Written evidence submitted by Dr Sally Marlow, BBC broadcaster and Engagement and Impact Fellow, Institute of Psychiatry, Psychology and Neuroscience, King’s College London (MHB0044)

 

As a BBC specialist mental health broadcaster I made a radio documentary for BBC Radio 4 in May 2022 entitled “Bound to the Mast” https://www.bbc.co.uk/programmes/m0017cmj.  In that programme I examined the use of advance choice documents, where patients work with clinicians and other trusted individuals to document their treatment preferences, in advance, when they are well and have capacity, to be referred to in the event that they are unwell.  I am writing to the JPC now in my capacity as specialist documentary maker, to give evidence on what we discovered during the making of the documentary Bound to the Mast.  This is particularly relevant for the JPC question: ‘To what extent is the Government right in the way it has approached people taking advance decisions about their care?’

 

Under Section 9 of the July 2022 version of the Draft Mental Health Bill, the section entitled Treatment, there are laudable goals stated, including:

 

(1) (b) assist and encourage the patient to participate, as fully as possible, in the

decision-making process;

 

(d) consider the patient’s past and present wishes, feelings, beliefs and values, so far as it is reasonable to regard them as relevant and so far as they are reasonably ascertainable; 

 

(e) consider the relevant views of the following, so far as they are reasonably ascertainable—

(i) anyone named by the patient as someone to be consulted on the decision in question, or decisions of that kind;

(ii) the patient’s nominated person and any independent mental health advocate from whom the patient is receiving help by virtue of section 130A or 130E;

(iii) any donee or deputy for the patient;

(iv) any other person who cares for the patient or is interested in the patient’s welfare and whom the approved clinician considers it appropriate to consult;

(f) consider all other circumstances of which the approved clinician is aware and which it would be reasonable to regard as relevant.

 

(2) Where the patient lacks capacity in relation to matters that, in the opinion of the approved clinician, are relevant to the decision, the approved clinician must also consider any wishes, feelings, views and beliefs that the clinician thinks the patient would have in relation to those matters but for the lack of capacity.

 

(3) In subsection (1)(e), “relevant views” means—

(a) views about the nature of the patient’s past and present wishes, feelings, beliefs and values,

(b) where the patient lacks capacity in relation to matters that, in the opinion of the approved clinician, are relevant to the decision, views about the nature of the wishes feelings, views and beliefs the patient would have in relation to those matters

but for the lack of capacity, and

(c) views about whether the medical treatment should be given to the patient.”

 

However, in my opinion, if the MH Bill does not explicitly specify a mechanism by which patients can make their wishes clear, which clinicians must consult, then the statements made in the draft Bill documented above will not be adequately implemented, nor will they become standard practice. In our documentary every clinician, researcher, ethicist and patient we spoke to for programme contribution and background research, was firmly of the view that advance choice documents are the best way to enable patients to make their wishes clear, and are a format which enables clinicians to respect and respond to those wishes.  They can include details of how illness manifests and plays out, treatment preferences, names of trusted individuals and advocates.  How are clinicians supposed to consider the patient’s past and present wishes, feelings, beliefs and values if they have no consistent and comprehensive record of those wishes, feelings, beliefs and values?  Advance choice documents are effective and efficient, and patients want them. 

 

Advance decision making was also recommended in the Final report of the Independent Review of the Mental Health Act 1983

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/778897/Modernising_the_Mental_Health_Act_-_increasing_choice__reducing_compulsion.pdf  This Review heard evidence from clinicians, patients, carers, lawyers and medical ethicists, overwhelmingly in favour of advance decision making and advance choice documents as a mechanism to make those decisions.   

 

Recommendation

I recommend that the JPC proposes the inclusion of a mechanism such as advance choice documents to strengthen the stated commitment to enable people to take advance decisions about their care.

 

 

16 September 2022