Reforming the Mental Health Act 1983 (“the Act”)

On the 13^th January 2021, the UK Government published a White Paper, Reforming the Mental Health Act, which recommends the modernisation and improvement of mental health care across the country. Their proposals to reform the governing legislation have been guided by four key principles:

1. Choice and autonomy: Ensuring service users' views and choices are respected;
2. Least restriction: Ensuring the Act's powers are used in the least restrictive way;
3. Therapeutic benefit: Ensuring patients are supported to get better so they can be discharged from the Act; and
4. The person as an individual: Ensuring patients are viewed and treated as individuals.

Patient consent and refusal of medical treatment

Of particular importance are the additional safeguards to be implemented for individuals who have lost mental capacity. The proposed changes aim to give these individuals greater control over their care and ample opportunity to refuse certain medical procedures.

The safeguards will vary depending on the treatment’s invasiveness. As is expected, medical practitioners are required to jump through considerably fewer hoops before carrying out routine procedures as opposite to treatments categorised as extremely invasive, such as neurosurgery.

Take, for example, the proposed changes to the administration of electro-convulsive therapy (ECT). ECT involves electrical currents passing through the brain to induce seizures. It is typically used to treat catatonia, major depression and bipolar disorder. Under the current legislation, people who lack mental capacity will not be forced to undergo ECT if either:

1. they had refused ECT in a valid advance choice document (which they wrote before they lost capacity); or
2. administrating ECT would be in conflict with a decision made by their appointed attorney (acting under a Lasting Power of Attorney).

However, crucially, both advance choice documents and attorney decisions can be overridden if the ECT is considered “urgent”. For this to be the case, the treatment must be immediately necessary to save the patient’s life or to prevent a serious deterioration of his or her condition.

Now the introduction of yet another hurdle has been proposed whereby the pre-approval of a High Court judge must be secured alongside the support of two medical professionals. Although the paper does not attempt to address how this would play out in practice, the courts’ involvement is likely to create a major inconvenience for medical practitioners. On the flip side, those concerned about being subjected to treatments which they or their attorneys have refused are likely to welcome this change.

If you would like to find out more about Lasting Powers of Attorney or have concerns about the issues raised above, please contact any member of our Wealth Management and Taxation team on 01494 521301 for further advice.