12 approval or the AMHP. This would be in line with 9.25.

9.25

We would suggest forensic physicians to be encouraged to seek approval under section 12 of the MHA in order to fully carry out their role, and recommend specific mention of this in this paragraph.

9.28

The requirement for an age appropriate assessment should apply to older people as well as adolescents

9.31

It would be helpful to clarify whether a patient be moved more than once and if so how will this be monitored?

9.34

We suggest that the Local Policy must stipulate who ultimately will decide if a person should be transferred to another place of safety should there be a disagreement.

9.38

The policy needs to specify who will collect information for monitoring purposes. We would expect this would usually be the local Mental Health Act Office as they collect all the other information regarding other detentions under the Act. This would then involve them collecting data on those who might not be assessed by a staff member of that Trust. It must be clear which office is responsible for a given area / Place of Safety.

9.41

The words ‘away from’ do not make sense and appear to be a drafting error.

9.49

The word ‘as’ in the third line does not make sense and appears to be a drafting error.

9.50

Second line. We recommend changing “should not” to “cannot” to make it absolutely clear that this would be highly inappropriate use of the Act.

9.52

The guidance is welcomed. However experience of recalling patients under Section 25a suggests this is likely to be a problem area despite local protocols. Also, there are circumstances where it may not be possible to ascertain whether a patient is subject to SCT.

Chapter 10 (Conveyance of patients)

10.3 - 10.4

Generally if it is an emergency this will be the responsibility of the NHS Ambulance Service to respond and provide appropriate and suitable transport within the Department of Health’s response time standards. A call from a police officer will be treated as an emergency. If the person needs to be transferred from the Place of Safety, the person requesting the ambulance will agree the appropriate time frame with the ambulance service. If it is not an emergency, it will be the responsibility of either the NHS Ambulance Service who may hold the non-emergency contract or that of commercial or private providers who have been sub-contracted by the local NHS Acute Trusts to provide non emergency and routine patient transport.

For a number of reasons it is possible that such commercial or private providers may not be able to or may be unwilling to convey Section 136 patients. This may be due to the way in which the service level agreements have been developed which may omit the transportation of patients with mental health issues. If this is the case it will be the responsibility of the NHS Ambulance Service to advise and/or agree how best to arrange the transport request to ensure the patient is transported to or from the place of safety.

It would be helpful for the Code to make professionals aware of the Department of Health response time standards which are:

                        • Category A – Immediately life threatening (75 per cent of calls to be responded to within eight minutes from the time of call)

                        • Category B – Serious (95 per cent of calls to be responded to within 14 minutes for urban ambulance services and 95 per cent of calls to be responded to within 19 minutes for rural and/or mixed ambulance services)

                        • Category C – Not life threatening or serious (Standards to be agreed locally with the Strategic Health Authority (SHA) and Primary Care Trusts (PCTs). The exact timeframe within this category must be communicated and agreed with the Ambulance Service Control Room staff

• Any conveyance required in over four hours time is classified as ‘routine’ and the transportation of the patient will need to be agreed and or arranged with the appropriate provider.

10.11

Given the risks associated with sedation in these circumstances, general guidance should be provided on the limited circumstances when sedating patients prior to conveyance is appropriate.

10.15

The AMHP will need to speak to the ambulance service before they can give the hospital guidance as to the likely time of arrival and it would be helpful for the Code to reflect this.

Chapter 11 (Holding powers)

11.6

Trusts should be explicitly required to make clear arrangements for who receives holding power documents out of hours.

11.7

The Code outlines who would not be described as an ‘informal in-patient’. This list of exemptions fails to include those detained under part 3 (e.g. s.37, s.38) who would also not be considered as an ‘informal in-patient’.

11.2-11.9

It would be helpful to have guidance as to when it would be appropriate to invoke MCA deprivation of liberty powers and when s5(2) should be used.

11.15 – 11.22

On page 68, the Code discusses junior doctors being nominated deputies and gives some guidance about their training. We recommend that the term ‘junior doctor’ be removed from the Code altogether and replaced with ‘a registered medical practitioner who is not an approved clinician’ paras 11.17, and 11.18 and ‘’the registered medical practitioner’ para 11.21. This is so non-consultant career grade doctors (e.g. staff grade practitioners) would not be unintentionally excluded.

This section is also silent on who else could be nominated deputies. It would be helpful to clarify here that they need to be approved clinicians.

11.23

It would be helpful to clarify the AMHP should make the decision about whether the application should be made.

Chapter 12 (Receipt and scrutiny of documents) – general comments

When forms are not immediately available they are sometimes transmitted by fax. Guidance on this would be helpful.

12.11

Paragraph 12.11, on Page 74, is somewhat ambiguous. It could be read as saying that a photocopy of the form filled in by the Approved Mental Health Professional (AMHP)/doctor is acceptable as authority to detain, which it is not. It should be made clear that this only relates to photocopies of blank forms being filled in by AMHPs and doctors.

12.14

Presumably, an error in a SCT documents would also invalidate the authority to impose conditions on those subject to SCT. This needs to be explicitly mentioned in the Code.

Chapter 13

(Allocating a responsible clinician)

– general comments

The proposals in this chapter represent a major shift in clinical practice, and in general we would welcome more detailed guidance. We would like to emphasise the importance of continuity of care, and suggest that frequent changes of responsible clinician are not in the patient’s best interests.

It has been customary for a patient with a serious mental disorder to have a single Responsible Medical Officer who had overall charge of treatment throughout the course of their disorder. In this way the RMO had an intimate knowledge of the patient, their family, friends, social circumstances, wishes, aptitudes and preferences, as well as their response to differing forms of therapy. Although the processes of detention and compulsion sometimes place a strain on the relationship, the process of going through a long illness together forged a strong and constructive therapeutic alliance.

