Report on the Review of the Mental Health (Scotland) Act 1984

Section 2 COMPULSORY TREATMENT

Chapter 5

GROUNDS FOR COMPULSION

1. Perhaps the most fundamental issue in mental health law is the justification for imposing compulsory measures on someone without their consent. Such a justification should be ethically appropriate, and also capable of practical application. We believe that the current tests need to be reformed to meet these criteria.

The current law regarding medical consent

2. The specific provisions regarding compulsory treatment for mental disorder should be viewed in the wider context of the legal rights of people to consent or withhold consent to medical treatment.

The general law

3. The general position is that any medical intervention on a competent adult requires the consent of that adult. Treatment given without consent is potentially both a civil wrong, which could result in a claim for damages, and a criminal offence, such as assault. It would also be a breach of professional codes of practice. A competent adult is entitled to refuse treatment, for good or bad reasons, or for no reasons at all.

4. In order for valid consent to treatment to exist, the patient must have been given, and been able to understand, a certain degree of information about the nature, purpose and possible outcomes of the proposed treatment. The caselaw in Scotland and England broadly suggests that, for the purpose of avoiding civil liability for treatment without consent, a doctor must provide such information as would be provided by a responsible body of medical opinion¹.

5. The common law almost certainly allows treatment to be given in an emergency, where it has not been practical to obtain consent: for example where a patient is brought unconscious to an Accident and Emergency department. However, it is doubtful whether the right to treat even in such cases would extend to circumstances where the patient has previously indicated a decision to refuse such treatment and the patient's views are known to those treating him or her (see discussion of Advance Statements in Chapter 15).

Children and adults with incapacity

6. Under the Age of Legal Capacity (Scotland) Act 1991, the same right to give or withhold consent applies to any child who is sufficiently mature to make the treatment decision. If the child is not able to take the decision, the authority to consent or to withhold consent is vested in those with parental rights and responsibilities. If it is felt that the decision by the person with parental rights is not in the best interests of the child, the matter can be resolved by the sheriff court².

7. The position in relation to adults who are not able to consent to medical treatment because of mental disorder has been an area of considerable doubt, but has now been dealt with in the Adults with Incapacity (Scotland) Act 2000. Part 5 of this Act sets out a framework under which medical treatment can be administered to incapable adults. Subject to a range of safeguards, medical practitioners have authority to do what is reasonable in the circumstances to safeguard and promote the physical or mental health of the adult³.

8. The Act defines 'incapable' as meaning incapable of
(a) acting; or
(b) making decisions; or
(c) communicating decisions; or
(d) understanding decisions; or
(e) retaining the memory of decisions,
(f) by reason of mental disorder or of inability to communicate because of physical disability⁴.

9. The authority to treat does not extend to treatment covered by Part X of the 1984 Act (discussed in Chapter 10); nor the use of force or detention; or placing the adult in a hospital for the treatment of mental disorder against his or her will⁵.

Compulsory treatment for mental disorder: current legislation

10. The criteria for interventions under the 1984 Act are set out in section 17. They are based on

• the presence of mental disorder,
• 'appropriateness',
• 'necessity', and, for some kinds of disorder,
• 'treatability'.

11. We consider first the tests of appropriateness and necessity.

Appropriateness and necessity

12. Before a patient can be detained, it is necessary for the patient to be 'suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in hospital'⁶. The other test, which applies in all cases, is that 'it is necessary for the health or safety of that person or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained'⁷.

13. There is little guidance, in statute, case law, or the Code of Practice, as to how the 'appropriateness' test should be interpreted. In relation to the 'necessity' test, there has been concern that it militates against doctors detaining people until they are extremely ill, rather than intervening at an earlier stage. However, the Mental Welfare Commission said in their Annual Report for 1994/5:

'This does not mean that there must be an immediate threat to life or limb, in the sense of either active suicidal intention or immediate threat of violence to others. In the Commission's view, severity of symptoms or severity of distress may be sufficient to justify admission, especially if the alternative is likely to be the worsening of an already distressing situation, and effective treatment or care is available in hospital.'

