Draft Proposals for the New Mental Health Act

These proposals were published by the government-esablished Mental Health Act Review Expert Group on 15 April 1999 for consultation ending on 7 May 1999.

II. ENTITLEMENTS

III. FRAMEWORK FOR COMPULSION

1. This summary follows the structure of the report. It aims to cover the principal issues raised. These will appear under the headings used in the report for the sake of clear cross referencing.

Introduction

2. The expert group was commissioned to undertake a root and branch review of the Mental Health Act. The Committee considered extending the scope of the current legislation so as to embrace issues of service quality and provision for all those with a mental disorder. They favour instead proposing that new legislation should, as now, be primarily concerned with providing a framework for compulsion in respect of certain people who suffer from mental disorder. Issues of quality and service provision are dealt with elsewhere, principally through the proposed NHS and social care legislation and the development of the national service frameworks.

Chapter I – General Principles

3. The Committee sees advantage in including within new legislation statements of principle which will set the tone for the new Act and thereby guide its interpretation. The key principles underlying the group's proposals are those of non discrimination and patient autonomy. Other principles to be cited include the importance of user participation and consensual care and of the need to ensure that treatment and care is offered in the least restrictive environment practicable, and commensurate with the need to ensure individual and public safety.

Monitoring of the Act

4. The Committee proposes that there be a duty on Secretary of State to collect data systematically on the workings of the new Act.

Code of Practice

5. More prominence should be given to a new code of practice by making earlier referral to it in the legislation, after the statement of principles. However, the Group has concluded that the Code should not have statutory force.

Chapter II – Entitlements

Reciprocity

6. The Committee is concerned to ensure that a duty to comply with an imposed care plan demands assurance that health and social care agencies provide an adequate standard of care and treatment. But they are also concerned that this should not result in diverting resources from informal care. The report therefore recommends measures to ensure that a balance is struck between the quality of care provided to informal and formal patients.

Rights and Access to Services

7. At this point the Committee also mentions its intentions with regard to additional rights which are spelt out in greater detail later in the report.

Duty to Establish Local Arrangements

8. The Committee is considering recommending the introduction of a statutory duty on all relevant agencies to work together.

Chapter III – Framework for Compulsion

The Diagnostic criterion

9. The Committee favours a broad definition of mental disorder which is defined as any disability or disorder of mind or brain whether permanent or temporary which results in an impairment or disturbance of mental functioning. Reference to specific schemes, such as the International Classification of Diseases might however be included within the Code of Practice. There should be no reference to "psychopathic disorder", although personality disorders would not, as such, be excluded. People with learning disabilities should not be expressly excluded, and the Committee strongly urges the creation of a separate framework to provide safeguards in respect of their care and treatment.

Right to Assessment

10. The Committee recommends that there be a right giving rise to a public law duty on authorities to provide an assessment for those in contact with services whose condition is deteriorating or those not in contact with services who believe the need for assessment in the interest of their own mental health. Others will have a right to request an assessment.

Formal Assessment

11. For those deemed in need of mental health care but who are reluctant to comply, there should be a compulsory assessment power. This would be time-limited and might take place in a hospital or community setting. No involuntary treatment should be provided save in an emergency. Admission to assessment should be made by at least two approved professionals one of whom would be a medical practitioner. During the period of assessment the multi-disciplinary team should complete:
• Assessment of capacity
• Assessment of risk
• Diagnosis of mental disorder
• An agreed care and treatment plan


12. By the end of the assessment period, if further compulsion is recommended, the clinical team should submit to an independent tribunal who would make a decision on disposal.

The Tribunal

13. The Committee recommends the establishment of an independent specialist tribunal, appointed by the Lord Chancellor's Department, which would make decisions on applications for compulsion. Their decision would:

Determine whether compulsion was appropriate in terms of the diagnosis of illness, capacity and risk. If yes;

Determine where compulsion should be set. This might be either in a hospital or a community setting, and,;

Approve the care and treatment plan.

14. Their powers would also include decisions relating to the oversight and variation of specific treatments, variation of the compulsory order and discharge from compulsion.
15. The tribunal membership would comprise a senior lawyer, medical practitioner and someone with knowledge of social care provision. All would need appropriate training. The medical member would fulfil and replace the existing system for second opinion approved doctors
16. The tribunal would entirely replace the Mental Health Review Tribunals.

The ending of compulsion

17. The Tribunal would be empowered to issue compulsory orders to run for a stated period up to a maximum of 6 months. Where the order exceeds 3 months, the patient would be entitled to appeal to the Tribunal which would have the power of discharge. Renewals may be ordered by the Tribunal on the recommendation of the clinical supervisor. The clinical supervisor may discharge a patient subject to an order, but only with the approval of the Tribunal.
18. The criteria for discharge should reflect the criteria for admission to compulsion and the Tribunal should be required to discharge if it is not satisfied as to the fulfilment of those criteria.

Treatment

19. The Committee would prefer to leave the term undefined, although types of treatment requiring special safeguards are stipulated. The safeguards should be defined in legislation. Specified treatments are:

Neurosurgery for mental disorder

Electro Convulsive Therapy

Longer periods of medication

Depot medication, polypharmacy and doses above BNF levels

Feeding contrary to will of the patient

Treatment for physical injury arising as a consequence of mental disorder

20. There will remain a need to provide for the administration of emergency treatment. However, its application should be reported to the Tribunal whenever the patient's case is due to be considered.

Incapacity

21. In furtherance of the principles of non-discrimination and patient autonomy the Committee propose that, for the first time a patient's capacity should be taken into account in determining whether compulsion is required. The definition, while largely reflecting that of the Law Commission's work in this area, should be broadly based so that patients might be deemed to lack capacity when they reach a decision in respect of their treatment that they would not have reached had they been well.
22. At paras 159-171 the Committee considers some of the more difficult applications of the concept of capacity.

Best Interests

23. According to the Committee's proposals a treatment plan should constitute treatment in the patient's best interests. At paras 173-180 the Committee considers a definition of the term.

Protection of civil liberties

24. The Committee's proposals are, throughout, framed so that deprivation of liberty is kept to the minimum possible, consistent with safe and effective care and is subject to review by an independent body.
25. There are particular problems posed by detention in hospital concerning control and discipline, and the Committee is concerned that clear guidance is issued possibly in secondary legislation, backed up within the code of practice.

Positive Rights

26. The Committee recommend the inclusion of a number of 'rights'. These include the right to an assessment, in certain circumstances, the right to information about treatment and care the right to independent legal advice, the right to an 'authorised representative' and the right to an adequate level of services including ongoing care after compulsion.

Common Law /Statute

27. The Committee outlines its preliminary views on the complex relationship between the common law and statute. In framing its proposals it has endeavoured to make the statutory framework as comprehensive as possible.

Information Sharing

28. The Committee is aware that the failure to share information between agencies is frequently referred to in Independent Homicide Inquiries. It is minded to recommend that the Code of Practice be expressly required by the Act to provide guidance about sharing information in relation to mental health care.

Safeguards

29. Hospital Managers – The Committee recommends that the Hospital Managers' power to discharge patients should be discontinued.
30. Second Opinion Doctors - The medical member of the new Tribunal will fulfil the role, appropriately strengthened, of second opinion approved doctors under the current system. The Committee therefore sees no need for the continuance of a separate structure of trained doctors appointed by the Mental Health Act Commission. However, the report recognises the importance of monitoring and considers that this might be undertaken by a successor body to the MHAC (see below).
31. The Mental Health Act Commission - The Committee recommends the continuation of a body such as the MHAC but recommends that it be reconstituted as a body independent of the Secretary of State for Health, reporting directly to Parliament through the select committee structure. Its role should be expanded to include the monitoring of care of all patients under compulsion, whether in hospital of community settings. It should also monitor the care of informal hospital patients.
32. Advance Directives - The Committee is minded to recommend the statutory recognition of advance directives in support of the general principle of autonomy and consensual care.
33. Nearest Relative and Advocates – The Committee is minded to recommend the removal of the nearest relative's power in relation to both application and discharge. Nevertheless the Committee consider that there remains an important role for a nominated relative, friend or carer. The Committee also recommends the establishment of arrangements to ensure the availability of trained advocacy services.

Offenders

34. The Health Order – The Committee provides some preliminary proposals with regard to those suffering from mental disorder who are convicted of a criminal offence. It recommends that a health disposal should remain available to the trial court, but in the case of an offender/patient with capacity it should be imposed only with consent.
35. Restriction Orders – The Committee is minded to recommend changes to the current system of restriction orders.

