Scrutiny of bills : final progress report : twenty-third report of session 2003-04 : report, together with formal minutes and appendices / Joint Committee on Human Rights.

  • Great Britain. Parliament. Joint Committee on Human Rights
Date:
2004
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Licence: Open Government Licence

Credit: Scrutiny of bills : final progress report : twenty-third report of session 2003-04 : report, together with formal minutes and appendices / Joint Committee on Human Rights. Source: Wellcome Collection.

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    2.24 Clauses 5 and 6 of the Bill could therefore be relied on to authorise the use of force to make an informal admission to hospital of a person who lacks capacity to make decisions about their treatment and is resisting admission to hospital for treatment, and thereby deprive the person lacking capacity of the procedural safeguards which apply when they are compulsorily admitted under the Mental Health Act 1983, in breach of the requirements of Article 5 ECHR. 2.25 According to the decision of the House of Lords in Bournewood (considered in detail below at paragraphs 2.34-2.42),'! persons suffering from mental disorder who are treated for their condition as in-patients in hospital fall into two categories— (1) those who are compulsorily and formally admitted into hospital against or regardless of their will, and are detained or liable to be detained in hospital pursuant to the Mental Health Act 1983 (“compulsory patients”); and (2) those who entered hospital as in-patients for treatment, and who either — having the capacity to consent, did consent (“voluntary patients”), or a lacking the capacity to consent, did not object (“informal patients”), who are admitted pursuant to s. 131(1) MHA 1983 without the formalities and procedures for admission necessary for detention under the Act.'”” 2.26 It follows from this that, under current law, people who lack the capacity to consent to their admission for treatment, but who resist it, should be treated as compulsory patients and admitted pursuant to Part II of the MHA 1983. The Codes of Practice on the MHA issued by the Department of Health state precisely this: for incapacitated patients who are non-compliant or resist treatment, an application should be made for compulsory admission to hospital under the MHA in order that treatment for mental disorder can be given.'!* 2.27 Under current law, therefore, force cannot be used to admit a person lacking capacity into hospital if they are resisting admission. In such cases they must be compulsorily admitted and detained pursuant to Part II of the MHA 1983, which attracts the protection 112 Rv Bournewood Community and Health NHS Trust, ex p. L (Secretary of State for Health and others intervening) [1999] 1 AC 458; [1998] 3 All ER 289 (HL). 113 Section 131(1) MHA 1983 provides for the “informal admission” of patients: “(1) Nothing in this Act shall be construed as preventing a patient who requires treatment for mental disorder from being admitted to any hospital or registered establishment in pursuance of arrangements made in that behalf and without any application, order or direction rendering him liable to be detained under this Act, or from remaining in any hospital or registered establishment in pursuance of such arrangements after he has ceased to be so liable to be detained.” 114 Mental Health Act 1983 Codes of Practice para. 19.27; Health Service Circular 1998/122.
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