Mental Incapacity: New Millennium:New Law?

Feature

posted 1 Nov 1999 in Volume 5 Issue 1

Mental Incapacity: New Millennium - New Law?

A report on the joint conference of The Law Society, The Mental Health Act Commission and The Royal College of Psychiatry.

Some 400 lawyers, doctors and other professionals attended the joint conference on Wednesday, 10th November. Demand for places was so great that an overflow room, with video links, was brought into service. The conference was intended to be multi-disciplinary, and this was reflected in the input at question time. However most of the speakers were lawyers and, inevitably, the main focus was on legal rather than clinical issues.

The day was divided into three parts. The two afternoon sessions explored, first of all the definition and assessment of mental capacity, and secondly human rights aspects of the present law and practice. Dr Tony Holland and Isobel Clare, both working in the Department of Psychiatry at Cambridge University, and Professor Michael Dunn of Nottingham Law School provided a very interesting paper outlining their recent joint research which has focused on the development of practical assessment tools, which are legally effective, ethically defensible, and which respect the principle of autonomy by enabling individuals to demonstrate their capacity. Their findings were consistent with the currently accepted 'functional' approach to decision making which suggests that capacity reflects an interaction between the decision-maker and the demands of the decision-making task. Capacity was found to be most impaired among the participants in the study who had learning disabilities or were suffering from dementia. Ninety per cent of the participants suffering from a mental illness (chronic schizophrenia or schizoaffective disorder) were judged to have capacity. One general conclusion is that the present emphasis on 'consent' rather than assent, or lack of dissent, means that the assessment of capacity requires considerable care and that it is very difficult to apply the relevant standard in practice.

Subsequently, Richard Gordon QC, who has appeared in most of the recent landmark public law cases on mental health and long term care considered the likely implications of the Human Rights Act 1998 for treatment and detention issues in relation to capacity. His paper set out a comprehensive outline of the core provisions of the new legislation, relating that to the ECHR itself and to some of the European case law. It went on to explore the parts of the Convention which impact on people who lack mental capacity, concluding that the Mental Health Act 1983 is, by and large, ECHR compliant, but that the common law doctrine of necessity which permits informal detention of a person who lacks mental capacity is hopelessly deficient . The recent decision by the House of Lords in L v Bournewood Community and Mental Health NHS Trust [1998] 3 WLR 107 that a compliant patient, with autism, could be detained and treated (without his consent) under the common law, and without the benefit of the Mental Health Act procedural safeguards, is at present before the European Court of Human Rights. The challenge is being made under Articles 5(1) and 5(4) of the Convention on the grounds that Mr L's detention was not 'in accordance with a procedure prescribed by law' because it contained insufficient safeguards for him.

The last speaker of the day was William Bingley, Chief Executive of the Mental Health Act Commission, who gave a lecture entitled 'achieving human rights for people who lack capacity' in tribute to Lydia Sinclair who worked selflessly and without stint to empower, and defend the civil rights of this group, and who, sadly, died --- year . The lecture explored the basic political values which need to underpin the law on incapacity and the legal relationships of people who lack capacity in a civil society.

The entire morning session of the conference, was devoted to the Government's proposals for reforming the law on substituted decision making. These were presented by the Lord Chancellor himself, who emphasised 'the fundamental importance' of law reform in this area, but found himself unable to give any firm commitment to implementation except to say that the primary legislation would be brought forward 'when parliamentary time allows'. These proposals will be familiar to most readers. They originated in a number of papers published by the Law Commission in the early 1990s, from which emerged the final report 'Mental Incapacity' (No. 231), incorporating a draft Incapacity Bill. The report was shelved by the Conservative government after the tabloid press attacked one or two of its proposals, but was resurrected by the present government, which initiated a further round of consultation. The present proposals, which are summarised in box 1 are still less radical than those contained in the original bill.

The opening speaker, District Judge Gordon Ashton, whose published work on disability and the law is well known, reflected on the process of change, both in England in other jurisdictions and voiced some concerns that reform, when it comes, may not be sufficiently radical. He paved the way for the Lord Chancellor's own statement, which carefully summarised the published proposals . The Lord Chancellor was unable to stay to answer questions, but the lively discussion at the end of the morning session made it quite clear that there will be some very difficult issues to resolve in putting legislative flesh on these by now well rehearsed proposals. The potential interaction between, for example, a manager appointed by the new Court of Protection and the general authority which will be invested in family members or carers is at present unclear, as is the distinction between the general authority under a CPA to take financial or welfare decisions, and the more limited authority proposed in relation to health care decisions. The Law Commission's original suggestion that the best interests test should be encapsulated in a 'welfare checklist', similar to that in section 1 of the Children Act 1989, has been endorsed and, indeed, amplified by the policy statement.

