1.0 Introduction
1.1 The Royal College of Psychiatrists is the leading medical
authority on mental health in the United Kingdom and the Republic
of Ireland and is the professional and educational organisation for
doctors specialising in psychiatry. The College welcomes the
opportunity to comment on the Bournewoood Consultation issued by
the Department of Health on 23rd March 2005. This response has been
prepared in consultation with the College Faculties, particularly
the two Faculties of Old Age Psychiatry and the Psychiatry of
Learning Disabilities. The facts in this case are well known and
therefore we have summarised below only the most significant
points.
2.0 Background
2.1 On 5th October 2004 the European Court of Human Rights
(ECtHR) ruled that in the case of H.L. v. the United Kingdom, H.L.
had been deprived of his liberty contrary to Article 5(1) of the
European Convention on Human Rights (ECHR) because his admission
was not "in accordance with a procedure prescribed by law" and was
contrary to article 5(4) of the ECHR because he was unable "to take
proceedings by which the lawfulness of his detention shall be
decided speedily by a court".
2.2 H.L. was admitted to a hospital run by Bournewood NHS Trust
following an episode of disturbed behaviour at the day centre he
attended, the staff at the Centre had contacted the hospital having
been unable to contact his carers, Mr and Mrs E. He was known to
have severe learning disabilities and autism and had no spoken
language. Although not formally stated, it was presumed that he
lacked the capacity to consent to hospital admission and he had
been admitted informally on the grounds of necessity, under common
law, having not dissented to such a course of action. Following
admission his paid carers wished for him to return home but this
was refused by the Responsible Medical Officer (RMO). The RMO also
advised at that time that it was best that visits by the carers
were limited.
2.3 His carers challenged the fact that Mr H.L. was being kept
in hospital and hearings subsequently took place in the High Court,
Court of Appeal, and the House of Lords. The High Court ruled in
favour of the Trust. However, the Court of Appeal subsequently
ruled that H.L.'s detention was unlawful and he was therefore
placed on Section 3 of the Mental Health Act (MHA) 1983, as it was
considered necessary that he remain in hospital. He was
subsequently discharged following an independent psychiatric report
that did not support the case for continuing detention under the
MHA. A subsequent ruling by the House of Lords argued that the use
of the MHA had not been necessary, providing that he was assenting.
The grounds for this decision were that Section 131 of the MHA
states that nothing should impede the possibility of a voluntary
admission. The House of Lords however recognised that the lack of
appropriate statute left a 'gap' in English and Welsh law.
2.4 Clinically, as well as in law, this case highlighted two
particular issues of concern relating to the person with potential
incapacity. First, how to ensure that there is due process when
freedom is restricted, for whatever reason, for those lacking
decision-making capacity given the likelihood that they themselves
will not be able to challenge the decision. Secondly, how to ensure
that there is a ready means of appeal if there is disagreement as
to the best course of action. From the perspective of health care
services, after the ruling of the Court of Appeal, a particular
concern was that, if all those people with incapacity presently
admitted to hospital informally (e.g., those with advanced dementia
being admitted to hospital for observation or respite) had to be
detained under the MHA, this would be both stigmatising and overly
bureaucratic and potentially hinder access to treatment, when such
treatment might in everyone's view be clearly necessary.
2.5 The Government issued interim guidance following the
European Court ruling and since that judgement the Mental Capacity
Act (MCA) has also received Royal assent. When that Act comes into
force it will provide the framework for substitute decision-making
with respect to those lacking capacity to make specific decisions.
Two important principles of particular relevance that would then
apply include; acting in that person's 'best interests' and the use
of 'the least restrictive option'. The intention of the MCA is to
enable people who may lack decision-making capacity to make those
decisions which they are able to make and to ensure that the
process to be followed when the person concerned lacks capacity,
involves the person him/herself and other relevant people, and is
the least restrictive option. It sets the standards by which those
acting on behalf of the person lacking capacity should expect to be
judged.
