Mental Health Law Update | Mental Health Law Update by Hilary Patrick, Honorary Fellow, School of Law, Edinburgh University |
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SCOLAG Legal Journal, March 2008, Issue 365, pages 73 - 78 Mental Health Law Update March 2008 Hilary Patrick, Fellow, University of Edinburgh, continues her review of mental health law. NEWS
Review of Mental Health Act The review’s remit recognises that the new Act offers an appropriate framework for the care and treatment of people with mental disorders. The Committee is asked to consider how the civil provisions of the Act operate and to advise on changes to improve the efficiency of its operation and the experience of service users, in the light of the Millan principles. (Concerns have been raised, for example, about the number of hearings in some cases, which both cause distress to service users and their families and are expensive in terms of staff time.) The Committee will advise on other minor amendments to the 2003 Act to resolve technical or other issues already identified by the Scottish Government. It will report to the Minister for Public Health with recommendations and will engage as appropriate with all relevant ‘stakeholders’. The Committee has been asked to report to Ministers by November this year.
Troubled Times for the Tribunal? In November 2007 Audit Scotland published a report which was highly critical of MHTSA. Among the errors highlighted: MHTSA lacked proper financial expertise to support effective financial management, there was no audit committee, there were delays in publishing statistics, and the agency lacked an operational risk management strategy. Audit Scotland issued a special report (one of only four that year) to the Scottish Parliament highlighting particular concerns arising from its audit. The Auditor General told the Parliament that MHTSA did not have proper corporate governance in place. He said MHTSA should have had a board of directors, which could direct and control the agency. In mid-December, following this report , the Scottish Government advertised for an ‘interim board’ of MHTSA, with a closing date of 11 January 2008. The board would constitute a non-executive chairman and a number of non-executive directors (NEDs) (sic) to ‘provide active leadership of the MHTSA within a framework of prudent and effective controls’. The intention was to establish the board by February 2008. However on 30 January the First Minister announced the probable abolition of MHTSA, as part of the ‘bonfire of the quangos’. It will either be merged with the Mental Health Tribunal itself or brought within core government. (The final decision rests on the outcome of a review of administrative justice chaired by Lord Philips, which reports shortly.) If any directors are appointed to lead MHTSA, they may be surprised to learn just how interim their board will be.
Acting President for Tribunal At the request of Scottish Ministers Dr. Joe Morrow (a legal member of the Tribunal) is for the time being discharging the functions of the President.
Service User Leaflet
New Supervisory Body for Tribunals The new council is responsible for reviewing the administrative justice system with a view to making it accessible, fair and efficient and ensuring that it satisfactorily reflects the needs of users. Like the Council on Tribunals, the Administrative Justice Council has a Scottish Committee. Its website is at www.ajtc.gov.uk and it also produces a very helpful newsletter.
Research on Mental Health Act While workloads have increased, the new Act and the tribunal were generally welcomed. However, there was concern about the large number of interim orders made, both because of their impact on professionals and also the effect on service users and carers of having to attend more than one hearing. See The Early Impact of the Administration of New Compulsory Powers under the Mental Health (Care and Treatment) (Scotland) Act 2003 Scottish Government Health and Community Care Research Findings No.57/2007.
Statistics The number of new civil orders granted under the Mental Health (Care and Treatment) Act appears to be stabilising. It is interesting to note that rates of emergency and short-term detention per 100,000 of population vary considerably between different health boards and local authorities. For example, emergency detention rates vary from 15 (NHS Borders) to 55 (NHS Dumfries & Galloway). Short-term detention rates vary from 40 (NHS Lanarkshire) to 78 (NHS Greater Glasgow and Clyde). (These figures exclude island areas.) One matter of great concern continues to be highlighted. During the three months reported on, 38 young people under the age of 18 who required in-patient treatment were admitted to adult wards or other non-specialist facilities, in breach of health boards’ duties under the Mental Health Act. The Commission mildly states that this is ‘undesirable’. Others are less restrained. One psychiatrist told SCOLAG the situation was ‘scandalous’. 304 welfare guardianship orders were granted in this period. A very high percentage (72%) of these orders were granted for an indefinite duration. This could be a cause for concern. Indefinite orders should not be granted where a person’s condition may fluctuate or his or her circumstances may change. It would be helpful to have an analysis of these orders from the Commission.
Mental Health Act Forms
Review of Decision Making His report, Review and decision making for persons with a serious mental illness: achieving best practice – a cross-jurisdictional evaluation of involuntary mental health review and decision-making systems’ makes interesting reading. See www.ajtc.gov.uk/adjust/articles/churchill_mental.pdf.
