Consultation on the Revision of the Mental Health Act 1983

Transcription

1 Consultation on the Revision of the Mental Health Act 1983 Code of Practice for Wales Law Society Response November 2015

2 The Law Society The Law Society is the professional body for the solicitors profession in England and Wales, representing over 160,000 registered legal practitioners (the Society). The Society represents the profession to parliament, government and regulatory bodies and has a public interest in the reform of the law. This response has been prepared by the Society's Mental Health and Disability Committee which is made up of lawyers practising in the fields of disability discrimination, mental health, mental capacity and community care for claimants and respondents and includes members from other professions and organisations in the field. In providing our more general views on the Mental Health Act 1983 draft Code of Practice for Wales (the Draft Code) where appropriate, we have focused on the matters that should form the basis of the statement of principles at chapter 1 of the Draft Code. In preparing the statement of principles, Welsh Ministers are required to ensure that each of the following matters are addressed: respect for patients past and present wishes and feelings; respect for diversity generally, including, in particular, diversity of religion, culture and sexual orientation (within the meaning of section 35 of the Equality Act 2006); minimising restrictions on liberty; involvement of patients in planning, developing and delivering care and treatment appropriate to them; avoidance of unlawful discrimination; effectiveness of treatment; views of carers and other interested parties; patient wellbeing and safety; and public safety. In order to provide the most useful comments on the Draft Code we have decided to provide a response that addresses the above, which should inform decisions made under the Mental Health Act 1983 (the Act). Before we set out our response we would like to underline the following points: The Society welcomes the two new matters contained in the Draft Code that are not in the existing Code of Practice to the Mental Health Act 1983 which applies in England (the English COP). The first being the proposal that detention in a police station should not exceed a maximum of 12 hours and that assessments should be undertaken within three hours. The Society still considers that 12 hours is still a very long period to detain a person, who may lack capacity, in a police cell; the maximum period of detention could be reduced further. The Draft Code also proposes that a statutory care and treatment plan will be started no longer than 72 hours after admission. Whilst we welcome this requirement, we do not believe that this provision goes far enough. The requirement to start a care and treatment plan is not an obligation to provide a comprehensive plan within that timeframe or indeed that any proposed care or treatment is implemented within 72 hours. 1

3 Care and treatment plans are living instruments that need to be regularly reviewed, to ensure that patients receive appropriate care and that the least restrictive measures are used. The Society recommends that there should be further focus on the obligation to review plans regularly (see our response with respect to chapter 32 below). We are disappointed that the Draft Code has not been used to respond to the decision of the European Court in MH v UK 11577/06 (2013) which exposed the lack of protective safeguards (including access to the Tribunal) for the detained incapacitous patient. Introduction to the Draft Code We welcome the inclusion of a list of professionals to which the Draft Code is not statutory guidance but may be beneficial to them. The table could be improved by including a provision that those professionals (ie the police, ambulance services and other in health and social services) receive training on the Draft Code and ensure that they are familiar with its requirements. Paragraph xii (page 4): It is critical that the paragraph accurately describes the standard of observance of the Draft Code which will be expected of professionals. The statement is insufficient as currently drafted. We recommend that this could be strengthened by adding at the end of the existing paragraph: The people listed above to whom the Code is addressed must have regard to the Code. It is important that these persons have training on the Code and ensure that they are familiar with its requirements. It is guidance that should be given great weight and which any hospital should consider with great care, and from which it should depart only if it has cogent reasons for doing so. Where the guidance addresses a matter covered by section 118(2) that is a specified form of medical treatment, any departure would call for even stronger reasons. Chapter 1: Guiding principles Paragraph 1.18 (page 8): We recommend amending the paragraph to: When discharged from hospital, the patient s discharge must be effectively planned and regularly reviewed to maximise recovery and independence. Paragraph 1.33 (page 11): Although we appreciate that the list is not exhaustive we recommend that the Social Services and Wellbeing (Wales) Act 2014 should be included as well as references to the relevant accompanying statutory guidance when available. Chapter 3: Human rights and reducing inequalities Paragraph 3.2 (page 14): There is no reference to the European Convention on Human Rights, the Human Rights Act 1998 (HRA 1998) or the duty it places on public authorities to respect and protect human rights. The Draft Code should include as a minimum, a table signposting the relevant human rights convention and legislation, if not here, then a reference back to paragraph 1.33; and, where possible, include hyperlinks in the online version of the Draft Code. We also believe that the 2

