Memorandum submitted by The Royal College of Psychiatrists (MH 10)

 

Summary

 

A. The Royal College of Psychiatrists is the leading medical authority on mental health in the United Kingdom and the Republic of Ireland and is the professional and educational organisation for doctors specialising in psychiatry.

 

B. To support therapeutic relationships between doctor and patient, improve patient outcomes and reduce risk, the powers under the Mental Health Act should be tightly confined and unambiguous. The Act should command the support of the professional groups and patients, there must be a proper balance between clinical discretion and patient safeguards, and between paternalism and respect for autonomy. While public protection is an important dimension of the psychiatrist's role it should not overshadow the main purpose which is the care, safety and wellbeing of the patient.

 

C The Lords' amendments have significantly assisted the Bill to achieve these goals. The College fully supports the following:

 

C.1 A set of exclusions to limit the broad definition of mental disorder and to prevent the Act from inappropriate use.

 

C.2 Significantly impaired decision-making as a requirement for patients detained under Part II of the Act

 

C.3 It is necessary to retain the treatability test in the law. It is a fundamental principle that for people to be detained as a result of their mental disorder there must be a likely health benefit for them.

 

C.4 CTOs need to be reserved for those, with a history of relapsing for failure to take treatment, and who then require compulsory hospital admission as a result.

 

C.5 Renewal of detention, and community treatment orders, to require two opinions one of whom must be a registered medical practitioner.

 

C.6 Children and young people to be admitted only to age appropriate accommodation and to be assessed and supervised by a specialist in child mental health.

 

D. In addition the College recommends:

 

D.1 Patients on community treatment orders should be governed, as far as possible, by the same provisions for second opinion approved doctors as apply to those who are detained under the Act.

 

D.2 Additional safeguards in relation to treatment for patients subject to the 'Bournewood' provisions of the Mental Capacity Act.


This evidence consists of the following sections

1. Introduction ( paras 1.1 - 1.7)

2. The role of compulsory powers ( paras 2.1 - 2..12)

3. Exclusions (paras 3.1 - 3.9)

4. Impaired decision making (paras 4.1 - 4..10)

5. The treatability test (paras 5.1 - 5.)

6. Community treatment orders (paras 6.1 - 6.19)

7. Renewal of detention (paras 7.1 - 7.2)

8. Bournewood provisions (paras 8.1 - 8..4)

9. Children and young people (paras 9.1 - 9.4)

 

 

1. Introduction

1.1 The Royal College of Psychiatrists is the leading medical authority on mental health in the United Kingdom and the Republic of Ireland and is the professional and educational organisation for doctors specialising in psychiatry. The College is a member of the Mental Health Alliance. We support the evidence of the Alliance and do not therefore cover the issues of nearest relatives, advance decisions or advocacy which we consider important for patients but which their evidence will address. We welcome the opportunity to give evidence to the House of Commons Committee on the Mental Health Bill 2006.

 

1.2 Mental health legislation provides the legal framework for much of psychiatrists work. It directly affects a minority of our patients[1]but indirectly sets the climate for the provision of care to all others. In the divisions and faculties of which the College is composed - including those specialising in psychiatry for children and young people, forensic patients and older people the issues in this Bill, and its predecessors in 2002 and 2004, have been fully canvassed and agreement reached.

 

1.3 We consider that the Scottish Mental Health Act provides an excellent model for a new law for England and Wales. The positive experience of our colleagues in Scotland over the last year and a half has reinforced this view. The Scottish Act is principled, fair and effective. It balances respect for the autonomy and dignity of patients and patients' rights to a mental health assessment with the power to detain for compulsory treatment. The College also supported the 2001 Mental Health Act in the Republic of Ireland and welcomes the recommendations of the Bamford Review in Northern Ireland[2].

1.4 Legal reform in England and Wales has taken an opposite course. The Expert Committee recommendations were supported by stakeholders but largely discounted by government, as were the recommendations of the Joint Scrutiny Committee on the 2004 Mental Health Bill who made similar findings to the Expert Committee. The College understands that the government is intent on removing the amendments passed with very large support in the House of Lords. This is profoundly disappointing. Legislation that is opposed by those who will be most directly affected by it, is unlikely to fare well in practice

 

1.5 The effect of the original Bill on the 1983 Act was twofold. It expanded the role of clinical discretion with a corresponding weakening in the effectiveness of safeguards and it extended the reach of compulsory powers. These new powers are ones which the doctors, nurses, psychiatrists, social workers and psychologists believe will do more harm than good. They give the potential for overuse of the Act by inexperienced, cautious or even incompetent professionals. In a risk averse culture where media headlines are so influential, and the public and politicians expect psychiatrists to act in a public protection role, the discretion not to detain someone who falls within the parameters of the law feels more like duty. This can create ethical dilemmas for clinicians and undermine confidence in their professions, which in turn can affect morale and recruitment. It is important to all parties that the rules relating to detention and compulsory treatment are clear and unambiguous.

 

1.6 It should be noted that the powers provided in this Bill, particularly over those who will be on community treatment orders, are well in excess of those provided in the mental health laws in Scotland, Ireland, Australia, New Zealand, and in those parts of Canada and USA which we have examined because of their community treatment regimes[3]. Why do these countries take a different approach? Partly because the imposition of compulsion involves a denial of the fundamental and cherished rights of people to their personal freedom and autonomy. Partly because of the adverse medical impact of compulsion. That is why the government statement that 'every restriction on clinical powers is a person untreated' is wrong.

 

1.7 The College agrees with the amendments made by the House of Lords and will seek further improvements during the Bill's passage through the House of Commons.

 

2. The role of compulsory powers

2.1 The major problem with the Bill was its broad scope that would inevitably lead to a greater use of compulsory powers. Clauses 1 and 2 of the Bill broadened the definition of mental disorder for those detained under a treatment order. It also:

removed all but one of the exclusions ( Clause 3)

abolished the 'treatability' test (removed the need for the intervention to have any health benefit for the patient) replacing it with "appropriate treatment". ( Clause 5)

introduced community treatment orders (CTOs) but with such a low threshold for their application that almost every person who would now be discharged, (albeit in some cases under a supervised discharge provision[4]) could be eligible if the cautious clinician decides.

failed to introduce any form of capacity test which would also help to delimit the scope of the law.

 

2.2 As Professor Richardson put it, the compulsory system could become like a lobster pot, easy to get into but difficult to get out[5]. A law which has the effect of adding to the numbers of patients under compulsion, including some patients who will not benefit from the detention, will take away resources from voluntary patients - both in terms of beds for in-patient and professional's time in dealing with the procedural requirements of the Act. The services which should reduce the need for compulsion such as early intervention, assertive outreach and other developments will be jeopardised.

 

2.3 However the reason for these broad powers is largely to bring in a small and specific group of people with personality disorder who are allegedly excluded now as untreatable -it covers the many to catch the few. Driven partly by a lack of services for this group it poses law as part of the solution but the Inquiries do not point to a problem of the law but a problem of services.

 

 

 

 

Every homicide by a person with severe mental health problems is followed by an independent inquiry. These provide important lessons about what can be done in future to reduce the risk of such tragedies happening again.

 

The Michael Stone inquiry found that despite much intervention by services on his behalf there were some institutional and communication failures, including a lack of appropriate inpatient services that contributed to his commission of homicides. It did not recommend a change to the law. It found at no point was he refused a service. He was refused admission to an ordinary hospital ward because he would be a danger to other patients and there was a lack of secure beds available.

 

The John Barrett inquiry found that Barrett's care had been 'seriously flawed': He was subject to the provisions of the Mental Health Act (he was on conditional discharge from a restriction order and, therefore could be recalled to hospital at any time) at the time of the offence. The risk he posed was not properly assessed and he was given 'ground leave' at Springfield Hospital, from which he did not return. Neither a CTO nor the abolition of treatability would have made any difference in this case.

 

The Christopher Clunis inquiry found that his care was characterised by 'one failure or missed opportunity on top of another' and that a lack of resources was a key reason for this. In particular it was a failure of services to follow up with him or his family or to 'plan, provide or monitor' Section 117 aftercare, and a lack of secure beds and sufficient trained social workers. Implementation of CPA and assertive outreach would have had more impact in this case than a change in the law.

