McSherry, B --- "Mental Health Laws for Those 'Compliant' with Treatment" [2009] UMonashLRS 17

Last Updated: 1 June 2011

Legal issues

MENTAL HEALTH LAWS FOR THOSE ‘COMPLIANT’ WITH TREATMENT

The focus of current mental health laws is on the involuntary detention and treatment of those with low-prevalence, serious mental illnesses such as schizophrenia and bipolar disorder. However, an international trend is developing towards using mental health laws to safeguard the rights of patients who lack the capacity to consent to treatment but who are not objecting to it. This paper analyses the legislative response in England and Wales to a decision by the European Court of Human Rights indicating that there should be legislative procedures for those lacking capacity to consent to consent, but who are ‘compliant’ with treatment.

INTRODUCTION

In 2007, a National Survey of Mental Health and Wellbeing conducted by the Australian Bureau of Statistics indicated that only 35% of individuals with a mental disorder of 12 months in duration received any care.[1] In 2008, the Victorian Government Department of Human Services admitted that “current arrangements and service cultures mean that individuals with mental health problems receive inadequate services compared to those with physical health conditions”[2] and the situation is much the same across Australia.

The Victorian Government Department of Human Services also stated that “services are too focused on the most severely mentally ill”.[3] The same can be said of mental health laws which focus on the involuntary detention and treatment of those considered incapable of consenting to or refusing treatment because of the nature of their illness. Only relatively recently has there been an exploration as to whether mental health laws can assist those with mental illnesses who want to be treated (sometimes referred to as voluntary patients) or those who are unable to consent but are “compliant” with the treatment offered.

This column explores recent laws enacted in England and Wales that govern the detention and treatment of a group of patients who can be classified as not truly voluntary, but are “compliant” either because of cognitive impairments or because of a lack of understanding of their rights, because of the fear of being given involuntary status or because of the pressure of others. Before outlining the new laws, it is necessary to consider the events leading up to their enactment.

HL V UNITED KINGDOM (THE BOURNEWOOD CASE)

The lack of legislative procedures for those lacking capacity to consent but compliant with treatment was considered by the European Court of Human Rights in HL v United Kingdom (2005) 40 EHRR 32; [2004] 9 ECHR 191 HL was born in 1949 and has suffered autism since birth. He has a long history of behavioural problems and special care needs. He is unable to speak and his cognitive abilities are such that he lacks the capacity to consent or object to medical treatment. For over 30 years he was cared for in the Bournewood Hospital, being an inpatient in the Intensive Behavioural Unit since the late 1980s.

In March 1994, HL lived with two paid carers, Mr and Mrs E, while the hospital remained responsible for his care and treatment. From 1995 onwards, HL attended a day-care centre on a weekly basis.

On 22 July 1997, while HL was at the day-care centre, he became agitated and started banging his head against the wall. He was taken to the accident and emergency unit at the hospital and was admitted as an inpatient. A doctor considered making him an involuntary patient, but decided not to because he was compliant and did not resist being admitted. It was not until 12 December 1997 that HL was released back into Mr and Mrs E’s care.

In the meantime, around September 1997, HL, represented by his cousin and “next friend”, made an application for judicial review of the hospital’s decision to admit him, for a writ of habeas corpus and for damages for false imprisonment. The High Court refused the application on the grounds that HL had been properly admitted under the common law principle of necessity.

On appeal, the Court of Appeal found that HL’s detention had been unlawful.[4] This was on the basis that the right to detain a patient for treatment for mental disorder could only be made under the Mental Health Act 1983 (England and Wales). The Mental Health Act Commission estimated that if this judgment were to be put into practice and applied to others in similar circumstances to those of HL, “there would be an additional 22,000 detained patients resident on any one day and an additional 48,000 compulsory admissions per year under the 1983 Act”.[5]

The Hospital Trust appealed to the House of Lords which upheld the appeal in R v Bournewood Community and Mental Health NHS Trust; Ex parte L [1999] AC 458.[6] Lord Goff (with whom Lords Lloyd and Hope agreed) delivered the principal judgment and held that patients who were compliant, but lacked capacity to consent, could be treated on the basis of the common law doctrine of necessity and did not have to be detained as involuntary patients under the Mental Health Act 1983 (England and Wales). The drawback to this approach, as Lord Steyn observed (at 492-493), was that individuals like HL would not have their detention subject to an extensive scheme of statutory safeguards.

