Response to review of the Mental Health (Care & Treatment) (Scotland) Act 2003

Introduction

Alzheimer Scotland is the leading dementia charity in Scotland. We are in close touch with a wide variety of people with dementia and their carers all across Scotland and are made aware of the experiences some these people have had of the use of the 2003 Act and of tribunal hearings. This response is based partly on that information, and partly on the varied experience and expertise of the members of our Rights and Legal Protection group. In addition a number of members of staff and volunteers with the organisation are members of the Mental Health Tribunal for Scotland. We welcomed the opportunity to present our views to the committee during its initial consultation, and the opportunity to present this response to the McManus Committee’s Report of March 2009 and the Government’s consultation paper of August 2009.

Our response concentrates primarily on the experience of people with dementia, their families, friends and those who care for them. It is relatively unusual for compulsory powers under the 2003 Act to be considered in relation to people with dementia, but this small number is nevertheless greater than the numbers subject to detention in terms of the 1984 Act, and may be slowly increasing, because of concerns consequent on the ‘Bournewood’ case (HL v UK (2004) ECHR 471). In comparison with those with other mental disorders people with dementia are less likely to have more than one episode of compulsion, are probably less likely to be subject to emergency detention, and are less likely to be subject to longer term compulsion in the community.

A characteristic train of events would be a compulsory admission to hospital, involving assessment of future care possibilities alongside treatment for the psychiatric aspects of the patient’s condition, followed, if a return home proves impossible, by an often prolonged process of assessment for a care home, and eventual placement there, perhaps in terms of the 2000 Act. It is often the case that consideration of compulsion arises at a time in the illness when the person is losing the capacity to nominate a named person, for which reason the nearest relative or primary carer is often the named person by default. Families and friends are often closely involved in the care of the person with dementia, though of course this is by no means always the case. Older people with dementia are often well known to their general practitioners. Faced with a tribunal hearing a person beyond the early stages of dementia is likely to suffer from difficulties in comprehending the proceedings, in attention to the proceedings and memory from minute to minute of what is going on, with the result that the hearing can be a bewildering and upsetting experience. It is much more likely, compared to those with other mental disorders, that a person with dementia who is before the tribunal will require a curator ad litem.

Advance statements

We agree with all the recommendations. It is important to note that, compared to people with other mental disorders, people with dementia are much more likely to have considered making an advance directive about medical treatment or other advance statement. The relative unlikelihood of the use of the MHA for people with dementia means that relatively few will consider making a statement under the Act. However, some will wish to do so, for example with regard to the use of antipsychotic medication for any problems of behaviour. It is not reasonable to ask people facing dementia to make two separate advance statements to cover two separate and unlikely circumstances. We recommend that guidance should encourage the acceptance of combined advance statements regarding both medical and psychiatric treatments. There is scope to interpret Articles 3,5,8 and 14 ECHR, particularly in the light of the UN Convention on the Rights of Persons with Disabilities, as supporting the wishes expressed in them.

Independent Advocacy

We agree with all the recommendations. However, we would point out that most of the currently available independent advocacy services are of a generic nature and this can pose some problems for people with dementia, in relation particularly to issues of capacity, but also to issues of communication, comprehension and consistency. We recommend that there should be active encouragement of the development of specialist independent advocacy services for people with dementia, and of specialism within the generic services.

Named Persons

We agree that a person with the capacity to appoint a named person should have a named person only if he or she has appointed one (4.1). This will apply to many people in the earlier stages of dementia. It is likely, however, that most people with dementia will not however have considered making such an appointment and may have lost the capacity to make it by the time compulsory measures are being considered. Furthermore the nearest relative or primary carer is often so closely involved in the day to day care of the person with dementia that they will be puzzled that they do not have an automatic right to attend any hearing and be fully involved in decisions about compulsory measures. Nevertheless we accept that recommendations 4.2 to 4.6 provide a reasonable balance which should enable those most involved in the person’s life to have proper involvement in important care decisions, and also cover the not unusual circumstance where a person with dementia has no primary carer. However, with regard to 4.3, we query whether ‘anyone with an interest’ should be clarified.

We particularly welcome the recommendation that a person with welfare power of attorney should be able to act as named person (4.6). We agree with all the other recommendations in relation to clarifying the role of named persons and on confidentiality. The (almost always default) named persons of people with dementia often have considerable difficulty in comprehending their overlapping roles as nearest relative and named person. We agree that the named person’s access to confidential information for tribunal hearings should be on a need to know basis (4.18). The concerns expressed in the Government’s consultation letter are covered by the committee’s recommendations.

Medical Matters

The fact that most people with dementia are well known to their general practitioners, who are likely to have knowledge of their circumstances before the illness began, makes it particularly appropriate that one of the medical reports for compulsory measures should normally be provided by the general practitioner. We therefore agree with the committee’s recommendation that there should be no overall change (5.5), and indeed that it should be made clear that general practitioners will be expected to provide such reports. It is important that general practitioners do not simply copy the information given by the psychiatrist giving the other report and the Government’s suggestion that the general practitioner should perhaps not be asked specifically about compulsion has some merit (Government paper 3.15). Some clear guidance on the form should be provided to help ensure that the general practitioner is giving information based on his or her past knowledge of the patient, as well as how they find the patient currently.

