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

2  The Appropriate Treatment Test, Community Treatment Orders and detention

Impact of the 2007 Act

15.  The 2007 Act introduced a new test which assesses whether appropriate treatment is available for a patient which would enable them to be detained for treatment. The Department of Health said that this was implemented to "support services which would pre-empt and help to manage behaviour rather than react to behavioural breakdown."[14] They also believed that it would help avoid preventative detention that does not provide any treatment that serves a clinical purpose. Explaining the rationale for introducing the new test, the then Health Minister Lord Warner told the House of Lords:

The appropriate treatment test is designed to ensure that no one will be brought or kept under compulsion unless suitable treatment is available for them. It will not be enough for treatment to exist in theory, which in itself is a considerable patient safeguard. The treatment must be not only available and appropriate to the medical condition but appropriate to the circumstances. For instance, factors such as how far the services are from the patient's home or whether those services are culturally appropriate will need to be considered.[15]

16.  In evidence to the Committee Dr Julie Chalmers, the Royal College of Psychiatrists lead on the Mental Health Act, told us that that the reform had not had a significant impact on the diagnosis and treatment of patients. She said that at the time of the Bill passing through Parliament the reform caused a lot of debate within the profession but added:

I think that it has had very little impact on the practice of psychiatrists, perhaps because the approach to personality disorder is going to be shaped not particularly by legislation but by new initiatives and other treatment methods.[16]

17.  Alison Cobb, Chair of the MHA, told the Committee that the policy intention behind the appropriate treatment test had been to create more flexibility over the definition in order to allow the detention of people who need to be treated but could not be held under the existing legislation.[17] However, Dr Hugh Griffiths, National Clinical Director for Mental Health at the Department of Health, reported that this reform had not changed the way in which clinicians practise and argued that this is because "it is enabling legislation; it is just to make it clearer and more helpful".[18]


18.  Although the Committee was told that the introduction of the appropriate treatment test had not resulted in a change of clinical practice, it is striking that the development of the test has coincided with a substantial increase in the total population of patients detained under section. The Care Quality Commission (CQC) has found that detentions under the Act rose by 5% in 2011-12 compared with the previous year with 48,631 detentions in hospital for assessment or treatment.[19]

19.  Dr Chalmers noted that there had been no growth in the number of patients detained from court under the Mental Health Act and a moderate reduction in the number of people detained for treatment, but that these developments had then offset by an increase in the numbers detained for assessment.[20] The MHA does not, however, attribute the growth in detentions to the introduction of the appropriate treatment test and Alison Cobb concluded that rising detentions were not the result of "a particular change in the reasoning or clinical decision making"[21]

20.  We were presented with no convincing evidence that there was an increased cohort of people in England suffering from psychotic illnesses. A growing population of detained patients is not a phenomenon peculiar to England. Bruce Calderwood, Director of Mental Health at the Department of Health, told us that

[...] the trend in detentions applies not just in this country but also in other European countries. Even in Scotland, where after their Act there was a slight reduction in the number of detentions, in recent years it has gone up again. There seems to be something broader there than just the application of the legislation in terms of what is going on.[22]

Impact of Community Treatment Orders on detention

21.  The Department of Health's impact assessment for the 2007 Act indicated that the introduction of Community Treatment Orders (CTO) would save the NHS approximately £34 million per year by 2014-15. This figure was reached on the assumption that 10% of people admitted under section 3 would, instead, be placed under supervised community treatment.[23] CTOs are examined elsewhere within this report, but it is relevant to note here that the Department of Health judged that the provisions of the Act would help to provide increased bed capacity and reduce detention.

22.  The 2007 impact assessment implied that the availability of CTOs would help to raise the threshold for hospital treatment and detention. Evidence to this inquiry from the Department highlights an 8.4% decline in the number of section 3 detentions since 2007-08 but concedes that section 2 detentions have increased over the same period.[24] Simon Lawton-Smith, Head of Policy at the Mental Health Foundation, told the Committee that "CTOs do not seem to be reducing the number of people in hospital, as there are now more people in hospital under the Act than there were five years ago."[25] In 2008-09, when the CTO provisions came in to force, there were 42,208 detentions under sections 2 and 3 of the Mental Health Act. By 2011-12 this figure had reached 44,894.[26]

23.  The Committee has received little compelling evidence to support the contention that the threshold for admission to hospital under the Mental Health Act has risen as a result of CTOs enabling patients with less severe conditions to be treated in the community. Evidence presented by, among others, the Mental Health Foundation supports the view that the threshold for admission has risen because of growing pressure on the availability of bed places in psychiatric units.[27]

24.  It is of concern to the Committee that the Department of Health does not have a clear picture as to the factors which are driving increased rates of detention. In particular, a lack of data on readmissions means that there is no information to illustrate whether pressure on beds is detrimentally affecting the treatment of those patients eventually detained under section.

Availability of beds in psychiatric wards

25.  Although the factors that contribute to a growth in the detained population are poorly understood, the Committee heard evidence that a link had been established between a lack of bed capacity in psychiatric units and increases in detention. Dr Chalmers cautioned that she was not arguing in favour of a causal link, but she acknowledged that a relationship had been established between the two factors. Dr Griffiths accepted that:

there is some research evidence that there appears to be an inverse relationship between the number of beds apparently available and the number of people being detained.[28]

26.  Dr Griffiths and Dr Chalmers both highlighted the CQC's finding that in over 50% of wards there was 90% occupancy and in 15% of wards there was in excess of 100% occupancy.[29] Department of Health officials described the system as running "too hot"[30] and the Committee is concerned that this degree of occupancy gives clinicians little leeway to be flexible in the way in which they may treat patients.

