Mental health and mental capacity: the new overlap

Section 63 of the Mental Health Act (MHA) 1983 permits the provision of treatment 'by or under the direction of the responsible medical officer' (RMO) to a non-consenting patient lawfully detained in a psychiatric institution within the first three months of its administration.

At the end of the requisite period, s58 will be engaged if the patient's RMO considers that the medical treatment should be continued. It is clear from the Act that medication may only be given to a non-consenting incapacitated patient on an ongoing basis under s58 if the treatment should be given because of the 'likelihood' of its 'alleviating or preventing a deterioration' of their condition' (s58(3)(b)).

Since coming into force on 1 October 2007, the Mental Capacity Act (MCA) 2005 has introduced a new regime for the treatment of those who are incapacitated. However, the MCA 2005's executive summary, the explanatory notes, and the Code of Practice appear to take it for granted that the provisions of the new Act are not to apply to patients detained for treatment under the MHA 1983. But there is in fact nothing within the MCA 2005 itself which precludes the application of its principles to an incapacitated compulsorily detained patient, or which requires the exclusion of such a patient from the benefit of the MCA 2005 safeguards.

The result must be that the common law test on best interests will continue to apply instead to those detained under the MHA 1983 who lack the capacity to decide on their own medical treatment. Is this appropriate? Are psychiatric patients in a better or worse position than their incapacitated undetained equivalents?

Statutory guidance

The preamble to the MCA 2005 describes the new legislation as (inter alia) '[a]n Act to make new provision relating to persons who lack capacity'. Naturally this may apply to some patients detained in psychiatric institutions, and it is difficult to see why they should be precluded without a clear statement to that effect within the statute, which is in fact silent upon the matter.

Section 28(1) of the MCA 2005 states that '[n]othing in this Act authorises anyone. . . to give a patient medical treatment for mental disorder, or . . . to consent to a patient's being given medical treatment for mental disorder' if 'his treatment is regulated by Part 4 of the Mental Health Act' (relating to consent to treatment).

It is clear, therefore, that the MCA 2005 does not authorise the medication of detained incapacitated patients, such treatment in fact being authorised under s63 and s58 of the MHA 1983.

However, it is submitted that there is a difference between 'relying on' legislation to provide treatment (such as where the administration of certain treatment is made lawful by statute) and the application of its principles when deciding whether treatment should be provided under a different statute '“ the MHA 1983 '“ if certain conditions are fulfilled. Nothing within s28 of the MCA 2005 precludes the application of the best interests checklist for the purposes of deciding whether or not treatment should be provided to an incapacitated patient under s58 of the MHA 1983.

However, the MCA2005 's Code of Practice suggests otherwise. Paragraphs 13.27 and 13.29 of the Code state that incapacitated detained patients cannot be given treatment pursuant to the MCA 2005. The reason for this is 'because Part 4 of the MHA 1983 already allows clinicians, if they comply with the relevant rules, to give patients medical treatment for mental disorder even though they lack the capacity to consent' (para.13.29). The explanatory notes appear to endorse this exclusionary view. Referring to s28 of the MCA 2005, para 94 states that '[t]he section ensures that the Mental Capacity Act does not apply to any treatment for mental disorder which is being given in accordance with the rules about compulsory treatment set out in Part 4 of the 1983 Act'.

This is said to be because '[t]he specific statutory safeguards which the 1983 Act gives in relation to compulsory psychiatric treatment must always be afforded to those patients to whom that Act applies'. The implication is that the MHA 1983 provides stronger statutory safeguards than the MCA 2005, which the author submits is not actually the case. In any event, there would be very good reason for an incapacitated patient deprived of their liberty against their wishes to be protected by a double layer of safeguards.

Best interests at common law

The need for a SOAD to certify that 'having regard to the likelihood of its alleviating or preventing a deterioration of his condition, the treatment should be given' under s58(3)(b) of the MHA 1983 does not merely replicate the common law best interests test. In Re A (Male Sterilisation) [2000] 1 FLR 549, at 555, the concept of best interests was held to encompass 'medical, emotional and all other welfare issues'.

The common law has also been found to incorporate the Bolam test that proposed treatment must be in accordance with a practice accepted as proper by a responsible body of medical opinion (Bolam v Friern Hospital Management Committee [1957] 2 All ER 118; see also Re A (Male Sterilisation), at 555). More recently, the Court of Appeal in R v SS & Ors, ex parte B [2006] EWCA Civ 28 held in relation to s58 of the MHA 1983 that: ' . . . 'The likelihood of its alleviating or preventing a deterioration of his condition' should not be equated with the test of whether treatment is in the best interests of the patient. That question will depend on wider considerations than the simple question of the efficacy of the treatment, such as whether an alternative and less invasive treatment will achieve the same result. The distress that will be caused to the patient if the treatment has to be imposed by force will also be a relevant consideration . . . [T]he specified criteria are obviously critical to the decision of whether the treatment should be given, [but] they are not the only considerations that are relevant to that question. The SOAD has to certify that the treatment should be given and we do not see how he can properly do that unless satisfied that the treatment is in the best interests of the patient.'

Thus, the common law best interests test is expansive, involves a number of broad considerations, and is intended to safeguard the rights of detained incapacitated patients. Unfortunately, it is the author's experience that in practice SOAD certification is often little more than a rubber stamping of the RMO's opinion.

