Practical and Legal Guidance for Assessing Capacity
Jul 20 2023
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Possible implications for health providers and funders in England and Wales
High-level political decisions often have a limited impact on individuals but the EU referendum in June 2016 and the debate about the role of the Human Rights Act and the potential of a further referendum on Scottish Independence raises three constitutional issues of irrefutable significance. For mental health professionals, providers and funders, this highlights the importance of jurisdictional and cross-border issues which stand to become ever more complex in the event of a fundamental shift in the foundations of the United Kingdom.
Staff dealing with international legal issues will often require specialist advice and guidance, and Bevan Brittan's Medical Law team have advised on numerous cross-border matters. This article considers possible implications for health providers and funders in England and Wales of the constitutional changes at issue.
Under the Mental Health Act ("MHA"), EU citizens have no different status and therefore the outcome of the referendum need have no procedural difference in direct application of MHA to European patients. However, there will be broad implications for the wider status of patients in the context of immigration issues, changes to charging for non-emergency and non-primary care, and potential impact on the provision of care to British patients travelling within the EU.
The MHA includes provision for the removal of detained patients who are neither British citizens nor have commensurate rights through the Commonwealth. However, such removals require authorisation of the Secretary of State and "proper arrangements" being made for their conveyance and subsequent care or treatment on arrival. It is also necessary that such a removal is in the interests of the patient. Should the relationship between England and Wales and EU nations vary, it may become increasingly difficult to arrange care and treatment abroad. The picture will be more complex for removal of patients subject to restrictions either under sections 41 or 49, or distinct immigration proceedings. In these situations any reduction in co-operation between nations and limits on free movement of people within the EU may make it more difficult to remove patients during admission.
Generally, interactions with immigration proceedings stand to become more applicable and more complicated were EU membership to end. A more specific issue for mental health professionals is one raised by paragraph 40.22 of the Code of Practice to the MHA in its 2015 update. This provision relates to the rights, support and protection of victims of crimes by patients subject to Part III MHA (including sections 37, 47 and 48) and incorporated European Directive 2012/29/EU. This directive gives minimum standards for provision for victims of crime, including information in relation to the offender's discharge, release or absconsion.
As well as EU citizens receiving treatment in the NHS, British patients also make use of the current free movement in Europe and have access to healthcare by virtue of the European Health Insurance Card ('EHIC'). The EHIC scheme relates to EEA not EU membership but the status of this in relation to the EEA following a departure from the EU is unclear. Application to the EEA absent EU membership is only in place in the context of membership of the EFTA organisation (Iceland, Liechtenstein, Norway and Switzerland). There is currently little clarity as to the access British psychiatric patients would have to psychiatric care (medication, therapies or admission) in other European countries were EHIC not to be available.
Among the discussion around the EU referendum has been the separate but related issue of the Human Rights Act 1998 ('HRA') and Britain's relationship to 3 entities known as ECHR (the European Convention on, Commission on and Court of Human Rights). The HRA brought the European Convention on Human Rights into British law for the first time since its inception in 1950 despite Britain's central role in its development. While much of the progress in mental health practice since 1950 predated the HRA itself, the increasing international recognition of the importance of individual rights has been reflected in the development of mental health practice in Britain. It could be argued that the balance of treatment goals with patient rights is the defining feature of modern mental health practice, both a challenge for staff and a catalyst for development.
As HRA and ECHR (Convention) principles are central to the way mental health law has developed, it is very difficult to forecast how a change to the HRA could impact mental health care. On the one hand, the interrelation between ECHR and mental health law in statute, case law and associated policies could mean that a loss of status of ECHR could fundamentally redraw much of mental health law. On the other hand, human rights principles are so embedded in mental health law that the removal of the HRA may only directly affect those litigated cases where the Courts would otherwise determine compatibility between British laws and the Convention.
Public debate surrounding EU membership has reignited discussion of Scottish independence and a potential further referendum on the issue in the event of a decision to leave the EU. The MHA itself only directly applies in England and Wales (with some distinctions between the two) and does not directly apply in Scotland or other British territories. However, there are often issues when patients' lives cross the border in either direction, whether this is due to patient preference, clinical needs (including patients requiring detention in conditions of high security), or broader decision-making (such as under the Mental Capacity Act 2005). As both the legal systems and the NHS in Scotland are devolved matters, political decision-making at the highest level can lead to very different positions on the ground. Mental health services currently encounter challenging situations in disputes as to decision-making or funding of after-care in cross-border cases.
However, there are some areas where European structures provide common ground (such as use of EHIC cross-border healthcare throughout Europe and victim rights as mentioned above) and those parameters may also be impacted in the event of a vote to leave the EU, regardless of any further steps towards independence.
Among the myriad issues which can arise when a patient or their care move between England and Scotland, the differences between the two criminal systems is particularly complex. Conviction and sentencing operate differently between the two nations, which impacts patients detained under Part III MHA. Were issues in relation to international immigration and deportation to be introduced to this situation, practitioners would face an even more volatile legal quagmire.
The implications of membership or departure from the EU, the role of ECHR in domestic law and the dynamic between England, Wales and Scotland are all significant across society and its services. At time of writing, there are numerous models for how potential political decisions may play out and therefore how they may affect mental health services using the MHA. Professionals will need to remain alert to make early adaptations to a potentially very different constitutional context for mental health law.
For further information or to discuss any aspect of this article, please contact Clementine Robertshaw, Solicitor or Stuart Marchant, Partner.