Mental Health Act or Mental Capacity Act? The Case of E

Inserting a nasogastric tube, while potentially live saving, is a lot less pleasant than this posed model would have you believe

Since my lost post (What’s the Point of Mental Hospitals? Suicide and Suicide Prevention), there has coincidentally been a court judgment relating very closely to the arguments being put forward in that post, as well as the extensive and at times contentious comments on the post.

On 15^th June 2012 the Honourable Mr Justice Peter Jackson issued a judgment in the Court of Protection relating to a 32 year old woman known only as E, who was suffering from Anorexia Nervosa, Emotionally Unstable Personality Disorder, and chronic alcohol dependence. This judgment could have far reaching implications.

E had a Body Mass Index of less than 12. She was in a palliative care setting and was refusing to eat. She had a very long history of anorexia, and had had been subject to many treatment regimes over that time, with little or no success. She was at the point of death. The essential decision the Judge had to make was whether or not further life saving treatment against her will was in her best interests.

It was presented to the Judge that, although past treatment had failed, there was a prospect that long term treatment for her eating disorder and other underlying conditions had some prospect of success. In a remarkably humane and clearly written judgment, the Judge concluded:

“The competing factors are, in my judgment, almost exactly in equilibrium, but having considered them as carefully as I am able, I find that the balance tips slowly but unmistakably in the direction of life-preserving treatment. In the end, the presumption in favour of the preservation of life is not displaced.

 I declare that E lacks capacity to make decisions about life-sustaining treatment, and that it is lawful and in her best interests for her to be fed, forcibly if necessary. I find that the resulting interference with E’s rights under Articles 8 and 3 is proportionate and necessary in order to protect her right to life under Article 2.”

This Judgment relates primarily to the Mental Capacity Act. The outcome of the Judgment appears to mean that E can be detained in a hospital and compelled to receive treatment for her mental disorders for 1-2 years or more. She can be deprived of her liberty on the basis that it is in her best interests. And all this will take place under the aegis of the Mental Capacity Act.

While I have no dispute that the judgment was made in the best interests of E, as an AMHP, I am confused, to say the least, at the implications of this judgment for the Mental Health Act.

Far more eminent authorities than the Masked AMHP have commentated on this judgment (Lucy Series, for one, in her excellent The Small Places blog, has raised some cogent issues, and it has had widespread coverage in the national press), so I do not propose to dissect it paragraph by paragraph. I also do not know enough about the case and the extensive treatments E has had over the years to comment on why those involved in her care took the decisions they did that led to E being an informal patient in a palliative care setting.

I am, nevertheless, greatly concerned about the implications for my, and all AMHP’s, practice under the MHA.

The case of GJ (GJ v The FT and The PCT and the Secretary of State for Health (2009) EWHC 2972 (Fam), 20th November 2009) is one that has informed AMHP practice for some time in that it clarified some aspects of the interface between the Mental Health Act and the Mental Capacity Act. This case concluded essentially that, if the Mental Health Act could be used, then it should be used; the MHA trumped the MCA. So, for example, if a person who lacked capacity needed treatment in a hospital for mental disorder and they were not in agreement with this, then treatment should be given under Sec.3 MHA rather than under the Deprivation of Liberty Safeguards under the MCA.

But the case of E seems to throw a spanner in the works.

I have written about the use of the MHA with people with anorexia nervosa before on my blog (Anorexia, the MentalHealth Act – and Kayleigh). To me, it seems clear that anorexia nervosa is a mental disorder within the meaning of the MHA, and if a patient needs treatment for the physical effects of starvation, then it is entirely appropriate to detain them under Sec.3 MHA for treatment. In addition, despite some of the opinions expressed in response to my last post, I regard it as an AMHP’s duty to save life and prevent suicide.

But, as a consequence of bringing E’s case to the Court of Protection and inviting a judgment relating to deprivation of liberty and best interests, E can now receive extremely invasive treatment against her will for an indefinite, but undoubtedly very long period of time, without being detained under the MHA at all.

