Bournewood

Although the original Bournewood case related to a man (H.L.) with learning disability (R v Bournewood Community Mental Health NHS Trust, ex parte L, 1998), it had profound implications for old age psychiatry because it challenged the practice of informally admitting patients who did not object, but who lacked capacity to consent to admission. Any old age psychiatry ward will have a significant number of people with dementia who would fall into this category.

The Bournewood case (Box 2) caused much debate among psychiatrists. The differing accounts of the case make comment difficult, but many felt that the matter had been mismanaged and that there was a danger of ‘bad case makes bad law’. Many supported a pragmatic approach to informal detention, arguing that forcing patients with dementia through a process of compulsory detention was unnecessary and distressing for all parties. It was also pointed out that a change in practice would cause a huge drain on clinical resources and those of the MHA Commission. On the other hand, many felt that the Bournewood case had exposed an important gap in mental health legislation, which deprived vulnerable patients of certain rights under the MHA. An audit carried out at the time showed that the majority of old age psychiatrists seemed to share this view, but, despite an initial increase in admissions under the MHA, practice soon returned to normal after the ruling of the House of Lords (Reference Kearney and TreloarKearney & Treloar, 2000).

There is nothing to stop an informal admission similar to that of H.L.'s being challenged again, but this time under Articles 5 and 6 of the Human Rights Act 1998. These guarantee, respectively, rights to liberty and a fair trial (and the assumption of a right to appeal). It is difficult to predict what the outcome of such a court case would be as the Bournewood matter was resolved not according to the letter of mental health law, but by reference to its guiding principles. This introduces a convenient measure of subjectivity to any ruling.

It was hoped that proposed reforms to the MHA might clarify admission decisions by taking into account the patient's capacity, but it remains to be seen if these ideas emerge unscathed in the final legislation.

In the meantime, good practice would entail consultation with relatives and carers about decisions to admit informally, with use of the MHA in difficult or borderline situations. Many relatives need to be educated that the MHA can confer advantages to those detained (e.g. rights of appeal and after-care).

Physical illness and old age psychiatry

Older patients are more likely than the general population to have chronic physical ill health, and coexisting dementia can complicate treatment. However, as already stated, the present MHA operates solely for mental disorders. The term ‘mental illness' is not defined in the MHA itself. Not all clinicians would agree that delirium qualifies as a mental illness. This stipulates that any impairment of intellectual function or mood should be ‘more than temporary’. For these reasons, acute delirium is more appropriately managed under common law rather than under the MHA. Despite the sometimes uncomfortable vagueness of common law, it is the more appropriate legal safeguard for management of such cases.

Public health

As well as the MHA 1983, there is another scenario for compulsory management. Old age psychiatrists will be familiar with requests to assess someone living in a state of squalor – the ineptly named Diogenes syndrome. If the conditions are judged to be so unsanitary that they are a threat to public health, a community physician may invoke Section 47 of the National Assistance Act 1948 to have the person removed from his or her home. In fact, the majority of these people are elderly and would warrant admission to a psychiatric facility for assessment under Section 2 of the MHA (Reference Wolfson, Cohen and LindesayWolfson et al, 1990). The National Assistance Act has been severely criticised for being an infringement of civil liberties, especially as there is no right of appeal. Furthermore, it remains to be seen what impact the Human Rights Act 1998 will have on its, albeit rare, use.

Section 117

First, it should be mentioned that Section 117 of the MHA imposes a duty on doctors and health authorities to provide suitable after-care for patients discharged from Section 3 (or, less commonly, Sections 37, 47 or 48). Interestingly, courts have been reluctant to force health authorities to provide after-care even if, for example, a patient's discharge depends upon it. However, Section 117 is not only considered good practice but also implies a duty to provide funding for after-care. This obligation is not indefinite and a person treated under Section 117 can be ‘discharged’ by the responsible clinician once the situation seems stable (e.g. once a patient with dementia seems settled in a new nursing home) (Reference Bartlett and SandlandBartlett & Sandland, 2000).

Guardianship

The area of the MHA most concerned with long-term care is Section 7, which provides for guardianship orders, under which a guardian is appointed with the following powers:

1. • to require the patient to reside at a place specified by the guardian

2. • to require the patient to attend at places and times specified for the purpose of medical treatment, occupation, education or training

3. • to require access to the patient to be given, at any place where the patient is residing, to any medical practitioner, approved social worker or other specified person.

