Local Government - February 2009
Mental Health Update
Children and the Mental Health Act
2007
Each year approximately 3,000 children are admitted
to hospital for mental health care. Around 350 of these are
detained under the Mental Health Act 1983.
On 3 November 2008, a series of legal changes
came into effect. They were made by the Mental Health Act 2007 and
affect both adults and children.
In the first of those changes, it is no longer
necessary to show that a person is suffering from mental illness,
mental impairment, severe mental impairment or psychopathic
disorder. The definition of ‘mental disorder’ has been changed, so
that it will be possible to bring someone under the MHA merely if
they suffer any disorder or disability of the mind.
Although it will often still be necessary for
treatment to make a patient better or prevent him getting worse,
another change says this need only be the purpose of the treatment
and not, as before, its likely result.
These changes might lead to a wider range of
people being detained than were ever subject to the unamended
Act.
Informal admission of 16- and
17-year-olds
Since January 2008, a child of 16 or 17
years with the competence to do so has been able to consent to
their own informal admission to hospital for mental health
treatment.
This marks a significant departure from
previous practice, because for years, it was accepted that even
though a competent child might refuse consent, they could be
admitted to hospital with the permission of someone with parental
responsibility for them.
It would even be possible to confine the child
to hospital without using the MHA, allowing them, at least in
theory, to remain an ‘informal’ patient throughout. This was the
result of the European Court of Human Rights case of Nielsen v
Denmark. That case was thought to be of wide application, so
that parents or, in some cases, local authorities or others with
parental responsibility, could consent to medical treatment for a
child. Although the changes to the MHA apply only to children
with mental disorder, the Nielsen case has cast a long
shadow.
ECT
Electro-convulsive
therapy is controversial. The circumstances in which it might be
used have been narrowed somewhat by NICE guidance issued in 2003
and confirmed in 2006. Amongst other things, the guidance said that
doctors should be particularly cautious when considering ECT for
younger people, because they might be at higher risk of
complications.
It is still possible to give ECT to a child,
but, as with an adult, where they are competent to give it, the
child’s consent must first be obtained. Even then, it will usually
be necessary to obtain approval from a Second Opinion Appointed
Doctor (SOAD) assigned by the Mental Health Act Commission or, from
2009, by its successor, the Care Quality Commission. This will also
be the case where the child is incapable of giving consent to ECT
and whether the child is detained under the MHA or is an informal
patient. The only situation in which SOAD approval might be
dispensed with is where ECT is immediately necessary, either to
save the patient’s life or to prevent a serious deterioration in
their condition.
The giving of ECT is one of the circumstances
in which, once the relevant statutory scheme is introduced, a
child-patient will have to be given access to an Independent Mental
Health Advocate.
Age-appropriate
accommodation
It seems that around a third of the
children admitted to hospital for mental health care are placed on
adult wards and that only a third of them are under the care of a
psychiatrist specialising in the care of children and
adolescents.
From April 2010, the managers of every
hospital will have to ensure that in the case of any child they
admit, whether under the MHA or informally, the environment is
suitable having regard to the child’s age and needs. In order to do
so, the managers will have to consult a person who appears to them
to have knowledge or experience of cases involving
child-patients.
The Code of Practice says that this means, for
example, “children and young people should have appropriate
physical facilities; staff with the right training, skills and
knowledge to understand and address their specific needs as
children and young people; a hospital routine that will allow their
personal, social and educational development to continue as
normally as possible; and equal access to educational opportunities
as their peers, in so far as that is consistent with their ability
to make use of them, considering their mental state.”
If, exceptionally, a child-patient cannot be
accommodated in a dedicated ward, the Code of Practice recognizes
that the most satisfactory solution might be to place them in
“discrete accommodation in an adult ward, with facilities, security
and staffing appropriate to [their] needs”. The Code warns,
however, that young female patients should be placed in single-sex
accommodation; that where possible, all those involved in the care
and treatment of children and young people should be child
specialists; and that anyone who looks after such patients must
always have enhanced disclosure clearance from the Criminal Records
Bureau.
CAMHS beds
There is now
a duty upon each PCT to notify relevant local authorities or, if
requested to do so, a court of the places where beds are or might
be made available for children or adolescents suffering from mental
disorder.
Tribunals
Where, in the
case of a child under-18-years-of-age who is detained under the
MHA, a year has elapsed since their case was last considered by the
MHRT, the managers must refer the child to the tribunal once
again. That is so, whether or not the child wishes to
appeal. Furthermore, and although the Act remains silent on
the point, the government has indicated that every detained
child-patient whose mental health care is not the responsibility of
a child and adolescent specialist will be assessed by such a person
in the course of any MHRT proceedings.
The zone of parental
control
There is one other development of which
services and practitioners should be aware. The revised Code of
Practice discusses the Zone of Parental Control (ZPC).
Although it does so in the context of the MHA, what it says may be
of more general application. That is because it is based on the
Nielsen case, which, of course, provides that parents may
consent to all medical treatment given to their children and,
crucially, that any such consent may be relied upon by health care
practitioners.
