I was once asked to assess a man who had been detained under Sec.136 after he had tried to hang himself. He had made a serious attempt. He meant to do it. But when I assessed him in the police station I could find no evidence at all of any mental illness. He was distressed that his wife had left him. He had wanted to show her how her decision to leave him had made him feel. He was likely to make some further attempt on his life. But he wasn’t actually depressed, He was reacting to an adverse life event. My impression was that, even though he presented a significant suicide risk, it would be through petulance rather than mental disorder. I did not feel that I could justify detaining him under the MHA, even for assessment.
He succeeded in killing himself two weeks later.
Fortunately, I had arranged for him to have a medical review. On the day he killed himself, he had been assessed by both a junior doctor and a consultant psychiatrist. They both also concluded that, despite a significant suicide risk, he did not have a mental disorder.
On another occasion I was asked to assess another man who was an informal patient in hospital after having made a suicide attempt. When I assessed him, he presented with a perfectly normal mood and no discernible evidence of depression or other mental disorder. He said that he had had an enjoyable life up until then, but told me matter-of-factly that it would only go downhill from here and he therefore did not see the point of continuing to live. He was 30 years old.
This was a difficult decision. There were two medical recommendations for assessment under Sec.2 MHA, but I was struggling to justify to myself detaining him in the absence of any evidence that I could find of actual mental disorder. In the end, I concluded that, in view of the fact that two doctors were prepared to state that he was “suffering from mental disorder of a nature or degree which warrants the detention of the patient in hospital for assessment”, the safest option was to detain him. This was a case of deciding whether I would rather justify my decision to a Tribunal or an Inquest.
I once worked with a service user who suffered from chronic and disabling osteoarthritis. She was largely confined to her home, needed considerable support with day to day living, and was often in extreme pain. She confided in me one day that she had been studying efficient and painless methods of suicide, and that she had stockpiled a supply of the medication necessary to dispatch her with as little fuss and disturbance as possible. She explained that this was her insurance, that if she considered that her quality of life was so impaired by her condition as to be worthless, then she knew she could quietly and discretely end her life.
I respected this. She had capacity, she had a chronic condition, which although not necessarily life threatening, could at some stage make her life intolerable – and knowing that she had some control over her destiny actually allowed her to keep on. It never crossed my mind to consider the use of the Mental Health Act.
But I have been troubled for some time by the implications of another case which made the headlines a couple of years ago.
Kerrie Wooltorton was 26 when she committed suicide in September 2007. She had swallowed antifreeze, and although she had herself called an ambulance and had allowed herself to be taken to hospital, she had refused the treatment which would have saved her life. The doctors in charge of her treatment allowed her to die.
Why had they done this? Because three days before she had written what was described in press reports as a “living will” in which she stated that she was “100% aware” of the consequences of her actions and that she did not want to receive treatment.
When I read the reports of the Inquest into this case, which was concluded two years later in September 2009, I was aghast.
It was stated that she had an “incurable emotionally unstable personality disorder”, that she had a long history of self harm (she had taken 9 similar does of antifreeze in the year before her death), and that she had been sectioned and admitted to psychiatric hospital on a number of occasions in the past. Nevertheless, despite this history of mental disorder and extensive past use of the Mental Health Act, her renal consultant stated in the Inquest that “she was in no state to resist me and I could have forced treatment on her, but I don't think it was the right thing to do. I feel it would have been assault.” A spokesman for the hospital said: “It is a double-bind for doctors. She was very clear in her wishes. To have forced treatment on her would have been unlawful.”
The coroner concluded: “My judgement is that Kerrie had mental capacity. She had the right to refuse treatment and could not have been treated without her consent. Her decision to refuse treatment was consistent and she never changed her mind. The doctor went over and above what was required of him. He discussed the case with clinical colleagues, took a second opinion from a fellow consultant and sought advice from the medical director. A deliberate decision to die may appear repugnant, but any treatment to have saved Kerrie's life in the absence of her consent would have been unlawful.”
Being an AMHP, I was virtually shouting out as I read this report: “Duh? What about the Mental Health Act? Was an AMHP (or ASW, as 2007 was before the creation of AMHP’s) involved in this decision? Were two Sec.12 approved doctors asked to give an opinion? What about “mental disorder” within the meaning of the Act? And what’s a “living will” when it’s at home?"
After I’d had a lie down, I looked more closely at this case. It appeared to hinge on the issue of capacity and her “living will”. By the time of the Inquest, the Mental Capacity Act had been in force for a couple of years. The issues that this Act brought to bear were blamed for this bizarre decision to allow her to die. An analysis of the case by Professor Sheila A M McLean, a Professor of Law and Ethics in Medicine, published on the BMJ website, assumed that the “living will” was in fact an “advance directive” covered by the Mental Capacity Act. She concentrated on issues of mental competency and concluded that:
“A doctor who imposes treatment in the face of a competent refusal would be guilty of assaulting the patient. However dreadful it must be for healthcare professionals to watch a person who could be saved die for want of available treatment, they have no alternative but to do so… Ms Wooltorton was adult, competent and able at the relevant time to reject treatment. This was her right and, as such, had to be respected.”
However, Stuart Sorensen, writing in Community Care, came to what I would consider to be a more reasonable conclusion. He pointed out that the Mental Capacity Act's Code of Practice “is clear that the Act does not support suicide, assisted dying or mercy killing”. His conclusion was that her clear intention to end her life:
“means that she cannot be seen as decision-maker in the eyes of the law. The power to decide passes to the care team who have to act in what they reasonably believe to be her best interests. It seems reasonable to doubt that best interests means watching her die slowly and presumably painfully from acute poisoning.”
No-one at the time appeared to have considered the dubious legal basis on which Kerrie had written her “living will”. The Government’s own guidance to the implementation of the MCA issued in July 2007 stated that the section of the MCA covering advance decisions would not come into force until 1st October 2007 and that “most advance decisions, refusing life-sustaining treatments, made before October 2007 are unlikely to meet the specific requirements of the Act.” Not only would Kerrie Wooltorton’s advance decision not have complied with the Code of Practice to the MCA, but since it was written and executed in September 2007, it would not have been valid in any case. That in itself should have provided sufficient justification for the hospital to have disregarded her “living will” and to have provided her with treatment.
So what conclusions should an AMHP reach when confronted with a similar situation?
The case of GJ v The Foundation Trust (2009) EWHC 2972 (Fam), although relating to Deprivation of Liberty under the Mental Capacity Act, presents a potentially relevant finding that “the MHA has primacy” over the MCA: that essentially, where both the MHA and the MCA may apply to a case of “detention”, whether through Sec. 2 or 3 of the MHA or Deprivation of Liberty under the MCA, then the MHA should be used. In other words, the MCA could legitimately be disregarded in a case such as Kerrie Wooltorton’s, and an assessment could take place under the MHA with an AMHP and two psychiatrists.
Advance decisions and issues of capacity do not necessarily have much bearing on decisions taken under the MHA, and the concept of “capacity” is not a factor which has to be taken into account when reaching a conclusion about detention under the MHA, providing the other factors were established.
Were such an assessment to take place today, all that the assessment team would need to establish would be:
- Is the patient suffering from mental disorder of a nature or degree which warrants the detention of the patient in hospital for assessment (or assessment and treatment)?
- If so, is it in the interests of the patient’s health or safety?