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

Annex 8

LITERATURE REVIEW - SUMMARY

DR JACQUELINE M ATKINSON, LESLEY E PATTERSON, Department of Public Health, University of Glasgow

1. Review methodology

The aim of the review was to identify and report on the literature relating to mental health legislation, as it might be relevant to discussions of reform of the legislation. Other literature informed some of the sections but the search was limited to that involving the law.

2. Overarching principles

The legal justifications for civil commitment are protection of the public and public responsibility. These allow persons to be detained both for their own protection and the protection of others. There are broad underlying principles to compulsory detention which have been suggested: dangerousness, due process, treatability and reciprocity.

Dangerousness and due process underpin American mental health legislation. Dangerousness as the criterion for detention has had less impact than was expected on detention because self-neglect, and welfare considerations, remain important. Dangerousness is a feature of a substantial number of detentions in Britain.

Due process is particularly important in the USA, in large part as a result of the civil rights movement. The role of the court is to ensure 'fairness' and to be independent. There is evidence from both Britain and the USA that both the courts and clinicians make 'common sense' judgements about who needs to be detained. They frequently act in what they believe to be 'the person's best interests', interpreting the law in ways that allow such decisions to be taken. There is evidence that the short-term effects of changes to the law diminish and that previous patterns of decision-making re-establish themselves.

Treatability has been proposed as an underlying principle of mental health law. Treatability is often seen only in terms of medication and co-operation with treatment remains an issue in other forms of treatment such as psychotherapy.

This is of particular relevance to people with a diagnosis of personality disorder.

Reciprocity is still to be fully explored as an underlying principle but includes concepts such as equality of treatment and the provision of 'the best' in terms of services, and treatment in compensation for removing a person's liberty.

3. Definitions of mental illness

Although mental illness or mental handicap (learning disability) may be necessary conditions for detention they are never sufficient conditions. Other factors, such as dangerousness or treatability (discussed above) are also necessary. These and other factors may broaden or restrict the number of people to whom the law applies. Availability of services may influence this as well as issues of civil liberties.

Some legislation has introduced specific diagnoses into parts of the Act with attendant problems. New South Wales, for example, allows the detention of a financially irresponsible person with a diagnosis of manic depression but not schizophrenia.

Most legislation has exclusion criteria, such as illegal or immoral conduct, religious or philosophical beliefs or opinions, sexual preference or orientation, promiscuity and the use of alcohol or drugs.

4. Community detention

The main debate in community detention is between orders which allow for enforced treatment (usually medication) while someone lives in the community and orders which do not.

Community treatment orders (CTOs) have been challenged as an infringement of a person's civil liberty and as problematic under Article 5.1 of the European Convention on Human Rights. Other arguments put forward against CTOs are that they are a response to a political agenda rather than clinical argument, that they turn staff into 'parole agents', that they may put staff at more risk, that people may be kept on CTOs for unacceptably long periods of time, and that problems with enforcement and sanctions make them unworkable.

Even where CTOs exist (such as in most of the USA and Australia) what sanctions can be imposed on patients on a CTO who still refuse treatment, beyond readmitting them to hospital, is unclear. Where there is data there is some suggestion that CTOs were not enforced or there were problems with enforcement when a patient refused treatment.

The impact of CTOs is difficult to establish as there is little good research. Their effectiveness cannot be divorced from the adequacy of community services and generally CTOs have been introduced with no additional resources. CTOs may be used to prioritise patients for services and there is some suggestion that it was increased use of services which accounted for improved outcomes rather than community detention per se.

Patients who are put on a CTO are likely (according to Australian research) to be non-compliant with medication in the community, and this might affect 3%-5% of in-patients.

In Britain leave of absence (LOA) has operated as a de facto CTO. It was limited to 12 months in Scotland by the Mental Health (Patients in the Community) Act. It had previously been limited to six months in England & Wales and this was extended to 12 months. Evidence from studies on LOA which go back to the 1980s need to be interpreted with care, since community services have changed considerably since then. Patients who were placed on LOA were more likely to have a recent history of dangerousness, be non-compliant with medication, have a recent history of loss to follow-up and have had more formal detentions than patients not on LOA.

Most (60%) LOAs were allowed to expire, 19% were formally discharged and 2% by a MHRT decision in England. Being recalled to hospital was most likely to be linked to non-compliance with medication. Outcome from LOA is variable with it seeming to improve outcome for about half the patients on LOA but an increase in admissions for about 20%. It is not a universal answer to poor compliance in the community.

The numbers of people on extended LOA in Scotland prior to their time limitation was steadily increasing. Services for people on extended LOA appear limited.

The 1995 legislation introduced supervised discharge (SD) in England and Wales and community care orders (CCOs) in Scotland. Supervised discharge was predated by the supervision register.