 

2.4 The House of Lords amendments are designed to restore a more limited framework for the exercise of compulsory powers and to redress the balance in the Bill between clinical discretion and patient safeguards. However The Minister of State excoriated the House of Lords for failing to grasp the "implications of denying treatment for patients". Yet the Bill, as amended, does not deny treatment to patients. This is to confuse availability and access to services with the need for coercion in order to ensure patients accept services which are offered. It is a serious error. The main function of the health services is to ensure that the appropriate services exist with a sufficient well trained workforce so that people receive the help they need when they need it. Coercive powers do not necessarily achieve that goal and can at times undermine it.

 

2.5 The care and treatment of persons with mental illness is best undertaken on a voluntary basis. As in other areas of medicine outcomes are optimised when patients engage early, when they take a full and active role in their treatment and have trust in their psychiatrist or other professional. "Involving individuals in an effective partnership with healthcare professionals, with all decision-making being shared, improves outcomes"[6].Modern principles of the NHS, as well as NICE Guidelines[7] on mental health support an approach that maximises both early intervention and patient choice as do new forms of community services.[8]

 

2.6 The inappropriate use of the Mental Health Act may do harm. While some patients clearly benefit from compulsory care others do not. The process can involve the attendance of police, the use of restraint to admit the patient to hospital and force to inject him/her with drugs. For a person affected by a frightening illness this can leave a lasting memory of trauma and contribute to lasting ill health. For a patient who disagrees strongly with the admitting psychiatrist it can cause a "lingering sense of grievance"[9]. Large numbers of service users wrote to the Joint Scrutiny Committee on the Mental Health Bill 2004 to express that view.

 

"I fully accept that there are some individuals who do need compulsory treatment. However unless one has been through this experience it is quite impossible to express how degrading and terrifying it is".[10]

 

2.7 Detention in hospital is, inevitably, a major disruption to a person's life. In the context of the 'blame' culture, where every tragedy caused by a patient can potentially be attributed to a psychiatrist's misjudgement, psychiatrists often feel required to section patients, perhaps against their better judgement or the best interests of the patient. It is welcome that the recent "Confidential Enquiry into Homicide and Suicide" calls for an end to the "blame culture" but this Bill is unlikely to assist.

"Enabling people to feel able to seek help early, to talk about their fears and difficulties, without fearing scorn, humiliation or loss of status, freedom, job and friends is the best way to bring about improvement in their health"[11].

 

2.8 Another reason for limiting the use of compulsory powers is the stigmatising effect of the law on a group who are already acknowledged to be the most stigmatised and disadvantaged group in society[12]. Stigma has increased over the last decade[13]. It is puzzling that a government, which has worked so diligently to address this issue, is failing to grasp its significance in the context of mental health legislation[14] Stigma is a serious social and medical problem that contributes to the vicious circle of poverty[15], homelessness, isolation and illness for too many of our patients. The Report on Social Exclusion and Mental Health cited stigma above poverty, isolation and homelessness as the main source of social exclusion. Its impact is likely to be felt most by those from ethnic minority groups who are already disproportionately subject to the Act[16].

 

The assessment of risk

2.9 The Bill relies heavily on the assessment of risk, particularly for those who may pose a danger to others. The assessment of the risk that a patient presents to him or herself or to others is a regular part of the psychiatrist's work and is central to the law. However the prediction of risk, whether by actuarial or clinical methods, is at best an inexact science[17]. Academic literature consistently makes clear that to prevent one homicide it would be necessary to detain many more - up to 2000 or even as high as 5000. In an environment of limited resources to do so is clearly unrealistic and would drastically limit services for the mental health of the vast majority of mental health patients.

 

2.10 The 'National Confidential Enquiry into Suicide and Homicide by people with mental illness' (2006)[18] suggested 30 homicides by people with schizophrenia per year, of whom 15 were in contact with psychiatric services. With these detection rates for schizophrenia, along with a risk assessment process that achieves 80% sensitivity and 80% specificity (still a high estimate), College research estimates a rate of 3,333 false positives per homicide accurately predicted[19].

 

2.11 Most psychiatrists would regard the unnecessary preventative detention of 3,333 patients in order to prevent a single homicide as an unacceptable trade between civil liberties and public protection. There has been a comparable debate outside of psychiatry, in the controversial area of 'standard of proof' for cases of mothers suspected of killing their children. John Hemming, Member of Parliament, has argued (2006) that:

'The standard of proof does matter. If we make the assumption that a particular diagnosis implies homicide in say 75% of cases, then is it really appropriate to convict a parent of murder, when one knows that 25% of the people are innocent. 25% is quite clearly a reasonable level of doubt[20].'

 

If 25% is indeed regarded as a reasonable level of doubt in considering the risk of the murder of a child by a parent, then in schizophrenia one might assume a figure of 3,333 false positives per accurate homicide prediction would be wholly unreasonable. Relatively stable rates of homicide by psychiatric patients over a period of intensive change in psychiatric practice demonstrate that psychiatric practice will only contribute modestly to 'public order' objectives of the Home Office and others. [21]

 

2.12 All the above factors point to mental health law that is clear and unambiguous in the powers it gives to psychiatrists and others, is tightly framed and is balanced between paternalism and autonomy.

 

The amendments in the House of Lords

 

The following sections refer to specific provisions in the Mental Health Bill

 

3. Exclusions (Clause 3)

3.1 The broad definition of mental disorder needs to be balanced by a set of exclusions, as concluded by the Expert Committee on the 1983 Mental Health Act and the Joint Scrutiny Committee[22] In Clause 1(2) of the Bill mental disorder is defined very broadly as "any disorder or disability of the mind". There was one exclusion, for 'dependence' on alcohol or drugs. This compares unfavourably with mental health legislation in other common law countries. In all cases they have narrower definitions of mental disorder and more exclusions[23].

 

3.2 This broad definition has two consequences. First it covers all the diagnoses listed in the WHO International Classification of Diseases, some of which, the government acknowledges, may be inappropriate for compulsory powers. Secondly it potentially covers almost any significant deviation from a "normal" condition of the mind, however temporary. It could cover behaviour that although not listed in ICD10 can be called disordered. There is nothing in the Act that confines the definition to the conditions listed in ICD10 or DSM IV, the American Diagnostic Manual.

The Mental Health Commission has argued cogently

"For the law to be of value-to patients, State administrators, mental health professionals, the police, the courts or the Tribunal-its meaning cannot rest upon the discretion of those working within its framework. We do not find it difficult to envisage the inappropriate use, however well meant, of mental health legislation for non-medical purposes of social control".[24]

 

3.3 From the clinicians' point of view the exclusions are there so that the right questions can be asked. Faced with a distressed and mentally disturbed person behaving or speaking strangely it is important to consider whether the source of the behaviour is misuse of alcohol or drugs, extreme religious or political beliefs, anger causing disruptive behaviour or simply behaviour that in a different cultural climate would be considered normal or at least comprehensible.

 

3.4 As Lord Alderdice said at Committee stage in the House of Lords, the issue of exclusions "brings us to the heart of some real difficulties in applying legislation and the law in general to mental illness".

"without a serious look at understanding issues such as culture, politics, religion, breaking the law, sexual behaviour and so on, we could end up dragging into the net all sorts of people who are not suffering from mental illness in a proper sense and it becomes a question of how we deal with people who are difficult, different or deviant in our society. That is a real problem for colleagues in psychiatry, not least because of a move to diagnosis on the basis of people's behaviour and a set of symptoms, rather then necessarily understanding something more about the depth of the disorder and its likely prognosis".

 

3.5 This move to diagnosis on the basis of behaviour is reinforced in the Bill by the fact that the responsible clinician may come from other disciplines than medicine and that appropriate treatment can include psychological therapies, occupational training and habilitation. While ICD10 is specific about the requisites for a diagnosis of a given disorder, and research follows the same diagnostic criteria, clinicians are less precise about diagnoses and concentrate more on treatment- Thus there is further potential for the boundaries between mental disorder and atypical beliefs, attitudes and life style choices to be further blurred.

