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

Conclusions and recommendations

Impact of Community Treatment Orders on detention

1.  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. (Paragraph 24)

Detention in place of voluntary admissions

2.  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. (Paragraph 29)

3.  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. (Paragraph 32)

4.  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:

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

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

All registered professionals are under a duty to raise concerns if they believe there are grounds for believing these principles are not being respected. (Paragraph 33)

Parity of esteem

5.  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. (Paragraph 37)

Independent Mental Health Advocates

6.  The Committee agrees that the 2007 Act has improved safeguards for patients by providing a framework for improved patient advocacy. (Paragraph 40)

Access to advocacy

7.  We recommend that the IMHA service becomes an opt-out rather than an opt-in service. This measure would help address the difficulties patients face in accessing advocacy and eliminate some of the practical problems clinicians face in making patients aware of their right to request an IMHA. (Paragraph 45)

Responsibilities of clinicians

8.  We recommend that the review by the professional regulators of advice issued to clinicians, which we propose in Paragraph 33 of this report, should put this obligation for the clinician to be the advocate for the patient beyond doubt. (Paragraph 48)

Commissioning and funding

9.  The Committee accepts the basic logic of combining commissioning for similar advocacy services and believes that these added responsibilities represent an opportunity for local authorities to broaden and deepen their skills in this field. There is no regulator of independent mental health advocacy, so commissioners play a vital role in ensuring that advocacy services are of the necessary quality. We therefore urge local authorities to work cooperatively to ensure that patients across the country can access effective advocacy services. (Paragraph 50)

10.  The Committee agrees that local commissioners should manage their own priorities and budgets, but draws their attention to their statutory duties in this respect. It recommends that every Health and Wellbeing Board should seek specific and quantified evidence from their local commissioners to satisfy themselves that these statutory duties are being discharged. (Paragraph 52)

The role and functions of advocates

11.  Patients in hospital voluntarily are often equally as unwell as those detained under section. Voluntary patients enjoy few safeguards, and the Committee believes there is a compelling case to extend advocacy provision to this group of patients. Advocacy for patients with mental health problems is now well established and protecting existing services is not sufficient reason to exclude vulnerable people from a valuable service. IMHAs offer crucial assistance to patients and the Committee recommends that the 2007 Act should be amended to extend entitlement to IMHA support to all patients undergoing treatment on psychiatric wards or subject to CTOs. (Paragraph 54)

12.  Part of the value of an IMHA lies in their ability to provide patients with advice which covers both mental health legislation and the health system. The Committee recommends that the Department should issue new guidance which clarifies both the scope and limitations of the advice and support which IMHAs are able to provide. The Committee also recommends that the Department should ensure that the training and accountability systems for IMHAs are appropriate in the context of the role they are expected to fulfil. (Paragraph 57)

Hospital-based places of safety

13.  The Committee heard no evidence to challenge the Department of Health's anecdotal view in relation to the power to convey. In the absence of such evidence the Committee does not favour elaborate reporting processes to prove that no problem exists, but recommends that since the Act has now been in force for five years the Department should commission an independent assessment of the impact of the power to convey in order to ensure that the legislation is working as intended. (Paragraph 64)

Use of police custody

14.  People detained under section 136 are often distressed and can be very vulnerable, and the proportion who are subsequently detained by clinicians is surprisingly low. The Committee notes that the CQC has now been tasked with mapping access to hospital based places of safety, and welcomes the further trial of street triage whereby nurses join police officers to deal with incidents involving people with mental health problems. The Committee recommends that Health Ministers should work with their Home Office counterparts and police representatives to improve the operation of the place of safety provisions of mental health legislation. Better application of section 136 would relieve pressure on hospital-based places of safety and allow for a reduction in the use of police custody. (Paragraph 66)

Detention of children under Section 136

15.  The Committee recommends that the Department of Health reviews as a matter of urgency the practice of detaining children under section 136 and, that as part of the review, it examines the outcomes for children detained in this way. This review should be undertaken with a view to identifying effective alternative options that can be used by the police and health care professionals. (Paragraph 70)

Purpose of the legislation

16.  Debate continues about the value of CTOs, but no evidence was presented to the Committee which suggested that any short-term revision of the legislation is necessary. The Committee recommends that the Ministers keep this aspect of the legislation under review. (Paragraph 77)

'Revolving door' patients

17.  During the passage of the 2007 Act, Parliament considered and rejected the proposal that CTOs should be limited to those with a history of non-compliance. The Committee does not therefore believe that the current application of CTOs is incompatible with the 2007 Act. (Paragraph 81)

18.  Although the Committee is satisfied that the operation of CTOs does reflect the intention of the legislation, it is right that this intention is kept under review. Compulsory medical treatment, whether in the community or in hospital, raises serious civil rights issues and needs to be supported by evidence of its need and its effectiveness. (Paragraph 82)

Effectiveness of community treatment orders

19.  In light of the OCTET research findings the Committee recommends that Ministers should review the current operation of CTOs. (Paragraph 84)

20.  The Committee does not object to the principle of supervised community treatment in defined circumstances and agrees with Dr Griffiths that it is possible to envisage justifying a CTO on grounds other than a previous record of non-compliance with a treatment regime after discharge from hospital. The Committee is, however, struck that the evidence base for this policy remains sparse, with the result that the argument has not developed far since the passage of the legislation. The Committee recommends that the Department should commission a fuller analysis of the value of a CTO in different clinical situations. (Paragraph 85)

Clinical debate

21.  Although the Committee accepts that use of a CTO in an individual case is a clinical decision, we are surprised by the extent of variation between clinicians. The Committee recommends that the Royal College of Psychiatrists should engage with the evidence review recommended at Paragraph 85 and draw its conclusions to the attention of its members. The Committee does not believe that wide variations of clinical practice should be permitted to continue without serious professional challenge. (Paragraph 92)

Effect of financial pressures on clinical decisions

22.  The absence of clear clinical guidelines supported by robust analysis of the evidence increases the risk that individual decisions will be distorted by financial considerations. This consideration reinforces the need for the review of the evidence recommended in Paragraph 85, supported by the engagement of the Royal College of Psychiatrists recommended in Paragraph 92. (Paragraph 94)

Urgent need for action

23.  The Committee found the evidence it received about the effective application of deprivation of liberty safeguards (DOLS) for people suffering from mental incapacity profoundly depressing and complacent. The Department itself described the variation as "extreme". People who suffer from lack of mental capacity are among the most vulnerable members of society and they are entitled to expect that their rights are properly and effectively protected. The fact is that despite fine words in legislation they are currently widely exposed to abuse because the controls which are supposed to protect them are woefully inadequate. (Paragraph 106)

24.  Against this background, the Committee recommends that the Department should initiate an urgent review of the implementation of DOLS for people suffering from mental incapacity and calls for this review to be presented to Parliament, within twelve months, together with an action plan to deliver early improvement. (Paragraph 107)

Effect of the 2007 Act

25.  Effective commissioning of advocacy by local authorities can begin to tackle the failure to provide minority ethnic patients with a robust advocacy service. Anne McDonald said that it is important to commission in a way "which improves quality and access" and this should be a priority in relation to advocacy. Helping Black patients to use and exploit their rights would be a small but important step in begin to address the disproportionate number of Black patients subject to the provisions of the Mental Health Act. (Paragraph 115)

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Prepared 14 August 2013