4 paragraph would benefit from case studies / examples to demonstrate how and where there may be competing human rights to balance (see our response with respect to chapter 14 below). Paragraph 3.11 (page 15): This paragraph should include some minimum requirements to be included in any internal human rights and equality policy for providers and service commissioners. We recommend that the following minimum criteria contained at paragraph 3.15 of the English COP should be inserted: As a minimum the human rights and equality policy should: Set out how the organisation complies with applicable human rights and equality legislation (and in relation to commissioners, the health inequalities legislation). Ensure that there is robust monitoring of equalities so that the organisation can better understand how people with protected characteristics are affected by the Act. Information gathered should be made publicly available in a clear and transparent manner. Details of any action that will be taken in light of the information collected should also be made available. Consideration should be given to whether other bodies can assist in any action that is required [eg the Care and Social Services Inspectorate Wales]. Set out how the organisation will review the environment and culture of wards and the hospital to ensure the organisation is providing therapeutic environments and patients are treated with dignity and respect, involved in discussions about their care and treatment and their culture and ethnicity are respected. Set out how the organisation will obtain qualitative evidence on patients experiences and how it will ensure that the information is gathered at an appropriate time. This could include feedback on a patient s involvement in care planning and on their relationships with staff and other patients. Describe consideration given of the need for reasonable adjustments. Set out how staff will be provided with learning, development and training on human rights legislation and the Equality Act." Chapter 4: Information for patients, nearest relatives, families, carers and others Paragraph 4.2 (page 16): The final sentence needs to be amended to: "Patients who are subject to a CTO and who are recalled to hospital, or recalled to hospital from a conditional discharge should be given this information at the time they are recalled." Paragraph 4.4 (page 16): This paragraph needs to be a more robust and effective by requiring that patients can access a physical copy of the code. The paragraph should also include details of the information to be given or made available about access to advocacy services and legal advice. We recommend that reference is made to the Mental Health (Wales) Measure 2010, and particularly part four which deals with mental health advocacy and the duty to give information to patients and independent mental health advocates. 3

5 Whilst there is a mention in the introduction (at paragraph xiii page 4) of the Draft Code being accessible to patients, families, carers and other representatives who support them there should be a positive duty to provide a physical copy of the Draft Code (eg in hospital wards). Paragraph 4.5 (page 16): As the Draft Code is applicable to Wales, it would be appropriate to include a requirement that so far as possible, first language Welsh speakers should be able to readily access inpatient services in Welsh. Paragraphs 4.11 / 4.22 (pages 17 and 18): We recommend that staff subject to the Draft Code should be required to provide information to the patient explaining when their right to make an application to the Mental Health Review Tribunal for Wales (MHRT) will expire and the consequences of not applying. At present the content of 4.11 is too general, it needs to specify why the detention must be ended when it is no longer necessary or why the criteria no longer applies. Paragraph 4.12 (page 17): The Draft Code states that the Community Treatment Order (CTO) or detention may be ended. This is not consistent with the guiding principle to ensure that the least restrictive option is always considered when making decisions regarding the care and treatment of the patient. The paragraph as currently drafted applies to those in detention or under a CTO - it does not include the information that must be given to those under a CTO regarding a recall to the hospital. We suggest that a paragraph setting the information that must be given to those under a CTO should appear separately from those in detention, rather than combining the two. Paragraph 4.25 (page 19): At present the Draft Code states that hospital managers must ensure that patients are offered assistance to make an application to the MHRT. We recommend that there should be a requirement on hospital managers to have in place a mechanism for ensuring that a request is made to a Welsh Minister to refer to the MHRT the cases of those who lack capacity to apply; and that the circumstances where this is appropriate should be specified (ie if there is any indication on part of a patient who lacks capacity, that they are objecting to any part of their compulsory treatment). We also recommend referencing the Mental Health (Wales) Measure 2010 in this paragraph. Paragraph 4.27 (page 19): There should be a cross reference to the rights and information set out in paragraph 4.25 including how to contact a suitably legally qualified representative (with the offer of assistance in making such contact if required) and that free legal aid may be available. Paragraph 4.31 (page 20): We recommend that the patients should not just be made aware of the Draft Code but also how to access it (whether that be through providing a physical hard copy or directing patients to where the Draft Code may be available online). 4

