Written evidence submitted by Baroness Finlay of Llandaff (MHB0032)
I write as past chair of the National Mental Capacity Forum.
I specific areas of concern relate to:
This Mental Health Bill appears to be designed to decrease the number of patients subject to detention under the Mental Health Act but the danger is that those with borderline disorders will potentially be subject to detention under Deprivation of Liberty Safeguards. These have fewer processes for appeal than the current Mental Health Act and therefore could be used as an unintended consequence of the pressures to decrease use of the Mental Health Act.
The interface with the Mental Capacity Act is unclear, leaving the current confusion between the two pieces of legislation in place.
The draft legislation appears to extend the Advance Decision to Refuse Treatment to also include demanding treatment. In looking forwards, the Mental Capacity Act allows for an advance statement of wishes which must be considered, when a person lacks capacity for the decision to be taken, in consideration of a ‘best interests’ decision-making process. But the person cannot demand an intervention; this has been tested in Court.
The suggestion that such an advance treatment decision could become legally binding on clinicians in relation to demanding treatment runs counter to, and conflicts with, the well-established practice of the Mental Capacity Act which is already in place. Such a statement may have been made several years previously and would not necessarily be up to date either with advances in treatment nor with the person’s current social and psychological situation. The process of ‘best interests’ decision making requires that the person is consulted and involved in the decision even if they lack capacity to take the whole of that decision themselves. It also requires assessment of what is known about a person’s current feelings, wishes and values. A legally binding advanced treatment decision risks decreasing rather than increasing attempts to enhance the person's autonomy during the time of deterioration.
The omission of those with learning difficulties from the Bill will leave them subject to Deprivation of Liberty Safeguards but also risks a disinvestment within the health service in services for those with learning disabilities as an unintended consequence of the legislation.
The management of those with alcohol related disorders and other addictions often involves provision for those with a dual diagnosis who have fluctuating capacity, making the assessment of their capacity for decisions difficult. Without adequate alcohol treatment services, the use of the Mental Health Act is an inappropriate way to manage this problem in society as there is evidence that both aspects should be managed concurrently, but at present services sometimes focus on getting the alcohol misuse under control before managing the other underlying mental illness. As a result patients and their families can feel they are in a catch 22 situation.
In conclusion, the greatest problem lies in the potential confusion with the Mental Capacity Act. There have been undeniable problems with the current Mental Health Act, but its clash with aspects of the MCA risks poor decision making.
16 September 2022