Memorandum from the Mental Health Alliance (MH 21)

 

1. The Mental Health Alliance is a coalition of 80 organisations working together to secure humane and effective mental health legislation. It consists of all the major stakeholders in the field of mental health.[1]

 

2. The Mental Health Bill as introduced to the House of Lords proposed to widen the circumstances in which hospital admission and treatment can be imposed and provide new powers allowing compulsory treatment in the community. In doing this the Government ignored the recommendations of its own expert committee appointed in 1998 and the Joint Parliamentary Scrutiny Committee in 2004.

 

3. This Bill would not deliver improvements in safety for patients and for members of the public - nor would it improve the quality of services or the level of service users' trust in the mental health system. A Mental Health Act with unnecessary powers is likely to drive people away from seeking help, while new community powers will spread resources more thinly across a growing number of people who come within the scope of the Act.

 

4. There are extensive powers already in the Mental Health Act and the main issues raised by inquiries into suicide and homicide by people with a mental health problem are the provision and coordination of mental health services. Expanding compulsion risks undermining service users' confidence in the capacity of mental health services to help them, and demoralising staff. The Bill as introduced in the Lords contradicts the Government's agendas on patient choice, patient empowerment, race equality and disability equality.

 

Amendments made in the House of Lords

5. The amendments made by the House of Lords would put fair limits on the circumstances in which hospital admission and treatment can be imposed - often forcibly - on people. They would also focus new community treatment powers on those with a history of relapsing (those for whom the Government says the powers are intended) and who are a danger to others. Nothing in the amendments prevents mental health services and clinicians from providing treatment to people who can benefit from it.

 

6. The Alliance considers these changes to be essential improvements to the Bill and that further changes are needed if the Bill is to be made truly fit for the 21st century. These include advance directives, a right to advocacy, choice of "nominated person" or "nearest relative", and a right to assessment of needs.

 

 

The law in Scotland

7. The Bill contrasts with the Mental Health (Care and Treatment) (Scotland) Act 2003, which was developed in collaboration with stakeholders and provides a very different package of rights and duties. Several of the amendments introduced by the Lords feature in the Scottish Act. The Alliance considers the Scottish Act to be vastly superior to the Bill in several important respects. [2]

Race equality

8. The 2006 "Count me in" census shows continuing over-representation of Black and minority ethnic people in the mental health system, particularly in its most coercive aspects[3], which is not explained by prevalence studies of mental disorder.[4] BME groups are less likely to be offered psychotherapy and more likely to be offered drugs and to be treated by coercion.[5]

 

"We have counselling services that we can't get into, psychiatrists that are quick to label us, and we have mental health hospitals that are filled with us".[6]

 

9. The Government's programme Delivering Race Equality can only be part of the answer when much of the inequality is caused by mental health legislation - not only over-representation in admissions but also seclusion, restraint and high security care. The legislation itself must promote race equality, for example through a principle of non-discrimination on the face of the Act, excluding cultural and religious beliefs from the definition of mental disorder, a right to advocacy, restricting community treatment orders, and a right to an assessment.

 

The Lords amendments

 

Exclusions

10. The Alliance supports the changes made by the Lords amendment to introduce exclusions to the definition of mental disorder: substance misuse[7], sexual orientation[8], disorderly acts[9], and cultural, religious or political beliefs[10]. Their purpose is to set boundaries to the legislation, making it clear that no one may be detained solely on these grounds.

 

11. The Alliance considers that exclusions are necessary to provide a check on clinical discretion and protect clinicians and their patients from any pressures to use the Act improperly. They ensure that practitioners consider carefully the basis for compulsory treatment, which is essential in legislation that gives clinicians such extensive powers over individuals' liberty and physical integrity.

 

12. The Government's main objection to this amendment is that it might exclude people from treatment. The only people who would be excluded by this amendment are those with no mental disorder - training and guidance is the proper way to ensure that the law is correctly applied. For example psychosis caused by substance misuse would still be covered by the Act.

