Memorandum submitted by the Health and Social Services Committee, National Assembly for Wales (MH 41)
1. The Mental Health Bill, which was announced in the Queen's speech to Parliament last autumn, was remitted to the Committee for scrutiny by the National Assembly for Wales in plenary on 28 November 2006.
2. The Bill was published by the UK Government, in consultation with the Welsh Assembly Government, on 16 November 2006. It is the Government's third attempt at a Bill to amend the Mental Health Act 1983, and also contains amendments to the Mental Capacity Act 2005.
3. In September 2002 the Health and Social Services Committee scrutinised the first Bill and the majority of Members concluded that the weight of the objections to the Bill was such that it should be rejected. They felt that if there was a will for the Bill as drafted to proceed in England, separate provisions should be sought for Wales, either through secondary legislation powers within the Bill, or through a separate "Wales only" Bill.
4. In September 2004 the UK Government published a draft Bill for pre-legislative scrutiny. The Committee considered this Bill on 14 October 2004. It focussed on the extent to which the new draft met the concerns expressed about the 2002 Bill. A copy of the Committee's report is available at http://www.wales.gov.uk/keypubassemhealsocsvs/content/reports-e.htm
The Current Bill
5. Following publication of the Bill the Committee consulted those organisations who had submitted evidence on the draft Bill in 2004 (Appendix 1). Responses were received from the following:
2 The Zito Trust
3 The Mental Health Foundation
4 Mind Cymru
5 NHS Confederation
6 Royal College of Nursing
7 Community Health Councils
8 Royal College of Psychiatrists
9 West Wales Action for Mental Health
10 Rhymney Valley Mind
11. The Law Society (Wales)
6. The Committee considered the responses at its meeting on 25 January 2007, when it also took oral submissions from the Law Society (Wales) and Hafal. The written responses are available in the Committee paper HSS(2)-02-07(p4a) at http://www.wales.gov.uk/cms/2/HealthAndSocialServicesCommittee. The transcript of the meeting is also available on the web site.
7. The written and oral submissions referred to several areas of concern.
8. Hafal, in introducing their oral submission, pointed out that the national service framework (NSF) for mental health in Wales provides services that are different from those in England. The Bill focuses on public safety and compulsion which would undermine the ethos of the NSF.
Definition of mental disorder
9. There is to be a single definition of mental disorder. The Bill leaves to professional discretion whether disorders of sexual preference or social conduct could be construed as the sole basis of mental disorder and thus compulsion under the 1983 Act.
10. Respondents call for the reinstatement of exclusions. For example, the NHS Confederation supports the amendment to clause 3 that specifies that the broader definition of mental disorder should not apply solely on the grounds of substance misuse, sexual behaviour, the commission or likely commission of illegal or disorderly acts or cultural, religious or political beliefs. The Royal College of Psychiatrists also supports the reinstatement of exclusions.
11. The Law Society is not opposed in principle to a single broad definition of mental disorder but only if delineated by exclusions and tighter conditions for compulsion - such as an impaired decision making criteria and therapeutic benefit test.
12. Many of the written responses expressed concern about the lack of a set of principles, including non-discrimination, to be included on the face of the Bill. It was also felt by the Royal College of Psychiatrists that principles should not be left to the Code of Practice. The Law Society submitted that the there should be a set of statutory principles at the start of the Act to guide practitioners in the exercise of their powers and duties and to give confidence to service users.
The Appropriate Treatment Test
13. The Law Society believes that this definition lacks sufficient legal certainty and is too vague as a basis for using coercive powers. The Bill must (in line with human rights case law) clearly define appropriate treatment as being treatment which is in the patient's best interests and of medical necessity. The Mental Health Act should be amended to enshrine the principle that treatment for those with mental illness should, as far as possible, be on the same basis as treatment for those with physical illness. Patient autonomy must be respected unless the patient's ability to make decisions about medical treatment is significantly impaired.
14. Hafal commends the provision in the Mental Health (Care and Treatment) (Scotland) Act 2003, for the right to an assessment. This should extend to a right to receive treatment, which should not be just "appropriate", but the requirement for therapeutic, clinically-correct treatment should be embedded in the Bill. The Law Society also contends that the Bill should give patients and carers the right to demand and receive a full assessment of all their health and social care needs before a crisis point is reached.
Supervised Community Treatment
15. One of the main concerns about the Bill is the proposal for supervised treatment in the community. For example, Mind Cymru believes there is a danger that supervised community treatment will be over-used, harm therapeutic relationships, rely too heavily on drug treatments and make managing side effects difficult.
16. The Law Society takes the view that if community powers are to be introduced they should be for a tightly defined group and be accompanied by stronger safeguards. It believes that the 'revolving door problem' would be better addressed by improving the quality and availability of aftercare and support services and the bridge between acute treatment and continuing care.
17. Hafal submitted that the proposed treatment orders are open-ended and give too much power to the Home Office to detain people. The orders are likely to increase, rather than reduce, compulsion. Non-compliance would put pressure on in-patient beds, with an adverse knock-on effect for those people who are seeking treatment voluntarily in the early stages of illness. Increased supervision will damage the relationship between patient and practitioner and jeopardise the progress made through the National Service Framework and the Adult Mental Health Strategy.
Mental Health Review Tribunal
18. The Law Society welcomes the proposals that will allow the Government to reduce the time delay before patients who have not exercised their right of appeal to the tribunal are automatically referred. It points out the need for adequate resources to enable this to happen.
19. Campaigners in England and Wales have been calling for a right to independent advocacy for some time, but the Mental Health Bill contains no such right. The Law Society proposes that this right should exist for all who are sectioned under the Act, from the time they are detained.