We are concerned that the processes in Chapter 13 may mean frequent changes of responsible clinician, which will risk a loss of strategic direction, with patients and practitioners failing to work together and achieve a therapeutic alliance.

Chapter 13 – general comments

This chapter mentions treatment needs several times, but fails to mention assessment.

As well as treatment needs, patients are very much in need of assessment, particularly at the beginning of admissions, and especially if detained for assessment under section 2.

Assessment skills are different to treatment skills, and a holistic and broad minded approach is often most helpful in determining future needs for treatment and other interventions. Indeed, life threatening physical causes of psychiatric symptoms may be missed if they are not specifically looked for.

As such, we think that skills in assessment should be a factor in determining the responsible clinician, and reference must be made to this in paragraphs 13.2-13.6.

Chapter 13 (Allocating a responsible clinician)

- general comments

It would be very helpful if this chapter contained information or guidance on dealing with situations where the most appropriate responsible clinician is actively rejected by the person and therefore has no therapeutic relationship with them.

13.5

States that the choice of responsible clinician should be based on the individual needs of the patient concerned. The example cited is of a patient where psychological therapies are central to their treatment. This is controversial because many psychologists believe that therapists should not be directly linked with detention, as there would be a confusion of roles that could erode trust. Further, many psychological therapies cannot be effectively provided under conditions of compulsion, and to be effective require the active collaboration of the patient. There is a danger that compliance with therapy would be too highly weighted compared with other factors in the decision to discharge from section. The ability of the detained patient to form a close relationship with the therapist might also become too closely linked with the decision whether or not to discharge.

13.7

States that the appropriateness of the responsible clinician is kept under review by the hospital managers. It is not clear from the wording whether they just monitor, make suggestions, or have the power to change the responsible clinician.

13.9

In accordance with Sections 58(3) and 63 of the Mental Health Act 2007, Paragraph 13.9, should state that where the responsible clinician is not a prescriber and the patient is receiving medication then the clinician in charge of the medication should be an Approved Clinician.

13.11

In 13.11, where NHS Trusts and PCTs can authorise a committee or sub-committee as one from which people may be drawn to exercise the manager’ power of discharge, this needs to give consideration to ethnicity and gender so as to respond adequately to other communities’ population distribution.

Chapter 14 (Responses to disturbed behaviour)

14.37

In this paragraph reference is made to a doctor being “quickly available” to attend to an alert by staff members. The definition of “quickly available” is open to some interpretation and it would be helpful to clarify whether this includes having doctors on-call who are not resident in the hospital.

14.42 – 44

It is not uncommon for some restraint to be used to treat patients with physical illnesses who develop delirium or other organic mental disorders Chapter 3 above). The Draft Deprivation of Liberty Code of Practice (para 2.17-8) states that “a person who objects to mental health treatment is ineligible for an authorisation under the deprivation of liberty safeguards. If it is necessary to detain them, use of the Mental Health Act 1983 should be considered.”

We recognise that in some instances it may be possible to justify a degree of restraint under the provisions of s.5 of the Mental Capacity Act, it would be helpful for both the Codes to offer some guidance about the limits to s.5 MCA restraint.

14.57

Paragraph 14.57 is more or less a repeat of 14.55 and one of the paragraphs should be deleted

14.59

The first bullet point on 14.59 is missing the number of consecutive hours.

14.59/60

Paragraph 14.59 and 14.60 should be merged, since 14.59 is an incomplete sentence

Chapter 15 (Physical Security)

It would be helpful if the Code could address the common practice of locking wards for the frail elderly to ensure the physical safety of patients and their possessions on these wards.

15.4

The Policy on locked wards should also be in languages that are common in the local area.

Chapter 16 (Advance Decisions and Preferences)

– General Comments

There should be a statement in this saying that the assessments must note patients cultural and language.

16.2

The last sentence of this paragraph reads “the Act provides authority at section 63 and section 58 to override an advance decision that treatment would not require the patients consent if they had the capacity to give it”. We find this sentence difficult to follow.

Trusts should be required to have a clear policy on how advance decisions to refuse treatment or advance statements of wishes and feelings can be recorded and easily accessed as required.

Chapter 17 (confidentiality)

17.4

It would be helpful to add that when considering the disclosure of confidential information and seeking consent particular care to be given to patients from black and other ethnic minority communities who are culturally different and who have difficult attitude toward mental illness and compulsory detention due to different cultural and social values. Similarly, attention needs to be paid to those patients whose first language is not English.

17.4

The words ‘where possible’ should be added to the sentence ‘before considering disclosure of confidential information the individuals consent should always be sought’.

17.7

It would be very helpful to specify what constituted ‘serious crime’

17.11

It would be helpful to include information sharing requirements under MAPPA, local authority Community Safety Partnerships, and Safeguarding Children in this paragraph.

Multiagency information sharing at CPA meetings should generally be with the patient’s consent and the guidance should reflect this.

17.11-17.13

Sharing and disclosure of information should be culturally sensitive and it would be helpful if these paragraphs mentioned this.

17.14

There is reference in this section to encouraging patients to share information with carers or victims or families of victims. It should be made clear that the Domestic Violence, Crime and Victims Act 2004 does not in any way provide for breaches of clinical confidentiality.

Reference is made to the victims of crimes having rights to information under the Domestic Violence, Crime and Victims Act 2004. It should be made clear that it is the role of the victim liaison officer, Mental Health Review Tribunal and Home Office to work together to inform victims (rather than the hospital, for example).

