Part IV of the MHA 1983 provides that treatments may be given without the detained patient’s consent, whether in emergency situations (s.62) or other types of situation for mental disorder, some of which require a second opinion (s.58) and others that do not (s.63), in order to safeguard the life or health of that patient, or that of others. Professor Fennell worries that in the instance of s.63 at least, decided case-law shows that, far from merely allowing routine and strictly necessary activity of mental health practitioners to take place without unnecessary legal impediment, the MHA has been, and will increasingly be, interpreted to justify treatment in terms so broad as to cause concern. In all cases, the test to be applied under the MHA is that the proposed treatment will ‘alleviate or prevent deterioration in the patient’s condition’. However, in fleshing out this notion, the courts seem to have become dissatisfied with considering this question as separate to that of the patient’s best interests—i.e. reasoning imported from the explicitly excluded MCA. For Professor Fennell, since ‘best interests’ is itself so broad a concept, courts’ increasing acceptance of the relevance of the best interests test will allow medical practitioners to justify treatment in the interests of society—a troublingly vague basis on which to make so serious a decision for the patient in question. Two cases that point to this convergence of the MHA and MCA are
Tameside and Glossop Acute Services Trust v CH1 (use of reasonable force on a schizophrenic woman to secure delivery of her baby by caesarean section) and
R (
on the application of N)
v Dr M2 (obligation to consider patient’s best interests as well as medical necessity in approving treatment).
The relevance of these cases here is the extent to which best interests reasoning can or should be distinguished from that of medical necessity under the MHA. The formal legal division becomes clearer when we consider cases that fall under the scope of best interests. There is a long and now familiar and largely uncontroversial line of case-law that is usually traced to the House of Lords decision of
Re F (
adult sterilisation)
3 that underscores the position that an incompetent patient may be treated without their consent in their best interests, a procedure now codified in the MCA. These judgments are authoritative in the case of patients who are not detained under the MHA. To be treated in one’s best interests under the MCA, a patient does not have to be suffering from a ‘mental disorder’ as it is defined under s.1(2) of the MHA,
4 but from any ‘mental disability’ which prevents them from taking the relevant decision for themselves. According to Professor Fennell, the fact that ‘best interests’ reasoning has ‘become relevant’ to MHA cases also, ‘serves to extend clinical discretion which is already wide as a result of the broad definition of treatment for mental disorder, by extending beyond the medical the range of interests which may be served by treatment without consent’.
5 As a bald fact, this must be true: the Court of Appeal has often stressed that best interests incorporates considerations far wider than the medical. Lord Justices have taken a balance sheet approach to assessing best interests, and the ‘balancing exercise’ of benefits and burdens which may incorporate considerations of the patient’s health, welfare, emotional needs, family arrangements and care provisions, etc.
6 The implication is that, unlike the supposedly stricter confines of the MHA, there is nothing particularly ruled out of consideration in an assessment of a patient’s best interests. Is there a good reason for seeking to exclude best interests from MHA cases? For Professor Fennell, this is a question of the breadth of power to be handed to the mental health practitioner. After all, in
H.L. v UK7 (the ‘Bournewood’ decision) the European Court of Human Rights drew a clear distinction between the two legal frameworks in terms of the treatment of patients and limitations on carers and medical practitioners. If the requirement that a patient must be ‘detained’ before non-consensual treatment for mental disorder may be administered is to be practically effective, surely it should provide some protection for patients from the much wider best interests test?
What are we to make of the observation that the best interests test incorporates wider social interests as well as the patients’ own best interests? I think that this observation needs to be read in conjunction with related comments made at various points in Fennell’s paper on the breadth of discretion open to mental health practitioners. On the MHA case of
CH,
8 Professor Fennell writes: ‘This case stretched the concept of treatment for mental disorder to the very limit. It also revealed the permeability of the boundary between best interests of the patient and the interests of others’.