Draft Codes of Practice
New Incapacity Leaflets Guardianship and intervention orders: making an application is a helpful new guide for carers by Jan Killeen. The booklet explains the process in full and should make it possible for people to make their own applications, at least in cases which are not complex. It is available at www.scotland.gov.uk/Resource/Doc/196529/0052658.pdf.
Advocacy Petition While the Mental Health Act gives everyone with a mental illness, learning disability or personality disorder the right to an independent advocate, access to advocacy remains patchy and not everyone who needs one has one. Signatures to the petition are needed by 25 February. For details, see the news section of Enable’s website www.enable.org.uk.
Scrutiny of Public Services The review, chaired by Professor Lorne Crerar, reported in September. It covered the whole of the public services in Scotland. Among its interesting recommendations were:
• The voice of service users in scrutiny and inspection should be strengthened. This could eventually lead to the creation of one single scrutiny body. The Mental Welfare Commission, Care Commission and Social Work Inspection Agency could all be affected. While these recommendations are clearly of interest, it would be a matter of great concern if the work of the Mental Welfare Commission were to be diluted or merged into a larger body. The Mental Welfare Commission has proved an invaluable champion of people’s rights and its role continues to develop as it acts as the promoter of the Millan principles. Its wide remit attracts international approval. Changes are already taking place south of the border. It is planned to subsume the Mental Health Act Commission (MHAC) into the Care Quality Commission, the new umbrella health and social care inspectorate (See “Face-to-face value”, The Guardian 6 February 2008.) Although the MHAC has a more limited role than its Scottish equivalent, it has shown notable independence and has carried out some high quality work. The Mental Welfare Commission could face similar pressures on the grounds of ‘efficiency’. Despite its high reputation the Commission may have to seek to justify its independence.
Risk Management Authority It aims to promote professional practice in managing the risk of serious harm presented by such offenders. It provides information to Scottish Ministers and others on services and research, grants accreditation to approved risk assessors and approves risk management plans for offenders subject to an order for lifelong restriction. Despite the fact that it is such a new body, its future is currently under review as part of the Government’s quango cull. The Government intends to review the role of the RMA to determine whether integrating its functions into other bodies would increase the effectiveness of systems for public safety. The RMA argues that as an independent body, it can successfully link policy and practice, and says that its work has received international praise. For more details see its website, www.rmascotland.gov.uk.
Learning the Lessons? In the first case the court’s verdict was that the person was not guilty because of insanity (mental illness so serious that he should not be held responsible). In the second case, the accused person was acquitted of murder but convicted of culpable homicide (manslaughter) because his mental illness diminished his responsibility for the killing. Both men involved were in contact with mental health services and these cases would appear to raise the question of whether their care and treatment was adequate and, in at least one case, whether families’ concerns about their care were taken seriously. The responsible authorities should consider carrying out further enquiries. The Mental Welfare Commission has looked at one of these incidents in particular and is undertaking further investigation. SCOLAG contacted the Scottish Government and a spokesperson said that Ministers have ‘no plans’ to hold an enquiry. This is unfortunate. They should be urged to order further enquiries into both cases so that the lessons from these family tragedies can be learnt.
Access to Justice The report is published by the Law and Justice Foundation of New South Wales and covers many of the issues raised in Excluded from citizenship? People with mental vulnerabilities and the civil justice system in Scotland (2008 SCOLAG 11-13 & 29-31) but of course with a research base. A copy of the report, On the Edge of Justice: the Legal Needs of People with a Mental Illness, is at www.lawfoundation.net.au/report/mental. At the same time, the Mental Health Lawyers’ Association of England and Wales has expressed concerns about the potential disappearance of legal representation there. Changes to the way in which the legal aid scheme pays mental health lawyers mean that fewer and fewer lawyers are undertaking such work. As we have said, there is no reason to think that such difficulties do not apply in Scotland. The Scottish Government and Legal Aid Board need to commission research.
Law on sexual assault The 2003 Act tried to distinguish situations where a person with mental incapacity might have consented to sexual activity but that consent was in some way questionable, for example because of intimidation or fraud. The SLC proposes that a new test of consent, based on whether the alleged victim has given free consent to the sexual activity. This would make s.311 unnecessary and it would be repealed. However, in response to consultation, the SLC now recommends that any new legislation specifically define the ability of a person with mental disorder to consult to sexual activity. This would retain some of the elements of s.311. The Commission also recommends changes to the law prohibiting carers and others from sexually abusing people they care for. The Scottish Law Commission’s report on Rape and Other Sexual Offences Scot Law Com 209 was published in December 2007. LEGISLATION
Adds (among others) the Mental Welfare Commission to the list of bodies obliged to publish a disability equality scheme on or before 3 December 2007. At the time of writing the MWC was in the process of drafting its first scheme.
