Parkin, ‘Contrasting Agendas in the Reform of  Mental Health Law; the Expert Committee and the Green Paper’ [2000] 4 Web JCLI
<http://webjcli.ncl.ac.uk/2000/issue4/parkin4.html>
Contrasting Agendas in the Reform of  Mental Health Law; the Expert Committee and the Green Paper

Alan Parkin
Lecturer in Law.
Law School,
 University of Hull

a.parkin@law.hull.ac.uk

Copyright  2000 Alan Parkin.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Summary
After expressing continuing concern about various aspects of the operation of the Mental Health Act 1983, the government commissioned an “expert committee” to make recommendations as to legislative reform. The committee took the opportunity to make proposals which went beyond the expressed concern of government about security and risk. In effect they have proposed root and branch changes designed to facilitate and improve the ability of mental health professionals to deliver a service in which law is designed to enhance the needed therapeutic regime rather than stifle it. This article considers whether the resulting green paper builds upon the report or frustrates it. 

Contents
Introduction
The Scope of the Recommendations
Defining Mental Disorder
Compulsory Care and Treatment – the Process.
Capacity and best interests
Best interests
Independent Scrutiny
Compulsion in the Community
Discharge
Consent to treatment.
Conclusion
Bibliography.

Introduction
The proposals of the Expert Committee on the Review of  Mental Health Legislation, set up under the auspices of the Department of Health, have now been published, together with a Green Paper setting out the Government’s response and seeking further comment. 

The Committee has used its brief to consider the issues which appeared to be at the centre of Governmental concern, those of security and risk, and has made radical and generally sensible suggestions to bring our legal regime in this area into line with both the present requirements  of the European Convention on Human Rights and  possible requirements under the Human Rights Act 1998 which will be introduced this year. They have also attempted to make a virtue of necessity by using the opportunity to re-evaluate the relationship between law and mental health in terms of the patient’s rights to assessment and treatment, and the extent to which society is justified in requiring patients, particularly those with capacity, to undergo treatment against their will. Assessing whether all these proposals, particularly those likely to involve resources, attract the same degree of Government support is one of the objectives of this article, which deals with the proposals only insofar as they relate to civil detention and treatment. 

Perhaps not surprisingly, a number of those concerned with either the Expert Committee proposals or with research relating to the enterprise, have already indicated general dissatisfaction with the approach which the Government appears to be taking in relation to the Committee’s proposals (see Peay, 2000, Zigmund and Holland, 2000). Statutory provision for compulsory mental health care is an attempt to simultaneously face in two directions as, on the one hand, the means of protecting those subjected to compulsory care and treatment from unauthorised and unlawful interference with their liberty and autonomy and, on the other, as the means by which those whose mental state may result in harm to themselves or others may be prevented from causing such harm by medical intervention and subsequently restored to health,  if necessary without their consent or co-operation. 

While there is no doubt that advances in medication and care have enabled forms of effective treatment to be made available to many patients, most clinicians would argue that the best prognosis for successful treatment lies in early intervention and in the willingness of the patient to participate in his or her treatment whatever the need might be for compulsion at the initial stage. The overwhelming majority of patients with mental illness are treated as informal patients without any perceived need for legal intervention at any stage of their illness. Equally, many patients will find themselves subject to mental health legislation, currently in the form of the Mental Health Act 1983, only as a short-term measure, whereby assessment and initial treatment can be given without consent until such time as the patient recovers sufficiently either to be discharged from the section or from hospital, or both. For many of these patients that period, although distressing, will be a single episode in their lives from which either total recovery, or the development of an ability, with help, to manage their illness, will emerge. In 1998-99 approximately 25,000 people were admitted under Part II of the Mental Health Act 1983, of whom just over 4,000 were reclassified from Section 2 to Section 3 (see Department of Health, 1999c). 

There appears to remain a residual group for whom the controls and restrictions resulting from legislation will represent a more significant feature of their lives. Some types of illness appear less tractable than others; some combinations of illness and behaviour set some people apart, resulting in either involvement with the criminal justice process or in the need for longer term connection with the psychiatric services. The limits which the Mental Health Act 1983 sets to individual autonomy of people in this category has been and remains the focus of attention from Government, from clinicians and from pressure groups of many different persuasions. While all these interested parties are concerned that the present legislation is flawed, as might be expected, they disagree as to the necessary changes. This disagreement is often about the effectiveness of proposed changes at a practical level; however there are also fundamental disagreements about the extent to which changes in the law will diminish or extend the rights of patients. For example, MIND on the one hand and  the National Schizophrenia Fellowship on the other, often appear to disagree over such issues as compulsory treatment being applied to some patients discharged into the community.  