An application was then made to the European Court of Human Rights. It found that HL’s detention had breached Art 5(1) of the European Convention on Human Rights which states that “everyone has the right to liberty and security of the person”. One of the exceptions is the “lawful detention” of “persons of unsound mind”.[7] Whether or not a person is of unsound mind must be determined by objective medical evidence.[8]

In HL v United Kingdom (2005) 40 EHRR 32; [2004] 9 ECHR 191 the European Court of Human Rights found that HL had been deprived of his liberty because he had been under continuous supervision and had not been free to leave (at [91]). Further, he was of unsound mind in that he was “suffering from a mental disorder of a kind or degree warranting compulsory confinement which persisted during his detention between 22 July and 5 December 1997” (at [101]). Ultimately, the main issue was whether or not HL’s detention could be considered “lawful” in the sense of avoiding “arbitrariness” (at [119]). The court found that the detention was not lawful in this sense because of the lack of any fixed procedural rules governing HL’s detention, particularly the lack of any requirement for the clinical assessment of the continuation of the disorder warranting detention (at [120]). The court did not order monetary compensation for the detention, but did order that HL’s costs be paid by the state.

The effect of this decision was to reinforce that “informal” admission procedures were not appropriate for those individuals who lack the capacity to consent to treatment, but who are compliant with it. This mirrors the approach taken by the majority of the Supreme Court of the United States in Zinermon v Burch 494 US 113 (1990) in which procedural safeguards were deemed necessary for voluntarily admitting an individual who lacked the capacity of give informed consent. The court in that case, however, did not specify what those procedural safeguards should be.

In March 2005, the government released a Consultation Document setting out its proposed response to the European Court’s decision.[9] This set out a new approach of “protective care” which would require legislation governing admission procedures, as well as processes for review and appeals. A summary of responses was then circulated by the Department of Health.[10]

Subsequently, Sch A1 was added to the Mental Capacity Act 2005 (England and Wales) by Sch 7 of the Mental Health Act 2007 (England and Wales). This schedule sets out a new system relating to certain individuals detained in hospitals and care homes for treatment purposes which came into force on 1 April 2009. The following section outlines some of the features of this scheme.

THE SCHEME IN ENGLAND AND WALES

The stated policy objective of the new scheme is to “provide legal protection for those vulnerable people who are deprived of their liberty otherwise than under the Mental Health Act 1983, to prevent arbitrary decisions to deprive a person of liberty and to give rights to challenge deprivation of liberty authorisations”.[11]

The scheme relates to people in hospitals and care homes aged 18 and over who suffer from a mental disorder, lack capacity to decide whether or not they should be resident in a hospital or care home, and for whom the deprivation of liberty (within the meaning of Art 5(1) of the European Convention on Human Rights) is considered necessary in their best interests to protect them from harm.[12]

The assessment process

Whenever a hospital or care home identifies a person who lacks capacity and who is, or is likely to be, deprived of her or his liberty, it must request authorisation to detain that person from the supervisory body (for hospitals this is the primary care trust, and for care homes it is the local authority).[13]

Once a supervisory body receives a request for authorisation, it must arrange for six different assessments to be undertaken in order to establish whether or not the person meets the requirements so that a standard deprivation of liberty authorisation can be issued. The six assessments are:[14]

