1 Introduction
Post-legislative scrutiny
1. We report on the Committee's post-legislative
assessment of the Mental Health Act 2007. The purpose of post
legislative assessment is not to repeat policy debates from the
original passage of an Act but to assess the implementation and
operation of the legislation.[2]
We took evidence from Dr Hugh Griffiths, National Clinical Director
for Mental Health, Bruce Calderwood, Director of Mental Health
and Anne McDonald, Deputy Director of Mental Health and Disability,
Department of Health, Alison Cobb, Senior Policy and Campaigns
Officer, Mind and Chair of the Mental Health Alliance, Simon Lawton-Smith,
Head of Policy, Mental Health Foundation, Dr Julie Chalmers, Royal
College of Psychiatrists lead on the Mental Health Act and Naomi
James, National Survivor User Network.
Background to the 2007 Act
2. The Mental Health Bill (Lords) was introduced
in the 2006-07 session with the intention of amending and updating
the Mental Health Act 1983 which is the cornerstone of mental
health legislation in England and Wales. The Mental Health Act
2007 (the 2007 Act) received Royal Assent on 19 July 2007. The
majority of the provisions of the 2007 Act came into force in
November 2008.
Terminology used in the report
3. Where the term 'Mental Health Act' is used
this refers to the Mental Health Act 1983 as amended by the provisions
of the Mental Health Act 2007. Where specific reference is intended
to be made in relation to either the 1983 legislation or the 2007
legislation the report uses the terms '1983 Act' or '2007 Act'.
Mental Health Act 1983
4. The 1983 Act is "primarily about detention
in hospital"[3] and
"few provisions in the act relate to patients in the community".[4]
The 1983 Act established the criteria around sectioning and who
could apply for someone to be detained under the 1983 Act. It
focused on compulsory detention as opposed to voluntary hospital
admissions. The 1983 Act established a "treatability"
test which, theoretically, would only permit detention if effective
treatment was available to improve a patient's condition.
5. The 1983 Act sought to tighten the definitions
around mental health but it did not define mental illness:
Section 1 of the Act defines mental disorder as "mental
illness, arrested or incomplete development of mind, psychopathic
disorder and any other disorder or disability of mind. [...] The
section explicitly rules out "promiscuity or other immoral
conduct, sexual deviancy or dependence on alcohol or drugs"
as, on their own, constituting a mental disorder.[5]
6. The 2007 Act established a single definition
of mental disorder as it was felt that some mental disorders were
not obviously covered by the 1983 Act. The new definition determined
that "'mental disorder' means any disorder or disability
of the mind".[6] In
drafting the new definition the then Government sought to ensure
that the single definition would "not result in people being
detained solely on the basis of learning disability."[7]
Therefore:
section 2 of the 2007 Act provides that (for certain
provisions of the 1983 Act) a person cannot be considered to be
suffering from a mental disorder simply as a result of having
a learning disability, unless that disability is "associated
with abnormally aggressive or seriously irresponsible conduct"
on the part of the person concerned.[8]
7. References to alcohol or substance abuse were
not included and references to promiscuity and immoral conduct
were regarded as redundant; the exclusion relating to sexual deviancy
was also removed.
8. The 1983 Act established the routes into detention
and types of detention to which patients can be subject:
The 1983 Act provides for two broad routes into hospital:
one through the criminal justice system (on remand, at the time
of sentencing or by transfer from prison) and the other through
civil procedures, often referred to as "sectioning".
"Sectioning" involves a decision made by professionals
that does not require a court order or confirmation by a Tribunal.
The civil route accounts for over 90% of formal admissions.
Key provisions on "sectioning" are contained
in sections 2, 3, and 4 of the Act, which are often referred to
by name. They relate to people with a mental disorder and cover
respectively short term admission for assessment (generally for
not more than 28 days), admission for treatment (initially for
six months, renewable for another six months, then yearly, but
potentially indefinite) and emergency admissions.[9]
9. Patients detained under section 3 of the Mental
Health Act are subject to the safeguards within the Act. The key
safeguard is the right of the patient to request an assessment
of their case at a tribunal if they decide they wish to challenge
their detention. Patients have the right to do this over each
statutory period for which they are detained (i.e. six months
in the first instance). Patients detained for assessment under
section 2 have 14 days from the start of their detention to appeal
to a tribunal.
Purpose of amending the 1983 Act
10. The intention of the 2007 Act was to reform
the existing law dealing with compulsory detention and treatment.
The Bill was introduced in the House of Lords in November 2006
but reform to the legislation had been planned for at least eight
years.[10]
11. The proposal went through numerous phases,
including:
a blue paper, Green Paper, a White Paper, a draft
Bill published in 2002, another Draft Bill published in September
2004, on which a Joint Committee of both Houses reported in March
2005, the Government's response to it, and the Bill, introduced
in the House of Lords in November 2006.[11]
12. Due in part to the lengthy process associated
with preparing new legislation the Government decided to abandon
plans to introduce a wholly new bill. Instead the 2006 Bill sought
to amend, rather than replace, the 1983 Act. In their memorandum
to the Committee the Department of Health said that "the
main purpose of the act was to amend the 1983 Act in a number
of areas where it was generally agreed that reform was needed."[12]
13. In explaining the rationale for amending
the 1983 Act, the then Health Minister, Rt Hon Rosie Winterton
MP, said:
We want to ensure that people with serious mental
health problems receive the treatment that they need to protect
themselves and others from harm. We need to recognise that the
world has moved on since 1983. Many more people can now be treated
in the community, rather than in hospitals, so the use of compulsory
powers should reflect that. Professional demarcation lines have
changed since 1983, and functions are now being carried out by
people with the right skills and experience, rather than individuals
from particular professions. Again, our legislation should change
to reflect that fact. We also want to strengthen patient safeguards,
which includes tackling human rights incompatibilities.[13]
14. The 2007 Act introduced a large number of
changes and amendments to the existing legislation. In undertaking
this inquiry the Committee focussed its attention on those provisions
which have been identified by the Department of Health and the
Mental Health Alliance (MHA), in their submissions to the Committee,
as being of most significance.
2 Office of the Leader of the House of Commons, Post-legislative
Scrutiny-The Government's Approach, March 2008, p 8 Back
3
The Mental Health Bill, Research Paper 07/33, House of
Commons Library, March 2007, p 8 Back
4
Ibid Back
5
Ibid, p 9 Back
6
Mental Health Act 2007, Section 1 Back
7
Department of Health, Post-legislative assessment of the Mental
Health Act 2007, July 2012, p 4 Back
8
Ibid Back
9
House of Commons Library, March 2007, p 9 Back
10
Ibid, p 7 Back
11
Ibid Back
12
Department of Health, July 2012, p 2 Back
13
HC Deb, 19 January 2007, column 1335 Back
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