 

3.6 The College supports all the exclusions contained in the Lords amendment but we comment in particular on two of them.

 

3.7 Clause 3 (a) 'Misuse' of alcohol or drugs: The Bill provides an exception for dependence on alcohol or drugs. The amendment extends it to exclude people who misuse these substances. People misuse alcohol if they become drunk as a result, they misuse drugs if they take illegal drugs. In both cases this includes a level of intoxication that does not cause lasting harm or dependence. Both misuse and dependence are covered by ICD 10 and are therefore classified as mental disorders. It is therefore necessary that the exclusion is worded to cover both so that compulsion cannot be used solely on the grounds of either binge drinking or the casual consumption of illegal drugs.

The exclusion needs to be worded to cover both so that neither the binge drinker nor the casual consumer of drugs is considered a case for compulsion.

 

3.8 Clause 3(d) Cultural religious and political beliefs In the diverse and rapidly changing societies of British towns and cities psychiatrists face the challenge of understanding and interpreting the thoughts and behaviour of people from different cultural, religious or political groups. The potential for misunderstanding is demonstrated in the history of the use of compulsory powers against African Caribbean's.[25] Disproportionately high numbers of people from BME backgrounds are still diagnosed with major mental illness and detained in mental hospitals or institutions[26] as the government has most recently reported.[27]

 

3.9 It is well documented that African Caribbean's are more likely to be misdiagnosed and diagnosed with psychotic conditions and treated using medication, which is often of higher dosage[28]. Culturally appropriate and acceptable behaviour has also been wrongly construed as symptoms of abnormality[29] or aggression. While this has been the focus of debate and much research there is little evidence that such concerns have led to significant progress, either in terms of improvement in health status or more positive outcomes for black patients[30]. As Professor Kwame McKenzie has stated,

"Given the genetic, cultural and historical differences between African populations and populations of Caribbean origin in the UK it is difficult not to come to the conclusion that their shared high rates of diagnosed psychosis reflect a difficulty that the mental health system has in dealing with people who are black"[31].

 

The broad definition of mental disorder has the potential to increase the numbers further raising the hostility with which traditional psychiatric services are viewed and exacerbating the difficulties in providing good care for those who have great need for it.

 

3.10 The reasoning of the government in response to this amendment was not persuasive[32]. It appears to amounts to a denial that there is a problem, which is belied by the research evidence and it fails to grasp the purpose of the exclusion.

 

4. Impaired decision making (Clause 4)

4.1 Section 3 of the Mental Health Act authorises the detention of the patient in hospital for 6 or 12 months and requires him/ her to submit to a course of treatment with which s/he disagrees. Although it is good practice for a psychiatrist to take account of the patient's views and wishes they are legally speaking immaterial. This contrasts with the position for those with a physical illness[33], a fact illustrated by the following case:

 

C was a detained patient with schizophrenia who had a gangrenous leg. His surgeon advised that his leg needed to be amputated in order to save his life. He refused to consent and, because he retained decision-making capacity, his refusal had to be honoured. His leg recovered. However his ability to make decisions in relation to treatment for his mental disorder does not entitle him to refuse his doctor's advice as to medication for his mental illness. (re C [1994] 1WLR 290)

 

4.2 People may live with episodes of mental illness for many years and are likely to develop knowledge of what works best for them when the illness flares up. This may include choosing coping mechanisms that do not give the immediate relief of drug treatments. For some the prospect of long term use of powerful and potentially harmful drugs is deeply unpalatable. Common side-effects of medication include: serious weight gain leading to obesity (with the associated health risks); impotence; diabetes; disabling, embarrassing, and at times painful, movement disorders and lethargy and feeling 'drugged-up' all the time[34]. A recent major study by the Disability Rights Commission attributed the relatively poor physical health of people with mental illness partly to the effects of the medication[35] for their illness.

 

4.3 In choosing to cope with unpleasant symptoms of an illness rather than even more unpleasant side effects a mental health patient, whose decision-making is not impaired, is not so different from the cancer patient who declines chemotherapy even though he knows it will shorten his life. These choices should be available to the patient with mental illness. A recent study demonstrates that in this situation "doctor knows best" may be a dangerous falsehood[36]. Furthermore there is significant level of uncertainty in the effectiveness of treatments for mental disorder and the likelihood of relapse without them[37].

 

4.4 As the Royal College of Psychiatrists maintained in its evidence before the Scrutiny Committee on the 2004 Bill it is profoundly discriminatory for compulsory powers to apply to mentally-ill people in danger of causing harm to themselves unless it is clear that their ability to make decisions about their disorder and treatment is impaired by the mental disorder[38]. Further for detained patients, there is no true weighing up of harm versus benefit. Doctors do not have to, indeed are not permitted to, listen to patients with regard to the benefit/adverse effects ratio in relation to medication.

"If you're my detained patient, I have to treat your mental disorder before I can discharge you. Whether or not I make you obese or impotent in the process is largely irrelevant - at that time - to both of us."

 

There is clear recognition of a stricter standard than in the 1983 Act in statements from the Joint Committee on Human Rights[39] and in international standards. They include statements by the World Psychiatric Association[40]and the World Health Organisation[41] The Expert Committee on the 1983 Act were committed to a legal framework that would not discriminate between mental and physical illness and thus help to reduce the stigma of mental illness.

 

"Whatever the initial difficulties in refining the concept the Committee is convinced that the notion of capacity has an independent value and meaning the core of which is accepted by all those involved in the operation of mental health legislation. The introduction of capacity in place of the current test of 'appropriateness' should lead to a more precise and objectively justifiable use of compulsory powers".

 

4.5 The Mental Capacity Act provides the basis for capacity to be widely considered for mental health. Assessment of capacity is a regular function of health professionals in relation to consent to treatment for all illnesses - physical and mental. A capacity test has been shown to work with a high level of reliability[42] . Contrary to the government's view, the College is clear that a capacity based approach can be used for people with fluctuating capacity. Any review of a detained patient including an assessment of risk includes an assessment of whether their condition has stabilised and is likely to persist- this includes their judgment and decision making ability.

 

How the test of impaired decision-making ability works

4.6 The College supports the view of the House of Lords (which accepted the conclusion reached by the Joint Scrutiny Committee) that the test of impaired decision-making ability would be preferable to the capacity test.

 

4.7 It imposes a lower threshold than the test of mental capacity in that it may permit a more relative approach. It does not ask whether a person is unable to understand and make a decision in relation to a particular issue, rather whether their ability to make decisions is "impaired" by their mental disorder. The more serious the decision, the less evidence of impairment may be required. The use of different language in this Act will enable it to develop through practice and case law with some divergence if this is necessary. The definition of incapacity in the Mental Capacity Act (as now in common law) is based around cognitive ability and may not so readily deal with emotions. For that reason as well there is additional value in a fairly straightforward concept that is not tied to the definition in the Capacity Act.

 

A seriously depressed patient knows he is ill. He accepts that medication will make him better and that he is at increased risk of suicide or self-neglect without treatment. However he says he doesn't want the treatment because he doesn't deserve to be helped. He is not worthy to live. It is at least arguable that he does not lack capacity under the MCA given his full understanding of the effects of treatment. However all clinicians would agree that his belief about his being unworthy is likely to be due to his depression. His decision is impaired due to his mental disorder.

 

4.8 The identical provision in the Mental Health (Care and Treatment) (Scotland) Act 2003 is explained in detail in the Scottish Code of Practice[43] which states

"This concept is separate to that of 'incapacity' [...] However, when assessing a person's decision-making ability, it is likely that similar factors will be considered to those taken into account when assessing incapacity. Such factors could involve consideration of the extent to which the person's mental disorder might adversely affect their ability to believe, understand and retain information concerning their care and treatment, to make decisions based on that information, and to communicate those decisions to others.[44] 

 

4.9 The Government explained its decision to exclude the concept of impaired decision-making on the ground that there

"would be a risk of people being able to refuse treatment until they were so seriously ill that they would then be covered by the incapacity/impaired judgement criterion and this would result in professionals feeling obliged to use a very wide interpretation of impaired judgement".

