Issues which must be central to review

The first part of this article reported and welcomed the forthcoming review of mental health law by a Committee chaired by the Rt Hon. Bruce Millan.  Also referred to was the forthcoming review by the MacLean Committee of options for sentencing and future management and treatment of serious offenders, including those with personality disorders.  The history of mental health legislation was traced, and underlying factors creating the need for review were described.

This second and concluding part addresses some issues which must be central to the forthcoming reviews, including those highlighted by two decisions issued by the House of Lords on 3 December 1998.

Flawed linkage

The 1960 Act was concerned primarily with detention.  Treatment was hardly mentioned.  Only in 1983 was treatment fully established as the justification for detention.  However, the simplistic linkage of detention and compulsory treatment in our law is no longer acceptable.  In any review of our law, these two topics must be distinctly and fundamentally re-examined7.

With the introduction of community care orders in 1995, the tension of this inappropriate linkage finally sent a split right through the crumbling edifice of the Mental Health (Scotland) Act 1984.  In K v Craig (1999 SLT (HL) 210), the House of Lords rummaged deeply in its first aid box for a most curious piece of sticking plaster with which to try to cover the crack, pending reform of the legislation.

The main point at issue was a simple one, to which I drew attention at the 1995 conference8.  A community care application can only be made in relation to a patient who is liable to be detained in hospital (1984 Act, section 35A(1)).  However, the linkage between treatment and detention must no longer apply: there must be medical certification that treatment is still required, but that the statutory grounds for detention “do not apply to the patient” (section 35B(8)).  But the responsible medical officer must discharge the patient if those statutory grounds no longer apply (section 33(3)), so the requirements of section 35A(1) could never be met if those of section 35B(8) apply.

The remarkable solution of the House of Lords in Craig was to hold Parliament guilty of “a linguistic error or infelicity”, as Lord Hoffmann put it (page 221).  Their Lordships were agreed that the words of statute italicised in the preceding paragraph “are wrong”, and should be read as “would not apply to the patient” (i.e. if the community care application were to be granted).  Thus, not only does a mental illness disqualify a citizen from the protection of the principle that statutes restrictive of liberty should be strictly construed, but the House of Lords in its judicial capacity apparently can amend the wording adopted by both Houses in their legislative capacity, so as to impose a serious restriction upon the liberty of a citizen who has the misfortune to suffer from such an illness.

Detention in hospital

Existing law regarding detention in hospital is based on an outmoded fixation upon buildings, which lingers on in our legislation, but which is an inheritance from an institutional past.  The modern NHS is concerned with providing services, delivered in a variety of settings, not primarily with owning and running buildings.  Yet language apt for invalids confined to bed in hospital wards is still applied to people with mental illness, and even more incongruously to some people with learning disabilities.

There can still be a case for detention in relation to some mental illnesses, in the sense not only of confinement and control, but also in the sense of sanctuary; and in a situation in which deprivation of liberty is balanced by positive rights to appropriate support and treatment both during the period of detention and, even more importantly, thereafter.  International trends include concerns not only about the circumstances of compulsory admission, but also the circumstances of compulsory discharge; and with the concept of contract between service-provider and service-user, firstly in Finland and thereafter more clearly in the Netherlands9, which has been applied not only to treatment but also to detention, as in the provision of the Dutch Mental Health Act of 1994 that a patient may consent to compulsory detention for one period of six months10.

Fundamental concerns about compulsory detention of the psychiatrically ill arose in the Reid case11.  Mr Reid was ordered to be detained in the State Hospital, subject to a restriction order, following a conviction for culpable homicide in 1967, when he was aged 17.  Greatly simplifying a case which warrants more detailed comment, he applied to the Sheriff to be released on the grounds that his condition was not treatable and was not in fact being treated.  He was unsuccessful before the Sheriff and in a subsequent judicial review before the Lord Ordinary, successful before the Inner House, but unsuccessful before the House of Lords.  The House of Lords confirmed that treatability was an essential element of the criteria for detention, and that the treatability test “is satisfied only if such treatment is likely to alleviate or prevent a deterioration of the person’s condition”.  If indeed he was not being detained for the purposes of treatment of his condition, then he must be released.  But the House applied a very broad definition of “treatment”.  “It includes nursing, and it also includes care and training under medical supervision...  It is also wide enough to include treatment which alleviates or prevents a deterioration of the symptoms of the mental disorder, not the disorder itself which gives rise to them.”  There was evidence that Mr Reid’s anger management improved when he was in the structured setting of the State Hospital and in an environment set up and supervised by the hospital’s doctors.  Accordingly, while the question of treatability is one of fact for the Sheriff in each case, in Mr Reid’s case it was open to the Sheriff to hold that the treatability test was satisfied.

