Memorandum submitted by the BMA and the Royal College of Psychiatrists (MH 48)
Background p. 1
Current legislation p. 1
Proposed changes under the new Bill p. 2
Considerations from the Joint Committee on Human Rights p. 3
Interaction between the Mental Health Bill and the Mental Capacity Act 2005 p. 4
An international perspective p. 5
Removal and return of patients p. 6
Psychiatric Training p. 7
The value of a psychiatrist p. 8
Conclusion p. 10
1. The amendment Bill envisages change to the professional roles engaged in mental health service delivery. It significantly alters the professional role of the psychiatrist who hitherto has been central to all previous mental health legislation. 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 and, given the multi-disciplinary nature of mental health service delivery, it is important that any future move to widen professional roles within the Bill ensures that the highest standards of patient care are maintained.
2. Any moves to widen professionals roles must ensure that psychiatric patients who are detained under the Mental Health Act receive the best standard of multidisciplinary care possible, and that these patients have their psychological, social and physical needs attended to at all possible levels. The British Medical Association (BMA) and the Royal College of Psychiatrists believe that this can only be achieved if a consultant psychiatrist has overall responsibility for their care in a multi-disciplinary setting.
3. The Mental Health Act (1983) has clearly defined roles for doctors and social workers. The legal requirement at present is that two doctors make medical recommendations for detention of the patient, whilst an approved social worker, on the basis of these recommendations, makes an application for admission to hospital, or in some cases for the renewal of detention if the patient is already detained in hospital. At least one of the doctors must be approved under Section 12(2) of the Act (usually the consultant psychiatrist) and the other registered medical practitioner who may not be so approved is commonly, though not exclusively, the general practitioner. Once detained in hospital, the patient is then under the overall responsibility of the consultant psychiatrist who is designated as the 'Responsible Medical Officer'.
4. The lack of complexity in these designated roles makes it easier to identify the lines of responsibility on the one hand, but on the other hand, it does not recognise the roles of other disciplines such as mental health nurses, psychologists and occupational therapists within the meaning of the Act except in regard to Supervised Discharge (Section 25) which came into force on 1st April 1996.
5. To date, there is no evidence that this arrangement is hazardous for patients, although it has to be accepted that there are instances where patients are detained on insufficient grounds. This needs to be understood in the context of the large numbers of detentions under the Mental Health Act; in 2005-06, the figures were 47,400 for England alone, a significant increase from the peak of 26,900 in 1998-99. Almost half of the detentions (20,000) resulted after informal admission to hospital. The majority of detentions occur in NHS hospitals but a significant minority (5%) is admitted into independent hospitals.
Proposed changes under the new Bill
6. The Bill eliminates the role of responsible medical officers as well as approved social workers. Instead, it proposes a rather confusing set of criteria for both. Under the new arrangements, doctors, psychologists, nurses, occupational therapists and social workers would undergo appropriate training to establish themselves as Approved Clinicians. Some Approved Clinicians would eligible to become Responsible Clinicians so that they would then have overall charge of the patient, for the duration of the detention in hospitals or in secure units.
7. It is entirely conceivable therefore that for some patients, there would be no medical input at all, unless the Responsible Clinician who is not a doctor makes the necessary referral. It is important to note that patients will still only be detained initially on the recommendations of two doctors, one of whom would be Section 12(2). It is presumed that all patients so detained would first of all be under the responsibility of the consultant psychiatrist. It is then an anomaly that once detained the patient's care would be transferred to the care of say a psychologist or a nurse, without any medical input into their continuing detention, other than at time of renewal or appeal to the MHRT.
8. The Government presumably recognized such a situation as being potentially hazardous for patients. It proposed an amendment prior to Report Stage in the Lords in an attempt to offer some medical input into the patient's care by ensuring that the non-medical responsible clinician consults with a psychiatrist at the time of section 20 renewal. However, the legal status of such a consultation is dubious, as there would be no compulsion on a non-medical Responsible Clinician to act on the recommendations and no authority on the psychiatrist to oversee his own treatment plan. This could very possibly lead to interdisciplinary conflict, as well as lead to uncoordinated patient care.