13. The Government also claims this amendment could result in premature discharge of dangerous patients. There is no reason for a dangerous person who does not have a mental disorder to be subject to the Mental Health Act - this is the province of the criminal justice system - and there is no reason to believe that a dangerous person with a mental disorder would be discharged on the basis of these exclusions.

 

14. The Richardson Committee,[11] which advised the Government on reform of the Mental Health Act, and the Joint Scrutiny Committee on the Draft Mental Health Bill,[12] both recommended exclusions. They are a feature of the legislation in all the comparable jurisdictions in the common law world, including recent laws introduced in Ireland and Scotland.[13]

 

Impaired decision-making

15. The Lords amendment means that a person with full decision-making capability could not be compulsorily detained as a civil patient. It is a genuinely modernising measure which puts non-discrimination at the heart of mental health law. It brings people who are fully capable into the same position with regard to both physical and mental health treatment - since no-one who is fully capable and is eligible for physical health treatment can be forced to have it. It shifts the doctor-patient relationship away from paternalism - in keeping with the Government's agendas of choice and patient empowerment.

 

16. Mental health treatments involve powerful drugs which may be uncertain in their benefits, damaging in their adverse effects and therefore in some cases do more harm than good.[14] People who are able to make their own decisions should not be compelled to accept such treatments.

17. The concept of "impaired decision-making" is used in the amendment so as to include people in the Act who may be able to reason but whose mental or emotional state impairs their ability to make decisions about treatment. This will include people whose mental disorder is so serious that they are regarded as a danger to others or themselves. A patient with anorexia for instance who believes she is fat clearly has disordered thinking and as a result has impaired decision making ability.

 

18. This approach has been supported or adopted by the Richardson Committee[15], the Scottish Mental Health Act[16], and the World Psychiatric Association[17]. It would also be in keeping with the United Nations Convention on Disability Rights, which the Government has just signed, in particular Article 5 on equality and non-discrimination and Article 17 on protecting the integrity of the person.

 

"Treatability" or therapeutic benefit

19. The Lords amended the Bill to define appropriate treatment (which must be available as a condition of compulsion) as treatment that is likely to alleviate or prevent a deterioration in the patient's condition. This reintroduces a form of "treatability test" which was abolished by the Bill.

20. This is a key point of principle as it ensures that there is a likelihood of therapeutic benefit from compulsory treatment and that the Act is not used as a form of preventive detention. The "treatability test" is already interpreted very broadly[18] but stops short of preventive detention and so is worth retaining.[19] The Lords amendment accepts that treatment must be available (but not necessarily accepted by the patient) and it does not exclude people with personality disorder from compulsory treatment where that would benefit them.

 

21. In the Alliance view, there is no case for detaining people under health legislation to compel them to accept treatment that has no likelihood of benefiting them. Again, the inclusion of a test of therapeutic benefit was supported by the Richardson Committee and the Joint Scrutiny Committee on the draft mental health bill.

 

22. If the Government's objection to the amendment concerns protecting the public from dangerous people who are not able to benefit from any medical treatment , then consideration should be given as to whether or not this requires new criminal justice law. Scotland - whose mental health law includes a test of therapeutic benefit - introduced separate legislation allowing preventive detention. England and Wales already have the Criminal Justice Act 2003 which allows indeterminate detention at the end of the tariff for the protection of the public.

Community treatment orders (CTOs)

23. Of all the Bill's powers, community treatment orders (under a regime of Supervised Community Treatment) evoke the most anger and concern among mental health service users. They see them as an extension of coercion from which it may be very difficult to break free, unduly interfering with their right to run their own lives.[20] There are also concerns that the effect will be to focus services on those under these treatment orders leaving vulnerable people in the community without adequate support.

