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Best Interests and Treatment for Mental Disorder

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Best Interests and Treatment for Mental Disorder

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    1. Best Interests and Treatment for Mental Disorder Phil Fennell Cardiff Law School Cardiff 12 April 2007

    2. Outline The Mental Health Act 1983 and the Mental Capacity Act - Parallel and Overlapping Jurisdictions ‘Likely to alleviate or prevent deterioration in the patient’s condition’ MHA 1983 Parens patriae, the doctrine of necessity, and ss 5 and 6 of the Mental Capacity Act. Best interests MCA 2005 section 4 The impact of the Human Rights Act 1998 The Convergence Agenda

    3. Mental Health Act 1983 Part lV sets out a regime of powers to treat detained patients without their consent for mental disorder. Under section 58, ECT and medicines for mental disorder may be given to a patient who lacks capacity or who is capable but refuses treatment if second opinion doctor approves the treatment as being ‘likely to alleviate or prevent deterioration in the patient’s condition.’ The term ‘best interests’ does not appear in the MHA 1983.

    4. Threshold criteria for detention Mental disorder of a nature or degree warranting detention for assessment or treatment. Detention for assessment/treatment necessary for the patient’s health or safety or for the protection of others.

    5. Threshold criterion for treatment without consent That the treatment is ‘for mental disorder’ – Includes symptoms and sequelae B v Croydon HA [1995] 2 WLR 294. That ‘the treatment ought to be given having regard to the likelihood that it will alleviate or prevent deterioration in the patient’s condition’ Reid v Secretary of State for Scotland [1999] 1 All ER 481

    6. Parens Patriae and the Doctrine of Necessity Re B (a minor) (wardship: sterilisation) [1988] AC 199 Re F (Mental Patient: Sterilization) [1990] 2 AC 1 – Adult patient with learning disability - not detained - treatment (sterilization for contraceptive purposes) could not be described as treatment for mental disorder See Fennell, Treatment Without Consent (1996), 239-249.

    7. Doctrine of Necessity The common law doctrine of necessity provides that mentally incapacitated adults may be restrained using reasonable force and given treatment without consent which is necessary in their best interests, without those carrying out the treatment incurring liability in battery. This common law doctrine is now codified in sections 5 and 6 of the Mental Capacity Act 2005. Treatment given under the doctrine of necessity may be for physical or mental disorder.

    8. Threshold criteria ‘Gatekeeper concepts’ for treatment without consent for physical and mental disorder under common law and under the Mental Capacity Act 2005 are mental incapacity brought about by a disturbance of mind and best interests.

    9. Incapacity Unable by reason of mental disability to Understand and retain relevant treatment information Use and weigh the information in the balance to arrive at a decision Communicate the decision in any way

    10. Best Interests Best interests was initially to be determined according to the Bolam formula. Treatment was in the best interests of a patient if a responsible body of medical opinion (not necessarily the majority) would consider it to be in the patient’s best interests (Re F (Mental Patient: Sterilization) [1990] 2 AC 1).

    11. Best interests: The balance sheet approach Two stage approach: Is the treatment within ‘the Bolam range? Which treatment provides the greatest ‘significant credit’ of probable advantages over disadvantages (the balance sheet)? Re A (Male Sterilisation) [2000] 1 FLR 549 – see Thorpe LJ at 560.

    12. Broad Concept of Best Interests Also broader concept of best interests, recognizing interconnectedness of incapacitated people and their carers/families. Duty to consider and assess the best interests of the patients in the widest possible way to include the medical and non-medical benefits and disadvantages, the broader welfare interests of the patient, their abilities, their future with or without treatment, the impact on their families, and the impact of denial of the treatment. JS v a NHS Trust [2002] EWHC 2734 (Fam).

    13. Best interests under Section 4 MCA 2005 Take into account the person’s past and present wishes and feelings, his beliefs and values which might be likely to influence his decision, and any other factors which he would be likely to consider if able to do so. If practicable and appropriate the decision maker must consider the views of anyone named by the person to be consulted, any carer or person interested in his welfare, any donee of a lasting power of attorney granted by the person, and any deputy appointed by the Court of Protection.