9. The amendment Bill, if it becomes an Act, would have to be properly funded in order not to drain resources from existing mental health services. Special consideration would have to be paid to dangerous severe personality disorder (DSPD) patients who are likely to require additional services under the Act. It is unclear whether the Department of Health has any estimation of the numbers involved, and what impact this would have on personnel, acute psychiatric beds, high dependency units, medium secure beds, etc.
Considerations from the Joint Committee on Human Rights
10. The Joint Committee on Human Rights (JCHR) has investigated the Responsible Clinician role with reference to renewal of detention and the requirement of a true mental disorder established by objective medical expertise. The JCHR states that initial detention under the Act as amended will still be based on objective medical expertise, in the form of reports from registered medical practitioners. However, renewal of detention will be carried out by the Responsible Clinician, who need not be a doctor, furnishing a report to the managers of the hospital that the conditions justifying detention continue to be met. If initial detention must be based on objective medical expertise to be compatible with Article 5 ECHR, there is an argument, following Winterwerp that the same should apply to its prolongation. The amendment Bill proposes that the person in charge of a detained patient's treatment should no longer be the responsible medical officer (RMO), who must be a doctor, but would in future be the responsible clinician who need not be medically qualified."
11. The JCHR states that the Government takes the view that 'the Responsible Clinician does not necessarily need to be a registered medical practitioner in order to satisfy the requirements of the Convention.' Acknowledging that Winterwerp requires that deprivation of liberty must be based on "objective medical expertise", the Government argues that "This means relevant medical expertise, and not necessarily that of a registered medical practitioner. For example, a psychologist would have relevant skills in this context and be able to recognise that a person was suffering from a mental disorder and the knowledge to go to someone else with the appropriate expertise when needed."
12. The JCHR asked the Government to explain further its view that medical expertise need not necessarily involve a doctor. In particular, we asked whether it was envisaged that nurses, social workers or occupational therapists should furnish the objective medical expertise necessary to renew detention, and whether the Government considered that a process of detention and renewal that need not be based on a medical report from a doctor complied with the requirements for a lawful detention on grounds of unsoundness of mind as set out in Winterwerp v the Netherlands. The Department of Health takes the view that 'the phrase 'medical expertise' as referred to by Winterwerp was used in the wider sense and the Court was not seeking to lay down which sort of qualifications available in a national system would be acceptable and which would not.' The Government has clarified that 'it is envisaged that psychologists, nurses, social workers or occupational therapists approved as Approved Clinicians and therefore able to act as the Responsible Clinician will be able to furnish the objective medical expertise necessary to renew detention. The Government relies on the fact that Responsible Clinicians 'will have to meet minimum criteria which will include a requirement that the person seeking approval is able to identify the presence of mental disorder and the severity of the disorder.'
13. The JCHR does not agree with the Government's definition of objective medical expertise. In Varbanov v Bulgaria the Strasbourg Court gave every indication in the following paragraphs that objective medical expertise involved reports from psychiatrists who are doctors. The Court made it clear that the opinion of a medical expert who is a psychiatrist is necessary for a lawful detention on grounds of unsoundness of mind. This requirement would have been met had the doctors present at the admission furnished an opinion that the applicant needed to be detained for psychiatric examination. This indicates that the opinion justifying detention should come from a medically qualified expert who has recognised skills in psychiatric diagnosis and treatment. In Winterwerp v the Netherlands, the European Court of Human Rights held that the notion underlying the phrase 'in accordance with a procedure prescribed by law' in Article 5 ECHR is 'one of fair and proper procedure, namely that any measure depriving a person of his liberty should issue from and be executed by an appropriate authority and should not be arbitrary.'
