Ability to Leave?

In the first of a series of articles Camilla Parker, Solicitor and freelance consultant, examines the area of capacity, admission to hospital and treatment under the Mental Health Act 1983.

It is rare for court rulings to have such an immediate and crucial impact as that of the decision in L v Bournewood Community and Mental Health Trust . The Court of Appeal's conclusion that individuals who are not capable of giving consent to their admission to hospital for assessment of, or treatment for, their mental disorder must be detained under the Mental Health Act 1983 marks a dramatic change in accepted practice in mental health services. Prior to this decision, patients without capacity to consent to their admission to hospital were usually admitted informally unless they actively resisted admission.

L v Bournewood Community and Mental Health Trust

Mr L, a 48 year old autistic man was admitted to Bournewood Hospital, after becoming agitated at the day-care centre he regularly attended. Given that L was "quite compliant" and had "not attempted to run away", the doctor in charge of L's care had decided that there was no need to detain L in hospital under the Act. Mr L's carers took action against the NHS Trust responsible for the management of the hospital, claiming that L was unlawfully detained. The Trust argued that L was informally admitted to hospital and remained there without any restraint. The Trust's alternative contention was that if L's presence in hospital amounted to detention, this was lawful on the basis that it fell within the "common law doctrine of necessity" which justified giving L treatment in accordance with his best interests.

Accordingly the court first considered whether L was detained, concluding that he was because it was clear that if he had tried to leave he would not have been allowed to do so:

"In our judgement a person is detained in law if those who have control over the premises in which he is have the intention that he shall not be permitted to leave those premises and have the ability to prevent him from leaving."

Having concluded that L was detained in hospital, the court considered the argument put forward on behalf of Mr L that the Trust could not rely on the common law doctrine of necessity because the Mental Health Act 1983 provided the only legal basis for L's detention. The court agreed with this proposition:

"Our conclusion is that the right of a hospital to detain a patient for treatment for mental disorder is to be found in, and only in (emphasis added), the 1983 Act, whose provisions apply to the exclusion of the common law principle of necessity. Section 131, which preserves the right to admit a patient informally, addresses the position of a patient who is admitted and treated with consent."

The Court of Appeal made clear that the Trust could not rely on the "common law doctrine of necessity" in detaining L because his circumstances fell within the scope of the Act:

"The Common Law powers of necessity can be exercised by an individual to protect someone who is ill whether his illness is due to physical or mental causes. But, where the 1983 Act covers the situation, no necessity to act outside the Statute can arise. The Trust's powers to act under the common law doctrine of necessity can arise only in relation to situations not catered for by the 1983 Act."

The Trust has been given leave to appeal against this decision and the House of Lords is likely to consider the case in the early summer. In the meantime however, the NHS Executive has made clear that service providers must comply with the Court of Appeal'' ruling .

The Importance of L v Bournewood Community and Mental Health Trust

Although the Act provides that people may be compulsorily detained in hospital on the grounds of their mental disorder, section 131 makes clear that this does not prevent a person from being admitted informally, without following the detention procedures. This has previously been interpreted as allowing the admission of patients without capacity to consent to admission without the need to formally detain them under the Act. It is this practice which the Court of Appeal has found to be unlawful.

This case highlights the lack of clarity about the use of the Act in circumstances where the patient is not able to consent to admission but is not actively refusing to go to, and stay in, hospital. Up until now this has been left to clinicians to decide upon, with very little guidance. The problem was referred to by the Mental Health Act Commission in its Sixth Biennial Report:

... .the Commission is frequently asked to comment on whether elderly patients with dementia or other organic brain syndromes which impair their mental capacity to make reasoned judgements should be detained for care and treatment under the provisions of the Act or can be admitted and cared for informally... ...

The Commission considers that each case must be considered on its merits. The majority of older people with dementia are willing to accept the care and treatment offered to them and can be admitted as informal patients.

Where the patient actively refuses treatment, the Commission recommends that an assessment for treatment under the Mental Health Act is undertaken. Many of the patients who persistently wander away from the ward or actively resist treatment, including medication or nursing care, are "de facto" detained, when they might properly be treated under the Act. The Act provides a surer legal framework for staff to make decisions and affords an opportunity for such a patients detention to be reviewed by the Managers and Mental Health Review Tribunals at regular intervals."