The guardian is usually the local authority (represented by a senior social worker) or a relative. A doctor's involvement would usually be to provide a medical recommendation, thereby prohibiting him or her from being the guardian. The place to reside is usually a nursing home, approved for this purpose under the MHA.

The operation of guardianship is similar to Section 3: two medical recommendations (one from a doctor approved under Section 12 of the MHA) are required plus an application from an approved social worker; the order lasts for 6 months in the first instance and carries similar rights of appeal. Doctors, who are used to making decisions on admission under Section 3 in the space of an hour or two, may be frustrated to find that colleagues in social services departments may take weeks or even months to reach a decision. Therefore, it is important to plan ahead if one suspects that guardianship is necessary. A good first step is to invite an approved social worker to a meeting convened to review the patient's care.

Guardianship differs from a Section 3 in that it includes a number of provisions that serve only to confuse its purpose and implementation. The MHA Code of Practice (Mental Health Act Commission, 1999), for instance, states completely unrealistically that the patient must recognise the authority of the guardian, that access cannot be forced, that the patient may not be forcibly detained and that medical treatment cannot be administered without consent under guardianship (Reference Bradshaw, Jacoby and OppenheimerBradshaw, 2002). One might ask what purpose guardianship then serves. The legislation is meant to be enabling and (unlike some other areas of the MHA) is clearly intended for patients who lack capacity, rather than for those who happen to have a psychiatric diagnosis and object to the plans. Even with this in mind, discussions on guardianship with non-medical colleagues may be confusing. The paradox of the guardian's ‘authority’ is that he or she has, in effect, to request the permission of the subject in order to exercise it. This matter can sometimes be addressed in difficult case conferences by pointing out that while patients may verbally refuse to recognise the ‘authority’ of the guardian, their actions contradict what they say. It is also reasonable to suggest that patients may need a period of time to adjust to the idea of guardianship. However, where problems persist, it may be necessary to admit to hospital under a Section of the MHA, to assess and develop a management strategy for patients whose behaviour repeatedly tests the guardianship. Some social workers prefer patients always to be admitted first to hospital under the MHA to smooth the way for guardianship. This can be useful, but is by no means obligatory; many would see a Section 3 as particularly inappropriate because it can be implemented only where community treatment is not thought possible. Clearly, this would not be the case if guardianship was already being planned.

Like Section 117 care plans, the concept of reciprocity is embedded in guardianship: guardians do not just exert power over individuals but are expected to be advocates on their behalf.

Since the Bournewood case, it might seem unnecessary to have specific legislation for those who lack capacity but are not objecting. Certainly, provision for long-term care is one area of the MHA that is ripe for reform under the new legislation being drafted.

Enduring Power of Attorney Act 1985

This is a legal device whereby individuals (donors or grantors) can designate another to manage their finances should they become mentally incapacitated. Usually, the attorney registers the Enduring Power of Attorney (EPA) with the Court of Protection only when the donor no longer has the mental capacity to manage financial affairs, when it becomes operative for the first time. The Court of Protection informs the donor and relatives in case they wish to appeal. Alternatively, an EPA can come into effect immediately it is signed and simply carries on should the donor subsequently lose capacity, although at this point the attorney is still obliged to register it with the Court of Protection.

The appointed person has the right and the responsibility to look after the donor's financial affairs and nothing else. For example, he or she has no right to make health care decisions on behalf of the donor. This is likely to change when the Government implements its White Paper on mental incapacity (Lord Chancellor's Department, 1997) and introduces a replacement for the EPA, to be called a Continuing Power of Attorney (CPA), which will permit proxy health care decisions to be made.

Obviously, it is important that the donor setting up the EPA has capacity to make such an important decision in the first place. The donor should be able to understand the following:

1. • that the attorney will have complete authority over the donor's affairs

2. • that the attorney can do anything with the donor's property that the donor could have done (attorneys are often relatives who are entitled to give themselves and others presents and money from the donor's estate if the donor has done this habitually)

3. • that the power will become effective when the donor becomes mentally incapacitated

4. • that the power cannot be revoked unless by the Court of Protection.

In the light of the section on capacity above, the reader should realise that the donor has to be competent only to make this particular decision and not, in fact, necessarily competent to manage his or her financial affairs. Indeed, if someone who is competent to donate power of attorney but not competent to manage financial affairs does sign an EPA, then this must be registered straight away with the Court of Protection.

An EPA can be set up with a prescribed form; all that is required are the signatures of the donor, the proposed attorney and witnesses. In practice, it is advisable for the EPA to be drawn up by a lawyer and, where there is doubt as to the donor's capacity to give power of attorney, the donor should be examined by an old age psychiatrist.