 

24. The Lords amendment defines the group for whom community treatment orders (CTOs) could be used more closely, ensuring that they apply to "revolving door" patients. Otherwise CTOs could be used very extensively. Although a patient must first be detained in hospital before they can be placed on an order, the conditions for being detained in the first place are very wide indeed. The requirement in the original Bill that it must be necessary for a patient to be liable to be recalled to hospital is too vague.

 

25. The Government's objective is to get treatment to those who need it and it cites CTOs as a means to reducing suicide and homicide.[21] It is uncontentious to want to reduce suicide and homicide,[22] but the means must be effective and acceptable. The report Avoidable Deaths[23] suggests only limited potential for CTOs to prevent some suicide and homicide.[24] The "most preventable" deaths[25] identified in the report were by definition cases where there were other means of supporting the patient and potentially making the death less likely, such as use of the "enhanced care programme approach" and assertive follow-up where a patient missed an appointment.

26. In the report, different legal powers were cited by clinicians in only a very small proportion of cases as possibly making suicide or homicide less likely.[26] They more frequently cited better patient compliance, improved staff communication, closer contact with the patient's family, better staff training, and closer supervision of the patient.[27] The report's recommendations for preventing suicide and homicide include better care in the transition from hospital to home, improved care planning and implementation, and direct contact with people who do not comply with treatment after discharge.

 

27. It could be thought that CTOs would facilitate closer patient supervision and compliance with treatment. However for compulsion to be justified it must be demonstrated that there are positive outcomes of CTOs, and that such legal powers are necessary to achieve the outcomes (not the care content of the provision alone), and that people at risk could be reliably identified such that large numbers of others were not also subject to compulsion. Many people do not comply with medication, often with good reason and not always with adverse results.

28. Research[28] commissioned by the Department of Health and released after the Bill left the House of Lords did not find evidence in favour of CTOs' effectiveness.[29]

29. CTOs' disadvantages include their over reliance on drug treatments[30], and the extent to which they damage the therapeutic relationships with patients[31] and bring a degree of coercion into the delivery of community care.[32] Fears that CTOs may be used disproportionately for BME service users are borne out by the international study.

 

30. In addition there is the difficulty of supervising the conditions imposed while adding to the bureaucratic burdens and costs of mental health services. The Bill allows broad restrictions to be imposed on patients on CTOs - such as telling people where they can and cannot live and when they can go out. This raises the possibility of CTOs being used to control people beyond what is necessary for their helath.

 

31. The Alliance considers that the use of CTOs must be limited to a small number of people who could benefit from such an order. More effective ways to reduce risk include a right to assessment for the provision of services before a crisis point is reached, a comprehensive care plan on leaving detention in hospital, and limiting the use of compulsion as far as possible to increase public confidence that if they seek help they will not be sectioned unless it is necessary and likely to help them.

 

32. The Alliance also considers that the condition of abstaining from particular conduct should be dropped[33] and that patients should, as recommended by the Joint Committee on Human Rights, be able to challenge the conditions imposed on them.

 

Children and young people

33. The Alliance supports the Lords amendment to require health authorities to provide age-appropriate accommodation for under 18s. Speaking in Committee, Lord Patel provided figures for admissions to adult wards and called for urgent action.[34]

34. The Alliance also strongly supports the retention of the Lords amendment to ensure the involvement of child and adolescent mental health specialists in the assessment and treatment of children and young people under the Act, and recommends that "Gillick competent" children under 16 be allowed to consent to or refuse treatment without their parents over-riding their wishes.

 

Renewal of detention

35. The renewal of detention (whether in hospital or under a community treatment order) is just as important as the initial decision to section someone and should not rely on a single clinician's judgement. The amendments passed by the Lords require the agreement of two opinions for these decisions and require one of these opinions to be provided by a doctor.

36. The Mental Health Alliance's view is that there should be two opinions involved in such an important decision as the continuation of detention or of compulsory community treatment, and that one of these must be capable of providing the objective medical expertise required by the Human Rights Act.


