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These notes refer to the Mental Health Bill [HL] as brought
from the House of Lords on 7th March 2007 [Bill 76]
MENTAL HEALTH BILL [HL]
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EXPLANATORY NOTES
INTRODUCTION
1. These explanatory notes relate to the Mental Health Bill [HL] as brought from the House of Lords on 7th March 2007. They have been prepared by the Department of Health and the Home Office, in consultation with the Welsh Assembly Government, in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.
LIST OF ABBREVIATIONS USED IN EXPLANATORY NOTES
3. The following terms are used throughout the explanatory notes:
| The 1983 Act - the Mental Health Act 1983 |
| AC - approved clinician |
| AMHP - approved mental health professional |
| ASW - approved social worker |
| CCW - Care Council for Wales |
| CTO - community treatment order |
| ECHR - European Convention on Human Rights |
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Bill 76—EN 54/2
| ECT - electroconvulsive therapy |
| GSCC - General Social Care Council |
| IMCA - Independent Mental Capacity Advocate |
| LHB - local health boards |
| LSSA - local social services authority |
| MCA - Mental Capacity Act 2005 |
| MHRT - Mental Health Review Tribunal |
| NHSFT - National Health Service foundation trust |
| NR - nearest relative |
| PCT - primary care trust |
| RC - Responsible Clinician |
| RMO - Responsible Medical Officer |
| SCT - supervised community treatment |
| SOAD - Second Opinion Appointed Doctor |
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BACKGROUND AND SUMMARY
Background
4. The legislation governing the compulsory treatment of certain people who have a mental disorder is the Mental Health Act 1983 (the 1983 Act). The main purpose of this Bill is to amend that Act but it is also being used to introduce "Bournewood safeguards" (see paragraph 12) through amending the Mental Capacity Act 2005 (MCA).
5. The 1983 Act is largely concerned with the circumstances in which a person with a mental disorder can be detained for treatment for that disorder without his or her consent. It also sets out the processes that must be followed and the safeguards for patients, to ensure that they are not inappropriately detained or treated without their consent. The main purpose of the legislation is to ensure that people with serious mental disorders which threaten their health or safety or the safety of the public can be treated irrespective of their consent where it is necessary to prevent them from harming themselves or others.
6. In 1998, the Richardson Committee - an independent expert committee chaired by Professor Genevra Richardson - was set up to review mental health law and to consider what changes were needed. The Richardson Committee presented its report to the Government in July 1999, and the report - Review of the Mental Health Act: Report of the Expert Committee - and a Green Paper setting out the Government's proposals for a new Mental Health Act - Reform of the Mental Health Act 1983, Proposals for Consultation; Cm4480 - were published in November 1999.
7. In July 2000, the NHS Plan (Cm4818) set out the Government's plans for mental health services, including its plans for reforming mental health legislation.
8. Taking account of views expressed on the Green Paper, in December 2000 the Government published a White Paper - Reforming the Mental Health Act; Cm5016 - which set out a proposed new legal framework for when and how care and treatment should be provided for a person with a mental disorder without his or her consent.
9. In June 2002, the Government published a draft Mental Health Bill for consultation. It was accompanied by a consultation document seeking views about a number of policy areas. Having considered the comments received from the 2002 consultation exercise, the Government amended the Bill. The amended draft also took account of discussions with stakeholders since 2002.
10. In September 2004, the Government published a revised draft Bill for pre-legislative scrutiny. The Joint Committee on the Draft Mental Health Bill published their report, HL Paper 79-1/HC 95-1, in March 2005. The Government response - Government response to the report of the Joint Committee on the draft Mental Health Bill 2004; Cm6624 - was published in July 2005.
11. In March 2006, the Government announced that, having further considered the views expressed about the 2004 draft Bill, it was proposing to amend the 1983 Act rather than replace it.
12. This Bill also amends the MCA. These changes are in response to the 2004 European Court of Human Rights judgment (HLvUK) (the "Bournewood judgment") involving an autistic man who was kept at Bournewood Hospital by doctors against the wishes of his carers. The European Court of Human Rights found that admission to and retention in hospital of HL under the common law of necessity amounted to a breach of Article 5(1) ECHR (deprivation of liberty) and of Article 5(4) ECHR (right to have lawfulness of detention reviewed by a court).