6 Chapter 5: The nearest relative Paragraph 5.8 (page 23): More explanation needs to be given to the nearest relative as to what constitutes sufficient grounds (eg set out the grounds as to why it is though the patient would act in dangerous manner). Paragraph 5.10 (page 23): The specific circumstances should be included as to when the Nearest Relative may make an application to the MHRT. Information should be given to the nearest relative as to the location of the hospital managers. It is often the case in Wales that the hospital manager is not located in the hospital where the patient is located. Providing the location of the hospital manager would ensure that applications are served on the hospital manager without unnecessary delay. Chapter 6: Independent Mental Health Advocacy Paragraph 6.19 (page 30): Currently the Draft Code only refers to certain professionals having a duty to inform qualifying patients that an Independent Mental Health Advocate (IMHA) may be available. It would be helpful to include a table specifying those professionals and the circumstances would under which they would be under the duty. This is how the information is presented at paragraph 6.16 figure 4 of the English COP: Type of Patient Steps to be taken As soon as practicable Detained patients Guardianship patients Community patients (subject to CTOs) Conditionally discharged patients Informal patients The managers of the hospital in which the patient is liable to be detained. The responsible local authority. The managers of the responsible hospital. The patient's responsible clinician. The doctor or approved clinician who first discusses with the patient the possibility of them being given the section 57 or 58A treatment in question. The patient becomes liable to be detained. The patient becomes subject to guardianship. The patient becomes a community patient. The patient is conditionally discharged. That discussion (or during it). Paragraph 6.40 (page 35): Considering the importance of the duty of confidentiality, it would be helpful if the Draft Code included a few examples of when an IMHA could make a disclosure. 5

7 Paragraph 6.41 (page 35): The tone of this paragraph is contrary to the general principle of involving patients in planning, developing and delivering care and treatment appropriate to them. The Draft Code gives discretion to the clinicians rather than coming from a position where such information should be kept from the patient only in the most exceptional cases. It would be helpful if the Code provided a few examples as to when information might be kept from the patient. Paragraph 6.49 (page 35): There is a typographical error in the first bullet point. The word 'are' should be removed and this should read: be aware of the patient s right to independent mental health advocacy, its role, the legal requirements about IMHA under the Act and of best practice Chapter 7: Attorneys and Deputies Paragraph 7.5 (page 37): More explanation is required as to when attorneys and deputies can apply to a MHRT. Chapter 8: Privacy, dignity and safety Paragraph 8.19 (page 41): Patients must be told who else they can speak to if the person originally identified is not available. Paragraph 8.23 (page 41): There should be an additional sentence stating that particular consideration should also be given to the specific communication needs of people whose sight is impaired, (eg whether specific electronic devices should be provided). Paragraph 8.41 (page 44): The results of the post-incident review should be provided to the patient. We recommend that the paragraph is amended to reflect this. Chapter 12: The Mental Health Review Tribunal for Wales Paragraph (page 60): We recommend the insertion of: An application to withdraw should only be made on the day of the hearing with good reason. Chapter 13: Relationship between the Mental Health Act, the Mental Capacity Act and the Deprivation of Liberty Safeguards (DoLS) Paragraph (page 68): This paragraph should be redrafted as its meaning in unclear and it appears to conflict with paragraph As drafted, paragraph states that both a DoLS authorisation and detention under the Act would be available in certain circumstances. However, paragraph states that a person cannot be detained under the Act at the same time as being subject to a DoLS authorisation. 6

