Memorandum submitted by MIND (MH 18)

 

Mind's vision is of a society that promotes and protects good mental health for all, and that treats people with experience of mental distress fairly, positively, and with respect.

 

The needs and experiences of people with mental distress drive our work and we make sure their voice is heard by those who influence change

 

Our independence gives us the freedom to stand up and speak out on the real issues that affect daily lives.

 

We provide information and support, campaign to improve policy and attitudes and, in partnership with independent local Mind associations, develop local services.

 

We do all this to make it possible for people who experience mental distress to live full lives, and play their full part in society.

 

Being informed, diversity, partnership, integrity and determination are the values underpinning Mind's work.

 

 

1. Introduction

 

1.1 Mind is a founder member of the Mental Health Alliance and has helped formulate the Alliance's policies since 1999. Our contribution to the campaign for better mental health legislation has been shaped by what mental health service users in our various networks[1] have told us.

 

1.2 Mind is disappointed at the many missed opportunities in the Bill, to:

replace the "nearest relative" with a "nominated person";

give legal status to advance decisions;

introduce a right to assessment of health and social care needs;

introduce a right to advocacy (as included in the 2002 and 2004 draft Bills);

restrict the use of police cells as "places of safety";

introduce a set of overarching principles to the 1983 Act;

provide more stringent treatment safeguards;

tackle discrimination and promote race equality;

strengthen measures to divert offenders with a mental disorder from the penal system to the hospital system;

provide stronger safeguards for "Bournewood" patients.

 

1.3 Mind welcomes improvements made to the Bill in the House of Lords which:

add exclusions to the definition of mental disorder so that people are not detained solely because of substance misuse, sexual identity/ orientation, involvement in illegal/ disorderly acts or cultural, religious or political beliefs;

ensure that people with full decision-making ability cannot be forced to have treatment imposed upon them against their will;

provide that a person can only be detained if treatment is available which is likely to alleviate or prevent deterioration of their condition;

limit the use of community treatment orders (CTOs) to 'revolving door patients' with a history of relapsing after discharge from hospital and who are a danger to others;

place a duty on health authorities to admit children to an age appropriate setting and provide specialist assessment and supervision for detained children.

 

1.4 These have produced a better balance between the power of the state and the rights of individuals and safeguards for them. We very much hope the House of Commons retains them.

 

2. Reform of the law

 

2.1 One overriding message has emerged from our networks about plans to reform the Mental Health Act. It echoes the finding of the Joint Scrutiny Committee on the 2004 draft Mental Health Bill: "The primary purpose of mental health legislation must be to improve services and safeguards for patients and to reduce the stigma of mental disorder."[2]

 

2.2 The Government disagrees. "The Bill is not about service provision. It is about the legal processes for bringing people under compulsion."[3] We believe this approach leads to valuable resources being diverted away from services that have been proven to work, towards reinvestment in the implementation of measures that do not have an evidence base.

 

2.3 The Government's approach focuses too much on the perceived risks posed by people with mental distress, and ignores the risks involved in detaining too many people, for too long, in non-therapeutic environments. It increases stigma, rather than tackling the discrimination, race inequalities and postcode lotteries that affect people's experience of mental health services.

 

2.4 In 2006/7, we learnt the following:

 

Excessive use of compulsory powers: use of the Mental Health Act is increasing each year, with a 1.5 per cent increase last year alone, leading to a record high in the number of people detained in 2005/6.[4]

Race inequalities: Black groups are 38 per cent more likely to be detained under the Mental Health Act, and Black men are 57 per cent more likely to be held in seclusion.[5]

Age-inappropriate care: Almost 20 per cent of children with mental health problems are held on adult psychiatric wards[6]

Use of mixed sex wards: 55 per cent of patients were accommodated in mixed-sex wards in 2006.[7] 75 per cent of girls under 18 admitted to hospital for mental health problems are placed on mixed sex wards.[8]

Patchy coverage of out-of-hours crisis care: In 2006, only 49 per cent of service users reported having the phone number of someone from their local NHS mental health service to contact out of office hours[9], although the NHS Plan set out a model for delivery of round-the-clock crisis care across England in 2000[10].

Lack of supervision of care packages: Only 51 per cent of service users report having a care review in the last 12 months, although every service user should have at least one review a year.[11]

Failure to inform service users of their care plan: only 45 per cent of service users with a standard care plan and 71 per cent of those with an enhanced care plan said they had been offered a copy, although every service user should have one.[12]

Lack of regard for patient safety: 45,000 mental health incidents were reported to the National Patient Safety Agency between 2003-5, most of which occurred in in-patient units.[13] These 'incidents' included patient accidents, disruptive/ aggressive behaviour, self-harm, patient abuse by a third party including sexual abuse, and medication incidents.