Not only did it appear unnecessary to bring this case to the Court of Protection, but it appears to have a consequence of reducing E’s recourse to legal challenge of her detention. Had E been detained under Sec.3 MHA for this treatment, then she could have appealed against the decision, and her case could then have been considered by a Tribunal. Even if she had not appealed against detention under the MHA, there would have been periodic automatic referral whenever her detention was extended.

While treatment might be in E’s best interests, I am not sure if the judgment itself was, in the long term, in the best interests of either E or other mentally disordered patients lacking capacity and requiring inpatient treatment against their will.

Why bother with the Mental Health Act at all, if all such treatment can be given under the Deprivation of Liberty Safeguards?

What’s the Point of Mental Hospitals? Suicide and Suicide Prevention

Modern psychiatric wards are light and airy

Monica is one of my blog readers. She often comments on posts. Her comments can be quite challenging. She has a very individual perspective, often making statements which force me to look more closely at my basic assumptions when it comes to mental disorder.

Monica’s most recent comments were in response to my last post, about Paul, a service user who killed himself while a hospital inpatient. Here, my implicit assumption was that it’s not a good idea to allow people to kill themselves if they suffer from a mental disorder and that as an AMHP I should make every effort to try to prevent suicide, including admitting people to psychiatric hospital, either informally or under the Mental Health Act.

As is often the case on my blog, Monica questioned this. She wrote:

“One good way to solve this problem would be to just not hospitalize patients for mental illness. If any deaths are due to conditions at the hospital, such as violence or accidents, they just won't happen if the patients are not in the hospital. Maybe suicides will still happen, in fact more of them since some hospitalized patients are there precisely because they are suicidal. So what? Some people would kill themselves, but suicide is the ultimate act of self-determination. If people are not smart enough to stay alive or have good reasons to prefer death, why should anybody prevent their suicide, and why should taxpayers pay for that?”

I could just dismiss this comment, but it does actually raise important issues – why do we try to prevent suicide? Are there times when mental health professionals, and indeed Society as a whole, should allow people to take their own lives? And what is the point in having psychiatric hospitals?

There is a very long standing and deep seated belief that suicide is a bad thing. Indeed, it was a criminal offence in the UK to commit, or attempt to commit suicide until as recently as 1961, when the Suicide Act was passed. The Christian Church regarded suicide as a sin, to the extent that people who committed suicide could not be buried in consecrated ground.

The Suicide Act, while decriminalising suicide, also created the offence of aiding, abetting, encouraging or procuring the suicide of another. Additionally, the Human Rights Act 1998 states “Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which the penalty is provided by law” (Article 2).

Taken together, these create a powerful imperative for a mental health professional, or indeed any individual, to actively work to prevent suicide, and negligence on the part of a mental health professional could lead to disciplinary action or even prosecution.

There are also National policies aimed at reducing the incidence of suicide. Saving Lives: Our Healthier Nation, published in 1999, aimed to reduce the death rate by suicide by 20% by 2010. A further document, National Suicide Prevention Strategy for England, published in 2002, made it clear that suicide was seen as a “major public health issue.” It stated: “Around 5000 people take their own lives in England every year. In the last 20 years or so, suicide rates have fallen in older men and women, but risen in young men.” It went on to say that in men under 35, suicide was the most common cause of death.

Monica talks about people who are “not smart enough to stay alive”. I’m not sure who she means here – is she talking about people with severe learning difficulties, who might endanger themselves by inadvertently running into traffic? Or perhaps young children, who don’t realise that fire can burn them? In either case, I would not want to live in a society that did not seek to protect such vulnerable people from the consequences of their actions.

Or perhaps she’s referring to adults of normal intelligence who act in ways that others might consider to be reckless or who take apparently needless risks, such as free diving, potholing, bungee jumping, or driving too fast.

The above examples all relate to mental capacity. If someone has the capacity to act in unwise ways, then of course they should be permitted to do so, as long as their actions do not adversely affect others. But if they lack capacity, such as through severe mental disorder, then I do believe, and the law supports this, that they should be protected and prevented from taking certain actions.

Monica is right to draw attention to the risks of being a hospital inpatient. Medical hospitals are often very dangerous places to be if you are ill – they can be repositories of nasty and potentially fatal diseases, and being in hospital can expose you to these if your immune system is compromised.