8 We recommend the confusion could be addressed by: substituting the following after "treated" in the second bullet point: "in another hospital for an unrelated physical disorder and will be deprived of his or her liberty at that hospital"; and deleting the remaining bullet points. Paragraph (page 70): The meaning of less restrictive should be explained as both regimes allow for a deprivation of the patient s liberty. Paragraph (page 70): Whilst we can appreciate that a policy to determine the most appropriate regime would be attractive, it is difficult to see how any policy would be able to resolve such disagreements in practice. Any such policy would only be effective if there is a person nominated to exercise the power to determine which regime should prevail. Chapter 14: Applications for detention in hospital Paragraph 14.2 (page 73): We recommend inserting at the beginning of the paragraph: Informal admission is the most frequently used alternative to compulsory admission. Paragraph (page 75): The phrase based on that person s consent should be deleted as it is lawful for a mentally incapacitated person to be admitted informally if the acid test is not satisfied. Paragraph (page 75): This paragraph imposes a requirement to consider a person s best interests when considering alternatives to detention, but envisages a best interest application in circumstances to persons who are not subject to the Mental Capacity Act 2005 (MCA 2005). If the patient has the capacity to make decisions then it is the patient alone who determines what is in their best interests. The Draft Code proposes a paternalistic approach that appears to be in direct contrast to the principle that patients should be involved in decisions relating to their care and treatment as far as possible. We recommend that the requirement to consider best interests is not applied to patients who have capacity and this paragraph is redrafted to reflect this. Paragraph (page 75): The law in relation to which statute applies is confused and confusing for practitioners and indeed lawyers; we look forward to clarification from fresh legislation in due course. Paragraph (page 76): It should be emphasised that if s.3 of the Act is used as an initial detaining section, the admission cannot proceed if the nearest relative objects to it. Paragraph (page 77): The decision about which section to use is taken by the Approved Mental Health Professional (AMHP) or the nearest relative. The paragraph should be amended to make this clear. 7

9 Paragraph (page 81): This paragraph and the following paragraphs should emphasise that the AMHP needs to balance the patient's Article 8 HRA 1998 rights (which includes their right to confidentiality) against their Article 5 rights. We recommend the insertion of an additional bullet point that describes the need to balance these competing rights and to determine which prevails, with a reference to TW v Enfield Borough Council [2014] EWCA Civ 362. Paragraph (page 82): We recommend that the bullet points are revised as at present the circumstances are unclear, for example the first point has been erroneously spilt into separate bullet points. We also suggest that the AMHP should provide the following information to the nearest relative in writing: the reasons for considering an application for detention; what the effects of the application would be; and the role and rights of the nearest relative under the Act. Paragraph (page 82): The authority of an attorney or deputy appointed under the MCA to consent to a Part 4 treatment only applies to those treatments contained in s.58a of the Act (ie electroconvulsive therapy). Paragraph (page 83):A doctor can examine a violent patient by observing them, the first bullet point should be revised to include this departure from the requirement of a direct personal examination of the patient in all circumstances. Paragraphs and (page 86): AMHPs should not provide information relating to the decision as to whether or not to make an application for admission, without first considering whether this would involve a violation of the patient s Article 8 rights. We recommend that both paragraphs should be amended to reflect this. Chapter 16: Police powers and places of safety Paragraph (page 94): It is difficult to see the point of an assessment under the Act if only one doctor is present as an application under s.4 of the Act provides professionals with exactly the same powers as s.135 of the Act. Chapter 17: Transport Paragraph 17.6 (page 102): We welcome the inclusion of consideration to the transportation needs of the relatives and or friends of the patient and whether assistance should be given. We recommend in respect of the patient's family, the Code should specify an obligation to consider the provision of assistance to them if the patient is out of area. Paragraph (page 106): It would be helpful if the information could also include the telephone number of the assessing clinician. Chapter 18: Holding powers 8