14. Currently the hospital managers are responsible for scrutinising the documents authorising initial detention and have the power to rectify certain defects if they become apparent within the first 14 days. It is not apparent to the JCHR by what process the responsible clinician becomes the competent authority for Convention purposes. Given that the right to liberty in Article 5 ECHR is engaged it is of considerable concern that the report which renews detention need not come from a medical practitioner, and is subject to no scrutiny by any higher authority, other than the Mental Health Review Tribunal (MHRT). It is of concern that the Responsible Clinician who represents the detaining authority before the MHRT may not be medically qualified. In their evidence to the JCHR, the Council on Tribunals note that the Tribunal generally relies on the evidence of the patient's Responsible Medical Officer to confirm that the conditions justifying detention continue to be met. Although in some circumstances it might be appropriate for a clinical psychologist to provide the tribunal with the objective medical expertise, the JCHR says that it shares the Council on Tribunal's concern that it may be difficult for Responsible Clinicians who may be nurses, social workers or occupational therapists to do so, and that therefore the MHRT may be required to seek additional medical evidence to verify that the conditions of detention continue to be met.
Interaction between the Mental Health Bill and the Mental Capacity Act 2005
15. Following a judgement in the European Court of Human Rights, the Government intends to use the amendment Bill to amend the Mental Capacity Act 2005 to provide additional safeguards for mentally incapacitated adults who lack the capacity to consent to the arrangements for their care, and whose treatment amounts to a deprivation of liberty - these patients are sometimes referred to as 'Bournewood' patients. The Mental health assessment (one of the 6 assessments required for a 'Bournewood' deprivation) must be carried out by a registered medical practitioner - either:
i. Approved under Section 12 of the Mental Health Act 1983, or
ii. A registered medical practitioner who has special experience in the diagnosis and treatment of mental disorder
In these circumstances, only a doctor has responsibility for this.
16. Where patients aged 16 or over do not have the capacity to consent to admission and/or to the treatment that is expected to be required, Approved Mental Health Practitioners (AMHPs) and medical practitioners will need to consider whether the patient could instead safely and effectively be treated by relying on the provisions of the Mental Capacity Act including an authorisation under the Bournewood safeguards for people who need to be deprived of their liberty in order to be cared for in their own best interests. Compulsory admission under the 1983 Mental Health Act for such people should be required only when there are reasons to think that relying on the Mental Capacity Act is either not possible or inadequate for some reason. That is a judgement for the professionals concerned. Where AMHPs and doctors are satisfied that "P" can safely and effectively be assessed or treated by relying on the Mental Capacity Act, it should not be necessary to consider using either section 2 or section 3 the 1983 Mental Health Act. In particular, if "P" can be safely and effectively dealt with under the Mental Capacity Act, it is likely to be difficult to demonstrate that the criteria for detaining them under section 3 are met.
17. Consideration for using the Mental Capacity Act rather than the Mental Health Act should be undertaken throughout the patient's stay in hospital (or whilst on a CTO) and certainly at the time of renewal. This could not be done by a non-medical Responsible Clinician.
An international perspective
18. The BMA is not aware of precedents for such an arrangement whereby detained patients would not be under the direct responsibility of a consultant psychiatrist.
19. Under Ontario laws, any doctor (or judge) can authorise a psychiatric assessment within a seven-day period. This is undertaken by a psychiatrist, and detention if appropriate takes place under his responsibility. The patient may only be released or made informal (discharged from section) by a psychiatrist. In the community, the psychiatrist is responsible for the general supervision of the CTO, and only he can renew or rescind a CTO.
20. The Mental Health Act (1996) in Western Australia stipulates that a psychiatrist has to make a CTO which has to be confirmed by another psychiatrist or another doctor. The CTO has to specify the name of the psychiatrist who will treat the patient. Inpatients must be detained in the care of a psychiatrist under this Act.
21. The South Australian Mental Health Act 1993 allows a medical practitioner to make an order for detention of a patient to an approved treatment centre, and it specifies that the patient must be examined by a psychiatrist to justify or revoke the order, and it places responsibility on the psychiatrist for treatment of the detained patient as well as for providing written reports to the Director of the Treatment Centre.
