Advance decisions can be ignored under the existing Mental Health Act - that needs to change

In theory you can record an 'advance decision', when well, to refuse treatments such as electroconvulsive therapy if your mental health deteriorates. But under the current Mental Health Act, these wishes can still be disregarded at the discretion of mental health professionals. Danielle Hamm, Associate Director of Campaigns and Policy at Rethink Mental Illness, explains.

Advance Decisions are one of the trickier areas of mental health law because they present us with questions about what parity of esteem with physical health really means – and how best to respect someone’s rights, choices, and safety.

'This is emblematic of a wider system that doesn’t always put value in people's opinions about their own care. It's counter-intuitive for a system that is supposed to support recovery.'

Advance Decisions are a legal mechanism where someone can refuse specific kinds of medical treatment in advance. You can’t make an Advance Decision requesting any treatment, just refusing it.

For example, if you know that a certain kind of medication doesn’t work for you or has side effects that you aren’t able to live with you can state this ahead of any future treatment.

Advance Decisions have to be ‘valid’ and ‘applicable’. ‘Valid’ means that the person who made the advance decision was over the age of 18, and they had capacity (the ability to understand and make decisions as defined by the Mental Capacity Act). ‘Applicable’ means that they apply to a specific and named treatment or process.

The law treats physical and mental health differently

But Advance Decisions for mental and physical health conditions are treated differently. If you have a physical health condition you have a right to refuse even lifesaving treatment under the Mental Capacity Act. However, if you have a mental health condition a doctor can overrule Advance Decisions under the Mental Health Act.

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This might seem like a legal quirk but it says something fundamental about how the law treats physical and mental health differently. Why should the wishes of someone with a physical health problem always be listened to while someone with a mental illness can have those wishes overridden?

The only circumstances when Advance Decisions can’t be overridden under the MHA is if they apply to Electroconvulsive Therapy (ECT) or neurosurgery. We think quite a lot of Advance Decisions made under the Mental Health Act relate directly to ECT, understandably given that a lot of people have serious reservations about its history and side effects.

ECT can, however, still be given in ‘emergency situations’, overriding any Advance Decisions. This presents a worrying legal loophole where someone can be given a treatment against their wishes even though they specifically asked not to have it, and have a legal right to refuse it.

"Whilst we are minded to make improvements in this area, we will not lose sight of the problems that might arise from making any form of advance planning completely binding. As an example, the risk that service users may not receive appropriate care." - extract taken from the Mental Health Act Review Interim Report. May 2, 2018.

This is emblematic of a wider system under the Mental Health Act that doesn’t always listen to people and doesn’t put value in their opinions about their own care. This is counter-intuitive for a system that is supposed to support recovery.

Power imbalance

We think that the fact that Advance Decisions can specifically be ignored under the Mental Health Act needs to change. There is a balance to be struck between ensuring people can be treated and get better when they are detained, and ensuring their wishes are followed. But currently this balance is weighted too far against the person’s wishes.

A reformed Act could incorporate more of the approach outlined in the Mental Capacity Act for physical health problems, which puts the wishes, interests, and feelings of a person at the heart of their care and treatment.

The Interim Report by the Independent Review of the Mental Health Act has indicated that it is willing to consider changes to legislation, whether that is strengthening what is already in place or changing the law more fundamentally.

This is potentially an opportunity to change things to ensure that people’s wishes are central to any process and that mental health is treated equally to physical health. We will continue to work with the Review to make this a priority.