10 Paragraph (page 110): Guidance should be given on how to respond when a CTO patient who has been admitted to hospital informally makes an attempt to leave the ward if, by doing so, that patient would be at risk. Our members have informed us that this happens frequently and therefore guidance should be contained in the Draft Code. Chapter 19: Children and young people under the age of 18 Paragraph 19.6 (page 114): This paragraph states that the minimum requirement to ask questions 19.6 a e applies only to assessment, care and treatment for children under 16 years old. This does not take into account that parental responsibility usually ends at 18 years of age. The term ' children' is defined earlier in paragraph 19.3 as persons under the age of 18 years old. The paragraph is further confused by the later implication that these questions should be considered in respect of persons under 18: "19.6c. What is the ability of the child to make their own decisions in terms of their emotional maturity, intellectual capacity, mental state, and, if the child is under 16, their competence?" However the beginning of the paragraph states that the questions only apply to those under 16. We recommend that paragraph 19.6 and subsequent questions are redrafted to so as to make clear which age group the questions apply to, taking into account that parental responsibility applies to those aged under 18. Paragraph 19.6d does not explain when the refusal of a parent is relevant. The question about a parent's mental disorder should be also clarified to explain why this might be relevant. Paragraphs (page 115) and (page 116): These paragraphs are confusing. They refer to both capacity and competence but do not distinguish between the two (as explained in 19.15, for under 16s the test would be whether they have competence, whereas for 16 and 17 year olds the Mental Capacity Act 2005 will apply). Referring to "a competent child with capacity" and children who have the "capacity and competence to make that decision" is particularly unhelpful. Paragraph (page 116): The Mental Capacity Act 2005 applies to 16 and 17 year olds whereas the second sentence of this paragraph refers to young people over 16 years. We recommend that the second sentence is amended as follows: "As for adults, young people aged 16 and over must be assumed to have capacity to make the decision about a proposed admission to hospital and/or treatment unless it is established they lack capacity". Paragraph (page 121): It would be beneficial to include an explanation as to how and when these points might be relevant to decisions made in respect of a person under 18 relating to admissions to hospital for assessment / treatment for a mental disorder. Paragraphs (page 122): We recommend that these paragraphs are revised to clearly identify that s.131a of the Act is a duty. There should be further guidance on the exceptional circumstances in which admission to an adult ward might be appropriate. 9

11 Chapter 20: People with learning disabilities or autistic spectrum disorder (ASD) Paragraph (page 128): The expanded guidance for people with learning disabilities or ASD is welcomed by the Society. However, clarification is required at bullet point three; an Independent Mental Capacity Advocate will only be required if the person has no one to speak for them or there is a serious conflict between the family and professionals. Chapter 23 Appropriate Medical Treatment Paragraph 23.4 (page 149): The paragraph should require that people providing such treatment should receive relevant training on an annual basis. Paragraph 23.7 (page 149): The Code should ensure that Appropriate treatment is available when required. No patient should have to wait for treatment. Paragraph (page 150): Provision of treatment should not be dependent on the setting in which the patient finds his or herself. Paragraph (page 150): The patient should continue to be offered treatment even if they first refuse. This should be documented. Chapter 24: Leave of absence Paragraph (page 191): The Draft Code states that a patient cannot be given escorted leave to travel to Northern Ireland. However, at paragraph 25.7 of the Reference Guide to the Mental Health Act 1983, at the time of publication, escorted leave was only permitted for travel to Scotland: "Escorted leave to Scotland, Northern Ireland, the Channel Islands or the Isle of Man can only be granted if the law in the jurisdiction allows the patient to be kept in custody once there. At the time of publication, this only applies in Scotland". We recommend that this provision is reviewed to check that escorted leave to Northern Ireland from Wales is permitted. Chapter 25: Treatments Subject to Special Rules and Procedures Paragraph 25.5 (page 165): We recommend that the list of approved clinicians who are available to treat patients, maintained by the hospital manager, should be reviewed annually. Hospital managers should keep a record of approved clinicians who are available to treat patients for whom the hospital managers are responsible. They should ensure that where the Act requires, approved clinicians are the clinicians in charge of treatment Paragraph (page 149): Written reasons should be given to the patient subject to the provisions of Paragraph (page 176): We recommend that treatment should be reviewed regularly (perhaps on a monthly basis) and documented properly. Chapter 30: Guardianship 10