The Court of Appeal has made clear that it is not necessary for the patient to "actively" refuse. If it is considered necessary to admit and detain a person in hospital for treatment for a mental disorder when that person lacks capacity to consent then the patient must be detained under the Act.

The fact that this ruling was likely to have a far reaching impact, in particular on the care of people with dementia was not, in the court's view a relevant issue:

"The current practice cannot justify a disregard of the Act. This is especially true because of the undesirable consequences which can follow a practice which bypasses the safeguards which the Act provides for patients who are statutorily detained."

The Mental Health Act Commission described such undesirable consequences when raising its concerns about "de facto" detained patients, in particular people with learning disabilities, in its latest Biennial Report:

"Patients who lack capacity are rarely sectioned. Among this group are some who are described as having challenging or difficult behaviour. They are often treated with continuous and high dosages of medication. If they have not been detained under the Act, the [Mental Health Act] Commission does not have jurisdiction to interview them or to investigate complaints by them or made on their behalf. These patients have no statutory safeguards, no access to Mental Health Review Tribunals, no Second Opinion reviews of medication, no powers of the nearest relative to discharge and no contact with the Commission."

The Court of Appeal's decision in the Bournewood case means that such patients are now likely to be detained under the Act. The NHS Executive has written to the Chief Executives of all NHS Trusts and Health Authorities, Directors of Social Services and other groups of mental health professionals, setting out the action which should be taken:

(i) a patient who lacks capacity to consent to admission and satisfies the criteria for admission in section 2 or 3 of the Act, including the need for detention in hospital, should, if admitted, be formally detained for assessment or treatment for mental disorder;

(ii) a patient who lacks capacity to consent to admission cannot be informally admitted to hospital for assessment or treatment for mental disorder even if they do not dissent;

(iii) in an emergency, if a patient lacks capacity and no application for admission under the Act is made, a hospital is able to look after the patient to prevent him or her from harming themselves until other reasonably satisfactory arrangements can be made for their care.

The ruling applies both to new admissions and to patients who are already in hospital. If a patient who has capacity and consents to admission later becomes incapable the clinical team should consider whether an application for formal detention under the Act is required."

Capacity to Consent to Stay in Hospital

The Bournewood judgement does not provide guidance on the test of capacity for admission to hospital. This is because the Court of Appeal considered that for the purposes of the case, L would be regarded as unable to express consent or dissent to detention. However, the NHS Executive suggests that the principles concerned with the capacity to consent or refuse treatment will be applicable to consent to admission and thereafter remaining in hospital to receive treatment or assessment for treatment. Accordingly the NHS Executive's letter refers to the relevant extract from the revised Code of Practice to the Act:

"The assessment of a patient's capacity to make a decision about his or her own health care is a matter of clinical judgement, guided by current professional practice and subject to legal requirements."

Further guidance can be found in the case of Re MB where the Court of Appeal set out the issues which need to be considered when assessing a person's capacity (to consent to treatment)

"A person lacks capacity if some impairment or disturbance of mental functioning renders the person unable to make a decision whether to consent to or refuse treatment. That inability to make a decision will occur when

a) the patient is unable to comprehend and retain the information which is material to the decision, especially as to the likely consequences of having or not having the treatment in question.

b) the patient is unable to use the information and weigh it in the balance as part of the process of arriving at the decision .

If the patient lacks capacity to consent to admission then it will be necessary to consider whether the Act should be applied.

Detention under the Mental Health Act 1983

The Act provides for the detention in hospital and compulsory treatment of people suffering from mental disorder. Generally, a person will be detained under section 2 of the Act, "admission for assessment" or section 3, "admission for treatment", although the Act includes other powers of detention in emergency situations .

Under section 2 of the Act a person can be detained in hospital for a period of up to 28 days if the person's mental disorder is "of a nature or degree which warrants the detention of the patient in hospital for assessment (or for assessment followed by medical treatment) for at least a limited period" and it is considered that the person ought to be detained in the interests of his or her "own health or safety or with a view to the protection of other persons". The power to detain under section 2 cannot be renewed.