The Lord Chancellor was followed by Denzil Lush, Master of the Court of Protection, who analysed the likely jurisdiction and functions of a newly constituted Court of Protection, based on the original Law Commission Report and draft Mental Incapacity Bill. It does appear that the government, after some wavering, has now accepted the principle that the new court should have a regional presence, and should not be centralised in London.

The final speaker of the morning was Professor Genevra Richardson, chair of the Scoping Committee which has recently carried out a Review of the Mental Health Act 1983. The detailed recommendations made by this Committee are not yet within the public domain but a Green Paper is expected shortly. Professor Richardson spoke of the relationship between Making Decisions and the Mental Health Act 1983, and referred to the 'indefensible gap' (per Lord Steyn in the Bournewood case) whereby the common law doctrine of necessity allows the compulsory treatment of incapacitated patients outside the safeguards laid down by the Mental Health Act. The numbers of such patients are significant: there may be twice as many incapacitated, but compliant patients as patients compulsorily detained under the MHA. In addition there is no clear evidence as to how many other people without capacity receive treatment in the community, again without procedural safeguards.

The brief given to the Scoping Committee was to recommend legislative reform, to implement government policy on compulsory treatment. The Committee was not asked to address the broader questions around incapacity or incapacity legislation, and anticipated that Making Decisions would consider the Bournewood gap, and the statutory framework which will be essential if the UK is to meet its obligations under the Human Rights Act. Making Decisions does not, however, refer in any detail to the MHA Review, or to the Bournewood case, stating simply that the Government 'will consider carefully the implications of the review of the MHA for the proposals on incapacity'.

Conclusions

Three obvious conclusions may be drawn from the day's proceedings:

1. The government's proposals are considerably more limited than those originally put forward by the Law Commission, and the process of restricting the scope of legislative intervention has served to expose the absence of a conceptual framework within which to address the Bournewood gap, referred to by more than one speaker. As a policy statement Making Decisions, does not stand alone. It cannot be read except as a gloss on the Law Commission Report, and makes only passing reference to a number of important issues. Most discussion is devoted to the reasons why the government should not legislate on advance directives. There is no real evidence in the statement of the 'joined up thinking' on important policy issues which we have all been led to expect.

2. Many questions were raised which none of the expert speakers was able to deal with satisfactorily. This indicates that preparing the legislation and setting up the infrastructure of the court will be a difficult business and, realistically, therefore there is going to be no short term solution to the day to day problems for practitioners who have to work around the present yawning gaps in the law. One ray of sunlight was cast by the Lord Chancellor's commitment to underpin new legislation with a comprehensive Code of Practice, following a further process of consultation.

3. During the day the audience's most positive response followed a brief, unscheduled presentation by Adrian Ward, an unscheduled speaker, who is convenor of the Mental Health and Disability Committee of the Law Society of Scotland and principal spokesperson for the Alliance for the Promotion of the Adults with Incapacity Bill. This bill is at present before the Scottish Parliament and will be on the statute book by the end of the current parliamentary session. Adrian acknowledged the 'astonishingly antiquated' state of the present law in Scotland, which provides a strong impetus towards reform, but also made it clear that the decisive influence which has put incapacity near the top of the Scottish Parliament's first legislative programme has been the promotion of a major alliance between statutory and voluntary agencies, and the Scottish Law Society. There has been an extensive campaign with strong grass roots pressure to overcome what is presented as an injustice which 'seriously and urgently' requires to be remedied. In an article published in the LSG on 20th October, Gordon Ashton refers to the efforts made by the Law Society's Mental Health and Disability Sub-Committee to increase awareness of the need for reform amongst interested groups, rather than achieving newspaper headlines. He comments: 'It remains to be seen whether this low-key approach has been effective', and adds, wistfully, 'What a pity it will be if other jurisdictions benefit from the work of our Law Commission before we do'. Scotland certainly will.

Making Decisions

Main proposals

1)

Statutory definition of incapacity;

Functional approach to determining incapacity;

Best interests test;

General authority (e.g. for carers) to act reasonably and in accordance with the individual's best interests;

2) Introduction of CPAs - to enable delegation of decisions on finance, social welfare and health care.

3) New style Court of Protection to resolve disputes regarding capacity and the operation of CPAs; power to appoint managers as substituted decision makers.

4) All CPAs to be registered before they can be used; some restriction on health care decision making.

There is not to be legislation on:

Advance directives (living wills);

Independent supervision of medical and research procedures;

Public law protection for people at risk;

A new offence of ill-treating or wilfully neglecting a person without capacity;

A release of payments scheme;

The government is still considering the potential role of advocates within the new system.