Advance decision-making in mental health – Suggestions for legal reform in England and Wales

Abstract

This paper argues that existing English and Welsh mental health legislation (The Mental Health Act 1983 (MHA)) should be changed to make provision for advance decision-making (ADM) within statute and makes detailed recommendations as to what should constitute this statutory provision. The recommendations seek to enable a culture change in relation to written statements made with capacity such that they are developed within mental health services and involve joint working on mental health requests as well as potential refusals. In formulating our recommendations, we consider the historical background of ADM, similarities and differences between physical and mental health, a taxonomy of ADM, the evidence base for mental health ADM, the ethics of ADM, the necessity for statutory ADM and the possibility of capacity based ‘fusion’ law on ADM. It is argued that the introduction of mental health ADM into the MHA will provide clarity within what has become a confusing area and will enable and promote the development and realisation of ADM as a form of self-determination. The paper originated as a report commissioned by, and submitted to, the UK Government's 2018 Independent Review of the Mental Health Act 1983.

The PACT advance decision-making template: preparing for Mental Health Act reforms with co-production, focus groups and consultation

“…Mental health ADM has shifted greatly from early associations with the ‘anti-psychiatry’ movement and complete refusals of treatment ( Szasz, 1982 ). Internationally, a large variety of tools and processes ( Henderson, Swanson, Szmukler, Thornicroft, & Zinkler, 2008 ; Owen et al, 2019 ) now allow service users to make treatment requests and recommendations, alongside more specific refusals . The UK's most extensively researched model, the Joint Crisis Plan (JCP) supports facilitated, collaborative, informal ADM with a primary aim of reducing compulsory admission.…”

“…Unlike existing ADM provision within the Mental Capacity Act 2005 (MCA), ACDs will retain legal weight even for those detained under the MHA. This important, and service user supported ( Rethink Mental Illness, 2017 ), policy aims to increase parity between the treatment of mental and physical illness ( Owen et al, 2019 ).…”

Knowledge and attitudes of Spanish mental health professionals towards advance healthcare directives

“…Unlike the availability of end‐of‐life care AHD registries, no generic or specific models for AHDs in the context of mental healthcare have yet been legally established in any branches of the Spanish mental health system. Low rates of use (4%–11%) are reported for all the available AHD legal documents in the United States (Swanson et al, 2006) and some European countries, including Germany (Gieselmann et al, 2018) and England and Wales (Owen et al, 2019). Nonetheless, the completions of AHDs within the Spanish mental health services are currently almost non‐existent.…”

Advance Decision Making in Bipolar: A Systematic Review

“…In England and Wales mental health ADM are likely to become more common following planned reforms to the Mental Health Act 1983. If in the form proposed by the Independent Review of the MHA 1983 these reforms will introduce "Advance Choice Documents" which offer service users the opportunity to make legally enforceable ADM documents (3).…”