Recent years have seen increasing numbers of legal challenges to the operation of the Act which have demonstrated continuing uncertainty about its precise ambit. A classic example is the Bournewood case, which revolved around the extent to which use of the 1983 Act was appropriate in relation to a patient who lacked capacity to enter hospital voluntarily but was nonetheless compliant. In addition, there has been longstanding concern, expressed by all political parties, and fuelled by a number of high profile incidents and enquiries, that the present legislation is incapable of ensuring necessary treatment for some significant categories of patient (Department of Health, 1998).  

These concerns have been accompanied by arguments that the very structure of the Act, indeed the very presence and culture of law is anti-therapeutic; 
“we ask…whether the law is capable of being shaped by mental health sciences – to this, although we would intuitively wish to answer yes, we suggest that, in theory, the influence of other disciplines over law is likely to be limited and that, in practice, the law has tended generally to be unresponsive to mental health imperatives” (Eastman and Peay, 1999b). 
As a consequence there have been a number of proposals to tinker with the Mental Health Act 1983, which have been the subject of debate  The only proposals to gain statutory force were introduced by the Mental Health (Patients in the Community) Act 1995 and were widely perceived as little more than a stopgap. The legislation,  while introducing a legal status requiring those within its ambit to accept services available under s.117 of the Mental Health Act, did not, and arguably, could not, while remaining within the spirit of Article 5 of the European Convention on Human Rights, require patients not detained in a hospital to accept medication against their will. 

However, more radical change is now back on the political agenda. The “expert  Committee” set up to analyse the present law and suggest changes has now reported (Department of Health (1999a)) and its report is published together with a Green Paper (Department of Health (1999b ) setting out the Government’s proposals, central to which appears to be a new attempt to marry up the conflicting objectives identified earlier. The Committee proposals are set out in a carefully argued report, itself the culmination of a consultative procedure which was wide ranging, if rushed. They demand respect, comprising as they do genuine attempts to increase the formal legality of the process, while at the same time seeking to expand and support the autonomy of the patient. The proposals also usefully attempt to make connections with the work of the Law Commission on incapacity (Law Com No 231), both by introducing concepts - such as those of capacity to consent and best interests - into the care and treatment of patients subject to compulsion, and by encouraging the construction of a unified approach to the rights and interests of those who suffer from a mental disorder but for whom the formal procedures of a Mental Health Act are felt to be unnecessary or stigmatising. 

Interested parties have had the opportunity to consider the draft proposals of the Expert Committee since the spring of 1999. However, publication of the Final Report was delayed by the Department to allow the contemporaneous publication of the  Green Paper which  both comments on the report and sets out the proposals of the Government alongside requests for further consultation. 

The Scope of the Recommendations
The proposals of the expert Committee do not purport to cover the whole of the Act. Civil Procedure in relation to assessment and treatment comprises the bulk of the work, although there is some analysis of the Criminal Process under Part III of the MHA 1983. No discussion or recommendations are set out in relation to the management of patient property or the transfer of patients within the United Kingdom. 

A number of other  pieces of work are also important in this area. The recommendations and findings of the Law Commission’s work identified above, were put out for further consultation by the Lord Chancellor’s Department under the title Who Decides; Making Decisions on Behalf of Mentally Handicapped Adults (LCD, 1997). A statement has now been made by the Lord Chancellor in a speech to the Law Society Conference on Mental Incapacity (Lord Chancellor, 1999) setting out ways in which the Government proposes to proceed on decision making in the field of mental incapacity. 

In addition, a further consultation document has been published setting out objectives in relation to the management and care of high risk patients (Home Office/Department of Health (1999)).  The Department of Health has also published a review of research relating to the Mental Health Act 1983 (Wall et al, 1999). Finally the Home Office is considering long standing proposals about detaining dangerous people, which presumably would include some of those who may be otherwise subject to a Mental Health Act in whatever form it ultimately appears (Home Office, 1999).   The findings of the expert Committee and the Green Paper proposals are therefore directed mainly to the residual area of mental disorder falling within the ambit of  present mental health legislation. 

The deliberations of the expert Committee, although subject to restraints, have been well informed, by public debate and published work (Eastman and Peay, 1998a). The debate revealed within this work is required reading for the professional or academic who wishes to see behind the “official speak” of the reports and papers published under the auspices of the Department of Health. In effect, either by accident or design, the concerns of Government about the risks aspect of mental health treatment and legislation which were instrumental in instigating an enquiry into the legislation have been utilised  to open up a wider debate.  Not only has the extent to which mental health legislation protects the public been considered but  the equally valuable question of the extent to which mental health legislation contributes to the therapeutic enterprise of helping the patient has also been examined. A telling point is that the present Mental Health Act has very little to say about Mental Health, but much to say about mental illness (Eastman and Peay, 1998a, p1). The expert Committee attempts to address this issue at the outset by seeking to place treatment and support for those with a mental disorder at the centre of the legislative framework by enunciating a series of principles which any legislative regime should address (paras 2.1 –2.25).  These include a commitment to informal care where possible, patient participation in decision making and the provision of the least restrictive alternative compatible with safety and effective care, all of which are accepted to some extent by the Green Paper. 