One can almost hear the sigh of relief with which the House of Lords again closed its first aid box, but the House recognised the importance of the issues before it, not only to other patients in positions similar to Mr Reid; to practitioners, managers and others within the system; but also to the public “bearing in mind that the purpose of a restriction order is to protect the public against the risk that the patient may commit further offences if he is given his discharge12”.  The House strongly hinted that the issues should be addressed by the Scottish Parliament.

The need, perceived or actual, for protection of the public is never far below the surface in public debate of Mental Health Act detention.  Between them, both the MacLean Committee and the Millan Committee must confront all aspects of why people might or should lose their liberty because of mental illness.  Should this always be linked to the existing treatability test, and is it acceptable to clutch at any possible straw of “treatability” in order to justify what is in essence preventive detention?  Or should we introduce preventive detention into our law - detention not as the appropriate punishment for a past offence, nor (in relation to offenders and non-offenders alike) for the period essential for necessary treatment, but because of a prediction about future conduct?  If so, should we only so detain, and can we justify only so detaining, upon predictions arising from mental disorder, and not predictions of equal probability upon other grounds in relation to people not suffering from a mental disorder?

Compulsory treatment

By definition, involuntary treatment creates conflict - which must be carefully balanced in each individual case - between the right to autonomy and the right to treatment.  “A balance must be struck between protecting the rights of the patient and providing for him to receive the treatment he needs13.”  People suffering from conditions which can be cured or alleviated have a right to be treated.  This includes the right not to be left at risk of harming themselves or others.  They have this right even when their illnesses prevent them from understanding that they need treatment, or cause them to believe that they ought to suffer.  What, however, should be the limits to the principles of compulsory health?  Compulsory vaccination and compulsory measures in relation to infectious and sexually transmitted diseases are not unknown in Europe, but with these there is a general public health dimension.  Professional boxing, in which people entertain the public by inflicting brain damage on each other, is prohibited (as far as I am aware) only in Sweden, yet most legal systems have procedures to override the objections of people who believe that a particular treatment for a mental illness is not efficacious or that side-effects are unacceptably damaging.

In Scotland, reasonable balances may well be achieved in good psychiatric practice, but are not to be found in our outdated legislation.  Subject to limited exceptions to which special legislative requirements apply, Part X of the 1984 Act removes from a detained patient the right to refuse consent to any treatment for mental disorder, with no provision for judicial determination of the scope for such drastic deprivation of basic rights which may be appropriate in individual cases; no statutory requirement upon those imposing treatment to consult with the patient, to explain, or to seek to agree a course of treatment; no right for people (when competent to do so) to make advance refusals of specified treatments or categories of treatment; and no right of appeal to the courts regarding any issue of forced treatment (as opposed to detention).  Most, if not all, of these missing elements will be required to ensure that a reformed code achieves minimum safeguards for human rights.  Treatment régimes should be part of an individual package covering the whole care régime, support services, and aftercare.  There should always be a requirement to seek to achieve an agreed package, with any compulsory element only included if it can be shown that all reasonable efforts to achieve agreement (including exploration of possible alternatives) have failed and that compulsory measures are essential.

The counterpart of compulsion should be an enforceable obligation upon relevant service providers to deliver all elements of the package.

A couple of snapshots from one source will have to suffice as examples of international trends.  In the Canton of Geneva, treatment without consent is limited to life-threatening situations14, and a “psychiatric Will” (an advance directive or “living Will” concerning psychiatric treatment) has been upheld15.