Chapter 18 (Information for patients and Nearest Relatives)

18.2

Where hospital managers are required to take steps to inform patients who are detained under the Act, or are on SCT, of important information etc., they must use interpreters where needed.

Patients with learning disabilities should be provided the information in a form accessible to them.

18.4

Where a copy of the detention application should be made available to the patient, this should always be translated as appropriate.

Chapter 19 (Independent Advocacy)

– general comments

It would be helpful to include guidance on which patients ‘qualify’ for an IMHA

19.4

Where a patient may request the support of an IMHA, as set out in 19.4, the professionals must take in to account patient’s wishes for gender, ethnicity, and languages.

The words ‘not a specific advocate’ appear to be a drafting error and should be deleted.

19.12

19.12 gives the IMHA advocate the right, where a patient has consented, to ‘access and inspect a patient’s medical records’. This section should state that this is not full medical records but only those relating to detentions and treatments and after-care services.

Chapter 21 (Privacy and Security)

21.18

We suggest that an additional bullet point be added:

                        • Staff conducting searches should be aware of religious and cultural significance of the personal belongings of patients and use discretion in handling those belongings

Chapter 22 (Leave of Absence)

The need to grant leave (except in an emergency) to permit a detained patient to be transferred to receive emergency medical treatment in another hospital should be made explicit.

Where a mental health trust is on the same campus as other NHS facilities it is sometimes recommended that leave of absence has to be granted to permit a detained patient to visit the hospital shop etc. This would appear to be beyond the requirements of the Act but clarification would be helpful.

22.5

The necessity to consider SCT only applies to patients detained under section 3 and section 37.

22.8

We suggest that the words ‘doctor or’ should be omitted as they imply that the responsible clinician is a doctor.

22.1

See comment on paragraph 22.5.

Chapter 24 (Treatment plans)

– general comments

This Chapter is very short and also short on guidance, particularly given that Chapter 6, and the Sections of the Act to which it refers, is so wide in what is sanctioned as coming within ‘appropriate medical treatment’. We would request that a much fuller Chapter on the topic be included within the Code.

The principle of patient participation might be used in 24.5 to add that where a patient has indicated a preference for a treatment that will not be provided, the treatment and the reasons for not providing it should be recorded.

Chapter 25 (Treatment regulated by the Act)

– general comments

Although legislation has not yet been introduced to compel this, it should be recorded in the Code that it would be good practice for ECT only to be given to detained patients in a clinic which has been accredited by the ECT Accreditation Service (ECTAS).

Chapter 25 – general comments

It is unfortunate that the very useful summary of case law on consent available in the previous COP has been omitted from Ch 25. Trusts are required by HCC to demonstrate assurance that staff are aware of consent issues. The previous COP was very helpful in facilitating this.

We found this chapter is very difficult to follow even if one has a good grasp of the law on consent. This has serious negative implications for training.

25.7

Paragraph 25.7 is misleading:

Many physical disorders (epilepsy, hypoglycaemia, hypercalcaemia, supraventricular tachycardia etc) directly cause mental disorder. In such cases treatment of the physical disorder is not ancillary to the treatment of the mental disorder, but is the definitive treatment for the mental disorder.

It would also be appropriate to include reference to treating physical disorders which exacerbate the symptoms of mental disorder (eg treating gastro-oesophageal reflux to prevent behaviour disturbance in people with learning disability).

25.10

It would be helpful to clarify this with an example, the most common situation being a medical approved clinician being in charge of treatment under Part 4 or 4A, but with a responsible clinician from another profession.

25.13

Para 25.13 states:

“An approved clinician is not required to be in charge of a treatment that a patient has validly consented to”.

We do not think this is correct for a section 58 or 58A treatment.

25.23

Paragraph 25.23 is not easy to understand, particularly the second sentence. Who are “themselves”, the patient or the proxy?

25.36

It should be noted in paragraph 25.36 that capacity to consent can fluctuate as well as wishes.

25.41

Managers should enquire of the Office of the Public Guardian about health and welfare LPAs, deputies and court decisions in these circumstances.

25.43

There is insufficient guidance on ECT for children and young people. The Draft Code suggests that for a 16 or 17 year old, ECT could be provided in accordance with the Mental Capacity Act 2005. However there is no explanation of the situation for those under 16. Is it envisaged that a person with parental responsibility could authorise ECT? Or is this considered to be outside the zone of parental responsibility and therefore a court would need to authorise such treatment?

Sub-sections 58A(4) and 58A(5) refer to patients who are capable or incapable of understanding the nature, purpose and likely effects of the treatment. Presumably the test for capacity will be as set out in the Mental Capacity Act 2005 for those over 16. If so, will this also apply to those under 16?

25.50-51

Section 64G is described. It is intended for SCT patients who cannot consent but require treatment by force in the community. The circumstances in which it can be used are described as exceptional. There appears to be no explanation of why it should be restricted to SCT patients as opposed to any patient in an emergency.

25.59

Cross reference is made here to Chapter 39 but there is very little information about Supervised Community Treatment (SCT) in Chapter 39. Suggest this paragraph is more explicit on what part of Chapter 39 the reader is being referred to – alternatively, if the reader is being referred to Chapter 39 for general information only, add ‘For further information on the issues relating to the treatment and care of children and young people with mental disorder, see Chapter 39’.

25.62

25.62 states that ‘A certificate given by an approved clinician will lapse if that approved clinician is no longer in charge of the treatment in question. The new approved clinician in charge of the treatment will need to issue a new certificate if necessary.’

