Memorandum submitted by the Mental Health Act Commission (MH 5)
The Mental Health Act Commission (MHAC) is a special health authority charged with keeping under review the powers and duties of the Mental Health Act 1983 as it relates to the detention and treatment of psychiatric patients.
The scope of legal powers of coercion
The MHAC evidence to the Joint Committee on the Draft Mental Health Bill 2004 expressed concern that government's stated approach to provide "inclusive" legislation" (i.e. that "which enables practitioners, at their own discretion, to provide treatment which they assess as being necessary and appropriate") was not adequately balanced by a meaningful framework of defined powers and duties. We wrote that
"for the law to be of value - to patients, State administrators, mental health professionals, the police, the courts or the Tribunal - its meaning cannot rest upon the discretion of those working within its framework."
To this extent we called for a clear statement of principles on the face of the Bill; for the retention of updated exclusions to the definition of mental disorder that would define the scope of the Act; and for reconsideration of whether an "appropriateness" test established an adequate threshold for the use of coercive legal powers of treatment. Our concerns were not addressed by the drafting of the Mental Health Bill 2007 as presented to the House of Lords, and we therefore welcome in particular the Lords' amendments to the Bill at Clauses 3 (concerning exclusions) and 5 (defining "appropriate medical treatment" as that which is "likely to alleviate or prevent a deterioration" in a patients' condition).
Renewal of detention and objective medical evidence
In the Mental Health Bill 2007 as presented to Parliament, a consequence of extending the role of "responsible clinician" (a role that in many respects replaces that of "responsible medical officer" under the 1983 Act) was that renewal of detention might be undertaken on the authority of someone who is not a doctor. The MHAC was concerned that this was inappropriate, and would not meet the requirement of "objective medical expertise" required under the European case-law interpretation of Article 5. We were pleased that the Joint Committee on Human Rights raised this point and disagreed with the government's suggestion that "objective medical expertise" need not be provided by a doctor, but could come from a nurse, social worker or occupational therapist. The amendment made to the Bill in the Lords' debates (clause 6) provides a solution whereby renewal may only take place where the responsible clinician obtains the agreement of a doctor that the conditions for renewal are met. We believe that this provides a suitable degree of objective medical expertise to meet the Article 5 requirement and trust that government does not intend to overturn this amendment. We do not believe that the compromise suggested by government in the Lords' debate (whereby the responsible clinician would simply have to take the advice of a doctor before renewing detention) was sufficient.
The identification of the Nearest Relative
Although the Joint Committee on Human Rights has stated that the Bill's provisions for a patient to displace his or her Nearest Relative meet the terms noted by the European Court of Human Rights in JT v United Kingdom, it was critical of the government's approach to the criteria whereby such displacement could be successfully argued. As the MHAC Chairman, Prof. Lord Patel of Bradford, argued in the Lords' debates, the government appears to propose that a Nearest Relative can only be displaced where their "unsuitability" can be described in terms of an abusive relationship, rather than simply because the patient would prefer someone else to undertake the role. This seems to the MHAC to be a very unsatisfactory remedy for the current incompatibility of the law relating to Nearest Relatives with Article 8 of the ECHR, and will leave the law open to further legal challenge. We are pleased that the government has agreed to reconsider its proposals on this issue. The MHAC considers that the law should allow patients a right to identify their Nearest Relative on the grounds of preference alone.
Specific arrangements for under 18 year-old detainees
In the House of Lords' debates Lord Patel of Bradford outlined the findings and concerns of the MHAC regarding the admission of children and minors onto adult psychiatric wards. The MHAC supports the Lords' amendment that places legal safeguards on the way in which children and minors are dealt with under the 1983 Act's powers.
Second Opinion arrangements for community patients
Clauses 28 and 29 of the Mental Health Bill establish the consent to treatment procedures for community patients. The MHAC is responsible for administering the Second Opinion Appointed Doctor system at the heart of the Act's consent to treatment provisions. The MHAC supported the amendments proposed but not pressed to vote on these clauses by its Chairman, Prof. Lord Patel of Bradford, in the House of Lords' debates.
Our main concerns over the Bill's proposals are that
· they allow for SOADs to authorise, alongside such treatment he or she thinks is appropriate at the time according to criteria set out in the Act, such treatments that he or she anticipates should be imposed on the patient should the patient be recalled to hospital. We believe that this may undermine the safeguard provided by the SOAD system, and make SOADs themselves vulnerable to legal challenge. Consequently, if passed into law, we would be likely to advise SOADs to be extremely cautious when considering whether or not to authorise treatments to be given in an unforeseeable situation at an unidentified point in the future.
· the Bill and the draft code of practice envisage that a SOAD who certifies that a community patient consents to treatment would also be enabled to certify what treatments can be imposed on the patient if he or she withdraws consent and is recalled to hospital. Lord Patel of Bradford described this as a "sword of Damocles" and contrary to the current Mental Health Act Code of Practice's definition of consent, which at paragraph 15.13 states that "permission given under any unfair or undue pressure is not 'consent'".