The revised Code says that there are some
decisions that, because of their magnitude, are beyond a parent to
make. So, for example: “in a case were the parents had gone through
a particularly acrimonious divorce, it might not be possible to
separate the decision […] from the parents’ own hostilities, and it
might not be possible to treat the parents as able to make a
impartial decision.” In the present context, that means that
in some cases - where, for example, they want to administer
medication to an informal child-patient - practitioners might not
be able to rely upon consent given by the child’s parent and they
might have to seek the permission of the court.
This is a very unclear area of the law, not
least because the idea of a ZPC is not discussed, nor even
mentioned, in Nielsen. It is implied by that case but,
until the Code of Practice resurrected it, had received very little
attention.
Conclusion
Even though the Mental Health Act has been amended it is still
possible to detain a child in hospital and provide treatment
against their wishes. Now, however, the legal basis for such a
course has changed, and the requirements made of practitioners –
and, naturally, the expectations of patients and their parents -
will increase.
Beyond the Mental Health Act
Mental Health practitioners
will occasionally have to look elsewhere for guidance. But now the
Act has been amended, that job will be more onerous, and the
extrinsic sources will be more diverse and perhaps more
troubling.
A public place
Anyone
who works with the Mental Health Act 1983 (MHA 1983) must know what
it means for a place to be public. A police constable, for example,
can arrest someone who appears to be suffering from mental disorder
and remove him to a place of safety. But that power is only
available in “a place to which the public have access”. (MHA 1983,
section 136(1))
There are few MHA 1983 cases that define this
term. In one of them, the court held that it would include a
communal balcony in a block of flats. (Carter v Metropolitan Police
Commissioner [1975] 1 WLR 507) There is also official
guidance. Notes accompanying the amended MHA 1983 say that “a
‘public place’ can be taken to mean any place (whether indoors or
outdoors) to which the public have access, whether by right, by
explicit or implied permission, on payment, or otherwise.”
(Department of Health, 2008, Reference guide to the Mental Health
Act 1983, paragraph 30.17) The notes invoke a variety of – often
criminal - authorities, and practitioners will need to be familiar
with each of them if they are to understand the removal power
properly.
With regard to the front garden of a private
house, for example, we know that it will only fit the bill if
members of the public can enter it without invitation (R v Bogdal
[2008] EWCA Crim 1); and that in the case of a very small garden,
it won’t be sufficient that someone standing there could reach a
pedestrian on an adjoining highway. (R v Leroy Lloyd Roberts [2003]
EWCA Crim 2753) But we only know that because of cases decided
under the Public Order Act 1936 (R v Edwards (1978) 67 Cr App R
228), the Criminal Justice Act 1988 and the Dangerous Dogs Act
1991.
Various motoring cases are also relevant. So,
for example, decisions under the Road Traffic Act 1988 have
established that a pub car park is a public place, at least during
opening hours (David Lewis v DPP [2004] EWHC (Admin) 3081), and
that the same is true of parking next to commercial premises (May v
DPP [2005] EWHC (Admin) 1280). Now, however, these cases will not
be the practitioner’s only point of reference.
Deprivation of
liberty
One of the most significant features of MHA
2007 is the Deprivation of Liberty Safeguards (DoLS). The
DoLS have been inserted not into MHA 1983, but into the Mental
Capacity Act 2005 (MCA), but they will take a significant place in
the work of mental health practitioners. (MHA 2007, section 50 and
Schedule 7; MCA, Schedule A1)
The MCA provides a framework within which all
kinds of care and treatment may be provided to people who lack the
capacity to consent to it. If such is in his best interests, an
incapable person may be admitted to a hospital or care home without
recourse to MHA 1983. The novelty of the DoLS lies in the fact that
they might allow the person to be deprived of liberty in that
place, but only if official permission is obtained first.
If they are to seek permission – and thereby
avoid wrongfully imprisoning an incapable person – practitioners
will need to know that it is required and, therefore, what it means
for a person to be deprived of liberty. In that respect, the mental
heath authorities only go so far.
Bournewood
For many
years, it was the practice to use the common law doctrine of
necessity to confine incapable people to hospital and care homes in
their own best interests. In the Bournewood case, however,
the European Court of Human Rights (ECtHR) held that this would
breach Article 5 of the European Convention on Human Rights (ECHR).
(HL v United Kingdom, Application number 45508/99, Decision of 5
October 2004) The DoLS are the Government’s response.
For the moment, Bournewood provides the best
guidance on what it means for a person to be deprived of liberty.
The case concerned Mr L, who lacked capacity. He was never
prevented from leaving the hospital to which he was admitted; in
fact, he never attempted to do so. His psychiatrist simply
said that if he had attempted to leave, he would have been detained
under MHA 1983. Furthermore, Mr L was prevented from seeing
members of his family. This proved to be very significant. The
ECtHR said that hospital staff had assumed complete control over Mr
L, and that in doing so, they had deprived him of liberty.