22. The Victorian Mental Health Act 1986 of Australia requires a medical recommendation and another request from any adult over the age of 18 years to commence involuntary treatment. Whether the patient is in the community or in hospital, the responsibility for his care remains with the registered medical practitioner, who is a psychiatrist.
23. The Mental Health Act 1990 of New South Wales requires that two psychiatrists agree on detention for the patient, and if there is disagreement the patient is examined by a third psychiatrist to determine if involuntary treatment is essential. The patient remains under the care of a psychiatrist, who has the authority to discharge the patient or make him voluntary although the patient may appeal to a Tribunal or Magistrate's Inquiry.
The United States
24. In the States, the healthcare system in the US is largely commercially driven and therefore it does not strictly compare with the NHS system. Furthermore, mental health laws differ from state to state. The Arizona Statutes require that the 'Admitting Officer' is a psychiatrist or other physician with experience in performing psychiatric examinations. It lays considerable responsibility on the Medical Director of the institution who is charged with the responsibility of quality of treatment. Recommendations for detention are made by two licensed physicians, usually psychiatrists, as well as two other individuals, usually a psychologist and a social worker.
25. In Pennsylvania, patients are detained following two medical recommendations, and the primary responsibility for all detained patients rests with the psychiatrist. This is by and large the case with all the other states except that in many instances, patients might be certified for admission to a hospital by a psychologist or a social welfare officer, but once hospitalised the patient would have to be examined by a psychiatrist as soon as is practicable, and not later than 24 hours in most cases. Detained patients remain under the care of a psychiatrist, who also has the authority to release the patient from detention.
Scotland and Jersey
26. The Mental Health (Care and Treatment) (Scotland) Act 2003, which replaces the 1984 Act, is admirably clear in defining special professional roles. The Act requires that only Approved Medical Practitioners can be appointed as Responsible Medical Officers. These practitioners must be medically trained, and they are responsible for detaining the patient as well as overseeing their treatment in hospital as well as CTOs. The only exception is the short-term detention of patients, which can be carried out by nurses 'of the prescribed class' who are authorised to detain a patient for up to 2 hours while waiting for a doctor to arrive.
27. Under the Mental Health (Jersey) Law 1969 it is the consultant psychiatrists' responsibility to treat a detained patient who may be compelled to remain in hospital for up to 72 hours under Article 10, up to 28 days under Article 6 and for up to 1 year under Article 7. Patients may only be discharged by a psychiatrist or a tribunal.
Removal and return of patients to and from Scotland, Northern Ireland, Channel Islands and Isle of Man
28. Under the 1983 Mental Health Act, there are legal provisions for transferring patients to and from neighbouring countries which clearly would have to be revised in the context of the transfer of clinical as well as legal responsibility for patients. The Mental Health Acts in these countries recognise medical responsibility only in the context of the Responsible Medical Officer role. Patients who are transferred from England and Wales who are the overall responsibility of a non medical Responsible Clinician will require the legal framework of transfer of authority to a psychiatrist in the other nations. This would apply to patients detained in ordinary or specialised NHS and independent hospitals as well as medium/low secure units, Guardianship Orders and CTOs where applicable. It is unlikely that transfer to England and Wales would be an issue as in these instances the responsibility would be transferred from one psychiatrist to another.
29. The minimum time it takes to train a psychiatrist is thirteen years. Some junior doctors will take longer, and a fair number do not make it to consultant grade but will render valuable services elsewhere. This duration of training is considerably longer than all the other professionals who work in mental health, and reflects the rigorous nature of training programmes in the UK. Entry to a medical school is essential as first and foremost psychiatrists have a medical background.
30. Two years after leaving medical school, trainees would enter a rotational programme in psychiatry. This elaborate passage equips the would-be psychiatrist with knowledge in anatomy, physiology, pathology, pharmacology, medicine, surgery as well in psychological therapies. During the more senior years in training, most junior doctors will acquire detailed knowledge of mental health law, teaching, audit, research and management skills.