Similarly, Monica is right, in a way, to say that psychiatric wards can be dangerous places – there have certainly been a number of celebrated cases where restraint has led to the death of a patient, and there have also been instances where patients have been attacked and even killed by other inpatients.

So what would happen if there were no mental hospitals? Well, this has been tried. In 1978, in Italy, a law was passed that made actually made it illegal to admit people to mental hospitals. This experiment centred on Trieste. An interesting analysis of this can be found here.

Ultimately, what this meant was the closure of traditional style asylums and their replacement with community mental health teams. In practice, this did not actually mean that there were no inpatient beds, it simply meant that CMHT’s had small units with 6-12 beds attached to them which could be used for crisis intervention within the locality in which the patient lived. Their use of the powers of compulsory detention under their Mental Health legislation was very rarely used. I would have no problem were this model to be consistently adopted as a means of mental health provision in the UK.

Monica states that “suicide is the ultimate act of self-determination”. If I knew that I had a terminal illness, and the quality of my life became worthless as the result of this illness, then I would certainly want to be allowed to end my life without undue interference.

Many people feel the same; those that can afford to, go to Switzerland for an assisted suicide. Others have challenged the right in the Courts to end their lives and to have someone to assist them – so far, with little success. I don’t think such people should generally be considered to come within the remit of the Mental Health Act.

But there are many occasions when otherwise physically healthy people express the desire and intent to end their life as a direct consequence of mental illness or mental disorder. People with serious depression or psychosis may hear voices that tell them to kill themselves. They may develop the delusional conviction that their loved ones would be better off if they were dead.

The point is that when they are in that state, such people lack the capacity to make an informed decision. Suicide in these cases ceases to be an “act of self-determination”. I believe that it should then be the job of a humane society to protect them, and to try to bring them back to a state of mental wellness such that they no longer believe that they should be dead.

There are times when admission to hospital is the only means of ensuring people’s safety. Ignoring their need is not an option.

Paul: Another Death in a Psychiatric Hospital

An article in the Observer of 27th May 2012 noted that there is on average one death a day of patients in psychiatric hospitals. It went on to say: “There were 3,628 deaths in mental health detention (501 self-inflicted) between 2000 and 2010, accounting for 61% of all deaths in state custody.” The main thrust of the article was to press for all deaths of psychiatric inpatients to be independently investigated.

The article examined the circumstances of the death of Janey Antoniou, a mental health campaigner who was also a service user. Janey died in Northwick Park Hospital in Harrow in 2010. The inquest reported that she died "following self-harming by use of ligature".

This case reminds me of another patient I worked with who met a similar, but perhaps inevitable, end.

By the time I came to assess Paul under the Mental Health Act it was already far too late.

Paul and his two older sisters were adopted by a couple when he was about four years old. They had been removed from an abusive home situation, and had spent a year or so in care before the adoption. Abuse of a different kind had continued while they were with foster parents.

Despite the best efforts of their adoptive parents, the damage the children had suffered could not be healed. Both sisters had become patients of Charwood CMHT in adulthood, the oldest one, who had experienced and remembered the worst of their abuse, and who had tried to protect her younger siblings, was a patient of the team for many years.

Paul, though, had managed to keep out of mental health services until he was 33. When his girlfriend, with whom he had lived since he was 19, finally left him because she could no longer tolerate his mood swings, he drank a bottle of vodka and tried to hang himself. It was probably only this relationship that had kept him out of mental health services for so long. Without her, he was completely lost. He was detained under Sec.2 MHA, but discharged to the CMHT after a few weeks.

Paul decided to track down his biological parents. He managed to find his biological father and made contact with him. His father was welcoming, and even invited him to come and live with him. Pau, perhaps rather hastily, took him up on the offer and left the Charwood area.

However, it seems that discovering that his biological father had a large and apparently happy family, and that he had never been a part of that family, was too much for him.

He made a series of three suicide attempts, the last one, an overdose of 100 paracetamol, resulting in another admission under Sec.2 to the local psychiatric hospital. However, he was discharged after only a few days because he was able to convince them that this was just an aberration, and that he was no longer a risk to himself.