 

The College disagrees with this view. The criteria for the exercise of compulsory powers do not at present have a threshold of seriousness. In this respect they are unlike, and wider than, the laws of many other jurisdictions. The Joint Scrutiny Committee also concluded, after hearing evidence on the issue

"We believe that compulsory powers should only ever be used as a last resort when people are very seriously ill, and we do not agree that a person would become too seriously ill before an impaired decision-making criterion is met".

 

4.10 Part III patients. Concerns raised by the forensic psychiatrists in the College led us not to favour a condition of impaired decision making ability for those patients who are offenders or defendants under Part III of the Act. This condition would significantly restrict the possibility of using detention in hospital, or CTOs, for forensic patients who might otherwise remain in secure institutions or receive a criminal justice disposal. It would remove the possibility of transferring a patient to hospital or on to a CTO rather than sending him/her to prison if the patient's decision-making ability was not impaired. Such patients cannot choose informal admission to hospital. This view was accepted by the House of Lords and the amendment which they passed covers only civil patients

 

5. The "treatability" requirement (Clause 5)

5.1 The original Bill removed the current treatability test in the 1983 Act and replaced it with a test of "appropriate treatment" [45]. It created the potential for people to remain under detention but receive no benefit beyond that of being contained in a therapeutic environment. Whatever the intention of the government, it could have led to the law being used as a form of preventive detention[46]. As a result of the House of Lords amendment the "treatability" test is retained but with a different effect. It provides that a person should only be detained if treatment is available which is 'likely to alleviate or prevent a deterioration of his or her condition'.

 

5.2 It overcomes the major difficulty that the government has with the current 'treatability' test. It is said that people with a personality disorder may refuse to accept the psychological treatments that are appropriate for them thereby forcing the psychiatrist, or Mental Health Review Tribunal, to discharge them because they are untreatable[47]. Under this amendment, so long as the treatment is available, whether or not the patient agrees to accept it, s/he can be kept under detention.

 

5.3 The treatability test in the 1983 Act is well established in law and understood by legal practitioners and the courts as well as health professionals. The court's interpretation of treatability is very broad, For instance a person with a psychopathic disorder who was in a high secure hospital was found to be treatable simply because he was contained within a therapeutic environment under the supervision of health professionals[48] So long as being contained in that environment is likely to be some benefit to the patient the test is satisfied[49]. The Joint Scrutiny Committee concluded that under current law it is difficult to envisage many mental health patients whose conditions or symptoms cannot be alleviated or deterioration prevented by some form of clinical intervention, that, in short, the law is extremely broad as it is.

 

5.4 The test does not, as the government has stated, require prediction that a particular outcome will be achieved for the patient but simply a likelihood that the patient's situation will improve or that deterioration will be prevented - and this includes any symptoms of the condition. It does not need to address the underlying disorder. Despite what was said by Lord Warner-[50] this level of predictability is not so different from physical health and is no barrier to detention. The Mental Health Act enables compulsory detention and treatment in hospital for those who need it subject to certain conditions and safeguards. Patients whose condition cannot be helped by admission to hospital would not be admitted voluntarily (to a psychiatric or general hospital. If only because to do so would be to use valuable health service resource for no good purpose). The Mental Health Act should not be used to detain people in hospital if they should not be in hospital at all.

 

5.5 The aim of measures to expand the reach of the 1983 Act is, largely, to protect the public. The College supports this aim. However safety can best be improved by making the service accessible and effective. Public safety in this area of medicine is no different from, for example, in relation to sexually transmitted disease. Because suicide and other risks are assessed clinically, from information given by the patient, it is necessary for the person to feel able to divulge their thoughts without fear that this will lead to their detention... Hence if mental health law is seen to be overly coercive it will lead to patient avoidance of mental health services and, paradoxically, an increase in risk both to the individual and the public.

 

5.6 The Government has failed to provide significant evidence that the treatability test is being misused by clinicians leading to patients with a personality disorder being inappropriately excluded from treatment. More likely has been the lack of services tailored to their needs. Professor Appleby, the National Director of Mental Health has recently acknowledged that there is now evidence that many people with a personality disorder can be treated[51] He cited the major developments of services for people with personality disorder, forthcoming NICE guidelines, and new government policies on the care programme approach which will make it more responsive to the needs of people with personality disorder[52]. These are long overdue and welcome developments. This being so clinicians, or MHRTs, will not be able to exclude such patients from detention on the grounds of the 'treatability' criterion.

 

5.7 The most often quoted case is that of Michael Stone. The independent report into his care and treatment describes the considerable amount of care provided to him, including detention under the Mental Health Act, and informal admission to hospital, over many years. At no point was he excluded from services, or detention, on the basis of his failing to meet the 'treatability' criterion.

 

5.8 Furthermore, cases like Michael Stone represent only a tiny fraction of a much wider spectrum. Personality disorders are common with huge variations in type and severity. The vast majority of people with personality disorders are not violent although they may well need treatment from mental health services. Studies indicate prevalence of 10-13% of the adult population[53], with much higher estimates for the psychiatric population[54].

 

5.9 The College strongly supports the Lords' amendment. If clinicians are forced to detain people who cannot be treated because they are seen as a risk to others those who can be treated will be turned away

 

6. Community treatment orders (Chapter 4)

6.1 There are at present powers, through Section 17 leave or Section 25A-J supervised discharge, for professionals to retain a degree of control over patients whom they release into the community. For those who have been convicted of offences and are deemed to be a danger to the public there are additional controls in the community in the form of conditional discharge orders. These can be useful in providing a graduated return to home life and as a trial release in which the person's readiness for discharge can be tested.

 

6.2 The power of supervised discharge was added to the 1983 Act in 1995 to cover so -called 'revolving door' patients. While it has not been widely used it too has been helpful in cases where the condition of a person's health and the degree of risk makes absolute discharge unwise. The CTO regime however contains additional enforcement powers. A separate order that lasts for 6 months (renewable for 6 and thereafter for 12 month periods), it includes the power to recall a patient to hospital for compulsory treatment without readmitting him/her as a detained patient.

 

6.3 The College does not in principle oppose the introduction of an enforceable CTO in the community. There may be patients who respond well to a CTO, who relapse and become ill when released from hospital and for whom the possible sanction of a return to hospital may be in their best interest and those of the community.

 

6.4 But studies from abroad have not shown CTOs to be a panacea. Indeed the evidence is equivocal as to whether they bestow any benefits on a wide scale[55]. The recent DH commissioned report on international evidence for community treatment orders[56] is the most comprehensive and thorough review of existing research to date. 72 studies spread across 6 countries and multiple jurisdictions were identified and appraised. The methodological quality of the existing research is varied, including stake-holder surveys, before and after comparisons, cohort studies and two randomised controlled trials, with follow up ranging from 6 months to 2 years. In particular: the Report finds that -

1. Stakeholder perceptions of CTOs are mixed with both positive and negative statements expressed about CTOs by all stakeholder groups.

2. The characteristics of patients placed on CTOs across county and jurisdiction is remarkably similar: they tend to be used for male patients with severe mental illness, previous hospital admissions and poor medication compliance.

3. There is no robust evidence that CTOs cause either reductions or increases in outcome measures such as hospital re-admission, violence, symptoms or medication non-compliance.

 

The report also finds that CTOs have significant design differences across jurisdictions.

 

6.5 An examination of the legal framework in jurisdictions across Australia, in New Zealand, Scotland, Canada and in New York, Florida and North Carolina reveals that in all cases the threshold for entry on to a CTO is higher than was the case with the Bill prior to the amendments in the House of Lords.

 

6.6 A constant theme in studies of CTOs is that effectiveness depends upon an intense level of service delivery. The government states that CTOs are a means for patients to receive the care in the community that they need[57] but if this is so increased resources for CTOs may deplete those available for other programmes. This could undermine new and effective new community services already at risk because of the current problems with NHS funding[58] .

