Mohammed T. Abou-Saleh

786 PRINCIPLES AND PRACTICE OF GERIATRIC PSYCHIATRYand on the strength of evidence submitted from doctors andothers who know of the individual d . In the words of His HonorMr Justice Nicholas Wall:Expert witnesses need to remember that most judges do not haveany more medical expertise than the average intelligent layperson . . . it is for this reason that they rely upon the integrity ofexpert witnesses 6 .THE ‘‘NEXT OF KIN’’Our nearest blood relative. Our kind and loving family. Thosewho are only capable of acting in our best interest. Surely, in thelegal lacunae of decision making they are the legal rock on whichwe can build. If we are incapable of making decisions forourselves, then surely professionals must turn to them to sanctionactions. They know the best way to spend our money, they knowwhen we should be going into a home, they know what is best.Really? Are you sure?IN WHOSE BEST INTERESTS?The UK law confers no legal rights on the ‘‘next of kin’’ per se.The matrix of decision making for a person who lacks capacity isour common law doctrine of necessity. This involves four basicelements:. The person must lack capacity in relation to that particulardecision at that time.. It must be sufficiently necessary to make that decision.. The person making it must be reasonable.. It must be in the best interests of the incapacitated person (notthe next of kin and not the professional).All too often the professionals may feel powerless in the face offamilies who are demanding admission to a nursing home, or adischarge from hospital. They may be trying to insist on aparticular form of treatment or withholding their consent to whatthe medical team is proposing. The professionals know that no‘‘reasonable person’’ could possibly believe that certain decisionswere in the incapacitated person’s best interests. But, the familywant it, so how can I possibly prevent it? The lawyer would pointout that if the professionals capitulate and damage ensues, that itcould be called professional negligence.TREATMENTTo have capacity gives us the right to refuse any treatment that wedo not wish to receive, even if death would be the result. Only inthe case of people detained under the Mental Health Act can acompetent adult be treated against his/her wishes, and then onlyfor his/her mental disorder.Clearly drawn and unambiguous ‘‘advance refusals’’ (otherwiseknown as living wills or advance directives) allow persons withcapacity to bind the hands of the doctors. They can indicate thatin the event of them becoming incapacitated, there would becertain treatments that, had they retained capacity, they wouldnot have consented to. These have emerged through our case law,notably the case of Airedale NHS Trust v. Bland [1993] 1 All E.R.821 and are a common law concept. An advance refusal couldonly be overridden if either it was not sufficiently clear or theperson was then ‘‘sectioned’’ under the Mental Health Actbecause he/she required treatment in a hospital for mentaldisorder. Our statute law always takes precedence over commonlaw principles.WHEN TO ‘‘SECTION’’ UNDER THE MENTALHEALTH ACTFrom my own experience of training mental health professionalsfor many years, few professionals working with the elderly seemto realize that the Mental Health Act provides a framework ofprotective powers for those who lack capacity and have a mentaldisorder. This term includes the mentally ill. Dementia is of coursea form of mental illness.The Act allows a person to be ‘‘sectioned’’ when his/her mentaldisorder is of a nature or degree that requires either assessment(section 2) or treatment (section 3) in hospital and his/her health,safety or the protection of others require it. Once sectioned itallows the professionals to impose their will on the patient butcertain boundaries are proscribed. It gives the individual certainrights of appeal, and these can be triggered simply on the basisthat the right has not been exercised.Since the House of Lords judgement in the case of R v.Bournewood Community and Mental Health NHS Trust ex parte L1998 3 W.L.R. 107, the incompetent patient need only be sectionedif it is necessary to treat him/her in hospital for a mental disorderand he/she demonstrates actual objection by word or deed.Because statute law (that passed by Parliament) takes precedenceover our common law, the person should be sectioned, and if he/she is not, then any treatment given under the common lawdoctrine of necessity would amount to unlawful imprisonment andassault. You cannot use the defences available under common lawif you are obliged to apply the statute law. At present, it wouldseem to me that few medical and nursing professionals realize this.The guidance issued by the Department of Health 7 following theBournewood judgement tells us that if there is doubt as to whetherthe action amounts to an objection, then it is to be treated as if itwere an objection. The incapacitated person who is trying to leavethe ward or is objecting to medication (e.g. spitting it out), wherethere is doubt, should be considered for a Mental Health Actsection. This would then accord him/her rights under that Act. Itwould then follow that further treatment for mental disorder undercommon law would be unlawful.What about the person who is ‘‘required’’ to go into a nursingor residential home and does not wish to go? The Code of Practiceto the Mental Health Act, Chapter 13 paragraph 13.10.b.,indicates that, under these circumstances, Guardianship underthe statutory powers in the Mental Health Act should be seriouslyconsidered.Where an adult is assessed as requiring residential care, but owingto mental incapacity is unable to make a decision as to whether he/she wishes to be placed in residential care, those who areresponsible for his/her care should consider the applicability andappropriateness of guardianship for providing the frameworkwithin which decisions about his/her current and future care can beplanned.Few professionals seem to realize this.A Guardianship Order allows a guardian to require a person to‘‘reside in a particular place’’, attend various places for occupation,education or treatment or to allow access to the person onGuardianship by specified third parties or the guardian.d This proposition is strongly supported in the High Court Judgement of Wall J in Re: G (Minors) (Expert Witnesses) [1994] 2 FLR 291, 298.