Detention in place of voluntary admissions

27.  A disturbing element of the evidence the Committee took was the suggestion that pressure on bed places had made it difficult for patients to be admitted to psychiatric units on a voluntary basis. Dr Chalmers repeated reports from the CQC that in some areas "being detained is the ticket to getting a bed."[31] Mr Lawton-Smith accepted that it was possible that a clinician might section a patient who in the past would not have been sectioned in order to access a psychiatric unit.[32]

28.  The Committee is very concerned by the suggestion that some clinicians may resort to use of sectioning powers to secure hospital access for some patients who would otherwise have been voluntary patients. Such behaviour would represent a serious violation of the civil rights of the patient — as well as an abuse of the professional obligation of the clinician.

29.  We recommend that the Department of Health urgently investigates whether patients have been sectioned in order to access psychiatric units and reports to Parliament on the prevalence of this practice within the mental health system.

30.  The Committee also heard from Naomi James that that those patients who are admitted voluntarily often feel that they are under de-facto detention and, and are "being told by staff on the ward, 'If you try to leave, we will put you under section.'"[33] Dr Chalmers acknowledged that this could be a problem and said:

The college is well aware of this issue of de facto detention, which is picked up repeatedly with the CQC. We are trying to make it clear that we have to champion people's rights. If we think that they are in that situation, and that the patient is the only person who does not know they will be detained if they try to leave, that is not okay.[34]

31.  Dr Griffiths described threatening voluntary patients with formal detention as an "utterly unacceptable practice".[35] He said that he believed this practice was not as prevalent a feature of the system as it once had been, but he could provide no figures to detail the extent to which it still happened.

32.  We are concerned about reports of practices such as de-facto detention of patients. Although such practices appear less serious than the use of sectioning powers to secure access to hospital, we welcome Dr Chalmers' clear statement that these practices are "not okay", and inconsistent with the clinician's professional obligations to the patient.

33.  We recommend that the professional regulators should review their advice to clinicians about their obligations in the context of the use of sectioning powers under the Mental Health Act. In particular we recommend that their advice should reflect the following principles:

a)  It is never acceptable to use sectioning powers when the action is not justified by the clinical condition of the patient;

b)  Patients have the right to discharge themselves from hospital unless they are subject to properly authorised detention under the Mental Health Act;

c)  All registered professionals are under a duty to raise concerns if they believe there are grounds for believing these principles are not being respected.

Availability of community services

34.  Naomi James told us that community support services and peer support services had suffered cuts and she recounted anecdotal evidence that patients were facing long delays in accessing therapy.[36] Bruce Calderwood and Dr Griffiths sought to emphasise substantially increased investment in community mental health services over the last ten years but conceded that:

The latest figure we have for the last year's investment to 2012 shows that, although there was a cash increase of, I think, 1.5% that is actually a real terms reduction of 1%. So some places are reporting reductions, which is something that does disturb me.[37]

35.  Reduced availability of community-based treatment is worrying and we are concerned that commissioners find it easier to cut mainstream mental health services than other services. Dr Griffiths told us that:

we have had block contracts for mainstream mental health services and not a payment by results tariff system that exists for acute hospitals. It is much easier to cut a block contract budget than it is a payment by results system and we are bringing in payment by results. It is a little harder to do in mental health, but we are bringing in a system and it is evolving as we speak.[38]

Parity of esteem

36.  The Health and Social Care Act 2012[39] and the Department of Health's Mandate to NHS England require that mental health be given 'parity of esteem'- which means that the care needs of mental health patients should have equal priority with the needs of patients who need physical healthcare. The practical test of this desirable principle will be whether local commissioners have the skills and knowledge to "make measurable progress towards achieving 'parity of esteem' by 2015".[40] We note the concern expressed by the All Party Parliamentary Group on Mental Health that Clinical Commissioning Groups will not have the skills or expertise to effectively commission mental health services.[41]

37.  Local commissioners and NHS England will be responsible for achieving 'parity of esteem' for patients needing mental and physical healthcare. The Department of Health can support these efforts by accelerating the development of commissioning and payment systems which reflect the policy objective. If this is not prioritised, the Committee is concerned that 'parity of esteem' will continue to be a meaningless aspiration. Enshrining a concept in legislation is only useful if the tools are available to make it a reality for patients.

14   Ibid Back

15   HL Deb, 28 November 2006, col 658 Back

16   Q 2  Back

17   Q 3 Back

18   Q 69 Back

19   Care Quality Commission, Monitoring the Mental Health Act in 2011/12, January 2013, p 12 Back

20   Q 4 Back

21   Ibid Back

22   Q 71 Back

23   Department of Health, Mental Health Bill 2007, Regulatory Impact Assessment Revised Version, June, 2007, p 10 Back

24   Ev 41 Back

25   Q 34 Back

26   CQC, January 2013, p 13 Back

27   Q 8 (Mr Lawton-Smith) Back

28   Q 72 Back

29   Q 4 Back

30   Q 72 Back

31   Q 4 Back

32   Q 9 Back

33   Q 11 Back

34   Q 18 Back

35   Q 122 Back

36   Q 5 Back

37   Q 76 Back

38   Ibid Back

39   Health and Social Care Act 2012, section 1 Back

40   HC Deb, 26 February 2013, c166 Back

41   All Party Parliamentary Group on Mental Health, Health and Social Care Reform: Making it work for mental health, July 2012, p 3 Back

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© Parliamentary copyright 2013
Prepared 14 August 2013