• Age assessment: The person being deprived of liberty must be 18 or over.[15]
• Mental health assessment: The person must suffer from a mental disorder within the meaning of the Mental Health Act 1983, but disregarding any exclusion for people with learning disabilities.[16]
• Mental capacity assessment: The person must lack capacity in relation to the question whether or not he or she should be accommodated in the relevant hospital or care home for the purpose of being given the relevant care or treatment.[17]
• Best interests assessment: Any deprivation of liberty must be in the best interests of the person, necessary to prevent her or him from coming to harm, and a proportionate response to the likelihood of the person suffering harm and the seriousness of that harm.[18]
• Eligibility assessment: A person is eligible unless he or she is: detained under the Mental Health Act 1983, subject to a requirement under the Mental Health Act 1983 that conflicts with the authorisation sought (eg, a guardianship order requiring her or him to live somewhere else), or subject to powers of recall under the Mental Health Act 1983.[19] Alternatively, he or she will be ineligible if “the application is to enable mental health treatment in hospital and [he or she objects] to being in hospital or to the treatment in question. In deciding whether a person objects, [her or his] past and present behaviour, wishes, feelings, views, beliefs and values should be considered where relevant”.[20]
• No refusals assessment: There are two circumstances where there may be a refusal to detain a person. First, a refusal may occur if the person has made a valid advance decision applicable to some or all of the relevant treatment.[21] Secondly, a refusal may occur if the deprivation of liberty authorisation being requested conflicts with a valid decision by a donee of a lasting power of attorney or by a deputy appointed for the person by the Court of Protection.[22]

At least two assessors are required for the assessment process.[23] The mental health assessment and the best interests assessment must not be undertaken by the same person.[24] The assessment process must be completed within 21 days.[25]

If any of the qualifying requirements are not met, a deprivation of liberty authorisation cannot be given.[26] If that is the case, the supervisory body must record its decision and notify the hospital or care home, the relevant person, any representative they may have, any section Independent Mental Capacity Advocate (IMCA) involved and every interested person named by the best interests assessor of the decision and the reasons.

If, however, all the assessments are positive, the supervisory body must issue a standard deprivation of liberty authorisation.[27] The Department of Health has stated that the “duration of any authorisation will be assessed on a case-by-case basis, taking account of the individual’s circumstances”.[28] The maximum period for an authorisation is 12 months, but the deprivation of liberty should only last for as long as necessary, as determined by the best interests assessor.[29] The authorisation must be in writing and include the following information:[30]

• the duration of the authorisation;
• the purpose for the deprivation of liberty;
• any conditions recommended by the best interests assessor; and
• the reason why each qualifying requirement is met.

The supervisory body must ensure that the hospital or care home managers, the person concerned, any IMCA appointed and all interested persons consulted by the best interest assessor receive notice of the authorisation.[31] The supervisory body must also appoint someone to act as the person’s representative as soon as practicable after a standard authorisation is given, based on the recommendation of the best interests assessor.[32] If the person concerned has capacity, then he or she will choose her or his own representative, but if not, then the best interests assessor will choose the most suitable person from the interested persons consulted.[33]

Review and appeals processes

While an authorisation is in force, the supervisory body, the hospital or care home and the person concerned may trigger a review of the authorisation.[34] The hospital or care home may request a review if there is a change in the circumstances leading it to believe that the person should no longer be detained.[35] Importantly, the person concerned or his or her representative may request a review at any time and may submit evidence to the supervisory body in the request for a review.[36] The supervisory body is obliged to conduct a review if asked to do so, which involves reassessing the qualifying requirements affected.[37]

The review may lead to the termination of the authorisation,[38] a variation of the conditions attached,[39] or a change in the reason recorded as to why the person meets the criteria for it.[40] Additionally, if the person or representative is not satisfied with the outcome of the review process, he or she can make an application to the Court of Protection, which may overrule the decision.[41]

While most cases will be dealt with under the standard authorisation procedure, Pt 5 provides for situations where a hospital or care home can give an urgent authorisation for seven days while obtaining a standard authorisation. This may be issued where there is a need to deprive someone of her or his liberty immediately for the person’s own best interests or to protect the person from harm.[42]