The number of people on a CCO in Scotland is small, although the number is slowly increasing. This may reflect opposition to their introduction by psychiatrists in Scotland. This was based on their lack of power to compel compliance with treatment. CCOs are seen as bureaucratic. There is concern that health boards or local authorities could be held liable in the event of not providing services or therapies laid down as conditions of a CCO.

Supervised discharge has been used predominately for male patients with a diagnosis of schizophrenia. Supervised discharge was used more by psychiatrists in general, forensic and rehabilitation settings than by old age psychiatrists. All supervised discharge orders surveyed had a condition relating to compliance with medication, 50% conditions about residence and 59% conditions about allowing access to supervisors.

5. Guardianship

The numbers of people on guardianship in Scotland has remained fairly constant for people with a learning disability, but has increased steadily for people with mental illness, dementia, pre-senile dementia and alcohol-related brain damage (Korsakov's psychosis). For elderly people guardianship orders are frequently being used as a means of transferring people into residential care. Local authority guardians are often not clearly identified and this creates a lack of clarity in respect of their powers and responsibility. Few people are represented by a curator ad litem.

A similar increase in the use of guardianship is shown in England. There is concern that some social services departments are not using guardianship due to lack of resources. It has been noted that guardianship may be preferred by Responsible Medical Officers (RMOs) to supervised discharge since initiation of guardianship is the responsibility of the approved social worker (ASW) whereas supervised discharge is the responsibility of the RMO.

Elsewhere guardianship exists in various forms. The hogosha system in Japan places great responsibility on the guardian to protect the community from the patient and is criticised both for this and its infringement of patients' rights. Conservatorship in the USA is based on substituted consent, which is also the model used in a number of states in Australia. It is a model which is increasingly being used as a protective system for people with disabilities other than mental illness. Similar to this is the system of decision making by proxy established in New Zealand. This is also used for a wide range of people who are deemed to lack competency. It incorporates the principle of least restrictive alternative as does Canada's model of guardianship which includes substituted consent.

6. Detention in Scotland

Knowledge about detention and patients' rights by patients, psychiatrists or GPs is generally poor. This includes doctors' knowledge of their duty to inform patients of their rights, issues of consent and understanding of particular sections of the Mental Health Act.

Despite section 18 being intended as the main route to detention it is rarely implemented direct from the community. Emergency admission under sections 24 and 25 predominates. This is in contrast to England. Section 18 is seen as inappropriate or burdensome by GPs. Since a significant proportion of emergency detentions result in discharges to voluntary status there is concern that voluntary admission is not sought as rigorously as it might be.

Detention under all sections of the Mental Health (Scotland) Act continues to rise steadily.

7. Secure provision in Scotland

There are a number of concerns regarding the provision of secure accommodation across Scotland. Facilities are variable as is level of security. Facilities for women are sometimes inadequate, particularly where hospitals are contracting. Most patients admitted to intensive psychiatric care units are male with a diagnosis of schizophrenia and a history of physical violence to others.

A particular problem at the State hospital is entrapment due to lack of medium secure facilities, with some patients being admitted there who are not in need of maximum security. The population of the State hospital continues to grow.

8. Mortality and morbidity in Scotland

The number of suicides reported to the MWC continues to increase, and comes mainly from an increase in men and outpatients, the numbers for women and in-patients remaining constant. The dominant diagnosis is schizophrenia. The MWC recommends greater standardisation of procedures and risk communication.

There has been a dramatic rise in first psychiatric admissions for young men with a diagnosis of paranoid states, non-organic psychosis and, to a lesser extent, affective disorders. This may be linked to a greater incidence of substance abuse.

9. Electroconvulsive therapy

One small study found no difference between consenting and non-consenting patients and formal and informal patients in the perception of ECT's helpfulness and their willingness to repeat the treatment.

In Britain ECT can be given to non-consenting patients. This is not the case everywhere. In New South Wales, for example, it can only be given to a non-consenting patient if it is considered to be immediately necessary as a life saving measure.

10. Voluntary patients

Voluntary patients do not have the same rights as detained patients to information or recourse to the safeguards provided by the Act. This is important given that many informal patients do not know their rights, including their right to leave hospital and to refuse medication. Where a patient seeks to discharge him/herself against medical advice, current mental state is a more important factor than what has happened to the patient in the past.

There is concern in Britain and elsewhere about the hospitalisation and treatment of patients who lack capacity but who do not object to treatment. The new legislation on incapacity in Scotland addresses some of these concerns. The majority of psychiatrists agree that lack of safeguards for this patient group is a problem. Although the number of patients being formally detained rose slowly after the Bournewood case this trend has stopped and detentions have returned to previous levels. There appears still to be confusion over the treatment of incapable but non-objecting patients.