14. These criteria are rather circular in nature, in that they may say little more than that part of the test for whether someone should be detained in hospital is whether a doctor considers that person should be detained in hospital. The basis on which the doctor should reach that decision is not made explicit. Since the test turns on the need to be in hospital, the detainability of a patient may in practice depend on what community alternatives might or might not be available.

15. The tests do not seem to provide a strong basis from a human rights standpoint to argue in favour of a compulsory intervention. They are discriminatory, in that it would not be lawful to treat a person for a physical illness without consent simply on the basis that to do so is appropriate and considered necessary.

16. The tests are also not compatible with our proposed reforms. These seek to have a flexible range of interventions, tailored to the needs of the individual, and so it would not be possible to base the grounds for compulsion solely on the appropriateness and need for hospitalisation.

The basis for new criteria

17. The criteria for compulsory intervention should reflect the principles we outline in Chapter 3. It follows that such intervention should be used as sparingly as possible, and every effort be made to secure agreement between the service user and care team on a voluntary basis. It is only when such agreement cannot be achieved that the question of compulsion should arise.

18. It is also in accordance with our principles that any care and treatment proposed should be the least restrictive and invasive alternative available, compatible with the delivery of safe and effective care.

19. We believe that replacements for the appropriateness and necessity tests should reflect three underlying justifications for compulsory measures being imposed on a person with mental disorder. These are

• that, because of the mental disorder, the person's judgement is impaired;
• that the person may be at risk or, in some cases, present a risk to others, if compulsory measures are not taken; and
• that the patient is likely to benefit as a result of the imposition of compulsory measures.

In our view, all of these factors should be present before compulsion is justified.

20. In our first Consultation, we asked what were the justifications for compulsory intervention. Although there were differences as to the ways in which the criteria were described, and the weight which should be attached to them, these were widely accepted as being key factors.

Impaired judgement

21. There has been much discussion, in Scotland and England, as to whether a 'capacity' test should be introduced into the grounds for compulsion. This would mean that a person could not be subject to compulsory measures under the Act unless it could be shown that he or she lacked the capacity to make a decision in relation to the relevant care and treatment. There could be an exception to this rule where it could be shown that the person presented a risk to others, as a consequence of mental disorder. A serious risk of harm to the patient might also justify imposing treatment on a capable patient, although this is not universally accepted.

22. In our second Consultation, we sought views on the possible introduction of a capacity test. There was an even divide of opinion on this issue. Respondents from the voluntary sector showed more support for a capacity test than did medical professionals.

23. This was one of the most difficult issues we faced as a Committee. There was strong support for the introduction of a capacity test, and there are powerful arguments in its favour. However there was also considerable concern from a number of key interests as to the practical implications of such a test.

Arguments for a capacity test

24. Perhaps the strongest justification for a capacity test is that it provides a specific and ethically justifiable reason for over-ruling a person's autonomy, in that the person's ability to exercise autonomy has already been usurped as a consequence of the mental disorder.

25. This approach would also be consistent with the law regarding other medical treatment, and so compatible with our principle of Non-discrimination.

26. We have recommended that mental health law and legislation concerning incapable adults should be broadly consistent, and ultimately brought together into one piece of legislation. Having a consistent basis for intervention, namely lack of capacity, might assist in this process.

27. 'Capacity' has more intrinsic meaning than a test such as 'appropriateness', and so is arguably easier for a court to assess on the basis of evidence led. There is already case law in England and Wales which would give guidance as to the meaning of capacity⁸, and this case law is broadly in line with the approach taken in the Adults with Incapacity (Scotland) Act.