 

6.7 The imposition of CTOs will inevitably mean that numbers of people subject to compulsion will rise. Currently all people who are subject to compulsion are ill enough to need to be in hospital therefore if patients are going to be made subject to compulsion who are not ill enough to need to be in hospital they will be in addition to those currently subject to the Mental Health Act. The administration of the CTO regime involves extra time from practitioners to undertake formal assessments, Tribunal reports and attendance at Tribunal hearings.

 

6.8 CTOs refer principally (if not exclusively), to compliance with medication. Other forms of treatment for mental disorder, such as psychological treatments, cannot be enforced through a sanction of compulsory recall to hospital for medical treatment CTOs therefore give the opportunity for the compulsory treatment of patients for long periods of time when they are no longer sufficiently unwell to require hospital treatment. (Under the government's proposals they would only need to require recall to hospital for medical treatment to be placed on a CTO).

6.9 Apart from the issue of the side effects of medication there is the question of the need for its continuation. A recent survey has shown[59] that after a first episode of psychosis, 34% suffer by not taking medication, for 27% it makes no difference (because they will relapse anyway) and 39% will be harmed by taking medication because they would not have relapsed. Psycho-social interventions are most likely to aid people in preventing their relapse.

 

6.10 Patients in the community have returned to lead their daily lives. They should, generally, be entitled to make decisions for themselves. These may include, as it does for people with physical illnesses, a decision to dispense with the medication which doctors prescribe for them. The comparison with physical illnesses is illuminating as the compliance rate with medication is surprisingly low among patients. It has been found for instance that only 8% of patients with heart disease that is potentially fatal take the statins that they have been prescribed[60]. For mental health patients in particular this decision may be because of the side effects which they may understandably find less tolerable than the symptoms of their illness.

 

6.11 Given the equivocal evidence base, the effect on other community services, and the existence of other mechanisms in the 1983 Act the legislative regime for CTOs should be strictly confined to those circumstances in which it is clearly beneficial and necessary.

 

The Scottish experience

6.12 Evidence collected by the Kings Fund[61] indicates that considerable emphasis has been placed on a person having a history of non-engagement and non-compliance, followed by deterioration in health, before a CCTO would be authorised:

"Community orders will not be used in first episodes of illness. There has to be disengagement to prove to a Tribunal that a community order is required. There should be a path of disengagement or lack of engagement pre-existing any such order. [Anyone] applying for a community order must demonstrate a history of non-engagement of services."

 

This was confirmed by the Mental Health Tribunal:

"A Tribunal will not authorise [an order] unless all the conditions are met - doctors don't always understand this. Unless you tell me they are very quickly going to collapse, we cannot authorise a community order. So you have to make the case on [the patient's] history. We [need to be] confident enough the same pattern would occur."

 

The Report concludes that

Although no details of the characteristics of people to date placed under CCTOs have been released, it does seem evident from our interviews that the initial cohort of patients under CCTOs are, very largely, the "revolving door" patients with a history of non-compliance and deterioration that the new arrangements are intended to address.

 

The Bill

6.13 The original Bill proposed very broad criteria for a patient who is no longer ill enough to require hospital care to be placed on a CTO rather than, as at present, being discharged or being given a supervised discharge under s 25A of the Act. The threshold for entry[62] was lower than it is for supervised discharge[63] and lower than that required under the 2004 Bill (at the point of the order).

6.14 A CTO therefore had the potential to capture many more people than those who can be classified as "revolving door" patients. However the Government's stated intention is that supervised community treatment should be introduced as a "positive alternative to detention in hospital" for a small minority of severely mentally ill people currently trapped in the "revolving-door"[64]. Lord Warner stated:

"One thing that has not changed as much as we would like, however, is the continuing number of revolving door patients. They leave hospital, disengage from mental health services, do not continue with their treatment, their health deteriorates and they end up compulsorily detained in hospital. We may have differences in view about the numbers involved, but that is the cycle we are trying to deal with."[65]

 

6.15 The Government's argument for the use of community treatment orders focused on those cases where a person poses a serious risk to others. This is in part as a result of the work of forensic psychiatrists such as Professor Maden whose recent Report[66] has been widely cited. It is considered that they may be particularly advantaged by the blend of supervision, care and control together with the possibility of recall that a coercive outpatient system provides. It is not demonstrated that this is likely to have a direct effect on the number of homicides.

 

6.16 The House of Lords amendment links the previous refusal of treatment which results in admission and the proven benefit to the patient from the treatment proposed. It then requires a relapse to occur because of the failure to continue with the medication. These provisions are based closely on those in section 133(2) of the New South Wales Mental Health Act. It responds to the need for greater control in the community for patients at risk to others and it includes the requirement of impaired decision making ability.

 

6.17 The College agrees that the amendments passed in the House of Lords effectively target the group of patients who may benefit from the CTO regime.

 

There are other issues with community treatment orders which need to be addressed.

 

Conditions

6.18 The College has considerable concern that the conditions which can be imposed on a person under a CTO cannot be reviewed judicially. Unlike the situation in Scotland, and that proposed for the 2004 draft Bill where CTOs operate as a court order, under this Bill conditions are set, and varied, by the responsible clinician without any possibility of appeal against them. The potential interference with a person's private and family life from these conditions includes restrictions on residence and social activities. For this to be unreviewable is in our view unethical and, as reported by the Joint Committee on Human Rights, most likely to be in breach of the Human Rights Act.

 

The Second Medical Opinion procedure

6.19 There remains however a serious medical issue with the community treatment orders in the Bill to which the College wishes to draw the attention of the Committee. These concerns were put to the House of Lords by Lord Patel of Bradford, Chair of the Mental Health Act Commission. The College shares his concerns.

 

6.20 Under Clause 34 of the Bill. within a month of being placed on a CTO, a second opinion appointed doctor (SOAD) will examine the patient and authorise whatever medication he or she thinks is appropriate at the time but also will authorise the treatments to be imposed on the patient should he or she be recalled to hospital. As Lord Patel said [67]

It anticipates that a SOAD, whose role should be to safeguard against unnecessary or unsafe compulsory treatment, will authorise the forced application of medication in circumstances that he or she cannot foresee at some unpredictable point in the future. A patient who has developed dangerous and possibly irreversible side-effects might have them worsened by the further imposition of medication on the authority of the SOAD. A patient with a heart condition might be killed by the imposition of medication authorised in good faith by the SOAD. Alternatively, the patient may have become pregnant, in which case some medications might be dangerous to her or her unborn child.

 

While the clinician giving the treatment to a recalled patient will have a duty of care not to endanger the patient's health it negates the protective role of the SOAD if the only safeguard against a SOAD's authorisation being used recklessly in a context other than that in which it was given is the professional judgment of the treating doctor or nurse. We have negated the point of the SOAD role.

 

6.21 According to the Bill a SOAD who certifies that a community patient consents to treatment would also be enabled to certify what treatments can be imposed on the patient if he or she withdraws consent and is recalled to hospital. This underlines the coercive nature of the CTO regime. As Lord Patel explained it would at the very least breach the principle underlying true consent as set out in the Mental Health Act code of practice, which at paragraph 15.13 states:

"Permission given under any unfair or undue pressure is not 'consent'".

 

The College considers that these provisions are medically unsafe, and unethical and urges the Committee to give proposed amendments their support.

 

7. Renewal of detention

7.1 Under section 3 of the 1983 Act the initial detention for 6 months must be based on the opinions of 2 medical practitioners and an AMHP. Thereafter, according to the original Bill periods of detention of 6 months or 12 months can be authorised by a non-medical practitioner. This potentially removes from the process the 'objective medical expertise' required by article 5 of the European Convention on Human Rights for the determining detention on grounds of mental disorder. It is hard to see how a person who is not considered fit to determine the existence of a mental disorder at the outset of the process is nonetheless qualified to decide whether it persists. From a medical point of view it is likely to require a higher level of expertise to diagnose an illness once the person's condition has stabilised than when s/he is in a state of mental crisis when, while the aetiology of the illness may be uncertain, the disordered state of mind is only too evident. The College therefore considers that for a person's detention to be renewed there should be the agreement of two professionals of requisite status, one of whom must be able to satisfy the test of being capable of providing "objective medical expertise of a kind or degree warranting compulsory confinement"( the so-called Winterwerp test) In the College's view the test requires that one opinion must come from a registered medical practitioner, preferably one who has been involved in the patient's care

 

7.2 When a person is placed on a CTO (Clause 32 inserting 17A (4)) , one is renewed (20A(4)) or a person is recalled to hospital and the section 3 detention is reinstated (17F(4) a further 6 or 12 month period of compulsory treatment will take place. In this situation as well the same requirements should be in place. The College therefore regarded the government proposal to require the responsible clinician to consult a medical practitioner inadequate both from the point of view of clinical practice and compliance with human rights.