13. A consultation document on the Bournewood judgement was issued for both England and Wales in March 2005 and the consultation period ended in June 2005. The policy proposals in the Bill have been developed in the light of the consultation responses, and further discussions and consideration in the light of those responses.
Summary
14. The Bill introduces a number of changes to the 1983 Act and the MCA. The following are the main changes to the 1983 Act:
- definition of mental disorder: it changes the way the 1983 Act defines mental disorder, so that a single definition applies throughout the 1983 Act, and abolishes references to categories of disorder.
- criteria for detention: it introduces a new test of whether a person's ability to make decisions about medical treatment is significantly impaired because of mental disorder. Unless this test is met, a person may not be detained under Part 2 of the 1983 Act. It also, in effect, applies the so-called "treatability" test (see paragraph 45 below) more widely than at present, with the effect that no-one may be detained for medical treatment under the 1983 Act unless such treatment is likely to alleviate or prevent deterioration in their condition. Both these changes are included in the Bill as a result of amendments which the Government opposed in the House of Lords.
- professional roles: it is broadening the group of practitioners who can take on the role of the approved Social Worker (ASW) and Responsible Medical Officer (RMO).
- nearest relative (NR): it gives to patients the right to make an application to displace their NR and enables county courts to displace a NR where there are reasonable grounds for doing so. The provisions for determining the NR will be amended to include civil partners amongst the list of relatives.
- supervised community treatment (SCT): it introduces SCT for patients following a period of detention in hospital. It is expected that this will allow a small number of patients with a mental disorder to live in the community whilst subject to certain conditions under the 1983 Act, to ensure they continue with the medical treatment that they need. Currently some patients leave hospital and do not continue with their treatment, their health deteriorates and they require detention again - the so-called "revolving door".
- Mental Health Review Tribunal (MHRT): it introduces an order-making power to reduce the time before a case has to be referred to the MHRT by the hospital managers. It also introduces a single Tribunal for England and one in Wales.
- abolition of finite restriction orders: it removes the possibility of restriction orders being made for a limited period, so that they may remain in force for as long as the offender's mental health problem poses a risk of harm to others.
15. The changes to the MCA provide for procedures to authorise the deprivation of liberty of a person resident in a hospital or care home who lacks capacity to consent ("Bournewood safeguards"). The MCA principles of supporting a person to make a decision when possible, and acting at all times in the person's best interests and in the least restrictive manner, will apply to all decision-making in operating the Bournewood safeguards. The context for the Bournewood policy proposals is the Government commitment in the White Paper Our Health, Our Care, Our Say that people with ongoing care needs, whether their needs arise in older age, through illness or disability, should be cared for in ways that promote their independence, well-being and choice. Deprivation of liberty should therefore be avoided where possible and would only be authorised if identified by independent assessment as a necessary and proportionate course of action to protect the person from harm.
16. The Government accepts that there will be some people who will need to be cared for in circumstances that deprive them of liberty because it is necessary to do so, in their best interests in order to protect them from harm. The Government does not consider that deprivation of liberty would be justified in large numbers of cases but recognises that such circumstances may arise, for example for some people with severe autism or dementia.
17. The aim of the Bournewood provisions is to provide legal safeguards for those vulnerable people who are deprived of their liberty, to prevent arbitrary decisions to deprive a person of liberty and to give rights of appeal. The safeguards apply to adults who lack capacity to consent to treatment or care, who are suffering from a disorder of the mind but who are not detained under the 1983 Act.
OVERVIEW OF THE STRUCTURE
18. Part 1 sets out the amendments to the 1983 Act. The commentary follows the order of the clauses in Part 1. Part 2 sets out the amendments to the MCA. Part 3 sets out general provisions such as transitional provisions and a power to make consequential amendments.
TERRITORIAL EXTENT
19. For the most part, the Bill has the same extent as the Acts that it amends and therefore generally extends only to England and Wales. See paragraphs 236 to 245 for an explanation of some of the matters relating to Scotland.