Other measures needed

 

Right to assessment

37. One of the most effective ways to reduce the risk of harm to patients and other members of the public would be to ensure that people were able to obtain help when they asked for it. Currently up to a quarter of people are turned away because they are not ill enough and because of a lack of available services.[35] Research about the role of the "nearest relative"[36] found that the power to procure an assessment under section 13(4) of the Mental Health Act "was keenly valued. If they had known of this power and of the ASW and ASW duties, tragedies that had occurred (actual and very serious attempts of suicide) might have been avoided."

38. A right that applied to patients as well as carers and existed outside the context of compulsion could reduce the need for compulsion and ensure timely help for people at an earlier stage making recovery or successful management of the condition more likely.

Right to advocacy

39. Access to an independent advocate would be a very powerful safeguard for patients under compulsory powers, especially during the frightening and distressing process of being sectioned, and when other key decisions are being made about their care and treatment. It has previously been proposed by the Government, in the 2002 and 2004 draft bills, and the Government has indicated that an amendment on advocacy will be put forward. This is of utmost importance to service users and the Alliance looks forward to seeing the Government's proposal.

 

Advance statements

40. Advance statements and advance decisions are an important way of empowering patients and enabling them to convey essential information to clinicians at a time when communication may be particularly difficult. As well as facilitating choice and providing a good chance of arriving at consensual treatment decisions, it may be vital to the patient's safety - people who have had previous adverse reactions to treatment will bring this knowledge to their advance decision-making.

41. Including this provision in the Bill would bring parity with the Mental Capacity Act. The Scottish legislation also allows advance decisions.

 

Nearest relative

42. Research with service users, approved social workers (ASWs) and carers[37] found that the "nearest relative" safeguard was effective if the relationship was good, the nearest relative had the patient's best interests at heart and was able to be assertive. If the relationship was poor or abusive, or the nearest relative did not know the patient, then the provision was "worse than useless and certainly a violation of privacy (Article 8)". Indeed there were instances of manipulations by relatives to force admissions.

 

43. Whilst the identification process "could select the worst person it could also exclude the very best".[38] The system could also impose on relatives who were not well equipped for the role and discriminate against people without a relative.

 

44. The research finding that displacement was "arduous" and "long-winded" for ASWs suggests that the Government's proposed new right for patients to displace their nearest relative will be inaccessible.

45. To a large extent, the problems identified with the "nearest relative" could be addressed by simply allowing patients to choose who will fulfil this role.[39] The Alliance supports an amendment to the Bill that would allow the patient the right to choose their nearest relative.

Conclusion

46. There is a significant risk that the Government's approach to the Bill will undo its good work in recent years of improving mental health services and relationships between service users and providers. There is a real risk of investing in a new regime of compulsion that will have a counter-productive effect - alienating people with mental health problems rather than engaging with them and possibly increasing rather than reducing patient and public safety. It is only by building on the amendments made in the Lords with further improvements that we can achieve a better Act for the next generation.

 

April 2006



[1] The full membership is published on www.mentalhealthalliance.org.uk and listed in the covering note.

[2] The Scottish Act includes principles which set the tone of the legislation and guide its implementation. The "gateway" into compulsion is narrower because there are exclusions from the definition of mental disorder, a test of therapeutic benefit from treatment and a test of impaired decision-making. These apply also to compulsory community treatment orders whose conditions do not include abstention from particular conduct and can be appealed by the patient or their named person. Patient safeguards include choice of "named person" (to support the patient and protect their interests), and rights of access to advocacy, advance decisions, assessments, and admission to appropriate accommodation for children and young people and mothers with babies.

[3] Count me in: results of the 2006 national census of inpatients in mental health

and learning disability services in England and Wales, 2007, Healthcare Commission. Admission rates to mental health wards were three or more times higher than average in the black African, black Caribbean and white and black Caribbean mixed groups. People from these groups were more likely to have been admitted involuntarily, more likely to be admitted via the criminal justice system and those in the black Caribbean group were likely to have the longest stays in hospital.