The DoLS code
The
Government has published a code of practice to accompany the DoLS
(Ministry of Justice, 2008, Mental Capacity Act 2005: Deprivation
of liberty safeguards) The code draws particular attention to
Bournewood, and to other, similar cases in which the ECtHR or the
domestic courts have given useful guidance. (For example: Nielsen v
Denmark (1988) 11 EHRR 175; HM v Switzerland (2002) 38 EHRR 314;
Storck v Germany (2005) 43 EHRR 96; JE v Surrey County Council
[2006] EWHC (Fam) 3459) But it makes no mention of many other cases
that might be relevant.
Conditional
discharge
MHA 1983 contains special provisions for
people who suffer from mental disorder and are convicted of a
criminal offence. If necessary to protect the public from
serious harm, such a person may be placed under restrictions in
hospital and conditions may be attached to his eventual discharge.
(MHA 1983, section 41(1)) Those conditions must not, however,
deprive the patient of liberty.
The High Court has held that to impose a
condition requiring a patient to remain at the hospital from which
he had ostensibly been discharged will amount to an unlawful
deprivation of liberty (R (G) v Mental Health Review Tribunal and
the Home Secretary [2004] EWHC (Admin) 2193), and also, that if
they are very strict, even community arrangements might have that
result (R (Home Secretary) v MHRT [2004] EWHC (Admin) 2194). But
similar facts had earlier led the court to the opposite conclusion.
(R (Home Secretary and PH) v MHRT [2002] EWCA Civ 1868)
It is to be expected that decisions about the
care of some mental health patients will be relevant to those
subject to other provisions of MHA 1983. Soon, however,
attention will have to be paid to decisions from an entirely
different area of law.
In the case of an incapable person who is
deprived of liberty, it seems that the DoLS will only apply if he
is also detained. (MCA, Schedule A1, clause 1(2)) Crucially, the
ECtHR accepted in Bournewood that the two things are not the
same. The domestic courts have reached a similar conclusion
and, further, have ruled that a person might be detained without
being deprived of liberty, and vice versa. (R (Laporte) v Chief
Constable of Gloucestershire and others [2006] UKHL 55; Austin and
Saxby v Metropolitan Police Commissioner [2007] EWCA Civ 989)
Although the ECtHR ruled that Mr L had been deprived of liberty,
the domestic courts found, narrowly, that he had not been detained.
This suggests that the protection of the DoLS would be denied to
the very patient that inspired them. But that isn’t the end
of the story.
Control orders
The
Government has long been frustrated by those people whom it
suspects, but cannot prove, to have been involved in
terrorism. The latest of several attempted solutions is the
control order, under which such a person may be made subject to
often stringent conditions. Crucially, however, because by
definition those conditions cannot engage Article 5, they must not
amount to a deprivation of liberty. (Prevention of Terrorism Act
2005)
One control order-case concerned a man whose
conditions were so strict that they were said to have damaged his
mental state: he lived in virtual solitude and was becoming
increasingly hopeless and having suicidal thoughts. The High Court
held that the conditions were a proportionate response to the
threat the man posed. (Mahmoud Abu Rideh v Home Secretary [2007]
EWHC (Admin) 2237)
For present purposes, however, the most
significant decision was made by the House of Lords. It concerned
six men, whose control orders confined them to their one-bedroomed
flats for all but six hours a day; allowed those premises to be
spot-searched by the police; restricted the areas the men could
visit when out-of-doors and required them to wear electronic tags;
limited their use of communications equipment; and prohibited them
from meeting anyone not authorised by the Home Office. Drawing on
some of the ECtHR cases mentioned in the DoLS code, their Lordships
found that the orders had breached Article 5. (Home Secretary v JJ
and others [2007] UKHL 45) They reached the opposite conclusion,
however, where the conditions imposed on a suspect were less
robust. (Home Secretary v E and S [2007] UKL 47)
Key Points
- Practitioners need to know about cases
outside the Mental Health Act
- Some of those cases were about dangerous dogs
or careless driving
- Soon, mental health practitioners will also
need to know about Prevention of Terrorism Act cases
The question of what constitutes a deprivation
of liberty is common to both the DoLS and control orders, and both
processes are similar to conditional discharge, which has been a
feature of the Mental Health Act for many years. It is
understandable, therefore, that cases from one of those areas
should be relevant to the others.
This comparative approach is common in legal
practice. Until now, however, its use within mental health
legal practice had been very limited: for the most part, the
relevant law was contained in the Mental Health Act and the cases
decided under it. That seems likely to change, and in a
dramatic way.
If the new Safeguards are to be worthy of the
name, practitioners will need to know precisely when they should be
applied. But that begs a new question: should we be concerned by
the fact that, for a time, we will best understand what to do with
incapable patients by knowing what the state already does to those
it considers terrorists?
David
Hewitt
Weightmans LLP.