However, a variety of  other principles proposed by the expert Committee for inclusion in the legislative framework, although described as “valuable” in the Green Paper, are to be diverted either to the Code of Practice, or into the ambit of other mechanisms for the delivery of standards, such as clinical governance and the new Mental Health National Service Framework. The Government accepts the following (DoH, 1999b, para 3.4):
•	Informal care to be considered before compulsion;
•	Patients to be involved as far as possible in their care and treatment plans;
•	Safety of the patient and the public are of key importance in determining whether compulsion should be imposed;
•	Where compulsion is used, care and treatment should be in the least restrictive setting consistent with patients’ best interests and safety and the safety of the public. 
The  group of principles rejected by the Government as unsuitable for legislation include specific reference to the needs of carers, non-discrimination, equality, and effective communication and provision of information (ibid para 3.5). Most significantly perhaps, the Green Paper, in effect, sidelines the suggested principle of reciprocity, by which is meant that those subject to compulsion are entitled to services which are both available and of an appropriate quality. Also exempted by the Green Paper from consideration as part of the legislative reform is the principle of evidence based practice.

One justification offered for excluding many of the principles enumerated in the report is that the principle identified is covered by other primary legislation – equality for example. Similarly, it is stated that  the Code of Practice is more appropriate as a means of giving guidance than legislation. Evidence based practice is identified by the Department as already part of clinical governance and a fundamental component of the Mental Health National Service Framework, as is the issue of recognition for carers. In support of the proposition that legislation is not the appropriate home for such enumeration of principle the Department argues that duplicating them in legislation will serve no useful purpose and that giving such principles legislative backing may not be appropriate in an Act primarily concerned with provisions covering compulsory care and treatment. This ignores and sidelines the intentions and arguably, the remit of the Committee to re-assess the law relating to Mental Health Provision.

Consensual care will be supported “wherever this is consistent with the patient’s best interests and safety, and the safety of  the public” (DoH 1999 b, para 3.7).  Although the Government welcomes comment on the inclusion of principles, such comment is invited only in relation to those identified above as already accepted, thus effectively closing the door on further debate.

The Committee have attempted to go back to basics by re-assessing the scope of compulsion, re-visiting the issue of a diagnostic criterion for purposes of detention and treatment. Of  immediate interest to those who have the responsibility of operating the legislation, are  proposals for reforming the way in which patients become subject to both detention and treatment. This will involve the judicialisation of the process through the medium of a reformed and expanded tribunal system. The clear driving force behind these proposals is the impact of the European Convention on Human Rights, particularly in the context of the introduction of the Human Rights Act 1998.

In the debate which preceded the 1995 legislation, a central issue was that of compulsory treatment in the community. At various times both the British Association of Social Workers and the Royal College of Psychiatrists had proposed such a scheme, sometimes under the guise of community supervision (Royal College of Psychiatrists (1993)). It was further considered by The Mental Health Act Commission (Discussion Paper, 1987) and by the Internal Review set up by the Department of Health (DoH, 1993). 

The 1995 amendments fell short of such a proposal, but the report and the Green Paper return to this issue, approaching the legal problem through the medium of a form of independent legal authorisation for treatment to take place either in hospital or in the community. The legal line of argument in the past, based on traditional thinking about rights and legality, has focused on the absence of legal authority for such a power, and the potential problem of transforming what was essentially an administrative power of detention into provision of compulsory treatment in the community.  Clearly the Committee and the Government feel that difficulties of this kind are over-ridden by the positivistic solution of using the powers of the proposed tribunal to confer formal legal authority on compulsory care and treatment in the community. The content of such an order is discussed below.

It is likely, therefore,  that debate about these particular proposals will centre on the practical questions of the extent to which the new arrangements, if introduced, will lessen the incidence of high profile problems, and increase the possibility of improved therapeutic intervention in this setting. Clearly the Government is initially selling the changes on the basis of the potential for lives being saved. However, a number of arguments in relation to compulsion in the community can be put.  Might it lead to deleterious practical effects, such as the likelihood that the changes will discourage people with mental illness from seeking assistance through fear of compulsion being exercised against them? Will patients be at risk of being returned to hospital, having defaulted on treatment, at an earlier stage than would otherwise be justified by their present clinical condition? Might there not be a temptation to keep patients on compulsory medication for longer than would otherwise be the case if they had to be detained in hospital, on the basis that “they are doing so well” in the community while subject to compulsory medication? 