28. As we have said, the introduction of a capacity test received strong support. In their response to our first Consultation, the Law Society said 'there must be a compelling reason for the right to treatment to outbalance the right to autonomy and this could only come about where there was a lack of capacity or impaired judgement'. The Scottish Association for Mental Health (SAMH) argued strongly that 'incapacity should be central when determining the criteria for any general protective intervention'. Many responses from health and social work interests also recognised the attractions of a capacity test.

Difficulties with a capacity test

29. Nevertheless, there were strongly held views against making a capacity test the fundamental criterion for intervention. Many of these turned on the practical operation of such a test.

30. In oral evidence to the Committee, representatives of the Royal College of Psychiatrists put forward a number of concerns. It was suggested that such a test might be difficult to apply in a range of situations, including patients with mood disorders, obsessive compulsive disorders and eating disorders. Such patients might retain legal capacity but be at such risk as to justify intervention. It was not accepted that the definition of incapacity in the Adults with Incapacity (Scotland) Act was suitable for decisions about compulsion related to the Mental Health Act.

31. In relation to forensic patients, it was suggested that the real issue was not capacity, but whether the patient was more appropriately placed in a health care setting rather than a penal setting. There were fears that offenders with mild learning disabilities, in particular, might find themselves going to prison instead of a health setting because not deemed 'incapable'.

32. Individual psychiatrists also commented to the Committee that incapacity was a concept which they would find difficult to measure and apply. The British Medical Association (BMA) suggested that a capacity test would make it harder for GPs and doctors in, for example, Accident and Emergency Departments to come to a decision, and might lead to a reluctance to use the Act. The United Kingdom Central Council for Nursing, Midwifery and Health Visiting (UKCC), while in favour of making the justification for non-consensual interventions more explicit, suggested that professionals were not equipped to apply sophisticated tests of capacity fairly.

33. It was suggested that people experiencing acute mental distress often present to psychiatrists in an ambiguous state of mind: ostensibly resisting treatment but perhaps doing so in the hope that someone will intervene. Capacity in these circumstances would be very difficult to determine.

34. There are particular concerns about defining the threshold at which the patient becomes incapable. While some patients would have fairly clear understanding of the implications of accepting or refusing medical treatment, and others with very severe disorders would clearly not be capable of making a decision, the issue is most likely to arise in practice with patients whose mental disorder has affected their judgement to some degree, but who nevertheless have some decision making ability.

35. Counter arguments were put forward, however, to the suggestion that capacity was not something which doctors could measure. It was pointed out that doctors will be required to assess capacity under the Adults with Incapacity (Scotland) Act for the purposes of that Act. It is also something about which psychiatrists are already required to take a view, in deciding whether a patient is capable of giving consent to certain treatments under Part X of the 1984 Act⁹.

36. However, there are differences between the typical situation which may arise under the Adults with Incapacity Act, and the use of mental health law. It may be easier to determine that a person with a long-standing condition such as learning disability or dementia does not have capacity, than in the case of someone with an acute mental illness, which may fluctuate above and below the capacity 'threshold'. Even if incapacity can be established at a particular time, it would seem impractical for an order for compulsory treatment to stop and start if capacity fluctuates perhaps on a daily basis or even more frequently.

37. For a capacity test to operate, it would be necessary to identify exactly what decision a person must be judged incapable of making. This may be possible where the question is, for example, whether a patient should have a surgical procedure. However, the decision in relation to mental health law may concern a long-term detention in order to allow a range of treatment interventions. It is more difficult in such a case to identify precisely what it is the person must be incapable of deciding.

38. Finally, some people had significant anxieties about the practical outcome of the introduction of a capacity test. It was felt that this might discourage early intervention, where a person with a history of mental disorder is beginning to deteriorate, but still retained some capacity until a crisis situation had been reached. Many of our respondents also felt it to be wrong that a person with a mental disorder should be allowed to bring severe harm to himself or herself, perhaps including death, on the basis of a judgement that the person had the capacity to make such a decision.