His adoptive mother persuaded him to return to Charwood and he moved in with her. Only a few days later he got drunk, took several kitchen knives from the house and went missing. His mother informed the police. When he returned in one piece in the early hours of the morning, she and his elder sister asked for an assessment under the MHA.

I visited him at his mother’s home to assess him with his GP and the CMHT Consultant, and with a trainee AMHP in tow.

Paul was in bed, and would not come downstairs. We assessed him in his room. He remained hidden under the duvet for the whole interview. He told us that as overdoses hadn’t worked he would try a different method. We suspected that he had kept some knives.

It was the unanimous decision that Paul needed to be detained under the MHA for his own safety. We were convinced that he was intent on killing himself. As he had already had two recent detentions under Sec.2, we decided to detain him under Sec.3, for treatment.

In view of his unpredictability, and the knowledge that he did not want to go to hospital, and that he probably had knives in his possession, we asked for the police to attend to assist.

When the police arrived, I went upstairs to tell Paul that he had been detained under Sec.3 and that he was going to be admitted to hospital.

He emerged from under the duvet and looked at me, his face an emotionless mask.

“Give me a minute, I need to get dressed,” he said calmly.

I allowed him some time to get dressed. But I felt deeply uneasy.

He came downstairs, looked at the police and me waiting in the living room, then continued down the hallway.

“I think he’s going to try and get away out of the back door,” I said to the police.

He was.

Fortunately, it was not easy to get over the garden wall, and the two police officers managed to pull him back before he had had time to scale it.

He was very resistant, and did his best to provoke the police. He seemed to want them to hurt him.

“Fucking pansies,” he said to them as they rolled around with him on the lawn, “I bet you like sucking cocks don’t you?” He carried on in this vein, becoming more and more explicit about their sexual preferences.

I was impressed by the two officers. Despite his strenuous efforts to escape and resist them, and despite the extreme verbal provocation, they acted entirely professionally throughout, using only the minimum force and restraint necessary to put the handcuffs on him. He went to hospital. He was safe.

Three days after his admission under Sec.3, the section was rescinded.

I was surprised, to say the least, when I discovered this. I did not feel that three days, two of which had been the weekend, was long enough to conduct a proper assessment, never mind to treat Paul. I thought that he remained a severe suicide risk. But it is only my job to make the decision about detention. What happens after admission I have no control over.

Paul remained as an informal patient for a week or so, and was then allowed some home leave. While at home, he cut his wrists.

He returned to the ward, still as an informal patient.

In the early hours of the following morning, only two weeks following his detention under Sec.3, ward staff found him in his bathroom. He was dead. He had used his belt to hang himself, using the closed bathroom door as a ligature point.

At the Inquest, the Coroner stated: “Paul's father and stepmother visited him in hospital. Paul told them they were selfish for wanting him to stay alive, and he remained underneath the bed cover for the whole of the visit. They went to staff and said they had never seen Paul so bad, and asked them to keep a close eye on him and make sure he had nothing to harm himself with.

"That night Paul rang his girlfriend and told her he was going to kill himself. She called the hospital and told staff what Paul had said to her, and asked them to remove a belt and knife she thought he had, and to keep a close watch on him."

The inquest revealed that Paul had put clothes and blankets under the bedclothes to make it appear that he was asleep in bed when ward staff did their hourly observations. He had probably been dead for several hours before he was discovered.

The Coroner noted in the narrative verdict that there had been shortcomings in Paul’s treatment while in hospital. Changes were made to procedures on the ward, including changing the design of the doors on the en suite bathrooms so that they could not be used as ligature points.

Although I had been unhappy, both from a professional and personal point of view, that the hospital had discharged him from his section so soon after admission, I don’t ultimately think that Paul’s death would have been avoided had the hospital kept him on Sec.3, although the inpatient team may have been more reluctant to allow him leave from hospital.

At the very least, an independent inquiry might have highlighted ways to make such an unfortunate event less likely to recur.

But while I do think that more could have been done to prolong Paul’s life, I also can’t help thinking that his death by suicide was inevitable. In a way, he had died many years previously, at the hands of his biological parents.