Statutory best interests test

So what precisely is the statutory best interests test and how does it differ from the test which has developed under the common law? The concept of best interests is not defined in the MCA 2005. The Act provides instead a checklist of factors that a decision-maker must consider when deciding what is in the best interests of an incapacitated person, including 'all the relevant circumstances' (s4(2)), the likelihood of a person regaining their capacity, and the timeframe thereof (s.4(3)(a)). Section 1(5) of the MCA 2005 states that 'an act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests'. It does not state that the best interests checklist should not be applied to an incapacitated detained patient. After all, the purpose of the MCA 2005 is 'to make new provision relating to persons who lack capacity'.

The MCA 2005 emphasises the importance of person-centred decision-making. The assessor should try to 'permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him' (s4(4)). This contrasts vividly with the position under the comparatively draconian MHA 1983 where treatment may be enforced contrary to a patient's consent. In addition, under the MCA 2005 the assessor 'must consider, so far as is reasonably ascertainable':

• 'the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity)' (s4(6)(a));
• the beliefs and values that would be likely to influence his decision if he had capacity (s4(6)(b)); and
• the other factors that he would be likely to consider if he were able to do so (s4(6)(c)).

The use of the imperative 'must' highlights the comparable position of powerlessness of those subject to the enforced treatment provisions of the MHA 1983. The statutory guidance as to the considerations to be taken into account by a SOAD contemplating certification under s58 is provided in paras 16.21 and 16.22 of the MHA 1983 Code of Practice. The paternalistic emphasis of the text is a far cry from the concept of individual autonomy: 'The SOAD . . . must reach his or her own judgment as to whether the proposed treatment is reasonable in the light of the general consensus of appropriate treatment for such a condition . . . [T]he SOAD should consider not only the therapeutic efficacy of the proposed treatment but also, where a capable patient is withholding consent, the reasons for such withholding, which should be given their due weight.'

However, the new statutory duty to consider a patient's 'past and present wishes and feelings' and the 'beliefs and values that would be likely to influence his decision if he had capacity' (s4(6) of the MCA 2005) largely reflects the position at common law. Simon Brown LJ held as follows in R v RMO for Broadmoor Hospital & Ors, ex parte Wilkinson (2002) 1 WLR 419, at 64: '[T]he wishes and feelings of the incapacitated person will be an important element in determining what is, or is not, in his best interests. Where he is actively opposed to a course of action, the benefits which it holds for him will have to be carefully weighed against the disadvantages of going against his wishes, especially if force is required to do this'.

But the position of the detained patient is much weaker with respect to the consultation of others. Under the MCA 2005, when considering best interests the assessor 'must take into account', if it is 'practicable and appropriate to consult them', the views of various other people, especially in relation to the matters to be considered under s4(6). Such consultees include 'anyone named by the person as someone to be consulted on the matter in question or on matters of that kind', (s4(7)(a)), and 'anyone engaged in caring for the person or interested in his welfare' (s4(7)(b)). In comparison, s58(4) requires a SOAD prior to a certification to 'consult two other persons who have been professionally concerned with the patient's medical treatment' ('a nurse and . . . neither a nurse nor a registered medical practitioner' (s58)). The MHA 1983 Code indicates that 'the SOAD should give due weight to the opinion, knowledge, experience and skill of those consulted' (para 16.22). The only reference to the need to consult a patient's close relatives is within the Code, rather than the statute: SOADs 'should be prepared, where appropriate, to consult a wider range of persons professionally concerned with the patient's care than those required by the Act and, with the patient's consent, the patient's nearest relative, family, carers or advocates' (para 16.26).

Paragraph 16.34 of the MHA 1983 Code states that the statutory consultees should merely 'consider commenting upon' 'the facts of the case, progress, attitude of relatives etc' (para 16.34); discussion of relatives' views almost appears to be an afterthought. This is much weaker than the imperative to consult such persons incorporated within s4(6) of the MCA 2005.

Other considerations under the MHA

Prior to the imposition of compulsory treatment on an incapacitated detained patient, para 16.34 of the MHA 1983 Code states that the two consultees should consider commenting on 'other treatment options' 'the way in which the decision to treat was arrived at', 'the implications of imposing treatment upon a non-consenting patient and the reasons for the patient's refusal of treatment'. They do not, however, have to do so. Under para 16.22 the SOAD is expected to 'seek professional opinion about the nature of the patient's disorder problems, the appropriateness of various forms of treatment including that proposed, and the patient's likely response to different types of treatment'. He should also 'take into account previous experience of comparable treatment of a similar episode of disorder'. While this need to explore alternatives partly reflects the common law best interests test (including the Bolam test), statutory guidance provides much less protection to a non-consenting incapacitated patient than the statutory principle of least restriction as found in s1(6) of the MCA 2005: 'Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.'

The best interests test in the MCA 2005 places the common law test on a statutory footing for the first time. It is submitted that the need to apply two separate tests depending upon whether or not an incapacitated patient is detained under the MHA 1983 would be unwieldy and unnecessarily confusing. Such an anomaly can only be exacerbated when the Bournewood provisions within the MHA 2007 come into force in 2008, since it would appear that the MCA 2005 will apply to such patients. If the law is insufficiently accessible, there is a risk that there may be a breach of the right to bodily integrity and self-determination as protected by Art 8 of the European Convention on Human Rights, in combination with Art 14. There is no good reason not to apply s4 of the MCA 2005 to psychiatric patients, given that the Act essentially reflects the position at common law. Further, it would be much easier for doctors to apply the same test procedure in all circumstances. In any event, the author suggests that there is nothing within the new Act itself which excludes the duty to assess best interests according to the statutory test where detained incapacitated patients may be subjected to enforced treatment. Its application to such patients is likely to reduce rubber-stamping and encourage a more patient-centred approach to the provision of continued treatment. Clinicians are therefore urged to take a consistent approach and to apply the MCA 2005 provisions on best interests regardless of whether or not an incapacitated patient is formally detained.