DMH 208 Association of Directors of Social
Services & LGA
Memorandum from the Association
of Directors of Social Services (ADSS) and the Local Government
Association LGA)
SUMMARY
Key Points
1 ADSS and LGA are concerned that the Bill
is rooted in the principles of compulsion and public order. The
following additional principles should be included on the face
of the Bill:
1.1 Multidisciplinary care - reinforcing the
central role of the Care Programme Approach and social care
1.2 Socially inclusive, non-discriminatory
care and treatment applied to all aspects of the Bill
1.3 Independence and non-medical
focus for Approved Mental Health Professionals (AMHPs) who should
be legally accountable to an independent body for the performance
and scrutiny of their role
1.4 A legal right to high quality,
fully funded services based on recovery and social inclusion for
those under compulsory powers, which does not depend on a postcode
lottery for quality and location of services.
2 The definition of mental disorder
is still too broad and should contain exclusions to prevent someone
with no mental health problems being detained solely for substance
misuse, learning disability, behaviour problems or beliefs.
3 ADSS and LGA are concerned that resourcing
issues have not been sufficiently addressed in the Bill:
3.1 There should be a duties
to provide sufficient numbers of approved doctors, AMHPs and police
and ambulance assistance with conveying people under compulsory
powers to hospital
3.2 The workforce implications included in
the Bill's Regulatory Impact Assessment are significantly underestimated
for all staff groups
3.3 Current mental health services are under-resourced
and future funding will need to be transparently allocated to
community services to equip them to implement the Bill.
4 The incapacity measures previously included
in the Mental Health Bill for informal patients lacking capacity
to consent to treatment should be represented in the Mental Capacity
Bill.
Terry Butler, Jenny Goodall
Joint Chairs, ADSS Mental Health Strategy Group, Disabilities
Committee
Councillor David Rogers OBE
Chair Community Well-Being Board LGA
October 2004
Introduction
The Association of Directors of Social Services
(ADSS) represents the 187 Directors of Social Services in England,
Wales and Northern Ireland. Directors of Social Services are responsible
through the activities of their departments for the well-being,
protection and care of vulnerable people including older people,
people with disabilities, people with mental health problems and
children in need and their families.
The Local Government Association (LGA) represents
over 400 local authorities in England and Wales and exists to
promote better local government, enabling local people to shape
a distinctive and better future for their communities. It
aims to put local councils at the heart of the drive for better
public services, working with the Government to secure that objective.
This submission has been prepared jointly
by ADSS (Mental Health Strategy Group of the Disabilities Committee) and
the LGA. Our purpose in collaborating to submit a response
has been to set out the common principles which our organisations
believe should underpin the development of mental health policy.
We represent the same service users and staff, have many common
objectives and share the same views about the Draft Mental Health
Bill.
Providing oral evidence to the Joint
Committee
ADSS and LGA wish to take up the opportunity to
present oral evidence to the Joint Parliamentary Committee at
their earliest convenience.
Evidence on Committee's themes:
1. Is the Draft Mental Health Bill rooted in
a set of unambiguous basic principles? Are these principles appropriate
and desirable?
1.5 ADSS and LGA are concerned that the Bill
is rooted in the principles of compulsion and public order rather
than provision of quality care for vulnerable people. This is
neither appropriate nor desirable as it goes against the principles
of social inclusion and recovery reflected in other government
policies and is likely to further increase stigma and discrimination.
1.6 ADSS and LGA recommend that the following
additional principles should be included on the face of the Bill:
1.6.1 Multidisciplinary
care, which should be represented by the following changes
to the Bill:
a. Explicit links between the roles
of clinical supervisor and CPA care co-ordinator
b. CPA care plan used for Tribunals,
not a separate plan
c. Report by Approved Mental Health
Professional (AMHP) for Tribunals following assessment period
d. A requirement for Tribunals to
consult social care Expert Panel members
1.6.2 Socially inclusive care
and treatment which is non-discriminatory and respects and
takes account of abilities, age, gender, sexuality, race, social,
ethnic, cultural and religious background, and is in line with
the principles of the Social Exclusion Report and Vision for Social
Care. This principle should apply to all aspects of the Bill
including use of the definition of mental disorder, detention,
therapies, advocacy and risk management in the community.