Consent

The concept of “consent” is inadequately developed in our law, and open to abuse.  Consent should mean not only informed consent but also a free and evident decision to consent, rather than simply a decision not to refuse.  (The Dutch Mental Health Act of 1984 refers to “evident willingness”, and requires the protections of involuntary procedures in its absence.)

Similarly, there is concern that patients classed as voluntary may in practice have less protection than involuntary patients.  The special requirements in relation to specific procedures in Part X of the 1994 Act may well be updated, but - more importantly - they should be applied to voluntary as well as to involuntary patients.  Many of the rights which ought to be conferred upon involuntary patients should also include voluntary patients.

Emergencies

The Millan Committee will require to examine concerns that there may be an unacceptable gap between written protections and the circumvention of them in practice, and whether there is sufficiently rigorous control of the use of “emergency exceptions” to avoid protections and procedures which otherwise apply.

Absurdities

Some aspects of existing legislation are patently absurd.  There is no procedure to appoint an “acting nearest relative” in place of the actual “nearest relative”, even when the latter is obviously wholly unsuitable (for example, guilty of abuse of the patient).  Management of patients’ funds under section 94 stops as soon as the patient is discharged into the community, where there is no equivalent provision (though this should be addressed in the Incapable Adults Bill, and a short-term remedy for the immediate problem is contained in a Private Member’s Bill introduced by Eric Clarke MP, and due for its second reading on 12 March).  Section 107 assumes that a woman who is living in a house provided by a local authority under social work powers, suffering from any mental disorder, is incapable of consenting to intercourse, and makes any sexual partner not married to her guilty of a criminal offence, regardless of the nature and degree of her mental disorder, regardless of whether she is in fact fully capable of consenting, and regardless of whether she is so housed for some reason unrelated to her mental disorder.

Conclusion

One must be clear about what the law can do, and what it cannot do.  The law cannot of itself guarantee perfect answers.  That is the fallacy of the existing statutory pattern of fixed criteria, fixed procedure and fixed outcome.  However cleverly we legislate, such a pattern can never guarantee the right answer in every case: on the contrary, it guarantees that we shall often get the wrong answers.  What we can expect of the law is to provide the optimum framework for getting it right in individual cases - a process which depends upon enhancing the contributions of patients and their representatives, families and professionals; a process which benefits from most of the trends identified in the first part of this article, rather than struggling in vain against them.  That framework must create the optimum conditions for ensuring that in individual cases an appropriate balance is struck between the three fundamental considerations of the rights of the patient, clinical effectiveness and the interests of society16.  The Millan Committee may find too simplistic the theory of therapeutic jurisprudence, which suggests, in essence, that provided the human rights of the patient are adequately safeguarded, the best solution is that which is clinically most effective.  But it may care to start with the even more simplistic and fundamental question posed by Iceland’s apparent ability to manage with no mental health law.

Adrian D. Ward is a partner in Turnbull & Ward

7.The international trend is towards separation of provisions for detention and for involuntary treatment (e.g. in Denmark and the Netherlands).
8. “Consensus for Change?”, 6 December 1995, referred to in the first part of this article.
9. The Dutch Medical Treatment Contracts Act, which came into force on 1 April 1995.
10. Used most commonly, I understand, by patients with drug-related mental illnesses.
11. Decision of the House of Lords, 3 December 1998, now reported as R v Secretary of State for Scotland 1999 SLT (HL) 279.
12. All the quotations in this and the preceding paragraph are taken from the Opinion of Lord Hope of Craighead.
13. (English) White Paper on Reform of Mental Health Legislation. Cmnd 8405, quoted in the 1982 Scottish Consultation Paper.
14. Law of the Canton of Geneva of 6 December 1987, Article 5.
15. Decision of the Administrative Tribunal of the Canton of Geneva on 7 March 1995 in K v Departement de l’Action Sociale et de la Sante A(702) 1992 —ASAN.
16. See “Mentally Disordered Offenders: Diversion from Custody/Prosecution”, Mental Health Foundation Scotland, contribution by Professor D. J. Cooke at page 11.