Defining Mental Disorder 
The Government, in the Green Paper, invites comments on the Committee’s recommendation that the legislation should retain a loose, rather than a specific, definition for the purpose of defining those who will fall within its ambit. They thus propose to use a single definition, that of Mental Disorder, which, they recommend should be taken to mean “any disability or disorder of mind or brain, whether permanent or temporary, which results in an impairment or disturbance of mental functioning”, a definition which is consistent with the definition of Mental Disability adopted by the Law Commission in its report on Mental Incapacity (Law Com No 231). In arriving at this recommendation the Committee had considered, but rejected, proposals that the definition should be built around more specific diagnostic schemes such as the International Classification of Diseases  or the Diagnostic and Statistical Manual. In doing so, the Committee attempted to avoid the definition being either too wide or too narrow. It should be noted that the definition adopted still retains the capacity to apply to those whose disorder has traditionally been diagnosed as personality disorder, brain injury or learning disability;  the term psychopathic disorder appears to have disappeared  as a result of fairly universal agreement that it was now inappropriate, a view shared by the Ashworth report (1999). However, the inclusion of the term “personality disorder” within any new legislation is not uncontroversial as responses to the review show, many respondents arguing for exclusion on the basis that the condition is not treatable and should therefore not be included within compulsory detention powers in an Act relating to mental health. The Committee’s reasons for inclusion are pragmatic; they relate to concurrence of condition, the existence of borderline cases which may be more susceptible to treatment than others, and to the argument that exclusion from the legislation would risk setting back research into the development of alternative methods of treatment.

So far as people with learning disabilities are concerned, the Committee sets out  the arguments for and against the inclusion of this group and it is clear that there is again a strong lobby for taking learning disabilities out of the ambit of any new Act. In addition, the Committee has had to grapple with the implications of the Bournewood decision, and, at the time of preparation of their report, with the fact that there appeared to be no immediate prospect of legislation following the Lord Chancellor’s department’s paper Who Decides? (LCD, 1997), itself a rather half-hearted response to the Law Commission’s work on mental incapacity. The main arguments are reproduced in Chapter 4-19 of the report; these include arguments that care for those with learning disability extends further than care of those with mental disorder, and is significantly different in nature, particularly in the extent to which it relies on medication. Moreover, including this group within the ambit of compulsory power is potentially stigmatising for both the patient and family.

While recognising these arguments, the Committee appear to have been influenced by the fact that compulsion may be necessary in order to carry out assessment.  This reflects to some extent the position in the 1983 Act where simple diagnosis of mental disability is sufficient for the application of S.2 (assessment) whereas a much more specific diagnosis is required before S.3 (treatment) can be utilised.

They are also aware that in the absence of a comprehensive legislative code for this group, and in the light of Bournewood the possibility exists that people in this group might be regarded as detained at common law and not under the mental health legislation,  in which case the danger is that no proper legal or procedural safeguards exist. They are clearly of the view that detention under the Act may be a price worth paying for these safeguards, although they state that it is clearly not a “desirable or appropriate outcome” (para 4.22). In the light of this they renew the call for legislation as a matter of urgency, in the light of the Human Rights Act 1998 (para 4.24). Perhaps not surprisingly, this issue receives little comment in the Green Paper other than to refer to the Lord Chancellor’s latest statement. 

The exclusions specified in the Mental Health Act 1983 are slightly amended, in that the Committee proposes to exclude disorders of sexual preference and the misuse of alcohol or drugs, while making it clear that persons falling into one or both of these categories who also have a secondary diagnosis of mental disorder should be capable of coming within the legislation. Children are to continue to be covered by the new legislation, and there is to be an administrative requirement that suitable provision for their care be agreed and provided (DoH 199b, para 4-6). 

Compulsory Care and Treatment – the Process. 
In the Green Paper the Government describes its objectives as establishing a clear, fair and transparent decision making process which is easily explained and which incorporates rigorous safeguards “so that the dual aims of ensuring the health and safety of individual patients and public safety are achieved in ways which are consistent with the provisions of the Human Rights Act 1998 (DoH 199b, para 4-7). The Committee had  recommended a single admission process for the application of compulsory powers  and this is broadly endorsed by the Green Paper. It is in this area that the major innovations are to be found and a number of different agendas are in play. It is clear that the New Labour Government’s main objective is to ensure better protection of the public, the Conservative Government having attempted to achieve that in 1995 by means of the Mental Health (Patients in the Community) Act. The reasons why the 1995 measures were not a total success are complex and involve both practical and legal problems. 

The Mental Health Act 1983 has the hospital at its centre. Indeed, the powers within the Act are such that detention and compulsory treatment can only take place in a hospital. Detention is only possible in order to treat; compulsory treatment is only possible if the patient is first detained. The reasons for this have their legal origins in Article 5 of the European Convention of Human Rights. The consequence was that, under the 1983 Act a patient who no longer met the requirements which justified continuing detention could not be compulsorily treated, and a patient who no longer needed treatment, or, whose condition was such that treatment was not thought appropriate could no longer be detained.  