This Order brings into force certain provisions of the Protection of Vulnerable Groups (Scotland) Act 2007. Part 7 of the Act came into force in April 2007.
This amends the amounts taken into account for paying for care home charges in Scotland. A person whose capital (excluding the family home) exceeds £21,500 will be required to pay the whole cost of his or her care. A person who has capital of between £13,000 and £21,500 will be required to make a contribution to care costs. The personal allowance on savings is increased to £5.45 for single people and £8.15 for couples per week.
Increases to £21.15 a week the amount of personal spending money a local authority must assume a resident of a care home will need when it is assessing the person’s liability to pay for accommodation.
Brings into effect section 62 of the Adult Support and Protection (Scotland) Act 2007, which abolished the ‘liable relative’ rule requiring husband and wife to support each other. From 5 October 2007 no local authority should take a spouse’s (or civil partner’s) resources into account when calculating care costs.
CASES AL, who has been diagnosed as suffering from Asperger's Syndrome, was subject to a compulsory treatment order in hospital. EL, his named person, applied for a variation of the order to allow him to reside at her home under her supervision and with support as set out in a community care assessment carried out in August 2006. Care at home had originally been the preferred option of the care team, but following an alleged assault by the patient on a female nurse, the mental health officer and the patient’s consultant recommended his transfer to a private care facility in England which specialised in the treatment of people with Asperger's Syndrome. The tribunal refused to grant the variation of the order requested by the named person, thereby giving the care team the power to apply to the Scottish Ministers to have the patient transferred to the unit in England. EL appealed against the tribunal’s decision. The judge (Sheriff Principal Kerr) said that all parties were agreed that the decision of the tribunal under the 2003 Mental Health (Care and Treatment) (Scotland) Act was an exercise by them of a judicial discretion, and he noted that this altered the pre-existing position whereby the sheriff decided such matters acting in an administrative capacity. The test for the appeal court was laid down in the English case of G v G (Minors: Custody Appeal) 1985 1WLR 647 (adopted as the correct test for Scotland in Britton v Central Regional Council 1986 SLT 207). An appeal court should not interfere with a discretionary decision of a tribunal merely because it would have made a different decision. A person wishing to have a tribunal’s decision set aside would need to be able to show that the tribunal had in some way acted wrongly, either by basing its decision on some wrong principle, by taking a ‘plainly wrong’ decision, which no reasonable tribunal could have taken, by overlooking some relevant consideration or by improperly carrying out the necessary balancing exercise. The applicant argued that the tribunal’s decision was flawed. In particular, assaults by the patient had been foreseen and should not have altered the risk assessment. The tribunal had failed generally to grasp the strength of the evidence before them which favoured the community care option and the relative weakness of the evidence favouring transfer to a secure facility. The sheriff principal said that the tribunal had dealt in a comprehensive manner with the issues raised and should be commended for that. He believed that the tribunal had balanced the information it had received appropriately and, although a number of witnesses recommended a community care option, he believed it was appropriate for the tribunal to rely on the evidence of the responsible medical officer (RMO), who believed a secure institution would benefit AL and minimise the risks. However, the sheriff principal did criticise the way in which the tribunal exercised their discretion in an important respect. He pointed out that the decision making process of the tribunal was not purely ‘adversarial’, acting as an umpire between two competing parties. Instead the tribunal had a ‘semi inquisitorial’ role and had to consider what information it needed to reach a decision. The tribunal should have made further inquiries as to whether the secure institution was appropriate for the patient. It needed to consider the facilities the institution could offer and whether these would benefit the patient. It was not enough to take the RMO's word for it on these matters; the tribunal should have asked the doctor from the unit to attend the tribunal and give evidence. The sheriff principal found that the tribunal had failed even to consider whether the doctor from the unit should attend and instead took the content of his report as correct without considering whether to have it tested in the witness box. This was a substantial omission. Moreover, the tribunal, having accepted the report at face value, did not appear to have considered whether it should attach different weight to untested evidence to that which it attached to the evidence of the witnesses who had testified and been cross-examined at the tribunal. This was also a substantial omission. The sheriff principal concluded that the tribunal had made an error in the way they had carried out the balancing exercise required of it and he granted the appeal, remitting the case to a new tribunal for consideration.