    14. The impact of the Human Rights Act 1998 In order for treatment given without consent to be lawful under Article 3 and Article 8 of the European Convention on Human Rights it must be convincingly shown to be medically necessary Herczegfalvy v Austria (1993) 15 EHRR 437, R (N) v Dr M [2002] EWCA Civ 1789, [2003] 1 WLR 562.

    15. Impact of the Human Rights Act 1998 Initially DDL 84(4) the question was whether other responsible doctors would consider the treatment likely to alleviate or prevent deterioration in the patient’s condition. Now, post R (on the application of Wilkinson) v Broadmoor SHA [2001] EWCA Civ 1545, [2002] 1 WLR 419 the question is whether the second opinion doctor him or herself considers the treatment likely to alleviate or prevent deterioration.

    16. Impact of the Human Rights Act 1998 Effort to argue that s 58 incompatible with Articles 3 and 8 in that it authorises the compulsory treatment of those who have capacity to refuse the treatment and do refuse, without specifying in sufficiently precise terms the circumstances in which a competent refusal to consent may be overridden, namely where (i) such treatment is necessary to protect other persons from serious harm, or (ii) without such treatment, serious harm is likely to result to the patient's health. R (B) v SS, Responsible Medical Officer, Broadmoor Hospital and others [2005] EWHC 1936 (Admin) [2006] EWCA Civ 28

    17. Impact of the Human Rights Act 1998 Re F (Adult: Court’s Jurisdiction) [2001] Fam 38 R v Bournewood Community and Mental Health Trust ex parte L [1998] 3 All ER 289 HL v United Kingdom [2005] 40 EHRR 32. Article 5(1)(e) Detentions on grounds of unsoundness of mind must be carried out in accordance with a procedure prescribed by law Sunderland CC v PS and CA [2007] EWHC 623 (Fam)

    18. Impact of the Human Rights Act 1998 Storck v Germany Judgment of 5 July 2005 requires that there be effective supervision and review of decisions to deprive of liberty and to treat without consent. Retrospective possibility of suing in tort or bringing criminal prosecution is not enough.

    19. Similarities between MHA and MCA Both have threshold criteria of mental disorder – impairment of or disturbance in the functioning of mind or brain MCA s 2, - mental illness, psychopathic disorder, arrested or incomplete development of mind and any other disorder or disability of mind MHA s 1. Both authorise treatment without consent Both must adhere to the principle of clinical necessity.

    20. Contrast between MCA and MHA The MCA applies where person lacks capacity – confers retrospective defences ss 5 and 6. The MHA operates on the basis of risk to self or to others – uses procedures.

    21. Interface Mental Capacity Act s. 28 precludes giving treatment for mental disorder under any of MCA’s provisions, ‘if at the time when it is proposed to treat the patient, his treatment is regulated by Part lV of the 1983 Act.’ In other words, the Mental Capacity Act will not apply if the patient is liable to be detained under one of the longer term detention powers in the Mental Health Act.

    22. Interface Interface Sections 5, 6, 28, 37. Sections 5 and 6 of the 2005 Act provide a general defence to acts of care and treatment, which may involve restraint and restriction of liberty of a mentally incapacitated person. Codifying the common law. When should ss. 5 and 6 or equivalents be used, and when should the compulsory powers under the MHA 1983 be used?

    23. The Mind/Body Distinction Treatment for mental disorder may be given without consent under Part lV of the MHA 1983 to a patient who is liable to be detained under the Act. Treatment for physical disorder may only be given without consent if the patient lacks capacity and treatment is in her or his best interests. Treatment for mental disorder may be given without consent to a patient who is not detained and who lacks capacity where the treatment is in her or his best interests.

    24. The Convergence Agenda The Convergence Agenda. That decisions to treat without consent should be based on the same criterion, mental incapacity, regardless of whether the treatment is for mental or physical disorder. Pursued by service users, the psychiatric profession, the Richardson Committee, and in case law such as R (PS) v RMO, Dr G (1) SOAD, Dr W (2) [2003] EWHC 2335 (Admin), R (B) v Dr SS (1) Dr AC (2) Secretary of State for Health [2005] EWHC 86 (Admin), R (B) v Dr Haddock [2005] EWHC 921, [2005] EWCA Civ 1726 R (B) v SS, Responsible Medical Officer, Broadmoor Hospital and others [2005] EWHC 1936 (Admin) [2006] EWCA Civ 28

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