39. One possible way round the problem of risk to the person, which seeks to respect the principle of Non-discrimination, is to ask whether the relevant decision is one the patient would have taken, had he or she not been suffering from mental disorder. This was an approach favoured by the Richardson Committee in England¹⁰. However, it is intrinsically extremely difficult to know what the patient's 'true choice' might have been, had the mental disorder not been present.

Our proposals regarding impaired judgement

40. In responding to these dilemmas, we have sought to identify proposals which can be applied in practice, and which recognise that it should not be the function of mental health law to impose treatment on those who are clearly able to make decisions for themselves.

41. We propose that it should not be possible for a compulsory intervention to be made under mental health law unless there is evidence that the person's judgement is significantly impaired, as a result of mental disorder, so as to justify the intervention. This expresses a broadly similar concept to incapacity, but is felt to be a less legalistic formulation, and one which may be easier to apply in practice. It may also be a term which is easier for service users to accept than the term 'incapable'.

42. An alternative formulation to incapacity, which is often used in psychiatric settings, is 'lack of insight'. This term includes situations where a patient may have an ability to take in and act upon information in general terms, and may indeed be very lucid, but does not accept that he or she is ill. In some situations, this may be what is expressed by impaired judgement. However, we have not used lack of insight as a proposed criterion. We understand there is considerable debate in the psychiatric literature about whether this term has a clear and agreed meaning.

43. Impaired judgement should not be taken to be synonymous with mental disorder. It would be necessary to show a connection between the disorder and the impairment to decision-making ability. Nor should it be taken as equivalent to disagreeing with the opinions of professionals.

44. Although the impairment of judgement (as we describe it in the preceding paragraph) must be present in every case, there need not be a precise threshold of impairment beyond which intervention was permissible. The nature and degree of impaired judgement would be judged alongside the nature and degree of risk, and the likely benefits of treatment, in order to determine whether compulsion is justified.

45. It would not be necessary to establish impairment of judgement before making an emergency detention, or while assessing the person's possible need for compulsory treatment under a short term (28 day) order. It would be necessary however to judge that there is a reasonable likelihood that impaired judgement is present. If a responsible medical officer is satisfied that it is not present, compulsory measures should be brought to an end.

Benefit from treatment

46. One of the principles we outline in Chapter 3 is Benefit: that any compulsory intervention should be likely to produce for the patient a benefit which cannot reasonably be achieved otherwise. A primary aim of taking compulsory measures under mental health law should be to do what is possible to alleviate or prevent deterioration in the person's mental disorder.

47. In some respects, this test reflects the fact that a compulsory intervention may in fact enhance the patient's autonomy, by restoring the patient to a situation where he or she can take more control over his or her life. However, the potential benefit from treatment should, in our view, be more closely defined.

48. We believe, therefore, that it should be a necessary criterion for compulsory measures that the patient requires compulsion in order to receive treatment which cannot be provided other than by compulsion, and that the treatment proposed to be administered under the plan of care for the patient is likely to alleviate or prevent deterioration in the patient's mental disorder, or associated symptoms of that disorder. This requirement should apply to all forms of mental disorder. The 'treatment' which would be covered by this criterion would also be broadly defined, encompassing medical, nursing, psychotherapeutic and other interventions. Furthermore, treatment may be seen as a process of care and management, not a single intervention which succeeds or fails.

49. The requirement that the intended benefit relates to the disorder and associated symptoms might, in some cases, justify treatment of aggressive or dangerous behaviour. It could not justify detention solely for the purpose of preventing the patient from causing harm, with no therapeutic intervention.

Risk

50. We found general support for the inclusion of a risk criterion as one of the tests for compulsory measures. The problems are how to define what nature and degree of risk justifies intervention; how that risk should be measured; and how risk interacts with the other necessary criteria.

51. As we have said, it will be necessary for impairment of judgement to be present before compulsion will be justified. It will also be necessary for there to be a likelihood of benefit from treatment, and it must be shown that it would be unlikely that the benefit could be achieved without the use of compulsion.