 

8. Amendments to the Mental Capacity Act for 'Bournewood' patients

8.1 That the Mental Capacity Act and the Mental Health Act provide overlapping regimes for people with a mental disorder is well known. Some of these are the so called Bournewood patients, who lack the capacity to make their own decisions about their residence, their care and treatment.

 

8.2 Most 'Bournewood gap' patients have little cognitive functioning. They are likely to lack capacity in respect of almost all areas of their life and to require high levels of care and supervision. Many are patients who, but for their compliance with the proposals for their care, would be detained under the Mental health Act. Adequate measures for their protection should have a central place in mental capacity legislation.

 

8.3 Patients receive a lower standard of care and protection if they are detained under one statute rather than the other. For instance, Bournewood patients are likely to be receiving medication and treatment for either/both mental and physical conditions. Under Section 58 of the Mental Health Act there is a statutory second medical opinion procedure for medication beyond three months and for electro convulsive therapy (ECT). The same safeguard should be replicated here. Statutory second medical opinions should be also required for treatment for physical conditions for the same group of serious medical treatments that will be specified in Regulations under section 37(6) of the MCA. The second opinion doctor should be a specialist in the same field as the treatment proposed.

 

8.4 The professionals may be faced with difficult decisions as to which Act to use. The inconsistency between the two Acts and the dilemmas this presents to psychiatrists is highlighted by the position with regard to electro-convulsive therapy. A patient who lacks capacity to consent to ECT and who is detained may only be given it if authorised by the second opinion doctor. If however that patient were not detained the safeguard would not apply. The decision is being taken involving a treatment which carries a significant risk of harmful side effects. If a patient has been unable, because of incapacity, to weigh the risks and the possible benefits and give informed consent a second opinion should be mandatory whether or not the patient is detained.

 

8.5 The College hopes that these anomalies will be remedied as the Bill progresses through parliament.

 

9. Provisions for children and young people

9.1The College welcomed the government amendment to give 16 and 17 year olds the right to consent and to refuse treatment for mental disorder, thus giving them the status of adults in this regard. We also support the Children's Commissioner and the children's charities in their recommendation for this to be extended to 'Gillick competent' children.

 

9.2The most serious problems for children and young people concern the standard of care which they receive, or fail to receive, in the mental health system as either voluntary or involuntary patients[68]. This relates both to the lack of expert attention if there is no specialist in child or adolescent mental health to assess and supervise their care and to the accommodation in which they may be placed. Therefore the College was most satisfied that the House of Lords voted so decisively in favour of requirements that children be accommodated in age appropriate accommodation and that they be assessed and supervised where possible by child specialists.

 

9.3 The recent Report by the Children's Commissioner, ,Pushed into the Shadows[69] demonstrates the serious risks to which children and young people may be exposed when they are placed inappropriately and the damage to their health that can result. It also shows that the level of care on adult wards may fall below acceptable standards given their age and developmental stage.

9.4 The College has joined with the Children's Commissioner and the children's charities in their work on the Mental Health Bill and fully endorses the evidence which they are submitting to the Committee.

 

April 2007

 

 



[1] The number of detentions under the Act rose to 47,400 in 2005-06 from 46,700 in 2004-05. Formal admissions rose to 27,400 in 2005-06 from 26,800 in 2004-05, surpassing the previous peak of 26,900 in 1998-99. In 2005-06 there were 20,000 detentions after informal admission to hospital; compared with 19,900 in 2004-05. This is estimated to be over two fifths of the total of those who were informal or voluntary inpatients. Numbers of patients under detention have risen significantly in the last two decades. There is likely to be at least 14,000 people detained at any one time.

[2] Mental Health (Care and Treatment) Scotland Act 2003 ; Irish Mental Health Act 2001; Mental Health (Northern Ireland) Order 1986; NSW Mental Health Act 1990; Victorian Mental Health Act 1986;Queensland Mental Health Act 2000; ACT Mental Health( Care and Treatment) Act 1986; New Zealand Mental Health (Compulsory Assessment and Treatment) Act 1992; Ontario Mental Health Act; Saskatchewan Mental Health Services Act; Alberta Mental Health Act, New York Kendra's Law: North Carolina Mental Health Act, Florida Mental Health Act

 

[3] Mental Health (Care and Treatment) Scotland Act 2003 ; Irish Mental Health Act 2001; Mental Health (Northern Ireland) Order 1986 ; NSW Mental Health Act 1990 ; Victorian Mental Health Act 1986;Queensland Mental Health Act 2000; ACT Mental Health (Care and Treatment) Act 1986; New Zealand Mental Health (Compulsory Assessment and Treatment) Act 1992; Ontario Mental Health Act; Saskatchewan Mental Health Services Act; Alberta Mental Health Act, New York Kendra's Law: North Carolina Mental Health Act, Florida Mental Health Act

 

[4] The provisions for supervised discharge under section 25A -J which the Bill repeals however apply to a smaller number of discharged patients than will be eligible for a CTO.

[5] Joint Scrutiny Committee on Draft Mental Health Bill Vol 11 Evidence , 5

[6] NICE Guideline Anxiety Management of anxiety (panic disorder, with or without agoraphobia, and generalised anxiety disorder) in adults in primary, secondary and community care.

[7] For instance the NICE Guideline on treatment for bipolar disorder commences "Healthcare professionals should establish and maintain collaborative relationships with patients and their families and carers (within the normal bounds of confidentiality), be respectful of the patient's knowledge and experience of the illness, and provide relevant information (including written information) at every stage of assessment, diagnosis and treatment (including the proper use and likely side-effect profile of medication)".

[8] " Our health, our care, our say: a new direction for community services", DH 2006

[9] "What I needed was an arm around my shoulder not a shot in the arm" Joint Committee on the Draft Mental Health Bill Vol II Evidence 736 Eric Stark

[10] Memorandum from Victoria Hanson, Vol II Joint Committee on the Draft Mental Health Bill Evidence 735

[11] Dr Anthony Zigmond, Vice- President , Royal College of Psychiatrists, Joint Committee on the Draft Mental Health Bill Oral Evidence, 27 October 2004.

[12] Findings of the Mental health and Social Exclusion Unit. Adults with mental health problems are one of the most disadvantaged groups in society. Although many want to work, fewer than a quarter actually do, the lowest employment rate for any of the main groups of disabled people. Too often they do not have other activities to fill their days and spend their time alone. Social isolation is an important risk factor for deteriorating mental health and suicide. GPs spend a third of their time on mental health issues. Prescription costs for anti-depressant drugs have risen significantly in recent years, and there are significant variations in access to talking therapies. Over 900,000 adults in England claim sickness and disability benefits for mental health conditions. This group is now larger than the total number of unemployed people claiming Jobseeker's Allowance in England. Mental health problems can have a particularly strong impact on families, both financially and emotionally. Carers themselves are twice as likely to have mental health problems if they provide substantial care.

