Memorandum submitted by the British Medical Association (MH 27)
1. The British Medical Association (BMA) is an independent trade union and voluntary professional association which represents doctors from all branches of medicine all over the UK. It has a total membership of over 138,000.
2. The British Medical Association is an associate member of the Mental Health Alliance, which brings together many organisations from across the mental health spectrum.
3. Following the developments of the Bill in Lords, the BMA welcomes the amendments that were made to the Bill since it was first published. The BMA maintains that the legislation should promote the highest clinical and ethical standards of practice and should ensure that patients are not discouraged from accessing mental health services when needed.
4. Approaching the legislation from the perspective of medical ethics entails identifying as far as possible the extent to which it is designed to deliver overall benefit to those patients subject to its powers. Historically, however, mental health legislation has always had a number of competing and at times openly conflicting objectives. Primarily the 1983 Mental Health Act is concerned with managing the deprivation of liberty of mentally disordered individuals rather than in the explicit promotion of mental health.
5. The 1983 Mental Health Act also covers a diverse population and a variety of mental disorders, and its powers extend to the management of mentally disordered offenders. It is this overlap with the criminal justice system, and the requirement that in certain circumstances it be used to manage risk, that has been at the root of many of the ethical difficulties associated with the legislation. Health professionals working with the 1983 Mental Health Act may find themselves subject to dual loyalties, as they try simultaneously to promote the best interests of their patients, and to protect the public interest by restraining mentally disordered individuals who may pose a risk to others.
6. Another important aspect of any legislation that permits compulsion is the requirement that the use of its powers be independently scrutinised. Clearly this extends further than specifically medical ethics to broader issues of social justice. These two areas - risk management and independent scrutiny - were behind many of the criticisms of the two draft bills and remain active areas of concern in this amendment bill.
The Government's proposals
7. The BMA believes that the inclusion of a robust set of principles rooted in ethics and the reality of psychiatric practice would be helpful in guiding practitioners providing care and treatment under the Bill. There is now a clear precedent for the incorporation of principles on the face of legislation. The Mental Health (Care and Treatment) (Scotland) Act 2003, the Adults With Incapacity (Scotland) Act 2000 and the English Mental Capacity Act 2005 all incorporate principles on the face of the legislation. It is disappointing that given the consensus during debates in the Lords, the Government has not placed principles on the face of the 1983 Act.
Definition of mental disorder
8. The definition of mental disorder and the conditions that must be met are central to the operation of the new Bill because they identify the group of individuals who can be subject to its powers. The Government intends to introduce a single definition of mental disorder, abolishing the categories listed in the 1983 Mental Health Act and removing most of the exclusions. The Government's cites historical anachronism as the justification for removing the exceptions in relation to promiscuity or sexual deviancy. While this feels broadly right, the Government has also stated that the exclusion in relation to sexual deviance has prevented the detention of people with sexually deviant behaviours who should fall under the Act. The Government has indicated that it aims to ensure that paedophiles can be treated under the legislation.
9. The BMA welcomes the fact that the Lords voted to rule out the use of substance misuse, sexuality, criminality and cultural or religious beliefs as grounds for diagnosing 'mental disorder'. However, the BMA believes that the broad criteria for mental disorders and the lack of appropriate exclusions would extend compulsory powers to individuals for whom no therapeutic benefit can be provided.
Criteria for compulsion
10. Both draft bills and the proposed amendment Bill remove the 'treatability' test in relation to psychopathic disorder and mental impairment - i.e. the requirement that treatment must be available that is likely to alleviate or prevent a deterioration of the patient's condition. This is to be replaced with a test that "appropriate treatment" must be available. Treatment includes nursing, care, cognitive therapy, behaviour therapy, counselling or other psychological intervention, habitation (including education, and training in work, social and independent living skills) and rehabilitation.
11. This is the central ethical issue in relation to the legislation. In the BMA's view, the "appropriate treatment" test is too broad. By removing the 'treatability' criterion, the potential is raised for confining people under the legislation, even where health benefit cannot be provided. As a result, the legislation can be used as a means of coercion, rather than as an instrument to provide necessary health services to mentally disordered individuals. The BMA strongly advocates the inclusion of a requirement that the use of the legislation must provide therapeutic benefit.
