Dean Elie

From Norman Lamb MP

aN Minister of State for Care and Support
Department
of Health
Richmond House
79 Whitehall
London
SWIA 2NS
Mr A Walker Tel: 020 7210 4850
Senior Coroner
North London Coroner’s Court
29 Wood Street
Barnet
ENS 4BE 27 FEB 2015

De a Pv Wreteer,
Thank you for your letter following the inquest into the death of Dean Elie. I was

sorry to hear of Mr Elie’s death and wish to extend my sincere condolences to his
family.

Mr Elie had paranoid schizophrenia and type 2 diabetes mellitus. In January 2012
Mr Elie attended a diabetic review with his GP. Following this he missed a number
of appointments with his GP for medication review, a diabetic clinic review and for
a blood test. Mr Elie died in February 2013.

At the inquest concerns were raised that there was no way of ensuring Mr Elie
attended the reviews with his GP. Mr Elie had mental capacity and therefore could
not be detained under the Mental Health Act. Even if he had been detainable, the Act
does not in any case contain provision to compel a patient to take treatment for a
physical condition.

You ask us to consider further legislation to deal with this point.

I note that you raised a similar concern in an earlier Regulation 28 case concerning
the death of Duncan Lockhart (our ref: 897899). We responded on 18 December
2014, and our position has not changed.

Current mental health legislation exists in the form of the Mental Health Act 1983
(MHA), and the Mental Capacity Act (MCA). The MHA (which was substantially
amended in 2007) is the law in England and Wales that permits people with a
‘mental disorder’ to be admitted to hospital, detained and treated without their
consent — either for their own health and safety, or for the protection of other people.
People can be admitted, detained and treated under different sections of the Mental
Health Act, depending on the circumstances. The term ‘sectioned’ is used to describe

a compulsory admission to hospital. In addition, people can be put on supervised
community treatment, following a period of compulsory treatment in

hospital. Someone on supervised community treatment is called a 'community'
patient and is subject to a ‘community treatment order' (CTO).

The decision to detain someone in hospital or to put someone on supervised
community treatment is taken by trained doctors and other mental health
professionals approved to carry out certain duties under the Act and follow specific
procedures. The MHA also makes provision for a court or judge to make an order to
admit an individual to hospital.

Section | of the MHA defines mental disorder as “any disability or disorder of
mind”, a definition which applies throughout the Act. Medical treatment for mental
disorder is defined as “medical treatment which is for the purpose of alleviating or
preventing a worsening of a mental disorder or one or more of its symptoms or
manifestations”. This can include nursing, psychological intervention and specialist
mental health rehabilitation and care.

The “Code of Practice Mental Health Act 1983” (para 23.4) further sets out that
medical treatment under the Act, “includes treatment of physical health problems
only to the extent that such treatment is part of, or ancillary to, treatment for mental
disorder (e.g. treating wounds self-inflicted as a result of mental disorder). Other
than this, the Act does not regulate medical treatment for physical health problems.”

There are no plans to extend the MHA to compel people to accept treatment for their
physical healthcare needs. The MCA is designed to protect people who cannot make
decisions for themselves or lack the mental capacity to do so. Under the Act, a
person is presumed to make their own decisions “unless all practical steps to help
him (or her) to make a decision have been taken without success”. People should be
assumed to have capacity unless it can be established that they lack capacity.

Where people have mental capacity, they can make decisions for themselves, even if
their decisions are considered “unwise”. This is their right under the Act, regardless
of any other medical conditions from which they might suffer.

A person lacks capacity if they are unable to make a decision in relation to a matter
at the material time because of an impairment of, or a disturbance in, the functioning
of the mind or brain. Being unable to make a decision means that the person is
unable to understand information relevant to a decision, to retain that information, to
use or weigh that information as part of the decision making process and to

Department
of Health

communicate that decision. Lacking capacity is not based on the ability to make a
wise or sensible decision.

The same test applies to people who are suffering from a mental disorder and people
who are not — the issue is their capacity to make a decision. Persons with capacity
and a mental illness are as entitled as any other citizen to make their own choices as
to the medication they take — they have no less right to make their own decisions
than those who are not suffering from a mental disorder.

People who do not have a mental illness can equally make unwise decisions, and the
MCA makes it clear that people should not be treated as unable to make a decision
merely because they make an unwise decision.

If it is established that a person truly lacks capacity to make a decision, then the
MCA allows others to take decisions in that person’s best interests. Such decisions
can be made by a family member, a friend, a doctor or an independent mental
capacity advocate. The MCA expects the decision-maker to consider the person’s
expressed wishes and feelings, beliefs and values before arriving at a decision in
their best interests. A balance between taking appropriate action to prevent harm to
the individual and doing what is most likely to improve the individual’s state of
wellbeing should also be considered.

Whilst there are no plans to extend the scope of current mental health legislation to
ensure mental health patients with capacity take prescribed medication for physical
illnesses, health and care services have a duty to ensure adequate support for the
individual. This means that all relevant information must be provided to individuals
so that, for example, they fully understand the effects of not taking medication. If, at
this point, a person does not comprehend the nature of the decision to be taken, then
a formal capacity assessment should be undertaken. If appropriate, decisions relating
to the care of that person would then be taken by others acting in the person’s best
interests.

I hope that this response is helpful and I am grateful to you for bringing the
circumstances of Mr Elie’s death to my attention.

\L

Co -

NORMAN LAMB
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