52. In that context, we feel that the level of risk, should compulsion not be used, be expressed as a significant risk of harm to the health or safety or welfare of the person, or a significant risk of harm to other persons.

53. This is likely to be broadly similar in its effect to the current provisions. The tests of health, safety and welfare are expressed as alternatives, and it would only be necessary for one to be met for this particular criterion to be satisfied. Health and safety are both mentioned in the current provisions. We have added welfare to accommodate some risks which could flow from a mental disorder, and which we believe might justify compulsory measures, but which might not readily fall into the categories of health or safety. One which was drawn to our attention was the situation of someone with a hypomanic illness, who may put his or her financial affairs at risk from unbridled spending, or reputation at risk from disinhibited sexual activity. In some cases, it might address a point highlighted in the Green Paper regarding the English Mental Health Act: the possible necessity to protect a person from serious exploitation¹¹.

Assessment of risk

54. We heard evidence that the measurement of risk was often subjective, and the evidence base to justify the way risk assessments are typically carried out in mental health cases is poor. However, we do not believe that this difficulty is something which can be resolved by the definitions of risk in the legislation. It is clear that the field is a developing one, and it would not be desirable to specify too closely in legislation how risk should be measured.

55. The MacLean Committee on Serious Violent and Sexual Offenders made a number of detailed recommendations regarding improving risk assessment in relation to serious offending behaviour. These recommendations are of direct relevance to the small number of mentally disordered people involved in serious offending behaviour, rather than the wider group of people who present a risk, particularly of self harm. Nevertheless it is possible that an increased general emphasis on more carefully structured risk assessments will have broader application, including to risk of self harm, as well as risk to others.

56. We note also that the Mental Health Reference Group issued guidance to clinicians and carers on risk management¹², including a recommendation that any organisation providing mental health care should establish a Risk Management Committee. The report does not directly address risk assessment for the purposes of legal hearings, but may nevertheless be of relevance.

57. One particular improvement, which was widely endorsed in our consultations, would be a more multi-disciplinary approach to risk assessment in relation to mental health decisions. Social workers may have much to contribute to a risk assessment, as may nurses, psychologists and other professionals. We would therefore expect the tribunal to consider where necessary evidence from a range of sources as to the level and nature of risk presented in a particular case. As the MacLean Committee report notes, much work requires to be done to develop common understanding between professionals of the techniques and aims of risk assessment.

Treatability

58. For people whose mental disorder is classified as mental impairment¹³, or a persistent disorder 'manifested only by abnormally aggressive or seriously irresponsible conduct'¹⁴, there is an additional test in the current Act: that treatment is likely to alleviate or prevent a deterioration of the patient's condition. In s125, 'medical treatment' is defined as including nursing, and also care and training under medical supervision. This is sometimes known as the 'treatability' test.

59. In relation to mental impairment, the Percy Commission, which reviewed the law in the 1950s, drew a distinction between those who were then categorised as 'feeble minded', and those who were more seriously disabled. The more seriously disabled group were those who may not be able to live an independent existence. It was felt that it might be necessary sometimes to institutionalise people in this group against their will, so that they could be looked after, even if their condition was not likely to improve as a result of the treatment. This was not felt to apply to the less severely impaired group, who would be able to live an independent existence outside hospital.

60. The group of people whose disorder is 'manifested only by abnormally aggressive or seriously irresponsible conduct' are essentially those now commonly described as having a severe antisocial personality disorder and classed in the English Mental Health Act as having a 'psychopathic disorder'. Although the Scottish Act, prior to the passing of the Mental Health (Public Safety and Appeals) (Scotland) Act 1999, did not specify personality disorder as a separate category, this group are brought into the 1984 Act by section 17.

