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."
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.
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.
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.
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".
GROWTH IN DETENTION
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. 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.
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"
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.
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.
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
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.
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."
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.
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.
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
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.
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.
Department of Health officials described the system as running
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
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."
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.
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
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.
31. Dr Griffiths described threatening voluntary
patients with formal detention as an "utterly unacceptable
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. Bruce Calderwood
and Dr Griffiths sought to emphasise substantially increased investment
in community mental health services over the last ten years but
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
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.
Parity of esteem
36. The Health and Social Care Act 2012
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".
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
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
HL Deb, 28 November 2006, col 658 Back
Q 2 Back
Q 3 Back
Q 69 Back
Care Quality Commission, Monitoring the Mental Health Act in
2011/12, January 2013, p 12 Back
Q 4 Back
Q 71 Back
Department of Health, Mental Health Bill 2007, Regulatory Impact
Assessment Revised Version, June, 2007, p 10 Back
Ev 41 Back
Q 34 Back
CQC, January 2013, p 13 Back
Q 8 (Mr Lawton-Smith) Back
Q 72 Back
Q 4 Back
Q 72 Back
Q 4 Back
Q 9 Back
Q 11 Back
Q 18 Back
Q 122 Back
Q 5 Back
Q 76 Back
Health and Social Care Act 2012, section 1 Back
HC Deb, 26 February 2013, c166 Back
All Party Parliamentary Group on Mental Health, Health and
Social Care Reform: Making it work for mental health, July
2012, p 3 Back