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

Chapter 15

ADVANCE STATEMENTS

What are advance statements?

1. In their most general form, advance statements (also sometimes described as 'advance directives') are a method by which a person can plan for their future treatment. They are a statement by a person, who understands the implications of his or her choices, of the types of treatment and care he or she wishes to receive, should he or she lose decision-making capacity in the future.

2. Advance statements may deal with a variety of issues regarding treatment. The broad issues were discussed by the Scottish Law Commission (SLC) in their report, Incapable Adults. This recommended that 'subject to certain exceptions... a valid refusal made by a competent patient to treatment that may be offered in the future when he or she is not mentally capable should have the effect that doctors have no authority to give the treatment in question'²². However, under the Law Commission's proposals, an advance statement would not apply in relation to a detained patient to the extent that it refused treatment for mental disorder which could be given under Part X of the 1984 Act without the consent of the patient.

3. The SLC recommmendations were not included in the provisions of the Adults with Incapacity (Scotland) Act 2000. In their policy statement, 'Making the Right Moves', the Scottish Executive said 'Although such proposals have the sincere support of particular interest groups, we do not consider that they command general support. Attempts to legislate in this area will not adequately cover all situations which might arise, and could produce unintended and undesirable results in individual cases'²³.

4. The Adults with Incapacity (Scotland) Act does however make provisions in relation to 'welfare powers of attorney'. These allow an individual to authorise another person to make personal decisions, including medical decisions, concerning the granter, should the granter become incapable.

5. Under Part II of that Act, such a power must be in written form and signed by the granter, and a solicitor or other authorised person must certify that he or she is satisfied that the granter understood the nature and extent of the power, and is not acting under undue influence.

6. There are procedures under which decisions made by a welfare attorney can be challenged. Also the welfare attorney has no power to place the granter in hospital for treatment of mental disorder against his or her will, and cannot consent to treatment of a detained patient which would be covered by Part X of the 1984 Act²⁴.

7. As we go on to explain, we do not make recommendations regarding advance statements in general. We are concerned only with advance statements concerning treatment for mental disorder, especially when the person may be subject to compulsory measures.

8. In mental health care, advance statements would permit a person, during a period of mental well-being, to plan for the types of interventions he or she would wish or be prepared to receive in the event of a relapse into mental illness. Should the person then relapse and his or her judgement become seriously impaired as a result of illness, there is a record of his or her wishes whilst he or she had decision-making capacity.

9. Such advance statements might have one or more of several different functions, and need not be restricted to medical issues. For example, they could:

• give details of the circumstances under which the patient agrees that treatment would be appropriate (for example, a statement might detail the types of behaviour that are indicative of the early stages of a relapse)
• give details of treatment and the care package that a patient would prefer to receive, if he or she became ill in the future;
• give details of treatments that the patient has made an informed choice not to receive in the future;
• give details of to what extent the patient wishes a named carer or nominated person to be kept informed of the progress of the illness and treatment; or
• be a statement of the general beliefs and value-system of the patient.

10. In Chapter 16, we propose that service users should have a right when able to do so to nominate someone to act as their 'named person', and this nomination would be, in effect, a kind of advance statement.

Advantages of advance statements

11. We perceive several advantages to advance statements. They can promote service user autonomy, and help to redress the power imbalance many service users have told us that they feel between themselves and mental health professionals. In our consultation, service users frequently made the point that they need to understand and influence what is happening in their care and to feel that their views are listened to, respected and acted upon. Advance statements are one way to promote these aims.

12. Advance statements can reduce the uncertainty about the future felt by many service users, by clarifying the steps that would be taken if the service user became unwell.

13. Doctors are expected to consider a patient's preferences when deciding on treatment, and an advance statement can be an important part of this consideration.

14. They represent a formalised way of negotiating treatment options. They can promote collaborative working between mental health professionals and service users, and may reduce the need for compulsion by achieving agreement from both professionals and service users of the situations in which interventions might be needed, and what those interventions should be.