Crime (The patient now has a diagnosis of personality disorder. While this can be a ground for detention in the State Hospital, a person with such a diagnosis can also be sent to prison. If the offence had been committed at the present time, the likely outcome for the person would have been an indeterminate prison sentence.) The Appeal Court of the High Court of Justiciary refused his appeal. It held that the original court’s decision rested not just on facts objectively ascertained but on the opinion evidence of expert witnesses. Although the reports given to the court in 1967 were not of the standard which would be required today, there was no suggestion that the appropriate assessments had not been carried out. In any event, it was clear that in 1967 everybody involved in this case was agreed that it was in the interests of the offender (who was then a young man) that he go to the State Hospital. There were no circumstances at the time that would have envisaged a prison sentence as appropriate. The fact that the decision taken in 1967 might now be taken differently, in light of developing medical opinion and later legislation, did not mean that the order made in 1967 constituted a miscarriage of justice. .
Discrimination The employee had depression and the employment tribunal had criticised the prison service for failing to consider whether to make reasonable adjustments for her disability. The EAT said that the only question was whether, objectively, the employer had failed to make reasonable adjustments. The employer’s state of mind was irrelevant. (See Mid-Staffordshire General Hospitals NHS Trust v. Cambridge [2003] IRLR 566, disapproved in Tarbuck v. Sainsbury's Supermarkets Ltd. [2006] IRLR 664.) The EAT said that even though the claimant’s depression was caused, partly, by failings in the way the prison service handled her employment, this could not give rise to an unlimited obligation on the employer to accommodate the employee's needs. However such failings may require an employer to do more by way of reasonable adjustment than would be necessary in other circumstances. The EAT acknowledged that the duty to make reasonable adjustments did not mean that there could not be circumstances where it would be appropriate to dismiss an employee if there was ‘no reasonable prospect’ of her returning to work. The EAT remitted the case to a new tribunal to consider whether reasonable adjustments should have been made at a time when the employee could still have returned to work.
Richmond Adult Community College v. Elizabeth McDougall [2008] EWCA Civ 4 Although the Employment Tribunal had found that Ms McDougall suffered from a mental impairment, persistent delusional disorder, with a possible alternative diagnosis of schizo-affective disorder, it held that this did not have a substantial adverse effect on her ability to carry out normal day-to-day activities. It held that she was not, therefore, protected under the terms of the Disability Discrimination Act (DDA). The EAT reversed this finding and the College did not appeal this. What was at issue was whether the employment tribunal was right to find that this impairment was not likely to recur, within Schedule 1 para 2 of the DDA. This provides that if an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it should be treated as continuing to have that effect if the effect is likely to recur. The claimant had been admitted to hospital under the Mental Health Act in 2002 but the employment tribunal found no evidence that her condition was likely to recur. It relied on medical evidence that she was fit for work. In fact, after the date of the alleged discrimination and before the employment tribunal hearing, she became ill again and was readmitted to hospital. The Court of Appeal agreed with the EAT that the judgment as to whether there had been unlawful discrimination should be taken on the basis of evidence about the circumstances prevailing at the time of the alleged discriminatory act. The central purpose of the DDA was to prevent discriminatory decisions and to provide sanctions if such decisions were made. Whether an employer has committed such a wrong must be judged on the basis of the evidence available at the time of the act complained of. Comment: As well as the legal points dealt with, this case very clearly and painfully illustrates the difficulties that claimants are experiencing in establishing that they are a ‘disabled person’ and thus able to establish protection under the Disability Discrimination Act 1995. It is particularly ironic that this can apply even in situations where the person appears to have been discriminated against on the grounds of that disability. Ms M appears to have been refused the job because of the medical reports obtained after the job offer was made to her, but the law did not regard her impairment as sufficiently serious to allow her to put this apparent discrimination before a tribunal. As the author has argued in previous editions of SCOLAG, (2002 SCOLAG 101 & 122) the DDA is unhelpful in the way it seeks to define ‘disability’, and who is a ‘disabled person’ and in the way it sets out statutory tests for establishing whether a person has a disability, based on lists of capacities, how substantial the impairment is and the length of the disability. Such tests may be relevant for entitlement to welfare benefits, but have no place in discrimination law. The statutory tests put the emphasis upon irrelevant considerations of the nature of the disability rather than upon whether a person has in fact suffered unfair discrimination because of an apparent disability. UK law should outlaw discrimination ‘on the grounds of’ disability or impairment, as recommended by the Disability Rights Commission following its legislative review, and as required by EU law. The Government recently consulted on a Green Paper reviewing current discrimination law. (A Framework for Fairness: Proposals for a single equality bill for Great Britain June 2007.) Unfortunately the Green Paper did not take the opportunity to propose a reform of the law which would provide genuine protection to everyone who is discriminated against on the grounds of disability, as required by EU law.