However, while the legislation deals in certainties and on/off conditions, medicine, particularly in the inexact realm of mental disorder and treatment, does not, and the need for a graduated process of return to the community under some form of supervision is clear. While a limited form of such progression can be found in the facility for leave which the Act contains, in relation to discharged patients the aftercare services in S.117 of the Act were set up as responsibilities of the health and social service authorities combined  and thus as entitlements, with the corollary that in legal principle the patient can avail him or herself of them as a matter of choice. 

As previously indicated, amendment of  the legislation was sought in 1995 in an attempt to introduce some degree of legal control following discharge. However,  insuperable legal difficulties stood in the way of imposing legal restriction. There was a high probability that introducing compulsory powers either to supervise or treat discharged patients in the community who did not currently display symptoms sufficient to detain or treat them in hospital, would be in breach of the European Convention on Human Rights. This concern is clearly visible in the report of the Department of Health Internal Review (DoH, 1993) which ultimately recommended the status of Supervised Discharge which the Mental Health (Patients in the Community) Act 1995 inserted as S 25 (A) of the 1983 Act. The language used is instructive as it talks of “ensuring that the patient  receives  any or all of the services provided; a passive rather than an active event. 

None of this discussion of legal difficulties should distract from the very real practical difficulties and concerns which were entertained at that time regarding compulsory supervision and treatment of patients in the community and which are discussed above. The resulting power, if power it be, which the 1995 amendments achieved was a very limited one.

In 1999, the Committee’s recommendations approached this problem by trying to establish and maintain an independent legal regime at an early stage in the process of detention and treatment.  The Government is seeking to consult on ways of achieving this. However, it is also clear that the Committee has attempted to make a virtue out of what appeared to be the necessity of reviewing compulsory powers. It takes a fresh look at the criteria that might be used by such a legal authority to approve the imposition of compulsory care and treatment. The major innovations are first, the involvement of an independent decision maker (a tribunal member), rather different from what has previously been the case, who will be actively involved in the legalities of the patient’s care at an early stage. Second, it proposes to introduce the concept of capacity into the criteria for detention. A stumbling block to the implementation of such an independent tribunal scheme, as is foreshadowed in the Green Paper, may well be the cost of putting an appropriate structure into place and mobilising a sufficient number of qualified members to staff it. 

The Committee have recommended that entry to compulsory assessment would continue to be based on medical recommendation. The formal detainer would continue to be the NHS Hospital Trust, although the responsibility for formal acceptance would devolve firstly to an officer of the trust rather than the “managers”  whose functions would be abolished. In its Report the Committee explored the distinction between formal and compulsory assessment, the distinction being that a person might be given the opportunity to remain in the community while the formal assessment process takes place, with compulsory admission for assessment being the fallback. This distinction is rather eroded in the proposals in  the Green Paper: what is proposed, by both, is that the period for assessment should be radically reduced from the present period of up to 28 days to a maximum of 7, within which an ambitious programme of assessment would be carried out. Although the Committee have eventually come down firmly in support of three professionals being involved in the process, they have not entirely abandoned the idea that the power to apply for assessment might eventually be extended from Approved Social Workers to other non-medical practitioners such as Community Psychiatric Nurses. They also recommend that where an application is made by an ASW, the supporting medical recommendations need not both be from medical practitioners. One could be from another mental health professional who has been either been specially trained  in the process of making applications, or who has recent knowledge of the patient. 

The Government seeks further views on these points. It also returns to the issue, floated in the draft proposals, of how many professionals need be involved, arguing that where the applicant is a mental health professional it may not be essential that the application is supported by two other opinions; one opinion from a psychiatrist working in the hospital may be enough in the Government’s view. 

Taken together these proposals would represent a major diminution of professional safeguards, but, the Government argues, this would be ameliorated by the reduction in the length of time involved and by the availability of an independent legal process within a much shorter period than is currently the case. 

Proposals are also made in relation to an emergency assessment procedure, limited to 24 hours. This is on the assumption, on which views are sought, that such a period is long enough for a proper assessment to be made. It is also argued that in some circumstances, for example in Accident and Emergency, some residual common law powers to detain and treat may be needed. Whatever the criteria which eventually emerge, a major innovation is that the patient would be subject to independent legal review within 7 days of being detained. During that time the patient’s condition should be assessed, an outline case for detention and treatment be prepared and an application in writing to the independent reviewer be made. An oral hearing might not be necessary and the reviewer should consider, on the basis of written information, whether the criteria for detention had been met and whether there was a fully constituted care plan in being. Doubt on any issue may result in a full tribunal hearing, but otherwise compulsion would be authorised for the 28 day period. 