· The Bill imposes a period of at least one month from the start of the Community Treatment Order (CTO) when the safeguard of a second opinion will not be required. Detained patients currently have to wait until after the first three months of detention to qualify for the safeguard of a second opinion. Under the proposal, patients who are so qualified, having been inpatients for over three months, would lose the protection of a second opinion for the first month of their CTO. Detained patients who are still within the first three months of detention when discharged under a CTO will have to wait until the full three months have expired before becoming eligible for a second opinion. We consider that treatment in community settings is inherent more of a risk than in an inpatient setting and that extended periods of treatment without second opinion safeguards are inappropriate.
We would urge the House of Commons to look again at the alternative model for SOAD visits to community patients proposed by Lord Patel of Bradford in the Lords' debates on the Bill.
Care Programme Approach
The MHAC has, in its past reports to Parliament, identified serious failings in the implementation of policy requirements regarding care planning for patients subject to coercive powers. Care planning is likely to have a significant effect in preventing disengagement of patients upon discharge, and therefore reducing patients' difficulties in maintaining themselves in the community and reducing readmissions. Lord Patel of Bradford tabled an amendment in the Lords but was unsuccessful in persuading the government to agree to make care planning a statutory requirement. We continue to believe that the Mental Health Bill provides an opportunity to underpin care planning with statutory requirements on service providers.
Regulation of Seclusion
The MHAC has argued consistently for the statutory regulation of seclusion and forms of restraint in its past biennial reports to Parliament. We urge Parliamentarians to consider this issue as they debate the passage of the Mental Health Bill.
The MHAC welcomes government's indication that it will bring proposals to the House of Commons concerning advocacy services for patients subject to the 1983 Act's powers. The MHAC believes that the law should establish a similar right to advocacy for such patients as is available to patients subject to the Mental Capacity Act 2005.
Future Monitoring Arrangements - Notification of detentions and deaths of detained patients
Although the MHAC has a statutory duty to keep the use of the Mental Health act under review, it is not notified directly of uses of the Act to detain patients. We believe that such notification would enhance the MHAC or its successor body's abilities to fulfil its statutory function, both in providing statistical-level information and in ensuring that the body knows of the whereabouts of patients who are detained under the Act's powers for visiting purposes. We accept that such a notification procedure may be established under the forthcoming Health and Social Care Bill for the successor body to the MHAC. We believe that there is also a strong case for a statutory requirement upon service providers to notify the MHAC of the deaths of patients subject to the Act's powers - the MHAC currently operates a system of such notifications on a voluntary basis.
Members of Parliament suffering from mental illness
We note that the Government has stated that it is not persuaded to amend the provisions of section 141 of the 1983 Act ("Members of Parliament suffering from mental illness"), but that this is a matter for the House of Commons' consideration. Although section 141 was criticised as "discriminatory" in the Lords' debate, the MHAC has taken the view that the provisions of the 1983 Act are in fact "relatively enlightened rules" that are certainly less discriminatory than existing rules concerning membership of public bodies such as boards of school governors. As such, the MHAC would not wish for the 1983 Act to be amended to remove any provision relating to Members of Parliament who become subject to detention under the Act's powers, but we would welcome the amendment of section 141 to provide exemplary rules that would set an example of how coercive treatment under mental health law can be seen as no automatic bar to engagement with civic responsibilities.
In our Eleventh Biennial Report we expressed our full support for the proposed amendment to arrangements established under section 141 that would have been effected by clauses 294-7 of the Draft Mental Health Bill 2004. This would have removed the current requirement that an MP would automatically forfeit his or her seat after six months of detention under the Act, so that forfeiture would be a matter in the hands of the Speaker after one year and the matter determined simply upon the basis of whether the MP's status as a patient treated under compulsory powers is likely to affect to a significant extent the member's ability to attend the legislature.
We would therefore welcome an amendment to section 141(6) that would have a similar effect to that proposed under the 2004 draft Bill: i.e. it would emphasise that any bar to continued public office should be determined simply upon whether the holder is able to perform his or her function, and not through any 'status test' of being a patient subject to compulsory powers under the Act.
 Joint Committee on the Draft Mental Health Bill (2005) Draft Mental Health Bill. Vol II. HC 95-II, Ev 17, para 1.3.
 Joint Committee on Human Rights (2006) Fourth Report Legislative Scrutiny: Mental Health Bill. HC Paper 288 of 2006/07, para 26.
 ibid., para 37.
 HL Deb 17 January 2007, c668
 HL Deb 6 March 2007, c135
 HL Deb 15 January 2007, c549-52
 HL Deb 26 February 2007 c1449-52
 HL Deb 26 February 2007 c1399
 HL Deb 17 January 2007 c759-60
 HL Deb 17 January 2007, c.759 (Earl Howe)
 MHAC (2006) In Place of Fear? Eleventh Biennial Report 2003-05. London, Stationery Office. Para 2.101 - 2.104.