9 This seems to imply that case-law has allowed the MHA to be interpreted so widely that a line has been brought into view—at which the actions of mental health practitioners could no longer be regarded as ‘treatment for mental disorder’—which should not be crossed. On the ‘balance-sheet’ character of the best interests test applied in the courts, Professor Fennell states: ‘Although preferable to
Bolam, the balance-sheet approach with its broad range of interests that may be taken into account, still leaves considerable discretion with clinicians’.
10 And, why is the balance sheet approach to be preferred to the
Bolam principle (that a decision should not be deemed unlawful if a responsible body of medical opinion would support the decision in question)? Although Professor Fennell does not make it explicitly clear, the answer seems to lie in the breadth of discretion conferred by
Bolam. For instance, at an earlier point in the paper, Professor Fennell argues that the ‘
Bolam principle effectively confers great discretion on clinicians to decide what treatment may appropriately be given, and its use in guidance to Second Opinion Appointed Doctors (SOADs) has ensured that a treatment proposal will be denied approval only in the rarest of circumstances, and that approval is granted to treatment without significant change in 98% of cases’.
11 Does Professor Fennell mean to say therefore that the balance sheet of benefits and burdens of a course of action considered in the best interests test is preferable to the
Bolam principle since it provides a means for imposing stricter controls on such decisions? The answer is unclear, especially since
12 Professor Fennell seems also to suggest that it is the best interests test and not the
Bolam principle that confers the wider discretion on mental health practitioners: ‘‘Best interests’ has become relevant to decision-making under Part IV of the MHA 1983, but it serves to extend clinical discretion which is already wide as a result of the broad definition of treatment for mental disorder...’ At no point in his paper does Professor Fennell suggest that the best interests test ought actually to be excluded from MHA reasoning. In any case, as Professor Fennell states
13 to rely solely on the
Bolam principle to the exclusion of other considerations (of which the best interests test may be one) in MHA detention and treatment cases may be incompatible with the Human Rights Act 1998 (HRA). In other words, under the HRA, for the MHA to be compatible with patients’ Convention rights under Article 3 (torture and degrading treatment) and Article 8 (individual autonomy of personal decisions), the best interests test as it is formulated in MCA with its emphasis on the involvement of the patient whenever possible means that best interests would risk violation of these provisions. Best interests reasoning may therefore have a legitimate place in MHA reasoning, but Fennell’s references to the ‘expansive approach’
14 of the best interests test implies that what he finds troubling is the breadth of the discretion itself, and that there are no effective limitations on clinical discretion. As he concludes ‘In order to comply with the European Convention the tests of clinical necessity and best interests will have to be applied, but as we have seen these do not represent a significant limitation on clinical discretion’.
15 Fennell does not argue strongly either for restricting the expansive discretion he identifies in the MHA case-law or in its defence. The most that I feel I can say is that it is commented upon as a potential concern, possibly as a basis for future critique.
Whatever the truth of Professor Fennell’s own feelings, my own view is that there is no reason to suppose that consideration of the much wider social interests would be more likely than not to be antagonistic or injurious to the patient’s own medical interests. I think that in order adequately to uphold patients’ Convention rights, medical practitioners and courts do need to have access to an interpretive framework that is wider than merely medical or risk based. The English courts have not yet held that any part of the MHA permits the treatment for a mental disorder without consent simply because it is in the best interests of patients or others. However, the consideration of the patient’s best interests are surely highly relevant to deciding the narrower question as to medical necessity. Fennell argues that the case of
CH illustrates the ‘permeability of the boundary between the best interests of the patient and the interests of others’.
16 It is true that the treatment was given firstly in order to ensure the safe delivery of the fetus rather than to prevent direct harm to the patient. However, the Court of Appeal were also careful to emphasise that the treatment given was necessary to prevent the worsening of her schizophrenia, which is clearly appropriate to MHA reasoning. The new criteria for s.58 treatments under the new MHA 2007—that of ‘appropriateness’—is, as Professor Fennell states, apparently much wider than the 1983 requirement, especially as it is defined in the new legislation somewhat tautologically as treatment that is ‘appropriate in his case, taking into account the nature and degree of the mental disorder and all other circumstances of his case’.
