‘Can I show you this fantastic Blu-Ray disc?’
Progress, or rather the need for change does not exist in a vacuum. Without you being aware of the wider context, a skilled salesperson could demo a Blu-Ray disc to you, and explain a simple business model of renting out said discs to customers from a shop which would have you counting your millions before you’d earned them. However, the same sales pitch would end instantly the moment someone loaded the Netflix app onto their smart phone. You see context really is everything and things change quickly.
The Mental Health Act 1983 has only once been formally amended (the 2007 amendments) and is largely an unaltered piece of legislation in terms of spirit, and central aim. Advocates of the MHA 1983, and there are many of them, claim that the lack of need for revision is proof enough that it remains valid and entirely fit for purpose (it’s a Blu-Ray to these people). In my opinion though the Netflix to this Blu-Ray is the Mental Capacity Act 2005 (MCA 2005), and I’ll explain why.
MHA 1983 – The case for change
Broadly speaking the MCA 2005 is a far more progressive piece of legislation that reflects not only the values of the health and social care professions, but also of society more widely. Within the MHA 1983 risk is king and there is no sign of a revolution; risk is the lens for which all decisions that are made subject to the provisions of the MHA 1983 are viewed. There is scant balance or consideration and principles such as choice, autonomy, clinical decision making, and informed consent are subjugated to the maxim of risk being king. In comparison the MCA 2005 emphasises the role of the individual within society and of individual autonomy, how so? Well look no further than the legal requirement to assume that all adults have capacity even if they make an unwise decision. The MHA 1983 has no equivalent, even within its language of requiring decisions to be the least-restrictive.
Of particular importance in this debate is found in how both Acts deal with the issue of consent. The MHA 1983 authorises the enforced delivery of treatment to the patient for mental disorder at the discretion of the Responsible Clinician even where the patient has capacity and merely refuses the treatment (subject to a Second Opinion Approved Doctor also approving the treatment) and whereby any associated risk is focused solely on themselves. In this scenario a person detained under s. 2 (assessment) or s. 3 MHA 1983 diagnosed with a mental disorder but still having the capacity to make informed consent can have medication forcibly administered against their will even when there is no risk of harm to anyone else. Of course the level of risk that the individual poses to themselves has to be considered, and proportionality must play a key role eg risk of death would authorise greater interference because it triggers the right to life aspect of the Human Rights Act. However, I have sat through a great many manager’s hearings, and mental health review tribunals where the continued detention subject to the MHA has been authorised due to risk of neglect. The MCA 2005 should have a greater role here to ensure that our fundamental rights within the Human Rights Act 1998 are not interfered with unnecessarily or disproportionately.
The status quo
As an example let’s consider someone detained under s. 2 MHA 1983 with depression and at moderate risk of self-neglect but has mental capacity. This individual would have their right to consent trumped by the decision made by their Responsible Clinician. My view is that this might be draconian, heavy handed, and certainly a reflection that the MHA 1983 was enacted some 15 years in UK law before the Human Rights Act 1998. Under the MCA 2005 this would not be the case. Here the MCA 2005 would legally validate an individual’s right to autonomy and self-determination even when there was risk to themselves (ie an unwise decision) provided that they had mental capacity in relation to the decision (of which they are legally assumed to have until there is evidence to the contrary). In considering consent alone we can see the HRA 1998 fingerprints throughout the legislation in a way that is conspicuous by its absence with the MHA 1983, despite the 2007 amendments.
I believe that there are two relatively straightforward ways that would achieve this recalibration. Firstly, the MHA 1983 should be revised to ensure that it formally operates to protect the rights laid out in the HRA 1998, rather than provide a way to justify infringements upon them taking into account contemporary attitudes and beliefs. Secondly, the MHA should yield to the MCA 2005 in matters of capacity and ‘unwise decisions’ by adopting the five guiding principles of the MCA 2005.