1.6.3 Independence and non-medical
focus for Approved Mental Health Professionals (AMHPs). Given
that it would be possible for all three examiners to be employed
by the detaining NHS Trust, there must be robust structures for
an independent body such as the local authority to have responsibility
for the management of the AMHP role. AMHPs should be legally
accountable to this body for the performance of their role and
it should undertake approval, re-approval, supervision, provision
of legal advice, training, law updates and scrutiny of AMHPs.
The General Social Care Council (GSCC) should have the major
role in the development of approval and training systems.
1.6.4 Reciprocity: a legal
right to high quality, fully funded services based on recovery
and social inclusion for those under compulsory powers, which
does not depend on a postcode lottery for quality and location
of services.
1.7 The general principles to
be included in Code of Practice are appropriate and desirable
but they should be included in the face of the Bill, with any
necessary exemptions, as they are in the Mental Capacity Bill,
the Mental Health (Care and Treatment) (Scotland) Act 2003 and
the Children Act 1989.
1.8 There are a number of reasons why the
general principles are unlikely to be upheld by the Bill in its
current format:
1.8.1 Patients are involved in the making
of decisions - safeguards for informal patients without
capacity have been removed and this will not promote their involvement;
there is a potential lack of involvement of multi-disciplinary
team and patient in care planning and lack of legal standing given
to advance statements on the face of the Bill
1.8.2 Decisions are made fairly and
openly - use of same Tribunal to make orders and hear
appeals does not promote fair decisions, and see 1.4.1 above
1.8.3 Provision of medical treatment
to patients and restrictions imposed on them during that treatment
are kept to the minimum necessary to protect their health or safety
of other persons - the potential to use compulsory
powers in the community lowers the threshold significantly from
the current Act and see 2.1 and 2.2 below.
2. Is the definition of Mental Disorder appropriate
and unambiguous? Are the conditions for treatment and care under
compulsion sufficiently stringent? Are the provisions for assessment
and treatment in the Community adequate and sufficient?
4.1 The definition of mental disorder
is still too broad. Under this definition it could be possible
for someone with no mental health problems to be detained solely
for their drug or alcohol dependency or misuse, learning disability,
commission or threat of illegal or disorderly acts, promiscuity,
sexual deviancy or other immoral conduct, cultural, political
or religious beliefs. Exclusions should be added to the definition
to prevent misuse.
4.2 The conditions:
4.2.1 The conditions are likely to lead to an
increase in the use of compulsion for the reasons mentioned above
and because the principle of least restriction is removed by clause
9(7) for people at substantial risk of causing serious harm to
others.
4.2.2 It should be clarified whether the fourth
condition (that medical treatment cannot be lawfully provided
to the patient without him being subject to this part of the Bill)
means that compulsory powers cannot be used if the patient consents
to treatment and/or that the provisions of the Mental Capacity
Bill should be considered before those of the Mental Health Bill.
4.3 Compulsory treatment in the community should
only be available for patients on authorisation of the tribunal
after a period of inpatient assessment. Leave of absence powers
enable assessment and treatment in the community during the assessment
period.
4.4 Use of community powers may lead to the following
problems:
4.4.1 It may prevent people coming
forward for help and damage relationships between mental health
professionals, service users and carers
4.4.2 The threat of recall to hospital
could be misused to achieve compliance
4.4.3 Community powers could be
used to compensate for lack of hospital beds
4.4.4 Aims and values of services
based on voluntary attendance could be compromised
4.4.5 Practical implications have
not been fully assessed, particularly providing supervision, enforcing
compliance and providing transport to clinical settings for treatment
4.5 Additional resources will be
needed to provide services for people under community powers (see
10.3) and to provide them free of charge.
3. Does the draft bill achieve
the right balance between protecting the personal and human rights
of the mentally ill on one hand, and concerns for public and personal
safety on the other?
3.1 ADSS and LGA consider that the Bill continues
to emphasise public order over provision of care for vulnerable
people. It is overly concerned with the principle of compulsory
care to protect the public from risk rather than managing risk
through adequate community services. The balance between state
and family involvement in providing care has shifted towards the
state. See section 9 below for details about human rights.
4. Are the proposals contained in the Draft Mental
Health Bill necessary, workable, efficient, and clear? Are there
any important omissions in the Bill?