[4] McKenzie, K and Bhui, K, Institutional racism in mental health care, BMJ 2007; 334:649-650.

[5] Ibid

[6] Jones, R (2007) Dreaming of change, Diverse Minds issue 28.

[7] Substance misuse, as well as dependence (already accepted as an exclusion by the Government because it could be regarded as mental disorder), appears in the World Health Organisation's classification of diseases ICD-10 and therefore it is necessary to exclude substance misuse from the definition of mental disorder.

[8] ICD-10 also includes disorders of gender identity and sexual preference. The Joint Committee on Human Rights expressed concern at the potential for people being detained for example on the basis of gender identity dysphoria or transvestic fetishism, as this would breach Article 8 of the European Convention on Human Rights. They called for principles of non-discrimination on the basis of sexual identity and orientation. The Lords amendment is an alternative way of ensuring only those with "true mental disorder" are detained.

[9] An exclusion of illegal or disorderly acts ensures that people are not considered mentally disordered simply because of offending behaviour and that the role of psychiatry and mental health services is not confused with that of the criminal justice system.

[10] Cultural, religious or political beliefs are all capable of being misinterpreted as (or in some historical contexts considered to be) as mental disorder. Some of the current race inequalities in the mental health system may relate to misunderstandings and misinterpretations of expressions of belief.

[11] Review of the Mental Health Act 1983, November 1999, para 5.17

[12] Report of the Joint Committee on the Draft Mental Health Bill, 2005, paras 95-118.

[13] The Irish Mental Health Act 2001 provides that a person may not be admitted to hospital under its powers by reason only that he/she is socially deviant or is addicted to drugs or intoxicants. The Mental Health (Care and Treatment) Act 2003 in Scotland says that a person cannot be considered mentally disordered for the purposes of that Act "by reason only of 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".

[14] Peter Byrne (2007) Managing the acute psychotic episode, BMJ 2007: 334:686-92 - this review article includes a summary of the research on relapse and recovery after a psychotic episode. While active treatment was more likely to be successful than placebo, still 39 per cent of patients having a placebo did not relapse within one year after a first episode of psychosis, and 40 per cent of all patients with psychosis taking antipsychotic drugs (but with no psychosocial intervention) did relapse within a year.

[15] The Expert Committee set up by the Government to review the Mental Health Act 1983, chaired by Professor Genevra Richardson, and reporting in 1999.

[16] The Mental Health (Care and Treatment (Scotland) Act 2003 includes a criterion that "because of the mental disorder the patient's ability to make decisions about the provision of medical treatment is significantly impaired".

[17] Ethical standards approved by the World Psychiatric Association include Article 4 - "When the patient is incapacitated and/or unable to exercise proper judgement because of a mental disorder, the psychiatrist 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 around him or her. Treatment must always be in the best interests of the patient."

[18] In Reid v Secretary of State for Scotland [1999] the House of Lords stated that the definition of treatment may in some cases extend from "cure to containment".

[19] In the same case, the House of Lords stopped short of permitting indefinite detention without benefit to the patient, and as this case involved a patient convicted of violent offences who was subject to a restriction order it would not necessarily support a similarly wide interpretation in civil cases.

[20] This is evidenced by contributions at public meetings, participation in rallies and lobbying, and many submissions by individuals to the Joint Committee on the Draft Mental Health Bill.

[21] For example, in a press release (12 April 2007) about falling suicide rates the Department of Health stated that, "SCT will ensure that patients in the community who are at risk of suicide will receive the treatment they need".

[22] About five per cent of homicides are committed by people who have had contact with mental health services - the number of such cases has stayed the same (about 50 a year) for the past 50 years. Homicides by people with a current mental health problem have remained at about 30-40 a year since 1997 (according to Home Office figures) while overall homicide rates have increased by around 30 per cent.

[23] Avoidable deaths: five year report of the national confidential inquiry into suicide and homicide by people with mental illness, The University of Manchester, 2006.

