MEMORANDUM BY THE EXPERT COMMITTEE ESTABLISHED
TO ADVISE MINISTERS ON LEGISLATIVE REFORM 1998-99 (MH 11)
1. We are delighted that the Health Committee
is undertaking an inquiry into the provision of NHS Mental Health
Services and we would like to take this opportunity to make a
written submission. We note the terms of reference of the Inquiry
and intend our evidence to relate primarily to the first two bullet
points: definitions and categorisation of mental illness and the
ability of care in the community to cater for people with acute
mental illness. We will also address the relationship between
hospitals and prisons. It is our belief that the legal framework
through which care and treatment may be provided without the patient's
consent plays a significant role in the ability of mental health
services to reach those most in need.
2. In October 1998 We were appointed to
advise ministers on the reforms necessary to enable the law to
reflect modern patterns of mental health care. The then Parliamentary
Under Secretary of State for Health, Paul Boateng, made it quite
clear that we were to provide for compulsory powers outside hospital,
but we were encouraged to be "root and branch" in our
approach. Within the very tight timetable we were given we held
two rounds of consultation and presented our final report to ministers
in July 1999.
3. In November 1999 the Government published
its Green Paper containing proposals for reform, "Reform
of the Mental Health Act 1983", and achieved wide coverage
of its intention to provide for compulsory treatment outside hospital.
Our report, "Review of the Mental Health Act 1983",
was made available on the same day. We attach the full text of
our Report.[1]
4. At present the law allows people with
certain forms of mental disorder to be detained in hospital and
treated against their will. The current legislation in England
and Wales dates essentially from the 1950s. It reflects a medical
paternalism prevalent at that time and assumes that virtually
all treatment will be provided in hospital. Few now deny the need
for fundamental reform.
THE EXPERT
COMMITTEE'S
REPORT
The Fundamental Principle: Non-Discrimination
on Grounds of Mental Ill-Health
5. In our Report we recommended a legislative
structure capable of providing for care in the community, as the
Government had requested: a structure which we believed to be
responsible and soundly based. At the heart of our recommendations
lay the principle of non-discrimination on grounds of mental ill
health. At present the law is fundamentally discriminatory. People
with a physical disorder may refuse medical treatment whatever
the consequences of that refusal provided they are capable of
making that choice. By contrast, those with a mental disorder
can be compelled to accept treatment against their will even if
they make a capable decision to refuse. In our Report we recommend
the introduction of a "capacity" test. For those without
the necessary capacity to make treatment decisions themselves
the law should be there to provide for care and treatment in the
absence of consent, whether in hospital or outside it. On the
other hand, a refusal to accept treatment by a person who retains
the capacity to make the choice should only be overridden where
there is a real and serious risk to others, or possibly to themselves,
and where the disorder can benefit from a compulsory health intervention.
By allowing for the overriding of an individual's wishes in such
cases the law would still be discriminating against the mentally
as opposed to the physically disordered but it would be doing
so on clear and justifiable grounds (2.1-2.6). In our view a principled
foundation for compulsory powers is crucial if those powers are
to be extended outside hospital.
6. Novel though this analysis may appear
at first sight, the responses we received to our draft report
in April 1999 revealed that a capacity based approach in some
form attracted the support of a wide range of informed opinion.
On this basis we were confident that we had produced an outline
which could be developed to provide the necessary powers in a
way which was principled, in tune with the ethics and aspirations
of mental health professionals, carers and users of the service,
and which would offer the necessary degree of protection to the
public.
7. The structure we proposed contained positive
incentives to consensual care (see particularly paragraphs 3.16-3.23
and 12.12-12.15) but also indicated an acceptable basis for the
imposition of care and treatment in the absence of consent, whether
in hospital or elsewhere, where attempts to achieve consensual
care have failed. We recommended the removal of the existing link
between compulsory treatment and hospital detention, and we proposed
new strict criteria for the imposition for compulsion which wouldhave
to be met wherever the compulsory care was to be delivered (5.94-5.104).