15. They are a way of assuring people that their personal beliefs and wishes will be respected as far as possible. We have heard concerns that a person's individuality of beliefs or plans for the future may sometimes be misinterpreted as the effects of a mental illness. An advance statement can help to show whether or not a person's wishes have been affected by a deterioration in mental state.

16. Generally speaking, there was agreement amongst our respondents that advance statements are a good way to improve the care of service users.

Concerns about advance statements

17. We are aware however that there are genuine concerns about the use of advance statements, particularly in relation to the possibility that advance statements could be used to request that lifesaving treatment be withheld. The recommendations that we make later in this chapter address these and other concerns.

Current legal effect of advance statements

18. There is no explicit statement in current legislation that the provisions of advance statements must be adhered to. However, there are certain considerations which must be taken into account.²⁵

19. Firstly, there is a general duty on medical staff to consider a patient's wishes when making decisions on treatment. Therefore, as far as advance requests for certain kinds of treatments are concerned, an advance statement might be one means by which a patient's wishes might be expressed, and should therefore always be taken into account. This could be particularly useful in helping the doctor to choose from a range of treatment options. However, clear statements of preferences of this sort are not legally binding. Indeed, no patient has a right to insist that a particular type of treatment is provided under the NHS.

20. In the case of advance statements which refuse treatments, the situation is different. The BMA states the following:

"Competent, informed adults have an established legal right to refuse medical procedures in advance. An unambiguous and informed advance refusal is as valid as a contemporaneous decision. Health professionals are bound to comply when the refusal specifically addresses the situation which has arisen."²⁶

21. This statement appears to reflect the law in England and Wales. It is difficult to know what the law is in Scotland, since there have been few reported cases. We understand that many legal commentators would expect the legal position to be broadly similar.

22. Be that as it may, the position is different for mental health service users subject to detention. Generally speaking, if an advance statement conflicts with other legal provisions, advance statements are superseded by existing statute. That means, in mental health, that an advance statement can currently be overruled by compulsion under the Mental Health Act²⁷.

Future legal force of advance statements

23. We gave consideration to the future legal effect of advance statements. There are a variety of ways in which the legal effect could change, ranging from giving advance statements no formal legal effect to making them legally binding in all circumstances.

Consultation

24. Whilst, as we have said, there was general support for the use of advance statements amongst our consultees, there was more disagreement about what force they should have in law. The issue elicited considerable comment.

25. In our first Consultation we asked about advance refusals of treatment, in the context of the (then forthcoming) Adults with Incapacity legislation. There was a majority, including many medical respondents, who were in favour of respecting advance refusals of treatment but not giving them legally binding force. However, there were also a number of respondents who were very strongly opposed to their use.

26. In our second Consultation we asked about advance statements in more general terms, setting out the arguments, as we have done above, in favour of their use in a psychiatric setting. There was a considerable amount of support for making advance statements legally binding, albeit with qualifications and safeguards. However, responses from health bodies, including health boards, NHS Trusts, and medical and nursing bodies, were less enthusiastic about this suggestion.

27. Amongst those in favour of making advance statements legally binding were the Law Society, Scottish Association for Mental Health, ENABLE and the National Schizophrenia Fellowship (Scotland) (NSF (Scotland)). All accepted however that there would be circumstances where the level of risk involved might justify overruling the advance statement.

28. Others considered that it would be premature to include advance statements in legislation, as they were relatively untested in practice. The Mental Welfare Commission recognised the potential value of advance statements, but considered that, as yet, experience of making and interpreting such statements is too limited to incorporate them into legislation. The Commission suggested that the Code of Practice could emphasise users' rights to record their wishes regarding care and treatment and for these wishes to be recorded and carefully considered. The British Association of Social Workers shared the view that advance statements were untested and that good practice had not yet developed sufficiently.