This last proposal for what is essentially a paper exercise carried out by a tribunal member who may not have clinical experience has caused the Government some concern, and they have intimated that what is essentially merely a formal assessment might in fact be undertaken within the administrative procedures of the Trust; the facility to call for an expedited hearing within 21 days may mean, in the Government’s view, that a separate process after 7 days is not necessary to ensure compliance with the ECHR. Further views are sought on this point, which may be thought to constitute an erosion of the original argument that legal process was necessary. 

The criteria for assessment under the new powers broadly follow those which are familiar from the 1983 legislation, except that the Committee appears to have been persuaded that some tightening up is required to meet the provisions of the ECHR. Another persuasive argument was that in certain circumstances a patient may be compulsorily treated within the assessment period which is permitted under the existing legislation. 

The criteria now recommended by the Committee (DoH 1999a, paras 5.91 – 5.104) are, therefore, 
(a) that there must be objective grounds to believe that the patient is suffering from a mental disorder requiring care and treatment under the supervision of specialist mental health services, and 
(b) that in the interests of the patient’s health or safety or for the protection of others from serious harm or for the protection of the patient from serious exploitation, the mental disorder requires assessment; and,
(c) that the patient either (i) lacks the capacity to consent to care and treatment for mental disorder; or
(ii) in the case of a patient with capacity, fulfils the criteria for a compulsory order, i.e. that there is substantial risk of serious harm to the health or safety of the patient or to the safety of other persons if s/he remains untreated and there are positive clinical reasons included within the proposed care and treatment which are likely to prevent deterioration or to secure an improvement in the patient’s mental condition. 

This last condition foreshadows a major change in thinking in relation to treatment and detention, distinguishing as it does, the patient with capacity to consent from the patient lacking it. This  is described as central to the Committee’s desire to produce a non-discriminatory and principled framework for intervention in the absence of consent which is part of the Committee’s response to the current concern over the so called “treatability test”. This was a feature of S.3(2)(b) of the 1983 Act and of other linking sections on discharge, which require that in the case of psychopathic disorder or mental impairment compulsory treatment is likely to alleviate or prevent a deterioration of the patient’s condition. This has been the subject of much legal debate. The Cannons Park Case held that the definition of alleviation or prevention of deterioration was sufficiently wide as to encompass treatment aimed at rehabilitation over a longer term.  

As seen below,  the concentration upon capacity to consent, which runs throughout the Committee’s work, particularly in relation to longer term compulsion and treatment, has not been enthusiastically greeted by the Government, who set out a simpler and less sophisticated model predicated essentially on the degree of risk posed by a patient to him or her self, or to others.
 
Capacity and best interests
The issue of capacity to consent and its role in any future legislation was central to the proposals of the expert Committee. It is also the source of a major divergence of view between the Committee and the Government’s Green Paper proposals. The same is true in relation to the issue of  who decides what is in the patient’s best interests. 

Capacity to consent, and its role, go to the heart of our understanding of what this legislation is, or should be, about. People in their everyday lives have the option of living in the way that they want. They may be exhorted to follow a healthy diet, but they retain the legal capacity to ignore this. They may engage in dangerous activities such as smoking or climbing icefalls in winter. Moreover, if, either as a consequence of these activities or for any other reason they are thought to require medical intervention for a physical condition, they retain the right, in most circumstances, to refuse. 

The Committee appeared anxious to retain, as far as possible, this idea in relation to mental disorder. Is it, or should it be the case, that falling within the ambit of a definition of mental disorder sufficient to warrant intervention on the grounds set out above, should immediately warrant the full removal of any autonomy in relation to treatment, particularly treatment justified solely on the basis of the patient’s own health?  Pushing too far in this direction risks erring on the side of an intrusive paternalism which we would not apply to physical health. Rather than simply accepting that mental disorder in itself  justifies that degree of paternalism, the Committee sought to differentiate between conditions which risk harm to the patient and conditions which risk harm to others, an argument rooted in traditional thinking best exemplified by J. S. Mill. Although it can be argued that Mill, when rejecting paternalism or concern for welfare as a justification for restrictions on liberty, excluded those unable to decide for themselves what could benefit them or meet their needs, this is precisely the issue which lies at the root of the capacity debate. The argument is that capacity is not a necessary casualty in the presence of mental illness. Implicit in this proposal is the recognition that, for many patients, the hardships and discomforts generated by the side effects of treatment are often more significant in their lives than the symptoms of the illness itself. 

Within this argument is another, about what constitutes the patient’s best interests and who should decide it. The foregoing argument is about autonomy but autonomy for what purpose? If the patient has a physical condition, the legal answer is obvious, but again, are we justified in treating differently those defined as suffering from a mental disorder? These questions are treated very differently by the Committee on the one hand and the Green Paper on the other. 