Children

36. The Committee intends to recommend that children continue to be covered by the provisions of mental health legislation. It favours sixteen years as the threshold for capacity to make treatment decisions, with a rebuttable presumption of capacity in children from the age of ten or twelve.

Bournewood

37. The Committee is aware of the urgent need to fill the legislative gap revealed in the Bournewood case. It intends to make recommendations concerning the principles which might be reflected in a framework specifically designed to meet the needs of those who suffer from long-term incapacity.

1 The Committee was established by Ministers at the Department of Health in October 1998 to give the Government advice on how mental health legislation should be shaped to reflect contemporary patterns of care and treatment and to support their policy, as set out in Modernising Mental Health Services published in December 1998.

2 The Committee was asked to recommend a legislative framework that more accurately recognised the growing importance of life outside an institutional setting for those with a mental disorder. An important facet of this was the recognition that it was no longer necessary to detain in hospital all those for whom care and treatment in the absence of consent was appropriate. There are many patients for whom treatment in a community setting offers a better prospect of a successful outcome than treatment in hospital. But ministers have made it quite clear that, for a small number of these patients for reasons of either a risk to their own health or to the safety and health of others, compliance with agreed treatment plans should not be optional. In making recommendations on how such compulsory treatment might work in a community setting, the Committee were told to strike a proper balance between the rights of the individual and the interests of the wider public.

3 The Committee has had to take account of other initiatives both within the sphere of mental health strategy and in a wider political context. Thus we have had to have regard to the steps that the Government is taking to establish better quality mental health services through the establishment of the programmes of national service frameworks and through the proposals contained in the Health Bill currently before Parliament as well as their proposals for changes in the way that social services are to be provided as outlined in their White Paper on Social Services, Modernising Social Services. In the wider political context, we have also had to consider the implications of the European Convention on Human Rights, as enshrined in the Human Rights Act 1998 and with which all new legislation will need to comply.

4 In embarking on its task the Committee decided to regard everything within the 1983 Mental Health Act as susceptible to change. Only in that way did we feel we could provide an adequate review of what might be required in order to construct a legislative framework for mental health care into the next century. The Key Themes document which we circulated in November was devised with that in mind.

5 At the same time the Committee is well aware of the value of retaining structures which are working well and with which users, carers and mental health practitioners are familiar. We have decided therefore to recommend change only where the existing structures were thought to be inadequate, out of step with the shape of modern service provision, in conflict with our European or International obligations or non-compliant with the principles which we consider should govern modern mental health legislation.

6 In response to the Key Themes document the Committee has received over 260 submissions from groups and individuals from all over the United Kingdom. The Committee also commissioned a number of expert papers. It visited 10 areas in England and Wales and three specific hospitals, in order to hear the views of users, carers, providers, mental health practitioners, police and probation. In addition the Committee held preliminary meetings with representatives from a number of interest groups and received evidence from overseas jurisdictions both in Europe and beyond. Details are provided in Appendix 1.

7 In reaching its preliminary recommendations the Committee has been conscious of the need to reflect the demands of modern service provision, to improve public confidence in the system, to strengthen the principle of non-discrimination, to enhance the position of patient autonomy, and at the same time to pursue as simple a structure as is practicable.

8 At the outset the Committee had to address the fundamental question: what is mental health legislation for? The present Mental Health Act is primarily concerned with providing a framework for the compulsory hospitalisation and treatment of certain people who suffer from mental disorder. It has little to say about service quality or provision. The Committee had to decide whether to follow this limited model or whether to recommend a broader focus for the new legislation, one which would address issues of service provision for mental health more generally.

9 On balance the Committee has decided to adopt the first more limited model but to elevate the role of principles within it. The Committee has arrived at this conclusion for the following reasons:

10 However, if we are to move towards a framework for compulsory mental health care in the community then the Committee would urge that the opportunity be taken to address, either in the same piece of legislation or at least at the same time, the existing structure of non-compulsory community based services. This would enable simpler transfer between compulsory and voluntary or informal community treatment. The Committee considers that it is now necessary to bring together and consolidate the powers and duties of health and social service authorities, as they relate to the provision of community mental health services, under, for example, the National Assistance Act 1948, the Chronically Sick and Disabled Persons 1970, the National Health Service Act 1977, the Disabled Persons (Services, Consultation and Representation) Act 1986, and the National Health Service and Community Care Act 1990.

11 In what follows the Committee has tried to identify a framework for future mental health legislation which, in addition to protecting public safety, reflects both the need to provide `rights' for those subjected to compulsion where appropriate and the need to encourage best practice generally.

12 The Committee regards the principle of non-discrimination as central to the provision of treatment and care to those suffering from mental disorder, particularly when that provision is under compulsion. By non-discrimination in this context the Committee is referring to non-discrimination on grounds of mental health.

13 The Committee is aware of the widely held belief that high levels of discrimination currently exist against those who suffer from mental disorder. In an attempt to counter this the Committee intends to recommend:

• that wherever possible the principles governing mental health care should be similar to those which govern physical health.

14 The Committee would also wish to convey the message of non-discrimination in as powerful a form as possible. However, it has provisionally concluded against recommending that it be included as an express principle within the Act itself. The Committee sees immense difficulty in incorporating a principle of non-discrimination on grounds of mental disorder at the start of an Act which then proceeds to empower the relevant authorities to compel individuals essentially on grounds of mental disorder. Instead the Committee would wish to recommend:

15 Many of the submissions received by the Committee have stressed the need to articulate general principles to underpin the legislation. The Committee has sympathy with this aim and is anxious to elevate the significance of principle both in the devising of a statutory framework and in its eventual implementation.

16 In addition to and in large part flowing from the principle of non-discrimination the Committee takes the view that the fundamental principle to be recognised in any future mental health legislation should be patient autonomy. By patient autonomy we mean the freedom to decide for oneself, the ability to make choices which others will respect. The concept is currently reflected in the guiding principles contained in the Code of Practice, which states at para 1.1 that people to whom the 1983 Mental Health Act applies should `be treated and cared for in such a way as to promote to the greatest practicable degree their self determination and personal responsibility, consistent with their own needs and wishes'.

17 The Committee considers that any new legislation must be expressly concerned with the recognition and enhancement of patient autonomy. Activities under the legislation should be concerned with preserving or (where possible) restoring autonomy, or (where not possible) protecting those with impaired autonomy. Patient autonomy should only be disregarded in well defined circumstances set out by law.

18 In its desire to enhance patient autonomy the Committee is minded to recommend the inclusion of the following principles to guide the implementation of the Act. It is not envisaged that these principles would be susceptible to specific enforcement on the part of individuals. Their value would be in part rhetorical and educative, but they would also provide a guide as to how the Act's provisions should be interpreted.

19 The expressions used should not be regarded as an inexpert attempt at legislative drafting, but rather as a preliminary explanation of what is intended. The Committee is also well aware of the limitations of the below list and would welcome any additional suggestions.

20 The Committee is aware of omitting from the above list some of the general principles advocated in the submissions. In some cases, particularly with regard to those principles concerned with the processes of formal decision-making, the Committee has considered it unnecessary to express them as distinct principles, preferring rather to reflect them where appropriate in the nature of its main recommendations. It has also considered it inappropriate to state respect for the position of carers as an express principle and has attempted instead to reflect the needs and interests of carers within its general proposals.

21 The Committee is attracted to the principle of `evidence based medicine' or `effective treatment', but has encountered considerable difficulty in its attempts to articulate such a principle in a way which would be both meaningful and practicable. It would be particularly grateful for any views on this issue.

22 The Committee is satisfied that the current system has failed to collect adequate data on the operation of the Act. It regards this as a significant failing, particularly in light of the fact that the Act allows for the deprivation of liberty. The Committee is minded to recommend that a duty be imposed on the Secretary of State to provide for the collection of:

i) systematic data on the operation of the Act;

ii) the data necessary to measure the implementation of the principles.

23 It is evident from the submissions received by the Committee that the Code of Practice plays an extremely valuable role in guiding good practice. Although the Committee is keen to enhance this role, it is, on balance, against recommending that the Code be given statutory force: it would not wish to see the substance of the Code given the legal force of a statute. The need to retain flexibility and the ability to update and amend suggest that its present legal status as official guidance is to be preferred. However, the Committee would recommend that the statutory authority for the Code appear towards the beginning of the Act, immediately following the statement of general principles.