The consequences of the new scheme

The significance of the new scheme is evidenced by the number of people who could be affected. The Department of Health estimates that there are nearly 500,000 people in England and Wales who have a mental disorder and who lack capacity.[43] The Department posits that around 50,000 of those people require additional restrictions for their protection, such as preventing them from leaving their hospital or care home, which could amount to a deprivation of liberty.[44] The government estimates that in the first year of operation 21,000 people will be assessed and about 5,250 authorisations made.[45] It forecasts, however, that the number will drop to around 5,000 assessments and 1,250 authorisations by 2015 as hospitals and care homes better understand what is meant by the deprivation of liberty and how to avoid it.[46]

The system will also be very time-intensive. Each person who goes through a standard authorisation will require on average two hours of a consultant psychiatrist’s time, eight hours of a best interests assessor’s time, three hours of a senior manager in a supervisory body’s time, two hours of a senior manager in a hospital or care home’s time, and eight hours of an IMCA’s time where necessary (probably 15% of cases).[47] That is a total of at least 10 hours of assessment for persons who may be detained, but for many, it will amount to more than 18 hours.

CONCLUSION

The need for legislative provisions governing the detention of those who are not “truly” voluntary patients, but “compliant” would seem to be of the utmost importance following the decision of the European Court of Human Rights, but many Mental Health Acts still focus solely on involuntary admission and treatment. Guardianship and disability laws may go some way towards providing procedural safeguards for some of the members of this group, but in Australia, for those with mental illnesses, only the Mental Health and Related Services Act (NT) contemplates the voluntary admission and treatment of those who are unable to give their informed consent. The provisions in that Act assume that a guardian has been appointed under the Adult Guardianship Act (NT) to make a decision on behalf of such an individual.[48]

It is therefore timely to consider whether laws should be introduced in Australia to ensure proper procedural safeguards for those who lack the capacity to consent to treatment but are “compliant”. Whether the scheme set up in England and Wales should be emulated, given the complexities of the assessment process, needs further exploration. It will be interesting to observe how this scheme operates in practice and whether any review of it recommends reforms.

Damien Bruckard, BA/LLB student, Monash University

and
Bernadette McSherry, Professor of Law and Australian Research Council Federation Fellow, Monash University

---

Correspondence to: [e-mail].

1 Australian Bureau of Statistics, National Survey of Mental Health and Wellbeing: Summary of Results (Australian Bureau of Statistics 4326.0, 2007) p 23, http://www.ausstats.abs.gov.au/ausstats/subscriber.nsf/0/6AE6DA447F985FC2CA2574EA00122BD6/$File/43260_2007.pdf viewed 6 May 2009.

[2] Victorian Government Department of Human Services, Because Mental Health Matters, Consultation Paper (Victorian Government Printing Service, Melbourne, May 2008) p 13, http://www.health.vic.gov.au/mentalhealth/reformstrategy/documents/mhmatters-rep08.pdf viewed 6 May 2009.

[3] Victorian Government Department of Human Services, n 2.

[4] R v Bournewood Community and Mental Health NHS Trust; Ex parte L [1998] 2 WLR 764 (EWCA Civ).

[5] HL v United Kingdom [2004] ECHR 299; (2005) 40 EHRR 32 at [36]; (2004) 9 ECHR 191 at 205.

[6] See Bartlett P, “Capacity and Confinement: When is Detention Not Detention?” in Diesfeld K and Freckelton I (eds), Involuntary Detention and Therapeutic Jurisprudence: International Perspectives on Civil Commitment (Ashgate, Aldershot, 2003); Diesfeld K, “Criteria for Discharge of People with Learning Disabilities: A Comparative Analysis” in Diesfeld and Freckelton, n 7.

[7] Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), opened for signature 4 November 1950, 213 UNTS 221, Art 5(1)(e) (entered into force 3 September 1953).

[8] Winterwerp v Netherlands Series A No 33 (1979); [1979] ECHR 4; (1979-1980) 2 EHRR 387.

[9] United Kingdom, Department of Health, “Bournewood” Consultation: The Approach to be Taken in Response to the Judgment of the European Court of Human Rights in the “Bournewood” Case, Consultation Document (March 2005), http://www.dh.gov.uk/en/Consultations/Closedconsultations/DH_4113613 viewed 6 May 2009.

