Further clarification is needed on the relationship between the
forthcoming Mental Incapacity Act and the Mental Health Act 1983,
the joint committee on the draft mental incapacity bill was told
In its evidence to the committee, the Royal College of
Psychiatrists said that the draft bill could imply that
psychiatrists, social workers and GPs should detain people who
lacked capacity and who required medical drug treatment for a
mental disorder, regardless of the circumstances.
This would be “restrictive, inappropriate, and excessively
bureaucratic”, the RCP claims. Instead, the majority of treatments
for mental disorder should be possible under the general authority
provided by the bill, if “reasonable” and “necessary”.
It also suggests that the current second opinion system could be
expanded to include physicians, surgeons and other medical
specialists so that statutory second opinions are required for
difficult or controversial treatments.
In addition, clear guidance should be given as to when the Mental
Health Act or the eventual Mental Incapacity Act should be used.
Tony Zigmond, the college’s lead on reform of mental health
legislation, said that professionals might have a choice about
which act to use.
“In an ideal world, we think there should be two bills but not
these two,” he said. One bill would be an incapacity bill with
certain protections to cover all people who lack capacity, while a
separate bill would cover mentally disordered offenders.
Meanwhile, the British Psychological Society told the committee it
supported the inclusion of advance decisions – the right of people
to refuse certain treatments – in the bill but recommended that
registered practitioners be called upon to assist individuals in
drawing them up. It also recommended that a clause should make it a
criminal offence to ignore or destroy advance decisions.
The BPS recommended that the new Commission for Mental Health, as
proposed in the draft mental health bill, should be renamed and
oversee the proper enactment of both the incapacity and mental
In its evidence to the joint committee, the British Medical
Association said that advance decisions were currently not
applicable to treatment provided under mental health legislation
and that it would not want this to be changed.