20. The 1983 Act has provisions for the transfer of patients to and from Scotland, Northern Ireland, the Channel Islands and the Isle of Man. These are amended by the Bill to make it possible to transfer patients subject to non-resident treatment outside England and Wales (currently this will only apply to patients in Scotland) to SCT in England and Wales and vice versa.
Territorial application: Wales
21. Clause 37 provides for the continuation of the MHRT for Wales, and Schedule 2 to the 1983 Act is amended to provide for the appointment by the Lord Chancellor of a President for that Tribunal.
22. Annex A provides further detail on the provisions of the Bill containing new functions that will transfer, so far as exercisable in relation to Wales, to Welsh Ministers.
COMMENTARY
PART 1 - AMENDMENTS TO MENTAL HEALTH ACT 1983
CHAPTER 1 - CHANGES TO KEY PROVISIONS
Clause 1: removal of categories of mental disorder
23. Clause 1 amends the wording of the definition of mental disorder in the 1983 Act from "mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disability or disorder of mind" to "any disorder or disability of the mind".
24. The fact that a person suffers from a mental disorder does not, of itself, mean that any action can or should be taken in respect of them under the 1983 Act. Action can be taken only where particular circumstances or criteria set out in the 1983 Act apply.
25. Examples of clinically recognised mental disorders include mental illnesses such as schizophrenia, bipolar disorder, anxiety or depression, as well as personality disorders, eating disorders, autistic spectrum disorders and learning disabilities. Disorders or disabilities of the brain are not regarded as mental disorders unless (and only to the extent that) they give rise to a disability or disorder of the mind as well.
26. The clause also abolishes the four categories of mental disorder used in the 1983 Act at the moment, namely mental illness, mental impairment, psychopathic disorder and severe mental impairment.
Schedule 1: categories of mental disorder - further amendments etc
27. Subsection (4) of clause 1: Part 1 of Schedule 1 replaces references in the 1983 Act to the four categories of mental disorder with references simply to mental disorder. The effect is to widen the application of the provisions in question to all mental disorders, not just those which fall within one of the four categories (or the particular category or categories to which the provision applies). Practical examples of disorders which would now be covered by those provisions are forms of personality disorder which would not be considered legally to be "mental illness" and which do not fall within the current definition of psychopathic disorder because they do not result in abnormally aggressive or seriously irresponsible conduct on the part of the person concerned. Other examples almost certainly include certain types of psychological dysfunction arising from brain injury or damage in adulthood. Part 2 of the Schedule makes similar amendments to certain other Acts.
Clause 2: learning disability
28. Clause 2 provides that for certain provisions of the 1983 Act a person may not be considered to be suffering from a mental disorder simply as a result of having a learning disability, unless that disability is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned.
29. The provisions in question are those which are currently limited to one or more of the four categories of mental disorder which are to be abolished by clause 1. As well as criteria for detention they also include criteria for the use of guardianship in section 7 and guardianship orders in section 37.
30. The reference to association with abnormally aggressive or seriously irresponsible conduct is derived from the current definitions of "mental impairment" and "severe mental impairment" (which are removed by clause 1). Accordingly, where the 1983 Act as it stands now effectively precludes the use of detention or other compulsory measures on the basis of a learning disability which is not associated with abnormally aggressive or seriously irresponsible conduct, the same will be true of the Act as amended.
Clause 3: changes to exclusions from operation of the 1983 Act
31. Section 1(3) currently says that the definition of mental disorder shall not be construed as implying that a person may be dealt with under the 1983 Act as suffering from mental disorder "by reason only of promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs." Clause 3 substitutes for this a provision to the effect that people are not to be considered to have a mental disorder for the purposes of the Act solely on the grounds of their:
(a) substance misuse (including dependence upon, or use of, alcohol or drugs)
(b) sexual identity or orientation
(c) commission, or likely commission, of illegal or disorderly acts
(d) cultural, religious or political beliefs.
32. The clause as it stands is the result of an amendment which the Government opposed in the House of Lords.
33. The term "substance misuse" is not defined. The Government considers that, in addition to misuse of and dependence on alcohol or drugs, it is likely to encompass the use of those and other substances which adversely affects the health or social functioning of the person concerned, which puts the health, safety or welfare of that person or any other person at risk, or which is illegal.