24 Further, because the Committee anticipates an enhanced role for the Code it is anxious to ensure that its requirements attract the widest possible respect and acceptance. To this end the Committee is considering recommending that the consultation requirements imposed on the Secretary of State in the Act be made more specific.

25 The Committee is also interested in exploring other ways of enhancing the authority of the Code, possibly by recommending that it be included within the expectations of clinical governance or within individual employment contracts.

26 The Committee has been told that initiatives are underway within the Department of Health and the National Health Service to create a framework for the provision of safe, sound and supportive mental health services. Thus, as we have explained above, we do not consider it appropriate to address general questions of service provision within an Act which must primarily be concerned with the application of compulsion; although we have recommended that thought be given to the rationalisation of the statutory framework governing the provision of community mental health services.

27 Whatever the position as regards the provision of services generally, however, the Committee is agreed that the principle of reciprocity demands the provision of extra assurance in the case of those on whom society imposes compulsion. If society is to impose a duty to comply with treatment and care on some of those who suffer from mental disorder it must impose a parallel duty on health and social care authorities to provide an appropriate standard of treatment and care. This duty is discussed below at para 186(e).

28 However, the Committee is aware that if this simple, and in its view, incontrovertible principle were to be implemented on its own there would be an immediate danger of distortion to the pattern of service provision. Resources might be filtered away from informal care, which in turn would conflict with the desire to favour informal care over compulsion, as set out in principle (iii) above (para 19).

29 It may be that the obligations imposed by the new Health Bill together with the requirements of the national service frameworks combined with clinical governance will be sufficient to deliver high levels of service to all categories of user. But at this early stage it is hard for the Committee to judge the practical impact of these new initiatives and it thus considers it necessary to give some thought to the additional mechanisms which might be required in order to guard against any distortion in service provision.

30 The possibilities which occur to the Committee include:

31 These possibilities could be introduced selectively or in combination. The Committee finds this issue difficult and would welcome views.

32 In addition to the obligation to provide services imposed by the principle of reciprocity, the Committee is considering whether to recommend the introduction of a number of additional rights which would apply to patients under compulsion. These rights are listed below at para 186.

33 From the submissions it has received the Committee is aware of considerable concern about the difficulties which can be encountered in gaining access to the necessary services. This concern is expressed by users, carers, mental health practitioners and the police. In response the Committee is considering recommending the introduction of a right to assessment. The issue is discussed below at para 52 et seq.

34 The current Code of Practice emphasises the importance of inter-agency co-operation (para 2.43). The Committee is convinced that such co-operation is essential to the proper delivery of mental health services. The Committee would therefore like to recommend that a duty to work together be imposed on all agencies with responsibilities under the Act. The Committee is aware of the model provided by sections 5 and 6 of the Crime and Disorder Act 1998 and would welcome views as to how the imposition of such a duty might work in practice.

35 The Committee received a number (56 out of 257) Note 1 of submissions addressing the question of the diagnostic trigger for compulsion. Of those the vast majority (95%) were in favour of a redefinition of mental disorder. There was, however, no agreement as to the preferred definition. In short there was a tension between a definition which was so broad it was open to abuse and one that was too narrow and risked missing people who might benefit from the provisions of the Act or on whom the provisions of the Act should be applied for the protection of others. There is also the danger of entrenching in legislation a definition which might quickly become outdated as clinical practice develops.

Note 1 There has been no attempt to weight the submissions according to whether they have come from an individual or a group. These figures, and those which are given below, merely represent a crude picture of the balance of view within the submissions received.

36 On balance the Committee favours a broad definition of the basic diagnostic criterion and is attracted by the Law Commission's proposed definition (Law Commission 231, paras 3.8- 3.13, at Appendix 2). The Law Commission, which was making recommendations with regard to incapacity, was anxious to establish a definition which was not restricted to psychiatric disorder and accordingly selected the term `mental disability', which was to be defined as `any disability or disorder of mind or brain, whether permanent or temporary, which results in an impairment or disturbance of mental functioning'. If such a broad definition were acceptable in principle it may be appropriate in the context of a mental health act to retain the term mental disorder, with all its psychiatric connotations, in preference to mental disability. The Committee is therefore minded to recommend that mental disorder be retained as the basic diagnostic criterion and that it should be defined in the terms described by the Law Commission.

37 The Committee is aware of some strong professional opinion in favour of defining mental disorder by reference to the International Classification of Disease (ICD-10) or the Diagnostic and Statistical Manual (DSM IV). It has also heard argument in favour of incorporating the definition of severe mental illness contained in Building Bridges (DOH 1996 pp 10-13, at Appendix 3), because it is a definition with which clinicians are now familiar. While the Committee appreciates the strength of these arguments it considers that on balance it would be preferable to contain reference to such definitional schemes in the Code of Practice rather than in the Act itself.

38 At present no one may be dealt with as mentally disordered under the Act `by reason only of promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs', section 1(3). The Committee would not wish to see this provision retained in its present form because the social context within which it was felt necessary has changed. However, if reference is to be made to schemes such as ICD-10, if only in the Code of Practice, it might be necessary expressly to exclude conditions such as `disorders of sexual preference' as sufficient on their own to constitute mental disorder.

39 The Key Themes document sought views on the inclusion or otherwise of a wide range of specific categories of people. With regard to substance misuse the prevailing view amongst those who commented was that although substance misuse on its own should not be regarded as a mental disorder the prevalence of co-morbidity suggests that at the assessment stage at least it should not be excluded. The Committee would therefore recommend that the express exclusion be removed on the basis that in the absence of any underlying mental disorder substance misuse on its own could not meet the eventual criteria for compulsion (see below para 104 et seq).

40 The majority of submissions received with regard to children, elderly people, and offenders wanted to see those groups remain within the legislation, and the particular issues raised are discussed below. While there is no desire to exclude prisoners from the coverage of the Act the Committee has heard powerful evidence suggesting that compulsory treatment for mental disorder should not be imposed on people while they are detained in prison. The Committee intends so to recommend. (For a prisoner's right to assessment, see below, para 53)

41 There was almost universal agreement among those who commented that the term `psychopathic disorder' be removed from the Act. This was also the view of the Report of the Committee of Inquiry into the Personality Disorder Unit, Ashworth Special Hospital (1999 HMSO Cm 4194-11). The Committee intends so to recommend.

42 On the inclusion of personality disorder opinion was divided. Of those who commented 52% were in favour of inclusion, some 30% favoured exclusion and 18% were unsure. For those who favoured exclusion the essential argument was that, although personality disorders might be classified as mental disorders (see ICD-10), they were not treatable and should not therefore be subjected to compulsion under mental health legislation. While the Committee acknowledges this argument, it is reluctant to see personality disorders as such excluded from the provisions of the Act entirely for the following reasons:

43 Given the broad definition of mental disorder favoured by the Committee personality disorders would be included within the basic diagnostic criterion, and it follows from the above that the Committee does not wish to recommend their express exclusion. However, while personality disorders will fall within the broad criterion for assessment it is likely that in a number of cases the condition will fail to meet the strict criteria necessary for the imposition of a compulsory order after assessment (see below para 104 et seq).

44 Evidence suggests that the incidence of personality disorders is particularly high within the prison population (78% of male remand prisoners, 64% of male sentenced prisoners and 50% of all female prisoners) and we would certainly wish to retain the possibility of a hospital disposal where the offender/patient consents and medical treatment of likely benefit is available.

45 The problems raised by the need to find an appropriate framework for the provision of care to those suffering from learning disabilities have been among the most difficult faced by the Committee. In part this is due to the need to fill the legislative gap revealed by the Bournewood decision and the absence of formal proposals from the Lord Chancellor's Department following on from the publication of Who Decides.

46 It is imperative that an appropriate framework of substitute decision making and safeguards be created to provide the necessary care and support to those who suffer incapacity by reason of learning disability. We have received powerful submissions, on behalf of both those who suffer from learning disabilities and those who care for them, to the effect that a mental health act is not the appropriate vehicle for the provision of such a framework. The principal reasons given include:

47 The Committee finds this reasoning compelling and would not (in an ideal world) wish to see learning disability alone included within the act, at least as far as the civil sections are concerned. It would, however, be necessary to ensure that those suffering from learning disability and a co-occurring mental illness were not excluded. It may thus be appropriate to provide for formal assessment in cases of doubt and to this end we would not wish to exclude learning disability expressly from the diagnostic threshold. People suffering from learning disabilities alone would not, however, meet the stricter criteria for a compulsory order. Ultimately we would wish to see those people provided for under a framework specifically designed to meet their particular needs. If such a framework existed we would recommend that when people with learning disabilities alone come into contact with the formal mental health structure they be diverted as soon as possible to the proper framework.