What about the situation regarding study leave, and holidays? Indeed it may be deemed necessary for nights and weekends (some Trusts state that the duty Consultant is the RMO for all detained patients out-of-hours). It is both impractical and inappropriate for a RC/AC of short duration to issue a new certificate (if only because it sometimes takes time and knowledge of the patient to assess if the patient is capable of capacitous consent). This needs to be addressed in this paragraph.

Chapter 26 (SOADs)

26.12

It will not always be possible to ensure that an SCT patient will meet up with a SOAD at a mutually agreed place or that a detained patient will agree to be interviewed by a SOAD on the ward. This should be recognized within the guidance.

It would also be helpful to cross reference paragraph 28.35, saying that if an SCT patient avoided a meeting with a SOAD, this would be grounds for recall.

26.13

Managers should also seek information from the Office of the Public Guardian as to whether an LPA, deputy or Court of Protection ruling exists, prior to the SOAD’s visit.

26.13

It would be helpful if the Code recognized the legitimacy of the current practice of telephone conversations between professionals and the SOAD.

26.13

In this paragraph there is no specific reference as to whether the SOAD can have access to the full medical notes – clarification on this issue would be helpful.

Chapter 27 (Psychological treatments)

27.2

Reference to ‘a holistic approach, which looks at the needs of individuals rather than simply trying to treat symptoms and labelling people with a diagnosis’ sounds liberal and sensible. However, given that the Act sanctions compulsory detention in hospital, plus compulsory treatment both in hospital and in the community, looked at otherwise this paragraph in the Code releases clinicians and tribunals from medical and scientific rigour, so as to allow compulsion of patients on ‘individual’ grounds and in the absence of an aggregate evidence base for treatment. This must be the case given that evidence based mental health care, to which the government is apparently committed, depends for its substance upon studies of groups of patients, and that requires categorisation of patients, and even diagnostic classification on occasions.

The paragraph should, in the College’s view, begin with a statement which makes reference to the importance of diagnostic rigour and evidence based mental health care, based upon aggregate data, but should then ‘modify’ the statement by reference to the importance of not solely treating patients based upon categorisation but also treating patients as individuals.

Chapter 28 (Supervised Community Treatment)

– general comments

The Draft Code provides insufficient guidance on how the SCT provisions will apply in practice, in particular, in relation to the provision of treatment without the child or young person’s consent.

For example, sections 64D and 64F of the Mental Health Act 2007 provide that non-emergency treatment can be given to community patients who lack capacity/competence irrespective of the patient’s objection if it is not necessary to use force against the patient in order to give the treatment. We suggest that the Draft Code provides guidance on the scope of these sections, in particular what action would constitute ‘force’ and therefore not be permitted. It should also provide guidance on when emergency treatment in the community (where force may be used) would be appropriate in relation to children and young people – an example here would be useful.

28.3

As Supervised Community Treatment does not yet exist, this assertion is not appropriate. It describes an aspiration for SCT.

28.6

The specific needs of older people for age appropriate services must also be borne in mind

28.7

This contains a confusing way of putting things, in that it describes ‘assessment for SCT’ as needing to include consideration of ‘what risk there would be of the patient’s condition if he were not detained in hospital’. The College assumes that this reference to the appropriateness of continued detention in hospital is included as being a factor in determining whether the patient could be managed in the community per se. But the paragraph, indeed the Chapter, is concerned not with community treatment per se but with compelled community treatment. The paragraph therefore seems to need substantial re-drafting.

28.8

Reference to the relevance of the patient’s ‘insight’ presumably is meant to imply that SCT might be made appropriate by lack of insight on the part of the patient. However, it should perhaps be made clear that the presence of insight would militate against SCT. Further, insight might well coexist in a patient with refusal of medication for entirely rational reasons, for example concern about the long term potential side effects of such medication (such as tardive dyskinesia).

More generally, the Code is heavily biased towards factors that would indicate the need for SCT, rather than also identifying those factors which would point to the opposite conclusion (see also the College’s comment in regard to the paucity of guidance in the Code in regard to discharge from SCT, below).

28.10

The role of the AMHP is described as including consideration of ‘the wider social context’. However, this is then apparently limited by the example given in that it refers solely to consideration of the impact of any decision concerning SCT upon the patient’s family, plus employment related issue. This restricts what has always been the role of the ASW, which is to take a social perspective ‘on behalf of the patient’, that is, a perspective beyond the medical one. The Code should make it clear that this is also still the role of the AMPH.

28.12

The College suggests that the word ‘may’ should be substituted for the word ‘must’ in this paragraph.

28.14

It would be helpful to have more explicit reference to the possibility that the professionals involved in the community will be different to those in hospital as this is the case in many services organised around ‘functional teams’.

28.19

The list of purposes for which conditions may be made is clear, but the limits on what conditions can be made and how they might interact with civil liberties is not. An example is given in the guidance about conditions involving the avoidance of illegal drugs when they are a risk factor and the avoidance of high risk situations. There is guidance about conditions involving where the patient should live and allowing access for medical examination, but no guidance about the limits of powers to impose other conditions e.g. would the responsible clinician be able to impose a curfew, or refuse to allow the patient to visit his friend’s house when the friend was known to take drugs. The College doubts that this is the intention of the legislation, and more specific guidance is needed

28.22

This paragraph implies that only team leaders will be able to become responsible clinicians? This seems at variance with the content of Chapter 13.

28.31

As with the later paragraphs dealing with discharge from SCT, this paragraph is inadequate in making clear what are the criteria for discharge. If they are, as is presumed, that the criteria for making the SCT order are no longer met then that should be made explicit and there should be as much guidance about discharge from SCT as there is about engaging SCT. There is a great risk that SCT will be a ‘bath’ which has large ‘taps’ and a very small ‘plughole’. The parts of the Code dealing with SCT should be drafted with this major concern in mind.

