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

Section 3 RIGHTS OF USERS AND CARERS

Chapter 12

RIGHTS OF INFORMAL PATIENTS

Background

1. One of the most significant reforms introduced by the Mental Health (Scotland) Act 1960 was the principle that compulsory measures should not be used where it is possible to treat an individual on a voluntary basis. This is currently enshrined in s17(2) of the 1984 Act, and is reflected in our proposed principle of Informal care (see Chapter 3).

2. This reform took many people out of the scope of the compulsory provisions of the Act. Nearly 90% of hospital admissions are now on an informal basis.

3. Informal admission means that the patient retains the right to give or refuse consent to treatment. It avoids the added distress for the patient which compulsory detention can involve. It also saves care professionals and the legal system from a considerable amount of additional administration.

4. We are firmly of the view that compulsory measures should remain as something to be used only when absolutely necessary. However, there are reasons to be concerned that this may result in there being a lack of formal protection for people who may not in fact be fully consenting to their care and treatment.

5. The first difficulty concerns the patient who does not object to being in hospital or to treatment, but who is not able to make a fully autonomous decision about the treatment. Many such patients would be described as incapable, as the term is used in the Adults with Incapacity (Scotland) Act 2000.

6. That Act will greatly improve the safeguards for this group although, as we go on to discuss, there may still be some gaps.

7. The second problem concerns people who do not agree with the treatment which they receive, but who are nevertheless being treated as 'informal' patients. This can happen in some cases, because the service user may lack the confidence to object to the treatment being given. We heard, for example, that people from ethnic minorities may find it difficult to challenge decisions made about their care, and that many people with learning disabilities find it hard to be listened to.

8. The other situation about which we received evidence was the 'coerced voluntary patient'. Some service users do not wish to enter or remain in hospital, or to agree to particular types of treatment. However, they are told or believe that, if they do not accept the treatment on a voluntary basis, they will be detained under the 1984 Act, and receive the treatment compulsorily. Either because of the stigma of detention, or because it is perceived that this will result in further restrictions on the service user's freedom, he or she accepts treatment to avoid detention.

Incapable patients

9. The issue of people who are effectively, but not formally, detained, is sometimes known as the 'Bournewood' problem, after the legal case in England in which the issue was highlighted. In that case¹, a 48 year old man, who was profoundly autistic, had been admitted to hospital, and remained there against the wishes of the couple who cared for him. He was not free to leave, in the sense that any attempt by him to leave would have resulted in his being formally detained. However, since he was so disabled that he could not attempt to leave, or express a wish to leave, it was held that he did not require to be admitted under the English Mental Health Act. The actions of doctors in admitting and treating the patient were held by the House of Lords to be justified under common law principles of the duty of care and necessity.

10. The result of this was that the safeguards of the Mental Health Act, such as the right to a review of detention from time to time, and a compulsory second opinion for certain treatments, did not apply to the patient. Even the judges who made the ruling were uncomfortable with this result, with one describing it as 'an indefensible gap in our mental health law'².

11. In Scotland, the Adults with Incapacity (Scotland) Act will provide some of the safeguards which were felt to be missing in the English law. Section 47 makes provision for medical treatment of people who are incapable of consenting, including medical treatment for mental disorders³. It applies to people being treated both in the community and as hospital in-patients. The Act sets out the procedure that should be followed in deciding on treatment, and also makes provision to resolve disputes about treatment.

12. In a case such as Bournewood, it would be necessary to certify that the patient is legally 'incapable' before carrying out any treatment. The patient, or a relative or other concerned third party, could go to court to challenge decisions about treatment, or to seek powers to have the person removed and cared for elsewhere. The Act could not be used to admit the patient to hospital for treatment for mental disorder against his or her will.

13. There are still however questions to be resolved, for example about the effect of s47(7) of the Adults with Incapacity Act. It states that the authority to treat does not authorise the use of force or detention, unless it is immediately necessary and only for so long as is necessary in the circumstances. Different views were expressed by judges in the Bournewood case as to whether or not the patient was in fact 'detained'. Whatever the facts of the individual case, it is clearly envisaged that some people may be 'detained' without being formally detained under mental health law. There is a danger that some situations may slip between the two Acts. Patients could be held in ways which are not authorised under either Act, more as a result of uncertainty about the boundary between the two legal frameworks than any bad faith.

14. In the longer term, we would hope that the consolidation of the two Acts, which we recommend in Chapter 2, would help to resolve some of these difficulties. We also believe that the Codes of Practice of the two Acts should offer guidance in clarifying the areas of overlap.

'Coercive' voluntary admissions and treatment

15. As we have indicated in paragraphs 7 and 8 above, many service users commented to us that they have had experience of feeling under pressure to accept admission to hospital, or treatment, with the threat of detention if they did not comply. One service user who responded to our users and carers consultation said that 'the threat of section... should we object to our treatment is commonplace. And so the legal rights mentioned should be extended to cover all.' A theme which emerged during the consultation events held with users and carers was a wish 'to see principles and protocols laid out to prevent being coerced into treatment.'

16. This is a very difficult area. The patient may feel that he or she has no choice but to comply, but is then deprived of the safeguards of the Act. On the other hand, a doctor or nurse may simply be seeking to encourage the patient to accept treatment on a voluntary basis, while explaining that the service user's condition causes such concern that compulsory measures will be necessary if the service user is not prepared to accept treatment.