48 Unfortunately no such a framework exists at present. At the time of writing there are no formal proposals on mental incapacity from the Lord Chancellor's Department following on from the publication of Who Decides. However, we remain convinced that a framework must be created as a matter of urgency and we intend in our final report to indicate the principles which we consider should be reflected in its structure. We would be grateful to receive views on what those principles might include, some most preliminary suggestions are given below, para 241.

49 In the meantime we are keen to ensure that no people with learning disabilities who benefit from the safeguards of the present Act would be excluded from our proposed scheme, and it may be necessary to include interim provisions to that effect in the new legislation. Such people would include those with learning disabilities who present challenging behaviour and who would meet the present statutory criteria for admission.

50 In addition, and again possibly as an interim measure, we would recommend the extension of the current guardianship provisions to enable treatment decisions to be taken by the guardian and thereby to provide some framework for substitute decision making, at least as far as treatment for mental disorder is concerned.

51 As indicated above we would like to recommend a right to assessment. Such a right would supplement any rights contained elsewhere, section 47 of the NHS and Community Care Act 1990 (at Appendix 4) for example. It would be a right to assessment in relation to mental health needs. It would apply to those in contact with services who believe their condition is deteriorating, and to those unknown to services who believe that they need an assessment in the interests of their own mental health, own safety or for the protection of others. Such a right would reside in the user or potential user and would impose a duty on the relevant health or social service authority. It could be used as a trigger to the formal process of assessment described below (para 57 et seq).

52 The Committee does not envisage this right as a personal right enforceable by the user in private law, but rather as a right giving rise to a public law duty on the relevant authority.

53 In view of the evidence it has received with regard to the provision of mental health care within prison establishments the Committee would like to recommend that any such right to assessment as described in the previous paragraphs be extended to prisoners, whether sentenced or on remand.

54 While the case for the creation of such a right in users is clear and widely supported, we would be grateful for views on the extension of the right to others who might feel the need to have a friend or family member assessed. We would be inclined to include authorised representatives (see below para 69), where such existed, and carers. By `carers' we would mean those individuals who are resident with or who have significant caring responsibilities for the person concerned. This constitutes a very provisional definition and we would welcome views as to how it might be improved.

55 For the obligation on local social service and/or health authorities to respond to police requests for assessment, see below, para 79.

56 Finally we have considered the possibility of making provision for those suffering from a mental disorder, possibly very small in number, who volunteer themselves for secure containment in the interests of their own safety or that of others. We would like to encourage the provision of secure `asylum' in such cases and would recommend that the price users would pay for entry to such provision would be a binding undertaking that should they subsequently withdraw consent they would automatically be channelled through the formal assessment process as described below. We would be grateful to receive views on the feasibility of such a proposal.

57 For those deemed to be in need of assessment but who are reluctant to comply the Committee favours retaining a compulsory assessment power. Authority to impose compulsory assessment would remain, as at present, in the hands of mental health professionals. The Committee is minded to recommend that the duration of an assessment order should be significantly reduced from the current 28 days and intends to specify a number of tasks which would have to be undertaken during that period.

58 More specifically the Committee would like to recommend that the criteria for compulsory assessment be phrased in a similar way to the current section 2, but with significant amendments. Thus:

59 We would also like to recommend that entry to compulsory assessment be authorised by specified professionals. However, we would welcome views as to who those professionals should be and what number should be required.

60 At present a section 2 application requires the participation of the applicant, who typically is an ASW but can be the nearest relative, and two medical practitioners. Requirements concerning independence, expertise and, where practicable, previous knowledge of the patient are all imposed. The Committee considers that it may be appropriate to recommend change to this structure in light of the following factors:

61 In the light of these factors it may, for example:

62 The Committee does, however, consider that it would be important to retain certain elements of the present structure:

63 The Committee considers that these questions raise important issues of principle and practice and would welcome comment.

64 In line with the Committee's overall proposals we would like to recommend that the compulsory assessment power be available outside hospital as well as within hospital. If the tasks specified below can be conducted outside a hospital setting and the necessary skilled practitioners are available then we would not wish to impose the requirement of hospital detention. In practice, given the absence of compliance, it may in many cases be necessary to detain the person in hospital in order to effect the assessment. But the Committee anticipates that there may be a number of cases where physical detention in hospital is not necessary and where assessment can more appropriately be effected elsewhere, at home, for example, or at a day centre. These cases may include both people for whom the transfer to hospital would be particularly traumatic, elderly people or children, for example, and those who are well known to services and are being supported in the community but whose condition is deteriorating.

65 The Committee is very keen to hear views on:

66 On the assumption that compulsory assessment will be available outside hospital, any authorising professionals who wished to impose hospital detention would be required to record the specific reasons why such detention was considered to be necessary. The fact of detention would then be reported by the applicant to the appropriate authority within the hospital. At present this function is performed by the managers. However, given the new structure we are intending to recommend, we would favour the identification of a single individual, the registered person, and deputy within senior management to perform this formal task. That person would then be under a duty to inform the MHAC, or its successor body, of the admission within 24 hours.

67 A similar reporting structure would need to be devised in relation to those compulsory assessments which take place outside hospital.

68 The Committee is inclined to recommend that the formal compulsory assessment process authorised by this power should extend for a maximum of 7 days when detention in hospital is involved, and 14 days where the assessment is to take place in the community. Either period could be extended by the decision of an independent tribunal, see below, para 102 .

69 During the period of assessment the following tasks must be carried out by the multi disciplinary care team, although it would be necessary to impose formal responsibility on an identified member of the team, the clinical supervisor:

70 During this period of formal assessment the only medical treatment authorised by law (unless accepted voluntarily) would be that set out in the equivalent of a revised section 62(1) of the 1983 Act, suitably adapted to deal with the different settings within which the compulsory assessment may be taking place. Certain treatments (listed below at para 137 et seq ) should be prohibited during the period of assessment, even with capacity and consent. In cases where all the necessary assessments had been completed it would always be open to the care team, through the clinical supervisor, to apply to the tribunal for approval of a treatment order before the maximum period for the order was up.

71 During the period of assessment the care team would be required to notify, and consult, the relevant family or authorised representative, nominated carers, advocacy bodies and other relevant organisations e.g. housing. For these purposes it would be necessary to identify the individual formally responsible within the team.

72 By the end of the 7 or 14 days we recommend that the person's case be considered by an independent court/tribunal. Although this body could be a specially trained magistrate's court, or a county court, we strongly favour and recommend a new specialist tribunal (see below, para 82 et seq).

73 The Committee is anxious not to increase the use of compulsion and is therefore minded to recommend that it be possible for the clinical supervisor to apply directly to the tribunal for a compulsory order (see below), without having first gone through compulsory assessment. Such a power could only be available in cases where it had been possible to complete all the tasks listed above without the use of compulsion and might therefore be rarely used. However, if the power were available it would be necessary to provide adequate safeguards: the clinical supervisor would for example have to give the patient sufficient warning of his or her intention to apply for a compulsory order. The Committee would welcome views on the advisability of providing such a power and the nature of the safeguards it should attract.

75 Under the proposals outlined above admission to formal assessment would require the participation of at least two professionals. The Committee has received much evidence concerning the difficulties often faced in practice by those seeking to implement an urgent Mental Health Act assessment. The attendance of both ASWs and section 12 doctors can be very hard to achieve. While the Committee hopes that the situation will improve under the national service frameworks it is convinced of the continuing need to provide for emergency powers of containment at least.

76 The 1983 Act provides for 72 hours emergency admission on the application of an ASW with one medical recommendation (section 4), for the imposition of detention on an in patient for 72 hours on the basis of one medical recommendation (section 5(2), and for a nurses' holding power of 6 hours (section 5(4).

77 In the interests of simplicity the Committee would like to see one emergency containment power which could be initiated, in relation to an in patient, by any duly trained and authorised social worker, nurse or medical practitioner as listed in the statute. If the emergency arose outside hospital the involvement of both an approved mental health worker and a medical practitioner would be required. It would be available only in cases of urgent necessity and would authorise containment in hospital for a maximum of 24 hours.

78 The fact of emergency containment and the reasons for it would be reported by the detainer to the registered person and to the MHAC or its successor body. During the period of containment only emergency treatment under the equivalent of section 62 would be permitted. If a formal assessment was not imposed by the end of that period the authority to detain would automatically lapse.