Section 3 of the Act provides that a person suffering from a specific form of mental disorder namely mental illness, mental impairment, severe mental impairment or psychopathic disorder may be detained for an initial period of up to six months (which can be renewed) if certain conditions are met. The mental disorder must be "of a nature or degree" which makes it appropriate for the person to receive treatment in hospital and it is considered necessary for the health or safety of that person or for the protection of others, that the person is detained. In the case of mental impairment and psychopathic disorder the treatment must be likely to alleviate or prevent a deterioration of the person's condition. (This is known as "the treatability test".)

Implications of Bournewood - Capacity and Consent to Treatment

The Court of Appeal's ruling is predominantly concerned with the admission of people to hospital for treatment for their mental disorder when they lack capacity to agree to such admission.

However, the consequences flowing from the decision has left a number of unanswered questions. For instance, it is not clear whether those who have received respite care in hospital are now required to be detained under the Act each time they are admitted into hospital if they are unable to consent to the admission.

Another crucial issue remains unresolved. It is clear that the ruling affects people who are receiving treatment for their mental disorder in hospitals or registered nursing homes . Following the decision, consideration must now be given as to whether such patients should be detained under the Act if they are unable to consent to admission for treatment for their mental disorder. This raises the question whether the ruling effects people who are being cared for in non-hospital settings, such as nursing homes not registered to receive detained patients, and are receiving treatment for their mental disorder without their consent.

In the case of Re F, Lord Griffiths described the clinician's duties to adhere to the compulsory treatment provisions set out in the Act:

"The doctor will however be subject to the specific statutory constraints on treatment for mental disorder provided by Part IV of the Mental Health Act 1983. Certain radical treatments such as surgical destruction of brain tissue cannot be performed without the consent of the patient and if the patient is incapable of giving consent the operation cannot be performed, however necessary it may be considered to be by the doctors. Other less radical treatment can only be given with the consent of the patient or, if the patient will not or cannot consent on the authority of a second medical opinion."

Such other "less radical treatment" includes psychiatric drugs and Electo-convulsive therapy (ECT). Medication given after the first three months or ECT may only be given with the patient's consent or if a Second Opinion Appointed Doctor (SOAD has authorised such treatment . The SOAD must consider whether, having regard to the likelihood of the treatment alleviating or preventing a deterioration of the patient's condition, the treatment should be given. Before deciding whether to authorise the treatment the SOAD must interview the patient, discuss the treatment with the doctor in charge of the patient's treatment and consult two other people who are professionally concerned with the patient's medical treatment.

These procedures must be followed where the patient is detained in hospital (or a registered nursing home) under the Act and is refusing, or unable to give, consent to treatment for his or her mental disorder. No such safeguards exist if the person is not detained under the Act. However, people in non-registered nursing homes and registered care homes without capacity to consent to the treatment may be receiving medication for their mental disorder, prescribed by their GPs . Under common law a person without capacity to give consent to treatment may be treated if such treatment is in that persons best interests . It could be argued that following the Bournewood decision, given that the Act "caters" for treatment for disorder without consent, such patients may only be treated for their mental disorder if detained under the Act. This question may be explored in the appeal to the House of Lords.

An alternative route?

Some may argue that many people affected by the Bournewood ruling will now be unnecessarily subjected to the stigma of detention under the Act and those caring for them should be able to do so without the need to invoke such cumbersome and time consuming procedures inherent in the Act. However, the Act was intended to provide adequate safeguards for those vulnerable members of society who it is considered need to be cared for and treated without their consent. Such safeguards were not only aimed at those refusing consent to admission and treatment but also those not able to give their consent.

If the House of Lords consider that detention under the Act is not an appropriate means of safeguarding the interests of people suffering from dementia, severe learning disabilities or other conditions affecting their ability to express their wishes, other means of providing adequate protection for such individuals must be found. The Government's consultation paper on incapacity would be a good starting point for such a debate.

Camilla Parker, March 1998