Post-legislative scrutiny of the Mental Health Act 2007 - Health Committee Contents


The Mental Health Act 2007 (the 2007 Act) amended and updated the Mental Health Act 1983 (the 1983 Act), which remains the cornerstone of mental health legislation in England. The measures in the 2007 Act were proposed to reflect the changing way in which patients with mental health problems can be treated and cared for. Its provisions more accurately reflect the range of professions that work with patients and the desire to provide as much care as possible within communities, rather than in hospital. A single definition of mental disorder was included in the 2007 legislation in order to incorporate conditions which the original legislation did not properly account for.

A new 'appropriate treatment test' was established by the 2007 Act with the purpose of ensuring that patients are only detained if treatment appropriate to their condition is available. It is striking that the implementation of the test coincided with a substantial increase in the detained patient population, but there is insufficient evidence to identify a causal relationship between the test and detention. The Department of Health does not appear to have clear understanding of the factors driving increased detention, particularly in relation to failures in community treatment and the readmission of patients.

Over the course of this inquiry the Committee learnt of severe pressure on beds, with some wards running at over 100% occupancy. It is now acknowledged that there appears to be an inverse relationship between the number of available beds and rates of detention. The most worrying consequence of this was the suggestion that voluntary admissions to psychiatric wards are now so difficult to access that patients are being sectioned to secure treatment in hospital. The Committee is very concerned that clinicians would resort to a practice which represents a major infringement of a patient's civil liberties. In the Committee's view, the Department of Health should urgently investigate whether patients have been sectioned in order to access psychiatric units and report to Parliament on the prevalence of this practice.

Coupled with this, the Committee also heard reports that patients who manage to access treatment voluntarily are subject to 'de facto detention', whereby they are detained under section if they seek to leave hospital. It appears that this practice is not extensive within the mental health system; nonetheless, the Committee regards it as completely unacceptable. We believe that the professional regulators should review their advice to clinicians regarding the use of sectioning powers. This review should make it absolutely clear that sectioning in place of voluntarily admission is never acceptable, that patients must be made aware that they have the right to discharge themselves unless they are detained under a properly authorised section, and that all clinicians have a duty to highlight concerns if they believe these principles are being breached.

The Department of Health has emphasised the importance of 'parity of esteem' in the commissioning and delivery of services for mental health patients. In practice this means that the care needs of mental health patients should have equal priority to the needs of patients who require physical healthcare. This is a welcome principle, but evidence we received suggested that the behaviour of commissioners is not consistent with it. The Committee heard that community mental health services are vulnerable to cuts and that commissioners find it easier to cut mainstream mental health services because of the way in which they are commissioned through block contracts. For 'parity of esteem' to be meaningful the Department of Health must encourage the development of commissioning and payment systems which reflect this objective and do not make mental health services vulnerable to cuts by local commissioners.

Under the 2007 Act, detained patients and those subject to community treatment have the right to be supported by an Independent Mental Health Advocate (IMHA). An independent advocate who helps patients make best use of their rights is an important provision, and the Committee believes that this aspect of the legislation has improved the safeguards available to patients. Nevertheless, it is clear that there is substantial variation in access to IMHAs across the country. Similarly, research suggests that the more a patient needs an independent advocate the less likely they are to find one that can meet their requirements. The Committee therefore recommends that rather than being an opt-in service, patients should be allocated an IMHA unless they decide to opt-out. Local authorities are responsible for commissioning advocacy services and therefore ensuring equity of access and quality. The Committee believes that Health and Wellbeing Boards should ensure that high quality advocacy services are being delivered.

The Committee was told that the presence of IMHAs had resulted in clinicians retreating from their duty to inform patients of their rights and to help patients take advantage of them. Whilst the Committee regards IMHAs as a valuable supplement to support patients, clinicians should lead in helping patients to understand and make best use of their rights.

Section 136 of the 1983 Act gives police officers the right to remove from a public place to a place of safety a person who they believe to be suffering from mental disorder. The 2007 Act amended this power so that patients taken into police custody can be conveyed to a hospital which, evidently, is a more appropriate place of safety. The Committee found no cause for concern with the power to convey, but the extent to which it has been used and its impact on patients is unclear. An independent assessment of the power should be commissioned by the Department of Health to ensure that the legislation is working as intended.

In examining this aspect of the legislation the Committee found that detentions under section 136 of the Mental Health Act have grown considerably. The number of patients taken directly to hospital by the police has increased steadily but a significant minority are still detained in police custody. The Committee heard that only one in five of those people held by the police under section 136 were subsequently detained by clinicians for further assessment. Police custody should be used as a place of safety only in exceptional circumstances. Health Ministers should work with their counterparts in the Home Office to refine the application of section 136.

Supervised Community Treatment (SCT) was introduced as part of the 2007 Act to enable some patients with mental disorder to live and be treated in the community whilst still being subject to recall to detention in hospital. The conditions imposed are dependent on the circumstances of each case and they form part of the Community Treatment Order (CTO) which is made by the clinician responsible. The number of patients subject to compulsion under the Mental Health Act has increased as a result of SCT. In 2007 the Department claimed that CTOs would help to reduce the detained population but this has not been borne out. The Committee heard criticism that CTOs are simply a mechanism for medicating patients in the community and that patients find there is a stigma attached to being subject to a CTO.

It was argued in evidence that CTOs should only be applied to those 'revolving door' patients who repeatedly disengage from treatment when discharged from hospital and not for patients who have always been compliant with their treatment. This, however, was not the intention of the legislation and a history of non-compliance is not required to justify a CTO under the terms of the 2007 Act. The Committee believes that the intention should be kept under review, as compulsory treatment must always be supported by evidence of need and effectiveness.

Further questions remain regarding the application of CTOs. There is substantial variation in the use of CTOs across the country and research has suggested that CTOs have not managed to reduce hospital admissions. The results of the Oxford Community Treatment Order Evaluation Trial concluded that CTOs perform no better than previous measures and the patient benefits do not justify curtailing a patient's liberty. It is clear, therefore, that in light of these findings Minister should review the current operation of CTOs.

Deprivation of Liberty Safeguards (DOLS) were included in the 2007 Act as an addition to the 2005 Mental Capacity Act (MCA). They provide a statutory framework to protect the rights of patients detained under the MCA. These are usually patients in care homes with dementia, or in some cases, severe learning difficulties. The committee found that application of the safeguards is variable and on many occasions those responsible for ensuring patients are protected by them have failed to do so. There is considerable confusion around the scope of the safeguards and how and when to apply them in practice.

The evidence the Committee heard regarding the application of DOLS revealed a profoundly depressing and complacent approach to the matter. There is extreme variation in their use and we are concerned that some of the most vulnerable members of society may be exposed to abuse because the legislation has failed to implement controls to properly protect them. An urgent review of the implementation of DOLS should be undertaken by the Department of Health and presented to Parliament, together with an action plan for improvement, within 12 months.

The Committee examined the application of the 2007 Act in relation to the representation of patients from minority ethnic groups subject to the Mental Health Act. We did not find that the 2007 Act had inherently disadvantaged these groups, but it is notable that the number of Black and Black British patients subject to CTOs is even more disproportionate than the number detained in psychiatric hospitals. The Committee believes that in order to support minority ethnic patients local authorities should ensure they commission culturally sensitive and effective advocacy services. Helping minority ethnic patients, especially Black patients, understand and make best use of their rights would be an important step in addressing the disproportionate number of Black patients subject to the provisions of the Mental Health Act.

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Prepared 14 August 2013