79 In addition the Committee recommends that the powers set out in section 136 and 135 of the 1983 Act be retained with the language modernised. The Committee has been urged to extend the section 136 powers of the police beyond a `public place' but the Committee remains reluctant to do so. While it appreciates the practical inconvenience of the restriction the Committee considers that to allow entry to a person's home without a warrant would constitute too fundamental a breach of principle. We would prefer to see the problem resolved by the imposition of a duty on the local authority to respond urgently to a police request for assessment. For the right to assessment see above.

80 The Committee has heard strong arguments for removing the police station as a place of safety. However, in certain remote areas there may be no realistic alternative. We recommend instead that local protocols should continue to be developed so that normally the use of a police station is restricted to cases where there is a serious risk of violence. Further we recommend that an obligation be placed on Health Authorities to ensure the provision of and to certify specific places of safety for section 136 purposes in their area.

81 The Committee can see no justification for allowing a longer period of detention under section 136 than under other emergency powers. It has been assured that the current initiatives are sufficient to deliver improved services. It therefore intends to recommend that the successor to section 136 permit detention for up to 24 hours.

82 By providing for the introduction of the mental health review tribunal (MHRT) the Mental Health Act 1959 recognised the need to provide for independent adjudication in relation to discharge from compulsory hospitalisation. In the forty years since then access to an independent body empowered to authorise discharge has come to be regarded as essential, if for no other reason than that it is required by the European Convention and the Human Rights Act.

83 In relation to admission to compulsion, however, the Percy Commission favoured reliance on the professional judgment of doctors and social workers in preference to what was seen as the rather formalistic approval by the magistrates. This preference for professional judgment was reflected in the Mental Health Acts of both 1959 and 1983. The structure which the Committee is now considering would reverse this familiar policy and thus requires some clear justification.

84 The Committee considers that the introduction of an independent decision-maker to approve compulsion is in principle desirable for the following reasons:

85 In the context of the specific scheme which the Committee is minded to recommend the introduction of an independent decision-maker is particularly important for the following reasons:

87 While the Committee recognises that the introduction of an independent body to approve the imposition of compulsion would have significant resource implications, it considers that there are considerable practical and structural advantages:

88 It follows from the above that the Committee considers that the new tribunal will be playing a most significant role within the framework of compulsion. It is therefore essential that the tribunal be of an appropriate status, be properly skilled, trained, serviced and resourced. The Committee is convinced that this requires more than the mere extension of the existing MHRT.

89 In order to meet the requirements of article 5(4) the new tribunal must be independent of the detaining authority. We would therefore recommend that, as is the present case with the MHRT, appointments be made by the Lord Chancellor.

90 The Committee has considered the possible models to be adopted by the new structure and has come to the preliminary conclusion that the new tribunal should be a national body, with a regional organisational structure and a national president.

91 In order to ensure the necessary expertise for the variety of tasks envisaged the Committee considers that the membership of the tribunal should be drawn from lawyers, medical practitioners, and those with a knowledge of social service and community care provision. It would also be important for the membership of the tribunal in any area to reflect the nature of the local population as far as possible.

92 The new body, as envisaged by the Committee, would have a much wider variety of tasks than those currently performed by the MHRT. The Committee, therefore, considers that it would have to be full time in the sense that it (generally in the form of its medical member) would have to be available at short notice. Thought would also need to be given as to how it might operate in more remote areas.

93 For certain decisions, the imposition, renewal of and appeals against a compulsory order, an oral hearing would be required. At such a hearing the tribunal would be required to consider, among other things, the patient's capacity and the appropriateness of the proposed treatment plan. It is essential, therefore that the tribunal have the necessary advice, evidence and expertise at its disposal to enable it to arrive at an independent and informed decisions.

94 One model, which is currently adopted by the MHRT, is to constitute a three person multi-disciplinary panel for each hearing. The medical member then provides the necessary `independent' expertise. The Committee, however, has serious reservations concerning this model in relation to the difficult dual role played by the medical member as both expert witness and decision-maker. While a possible solution to those difficulties might be to remove the obligation on the medical member to assess the patient and instead to encourage the tribunal to seek independent expert reports, such an approach would be very costly.

95 An alternative would be to constitute a single person panel, the legal member, and to require the two expert members to assess the patient and the reports of the clinical team and to report openly to the panel at the hearing. This would enable the patient to hear and challenge the evidence provided by the expert members. The medical member could also, as at present, lead the questioning of other medical witnesses. In the Committee's view this model is to be preferred in terms of fairness, cost and speed.

96 Legal representation and legal aid would be available for all oral hearings. In relation to those hearings appeal on point of law would be by way of case stated to the High Court and judicial review would continue to be available.

97 For other tasks the tribunal might have to be differently constituted from its core membership (see below for special composition in relation to the approval of physical treatments, the review of medication after two months and decisions concerning the equivalent of restriction orders)

98 If the tribunal is properly to fulfil its tasks and gain the confidence of all those involved it is imperative that it be adequately trained. The Committee is keen to encourage the earliest possible discussion of the form that training might take. It is possible that some common core training could be provided for both the tribunal membership and the members of the MHAC successor body. In the case of all tribunal members the Committee is anxious to ensure that a requirement of recent professional practice or accreditation be imposed.

99 It will also be essential to introduce a form of adequate monitoring. The Committee considers that oversight by the Council on Tribunals is insufficient on its own. The Committee would like to investigate the possibility of introducing both a duty to monitor the tribunal and an effective complaints procedure. At the same time the Committee is aware of the need to ensure that any external monitoring is consistent with the independence of the tribunal and we would be interested to hear views on whether the duty to monitor should be placed on the president of the tribunal, the Judicial Studies Board, the Lord Chancellor's Department or some specially empowered independent inspectorate, and if the last, whether the successor to the MHAC could perform that role.

100 In the context of the oral hearings the tribunal would be required to adopt inquisitorial procedures which would be detailed by way of statutory instrument, as at present.

101 Following the formal assessment period, or possibly on completion of a full `informal assessment', the clinical supervisor will be required to make an application to the tribunal if the clinical team wish to prolong compulsion.

102 The following options will be available to the tribunal:

103 The compulsory order would thus be applicable to patients living within or outside hospital.

104 Before making a compulsory order the tribunal would have to be satisfied of the following:

105 These criteria would apply equally to compulsion within and outside hospital. It would be up to the clinical supervisor to specify within the care and treatment plan the appropriate location and the reasons for it.

106 The distinction made between patients who have the capacity to make treatment decisions and those who do not (reflected in criteria e) and f)) is central to the Committee's desire to produce a non-discriminatory and principled framework for intervention in the absence of consent. The Committee wishes to enable care and treatment to be given in the interests of the patient's health and safety where the patient lacks the capacity to consent, but where the patient retains that capacity and is objecting the Committee considers that the justification for compulsory intervention does not extend that far.

107 Thus, in the case of the patient who has capacity and is refusing consent the Committee believes that compulsory intervention is only justified where `there is a substantial risk of serious harm to the health or safety of the patient or to the safety of other persons' etc. The Committee considers that to allow compulsory care and treatment solely in the interests of the patient's own health or safety despite his or her capable objections would be both to discriminate unjustifiably against people with mental disorder and to deny the principle of patient autonomy. People who suffer from a physical disorder are free to refuse treatment and the Committee considers that a similar degree of respect should be accorded to those who suffer who from mental disorder. However, where the `substantial risk of serious harm' criterion is met the Committee is satisfied that the interests of both public protection and the protection of the patient do justify derogation from general principle in the case of mental disorder where there is medical treatment available from which the patient is likely to benefit.

108 The notion of capacity will require careful definition and guidance. A possible definition is discussed below at para 152. Similarly the notion of best interests in criterion d) is discussed at para 173 et seq.

109 In addition to the need to define key concepts, it would also be necessary to provide guidance indicating what evidence might be required in order to establish certain aspects of the criteria. It would, for example, be essential to indicate the nature of the risk assessment required in order to investigate the presence of sufficient risk to satisfy criterion f). Further, establishing criterion e) in the case of community treatment would require proof of a history of failure to accept appropriate treatment voluntarily.

110 Where the compulsory order relates to treatment in hospital the need to safeguard the patient's remaining rights and freedoms is dealt with below. Where the order relates to care and treatment outside hospital, the order itself will be required to specify the obligations on all parties.