29. We received a helpful submission from an academic who is undertaking research into the nature and acceptability of advance statements. This suggested that, at present, to make advance statements legally binding is likely to cause more problems than it solves. The literature appears to suggest that many health care professionals do not support advance statements being legally binding, and that few people, from whatever quarter, support their being binding in all circumstances. There are considerable concerns about how competence to make an advance statement should be assessed, and when the advance statement should be invoked. In relation to treatments such as electro-convulsive therapy (ECT), there are difficulties about whether any right to refuse such treatment in advance should be restricted to those who have had experience of the treatment. There are also resource implications if patients who refuse effective treatment require longer periods of hospitalisation as a result (although this argument would apply to any refusal of treatment, and does not prevent patients in general from refusing treatment when competent).

30. Against that, the submission stated that one of the advantages of advance statements from both the users' and health care professionals' perspective is that it opens up discussion and negotiation about future care and treatment. When advance statements have legal status they are seen as 'forcing' the doctor to listen to the patient. The need for advance statements is perceived more strongly where patients feel coerced into accepting treatment they do not want. Where good relationships exist between patients and the mental health team, they may be seen as unecessary.

Our conclusions

31. We support the greater use of advance statements, as a means by which service users may make their views and wishes known. We do not, however, recommend that legislative provision should be made in relation to advance statements in general. To do so would encroach on areas of health care which go beyond our remit.

32. Even in relation to the specific issue of treatment for mental disorder, our consultations did not identify a clear consensus which could readily form the basis of legislation in such a complex and contentious area. Although the fact that the common law in this area is unclear creates its own difficulties, attempting to legislate may only serve to increase the potential for confusion and litigation. It would also be difficult to justify having special legislation to deal with treatment for mental disorder and not physical treatments.

33. However, there remains the specific issue of whether advance statements should have some force in relation to treatment of patients subject to compulsion under the Mental Health Act. At the moment, this is perhaps the only situation where a validly made advance statement has no legal force at all. We considered the suggestion that advance statements would be binding unless there was a risk of harm to others or serious harm to the patient. Ultimately, we concluded that to do so would raise a range of practical problems, and that this was not the best way to achieve the desired aim: the greater involvement of service users in decisions concerning their care and treatment.

34. Our general view, then, is that valid advance statements should always be taken into account, but that they should not be legally binding when the relevant treatment is authorised by the Mental Health Act. We set out below our views as to how such statements might be incorporated into the arrangements for care and treatment under the Act.

How the new system would work

What the advance statement would look like

35. It is neither necessary or desirable to set out a particular statutory form of advance statement. The known previous wishes of service users should always be taken into account, whether or not set out formally in an advance statement. However, the advance statement offers a convenient means for the service user to confirm his or her views. To give it the appropriate status, we believe that it is desirable that the statement should be entered into with a degree of formality. This will reinforce the significance of the document, and make it easier to be satisfied that the document is valid.

36. The purpose of such a statement may be similar to that of a welfare power of attorney under the Adults with Incapacity Act; indeed both could be encompassed within the same document. We propose that similar requirements operate for advance statements as for welfare powers of attorney²⁸, although it would not be necessary for advance statements to be registered²⁹.

37. In order, then, for an advance statement to be deemed validly made for the purposes of the Mental Health Act, it should be in written form, and signed by the granter (with alternative arrangements made for people unable to sign documents for whatever reason). The statement should also be signed by a doctor, solicitor, or other person of appropriate standing, that the person appeared able to understand the nature and effect of the advance statement and to make decisions regarding it.

When the advance statement would be drawn up

38. There need not be any specific legislative requirement concerning the circumstances in which an advance statement is drawn up. It might be appropriate for example for a statement to be drawn up, or an old one revised, when a service user is being discharged from hospital, or planning for another major change in circumstances; but one could be entered into at any time. There are obvious merits in statements being written in circumstances which maximise the chances that they are known about, accepted as valid, and taken into account.