4.1 ADSS and LGA have identified the following
additional areas to be included in the Bill:
4.2.1 Advance statements should be given legal
standing through a duty in the Bill to consult them and incorporate
them as a central part of CPA care planning
4.2.2 A duty to provide sufficient numbers
of approved doctors and AMHPs
4.2.3 A duty on the police and ambulance or
other transport services to assist with conveying people under
compulsory powers to hospital (there are significant problems
under current legislation with securing this assistance)
4.2.4 A duty to provide places of safety which
are in an appropriate environment such as a hospital, and a prohibition
to use police stations for this purpose (apart from in exceptional
circumstances)
4.2.5 A right to specialist advocacy not just
a duty to provide it, from the beginning of the examination process
rather than after compulsory powers have been applied
4.2.6 The powers of reasonable objection and
discharge previously held by the nearest relative should be given
to the nominated person and for someone who has no nominated person
there should be a similar provision to the current option for
Social Services Departments to act as nearest relative
4.2.7 See section 8 below for incapacity measures.
5. Is the proposed institutional framework appropriate
and sufficient for the enforcement of measures contained in the
draft bill?
5.1 See sections 1.2, 1.4, 9.1, and 10 for
comments on professional roles, resources and the Tribunal system.
5.2 The work of the Healthcare Commission
in monitoring the operation of the Bill must be underpinned by
the inclusion of legal principles as listed in section 1 above.
The implementation of the Mental Health National Service Framework
has shown that a performance management system, however strong,
cannot deliver fully functioning services on its own.
5.3 Performance indicators monitored by the
Healthcare Commission should include provision of a sufficient
number of AMHPs (it is essential to have guidance on this number),
and promotion of social inclusion through high quality risk management
and access to a range of services to meet needs such as housing,
benefits, education and employment.
5.4 The power of the Healthcare Commission
to visit establishments should become a duty to visit, comparable
with that held currently by the Mental Health Act Commission,
to ensure that services are submitted to regular inspections.
5.5 Further consideration is needed of the
role of the Commission for Social Care Inspection (CSCI) in ensuring
there is social care input to the mental health work of the Healthcare
Commission.
6. Are the safeguards against abuse adequate?
Are the safeguards in respect of particularly vulnerable groups,
for example children, sufficient? Are there enough safeguards
against misuse of aggressive procedures such as ECT and psychosurgery?
6.1 See points concerning abuse of community
powers in section 2 above
6.2 ADSS and LGA are concerned that neither
the Mental Health Bill nor recent children's legislation, including
the Children Act 1989 and the forthcoming Children Act 2004, focus
sufficiently on the mental health needs of children and young
people so they will still be inadequately addressed. Particular
concerns are as follows:
6.2.1 The improvements proposed in the Children's
National Service Framework should be reinforced through a duty
in the Mental Health Bill to provide appropriate services and
specialist workers.
6.2.2 The potential problems generated when
a parent of a 16 or 17 year old is not the nominated person need
to be addressed.
6.2.3 The proposal in the previous draft to
limit parental consent to 28 days was welcomed (particularly with
respect to Gillick competent children) and if it were reinstated
the Tribunal involvement must be accompanied by safeguards.
6.2.4 The safeguards for those not consenting
to treatment should be available to all children and young people
using mental health services.
6.2.5 Children and young people should be
afforded at least the same level of safeguards as adults, in particular
with regard to electro-convulsive therapy.
7. Is the balance struck between what has been
included on the face of the draft bill, and what goes into Regulations
and the Code of Practices right?
7.1 There is too much reliance in
the Bill on use of regulations and the Code of Practice.
The principles and issues involving detention in hospital (clause
15(2)), interviewing of patients, care plans, advocates, advance
statements, children's services, community powers and the nominated
person should be dealt with on the face of the Bill. Parliament
should have the opportunity to consider these important issues:
they should not be left solely for the Executive to compose.
8. Is the Draft Mental Health Bill adequately
integrated with the Mental Capacity Bill (as introduced in the
House of Commons on 17 July 2004)?
8.1 There do not appear to be adequate links
between the two Bills. The incapacity measures previously included
in the Mental Health Bill for informal patients lacking capacity
to consent to treatment should be represented in the Mental Capacity
Bill. There should also be a form of compulsory community care
in the Capacity Bill, similar to the current Guardianship, for
people who do not meet the conditions of the Mental Health Bill
but lack capacity and require this legal framework. The rights
and safeguards in each Bill should be brought into line and advance
statements should have equal status in both Bills.