11. Patients' rights

Different countries base issues of patients' rights on their individual legislation or constitution, e.g. the American Constitution, Canada's Charter of Rights and the European Convention on Human Rights. Articles 3, 5 (1)(e), 5(4), 12 and 13 of the ECHR are thought to be particularly relevant.

One 'right' argued for is the right to treatment or services. This is generally underpinned by an assumption that people want to be 'well'. Without appropriate treatment a patient may be detained for a longer period (if then allowed to refuse treatment although detained). It is argued that this is not in the patient's best interests. It is also expensive for the service.

A number of States and countries allow patients to refuse treatment when they are detained. This has been argued for under a variety of 'rights', including freedom of thought, freedom of religion, individual privacy, autonomy, bodily integrity and informed consent. Pragmatically, the right of refusal is often overruled and treatment is permitted, particularly where a patient has been violent.

12. Capacity, competency and consent

This section only deals with these issues in relation to people with mental illness.

In Britain the Mental Health Act allows competent people who have a mental illness to be treated against their will. There is a balance to be struck between the right to freedom of decision making and the right to protection from harm.

There is no single operationalised standard of competency. Tests of capacity seek to establish a threshold. The main approaches to defining capacity are: outcome, status and function, or some integration of these. The main characteristics of capacity are communicating a choice, understanding relevant information, retaining information, understanding/appreciating the personal significance of the information and arriving at a decision through reasonable and rational manipulation of the information. Tests of capacity need to be related to specific situations and cannot be applied generically.

There is some confusion between concepts of lack of insight and competency. Lack of insight seems to be equated with lack of appreciation of the personal significance of information for most practical purposes. In common law, irrationality is not, in and of itself, indicative of incapacity. In assessing rationality it is difficult to separate the decision from outcome.

The MacArthur Treatment Competency Study was an attempt to develop a reliable and valid way of addressing competency in people with a mental illness, that would be useful both in relation to clinical and policy questions. The measures developed were not intended to be used as legal definitions of competency. It found that although patients with a mental illness performed less well than other groups, and people with schizophrenia less well than other groups of psychiatric patients, the majority of people with schizophrenia did not perform more poorly in competent decision making than other groups of people. The study highlighted the heterogeneity of people with a mental illness and raised a number of questions regarding the measurement of competency in people with a mental illness.

13. Minority groups

A number of groups are singled out for special consideration under mental health legislation.

The elderly population with senile dementia is seen as presenting special problems not addressed fully by the UK Mental Health Acts. Section 47 of the National Assistance Act 1948 does not have the same safeguards as mental health law. 90% of the people for whom it is used are over 65 years, in poor physical health and have a psychiatric disorder. Few Mental Health Review Tribunals are held in England for people over 65 years who are formally detained. The possibility of conducting hearings for the elderly along the lines of Children's Hearings has been supported by some groups. Detention increases for women with age.

The Mental Health Acts refer to 'mental impairment', rather than mental handicap, in relation to guardianship, and there is some suggestion that this may have limited its use. Patients with a diagnosis of learning disability who are detained are likely to be young, male and detained for violent or challenging behaviour. Patients with a diagnosis of learning disability are likely to be detained for a longer period of time than patients with a mental illness.

There are problems in commenting on the use of mental health law in relation to ethnic minorities as there is little monitoring of ethnicity at key points in the criminal justice system and by the statutory bodies such as the MWC.

There is almost no research or data in relation to mental health legislation and homelessness.

14. Attitudes to psychiatric illness

Some limited research was found relating to attitudes to people with mental illness in Scotland. A small survey of the public in Lothian, using vignettes, suggested that people with schizophrenia were treated similarly to a healthy control whereas people with depression or diabetes were treated more positively. Fewer people knew someone with schizophrenia than the other illnesses, but those who did know someone with schizophrenia were less likely to be sympathetic or sociable towards the hypothetical neighbour.

A similar finding was uncovered in a study of the media, which also demonstrated that people with a psychiatric illness are viewed as violent, even when this is contrary to experience.

Surveys indicate that GPs were less willing to treat people with schizophrenia than other illnesses and suggested that patients with a psychotic illness expected to be subject to more discrimination from GPs and psychiatrists than from the general public.

Although there is often local community opposition to facilities being sited in a particular area, there is some evidence that central planning control and a low key approach to the development of supported accommodation by voluntary agencies may be helpful.

15. Research and mental health law

There is a general dearth of good research on, or audit of, mental health legislation in Scotland and elsewhere in terms of both outcomes and process. Some suggestions are made as to why this might be the case, which includes methodological difficulties, including problems of consent, the lack of a national data base geared towards research or audit, funding issues, publication issues and the impact of the research assessment exercise in universities.

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