 

2.5 The Mental Health Bill could address all of these issues, and the Lords' amendments do address some of them. We can:

 

Restrict the use of compulsory powers by

a) excluding from the Act people who do not have a mental disorder;[14] and

b) tightening the criteria for compulsion so that people who have full decision-making capacity or for whom no effective treatment is available cannot be detained[15];

Address race inequalities through:

a) a statement of principles of race equality and non-discrimination on the face of the Bill[16];

b) an exclusion to the definition of mental disorder for religious, cultural or political beliefs[17];

c) a right to an advocate to ensure a patient's culture and beliefs are articulated and respected; and

d) restriction of the eligibility criteria for CTOs to prevent disproportionate use on Black and ethnic minority groups[18];

Address poor standards of care, such as mixed sex wards, failure to review care plans and failure to consult the patient, and increase access to justice where incidents occur, by ensuring that anyone detained under the Mental Health Act has the right to a mental health advocate;

Improve crisis care by restricting the remit of CTOs which may divert money from community services, and invest instead in assertive outreach, crisis intervention and home treatment services;

Ensure services are age-appropriate[19].

 

3. Community treatment orders

 

3.1 If there is one measure in the Bill that alarms service users it is CTOs[20]. Service users fear that they will be over-used; make it more difficult to manage the often severe side effects of medication; be used disproportionately on members of BME communities; be unworkable in rural areas; be harmful to therapeutic relationships; and divert resources away from services.

 

3.2 As a result of the concerns voiced to Mind, we have concluded that CTOs will not protect the health and safety of the patient or others. Even if only used on a strictly defined group and accompanied by stringent safeguards[21] we believe their use is unacceptable.

 

3.3 We draw the Committee's attention to the 2007 systematic review of literature on CTOs, commissioned by the Department of Health. The review considers the international evidence and concludes that there is "no firm evidence to support the introduction of a CTO policy in England and Wales".[22]

 

Mary's experience

 

"I was put under section, then I was put under medication. I was discharged. The medication had absolutely horrific side effects, which got worse, and when I said that I didn't want to take it, I was put under another section and forced to take it. I felt as though my skin had been peeled back and all my nerves were exposed. I felt as though electric shocks were being put through me. This went on for two or three months. I was told I would get used to it.

 

"In the end I was able to get off the section and off the medication because with help I was able to explain to the psychiatrists calmly and rationally what it was doing to me. Because I was calm and rational, they saw not only that I did not need the medication, but also that I did not need to be on a section.

 

"These days I manage my illness via my local Mind and with the help of people I've met here. I won't approach psychiatric services because of the horrific way they've treated me in the past [...] If I'm having problems I don't go to my GP, because I don't want to be sectioned."

 

4. How CTOs would affect Mary's experience:

 

4.1 Under the Mental Health Bill as amended in the House of Lords, Mary would have been eligible for a CTO because after being discharged and failing to comply with prescribed treatment, she relapsed and was readmitted to hospital. How would CTOs have affected her treatment?

 

Her hospital admission may have lasted just one day, whilst treatment was administered and a CTO ordered. This may not be enough time for a clinician to assess Mary's individual circumstances, and might lead to care planning based on assumptions rather than a full assessment of need.

The order would require Mary to comply with treatment in the community, despite the adverse effects she was experiencing.

The clinician would not have been required to consult Mary about her home life, concerns about medication or what she might like to see in her care plan. Mary's power to articulate the adverse effects she was experiencing would be much reduced whilst under compulsion. Coercion undermines the need to negotiate - this can lead to a poor relationship between the clinician and patient and poor decisions being made. In Mary's case, this includes continuing to prescribe medication that was causing more harm than good.

Coercive powers reduce the incentive for clinicians to trust the patient. Mary did not comply because of the effects of her medication, rather than because of unwillingness to co-operate. Would this have blotted her copybook for the future, singling her out for greater reliance on coercive methods if she should experience relapse?

Mary would have been medicated using depot (slow-release) injections to reduce the resource implications of medication supervision in the community. If Mary was able to explain that the medication was affecting her health, she would nevertheless have had to endure adverse effects for a period of weeks before the medication stopped acting.

There would be no way of enforcing conditions in the community, beyond persuasion by clinicians, carers and family. If Mary failed to comply with treatment, however, she would have been returned to hospital.

Mary may have been under compulsion for longer. The CTO may have lasted six months, as when Mary's health improved she would still run the risk of relapse if she failed to comply with treatment. Given the stigma associated with sectioning, this could have hampered Mary's recovery. Mary's fear of services would be even more pronounced than it currently is.