3.0 General comments
3.1 Although the judgement of the ECtHR is limited to the
examination of specific issues - whether Mr H.L.'s admission and
continuing stay in hospital amounted to detention and whether that
detention was lawful – the College is of the opinion that this case
encompasses wider issues. For people who lack capacity, actions by
others resulting in restriction or deprivation of liberty, are not
limited to just admission to hospital for psychiatric assessment
but may also occur in other health settings (e.g., general
hospitals) and also in private and voluntary nursing homes or
social care settings. In addition, admission to hospital (whether
general or psychiatric) is usually part of an assessment process
and frequently includes the instigation of treatment, as was the
case with Mr H.L. In the view of the College any solution has
therefore to be able to address these broad issues that go beyond
just the question of detention in hospital for treatment of a
mental disorder.
3.2 In arriving at a solution the College is of an opinion that
a careful balance has to be struck. This is illustrated by
considering such a balance in the context of the ECHR. There are
those articles concerned with the right to liberty, freedom and
personal autonomy of a person, on the one hand, and the right to
life and therefore access to health care, as and when appropriate,
on the other. We do not see these as opposing rights but rather
that good health (and access to treatment for mental or physical
illnesses) is part of ensuring these other freedoms.
Disproportionately burdensome regulation might impair day to day
care and hinder access to treatment. With respect to people lacking
decision-making capacity the problem is that there is not the
safeguard provided by the process of consent and therefore
additional measures are clearly required.
3.3 The judgement of the ECtHR made a distinction between
restriction of liberty and deprivation of liberty. We consider this
to be an important distinction. The former may include preventing a
person leaving a building as it is in his/her best interests not to
leave unaccompanied because he/she lacks the ability to cross roads
safely or find his/her way around (essentially good and sensible
care). The latter is more draconian and may include severe
restrictions on freedom of movement and the denial of access to
visits from or to family or other carers (as was the case with
H.L.). We propose that additional safeguards are essential if a
person is being deprived of his/her liberty, as opposed to having
their liberty restricted.
3.4 The MCA, when it comes into force will provide the framework
for making decisions on behalf of people who lack capacity.
Importantly this Act sets out the standards by which health and
social care practitioners and family carers should be judged when
making decisions on behalf of a person lacking capacity (under the
heading of 'Acts done for a person lacking capacity'). Under 'best
interests' there is a responsibility to involve the person as far
as is possible in the decision, including taking into account their
previous wishes if known or advance statements/directives, together
with the involvement of others, such as family, and to use the
least restrictive option.
3.5 The present MHA and proposed future mental health
legislation are not based on the same ethical principles. The
College is of the opinion that it is the fact that there are
differences in the principles underpinning these two statutes,
which are in essence both about substitute decision-making, that
makes the resolution of this issue problematic. In its evidence to
the Scrutiny Committee considering the Mental Health Bill the
College advised that similar principles should apply to both pieces
of legislation.
4.0 Responses to specific questions
4.1 Question 1 (para 3.8 in the consultation paper): we are not
able to place an accurate figure on the numbers of people with
'unsound mind' who lack capacity and who are deprived of their
liberty each year. However, the numbers of those who are
potentially liable to deprivation of liberty is undoubtedly very
considerable as it includes those with long term mental disability
(such as those with severe learning disabilities or dementia) who
potentially have enduring incapacity (re: para 3.3 and 3.4 in
consultation document). Almost universally there will be various
levels of restriction placed on their lives, such as not going out
unless with a carer. Front doors may be locked from the inside or
the design of handles makes it difficult for confused people to
open the front door. Whether, and to what extent, this restriction
of liberty results in deprivation of liberty for some is uncertain.
Whilst the above are likely to be the most significant groups
numerically it may also include those persons with incapacity seen
in Accident and Emergency or admitted to general hospital, for
example, following head injury.
4.2 Question 2 (assumption in 4.1 and 4.2 of the consultation
paper): we agree that these sections set out the key issues. With
respect to paragraph 4.2 of the consultation document we agree a)
that the Bournewood judgement only applies to those who at the
material time lack decision-making capacity; b) as described above
there is potential for the restriction or deprivation of liberty to
take place in many settings; and c) many people in such situations
would not meet criteria for detention under the MHA either because
they may not meet criteria for one of the four mental disorders
need for Section3 or 37 or a Guardianship Order (e.g., people with
learning disabilities are not necessarily mentally impaired under
the meaning of the MHA because they rarely demonstrate abnormally
aggressive or seriously irresponsible behaviour), or it may not be
of a nature or degree etc. to warrant admission to hospital. .