With regard to the submission of independent medical reports, we believe this should be mandatory, especially if the Act is amended to require only one medical report. The independent report should be commissioned by the patient, legal representative or curator ad litem. The Tribunal is there to hear any evidence to help decide how best to help the patient and it should be an obligation for it to be submitted to the Tribunal.

We have no particular comments on the other recommendations, except that we recommend that the Code of Practice should emphasise that care plans should contain clear information about the primary care services which will be available for any patient who will be cared for in the community, including an indication that these services have been discussed and agreed with the relevant general practitioner.

Tribunals

The new arrangements for the appointment of curatores ad litem are helpful in ensuring that people with dementia who would have difficulty comprehending the tribunal proceedings are not placed in bewildering and distressing situations. Further development of specialist independent advocacy for dementia would further assist in ensuring that the views of the person with dementia are fully presented to the tribunal.

We recognise that there are many possible ways in which attempts could be made to lessen the number of multiple hearings which are confusing, distressing, time-consuming and expensive for all concerned, and can hardly be seen as in the best interests of the patient. We have no very fixed view on which particular solution would best achieve the desired outcome whilst avoiding unnecessary additional burdens on the various parties. In terms of ECHR obligations there is a need to balance the requirement for a ‘fair trial’ (in terms of a properly prepared hearing) with the requirement that the hearing is timeously held, and ensure that the desire to speed things up does not result in someone being detained when their condition does not actually warrant it (and then being left with reduced opportunities to challenge that detention). However, it is clear that the time required to engage legal representation and, if desired, to obtain an independent medical report is crucial, so the recommendation to extend the time limit for extension of a short term order to ten working days is reasonable (6.1), as long as it is coupled with practical procedures and Code of Practice guidance which helps ensure that all parties are ready within that time. We are attracted to the Government’s suggestion that Interim Orders should be dispensed with (Government paper 4.26 – 4.29), but there would need to be some assessment of the practical feasibility of this option, covering the wide variety of possible circumstances. We have some doubts whether shortening the period of short term detention to 21 days would be appropriate (Government paper 4.15 – 4.25), though the idea has attractions. It is generally the case that more than this time is required to assess fully a person’s need for treatment and to formulate anything more than the vaguest care plan. On the other hand we believe that applications for compulsory measures should be made at the earliest practical opportunity, and that this should be emphasised in the Codes of Practice. Further we would support the idea that notification of an intention to proceed to a Compulsory Treatment Order should be required by day 21 of the short term order (Government paper 4.16), although we recognise that this would bring an added burden on Mental Health Officers and Responsible Medical Officers in particular.

We agree with the various other suggestions (6.3, 6.4, etc) to streamline procedures. We do not, however, agree with the ‘appear to be met’ criterion suggested for interim orders in recommendations 6.6 and 6.7; compulsory powers should only be granted where clear evidence of their necessity is proved. We agree with the various measures suggested to enhance the skills and involvement of solicitors in the tribunal process, and the suggestions for improving the skills of tribunal members. In particular there is a need for education for all concerned on the particular issues arising for people with dementia and their carers in tribunals, and on the special contribution made by independent advocates at hearings (6.58, 6.59).

Other issues

We support the recommendations on clarification of communication between the Tribunal and the Mental Welfare Commission and on reports to the Commission. We support the suggestion of a full review of forcible and compulsory treatment in the community under both the 2000 and 2003 Acts.

In many cases people with dementia who are considered for compulsory powers under the MHA are already, or will be, considered for various powers under the AWIA. At present it is not appropriate for a tribunal hearing to consider what powers are necessary under AWIA or how these powers are used. This leads to confusion and is unsatisfactory for all concerned. There is experience to suggest that many patients with dementia are actually detained in hospital due to ‘social’ reasons such as wandering or not engaging with community supports, and if alternative legislation is not in place detention is used as a default to provide a place of safety and basic care, but whether this legislation and a hospital locus is appropriate is questionable. It remains to be seen as to whether the Adult Support and Protection (Scotland) Act 2007 will be used as a means of emergency intervention where someone with dementia is deemed to be at risk of harm. The Gill Report strongly recommends the introduction specialisation in the sheriff court, with proceedings under the Adults with Incapacity (Scotland) Act 2000 being a potential area for specialisation. Provisions within the Act which allow timely action in the situations described here are rarely used because they are not well understood.

When the MHA was being prepared the Scottish Executive of the time indicated that when the new Act was established consideration would be given to amalgamation or some form of harmonisation of AWIA and MHA, including consideration of whether it would be appropriate for the Tribunal to be the decision-making body for AWIA. Now that we have the Adult Support and Protection Act which completes the ‘armour’ required to protect and support adults who are vulnerable to harm, it would be timely to conduct research into how interventions under these Acts are working for people aged over 65 with a mental disorder and at risk of harm.

Jan Killeen
Director of Policy
5 November 2009