 

5. Advocacy

 

5.1 If there is one provision that will enable the Bill to uphold the dignity and rights of service users, it is the right to an independent mental health advocate.

 

5.2 The Government proposed to do this in the 2004 Draft Mental Health Bill, and indeed in the 2002 Draft before that. It continues to fund work originally commissioned to support implementation of the 2004 proposals, including the development of a national qualification for mental health advocates, a good standards guide and national advocacy database[23]. Such a move would bring the mental health system in line with Scottish law[24] and the Mental Capacity Act 2005, which created a right to mental capacity advocacy.

 

5.3 The Government has committed to tabling an amendment on advocacy in the House of Commons, and we await this eagerly.

 

Emma's experience

 

Emma was picked up by police from a neighbour's house and taken to hospital with suspected puerperal psychosis, shortly after giving birth. She was very distressed, couldn't trust anyone and was scared that her husband was responsible for the section. On the ward she had no access to her mobile phone, wasn't told much and was given medication which made it difficult to keep a grip on things. When she asked questions and for money for phone calls she was accused of being argumentative and her medication was increased.

 

Weeks later, Emma saw a poster for an advocate on the ward; the advocate was able to give her information about her diagnosis and advise her on how to appeal against the section. With her help, Emma's section was lifted. There was a lot of friction between the advocate and staff, who saw her as an interference. Emma feels that if she had had access to an advocate from the start, she would have felt more in control and would not have been sedated to stop her asking questions. If she had had an advocate when she was first picked up by police, she might have agreed to being admitted voluntarily, avoiding the use of compulsion entirely.

 

 

6. How a statutory right to advocacy would affect Emma's experience:

 

6.1 If a statutory right to advocacy were enshrined in legislation, the authorities would have been under a duty to inform Emma of her right to an advocate when:

the police picked her up;

she was admitted to hospital;

she had concerns over treatment and care decisions (including her fears about being over-medicated to "shut her up" and when she wanted to contact people outside the ward);

she wished to challenge her detention.

 

6.2 The authorities would have needed to arrange for an advocate to be available, at Emma's request, at any of these points and to allow the advocate access to the ward, and to a private space, for this purpose.

 

6.3 Emma would have benefited in a number of ways:

She would have been given information about what was happening and why she was being taken to hospital in a format that was accessible to her;

She would have had an independent and supportive presence on the ward that did not represent either the authorities or her family, whom she felt unable to trust;

She would have been informed of her rights, including the rules for contacting people outside the ward, and her right to advocacy;

She would have had the power to exercise her right to appeal.

 

7. Rural impact

 

7.1 Ten million people live in rural communities in England and Wales. The impact of the Bill on these service users, carers and service providers has not been considered. The Regulatory Impact Assessment and associated costings make no reference to rural communities and related issues such as access, information, transport, choice and equity. Yet, for example, a member of a rural community mental health team involved in supervising CTOs may spends two hours a day travelling, and could not manage the same caseload as a colleague in an urban area.

 

7.2 A considerable body of work has been conducted in recent years by various organisations, providing evidence of differences in rural communities, and considering solutions to many of the issues. It concludes that rural issues must be considered at an early stage to identify rural problems and find solutions.[25]

 

7.3 Mind believes that serious consideration must be given to the impact of the Bill on rural communities before it is adopted, to ensure fairness and equity. There must be meaningful dialogue with rural stakeholders (including rural Police Services, service providers and service users) to highlight the issues and identify the most appropriate solutions. Mind believes that if this is not done then inequalities will arise.

 

8. Impact for Wales

 

Approved Mental Health Professionals

8.1 Mind is concerned about the training and experience requirements for Approved Mental Health Professionals (AMHPs) and would seek reassurance that they would be at least equivalent to those required for Approved Social Workers. Nevertheless, Wales has distinct challenges with regard to social work vacancies and we would seek assurance that this would not adversely affect the standards required of AMHPs in Wales, nor impact on service delivery outside of statutory provision.

 

Community Treatment Orders

8.2 Given acknowledged differences in service provision across Wales, coupled with high rates of delayed transfers of care, or "bed blocking"; there is added potential that people will be treated differently under the Act in different parts of Wales, for no other reason than availability or otherwise of community or hospital-based mental health services.

 

Advocacy

8.3 The needs of Welsh language, British Sign Language and other minority language speakers must be taken into account when addressing Independent Mental Health Act advocacy.

 

Code of Practice

8.4 The Code of Practice must reflect the context of mental health services in Wales. We believe that the Wales Code of Practice must not merely reflect the Code for England, but must ensure the highest standards of interpretation of the Act for those patients detained in Wales.