[24] Four per cent (56 a year) of the suicide deaths considered by the inquiry and sixteen per cent of the homicides by people who had been in contact with mental health services within a year, involved people who had been detained in their final admission and who died or killed following non-compliance with medication or loss of contact with services. There were a total of 6203 suicide deaths in the inquiry. Overall, 14 per cent of suicides were preceded by non-compliance with medication. The sixteen per cent of homicides in the inquiry represents a rate of eight a year.

[25] There were 759 community-based patients whose deaths were classed as "preventable suicides" (ie those in close proximity to services, especially those whose care was not commensurate with their risk, for example those detained in their last admission who did not receive the enhanced care programme approach. Fourteen per cent of the homicides by people who had contact with mental health services in the previous twelve months (seven a year) came into the "most preventable" category, and again those by people in the community were defined by such criteria as lack of enhanced care programme approach and lack of assertive response on missing an appointment.

[26] Clinicians in the inquiry thought that different powers under the Mental Health Act could have made the suicide less likely in less than two per cent of cases (106 deaths). This was the least cited factor. In three per cent of cases clinicians thought use of the Mental Health Act (ie existing powers) could have made the suicide less likely. Clinicians considered that in 12 cases different powers under the Mental Health Act might have helped prevent the homicide, and in 17 cases use of existing powers could have done so.

[27] The order given in the text is for homicide; in the case of suicide the most frequent suggestions were closer patient supervision (26 per cent), better patient compliance with treatment (24 per cent) and closer contact with the patient's family (16 per cent).

[28] Churchill, R, Owen, G, Singh, S, and Hotopf, M (2007) International experiences of using community treatment orders, Institute of Psychiatry, Kings College London.

[29] This most comprehensive study of CTOs to date concluded, "..there is very little evidence to suggest that CTOs are associated with any positive outcomes and there is justification for further research in this area. In terms of outcomes research, CTOs need to be compared with alternative interventions for which there is already good evidence of efficacy, or which might be more acceptable to patients and service providers."

[30] Moncrieff & Smyth, Community treatment orders- A Bridge Too Far, 1999. Psychiatric Bulletin 23, 644.

[31] Dawson, 2002; Ambivalence about CTOs, Institute of Psychiatry IJLP 2003, 243-255.

[32] Studies have shown that when benevolent treatment and coercion operate together, coercion tends to become pervasive and treatment remains nominal. If this result is replicated, it is clearly a serious objection. It could impact most on people from black and minority ethnic backgrounds. Hoyer & Fernis: Out patient Commitment: Some reflections on ideology practice and implications for research, 2001. Journal of Mental Health Law 1, 56-62

[33] This was not found necessary for the Scottish legislation and it makes the provision like a "psychiatric ASBO".

[34] Between April 2003 and October 2006 the Mental Health Act Commission received 1,308 voluntary notifications of under 18s admitted to adult wards under the Mental Health Act, a rough average of one admission every day over the three and a half year period. Just over half of these admissions to adult facilities were 17 year-olds, with most of the remainder being 15 or 16. There were also examples of younger children being admitted to adult facilities under the powers of the 1983 Act, involving 22 14 year-olds, three 13 year-olds and two children under the age of 12. Care packages were often inadequate despite the best intentions of staff. 15 Jan 2007, Column 550

[35] Rethink (2003) Just one per cent: the experiences of people using mental health services.

[36] Rapaport, J (2004), A matter of principle: the nearest relative under the Mental Health Act 1983 and Proposals for Legislative Reform, Journal of Social Welfare and Family Law, 26(4): 377 - 396.

[37] Rapaport, op cit

[38] Ibid

[39] Rapaport writes (in the context of the 2004 draft bill) ".. ASW problems in ascertaining the nearest relative's true motives strongly suggests that the patient should initially have full autonomy to choose the nominated person, and not have to defer to AMHP approval, with provision to alter the arrangement at a later date if hard evidence shows this to be necessary."