4.3 Question 3 (section 5.5 of the consultation paper): the
College agrees that action is required if deprivation of liberty
takes place but proposes that this should be within the framework
of the MCA. We believe that the requirements of the MCA (to be
elaborated in any Code of Practice) would require that the nature
of the decision and those making the decision are clear, and if
detention for medical treatment is required then other safeguards
in the MCA would be necessary (see below). With respect to second
opinions it depends on the question being addressed. The opinion
may appropriately be medical if detention is about medical
treatment, however, advocacy may be more important under other
circumstances. Whether in hospital or care homes central to the
caring process is the care plan. This must be the focus for
decisions about capacity and best interests, and in the context of
the MCA, must record the reasons for why a particular restrictive
course of action is, in the carer's opinion, in that person's best
interests.
4.4 Question 4 (section 5.10 to 5.13 of the consultation paper):
the College is concerned that possibly new tribunal systems are
being envisaged. We have set out below what we believe is an
acceptable and 'tiered' approach to protection. This approach is
based on the assumption that many aspects of restriction of liberty
of people with incapacity are for sound reasons and clearly in that
person's best interests. However, we also recognise that such
situations must be open to challenge and when restrictions become
more marked or are associated with specific treatments, tighter
safeguards are required. We set out in Section 5 below our ideas
and reasoning. In essence the key aspects are the legal framework
of the MCA and the process of care planning.
4.5 Question 8 (section 6 of the consultation paper): The
College does not consider that an extension of the MHA, including
the use of Guardianship Orders, is helpful. Whilst the MHA could be
amended, at present its scope is too limited to cover all relevant
situations and, as is argued above, not everyone would meet the
necessary criteria as described above. In addition, this would be
an overly rigid approach to what are often variable and complex
situations. Rather with a strengthening of the MCA anyone
supporting a person would be required to justify their actions and
consultation is required and an appeal mechanism will be in place
(extended Court of Protection).
5.0 College conclusions and recommendations
5.1 The College agrees that any guidance must address the
relationship between any resolution of the Bournewood issue (such
as the proposed concept of protective custody) and mental health
legislation and the MCA. The general principles that the College
has applied in considering our response are that the safeguards
should be no less for people with incapacity than they would be for
those with capacity under similar circumstances and that there must
be absolute clarity as to when the MHA applies. This is both to
avoid confusion and to ensure that the risk of double jeopardy
(i.e., if the MCA does not apply because he/she has capacity then
the MHA will be used) only occurs in those very specific situations
where the MHA 1983 applies with respect to hospital admission for
assessment or treatment of a mental disorder that is of a nature or
degree etc.
5.2 We agree with the proposal in paragraph 4.3 that those
people who lack the capacity to consent or not to admission to
hospital for treatment for his/her mental disorder and are
resisting, should be admitted under the MHA. This would give the
protections available under the MHA to this group of patients. It
is recognised that there remains a difficulty in ensuring those
patients who lack capacity have equal rights to those who retain
capacity (Re (MH) v Health Secretary 2004). However, we do not see
any distinction with respect to the likely permanent or temporary
nature of a person's incapacity. If a person who lacks capacity,
for example, because of a severe psychotic illness, comes into
hospital apparently voluntarily (even though on assessment he may
lack capacity) this would be similar to present arrangements and in
the future would be covered by the MCA. The MHA should not be used
simply because the person is likely to recover capacity. However,
having recovered capacity the options would be for that person to
decide for him/herself whether to remain in voluntarily or to leave
hospital. If the person wished to leave, whether capable or not,
the doctor in charge of the patient's care would need then to
consider whether the MHA should be applied.