9. Is the Draft Mental Health Bill in full compliance
with the Human Rights Act?
9.1 ADSS and LGA consider that human
rights would be better promoted by the Bill through the use of
two distinct Tribunal systems for making orders and hearing appeals.
9.2 The Bill should meet the requirements
of the recommendations of the council of Europe, in addition to
human rights legislation.
9.3 There is potential for human
rights contravention in the power of the clinical supervisor to
order the return of a non-resident patient to hospital without
further reference to the doctors and AMHP who where satisfied
at examination that hospital admission was not necessary. The
change from non-resident to resident status should only follow
a re-examination by two doctors and the AMHP or the Tribunal.
10. What are likely to be the human and financial
resource implications of the draft bill? What will be the effect
on the roles of professionals? Has the Government analysed the
effects of the Bill adequately, and will sufficient resources
be available to cover any costs arising from implementation of
the Bill?
10.1 ADSS and LGA consider that the workforce
implications included in the Bill's Regulatory Impact Assessment
(RIA) are underestimated, which will lead to under-resourcing.
In particular:
10.1.1 Approved Social Workers (ASW) - 'Improving
Mental Health Law' states that there are 4500 ASWs in England
& Wales and the RIA represents this as 430 whole time equivalents
(WTE) currently, based on the number of hours taken for certain
statutory tasks. It is not clear whether these figures are correct,
nor whether they take account of the hours needed to run an ASW
duty system (during which time the ASW must be available but may
not be actively pursuing an assessment), or the fact that current
ASW services are very stretched. ADSS and LGA have significant
concerns about the robustness of these estimates and would want
to be consulted or involved in more detailed work that is required
to determine the workforce requirements for social workers and
AMHPs under the Bill.
10.1.2 The RIA suggests that 20% of AMHPs
will be non-social workers - ADSS and LGA members' discussions
with health colleagues suggest that there is reluctance to undertake
this role and probably not without significant remuneration.
This situation would affect the number of social workers required
to operate the new legislation. Consideration should also be
given to how the AMHP role fits into 'Agenda for Change'.
10.1.3 The duty to provide advocates is welcomed
but the proposed number of 140 WTE specialist advocates is grossly
inadequate and would not even provide one WTE per local authority
area.
10.1.4 The estimate of 130 WTE additional
psychiatrists seems only to be based on Tribunal and Expert Panel
work and does not take account of responsibility for additional
patients under compulsory powers in the community, and increased
requirements for consultation and care planning. As with the
AMHP role, more work needs to be done on the impact to the psychiatric
workforce.
10.1.5 There is likely to be a significant
need for supervision and support from mental health workers for
people under compulsory powers in the community and this has not
been scoped at all in the RIA.
10.1.6 No provision has been made for the
resource implications of training ASWs, new AMHPs, doctors, mental
health act administrators, managers and other mental health staff
in the detailed operation of the new legislation, or for the substantial
transitional arrangements that will be required.
10.2 The clarification about charging for
aftercare services is welcomed, but the issue of what happens
to people currently in receipt of aftercare under section 117
of the current Act needs careful consideration.
10.3 Resources from the Department of Health
have not always been directed to the community services introduced
under the National Service Framework for Mental Health. Additional
funding for mental health services needs to be transparent at
Strategic Health Authority and Primary Care Trust level to ensure
that it reaches its intended destination. Services that need
such resources include assertive outreach, crisis resolution and
home treatment, early intervention, housing, crisis beds, and
access to education and employment. If compulsory powers are
to be used in the community, services will be in even more demand,
with additional need for higher levels of supervision and support.
Without further resourcing it is unlikely that mental health
services will be equipped to implement this legislation; nor will
they be able to achieve the right balance between public and individual
safety, and the provision of quality care for vulnerable people
that reduces the need for use of compulsion.
Terry Butler, Jenny Goodall
Joint Chairs, ADSS Mental Health Strategy Group, Disabilities
Committee
Councillor David Rogers OBE
Chair Community Well-Being Board LGA
October 2004
If you have any queries regarding this submission
please contact:
Mary Gillingham, Business Manager ADSS
Local Government House
Smith Square, London SW1P 3HZ
(020) 7072 7431
mary.gillingham@adss.org.uk
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