20. Under the Mental Health Act 1983, the nearest relative has extensive powers in relation to the decision to impose compulsion and the patient has little control over who will be seen in law as their nearest relative. The Bill addresses this by extending to patients the right to displace their Nearest Relative, but there is concern that the process could be protracted and stressful.
21. The Law Society pointed out that the 'nearest relative' has important powers in decisions as to whether a person is to be detained or discharged. The Bill makes a marginal improvement to the system by which 'nearest relatives' are identified and if necessary displaced. However, it believes that individual patients should be able to nominate the person who can best represent their interests, as is the case in Scotland. Mind agrees that a patient should be able to nominate their own representative.
Approved Mental Health Professionals
22. There is concern that the replacement of Approved Social Workers with Approved Mental Health Professionals may have an adverse impact on patients' experience. Approved Social Workers are often the only no-clinical professional involved in decision making and are seen as providing the independent opinion.
23. Mind is concerned about the levels of training and experience necessary to act as a Mental Health Professional and is seeking assurance that they be at least equivalent to those required by Approved Social Workers. The Royal College of Nursing says there is a serious need for consideration to be given to the numbers of mental health nurses requiring training to support the legislation.
The "Bournewood Gap"
24. While the Law Society welcomes the fact that the Government has at last come forward with proposals to address the 'Bournewood gap', its current proposals will fail to provide sufficient safeguards to protect the rights of individuals who may need to be deprived of their liberty in their best interests and are complying with treatment. There should be much closer parity with the safeguards in the Mental Health Act 1983. Without such safeguards, the legislation would be clearly open to further charges of discrimination against this group of people.
25. The Zito Trust supports the Government's proposals and considers them to balance the rights of patients with public safety. It submitted that the principles enshrined in the Bill are directed at keeping people out of hospital for as long as possible, while including powers and measures to deal with problems before they become crises.
Powers for the National Assembly for Wales
26. When the UK Government dropped the draft Mental Health Bill in 2004, Dr Brian Gibbons, the National Assembly Minister for Health and Social Services said that he would look into the scope for using framework powers in the Bill the Government proposed to amend the 1983 Mental Health Act. He advised the Committee that he had decided that framework powers were not appropriate for the following reasons:
¨ the 1983 Act sets out processes for compulsion that are common to people in England and Wales;
¨ the definitions of mental disorder need to be the same in England and Wales to avoid cross-border confusion;
¨ a code of practice for Wales will provide extensive guidance on supervised community treatment and will be consistent with the NSF;
¨ the proposals for amending the provisions for the nearest relative are to comply with the European Convention on Human Rights, and need to be made in primary legislation;
¨ similarly, the proposals on the Bournewood safeguards will amend primary legislation; and
¨ the National Assembly for Wales will have regulatory powers in respect of determining who may perform the functions of the approved mental health practitioner, responsible clinician and approved clinician, and also in determining the referral periods in respect of the Mental Health Tribunal.
27. The Committee considered the submissions it had received. In response to a question the representative of Hafal said that it would be better to continue the1983 Act as drafted rather than have it amended by the Bill. The Law Society consider the Bill to be deeply flawed. It considers that the 1983 Mental Health Act requires radical revision.
28. The Committee noted that the Government has now agreed to consider putting overarching principles strengthening the rights of patients on the face of the Bill, after the idea received strong backing from peers in the Lords.
29. The Committee also noted some of the provisions of the Mental Health (Care and Treatment) (Scotland) Act 2003:
¨ it includes a statement establishing ten guiding principles which should be taken into regard in all decisions relating to the use of compulsory powers under the Act.
¨ Community Treatment Orders are a feature of Scottish mental health legislation. A recent King's Fund study has found that compulsory community treatment has received "widespread acceptance" in Scotland. This is because it is seen as fairer for the patient and is applied only to 'revolving door' patients. Its use has also been strictly controlled. The report added that Scottish orders required authorisation from an independent tribunal, unlike the supervised community treatment proposed for England and Wales in the new Mental Health Bill, which would be under the control of clinicians.
¨ The Act makes provision for free independent advocacy for all service users. It includes provision for both individual advocacy (where the service user is partnered with a professional or volunteer on a one to one basis) and group advocacy (where service users join independent advocacy groups with people in similar situations to themselves, also known as collective and self advocacy).
¨ Advocacy is available to all those with a mental illness, dementia, learning disability or personality disorder, regardless of whether or not they are currently in hospital or subject to a compulsion order.
¨ Service users can nominate a named person who will act as their next of kin in all matters relating to their mental health. The named person will have to be informed and consulted about aspects of the patient's care should they be treated under the Act. The nominated person can be a friend, carer, family member or fellow service user. The emphasis is on the user choosing someone they can trust.
30. The majority of the Committee accepts the view that the Mental Health Bill is flawed for the reasons given in evidence. The Committee voted to adopt the following resolution:
31. The evidence to the Committee has demonstrated a consistent view that the proposed mental health legislation is deeply flawed. In the light of this evidence the committee's view is that the Minister should seek framework powers in the Mental Health Bill.
 Lawton-Smith, S. (November 2006) Community-based Compulsory Treatment Orders in Scotland: The Early Evidence, King's Fund Paper, p.ix http://www.kingsfund.org.uk/resources/publications/communitybased.html
 Scottish Executive. 2005. The New Mental Health Act: A guide to independent advocacy. Edinburgh: Scottish Executive. http://www.scotland.gov.uk/Publications/2005/12/02144347/43475
 Mental Health (Care and Treatment) (Scotland) Act 2003. S259.
 Mental Health (Care and Treatment) (Scotland) Act 2003. S250
 Scottish Executive. 2004. The New Mental Health Act: A guide to named persons. Edinburgh: Scottish Executive. http://www.scotland.gov.uk/Resource/Doc/26350/0012825.pdf