[13] The Department of Health's study of public attitudes to people with mental illness found that "levels of fear and intolerance of people with mental illness have tended to increase since 1993" and that "attitudes ...have become less positive between 2000 and 2003"

[14] The Mental Health Act Commission reports, "Of all mental health patients, none are so stigmatised as those who receive treatment under compulsory powers, because of widespread ignorance and fear regarding the purpose and usual causes of detention under the Mental Health Act 1983." MHAC 9th Biennial Report p 72, Para 6.34

[15] Mental Health and Social Exclusion , Citizen's Advice Bureau; 2004

[16] Findings from the first national census of psychiatric wards revealed African Caribbean's are 44% more likely to be detained under the 1983 Act. They are three times more likely to be admitted to psychiatric hospitals, 50% more likely to be put in seclusion and 29% more likely to be forcibly restrained than the rest of the population despite having the same rates of mental ill health as other ethnic groups. Commission for Healthcare Audit and Inspection (2005) Count Me In, Results of a national census of inpatients in mental health hospitals and facilities in England and Wales,; National Centre for Social Research (April 2002) EMPIRIC Report.

[17] Szmukler 2003, Risk assessment: 'numbers' and 'values' in Psychiatric Bulletin 27, 205-207.Munro & Rumgay: 2000. Role of risk assessment in reducing homicides by people with mental illness. British Journal of Psychiatry 176 116-120

[18] "National Confidential Enquiry into suicide and homicide by people with mental illness" (2006). Avoidable Deaths: five year report of the national confidential inquiry into suicide and homicide by people with mental illness.

[19] 'Giving up the Culture of Blame' Risk assessment and risk management in psychiatric practice Briefing Document for the Royal College of Psychiatrists Dr John F Morgan Feb 2007

 

[20] Ibid , cited at p.10

[21] DSPD - DH Review of CPA Department of Health (Reviewing the Care Programme Approach, 2006)

[22] "We conclude that a broad definition of mental disorder in the draft Bill must be accompanied by explicit and specific exclusions which safeguard against the legislation being used inappropriately as a means of social control" Report of the Joint Scrutiny Committee on the 2004 Mental Health Bill volume 1, page 39:

[23] Irish Mental Health Act 2001: Definition "mental illness, severe dementia or significant intellectual disability" Exclusions: a personality disorder or "is socially deviant or is addicted to drugs or intoxicants". Mental Health (Care and Treatment) Scotland Act 2003 section 238 Definition 'mental disorder' means any (a) mental illness; (b) personality disorder; or(c) learning disability. Exclusions sexual orientation; sexual deviancy; transsexualism; transvestism; dependence on, or use of alcohol or drugs; or behaviour which causes, or is likely to cause harassment, alarm or distress to any other person; or acting as no prudent person would act". NSW Mental Health Act 1990 Section 11Definition: "mental illness" means a condition which seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one of delusions, hallucinations, serious disorder of thought form, or a severe disturbance of mood. This includes sustained or repeated irrational behaviour indicating the presence of any one or more of these symptoms. Exclusion: that the person expresses or refuses or fails to express or has expressed or refused or failed to express a particular political religious philosophical opinion, belief or activity, sexual preference or sexual orientation sexual promiscuity, that the person engages in or has engaged in immoral illegal conduct, anti-social behaviour that the person takes or has taken alcohol or any other drug,; Victorian Mental Health Act Definition: section 8 (1A) Mental illness is a condition characterised by a clinically significant disturbance of thought, mood, perception or memory. Similar exclusion to NSW. New Zealand Definition; An abnormal state of mind shown by delusions or disorders of mood, perception, volition or cognition; Exclusions: That persons political, religious, or cultural beliefs; or that persons sexual preferences; or that persons criminal or delinquent behaviour; or substance abuse; or intellectual disability

[24] Evidence to the Joint Scrutiny Committee on the 2004 Mental Health Bill, Vol II Ev 13

[25]Breaking the Circles of Fear, Sainsbury Centre for Mental Health (2002)

[26] Bhui K, Stansfeld S, Hull S, Priebe S, Mole F and Feder G: Ethnic Variations in pathways to and use of specialist mental health services in the UK: Systematic Review. British Journal of Psychiatry (2003), 182, 105-116. Morgan C, Mallett R, Hutchinson G, Bagalkote H, Morgan K, Fearon P, Dazzan P, Boydell J, McKenzie K, Harrison G, Murray R, Jones P, Craig T and Leff J: Pathways to care and ethnicity. I: Sample characteristics and compulsory admission, Report from the AESOP study, British Journal of Psychiatry, 2005, 186, 281-289

[27] Relative to white patients, BME people were over three times more likely to be detained than white people; black patients were nearly four times more likely to be detained; Asian patients were approximately twice as likely to be detained Ethnicity and the 1983 Mental Health Act - a systematic review,

[28] Sainsbury Centre for Mental Health (2002) 'Breaking the Circles of Fear', SCMH; See also the evidence and sources listed in Supplementary memoranda from the BME Network (DMH 445) Joint Scrutiny Committee on the Mental Health Bill, Vol.II.

[29] See for instance in relation to obsessive compulsive disorder as discussed in NICE Guideline Obsessive-compulsive disorder: core interventions in the treatment of obsessive-compulsive disorder and body dysmorphic disorder (2005).

[30] K. Chouhan, M. MacAttram, 'Towards a Blueprint for Action: Building Capacity in the Black and Minority Ethnic Voluntary and Community Sector Providing';   Sharpley M, Hutchinson G, McKenzie K, Murray RM 2001 Understanding the Excess of psychosis among the African-Caribbean population in England. Review of current hypotheses. British Journal of Psychiatry Supplement 40 vol178 ps60-68.

[31] Supplementary memoranda from the BME Network (DMH 445) Academic Paper By Dr Kwame Mckenzie, Senior Lecturer In Psychiatry, Royal Free And University College Medical School Joint Scrutiny Committee on the Mental Health Bill, Vol.II.

[32] "The Government notes that an exclusion of this kind was included by the Scottish Parliament in the Mental Health (Care and Treatment) (Scotland) Act 2003. It is also aware that similar exclusions often appear in equivalent legislation elsewhere in the Commonwealth. However, the Government does not believe that the inclusion of such provisions in legislation would be appropriate. Cultural, religious and political beliefs and behaviours which are not signs or manifestations of an underlying disorder cannot by themselves be mental disorders - so legally such an exclusion would be of no effect (see draft Code paragraph 1B.5). And if they were excluded from the definition this might imply that, but for the exclusion, they would be mental disorders.

[33] The legal position relating to physical treatment was recently spelt out by Dame Elizabeth Butler-Sloss in the case of Ms B (2002):"A competent patient has an absolute right to refuse to consent to medical treatment for any reason, rational or irrational, or for no reason at all, even when that decision may lead to his or her death". Although the judge did not state it, this principle does not apply to the patient with a mental illness.

[34] Parkinsonism, dystonia, akathisia, tardive dyskinesia, hypotension, hypothermia, hyperthermia, neuroleptic malignant syndrome (which may be fatal), drowsiness, apathy, agitation, excitement, insomnia, convulsions, dizziness, headache, gastro-intestinal disturbances, nasal congestion, dry mouth, blurred vision, difficulty with micturition, acute urinary retention, constipation, tachycardia, arrythmias, (including sudden death), menstrual disturbances, galactorrhoea, gynaecomastia, impotence, weight gain, agranulocytosis or leucopenia, (both of which may be fatal), photosensitization, contact sensitisation, rashes, jaundice, corneal and lens opacities, and pigmentation of the skin, cornea, conjunctiva and retina (which may cause blindness).