31. Psychiatrists operate from quite different values, treatment orientation and will come from radically different training backgrounds than say clinical psychologists. Mental health nurse training has in the last decade moved away from a medical model so that it is no longer a requirement for nurse trainees to undergo training in medicine. There is additional training now available for nurses (and pharmacists) to become independent prescribers, but this 38 day course is insufficient to give a comprehensive experience in undertaking physical examinations, understanding the pharmacology of some of the most toxic drugs in medicine, and making a psychiatric diagnosis. At present, there is an assumption that for doctors to reach the required level of expertise, it will take a 5 year undergraduate degree and then a minimum of 7 years postgraduate education and training plus a brief extra course in the Mental Health Act. If this is true for doctors, will other professions such as nursing be expected to reach the same level of expertise in 38 days in addition to a 3 or 4 year qualification?
32. By replacing the old RMO role with the Responsible Clinician who may be a consultant in another mental health profession such as clinical psychology, there are a number of issues to consider. One of the central duties of the person in overall charge of the care of a person subject to mental health legislation is to keep under constant review whether or not the "relevant conditions of compulsion are still satisfied" and to discharge the patient from compulsion if the conditions are not satisfied.
33. The Government has determined that only registered medical practitioners are deemed to have the necessary training to comply with the need for "objective medical evidence" from the European Convention on Human Rights and so to make the initial recommendation that a patient meets the relevant conditions for compulsion. It is unclear how a psychologist or other person who is not medically qualified is able to satisfy the legal requirement of ensuring that "the relevant conditions are still satisfied" if they are unable to determine the presence or absence of these conditions in the first instance.
The value of a psychiatrist
34. The most important aspect of this rigorous and comprehensive training is the benefits it brings to patient care and the wider mental health workforce, particularly the multidisciplinary team. It is evidence based that psychiatric patients have a high morbidity of medical problems, for instance it is well documented that depression is significantly associated with ischaemic heart disease and diabetes, which in turn increase the mortality rates in these individuals. Conversely, physical disability is also associated with a higher risk of psychiatric disorder in children as well as adults. The majority of patients who are detained suffer with psychoses, such as schizophrenia and bipolar affective disorders, which psychiatrists are very adapt at treating.
35. Psychiatrists are trained in the science of diagnosis, they are well accustomed to dealing with emergencies, and they have the ability to perform investigations and interpret results. A thorough knowledge of psychopharmacology, implementing complex drug regimes, knowing drug interactions, are essential practices for most if not all psychiatrists.
36. Psychiatrists' knowledge of mental disorders and their treatment is comprehensive, covering all aspects of aetiology, understanding of natural life course, and the implications of a variety of treatment interventions and their side effects and potential interactions of those interventions. Psychiatrists may or may not have expertise in delivering specific psychological therapies but will have a good working knowledge of them, and of allied work, including Occupational Therapy. Psychiatrists have specific expertise in relation to medication and other physical treatments for various conditions, and expertise also in bringing together a whole range of treatments and rehabilitative efforts to provide a holistic treatment package. It is this capacity for overview and orchestration that at present is unique to the medical role.
37. Most, if not all psychiatrists are well aware of the need to have an eclectic approach when dealing with mentally ill patients, particularly as psychiatric patients commonly present with complex issues. The ability to work within and to integrate with multidisciplinary teams has been a feature of medical training for decades, and psychiatrists are especially capable of recognizing when other members of the team have skills which would be of significant benefit to patients. Knowing what is evidence-based and keeping up with literature for continuous professional development are core qualities that psychiatrists possess. Many have taken on leadership roles in their organisations to the greater benefit of service improvement.
38. Most importantly, psychiatrists have been the most experienced clinicians in mental health law and its clinical application. There is no evidence that psychiatrists have been neglectful or incompetent in discharging the duties of 'Responsible Medical Officers'. Assuming medical responsibility as a RMO and providing consistent medical responsibility for people whose freedom has been taken away on grounds of mental disorder are serious issues. It is not sufficient that medical input would occur only at detention points. This concept of medical responsibility should not be taken as in the least demeaning to colleagues in other clinical disciplines. They do not have less important roles in managing and treating people with mental disorder, but rather they have different and generally more circumscribed roles than psychiatrists do.