39. For many patients, the best way to ensure this might be for the advance statement to be drawn up in consultation with their doctor, or another member of the health care team. Others may prefer to involve a social worker, or an advocate. In any event, it would be desirable that the advance statement be communicated to the people expected to have regard to its contents, before the issues which it is intended to cover arise. One means of ensuring this would be to have the statement placed with the service user's medical records or, as appropriate, incorporated within a community care assessment or plan of care.

The procedure when an advance statement is in existence

40. If a service user makes an advance statement in relation to treatment which is not covered by any compulsory order under the Mental Health Act, it would be for the relevant health care professionals to apply the common law in considering what weight to attach to the advance statement. The advance statement would only be of relevance where the patient was incapable of making a decision about treatment, since otherwise it would be the patient's current decision that would have precedence.

41. Where, however, a patient is subject to compulsion under the Mental Health Act, and the statement relates to treatment for mental disorder, the health care professionals would be expected to consider the validity of the advance statement, bearing in mind what is known about the person, the person's mental state at the time the statement was entered into, and other relevant circumstances.

42. The Code of Practice should contain guidance on factors which are relevant to the validity of the advance statement. In addition, it could contain recommendations as to good practice to improve the effectiveness of the system of advance statements. These might include that training should be given to medical practitioners and nurses in the use of advance statements.

43. If satisfied that an advance statement is, on the face of it, valid, health care professionals would be expected to have proper regard to its terms. Any decision not to implement the terms of an advance statement should be recorded, together with reasons. Such reasons would include the potential risk of harm to the service user, or to third parties, if treatment is withheld in compliance with the statement. Except in the case of urgent necessity, treatment should not normally be given in breach of such a statement to a patient subject to emergency or short term detention.

44. Service users would also be able to indicate in advance that they would wish certain forms of treatment should they become unwell. Although this would not require service providers to honour the request, the reasons why the services requested by the service user could not be provided should be recorded.

45. In the case of long term compulsion, or an appeal against short term measures, the tribunal would consider the advance statement alongside the evidence led to justify compulsory measures. It would consider first of all whether the advance statement is valid, applying the criteria which we discuss above. Should the tribunal not be satisfied that the advance statement is valid, it would be disregarded.

46. Otherwise, the statement would be taken into account as part of the general consideration of whether compulsory measures are justified, and what they should be. The tribunal would not be bound to implement the terms of an advance statement, but would be required to give it due weight in agreeing to compulsory measures and any associated plan of care.

47. Although we hope it would happen rarely, it may be necessary to consider what might happen if an advance statement comes to light, after compulsory measures are in place, but having been completed before then. It would be for the responsible medical officer (RMO) to consider its terms, and whether it applies to any treatment authorised in terms of the compulsory measures. Should this be the case, the RMO would be expected to consider, so far as is practicable, whether the advance statement is valid. Should the RMO be satisfied that the advance statement is in fact valid, the reasons for giving any treatment in breach of the terms of the statement should be recorded in writing.

Liability of professionals

48. One of the issues which causes particular concern about advance statements is the possibility that professionals might face legal action, because they have treated a patient in a way which is inconsistent with the terms of an advance statement, or because they have not made adequate enquiry into the validity of an advance statement upon which they relied.

49. Because we do not recommend that advance statements be legally binding for patients subject to compulsion, the risk of such legal action should be reduced. However, there may still be concern as to the possibility of adverse legal consequences. We recommend in Chapter 19 that there should continue to be a provision, similar to the current s122, which would protect people from acts done in pursuance of the Act, provided they were done in good faith and with reasonable care. A similar protection should operate for actions taken in relation to advance statements for patients subject to compulsory measures. Provided a professional has taken proper care, and paid regard to the existence of an advance statement in the context of his or her professional and other responsibilities, there should be no liability either for following or declining to follow an advance statement.

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