[35]' Equal Treatment: Closing the Gap, Formal Investigation into Physical Health Inequalities of People with Learning disabilities and/or mental health problems' , DRC 2006

[36]-The research highlighted significant difficulties between doctors and their patients:Doctors were unable to predict who could come off their psychiatric drugs successfully. People who came off their drugs against their doctor's advice were as likely to succeed as those whose doctors agreed they should come off The biggest factor in influencing success incoming off was length of time on the drug. Four out of five people who had been on the drug less than six months succeeded, compared with under half who had been on it more than five years. People who succeeded in coming off their medication most often said: better mental ability, feeling more alive, having taken back power and control, no longer experiencing the adverse effects, and feeling good about managing without the drugs. Mind, Evidence to the Joint Scrutiny Committee extract from Report into Withdrawal from Medication, 2005

[37] As set out in NICE Guidelines : e.g N ICE guideline; The management of bipolar disorder in adults, children and adolescents, in primary and secondary care; NICE Guideline Obsessive-compulsive disorder: core interventions in the treatment of obsessive-compulsive disorder and body dysmorphic disorder (2005)

[38] 'Imagine two people, one with depression and one with cancer. In both cases it is clear that they are able to make rational judgements about their treatment. They both recognise that they are ill and that their illnesses can be treated and that there are consequences to not receiving treatment. In the case of the former the fact he/she has capacity has no relevance and even if fully capable his/her unwillingness to consent can be over-ridden. In the case of the latter it is central and for treatment to proceed without the consent of this person with capacity, would be an assault. Is this right? The position becomes absurd when it is realised that the depressed patient may be entitled to refuse treatment for an accompanying cancer - just not for his/her depression' (A S Zigmond and A J Holland Unethical Mental Health Law, Journal of Mental Health Law, pp. 49-57 February 2000

[39] The Committee, scrutinising the 2002 Mental Health Bill considered the question of discrimination The Committee stated "in principle health, whether mental or physical, would seem to be a type of status and ground of discrimination calling for careful examination and justification. Where a patient is suffering from a condition which seriously impairs his or her mental capacity to choose whether to accept treatment, [our emphasis] there seems to us to be a rational and objective justification for treating that person differently, in relation to decisions about treatment, from someone whose mental capacity for decision-making is not so seriously impaired" Joint Committee on Human Rights , 25th Report. Para 20.

[40] The World Psychiatric Association approved at the General Assembly, August 25, 1996. Article 4 "When the patient is incapacitated and/or unable to exercise proper judgment because of a mental disorder, the psychiatrists should consult with the family and, if appropriate, seek legal counsel, to safeguard the human dignity and the legal rights of the patient. No treatment should be provided against the patient's will, unless withholding treatment would endanger the life of the patient and/or those who surround him or her. Treatment must always be in the best interest of the patient".

[41] WHO MENTAL HEALTH CARE LAW: TEN BASIC PRINCIPLES WHO/MNH/MND/96.9 These include the right to self determination covering the need for consent to medical treatment.

[42] The authors concluded that in combination with a clinical interview, the MacCAT^Test can be used to produce rigorous and highly reliable judgements of capacity Reliability of mental capacity assessments in psychiatric in-patients Cairns, Maddock, Buchanan, David, Hayward, Richardson, Szmukler And Hotopf, British Journal Of P Sychiatry ( 2 0 0 5 )

[43] Code of Practice for the Mental Health (Care and Treatment) (Scotland) act 2003, Volume 1; 31.March 2004; Chapter 1, paras 33 - 38

[44] "Prevalence and predictors of mental incapacity in psychiatric in-patients" Cairns, Maddock, Buchanan, David, Hayward, Richardson, Szmukler And Hotopf , British Journal Of Psychiatry

(2 0 0 5), 18 7,

[45] It defined as treatment "appropriate in the patient's case, taking into account the nature or degree of his mental disorder and all other circumstances of his case".

[46] The JCHR noted in its 2002 Report on the Mental Health Bill 2002, that explicit powers of preventive detention established by the Mental Health (Public Safety and Appeals) (Scotland) Act 1999 had been deemed compatible with the (ECHR) Article 5 by the Judicial Committee of the Privy Council, but pointed to the fact that these powers related only to restricted patients who have been convicted of serious offences and set no clear precedent for patients who have had no contact with the criminal justice system.

[47] Lord Warner, H of L , Debates Mental Health Bill10th January 2007 , Col 308

[48] R v Cannons Park MHRT [1994] stated that a person could be detained if hospital treatment would prevent a deterioration in his condition, make him more co-operative and insightful, or if detention was likely to impact on his symptoms, even if it wouldn't touch the substantive illness. In Reid v Secretary of State for Scotland [1999] the House of Lords stated that the definition of treatment may in some circumstances extend 'from cure to containment'. The case concerned a restricted psychopathic patient whose anger management was improved by the supervision he received in the structured setting of a State Hospital.

[49] "Anxiety might well be felt over the proposition that a sheriff is bound to discharge a psychopath where he is not satisfied from the evidence before him that treatment is no longer likely to alleviate or prevent a deterioration of his condition, so that he no longer qualifies under paragraph (i). In the civil context the balance may properly fall in favour of the liberty of the individual if further detention in hospital can serve no further purpose in alleviation or securing the stability of his condition" Lord Clyde Reid v Secretary of State for Scotland [1999]

[50] H of L Debates, 10 Jan 2007 : Col. 309

[51] National Personality Disorder Conference 18th January 2007

[52] Reviewing the Care Programme Approach, 2006 Dept of Health

[53] 'Personality Disorder: No longer a diagnosis of exclusion' DH 2003

[54] Some studies have suggested prevalence rates among psychiatric outpatients that are in excess of 80 per cent. Between 50 per cent and 78 per cent of adult prisoners are believed to meet criteria for one or more personality disorder diagnoses, and even higher prevalence estimates have been reported among young offenders (Understanding Personality Disorder: A report by the British Psychological Society Feb 2006'[54].

[55] "Evidence that community treatment orders are effective in reducing relapse and readmission to hospital is limited. High quality community services are essential if there is to be a benefit but the better the services the less likely will be the need for community orders". Memorandum from Kings College London Vol II Joint Committee on the Draft Mental Health Bill Evidence 779 The Cochrane Library figures (probably the most respected reviews of the effectiveness of medical interventions in the world) showed 85 patients need to be on a CTO to prevent one admission and over 230 to prevent one arrest. Making the legislation over- inclusive by such a low threshold for entry to a CTO (as explained above) alters the proper balance between clinical discretion and the safeguards of Tribunal review.

 

[56] R. Churchill, International Experiences of using community treatment orders , Institute of Psychiatry, (2007)

[57] Rosie Winterton, GLA Conference , Mental Health Bill , 1 March 2007

[58] Overall staff numbers need to increase by 38% between 2005/06 and 2010/11 to deliver policy.  This includes nearly 4,000 more medical staff and nearly 20,000 more qualified nurses. "Increasing mental health staffing remains a massive challenge for the NHS and social services.  Across all professions and among support staff, recruitment, training and retention need a boost. SCMH


[59] Managing the acute psychotic episode Peter Byrne BMJ  2007;334:686-692, doi:10.1136/bmj.39148.668160.80 Some figures for relapse rates at one year following an episode of psychosis: First episode, no treatment: 61% (i.e. 39% don't relapse)  After 5 or more episodes: 87%First episode with anti-psychotic drug but no psycho-social interventions: 27% (i.e. 73% don't relapse) After 5 or more episodes: 48%This suggests that, Anti-psychotic drug and psycho-social interventions (no figures for 1st episode v 5 or more):Family education 19%Social skills training 20%Both 0%In this study the control group, anti-psychotics only: 38%.Therefore, a) permitting a CTO after a single episode is more likely to lead to patient harm than good, b) if we are really to reduce relapse rates psycho-social interventions (as in NICE guidance) must be available.

[60] Heart 2002 88 229-33.

[61] Simon Lawton-Smith, 'Community-based Compulsory Treatment Orders in Scotland: The early evidence ' The Kings Fund, November 2006

[62] It is necessary for the health and safety of the patient or for the protection of other persons that the patient receives treatment, it can be provided without their continuing to be detained in a hospital; It is necessary for their health or safety or for the protection of other persons that they should be liable to be recalled to hospital for medical treatment

[63] ('substantial risk of serious harm to the health or safety of the patient, or the safety of other persons, or of the patient being seriously exploited').

[64] Department of Health 2006

[65] House of Lords Committee Stage ,17 January 2007

[66]' Review of Homicides by Patients with Severe Mental Illness' Tony Maden, Professor of Forensic Psychiatry, Imperial College London 15th March 2006

[67] Hof L debates Mental health Bill 26 February 2007 Col 1450

[68] The Mental Health Act Commission, Safeguarding children and adolescents detained under the Mental Health Act 1983 on adult psychiatric wards ( 2004)

[69] Pushed into the Shadows: Young people's experience of adult mental health facilities