The Court of Protection recommends that more than one attorney be appointed, to act ‘jointly and severally’ – meaning that they may act either together or individually – in case one falls ill or is unable to meet his or her duties. Attorneys can be appointed who have to make all decisions jointly, but this is cumbersome and is therefore discouraged.

Court of Protection

Not everyone will have drawn up an EPA. The usual course of action in this case is to have a receiver appointed by the Court of Protection itself, using procedures laid down in Part VII of the MHA.

The receiver is usually a member of the family who has made an application; less often it may be a lawyer or a representative of the local social services department. In rare cases, the court may feel it has no option but to appoint the public trustee, if no one else seems suitable.

To grant a Court of Protection Order, the court has to decide whether the patient has a mental disorder (as defined under the MHA) and whether he or she is incapable of managing his or her property and affairs. Unfortunately, the second criterion is not well defined and varies from one court judgement to another, but a useful guide is given by Silberfeld et al (1995).

The Court of Protection requires a certificate from a registered medical practitioner. Again, the patient is informed of the application – good reasons must be provided if the doctor believes that this would not be in the patient's best interests. If doubt remains over the medical recommendations, the court can ask one of its medical visitors to make an assessment.

The work of receivers is monitored; generally they have to submit accounts to the Court of Protection, as well as provide a sum of money to act as security that they will discharge their duties honestly. A receiver can manage any income from the patient's estate, but has to apply to the Court of Protection to use capital. The receiver, unless acting as a professional (e.g. accountant or solicitor), is not paid for his or her work.

The application process for receivership can take several months, and thereafter the receiver is under regular scrutiny by the Court of Protection. By contrast, an EPA is fairly easy to set up and the attorney has relative freedom of action, including the ability to dispose of the donor's capital, for example, selling a house. An EPA therefore provides greater choice for donor and attorney, but is more open to misuse.

The Public Guardianship Office, which oversees the Court of Protection, is a useful source of information on the EPA and receivership and can provide it in written form for doctors, patients and their families. For a more detailed discussion of the management of an incapacitated person's financial affairs, see Lush (2002).

Drawing up a will

The drafting and signing of a will requires the patient to show ‘testamentary capacity’. The criteria for testamentary capacity go back to the case of Banks v. Goodfellow (1870) and differ somewhat from the more general concept of mental capacity discussed above. English law is drafted in a variety of circumstances, which leads to different tests for the legal concept of capacity. However, a careful comparison of Boxes 1 and 3 will reveal more similarities than at first sight.

‘Understanding the nature of the will’ means testators understand that they are giving their property to one or more objects of their regard. Testators are not required to have an exact knowledge of their estate, but should have an idea of what form their property takes and in what proportions. They should also be aware of any debts, joint ownerships and who benefits from which investment. It follows that the more complex the estate, the greater the degree of testamentary capacity required.

In order to prove that the contents of a will have been influenced by mental disorder, it is important to demonstrate not only that there was a specific mental disorder present, but also that it affected the criteria for testamentary capacity outlined in Box 2. It is not enough to say that the will was unfair, malicious or capricious, nor is it enough to prove that someone was mentally ill when the will was drawn up. It must be proved that the illness had a direct effect on the criteria for testamentary capacity. Undue influence by third parties is extremely difficult to prove.

Some time may elapse between giving instructions for a will and its execution (signing in front of witnesses). It is desirable that testators have testamentary capacity on both occasions, but the exact requirements vary: they must have full capacity when they gives the instructions, but when they comes to execute the will, it may be sufficient for them simply to know that they are signing a will drawn up on their instructions.

Doctors asked to assess a person's testamentary capacity need to be aware of both the legal and the medical issues. They should:

1. • examine the patient specifically in relation to the Banks v. Goodfellow criteria

2. • make contemporaneous notes of the examination and record the reasons for their conclusions.

Doctors may also become embroiled in issues of testamentary capacity after the testator's death when parties who did not stand to inherit contest the will. A doctor will either be involved as a medical practitioner who knew the patient (a witness as to fact), or as an expert witness trying to piece together, in retrospect, the evidence relating to the patient's capacity. The importance of clear and comprehensive medical notes cannot be overemphasised for such cases.

Anyone thinking of contesting a will should be aware that the legal costs could exceed the value of the estate and are, in any case, likely to be very high. For a more detailed discussion of testamentary capacity, see Posener & Jacoby (2002).