8. Although our Report contained merely
advice to be accepted or rejected, we were careful to emphasise
that the structure we were recommending should be seen as a whole
and warned that "few elements of it could survive on their
own" (1.14). We accepted that further debate was necessary
and much detailed work was still to be done, and we urged the
government to take its time and to consult widely.
9. Formally our job was done when we presented
our Report and the policy process must now take its course. However,
because the issues at stake are so important for so many people
we feel we must take this opportunity to raise our concerns with
you. We fear that if the government rushes in with legislation
based on its Green Paper our mental health services could pay
a significant long term price, greatly to the detriment of those
who need and use those services.
THE GREEN
PAPER
The Scope of Compulsory Powers: the Government's
Preferred Model
10. It is hard to identify from the Green
Paper precisely what the Government is proposing or the reasoning
behind it, but we fear that by adopting some aspects of our Report
and placing them within a very different context an unfortunate
hybrid has emerged which could significantly extend the use of
compulsory powers. The principled structure based on non-discrimination
contained in our Report is dismissed by the Green Paper, effectively
without debate. Instead the Green Paper appears to prefer a model
centred on "risk" which would do little to encourage
consensual care. It would combine an inclusive clinical description,
mental disorder, with extremely generous criteria for the imposition
of compulsory powers. There would be no reference to the patient's
capacity nor to the requirement that the mental disorder might
benefit from treatment under compulsion. Thus the possibility
of long term compulsion would apply not only to those with a severe
mental illness, but also to people with learning disabilities
and to those diagnosed as having a personality disorder, without
any need to establish that they might benefit from the treatment
imposed.
11. Such criteria alone could lead to a
significant rise in the use of compulsion, but with the extension
of these powers to the community the practical limitation currently
imposed by the need to find a hospital bed will disappear. As
a result there will be nothing to prevent a considerable increase
in the use of compulsion with all that entails in terms of professional
time and administrative resources, discrimination against those
with mental disorders and the reluctance of those in need to seek
help. We fear that a legal framework based on the model the Government
appears to prefer could seriously distort the provision of services.
THE RELATIONSHIP
BETWEEN PRISONS
AND MENTAL
HEALTH SERVICES
12. Although we were established by the
Department of Health rather than the Home Office, we were very
conscious of the need to consider the relationship between civil
powers of compulsion and those available within the criminal justice
system. Our Report contains some preliminary recommendations with
regard to offenders (chapter 15) and prisoners (chapter 16). These
recommendations are barely discussed in the Green Paper. We are
particularly aware of the prevalence of mental disorder among
prisoners and would like to draw the Health Committee's attention
to our recommendation that prisoners should acquire the right
to an assessment of their mental health needs (16.3-16.4) and
our proposals with regard to transfers from prison to hospital
(16.5-16.10).
RECOMMENDATIONS TO
GOVERNMENT
13. The Government is committed to modernising
the legal framework for the provision of mental health services
and obviously we fully support that aim. We also believe that
there is much goodwill and community of interest between those
directly involved with mental health services whether as professionals,
users or carers. But we fear that by pressing forward so fast
the Government is in danger of forfeiting that goodwill and foreclosing
the debate. By encouraging us "to undertake a root and branch
view" (Paul Boateng, then Parliamentary Under Secretary of
State for Health) and to consult widely, the Government has raised
the expectation that serious thought will be given to the fundamental
principles behind compulsory mental health care. It is not too
late to realise that expectation. We urge the Government to slow
down its programme for legislative reform and to take advantage
of the debate it has initiated. If it wishes to produce principled,
practical and durable mental health legislation it should give
itself time both to listen to those with views formed by direct
knowledge of the existing structure here and to learn from the
experience of mental health legislation in other jurisdictions.
The proper provision of mental health care deserves no less and
the Government must not let the opportunity slip.
1 Not printed. Back
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