17. We do not believe that the answer to this difficulty is to be found primarily within the legislative framework. We would not wish formal steps to be required whenever a patient expresses reluctance to accept treatment, since this would militate against the aim of encouraging the service user and professionals to discuss and agree a treatment package, and would have the undesirable effect of increasing the number of detentions, which would be contrary to what we wish to achieve.

18. Instead, we feel it would be better to look at the problems which may underlie the issue of perceived coercion. There would seem to be two main issues. The first is the feeling of many service users that they are not able in practice to negotiate treatment with professionals, particularly during a period of crisis. The second is that detention is understandably perceived by most service users and professionals as a greater infringement of the patient's rights, with the accompanying protections seen as of less importance.

19. When we asked about this issue, greater access to advocacy was particularly highlighted as a possible solution. In Chapter 14, we make a number of recommendations designed to increase access to advocacy services. The recommendations we make in Chapter 15 regarding advance statements may also, in some cases, help to clarify when treatment may be administered without compulsory measures when the patient is not currently in a position to give proper consent.

20. We recommend various measures in Chapter 23 to strengthen the powers of the Mental Welfare Commission. It has always been the case that the Commission has had responsibility, not simply for detained patients, but for all people with mental disorders. In their role of promoting the principles of the Act, we recommend that they issue guidance about the issue of 'coercive admissions'.

21. We would also hope that the changes which we recommend to the provisions in the Act relating to compulsory measures may make it less likely that people will be so worried about being detained that they accept treatment to which they have not consented in any meaningful way. That said, we are conscious of the stigma which attaches to detention in particular. We deal with stigma generally in Chapter 17.

Restraint

22. A particular issue which causes considerable difficulty is the extent to which it is appropriate to restrain informal patients, or for such patients to be in environments with locked doors. We are satisfied that restraint may be needed occasionally for informal patients. However, there must come a point where such restrictions in effect constitute a form of detention which should be subject to the safeguards of the Mental Health Act.

23. We are aware that the Mental Welfare Commission issued guidance a few years ago about restraint, and that it has recently reviewed the practices of hospitals regarding locked wards. We believe that the best way forward is to ensure that care providers have appropriate policies in relation to issues of locked rooms and restraint, and that practice is subject to regular monitoring and review.

24. The Mental Welfare Commission appears to us to be the body which is best placed to develop general guidance on these issues, which would be applicable to people with mental disorders in a range of settings. This could then be incorporated in the Code of Practice. It would then be for the appropriate registration and inspection bodies, including the Scottish Health Advisory Service (SHAS) and the proposed Scottish Commission for the Regulation of Care, with the assistance of the Commission where appropriate, to ensure that specific policies are produced and implemented by individual care providers.

Exceptional treatments

25. In Chapter 10, we have dealt with treatments that require particular safeguards: the so-called 'special' or 'exceptional' treatments. The Adults with Incapacity Act contains provision⁴ for regulations to specify medical treatment in relation to which the general treatment authority does not apply, and to specify the circumstances in which such treatment may be carried out. We understand that regulations are to be introduced shortly.

26. In general, it is our view that the protection for incapable patients in relation to exceptional treatments should be consistent with that for patients subject to compulsion. We therefore recommend that the special treatments, and relevant special procedures, dealt with in Chapter 10, also be incorporated into the regulations for exceptional treatments under the Adults with Incapacity Act.

27. This protection should be extended to incapable patients, whether in hospital or the community, and in principle should apply to long term medication for mental disorder, as well as the other treatments covered in Chapter 10. We have heard evidence of concerns that, for example, some patients with dementia in nursing homes may be receiving high doses of anti-psychotic medication, with limited oversight and review by medical professionals. An article in the British Medical Journal in 1996, for example, suggested that there was cause for concern about the level of prescription of neuroleptic drugs to residents in nursing homes⁵.

28. However, there are practical problems in relation to patients in the community. Although we do not have figures for the numbers of patients who would be classed as incapable, and who are in receipt of long term drug treatment for mental disorder, it would be considerable. Several people with expertise in this area suggested that it would simply be impossible for approved 'second opinion' doctors to review them all. We are persuaded that to make this a requirement in every case is not practical.

29. We have also considered whether the second opinion might be obtained locally rather than through the Mental Welfare Commission but we recognise that there are also difficulties in that.

30. However, we do wish to see some mechanism by which families and others can be reassured that such treatment is appropriate. We therefore propose that any person with an interest in the welfare of an incapable patient, including relatives, guardians, and advocates, should be entitled to require that a second opinion from a doctor approved for the purpose by the Mental Welfare Commission be obtained for any drug treatment for mental disorder which has been given under the authority of the Adults with Incapacity Act for more than two months. In our view, this would be a limited, but useful, safeguard.

31. We recognise that, in itself, it may not deal with every situation where there may be concerns about medication for elderly patients, including those with dementia. However, we believe that the broader issue of the quality of medical care for this vulnerable group is best addressed through the development of guidance and standards by the appropriate regulatory and professional bodies. The increased powers that we recommend in Chapter 23 for the Mental Welfare Commission in relation to facilities in the community, and the regulatory powers to be vested in the Scottish Commission for the Regulation of Care, should also be helpful.

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