12. Therefore, the BMA supports the amendment voted at Lords Report Stage that a person should only be detained for treatment if treatment is available that is "likely to alleviate, or prevent a deterioration in his condition."
Supervised community treatment
13. The Government intends to introduce provisions to allow compulsory treatment in the community for some patients following a period of detention in hospital. The purpose of supervised community treatment (SCT) is to target those 'revolving door' patients who do not continue with their treatment after leaving hospital and whose health deteriorates to the extent that they require readmission. The BMA supports this development subject to the use of safeguards. The use of supervised community treatment must, for example, be very closely focussed on those who have had multiple admissions. We therefore believe that the Government's desire to make any patient subject to SCT after a single admission to a psychiatric hospital is not evidence based and therefore misplaced.
14. Moreover, further clarification is needed regarding the treatment of children and adolescents in the community. It is essential for looked after children and adolescents with mental health disorders to have correctly adapted community treatment in place for them.
15. Traditionally, certain areas of expertise in mental health service delivery have rested with psychiatrists as a consequence of their highly specialised training. The Government is proposing to widen roles within the amendment bill. For example, the Government is seeking to broaden the group of practitioners who can take on the role of the approved social worker (ASW) and responsible medical officer (RMO). The ASW will be replaced by the Approved Mental Health Professional (AMHP). The functions will remain the same as in the 1983 Act but will be opened up to a wider group of professionals such as nurses and occupational therapists. However, in order to sustain the highest standard of care, there are crucial issues to address including training.
16. The RMO will be replaced by the responsible clinician and will be opened up to appropriately trained professionals including psychiatrists, psychologists, nurses, social workers and occupational therapists.
17. The BMA welcomes moves within the Bill to promote greater multidisciplinary working in mental health service delivery. However, it is important that any future move to widen professional roles within the Bill ensures that the highest standards of patient care are maintained.
18. The BMA feels very strongly that psychiatrists should remain central to any decision to detain and treat psychiatric patients because they are trained in both medical and psychiatric problems and very often severely mentally ill patients have both. The BMA believes that a suggestion that other professionals consult a psychiatrist is not a sufficient safeguard for patients. Therefore, the BMA welcomes the amendment voted at Lords Report Stage that patients' detentions can only be renewed after they are examined by a medical practitioner.
19. Psychiatric patients who are detained under the Mental Health Act must receive the best standard of multidisciplinary care possible, and these patients must have their psychological, social and physical needs attended to at all possible levels. This can only be achieved if a consultant psychiatrist has overall responsibility for their care while they are a subject to such detention, even though in most cases, the majority of their care might be provided by a non-medical practitioner. The responsible clinician should be a consultant psychiatrist and the approved clinician can also be a consultant psychiatrist but in most instances will be a nurse or psychologist.
20. The central ethical concern about previous draft Bills had been the lack of any requirement that compulsion should be allied to therapeutic benefit. Sadly, the amendment Bill does nothing to allay these concerns. Ethically the removal of fundamental rights must be justified by the reciprocal provision of health benefit, or it ceases to be health legislation and becomes a tool for maintaining social order. This would create clear ethical conflicts for health professionals. In addition to this, the loss of some additional patient safeguards that were outlined in the draft bills suggests that the Government is developing coercive legislation to manage the risk presented by mentally disordered individuals, rather than looking at overall health benefit. If people are deemed a danger to others, criminal proceedings need to be implemented if appropriate.
21. The BMA is concerned that the broadness of diagnostic categories, the narrow exclusions, and not enough emphasis on treatment of patients has the serious drawbacks of exaggerating the ability of mental health professionals to reduce violent conduct in society and for SCT to be too widely used. The BMA is also seriously concerned that psychiatrists will be limited by the legislation and that the role of responsible clinician as proposed by Government lacks clarity and may lead to confusion.