61. At the time of the Percy Commission, there was considerable controversy over the extent to which people with psychopathic or personality disorders could or should be successfully treated. As is the case now, many psychiatrists took the view that treatment on a compulsory basis was unlikely to alleviate the disorder. Others however felt that such treatment could be beneficial in some cases.

62. Originally, the 1960 Act drew a distinction for both groups on the basis of age; it being thought that treatment was more likely to be successful with younger people. When the Act was revised in the early 1980s, this was changed to the current treatability test. This was intended to allow some discretion to psychiatrists and courts to detain people with personality disorder or less severe mental impairment for treatment, if there was some expectation that treatment might be beneficial.

63. There is no formal treatability test for people with mental illness. It is assumed, and is implicit in the Act, that people being detained should always be receiving treatment, in the widest sense. The difference in the Act between mental illness and personality disorder and mental impairment may be based on a view that remaining in hospital may continue to be appropriate for people with mental illnesses, even where an illness proves resistant to treatment. For personality disorder and mental impairment, such detention without treatment could be considered as at best containment, and at worst equivalent to imprisonment.

64. The treatability test has in recent years been subject to considerable judicial scrutiny. The leading authority on it is the decision of the House of Lords in the case of Reid¹⁵. It was pointed out in that case that 'medical treatment' is given a very wide meaning by s125 of the Act, including nursing and care and training under medical supervision. Therefore, provided any treatment in this broad sense would be likely to alleviate or prevent deterioration in the patient's condition, the test would be satisfied. This would apply to alleviation of the symptoms of the disorder, as well as the disorder itself.

65. This means that, for example, a patient whose anger management improves when in a structured setting and supervised environment, such as the State Hospital, may pass the treatability test, so justifying continuing detention.

66. However, the judgement in the case of Ruddle¹⁶ established that there were limits to the breadth of the treatability test. The fact that a person may benefit from being denied access to drugs and alcohol as a result of the physical security of the State Hospital reflected an aspect of containment, not treatment. Unless it could be shown that the structured environment of the hospital was likely to improve or prevent deterioration in the patient's condition, the effect of detention would be no different from that which would result from placing the person in prison. This would not be sufficient to meet the test.

67. We believe that there a number of problems with the current treatability test. The justification for applying it to some groups and not others is difficult to defend in principle, and the wide definition of 'treatment' in the current Act or as we have recommended earlier in this chapter may make this distinction meaningless in practice. The interpretation of the judicial statements is complex, and it has been suggested that restricted patients could (at least prior to the passing of the Mental Health (Public Safety and Appeals) (Scotland) Act) secure discharge by not co-operating with treatment, which seems perverse.

68. We therefore believe that the present provision relating only to the groups mentioned in paragraph 58 above should be repealed. However, the underlying aim of the test, to avoid the Act being a vehicle for preventive detention, is an important one. We have addressed this in our proposals relating to benefit for treatment.

Conclusion

69. It may be convenient to summarise here the conditions, all of which we propose must be met, before long term compulsion can be imposed:

• The presence of mental disorder.
• It has been established that the necessary care and treatment cannot be provided by agreement with the patient.
• It can be shown that, as a consequence of the person's mental disorder, the person's judgement is impaired to a nature or degree which would justify compulsory measures.
• The treatment proposed to be administered under the plan of care for the patient is likely to provide a benefit for the patient by alleviating or preventing deterioration in the patient's mental disorder, or associated symptoms of that disorder.
• The care and treatment proposed is the least restrictive and invasive alternative available compatible with the delivery of safe and effective care.
• There is a significant risk of harm to the health or safety or welfare of the patient or a significant risk of harm to other persons if such treatment is not administered.

70. We believe that these factors are, in practice, taken into consideration by psychiatrists and mental health officers at the moment, in deciding whether to seek detention. Expressing them more clearly should help to clarify the issues to be considered by these professionals and by the tribunal. As techniques improve for assessing factors such as risk, these can be brought into play. The Code of Practice could assist in ensuring the most appropriate use of such developing techniques.

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