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

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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Prepared 14 August 2013