Human Rights A person detained in hospital under the 1983 Mental Health Act had absconded and killed herself. Her daughter claimed that the hospital trust had breached its duties to her mother under the right to life provisions of Article 2. She made no other claim, for example for negligence, and this was, therefore, an unusual case. A preliminary question, discussed in the High Court was the standard of negligence required to establish that the hospital trust was in breach of its duties under Article 2. The judge (relying on R (Takoushis) v Inner North London Coroner [2005] EWCA Civ 1440, and R (Khan) v Secretary of State for Health [2003] EWCA Civ 1129) said that the claimant would have to establish that the trust had been guilty of, at the least, gross negligence such as would be sufficient to sustain a charge of manslaughter. The case report gives a helpful review of the cases, both in England and Wales and those before the Court of Human Rights. In an ordinary health care situation the State would not be liable for ‘mere’ negligence, but only for that which it ought to have foreseen as possible. However the Court of Appeal held that the position of a mental patient detained by the State under the Mental Health Act was more similar to the position of a person detained in a prison than to that of an ordinary patient in a hospital. Detained patients are, the court said, particularly vulnerable. Like prisoners, they are under the control of the State in a way in which ordinary patients are not. Although many voluntary patients are also vulnerable, this is in a rather different way from those detained by the State. (This does not mean that the law recognises a distinction between the duty of care health professionals owe to a detained patient and to a patient who is not detained, but that the ECHR may regard the two groups differently.) The Court said that for detained patients, as for prisoners, the liability of the State was as set out in Osman v United Kingdom (1998) 29 EHRR 245. In order to establish a breach of Article 2, the claimant must show that at the material time the trust knew (or ought to have known) that there was a real and immediate risk to the patient’s life from self-harm and that it failed to take measures which reasonably might have been expected to avoid that risk. Comment: This is a very important case. Article 2 covers not just the duty to protect life, but also the duty to investigate deaths of those in the care of the state. For some time the author has argued that the Crown Office should ensure that a fatal accident inquiry or other similar inquiry should be held whenever a patient subject to detention in hospital dies in unusual or suspicious circumstances, as is the case with people held in custody. This English decision recognises the particular vulnerability of detained patients, and gives credence to this argument. OMBUDSMAN'S REPORTS
State Hospital’s Complaints System She recommended that the Board remind staff that they should ensure that all aspects of a complaint are addressed when responding to a complaint.
Charging for Residential Care/ Transfer of House The facts were that the children had provided the money to pay for the house, a former local authority house, four years before Mrs C transferred it and Mrs C’s explanation for the transfer was that she wished to ensure their financial security while she was still alive. While she could have left them the house in her will, this would not have the same effect. The Ombudsman pointed out that the charging for residential care guidance says that a transfer made at any time can be taken into account, but that it would be unreasonable to take into account a transfer made at a time when the person was fit and healthy and there was no reason to think that she would need residential care. A council can treat a transfer as a deprivation of assets if this was a ‘substantial’ reason for the transfer. It does not have to be the only one. The Ombudsman referred to Yule v South Lanarkshire Council (1998 SLT 490) which held that the council were entitled to treat a transfer as a deprivation of assets if no other reasonable explanation for the transfer had been offered. She held that the council were entitled to hold that there was no such explanation, but that they had been incorrect to hold that deprivation of assets was a ‘substantial’ reason for the transfer. Mrs C had been encouraged and helped to buy her former local authority home by her children, with the intention that they would benefit from the 60% discount offered by the local authority. It was always intended that they would ultimately benefit from this, and she effected the transfer four years later, when this was legally possible. The Ombudsman recommended that the council reassess Mrs C’s finances, leaving the house out of the calculation. Comment: The Ombudsman’s report highlighted the lack of an appropriate independent appeal mechanism to deal with financial assessments and showed inconsistencies in how the value of an asset is calculated when the local authority makes financial assessments. There appears to be no specific guidance, which gives rise to the potential for uncertainty and geographical variation. In the light of the importance of the issues raised, the Ombudsman's office has forwarded a copy of the report to the Scottish Government’s Health Directorate.
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SCOLAG Journal, March 2008, Issue 365, pg 73-78 PDF (
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