12 Paragraph 30.3 (page 207): The paragraph states: "Guardianship must not be used to impose restrictions which amount to a deprivation of liberty." The statement, which represents the conventional position, must be read in the light of a number of recent judgments which mean that a more nuanced approach should be adopted. In PJ v A Local Health Board [2015] UKUT 480, Charles J said: "In the NL case, Upper Tribunal Judge Jacobs was concerned with whether the discretionary power to discharge a guardianship should be exercised on the basis that NL was being deprived of his liberty (unlawfully because he did not consent to it) at the placement where the guardian required him to live. The First-tier Tribunal decided not to discharge the guardianship and Upper Tribunal Judge Jacobs upheld that decision. He did so on two bases. Firstly because the guardianship did not create the deprivation of liberty. As I said in the KD case it is at least strongly arguable that this is not a valid analysis because, in my view, a guardian must take into account the care regime before directing a person to live at a placement and what matters is whether the effect of the care regime and its conditions is a lawful or unlawful deprivation of liberty (see paragraphs 30 and 60 of the KD case). I now go further and record that in my view that analysis is wrong because what matters is the position on the ground caused by the implementation of the care regime which the MHA decision maker has to take into account (see paragraphs 10 and 77 hereof and paragraphs 60 to 64 of the KC case)." 1 We recommend that the second sentence of paragraph also requires amending in light of the above. Paragraph (page 289): The power to require a person to reside in a particular place, also includes the power to prevent the person from leaving that place: see KD v A Borough Council [2015] UKUT 251, paras.30 and 31. This is an important point which, in the past, has caused confusion amongst practitioners. Chapter 32: Renewals, extensions and discharge: detentions and community treatment orders Paragraph 32.2 (page 214): To be consistent with the principle that the least restrictive option is always considered this paragraph should be amended to reiterate that there is an ongoing responsibility on clinicians to review detention and not simply wait until the detention is due to expire. This is highlighted earlier at paragraph in respect of the duty on responsible clinicians to regularly review the detention or CTO and exercise their power of discharge. Paragraph 32.4 (page 214): We recommend that the paragraph should contain the following: "Where responsible clinicians are satisfied the criteria for renewing the patient's detention are met, they must submit statutory renewal report to that effect to the hospital managers. A copy of the report must also be given to the patient." 1 See [2015] UKUT 480 at paragraph

13 Paragraph (page 215): We recommend that the following sentence is added at the end of the paragraph: "Details of that review should given to the patient." Paragraph (page 215): We recommend that the patient should also be given a copy of the clinician's report which provides reasons for extending a CTO or period of detention. Paragraph (page 216): If a responsible clinician wishes to block a patient's discharge by issuing a barring report, a copy should be given to the patient and to the nearest relative. It will only be in the most exceptional circumstances that a copy would not be given (eg details in the report contain the patient's stated intention to harm the nearest relative). The barring report should detail: the grounds on which the responsible clinician reaches the conclusion that the patient is likely to act in a manner dangerous to themselves or others; and the likelihood of such dangerous acts such as causing serious physical injury or lasting psychological harm. Chapter 33: Aftercare Paragraph (page 218): Two minor typographical errors to be amended - 2 to be removed from the second line and f to be removed from the third line of the paragraph. Paragraph (page 218): There should be reference to the relevant Direct Payments Regulations under the Social Services and Well-Being (Wales) Act 2014 when they are in force from April Paragraph (page 219): This paragraph would benefit from redrafting to make clear that any decision to cease aftercare services should be made jointly with the patient after a full consultation. Any disagreement about the decision to end s.117 aftercare support under the Act should be recorded fully. Chapter 34: Care and treatment planning The Mental Health (Wales) Measure 2010 sets out the circumstances where patients can directly request to receive support services again following discharge. There should be reference to this important entitlement. Chapter 36: Allocating or Changing a Responsible Clinician The patient must be informed of the identity of the responsible clinician and of any change. The patient should also be advised in writing as to any other person who will be involved in their care. We recommend that chapter 36 is amended to reflect this. 12

14 Chapter 38: Hospital Managers Discharge Powers Paragraph (page 241): The meaning of the phrase subject to the normal considerations about involving nearest relatives is not clear and requires further detail or a signposting to a specific section within chapter 5 of the Draft Code. At present we cannot identify any paragraph which specifies the circumstances in which the nearest relative should be involved. Paragraph (page 242): A note of caution needs to be added to this paragraph, in that patients should usually be offered the opportunity of speaking to the panel alone. Patients often believe such meetings will be confidential. If a patient reveals something to the panel that is relevant to the hearing, the rules of natural justice require that the information be revealed to the responsible clinician. It is also the case that patients have revealed instances of abuse during such meetings. Such disclosures cannot be kept confidential. 13