The test identified by the Committee utilises formulae articulated in  the Law Commission Report (Law Com N0 231), that the patient will only lack capacity if, either,
he or she is unable to understand or retain information relevant to the decisions, including information about the reasonably foreseeable consequences of deciding one way or another or failing to make the decision
OR
he or she is unable to make a decision based on the information relevant to the decision, including information about the reasonably foreseeable consequences of deciding one way or another of failing to make the decision. 

In the view of the expert Committee the criteria for imposing a compulsory order should take account of whether or not the patient is assessed as having capacity to consent to treatment for mental disorder; there should be a presumption in favour of capacity. The Government in its Green Paper proposes an alternative model, which does not involve a capacity test. Under this model the tribunal could impose a compulsory order if satisfied that the following conditions were met:
•	the presence of a mental disorder of such seriousness that the patient requires care and treatment under the supervision of specialist mental health services and;
•	the care and treatment proposed for the mental disorder is the least restrictive available, consistent with safe and effective care, and;
•	the proposed care and treatment cannot be implemented without use of compulsory powers and is necessary for the health and safety of the patient and /or for the protection of others from serious harm and/or for the protection of the patient from serious exploitation. (DoH 1999b, para 5.7 et seq).

It will be seen that the major effect of the Government’s alternative proposal is that the principle of differentiated risk thresholds, dependent on the existence of capacity, is deleted. The Government justifies this on the basis of their proposed principle that
“Issues relating to the safety of the individual patient and of the public are of key importance in determining the question of whether compulsory powers should be imposed.” (Ibid para 5.9)

The Green Paper adds that, although assessment of capacity would still be integral to assessment of needs and risks, it would not be a primary factor in determining whether a compulsory order should be made.  However, it adds piously, that under either approach, as a matter of good practice, the care team would be expected to take steps to promote the patient’s ability to consent to treatment and involve them in decisions on their own care. This appears to miss the thrust of the underlying argument, that imposing care on those who have capacity to choose, in the absence of over-riding risk to others, risks undermining the ability of the medical team to construct a partnership relationship with the patient. 

Best interests
The Committee continued its attempt to ask serious questions about autonomy by raising the issue of who should decide on the best interests of the patient: should priority be given to the professional opinion of the care team or should a model be adopted which gives priority to the presumed wishes of the patient as far as they are ascertainable?

The Government considers that the patient’s best interests should be determined by the members of the multi-disciplinary care team and based on their professional opinion. This view is based on the somewhat circular argument that the very fact that compulsory care and treatment are called for may imply that the clinical team is not acting in accordance with what the patient considers to be in his or her best interests. Once again it may be suspected that public safety predominates over autonomy whenever the two come into conflict. 

Independent Scrutiny
Independent scrutiny is at the heart of the legal problem that faced the Expert Committee. To comply with Human Rights regimes, an independent legal body is needed to supervise and control the actions of medical authorities. The existing Tribunal system owes its genesis and jurisdiction to the intervention of the European Court of Human Rights. The mental health function will fall within the jurisdiction set up by the Human Rights Act 1998. Interestingly the Scottish version of the Mental Heath legislation has utilised the functions of the Sheriff Court in decision making about detention and compulsory treatment. Under the new regime proposed by the Committee the function of the tribunal will move from the reactive to the proactive and tribunal members, however eventually constituted, will be intimately involved from an early stage, legitimating detention and treatment as well as providing an appellate function for those who wish to challenge their detention. 

The process will involve an independent review of detention and treatment after 7 days which will be followed by a mental disorder tribunal after 28 days, with provision for a patient to call for an expedited Tribunal hearing to take place between days 7 and 21. The care team will apply to the independent Tribunal for authority to continue to impose compulsory care and treatment beyond the 28 day period of assessment and initial treatment. Long term detention would follow a similar pattern of 6 months and yearly renewals as is presently the case.

Three possible models for such a tribunal have been proposed  (DoH 1999a, paras 5.66 – 5.73; DoH 1999b, paras 4.30 et seq). Clearly there are issues not only of cost but of availability of appropriate members for what is likely to be a far busier body than the present MHRT. The first and most complete model involves a legal chair, a member with experience of Mental Health Services, and 2 psychiatrists, one of whom does not conduct assessment, and the other of whom is drawn from an approved pool to assess the patient and report to the tribunal. This proposal would get over a persistent concern about the fairness of the present MHRT whose medical member assesses the patient and who then acts, in a sense, as both a member of, and a witness to, the tribunal. 

Other models proposed gradually water down the above model; model 2 involves a legal chair, 2 members with experience of services, and access to a panel of doctors or, in appropriate cases, people with social care experience. Model 3 involves merely a single person panel, probably a specialist lawyer, who would have access to the above panel. The Government has stated in the Green Paper that they consider that models 2 and 3 achieve the necessary independence and expertise and seek consultation on which is more appropriate. 