28.33

This suggests that recall could occur with ‘high risk behaviour’, including in the absence of ‘evidence of relapse’, by virtue of the word ‘or’ in the sentence. It is at variance with paragraph 28.34. There must be evidence of the patient needing treatment for mental disorder in hospital for recall to be justified.

28.44

The College suggests that SCT should not be referred to as ‘treatment’, as is done in this paragraph. SCT is not a medical intervention but a legal one. We suggest removing the word ‘treatment’.

28.43

Once the patient is recalled to hospital “the clinical team will need to assess their condition, provide necessary treatment and determine next steps”. The patient may return to the community once treatment has been given or may need a longer period of assessment or treatment. The responsible clinician has a maximum of 72 hrs to determine what should happen next.

This section is likely to lead to great confusion about the status of patients during this period and about who is responsible for their care. Are they to be formally admitted to hospital (this has a legal status separate from the Mental Health Act)? If so their care may transfer to a different clinical team and it will be unclear who is responsible for the decision about revoking the SCT.

28.45-28.50

Revoking SCT and discharging SCT patients. Liaison between hospital and community teams is mentioned briefly but there should be specific mention of a requirement for liaison and agreement between two responsible clinicians, one in the community and one on the ward, a common arrangement which needs to be addressed formally within the guidance. Accountability needs to be established and a procedure for disagreements.

28.48-28.49

In the College’s view, this section of the Code, on ‘discharge from SCT’, is wholly inadequate, particularly bearing in mind the risk of SCT for individual patients becoming ‘almost permanent’ (see 28.31 above concerning ‘the ever filling bath’).

We would welcome much more detailed guidance.

Chapter 29 (Guardianship)

29.18

This appears to be at variance with para 3.61 of the draft DoL code of practice.

Chapter 30 (Aftercare) – general comments

This chapter could make greater reference to the participation of the patient and to his or her wishes or feelings. Paragraphs 30.5,30.9,30.13,30.18 are all possible places to strengthen the chapter. “The patients full participation in the decisions about after care should be promoted and supported” would be a possible sentence to use.

30.7

We support the approach taken in this paragraph which is an improvement on the current Code.

30.19

We recommend that eligibility to s.117 aftercare should end if the mental disorder remits and the patient is no longer receiving treatment.

Chapter 31 (Guardianship, Leave of Absence or SCT?)

31.4

We think the wording should be ‘inpatient treatment may still be required’. If trial leave goes well, it may prove that there is no need for further in-patient treatment.

31.6

We would also suggest that the power to require patients under guardianship to attend for treatment (eg to a rehabilitation day centre) may be a pointer to its use.

Chapter 32 (Renewal and Discharge)

32.6

It is not our understanding that there should be recourse to more than one professional in the team to decide whether the person’s detention should be renewed. In order to place a person on a CTO, or renew a CTO, the responsible clinician must also have the agreement of another professional (an AMHP) but the Code makes clear that it would not be proper to approach a second AMHP if the first were to disagree. In our view the notion of actively seeking to find a professional who will agree with the RC is as improper for renewal as it would be for the initial detention.

There is no suggestion under the sections of the Code on resolving disagreements (para 4.79,4.80) that seeking to use a different AMHP or doctor would be acceptable. It is worth noting as well that the Code would not support nor the MHAC permit seeking an alternative SOAD on the grounds that the first SOAD disagreed with the responsible clinician.

Chapter 33 (Hospital Managers)

33.12

Establishing different rules for managers in NHS Foundation trusts as opposed to NHS trusts is confusing. Is there a better way round this?

Chapter 35 (Mental Health Review Tribunal) – general comments

It is very confusing to use the term ‘medical report’ when these may be provided by a responsible clinician who is not a doctor. We suggest the term ‘responsible clinician’s report’ could be used instead.

It would be helpful to clarify whether IMHAs can attend the hearings

35.20

The sending of reports by email must be done in a secure way. This should be added to the guidance.

Chapter 36

(Part 3 Patients) – general comments

The references to ‘offender’ throughout the Chapter should be checked to ensure that this term is not used except for those who are convicted of an offence. Person or defendant may be used instead.

36.4

This paragraph should be expanded to include the way in which the principles might apply to Part III patients, including their right to express their views in relation to diversion and to treatment .

36.8

36.8 is very brief and could include more relevant information than the obvious fact of identifying themselves – for instance they should fully explain the options before the court.

36.9

In 36.9 it is suggested that reports for court should be prepared by a doctor who has previously treated the patient. This is not always appropriate. For example, where an individual commits an offence as a consequence of relapse caused by poor treatment by the treating doctor, it would be a potential conflict of interest for that doctor to advise the court.

36.14

36.14 might include reference to cultural issues in a separate bullet point.

36.16

Against the third bullet reference is made to consideration of whether the defendant, albeit he is destined for hospital from court, should be made the subject of a ‘hospital direction’, alongside imposition of a prison sentence, given that the court can do so ‘in some circumstances’. However, the College believes that, when the ‘hospital and limitation direction’ was introduced into law through the Crime (Sentences) Act 1997 it was done without specific sentencing guidelines, that is, guidelines indicating when it might be appropriate to impose not a ‘hospital order’ but a ‘hospital and limitation direction’. The College is not aware of any such guidelines having been subsequently issued. Hence, the phrase ‘in some circumstances’ (above) remains obscure in terms of what circumstances.