5.3 Section 5 'Protective care': the College appreciates that
the principles of protective care comes into force when deprivation
of liberty is being considered. However, we are concerned that this
approach is too narrow and we are unclear as to whether this
concept adds more than could be achieved by strengthening the MCA.
The concept that 'release' from detention could be ordered does not
address the problems of restrictive practices in social care
settings where people live. Given the varied situations and
potential complexities the College remains of the opinion that any
solution to the 'Bournewood gap' best sits within the legal
framework of the MCA, but with added safeguards. The College would
hope that with the strengthening of the MCA, this Act would contain
sufficient 'procedures prescribed by law' to satisfy the ECHR.
5.4 The College is of the opinion that any solution that
addresses the concerns of the ECtHR needs to be proportionate to
the nature and severity of restrictions in the individual case.
Whilst the resources in terms of available expertise is an issue,
this is more a question of balance between ensuring a sound process
that protects individual rights, on the one hand, and ensuring
access to hospital and to treatment where appropriate and the
maintenance of a safe environment for the person concerned, on the
other.
5.5 With respect to restriction of liberty, set out below (5.6
onwards) are circumstances that might lead to different levels of
legal protection. In all cases such restrictions would have to be
justified on the grounds that they are in that person's best
interests and the least restrictive alternative (under the MCA). As
part of determining best interests the person's past and, where
possible, present wishes should be ascertained and relevant others
should be consulted. Those making decisions that result in some
limitation on individual liberty should be expected to be able to
defend their actions against the standards set out in the MCA and
its Code of Practice.
5.6 Level 1: restrictions are placed on a person's movement in
his/her place of normal residence on specific occasions where
he/she both lacks the capacity to make the relevant decisions for
him/herself and it is in his/her best interests on the grounds of
his/her health or safety. This might include the person not leaving
the house unaccompanied and being led back into the house if he/she
wandered. Other freedoms, such as family visits and accompanied
trips out, still occurred and were not controlled or limited. As
part of the person's care plan these arrangements should be
reviewed regularly. If relatives or other relevant parties
disagreed there would be an attempt at local resolution and if
necessary access to the Court of Protection.
5.7 Level 2: restrictions are placed on a person's movements in
his/her normal place of residence that go beyond simple restriction
of liberty and amount to deprivation of liberty, in that the person
was confined to the house/hospital and visits out or visits by
others were controlled and limited by the care staff. Under these
circumstances we recommend that an independent mental capacity
advocate should be appointed and he/she and others (such as
relatives) would have access to the Court of Protection, if
disagreements about the care plan and level of restriction could
not be resolved.
5.8 Level 3: transfer from normal place of residence to hospital
for assessment or treatment and any associated restriction of
liberty should be undertaken under the auspices of the MCA, unless
it was admission for treatment of a mental disorder and the person
was resisting, then the MHA would apply. Under the above
circumstances (and other than in emergencies) the safeguards would
include the duty to consult under best interests, the right of
relatives and/or advocates to have discussions with the clinical
team particularly where there is disagreement, the rights of others
to ask for a second expert opinion, and, if necessary, the right of
appeal to the Court of Protection.
5.9 Level 4: where permanent transfer from the normal place or
residence was to occur we recommend that the rights to a mental
capacity advocate is not limited to those with no additional
support. We recommend that a responsibility is placed on the local
authority to satisfy themselves that the likely perspective of the
person with incapacity has been fairly represented by carer, family
member, or independent advocate. Where there is the potential for a
conflict on interest on the part of a paid or family carer the
local authority have a duty to appoint an advocate.
5.10 Detention in the context of medical treatment: as described
above treatment for a mental disorder under specific situations
will be covered by the MCA or MHA (if dissenting). However, the
College, in its submission to the Department of Constitutional
Affairs during the redrafting of the then Mental Capacity Bill, did
recommend that additional safeguards needed to be in place with
respect to certain treatment situations. We are still of this
opinion and believe that the resolution of the Bournewood gap with
respect to the ECtHR ruling on detention should also cover these
situations. Such situations might include requirements for second
opinions in the case of specific treatments listed in regulation or
where treatment is outside recommended clinical guidelines.
Professor Tony Holland, June 2005