34. The effect of the exclusion in paragraph (a) is that no action can be taken under the 1983 Act solely on the basis that a person engages in substance misuse, even if in other contexts that misuse would be considered clinically to be a mental disorder.
35. It does not mean that such people are excluded entirely from the scope of the 1983 Act. A person who engages in substance misuse may also suffer from another disorder which warrants action under the 1983 Act. Nor does it mean that people may never be treated without consent under the 1983 Act for substance misuse. Like treatment for any other condition which is not itself a mental disorder, treatment for substance misuse may be given under the 1983 Act if it forms part of treatment for a condition which is a mental disorder for the purposes of the 1983 Act (see clause 9 for the definition of medical treatment).
36. The effect of paragraph (b) is that no action can be taken under the 1983 Act solely on the basis of a person's sexual identity or orientation. Like substance misuse, sexual orientation and identity are not defined. The Government understands the former to mean sexual attraction towards people of the same, or opposite sex, or both, and the latter to mean the terms (for example "heterosexual", "homosexual" or "bisexual") by which a person thinks of, or describes, their own sexual orientation (regardless of what that orientation is in objective terms).
37. Sexual orientation and identity in these terms are not clinically recognised mental disorders. However, there are disorders of sexual preference which are recognised clinically as mental disorders. Some of these disorders would probably be considered "sexual deviance" in the terms of the current exclusion in section 1(3) of the 1983 Act (for example paraphilias like fetishism or paedophilia). Such disorders will not be excluded as a result of this clause.
38. The effect of paragraphs (c) and (d) respectively is that no action can be taken under the 1983 Act solely on the basis of the commission, or likely commission, of illegal or disorderly acts, or on the basis of a person's cultural, religious or political beliefs. The Government understands that someone who has committed a criminal or disorderly act (or is likely to) may nonetheless be found to have a mental disorder, whether or not the criminal or disorderly act is in some way related to that mental disorder. And the fact that a mental disorder manifests itself in disordered beliefs of a cultural, religious or political nature would not prevent those disordered beliefs being taken into account in determining whether a person has a mental disorder for the purposes of the Act.
39. Clinically, neither promiscuity nor "other immoral conduct" by itself is regarded as a mental disorder, so the removal of that exclusion makes no practical difference.
Criteria for detention under the 1983 Act: overview
40. A person can be detained under the 1983 Act only where certain criteria are met. Different criteria apply to detention for different purposes. Detention of civil patients is dealt with in Part 2 of the 1983 Act. Admission for assessment can be for up to 28 days and cannot be renewed (although in limited circumstances it can be extended under section 29 pending resolution of proceedings to appoint an acting nearest relative for a patient). Admission for treatment is for up to 6 months in the first place, and can be renewed periodically thereafter. The criteria for admission for assessment are in section 2 of the 1983 Act, the criteria for admission for treatment in section 3. Part 3 of the 1983 Act contains various powers for the courts to order the detention in hospital of people involved in criminal proceedings, either while the proceedings are in progress or as an alternative to punishment. It also contains powers for the Secretary of State (in practice the Home Secretary) to transfer prisoners to hospital for treatment. The criteria in each case are set out in the relevant section.
41. Where a patient is detained for treatment under section 3 or under Part 3, the detention must be renewed periodically. Criteria for this renewal are in section 20 of the 1983 Act. Patients detained for assessment under section 2 or for treatment under section 3 and under certain powers in Part 3 may apply to the MHRT for discharge. The criteria the MHRT must use when deciding the application are set out in sections 72-74.
Clause 4: impaired decision making: admission for assessment and treatment
42. Clause 4 provides that an application for detention in hospital for assessment under section 2 of the 1983 Act or for medical treatment under section 3 may not be made unless the person's ability to make decisions about the provision of medical treatment is significantly impaired because of mental disorder. Clause 4 is included in the Bill as a result of an amendment which the Government opposed in the House of Lords.