17 The very general justification for s.58 treatment does seem to be an invitation for best-interests-type reasoning, and so the vast body of existing best interests case-law in the Court of Appeal will be a helpful interpretive tool.
It is in the context of establishing when treatment is ‘appropriate’ that the involvement of best interests may be challenged. Can it be that the best interests is a test of bad faith, in the Satrean sense of diverting one’s mind from the true purpose of one’s behaviour? The next section of this response paper deals more fully with the social and cultural aspects of this question. For now, however, it may be helpful briefly to consider here the ethical import of the MHA 2007’s use of such an expression as ‘appropriate’, and the relevance of the very broad social best interests test that worries Professor Fennell. Mental health and particularly individuals with mental health problems are a source of some considerable anxiety for policy makers and also those who comment on policy in this area. In Charlotte Brontë’s
Jane Eyre, first published in London in 1847, the passionate and brooding Mr Rochester finally confesses that he has for ten years kept his mentally ill wife, Bertha Mason, locked away in the attic of his stately home of Thornfield. Rochester explains how, as a rash youth, he was misled into the arranged marriage with a ‘tall, dark and majestic’
18 Creole woman by a collusion of friends and family who concealed her true nature from him before the wedding. After a few years of miserable marriage in the West Indies in which Rochester quickly finds her to be completely unsuitable as a wife—’her nature wholly alien to mine, her tastes obnoxious to me, her cast of mind common, low, narrow and singularly incapable of being led to anything higher, expanded to anything larger’ (269)—he decides on a course of action that he explains as done in her own best interests—as appropriate in the full context of her mental condition. The marriage and subsequent concealment is discovered by Jane to the latter’s horror. In a crucial scene in which we discover the impressive strength of Jane Eyre’s commitment to social and legal norms, Rochester attempts to justify his actions thus:
‘Go’, said Hope, ‘and live in Europe. ... You may take the maniac with you to England; confine her with due attendance and precautions at Thornfield. ... See that she is cared for as her condition demands, and you have done all that God and humanity require of you. ... Place her in safety and comfort: shelter her degradation with secrecy, and leave her.’ (271–2, abbreviated)
In other words, Rochester treated Bertha’s condition with forced confinement and concealment from all of society apart from Grace Poole (employed by Rochester to take care of her needs) in her own best interests. However, Rochester’s view of best interests is not limited to the interests of the individual. There are of course his own personal interests—‘I have a right to deliver myself from it if I can. ...—let me break away, and go home to God!’ (271)—and one also gets the impression that he feels that his attempted bigamy notwithstanding, he has acted as a representative of civilised society as a whole. Far away from home in the West Indies, he feels ‘the sweet wind from Europe... whispering in the refreshed leaves’, and he ascribes his clarity of thought to Wisdom itself, ‘for it was true Wisdom that consoled me in that hour, and showed me the right path to follow.’ (271) This is what makes his decision to shut Bertha away forever ‘appropriate’ in a broader sense.
These passages from
Jane Eyre give us some idea of what the ethical significance might be of Professor Fennell’s remarking on the ‘permeability’ of the boundary between the interests of the patient and the interests of society in MHA case-law.
19 In terms of deciding in the interests of the patient alone, the best interests test may be a test of bad faith, since whilst it helps us to be assured (or ‘feelgood’, as Professor Fennell puts it
20) that any treatment given coercively to a non-consenting patient for a mental disorder is indeed ‘appropriate’ for the patient, it leaves open the risk that it may be much more appropriate for society as a whole. The interpretation of the meaning of Bertha Mason’s violence towards herself (she eventually throws herself from a window in chapter 36) and to others (she tries to throttle and bite Mr Rochester in chapter 26) cannot exclude social and cultural values. The incorporation of the word ‘appropriate’ into the test for treatment under the new legislation is an invitation to critically reflect on the role of social constructions of best interests. Ethical critique of the recent case-law and future developments of mental health policy should be directed not towards the exclusion of cultural and social aspects of the best interests test, but rather to finding a positive and mutually complementary place for them.