[10] United Kingdom, Department of Health, Protecting the Vulnerable: The “Bournewood” Consultation, Summary of Responses (June 2006), http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_4136789 viewed 6 May 2009.

[11] United Kingdom, Department of Health, Mental Capacity Act 2005: Deprivation of Liberty Safeguards in England (2008) p 2, http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_080718?IdcService=GET_FILE&dID=175693&Rendition=Web viewed 6 May 2009.

[12] Mental Capacity Act 2005 (UK), Sch A1 at [2].

[13] Mental Capacity Act 2005 (UK), Sch A1 at [24].

[14] Mental Capacity Act 2005 (UK), Sch A1 at [33].

[15] Mental Capacity Act 2005 (UK), Sch A1 at [13].

[16] Mental Capacity Act 2005 (UK), Sch A1 at [14].

[17] Mental Capacity Act 2005 (UK), Sch A1 at [15].

[18] Mental Capacity Act 2005 (UK), Sch A1 at [16].

[19] United Kingdom, Department of Health, Mental Capacity 2005: Act Deprivation of Liberty Safeguards in England (2008) p 4.

[20] United Kingdom, Department of Health, n 25.

[21] Mental Capacity Act 2005 (UK), Sch A1 at [19(1)].

[22] Mental Capacity Act 2005 (UK), Sch A1 at [20(1)].

[23] United Kingdom, Department of Health, n 25, p 4.

[24] United Kingdom, Department of Health, n 25, p 4.

[25] United Kingdom, Department of Health, n 25, p 3.

[26] Mental Capacity Act 2005 (UK), Sch A1 at [50(2)].

[27] Mental Capacity Act 2005 (UK), Sch A1 at [50(1)].

[28] United Kingdom, Department of Health, n 25, p 5.

[29] United Kingdom, Department of Health, n 25, p 5

[30] Mental Capacity Act 2005 (UK), Sch A1 at [55].

[31] Mental Capacity Act 2005 (UK), Sch A1 at [57].

[32] Mental Capacity Act 2005 (UK), Sch A1 at [139].

[33] Mental Capacity Act 2005 (UK), Sch A1 at [143].

[34] Mental Capacity Act 2005 (UK), Sch A1 at [102], [103].

[35] Mental Capacity Act 2005 (UK), Sch A1 at [103(2)].

[36] Mental Capacity Act 2005 (UK), Sch A1 at [103(1)].

[37] Mental Capacity Act 2005 (UK), Sch A1 at [102(2)].

[38] Mental Capacity Act 2005 (UK), Sch A1 at [105].

[39] Mental Capacity Act 2005 (UK), Sch A1 at [107].

[40] Mental Capacity Act 2005 (UK), Sch A1 at [106].

[41] United Kingdom, Department of Health, n 25, p 6.

[42] Mental Capacity Act 2005 (UK), Sch A1 at [76].

[43] United Kingdom, Department of Health, Mental Health Bill Regulatory Impact Assessment Revised Version (2007) p 21, http://www.dh.gov.uk/en/Publicationsandstatistics/Legislation/Regulatoryimpactassessment/DH_076477?IdcService=GET_FILE&dID=143598&Rendition=Web viewed 6 May 2009.

[44] United Kingdom, Department of Health, n 15, p 6.

[45] Department of Health, Mental Capacity Act Deprivation of Liberty Safeguards: Implementation / Commissioning Q&A (2009) pp 2-3, http://www.dh.gov.uk/en/SocialCare/Deliveringadultsocialcare/MentalCapacity/MentalCapacityActDeprivationofLibertySafeguards/DH_080848?IdcService=GET_FILE&dID=185285&Rendition=Web viewed 6 May 2009.

[46] Department of Health, Mental Capacity Act Deprivation of Liberty Safeguards: Frequently Asked Questions (2008), p 4, http://www.dh.gov.uk/en/Publicationsandstatistics/Legislation/DH_095699?IdcService=GET_FILE&dID=187000&Rendition=Web viewed 6 May 2009.

[47] Department of Health, n 51, p 2.

[48] Adult Guardianship Act (NT), s 54(3).