The tribunal will have a wide remit: it will be able to decide whether to authorise continuing compulsory powers, determining whether the criteria for the use of compulsory powers is met, whether the proposed care plan is consistent with the principles set out in the new Act and whether the interventions proposed are appropriate for the patient’s mental disorder. 

Compulsion in the Community
As indicated earlier, a major extension of power into the community is contemplated. The Government is proposing a power to make a compulsory order in the community which could 
•	stipulate the place of residence 
•	define the proposed care and treatment plan
•	require the patient to be present for scheduled visits by identified case workers
•	impose a duty on Health and Social Services to comply with arrangements set out in the care plan
•	stipulate the consequences of non-compliance which could include powers to enter premises, convey the patient to a place for care and treatment or convey the patient to hospital (DoH 1999b, para 6.7 et seq).

Discharge 
It is now proposed that discharge will become a consequence of the expiry of a system of time limited orders. The onus of showing that care should continue is clearly on the medical services. The “clinical supervisor”, the term replacing that of “responsible medical officer” in the new arrangements,  will be able to discharge a patient when the criteria for imposing compulsory care and treatment no longer exist. The supervisor will have a duty to report the discharge and to provide details of continuing care. The tribunal would be asked to confirm the content and duration of the care package and, in cases where it was not satisfied, it could request further information. This duty to report would also arise where discharge occurred  at the end of a specified period of detention and no application for renewal was made. It is presumably hoped that the requirement to satisfy the tribunal that the discharge is warranted and that satisfactory arrangements have been made will act upon the clinical supervisor as a check against premature discharge and unsatisfactory arrangements for care and support. 

Consent to treatment. 
The Committee has made a number of recommendations which would result in the procedures for treatment without consent differing markedly from the current arrangements. The Green Paper broadly accepts the approach set out, but seeks further views in this area. The general approach is to specify particular treatments which require particular safeguards (DoH, 1999a, Summary, para 25). Other treatments would be specified in the care plan and approved, or not, by the tribunal, who would be expected to ensure that the treatments were directly related to the condition from which the patient was suffering. 

The treatments identified as requiring special safeguards include those currently dealt with under s57 of the Mental Health Act, the thrust of which would continue in the new legislation.  ECT, polypharmacy, depot medication and doses exceeding British National Formulary recommendations are identified as  possible areas of controversy. The Green Paper invites further comment on ECT and polypharmacy but argues that depot medication should not be subject to special provisions. 

As for second opinions authorising treatment in the absence of consent or capacity, there appears to be general agreement that this could become the function of the medical member of the tribunal, although this should not be carried out by the person approving a compulsory order. A further change proposed is that second opinions would be carried out on the basis of the criteria for compulsory care and treatment, rather than, as is presently the case, on the basis of whether it falls within acceptable psychiatric practice.

Conclusion 
Clearly the Government felt under pressure to do two things which may be inconsistent. On the one hand, whether justifiably or not, it has made a public commitment to improving public safety. On the other hand, a long standing commitment to “bringing rights back home” has highlighted the extent to which domestic law will need to reflect the higher expectations which will result from improved access to human rights decision making. As indicated above, the expert Committee has also been driven by a desire to make a virtue of necessity and construct a system of rights for those detained which attempts to ensure that modern conceptions of need and treatment are built in to the legal framework in way that maximises the therapeutic aspects of law.   

Some of the Committee’s proposals clearly go further than the Government expected and  the Green Paper is frank about the extent to which it is prepared to relegate proposals for legal recognition of rights and principles to the administrative sector of the health service. In addition it clearly regards some proposals for safeguards as unnecessary, even in a rights based system. The possible cost of providing a proactive tribunal framework rather than a reactive body hearing appeals, should not be underestimated. The cost relates not merely to the financial aspects but calls into question the load likely to be placed on the psychiatric professions by the staffing demands on the tribunals, particularly when it is remembered that the 7 and 28 day periods themselves will generate significant workloads for general psychiatry in terms of the preparation of sufficiently detailed care plans to justify further detention and treatment. 

We should not be surprised therefore to see signs of retreat from the position set out by the Committee. The worst of all worlds would be for the lowest common denominator of care to be adopted while the highest common factor of security is imposed. While the Green Paper attempts to mask its retreats from the proposals with justifications based on improving the administrative arrangements for managing the service, other proposals currently under discussion, notably that for detaining dangerous people on the basis of risk rather than behaviour, indicate where the Government’s main priority lies. Providing a service which is capable of meeting all the requirements of the Committee recommendations would almost certainly involve significant investment in both staffing and procedures. It remains to be seen if the cost is considered worthwhile in order to obtain what is clearly the Government’s main priority, greater public safety. 
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