Further, the College understands that a psychiatrist cannot recommend a hospital direction but can only recommend a hospital order and leave it for the trial judge to determine whether he should follow that recommendation or should, ‘in some circumstances’ which remain undefined, reject the recommendation and impose, instead, a hospital and limitation direction (see generally, Eastman NLG, Peay J, (1998) Sentencing Psychopaths: Is the 'Hospital and Limitations Direction' an Ill-Considered Hybrid?, Criminal Law Review, pp 93 – 108).

The situation remains, in both respects, unsatisfactory.

36.19

The term “sentence” to describe a period of detention for medical treatment is inappropriate.

36.20

Seeking advice from the NHS forensic mental health services when a suitable bed cannot be identified will only be appropriate in relation to a small proportion of defendants charged or convicted of serious offences. A better alternative would be to identify the local NHS mental health service which serves the defendant’s locality.

It should also be reiterated here that, under Section 39 it is ultimately the responsibility of the PCT to explain why a bed cannot be found.

36.24

36.24, for patients under section 35 it is proposed to send them back to court with an appropriate recommendation presumably for section 36 but magistrates do not have that power.

Chapter 37 (People with

Paragraph 37.2 outlines how the core principles can be applied, through the example of a 22 year old man called Albert.

Learning Disabilities, Autistic Spectrum Disorders)

37.2

We are concerned in the example by the absence in the ‘Participation principle’ of any attempt to ascertain Albert’s view about his care and treatment, in addition to those of his family and carers.

It may be that ascertaining his views requires skilled communicators, but this does not make it any less of an important part of the participation principle.

37.20

The phrase at the end of this paragraph ‘or treated inappropriately with psychopharmacological agents’ does not make sense in this context and its inclusion appears to be a drafting error.

Chapter 38 (People with personality disorder)

– general comments

Much of this Chapter seems inappropriate as aspects of a Code of Practice attaching to an statute concerned solely and specifically with criteria for, and the practice of compulsory mental health care. Although description of clinical services and treatment approaches may well be usefully available to clinicians having to assess and treat individuals with personality disorder, including under legal compulsion, it is not clear to the College why it is thought to include such description in the Code to the Act.

What is relevant to include is guidance on specific issues concerning compulsion of those with personality disorder under the Act, aimed at expanding on the guidance given elsewhere more generically within the Code. It would be helpful for example to give guidance on how the appropriate treatment test can be applied to people with personality disorder (see our comments on Chapter 6).

38.2

In this paragraph reference should be made to ‘patient’ not ‘client’ in order to be consistent with other chapters of the Code.

The last sentence “These developments and the application of the Act form a significant break with the past” could usefully be deleted, as it does not sit well in a legal document.

38.7

The final word in this paragraph should be ‘patient’ not ‘client’.

38.8

It is incorrect to suggest that identification of an individual with personality disorder is a matter of clinical judgement, guided by current professional practice and subject to legal requirements’ (emphasis added). Identification of mental disorder is solely a clinical professional activity and is not guided by legal requirements. Legal definition merely relates to legal detention.

38.10

This paragraph would be improved by replacing ‘without’ by ‘in the absence of’.

38.14-5

Some reference to the resources principle would be appropriate, if treatment of these disorders is likely to need to be intense and long term and of uncertain benefit.

38.19

This suggests that, in the absence of the expertise that the Code says is crucial in operating the Act in relation to those with personality disorder, the assumption should be made that an individual who presents a risk should be that the terms required for legal detention are in any event met.

We think this is only acceptable when detention for assessment is limited to 28 days, for example under section 2. This paragraph should be amended to reflect this.

Chapter 39 – general comments

Over emphasis on court intervention

On various occasions practitioners are advised to seek a court declaration or decision (see, for example, paragraphs 39.30, 39.33, 39.36 and 39.38). This contrasts with the reference in the 1999 Code to two specific situations where the ‘assistance of the court may be sought.’ (See paragraph 31.13) It needs to be recognised that identifying areas of uncertainty where the intervention of the court may be required tends to make clinicians and other professionals defensive and uncertain. This then can affect the child or young person by delaying the delivery of care and treatment. While areas of uncertainty should be pointed out, some of the areas of uncertainty identified in the Draft Code could be resolved by providing clearer guidance on the existing law.

Chapter 39 – general comments

Unclear links between the Mental Capacity Act 2005 and the Mental Health Act 1983.

The links between the Mental Capacity Act 2005 and the Mental Health Act 1983 are not explained as clearly as they could be; also the guidance contained in the Mental Capacity Act Code (published 2007) does not always match the guidance in the Draft Code. For example paragraph 12.14 of the Mental Capacity Act Code states that:

‘If a young person has capacity to agree to treatment, their decision to consent must be respected. Difficult issues can arise if a young person has legal and mental capacity and refuses consent – especially if a person with parental responsibility wishes to give consent on the young person’s behalf. The Family Division of the High Court can hear cases where there is disagreement.’

The Draft Code (paragraph 39.25) states:

‘…However, unlike adults, the refusal of a competent person aged 16 – 17 may in certain circumstances be over-ridden by either a person with parental responsibility or a court…’

In general we found the analysis of the application of the Mental Capacity Act 2005 to children and young people contained in the Mental Capacity Act Code clearer than the analysis in the Draft Code. We suggest that further work is undertaken to ensure that the text in the Draft Code replicates the guidance in the Mental Capacity Act Code.

There also appears to be an imbalance in the Draft Code between the amount of information provided about the Mental Capacity Act 2005 compared with the Children Act 1989

Chapter 39 – general comments

In contrast to the 1999 Code which simply stated ‘children’s rights to confidentiality should be strictly observed’ (paragraph 31.21), the Draft Code (paragraph 39.55) states that ‘all children and young people have a right to confidentiality’. It then adds:

‘However, where a competent young person or child is refusing treatment for a life threatening condition, the duty of care would require confidentiality to be breached to the extent of informing those with parental responsibility who might then be able to provide the necessary consent to the treatment.’