 

Constitutional Issues for Wales

8.5 The Governance of Wales Act 2006 makes provision for further delegation of powers to the National Assembly for Wales from May 2007. As health and social care are devolved functions, a constitutional argument may follow for separate legislation in Wales, or for the provision of a Measure to be made. At Mind Cymru's autumn North Wales Conference[26] a panel of Party Political Health Spokespersons responded to Mind Cymru's Manifesto to this effect.[27] In addition the Presiding Officer has called for an agreement by which "all new Westminster Acts covering devolved matters would automatically empower the Assembly to decide how the law would be applied in Wales".[28]

 

8.6 Currently there is no consistency about when such "framework powers" are granted to the Assembly. As mental health is a top health priority of the National Assembly for Wales, Mind Cymru would want to see parity between mental health and other delegated matters.

 

April 2007

 

 

 

 



[1] These include 200 local Mind associations across England and Wales; Mind Link, a network of 1500 service users; Mind in Action, a network of 2000 individuals and organisations committed to campaigning on mental health issues; Diverse Minds, our black and minority ethnic network; Rural Minds; and our Mind membership.

[2] Report from the Joint Committee on the Draft Mental Health Bill (HL Paper 79-I HC 95-I), Session 2004-05, published on 23 March 2005

[3] Government Response to the Committee's Report (Cm 6624), published by the Department of Health on 13th July 2005 (ISBN 0-10-166242-4)

[4] The Information Centre, Mental Health Statistics: 2006. Statistical Bulletin: In-patients formally detained in hospitals under the Mental Health Act 1983 and other legislation, NHS Trusts, Care Trusts, Primary Care Trusts and Independent Hospitals, England; 1995-96 to 2005-06.

[5] Healthcare Commission: 2006. Count me in - Results of the 2006 national census of inpatients in mental health and learning disability services in England and Wales.

[6] http://www.timesonline.co.uk/tol/news/uk/health/article1624322.ece

[7] Healthcare Commission: 2006. Count me in - Results of the 2006 national census of inpatients in mental health and learning disability services in England and Wales.

[8] http://www.timesonline.co.uk/tol/news/uk/health/article1624322.ece

[9] Healthcare commission: 2006. Community Mental Health service users survey.

[10] Department of Health: 2000. The NHS Plan, A plan for investment, a plan for reform. London: HMSO.

[11] Healthcare commission: 2006. Community Mental Health service users survey.

[12] Healthcare commission: 2006. Community Mental Health service users survey.

[13] NHS National Patient Safety Agency: July 2006. With safety in mind: mental health services and patient safety. Patient Safety Observatory Report 2. Given that there is significant under-reporting of incidents, the data is very likely to represent an underestimate of the true rate of incidents on inpatient wards. It does, however, highlight the need for greater measures to improve the safety of inpatient facilities.

[14] The Mental Health Bill as amended by the House of Lords excludes from the definition of mental disorder: substance misuse, sexual identity or orientation; commission or likely commission of illegal or disorderly acts and cultural, religious or political beliefs.

[15] The Mental Health Bill as amended by the House of Lords contains an impaired decision-making clause which Mind and the Mental Health Alliance support.

[16] The Mental Health Bill currently includes a clause requiring the Code to specify a number of guiding principles. Mind and the Mental Health Alliance do not believe that this is enough, and would like to see a set of principles on the face of the Bill, to which practitioners must have regard.

[17] The Mental Health Bill as amended by the House of Lords contains such an exclusion.

[18] The Mental Health Bill as amended by the House of Lords restricts the use of CTOs to "revolving door" patients who are considered to be at serious risk of causing harm to others - this narrows the discretion allowed to clinicians and would help prevent discriminatory practice.

[19] The Mental Health Bill as amended in the House of Lords includes such a provision.

[20] Also known as Supervised Community Treatment (SCT)

[21] The Mental Health Bill as amended by the House of Lords restricts the use of CTOs to a tightly defined group of revolving door patients who are at serious risk of causing harm to others. We welcome this step forward.

[22] Churchill R, Owen G, Singh S, Hotopf M: 2007. International experiences of using community treatment orders.

[23] See www.goodadvocacypractice.org.uk for more information about the Independent Mental Health Act Advocacy (IMHAA) project.

[24] Scottish Mental Health (Care and Treatment) Act, 2003.

[25] Mind briefing for MPs, March/April 2007. Mental Health Bill 2006: A Rural Perspective

[26] Llandudno, 23 November 2006

[27] www.Mind.org.uk/About+Mind/Mind+Cymru/Mind+Cymru+Manifesto.htm

[28] Western Mail, Friday 12 January 2007.