43. While there is no precedent for this provision in legislation in England and Wales a similar provision exists in the Mental Health (Care and Treatment) (Scotland) Act 2003 (an Act of the Scottish Parliament). Volume 2 of the Code of Practice published by the Scottish Executive 1 to accompany that Act states (at paragraph 23 of Chapter 1):
1 Mental Health (Care and Treatment) (Scotland) Act 2003 Code of Practice Volume 2 - Civil Compulsory Powers (Parts 5, 6, 7 & 20), Scottish Executive, September 21, 2005.
"One difference between incapacity and significantly impaired decision-making ability arguably is that the latter is primarily a disorder of the mind in which a decision is made, resulting in the decision being made on the basis of reasoning coloured by a mental disorder. Incapacity, by contrast, broadly involves a disorder of brain and cognition which implies actual impairments or deficits which prevent or disrupt the decision-making process."
Clause 5: replacement of "treatability" and "care" tests with appropriate treatment test
44. Clause 5 provides that the availability of appropriate medical treatment is to be a criterion for detention under section 3 of the 1983 Act, related sections of Part 3 and the corresponding criteria for renewal and discharge. Subsection (3) inserts a new subsection (4) into section 3 of the 1983 Act, to the effect that appropriate medical treatment means treatment which is likely to alleviate or prevent a deterioration in the patient's condition.
45. Subsection (3) of this clause is included in the Bill in its current form as a result of an amendment which the Government opposed in the House of Lords. The effect is to retain and apply more widely the effect of the so-called "treatability" test. The treatability test requires the relevant decision-maker to determine whether medical treatment "is likely to alleviate or prevent deterioration in the patient's condition". Currently, under the 1983 Act, where that test forms part of the criteria for detention under a particular section, it applies at all stages to patients suffering from mental impairment or psychopathic disorder (i.e. to the initial decision to detain, and both renewal and discharge from detention). However, for patients suffering from mental illness or severe mental impairment it applies only when detention is being renewed under section 20(4) (or 21B) or when the MHRT is considering discharge in accordance with the criteria in section 72(1)(b). In both these cases there is an alternative test - variously known as the "grave incapacity" or "care" test - which may be applied instead. Both the treatability test and this alternative test are abolished by this clause and replaced by the test of whether appropriate treatment is available, but, because of the way that appropriate medical treatment is defined as a result of the Lords amendment, the effect of that new test is the same as that of the treatability test which it replaces. However, there will no longer be an alternative "grave incapacity" test and, because of the removal of categories of disorder by clause 1, the new test (the "restated treatability test") applies equally to all mental disorders.
46. As an illustration, the effect of clauses 1, 4 and 5 and paragraph 2 of Schedule 1 on the criteria for applications for admission for treatment under section 3 is as follows:
3 Admission for treatment
(1) A patient may be admitted to a hospital and detained there for the period allowed by the following provisions of this Act in pursuance of an application (in this Act referred to as "an application for admission for treatment") made in accordance with this section.
(2) An application for admission for treatment may be made in respect of a patient on the grounds that—
(a) he is suffering from mental illness, severe mental impairment, psychopathic disorder or mental impairment and his mental disorder is of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and
(aa) because of his mental disorder, his ability to make decisions about the provision of medical treatment is significantly impaired;
(b) in the case of psychopathic disorder or mental impairment, such treatment is likely to alleviate or prevent a deterioration of his condition; and
(c) it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section.; and
(d) appropriate medical treatment is available for him.
(3) An application for admission for treatment shall be founded on the written recommendations in the prescribed form of two registered medical practitioners, including in each case a statement that in the opinion of the practitioner the conditions set out in subsection (2) above are complied with; and each such recommendation shall include—
(a) such particulars as may be prescribed of the grounds for that opinion so far as it relates to the conditions set out in paragraphs (a) and (d b) of that subsection; and
(b) a statement of the reasons for that opinion so far as it relates to the conditions set out in paragraph (c) of that subsection, specifying whether other methods of dealing with the patient are available and, if so, why they are not appropriate.
(4) In this Act, references to appropriate medical treatment, in relation to a person's mental disorder, are references to medical treatment which is likely to alleviate or prevent deterioration in his condition. |
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