This difference in emphasis reflects other government guidance (Confidentiality NHS Code of Practice Department of Health 2003, Annex B paragraphs 9 and 10). While this statement concerning confidentiality and the refusal of treatment for a life threatening condition is legally accurate, it is limited to exceptional cases. However as set out in the Draft Code, it appears to have more general application, which may cause confusion. The application of the statement to children and young people with mental health problems therefore needs to be contextualised and made more explicit.

39.9

First bullet point: the best interests of the child and young person should be ‘a primary consideration’ (see UN Convention on the Rights of the Child, article 3).

The second bullet point: suggest that this should make clear that the information provided should be age-appropriate.

The penultimate bullet point: the previous draft illustrative Code had the words ‘to protect them or others from significant harm’ after ‘necessary’. Suggest that these are reinserted.

The last bullet point entitled ‘Determining the most appropriate form of care’ has been misplaced and should form a subheading for paragraphs 39.10 and 39.11.

39.10

This is the first mention of section 25. We suggest the inclusion of an explanation of what it covers: ‘section 25 provides statutory authority to restrict the liberty of a child.’

39.11

This needs clarification in the light of the amended definition of ‘mental disorder’. For example a behaviourally disordered young person will fall within this definition. (See paragraph 3.3 of the Draft Code which lists conditions that could fall within this definition, including ‘behavioural and emotional disorders of children and adolescents’.) As section 25 has traditionally been used for this type of case guidance should be available to both children’s services and mental health professionals as to which statutory regime is most appropriate to protect the interests of the child.

39.15

Although this paragraph correctly identifies that competency must be separately assessed in respect of every decision that the child may be required to make the rest of this chapter seems to imply an all – or – nothing approach to capacity.

39.18

The reference to paragraph 39.28 is not correct.

39.19

We suggest rewording as follows:

Where a child is not Gillick competent then it will usually be possible for a person with parental responsibility to consent to treatment on their behalf providing the treatment is in the child’s best interests. (The next sentence is poorly drafted and confusing. Furthermore, given that the same issues are covered in paragraphs 39.10 and 39.11 above and 39.24 below we suggest that the rest of the paragraph is not needed.)

39.23

We suggest rewording:

The fact that a person with parental responsibility has agreed to the informal admission of a child should not lead professionals to assume that there has been consent to every aspect of the treatment plan. Consent should be sought for each aspect of the child's care and treatment as it arises. "Blanket" consent forms should not be used.

39.24

The use of the word ‘alternatively’ is confusing. We suggest rewording:

If the decision is not within the parental zone of responsibility or the consent of a person with parental responsibility is not given, the Mental Health Act should be used so long as the child meets the conditions for admission set out in the Act. If the conditions are not met then it may be possible to treat a child informally on the basis of an order made by the court under its inherent jurisdiction, or by way of an order made under section 8 of the Children Act (specific issue orders.)

39.25

This paragraph refers to the FLRA conferring a presumption of capacity. This may be misleading. We suggest the following rewording:

Section 8 of the Family Law Reform Act 1969 provides that young people aged 16 and 17 are able to consent to ‘any surgical, medical or dental treatment’ and any ancillary procedures involved in that treatment, such as an anaesthetic. As for adults, consent will be valid only if it is given voluntarily, by an appropriately informed patient capable of consenting to the particular intervention.

We suggest that the last sentence commencing ‘However, unlike…’ is deleted and replaced with wording similar to paragraph 12.14 of the 2007 Mental Capacity Act Code. Reference will need to be made to the situation being different if section 131 Mental Health Act applies. If paragraph 39.26 is deleted, as we suggest, the explanation of section 131 would then follow in the next paragraph (currently 39.27).

39.26

Whist this paragraph is correct we wonder whether it is necessary as it complicates an already complicated area that will not have much application to the children and young people covered by this chapter.

39.27

We suggest deleting ‘itself’ from first sentence. Suggest adding a further sentence at the end:

If the young person does not consent then their refusal cannot be overridden by a person with parental responsibility and therefore consideration would need to be given to whether the conditions for compulsory admission under the Mental Health Act are met.

39.28

We suggest rewording the first sentence as follows:

Under the Mental Capacity Act it should be assumed that adults aged 16 or over have full capacity to make decisions for themselves. In determining whether a young person aged 16 or 17 has the capacity to consent to the proposed intervention, the tests set out in section 3 of the Mental Capacity Act should be used.

Suggest that the rest of the paragraph and paragraph 39.29 is not needed; simply cross-refer to chapters 4 and 12 in the Mental Capacity Act Code.

39.31

It is, however, good practice to involve the young person’s family in the decision-making process, unless the young person specifically does not want them to be involved.

If a young person wishes to exclude his or her parents every effort should be made to fully understand the reasons for this and to explore what changes are necessary to allow the young person to share information with his or her family. If this does not happen the young person can ‘split’ staff and parents in a manner which is unhelpful and may aggravate their distress.

39.33

This paragraph is likely to create much confusion. It is attempting to address too many issues. If it is thought necessary to refer to the question of whether the young person falls within the Mental Capacity Act’s definition of incapacity or not then either include the wording of 12.13 of the Mental Capacity Act Code here (which is much clearer) or cross refer to it. The distinction between incapacity under the Mental Capacity Act and incapacity that is outside this Act, is very subtle and practitioners should be given some guidance on how to make such a distinction. None is provided here.

The point that the provisions under the Mental Capacity Act do not authorise the deprivation of a young person’s liberty is a separate issue and including it here in this way will only serve to add to the confusion.

