Dr Lucy Stephenson, Kings’ College London
Provision for Self-Binding Advance Directives Should be Included in Mental Health Act Reform
Advance Statements are supported by mental health policy (the Mental Health Act Code of Practice), service user groups and are credible as means to enhance collaborative care, personalised medicine and patient autonomy. However, as yet, there is no current formal provision for such statements. Advance refusals of treatment are catered for within the Mental Capacity Act (2007) but advance requests are a neglected area.
Self-binding directives (SBDs) or Ulysses Clauses are one type of advance request which would offer individuals with fluctuating conditions, such as Bipolar, the opportunity to ‘bind’ themselves into treatment during future episodes and thus avoid some of the damage which has happened to them in previous episodes. I will explain how such directives can function as an important means of both achieving damage limitation and enhancing patient autonomy. Objections about these directives generally fall into ethical, legal and clinical categories. Common ethical concerns are around the detention of individuals who may pass a standard assessment of mental capacity. Common legal concerns centre around the enforceability of such a directive within the current legal framework whilst common clinical concerns are around resource availability. I will show how the major concerns raised against (SBDs) are based on a protectionist approach to mental healthcare and a ‘passive’ model of human rights.
To conclude, I will make some suggestions as to how this type of request could be supported under current mental health law. I will outline where they would fit into both the Mental Health Act’s status and risk criteria and the notion of Decision-Making Capacity. I will argue that if recent calls for revision of the Mental Health Act are successful (as detailed in the conservative party manifesto) provision should be made for self-binding advance directives.