111 A compulsory order relating to care and treatment outside hospital may contain detailed provisions in relation to the following:

112 The question of the compulsory administration of medication in the community is extremely controversial. Under the scheme outlined above the initial compulsory order would specify the course of treatment and the location. In the face of non-compliance the clinical supervisor would have to decide whether to apply for an emergency variation of the order. In some circumstances it might be appropriate for the tribunal to vary the order to permit the administration of medication within an appropriate and safe, non-hospital, setting; while in other cases it would be preferable to return to hospital detention in the face of persistent non-compliance. These issues are extremely difficult and the Committee would be grateful for any views.

113 A compulsory order would not apply to someone detained in prison. Thus if an individual subject to a compulsory order was subsequently imprisoned the order would automatically lapse and consideration of formal transfer to hospital would have to be given.

114 The Committee heard powerful submissions to the effect that the perceived difficulties of ensuring compliance with medication in the community could drive doctors to prescribe depot medication in place of the newer drugs which have to be taken orally even where the latter might be clinically preferred. Clearly any such distorting effect would have to be avoided. The principle of reciprocity demands that where an individual is being obliged to accept treatment that treatment be of an appropriate standard (see below, para 186).

115 The Committee would hope that the tribunal would be alive to the dangers and would refuse to authorise an order if there was any suggestion that a sub-optimal drug had been selected for reasons of convenience. The Committee would be grateful for any views on this. In relation to the monitoring of compliance with oral medication the Committee would also be interested to receive views on the availability of tests for measuring the presence of therapeutic medication.

116 Finally, the Committee is aware of the difficulties involved in charging in relation to the provision of the services which a patient is obliged to accept under compulsion. The issue is referred to further below but not resolved.

117 The consequences of non-compliance would have to be specified in the original order as described above. Ultimately in the face of persistent non-compliance the clinical team will have to decide whether to apply for discharge of the order, for variation in order to reflect what is achievable, or for conversion of the order so that it would take effect in hospital.

118 Where the care team did wish to enforce compliance with specific conditions, such as attendance at a place of treatment, the team, through the clinical supervisor, may in exceptional circumstances have to decide whether to enlist the assistance of the police. Local protocols would need to be in place to govern policy in such cases. Similarly if a patient went absent from the stipulated place of residence a decision would have to be made on the basis of a risk assessment whether to request police help in the patient's return. Sections 137 and 138 of the 1983 Act provide a possible model for the necessary powers.

119 It would be important to keep police involvement to a minimum in order to reduce stigmatisation and to make proper use of scarce police resources. Persistent physical resistance on the part of a patient should usually result either in the variation of the contentious condition or in an application to convert the order to one taking effect in hospital.

120 As stated above the formal assessment should be permitted to run for a maximum of 7 or 14 days. At the end of that period, unless extended by the tribunal, it will lapse automatically. It should not then be permissable for the patient to be readmitted to formal assessment until a minimum period has elapsed. Within the formal assessment period the clinical supervisor may end the order at any time by reporting that fact and the reasons for it to the registered person. He or she would also be required to inform the successor body to the MHAC.

121 A compulsory order will be specified to last for a fixed period: six months maximum for the first order, then subsequently on renewal for further six month periods. A renewal may only be ordered by the tribunal on the application of the clinical supervisor.

123 At any stage during the course of the order the clinical supervisor may discharge the patient from the order, but only with the approval of the tribunal. Typically that approval will be achieved by way of a paper notification of intent, but the Committee is anxious to provide some mechanism for ensuring that patients are not discharged without an agreed care package in place. For this reason the Committee also recommends that the clinical supervisor be obliged to report to the tribunal on the services in place in the case of a patient whose order is merely allowed to run its course with no renewal. The Committee's intended recommendations with regard to a right to ongoing care are described below at para 186.

124 While the obligation on the clinical supervisor to notify the tribunal before discharge may seem unduly cumbersome, the Committee is persuaded that it would be a valuable innovation. The clinical supervisor will, in any event, retain the power to authorise leave of absence and transfer. The Committee would welcome views on this issue.

125 At any time during the duration of the order the clinical supervisor would have the power to apply to the tribunal for a variation. He or she could, for example, apply to convert an order specifying treatment in hospital into an order which would apply outside hospital.

126 A patient who is the subject of a compulsory order of three months or more should have the right to apply to the tribunal for review on one occasion during the currency of the order. That right may be exercised by the authorised representative on the patient's behalf.

127 The Committee would wish to recommend that the Managers' power to discharge on their own authority be removed. Instead all discharges will formally be by the registered person at the direction of the tribunal.

128 Because the initial order will be imposed by the tribunal and the patient will possess a right of appeal, the Committee does not think it appropriate for the tribunal to retain a power to review of its own initiative. Rather the Committee would recommend that the MHAC successor body be given the power either to refer a patient to the tribunal or to require the clinical supervisor to so refer.

129 The Committee is inclined to the view that since all renewals will have to be authorised by the tribunal and the MHAC successor body will have the power of reference, there would be no need for automatic references as at present.

130 On hearing an application for renewal or discharge it would be open to the tribunal, after an adjournment if necessary, to vary the order. Thus, rather than renewing an order which included detention in hospital, the tribunal would be free to direct a variation which would enable the necessary care and treatment to be provided outside hospital. At present the MHRT possesses no such power in relation to the supervised discharge.

131 The Committee recommends that there be an obligation on the tribunal to report all decisions to the MHAC successor body.

132 In relation to `restriction orders' or their equivalent the Committee is minded to recommend that the tribunal be given the power to direct transfer and leave of absence where appropriate facilities are available and willing to accept the patient. This reform has been advocated in a number of submissions and the Committee is persuaded both that it would greatly assist the tribunal in reaching appropriate decisions in the case of restricted patients and that it would bring the legislation into line with the spirit of the ECHR. The Committee recognises the need to ensure that in all cases involving restricted patients the tribunal panel be constituted in such a way as to attract public confidence. The Committee's very preliminary views in relation to offenders are described below at para 222.

133 Finally the Committee would like to recommend that the criteria for discharge are articulated in such a way as to reflect the criteria for admission to compulsion and that the tribunal be obliged to discharge if it is not satisfied as to the fulfilment of those criteria.

134 It is impossible to avoid the term treatment in any legislation concerned with its compulsory imposition, however, it does not follow that the term requires a specific statutory definition. Under the present Act the term is defined very broadly to include `care, habilitation and rehabilitation under medical supervision', section 145. This combined with the notion of treatability has given rise to unfortunate uncertainties.

135 While the Committee is keen to recognise the importance of a broad understanding of treatment which includes care and support and is not over dependent on the medical model, we do not wish to recommend that such an understanding be reflected in a statutory definition. We would prefer to leave the term undefined and would recommend instead that the types of treatment which require special safeguards be carefully stipulated in the Act (or delegated legislation).

136 At present part IV of the 1983 Act distinguishes between treatments which can be administered in the absence of either consent or second opinion (section 63), those which require consent or second opinion (section 58), and those which require both consent and second opinion (section 57). The Committee is not at this stage intending to recommend any substantive change to the effect of section 63 and 57.

137 The Committee would like to recommend that essentially the same safeguards as those which currently apply under section 57 be maintained.

138 At present medication for mental disorder may be given to a detained patient in the absence of consent for a period of 3 months. After that period the treating doctor is required either to certify consent or to obtain a second opinion certification under section 58. The Committee is convinced of the need to provide a framework for the authorisation of medication in the absence of consent (both where there is no capacity to consent and occasionally where there is a capable refusal), however, it has received much powerful criticism of the present structure.

139 Under the proposed structure the initial treatment plan would require approval by the tribunal. Following that approval the Committee would recommend that the three month rule be reduced to two months. Thus after two months of medication the clinical team would be required to apply to the medical member of the tribunal for authorisation to continue the treatment. At this point the tribunal would act solely through its medical member who would be required to examine the patient and to perform a function similar to that currently performed by a second opinion appointed doctor under section 58 (see safeguards below). The test applied by the medical member would reflect the initial criteria required for the imposition of compulsion.

140 The Committee has received many powerful submissions urging the removal of ECT from those treatments which can be imposed in the absence of consent. The Committee has been influenced by such views but appreciates also the views of those, both clinicians and users, who feel ECT can be effective, possibly even life saving.

141 The Committee intends to recommend:

142 The Committee is aware of the concerns and fears generated by the above forms of treatment and intends to recommend that they be subjected to the same safeguards as have been described in relation to ECT.

143 Polypharmacy is to be understood as meaning the administration of more than two drugs for mental disorder from the same BNF class.