This paragraph illustrates how the clarity of the flow charts is undermined by the text of the draft Code. The flow charts make no reference to the Mental Capacity Act.

The final sentence ‘It would however be prudent to seek a declaration from the court…’ is unhelpful. This is because it implies that in all such cases the court should be asked to sanction treatment whereas frequently the legal authority to provide treatment will be clear.

39.34-36

These paragraphs are confusing. Paragraph 39.36 is particularly muddled and if left in the Code is likely to lead to much uncertainly amongst practitioners. Accordingly we suggest that these paragraphs are deleted and the following rewording (including heading) is substitute:

Competent children or young persons with capacity refusing treatment

Section 131 means that where a young person of 16 or 17 with capacity is refusing to be admitted to, or kept in, hospital for treatment for mental disorder, they cannot be treated informally on the basis of the consent of a person with parental responsibility.

Where the child is under 16 but is Gillick competent and is refusing treatment for mental disorder then that refusal should not be overridden by a person with parental responsibility and the Mental Health Act should be used if the conditions are met.

Where a young person with capacity, or a Gillick competent child, refuses medical treatment for conditions other than mental disorder then it is possible that such a refusal could be over-ruled if it would in all probability lead to the death of that person or to severe permanent injury. In these situations it may be necessary to obtain a court declaration or decision to determine whether it is lawful to treat the patient on the basis of the consent of a person with parental responsibility.

39.37

Emergency treatment: This paragraph is confusing and needs to be reworded. It appears to be intended to cover children and young people of all ages but it only refers to the ‘patient’ who is competent. Should there be reference to section 3(5) Children Act 1989 here? It would also be helpful to provide details of the relevant court decisions referred to in this paragraph.

39.38

We suggest that the last sentence be deleted. If the treatment providers are confident that the treatment is in the child’s interests, and they are treating with the consent of one person with parental responsibility, then advising that a court application is considered by the treatment providers is going to unnecessarily create anxiety, cause delay and increase costs. Should there be reference to section 2(7) Children Act 1989 here?

39.39

The reference to section 4 Children Act 1989 is unclear as most practitioners will not understand the scope of the section. Suggested rewording of the last sentence:

These orders may include care orders, residence orders, contact orders, evidence of appointment as the child or young person's guardian, parental responsibility agreements or other orders under the Children Act.

The margin note could then refer to sections 4 and 4A of the Children Act 1989. Reference should also be made to section 27 Mental Health Act 1983 (children and young people in care and the Nearest Relative)

39.40

We do not understand this paragraph and think it is a drafting error

39.41

We suggest there should be some explanation of the concept of a child being ‘looked after by a local authority’, in particular that all ‘looked after children’ will either be subject to care orders or accommodated. If this distinction is made clear then the use of the term ‘voluntarily accommodated’ can be removed.

39.43

We suggest that the paragraph is reordered as follows:

In assessing whether a particular decision falls within this parental zone of responsibility, two key questions must be answered:

• firstly, is the decision one which a parent would be expected to make, having regard both to what is considered to be normal practice in our society and to any relevant human rights decisions made by the courts?

• secondly, are there indications that the parent might not act in the best interests of the child?

The less confident a practitioner is that they can answer both questions in the affirmative, the more likely it will be that the decision in question falls outside the zone.

39.44-45

The concept of the zone of parental responsibility is problematic. The examples given do not address key questions for practitioners. For example deprivation of liberty is alluded to but no information on what might amount to the deprivation of liberty of a child is given. It would seem that the ‘extremity’ of the intervention or treatment is crucial but there is little guidance here on what might be regarded as ‘extreme’. Does the authorisation of ECT fall within this zone? The paragraph states that ‘anything that goes beyond the kind of decisions parents routinely make will be more suspect’. Most of the decisions parents would be asked to make in relation to the care and treatment of their child’s mental disorder will be anything but routine.

39.44

We suggest that another bullet point is added:

The susceptibility of young people to parental responsibility. Some young people will accept that parents can make decisions on their behalf and can find this a relief in distressing situations. On the other hand, in the case of young people who have had little meaningful contact with their parents for some time it would not be reasonable to rely on parental consent.

39.46

We suggest under the heading ‘Age-appropriate services’ reference is made to section 131A.

39.52

We suggest that the following sentence is added:

The MHRT have established a specialist panel of tribunal members to deal with cases involving children and young people and therefore hospital managers and other professionals should ensure the MHRT is alerted to any such case.

39.54

We are not sure if the reference to ‘See paragraphs 25.35 and Chapter 25…’ is what was intended.

The Mental Health Act 2007 introduces some significant changes to the provisions concerning the authorisation of ECT. However, these changes are not sufficiently explained in relation to children and young people, and further guidance would be welcomed.

39.55

As this chapter is written with children and young people with complex mental health difficulties in mind then the reference to refusal of treatment ‘for a life threatening condition’ needs to be clarified. Arguably the necessity to compulsorily admit a child or young person to hospital because of their refusal to comply with psychiatric treatment could constitute such a condition. Is it being suggested here that the duty of care requires a CAMHS specialist to inform the parents of the child or young person following any admission. It would be helpful to clarify this point.

Chapter 39

Examples and flow charts

The flow charts are helpful but can be overly simplistic when compared to the text of the draft Code, and in some cases are inconsistent with the text. The case examples are also helpful but again tend to oversimplify matters. For example, why is deprivation of liberty not touched upon in any of the case studies? Furthermore, it is not clear from example C why it is not considered safe to rely on the parent’s consent. How can this be reconciled with paragraph 39.36 suggesting that it would be prudent to obtain a court order in such circumstances?