39. Central to establishing a fair and appropriate legislation for people with mental disorder is the notion that they should be treated as far as possible like people with any other disorder of health. Indeed, the risk of the proposed legislation as it stands is that there will be a two-tier service within the same inpatient environment where voluntary patients with potentially less serious conditions would have a psychiatrist in charge of their treatment while detained patients would only have treatment from a psychiatrist if a non-medical responsible clinician felt this was appropriate.
40. There are two further reasons that are crucial to retaining consistent medical responsibility within the Act. The first is that the professional code for the medical profession is a critical asset for the work. This is not to say that as individuals or collectively that psychiatrists are personally any more ethical than individuals or groups in other disciplines, just simply that the regulatory framework is well established, and it is a strong deterrent. This is a powerful incentive for psychiatrists to stand firm on the principles of good practice firstly as doctors and secondly as psychiatrists, and although some colleagues stray away from the guidance set out by the General Medical Council and the Royal College of Psychiatrists, it can be contended that these examples are uncommon.
41. The second reason is that compulsory treatment generally follows compulsory admission, and the only treatments that may be compelled are the physical treatments that are at the centre of a psychiatrist's expertise. It is difficult to envisage how psychological therapies might be forced on detained patients. Other disciplines can and must contribute to the decisions to compel, and indeed under the current law already do so, but as is the norm, psychiatrists are ultimately responsible for the 'medical' decisions, to the point of being held responsible for failures in respect of not delivering 'appropriate' treatment in the face of a Second Opinion Appointed Doctor not agreeing a treatment or allowing a seriously ill person thought to pose a serious risk to others in the context of that illness to leave hospital even after a Tribunal decision to discharge a detention order.
42. The duties that psychiatrists carry out within the Act are far from attractive all or even most of the time but the principle of responsibility cannot be abandoned or compromised. Most patients would object to their freedom being taken away and medication being forced on them, but they, and the public at large, would nevertheless expect psychiatrists not to devolve responsibility for the total care and treatment package.
43. The BMA and the Royal College of Psychiatrists are in favour of other disciplines being recognised under any new mental health legislation. We also appreciate the need to promote the ethos of 'New Ways of Working' in delegating more responsibility to other members of the multidisciplinary team. Diluting the role of psychiatrists would risk patient safety wherever psychiatrists are removed from being responsible for patients, many of whom have complex medical and psychiatric needs, it will demoralise the profession and it could lead to long term difficulties in recruitment into psychiatry.
44. There are no precedents as far as we are aware of such a radical change in potentially removing medical responsibility for detained patients, probably the most vulnerable group in our society. Most psychiatrists would be very uncomfortable about doctors being responsible for detaining patients but then not being responsible for treating them either directly, or through other medically led teams as is commonly the case in General and Old Age Psychiatry. The role of Responsible Clinician within the meaning of the amendment Bill should remain with the consultant psychiatrist for all the reasons stated above.
 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, http://www.ic.nhs.uk/pubs/mha0506
 One recommending doctor would usually construct or oversee a treatment plan under the present 1983 Mental Health Act.
 Joint Committee on Human Rights, Legislative Scrutiny: Mental Health Bill, Fourth Report of Session 2006-07, http://www.publications.parliament.uk/pa/jt200607/jtselect/jtrights/40/4002.htm
 Winterwerp v Netherlands (1979) is an important European judgment on mental health law. It ruled that, except in an emergency, the detention of a person of unsound mind will be lawful only if (i) the person detained is reliably shown to be of unsound mind (that is, by objective medical experts); (ii) the relevant mental disorder is of a kind or degree warranting compulsory confinement, and (iii) there is a persistence of such a disorder to justify continuing detention.
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