144 The Committee would be very grateful for views on the practicality of these recommendations in general and would be particularly interested to consider whether there might be a valuable role for pharmacy in the approval of some treatments.

145 This topic has caused much concern in recent years and the Committee is aware of the need for clarification.

146 The Committee would like to recommend that forced feeding in the case of a person suffering from a mental disorder be placed in the same category as ECT, and that the safeguards be applied whether or not the patient is subject to a compulsory order.

147 Again this topic has caused much concern in recent years. The Committee intends to recommend that any clinician wishing to treat a patient (whether under a compulsory order or not) who lacks capacity for physical injury caused as a result of his or her mental disorder should apply to the tribunal for specific authorisation. The tribunal, which in this context would be required to hold an oral hearing and might have to be specially constituted with a senior legal chair, would be required to approve the treatment as the least invasive alternative available and as being in the patient's best interests.

148 The Committee is persuaded that there will remain a need to provide for the administration of emergency treatments and has identified several points at which such a power may need to be used. However, the Committee is also aware of the concern expressed about the possible over reliance on emergency treatments. Accordingly the Committee would like to recommend that all emergency treatments be recorded and reported to the tribunal at the next point in the patient's progress at which the tribunal becomes involved. The Committee would welcome views as to the form further safeguards might take.

149 By reason of the importance it attributes to the principles of non-discrimination and autonomy the Committee believes that the notion of incapacity must play a central role in any future compulsory mental health structure. It is therefore intending to recommend that the patient's lack of capacity is relevant to the criteria for compulsion, see above para 69 . The term, however, requires careful definition.

150 Exactly what constitutes incapacity varies. Different levels of capacity apply to different tasks, writing a will, for example, or giving consent to hazardous treatments, and different legal interpretations apply in different contexts, the concept of criminal capacity, for example. Capacity will also vary according to how much information a person is given and how much support is made available. Finally capacity will vary in any one individual, both over the years and according to the severity of his or her disorder at the time.

151 The Law Commission has spent considerable time and effort in considering the appropriate definition of incapacity and if the Commission's preferred definition is to be included within a future Incapacity Act we would wish to reflect that definition as far as possible.

152 In the first place the Law Commission favours a presumption against lack of capacity and we would certainly endorse that view. As to the definition of incapacity, the Law Commission favoured an approach which would regard a person as lacking capacity in essentially two situations:

153 This definition is broadly in line with the approach taken recently by the courts (Re C [1994] 1 WLR 290 and Re MB [1997] 2 FLR 426).

154 While the Committee is largely in agreement with this approach it is aware that in the context of mental disorder there may be an argument for adopting a slightly broader definition. While the Law Commission's definition takes account of the effect of the disorder on the individual's ability to make decisions, it focuses on intellectual ability. In the case of psychiatric disorders there may be an argument for saying that a person lacks capacity where, although intellectually able to understand and apply the information, that person nonetheless reaches a judgment which he or she would not have reached in the absence of the disorder. Such a judgment can be said to be primarily a product of the disorder and not to reflect the person's true preferences.

155 While the Committee is aware that such a broad test of incapacity might in practice include within it a large proportion of those currently under compulsion, it is anxious to recommend a definition with which professionals feel at ease. The Committee is conscious that any test can be manipulated, but in the interests of transparency it is anxious to introduce a test which most closely reflects the clinical judgment and best practice of practitioners. It is also anxious to guard against any possibility that the introduction of an incapacity test would increase the use of compulsion. The Committee is very keen to receive views on the appropriate definition of incapacity.

156 Whatever definition is finally agreed it is important to note that in any individual case the judgment of the clinical team on the question of capacity will be subject to review by the tribunal. It is hoped in this way to build up experience of the concept's application in practice and to achieve as much consistency as possible.

157 The Committee is also anxious to receive views on the use of the term incapacity itself. Some submissions have suggested that a finding of incapacity may be regarded as particulary stigmatising.

158 Although the broad definition of incapacity outlined above might be applied to include a large proportion of those currently covered by the powers of the 1983 Act, there remain some situations which require further thought and clarification.

159 In the first place it is necessary to consider the position of the patient who retains capacity but is considered to present `substantial risk of serious harm'. As has been explained above, para 107, the Committee is satisfied that the interests of public safety and the safety of the patient justify derogation from the principles of non-discrimination and patient autonomy. Thus it is envisaged that such a patient could be made subject to a compulsory order provided there is `medical treatment available for his mental disorder from which he is likely to benefit'. The question remains, however, whether the interests of public safety etc justify not only detaining such a patient in hospital but also imposing medical treatment against his or her will. The administration of compulsory treatment arguably constitutes a greater derogation from the principle of autonomy than would detention alone.

160 The way in which capacity/incapacity is defined is obviously of crucial importance here and we discuss below some of the difficulties involved in identifying capacity in the case of self harm and suicide. Whatever the chosen definition of capacity/incapacity, however, there will always be some patients with mental disorder who present a significant risk to themselves or to others but who retain enduring capacity on any definition. The Committee would anticipate that the numbers concerned are likely to be relatively small and to be comprised largely of those suffering from personality disorders.

161 For the reasons explained above the Committee is anxious to respect a person's capable refusal of treatment as far as is possible. It has, however, had great difficulty in identifying an appropriate model to recommend because of the need not only to respect the principles non-discrimination and patient autonomy but also to find a solution which is acceptable to clinicians as compatible with best practice. Below we describe three possible models and invite comments on them.

162 The Committee is aware both of the difficulties this model might present to clinical teams and of the possible financial burdens involved in the long-term containment of non-consenting patients, but it also understands that many personality disordered patients are currently detained in structured therapeutic environments with no additional treatment. Of the three this model best supports the principles of non-discrimination, autonomy and consensual care.

163 A person with recurring mental disorder may recover sufficiently to regain capacity, however defined, and may pose insufficient risk to attract compulsion on that basis. Such a person might be discharged from compulsion and would thus be free to refuse medication. If such a person begins to display signs of relapse either a relative or carer could seek a preliminary assessment (see rights to assessment above) or an approved mental health worker or doctor could consider initiating a formal assessment, possibly in hospital. It would then be up to the tribunal on receiving the application from the clinical team following the formal assessment to make the appropriate order.

164 In the (unlikely?) event that the person retained capacity even under the broad definition of incapacity, it would be open to the tribunal to approve a compulsory order if the level of risk was sufficient. Whether that order could include compulsory treatment would depend on which of the three models described above, at paras 161 and 162, was selected. If either model a) or c) were adopted the tribunal could not approve compulsory treatment, at least in the first instance. Should capacity subsequently lapse the clinical team could apply for a variation of the order.

165 It may, however, be more appropriate in such cases to allow for a `pre-emptive' finding of incapacity. Thus on evidence of past history of relapse the tribunal could approve a treatment plan including medication despite current capacity and refusal. The Committee would prefer this last approach but would be grateful for views on this difficult issue.

166 Under the present proposals the tribunal may impose a compulsory order on a person on the grounds that that person needs treatment but has no capacity to accept or refuse. Once treated the person may regain capacity, and occasionally may do so quite quickly. In such a situation the clinical team could apply to the tribunal to approve discharge from the order.

167 Alternatively if the team wished to maintain treatment they could do so under the original order. Each compulsory order will be specified to last for a fixed period of time and would formally be sufficient to authorise continued treatment throughout that period: the patient would be required to continue to comply with the care and treatment plan for the period originally approved by the tribunal.

168 Finally, patients who are subject to compulsion would, under the Committee's intended proposals, possess the right to apply to the tribunal for discharge and a patient who regained capacity could have grounds for discharge before the completion of the order.

169 The dilemmas posed by those who harm themselves have concerned the Committee greatly. In cases where the person lacks capacity through mental disorder the solution is clear, a compulsory order is likely to be appropriate. Whether clinicians would wish to treat compulsorily in such cases is a separate issue.

170 The problem for the clinician arises if it becomes clear that the patient does have capacity and rejects the treatment in the full understanding of the consequences. In such circumstances compulsion could only be imposed if the risk criterion was met. Would persistent cutting amount to serious harm to the patient's health or safety? If it did, would it be appropriate to treat compulsorily as well as to detain? The Committee would be grateful for views on this difficult issue.

171 The dilemma here is similar to that described above, but where the threat is of suicide and there is mental disorder the Committee anticipates that most clinicians would regard the patient as lacking capacity. There may, however, be cases where the patient clearly retains capacity and still wants to die. Here the whole clinical team faces an impossible dilemma, but it is not a new dilemma and must already confront teams operating under the current structure. Under the proposed scheme the risk criterion would clearly be made out for detention; the difficulty would lie in establishing the availability of treatment from which the patient could benefit.

172 In the face of a persistent and `capable' desire to die the Committee believes it is almost impossible to legislate. Perhaps all that can usefully be done is to provide the principles to guide decisions (as articulated in the criteria for compulsion) and to provide a defence to subsequent claims against clinicians who have acted reasonably according to those principles.

173 As proposed the criteria for the imposition of a compulsory order require that the treatment plan constitutes treatment in the patient's best interests. `Best interests' is a phrase in need of definition because its meaning will vary depending on the context.

174 Essentially the choice must lie between:

176 If b) is selected there are further difficulties in deciding who should determine the presumed wishes of the patient and on what basis.

177 The Law Commission has done much work in this area and has produced proposals which we have found very helpful (3.26-3.37). These proposals emphasise the need to take into account:

178 While the Committee is attracted to these guidelines which emphasise the need to treat the person as an individual whose preferences and wishes must be respected as far as is practicable, the guidelines still leave some problems unanswered (see Who Decides 3.22-3.25, at Appendix 5).

179 In particular the Committee would wish to emphasise the need to protect the religious or cultural preferences of the individual and to this end would recommend the involvement of the patient's `authorised representative' or advocate in any discussions.

180 The Committee is also conscious that differences of opinion may emerge between those consulted. In particular the views of carers and family as to the patient's best interests may understandably be coloured by their own needs and preferences. The Committee would welcome views as to how these difficulties may best be resolved by the clinical team.

181 Throughout all the above proposals the Committee has sought to ensure that any deprivation of liberty suffered by a patient is:

a) kept to the minimum possible consistent with safe and effective care;

b) subject to review by an independent body where ever practicable.

182 This section now concentrates on the position of the patient who is detained in hospital. The detained patient suffers additional deprivation of rights through the fact of detention and in the Committee's view is therefore in need of special protection. The following proposals are designed to ensure that no further deprivation of liberty be imposed on the detained patient save that which is either expressly authorised by the legislation or is necessarily implied by the need to achieve safe containment.

183 To a large extent many of the issues revolve around the question of control and discipline. The law as it stands is in need of clarification as the 1983 Act gives little guidance to either patients or clinicians. The Committee has received very helpful submissions on this issue and is persuaded of the need to provide more statutory guidance, possibly by way of Statutory Instrument supplemented by the Code of Practice. Such guidance would:

184 The guidance would indicate the grounds on which such powers could be used and the procedures necessary to ensure the proper application of the powers. They would also provide for a means of appeal for the patient possibly to the newly formed `managers' (see below) in the first instance and then to the MHAC successor body.

185 In addition the Committee is aware of the necessity to guard against possible implications of the introduction of a capacity test when it comes to establishing an individual's civil rights. It will be essential to indicate that the capacity which is being judged for the purposes of mental health legislation is the capacity to decide whether or not to accept medical treatment for mental disorder. A finding of incapacity on that issue should not be allowed to dictate the approach taken to the person's capacity with regard to, for example, the right to marry, to enter into a contract, to vote.

186 In addition to these negative rights or freedoms and the right to assessment, patients under compulsion, whether detained or not, would gain certain positive rights, which might include:

a) the right to independent legal and medical advice;

b) the right to information about their treatment and care;

c) the right to an `authorised representative';

d) the right of access to their medical records (see Access to Health Records Act 1990) and the right to enter reservations as to the accuracy of factual statements contained therein;

e) the right to an adequate level of service including ongoing care after compulsion.

187 The right described at e) is implied by the principle of reciprocity. It is the Committee's view that all patients who are subjected to compulsion should gain a right to effective treatment and ongoing care and, in the case of those detained in hospital, a right to safe containment. This right would be a personal right in the compelled patient and would impose a duty on health and social service authorities in addition to any general duties they might possess. It is the Committee's view that the obligations flowing from reciprocity do not end immediately on discharge. A person who has been subject to a period of compulsion would have a right to ongoing care for a specified period after compulsion. The right described at e) would therefore replace current obligations under section 117.

188 The Committee appreciates that there are difficulties in identifying the moment at which the right to ongoing care should cease. The Committee would suggest that the ongoing care plan approved by the tribunal should specify a period, at the end of which the patient's access to services would be on the same basis as any other informal user of mental health services.

189 The question of the proper charging for services provided under this right raises considerable difficulties, as indeed does the charging for some of the services which patients under a compulsory order in the community are required to accept. In the case of services under a compulsory order it might be appropriate to recommend that those services should be free to the user except in the case of services for which the user would pay in the normal course of events. Thus if a patient was required by a compulsory order to reside at his or her normal address the expectation would be that he or she would meet the cost of that accommodation. Whereas if residence in a hostel or other supported accommodation was required the care costs would have to be met by the relevant authority, while the patient would be expected to meet the normal living expenses of rent and food. In practice, however, even this apparently simple principle might be hard to operate and the Committee would welcome views on the subject.

190 In relation to ongoing care provided as of right the issue becomes even more difficult and the Committee has only just embarked on its deliberations on this issue. It is possible that if the right is to extend for a specific period only, charging should be governed by the same principles which are to govern the provision of services under a compulsory order. The Committee would welcome any views on this.

191 It would be necessary to give guidance as to what would constitute effective treatment and ongoing care, but this could be done by reference to the national service frameworks.

192 Recent case law has served to highlight the complexity of the relationship between common law and statute in the context of both treatment in an emergency and treatment in the case of incapacity. It is the Committee's view that in the interests of clarity the statutory framework should seek to be as comprehensive as possible. Thus where the statutory framework applies it should be taken to have replaced the common law: in the case of a person with a mental disorder who fulfils the criteria statute must prevail.

193 Nonetheless, the need to provide emergency treatment outside the Act may arise however comprehensive the statute: the highly disturbed person who presents to A and E, for example. In such circumstances, if the need for treatment is so urgent that it is inappropriate to wait for the statutory emergency procedures to be implemented, common law must continue to provide authority to treat through the principle of necessity.

194 Further the new mental health legislation would only cover those who clearly fell within its criteria. The Committee does not intend to recommend that all people with a mental disorder requiring treatment who lack capacity to consent be placed under a compulsory order under the Act. The Committee would prefer to retain `informality' for those patients who offer no objection (in whatever form). In respect of these patients the Committee would recommend both that the approval and oversight of certain forms of treatment be required (see above) and that the remit of the MHAC successor body be extended to cover them. If the MHAC body was concerned about any individual patient it should have the power to refer that patient's case to the tribunal.

195 For such informal patients, therefore, the common law would still provide the essential authority for treatment, just as it would in the case of people lacking capacity for reasons other than psychiatric disorder. For the reasons given above the Committee does not consider it appropriate to include this latter group within mental health legislation. It would, however, like to emphasise again the urgent need to provide some statutory framework for substitute decision making and safeguards for such patients. The common law on its own cannot provide sufficient reassurance.

196 The failure to share information effectively is frequently referred to in Homicide Inquiry Reports. Its importance is also emphasised in the National Confidential Inquiry progress report 1999. Perhaps in reflection of this the vast majority of the submissions received by the Committee which referred to the issue advocated the sharing of information, at least between professionals.

197 The Committee is aware of the complexity of the law in this area and the additional difficulties created by the relevant professional codes of practice and position statements. While it appreciates the need to clarify the position particularly in relation to children and to adults who lack capacity, it is not inclined to recommend the introduction of a specific legislative provision to govern the sharing of information in relation to those who suffer from mental disorder. The Committee is aware of the model provided by section 115 of the Crime and Disorder Act 1998 but, in the interests of non-discrimination, the Committee would prefer to see the introduction of legislation to clarify confidentiality and disclosure generally in the field of health care services if that is thought necessary.

198 Instead the Committee is inclined to recommend that the Code of Practice be expressly required by the Act to provide guidance about sharing information in relation to mental health care. Such guidance might reflect the following principles, among others:

199 The Committee's detailed thinking on the subject of safeguards has of necessity had to wait until the overall structure was agreed. The outline described below is therefore most preliminary.

200 Although the Committee has recommended that the hospital managers should no longer possess the power to discharge it does recognise the value of retaining aspects of the current arrangements, especially in so far as the managers provide a vehicle for local community involvement in a mental health service.

201 The Committee is considering whether there is a need for some body to have a local monitoring role, similar to that undertaken by Boards of Visitors in prison establishments