DMH 297 Memorandum from Bevan Brittan's
Introduction
Bevan Brittan (formerly Bevan Ashford) is a leading
provider of legal services to the NHS and has a strong mental
health law practice. The 2004 edition of Legal 500 commends our
'absolutely outstanding' health and social care team, which operates
across our London, Birmingham and Bristol offices.
Bevan Brittan can count 20 of approximately 60 specialist
mental health NHS Trusts amongst its clients.
At our recent annual mental health law conferences
we addressed and took questions on the key provisions and important
implications for mental health services of the draft Bill from
representatives of 71 public authorities. We believe we can respond
from an informed position which resonates across law and practice.
Submissions
1. Is the Draft Mental Health Bill rooted in a
set of unambiguous basic principles? Are these principles appropriate
and desirable?
No. The reader must go to the intended purpose of
the guiding principles set out in Clause 1(3) and the relevant
conditions at Clause 9. Clause 1(4) undermines the fundamental
therapeutic purpose of the Bill. Similarly, Clauses 9(4)(b) and
9(7) suggest that the public protection agenda can overrule the
therapeutic aims of the Bill. We support the Mental Health Act
Commission's suggested principles in primary legislation as clear
and unambiguous.
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?
The definition has not substantively changed from
the 2002 draft Bill to which there is a detailed response. Conditions
are not stringent. The absence of statutory exclusions means
those who would not currently be detainable will be liable to
assessment and treatment. Individuals may be caught whose behaviour
deviates from Society's norms or who suffer from addictions. Failing
to restrict the potential categories will potentially infringe
the Human Rights Act 1998. We refer to the Royal College's response.
The increased threshold for the use of compulsory
powers is welcomed.
There will be no discretion not to use compulsory
powers where the relevant conditions apply. Similarly, there will
be no discretion given to the Tribunal not to discharge where
the relevant conditions apply. The blanket use of compulsory powers
for all those who meet the relevant conditions will be detrimental.
The removal of discretion is likely to make the legislation susceptible
to challenge under the HRA 1998 as it would appear to discriminate
against persons who would otherwise agree to "informal treatment".
There is a risk that non-resident patients would
remain subject to compulsion for longer. The availability of non-resident
orders should not be used as a way of managing the current bed
availability crises faced by hospitals as otherwise those who
require in-patient treatment may be denied it.
The non-resident proposals, by requiring that a non-resident
treatment order is likely only to be made where a person has a
history as a resident patient, adds nothing to the current state
of the law allowing extended section 17 leave. This misses a real
opportunity to treat individuals in the community without a hospital
admission.
The opportunity for "anyone" to apply for
an assessment appears inappropriate as it will not prevent malicious
or improper referrals. Whilst a single point of entry is welcomed
there should still be some "gateway" through which referral
is channeled Currently, Trusts will be duty bound to consider
the referral and act upon it (if only to discount it) which raises
potential for infringement of individual civil liberties.
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?
No, see response to question 1.
The broad meaning of "treatment" including
anything from cure to containment, and the omission of the "treatability"
test opens the door to increased use of compulsory powers weakening
the Bill's therapeutic aims. The fifth condition that medical
treatment is available omits the words "clinically appropriate"
which should be included.
Our clients are concerned they are being forced into
a public protection rather than a care and treatment role. The
removal of professional discretion exacerbates this will result
in the "lobster pot" effect, described elsewhere. This
potentially will lead to human rights challenges by individuals.
4. Are the proposals contained in the Draft Mental
Health Bill necessary, workable, efficient, and clear? Are there
any important omissions in the Bill?
No, the Bill as drafted is virtually impenetrable.
There is too much of importance in schedules (e.g. the current
equivalent holding power under section 5(2) is hidden in Schedule
6) or left to be dealt with elsewhere in the Code of Practice
or Regulation. It will be a practitioner's nightmare and a lawyer's
dream! Our experience is that key powers must be clearly set out
to aid practitioners. Its drafting is in stark contrast to the
clarity of the Mental Capacity Bill. The complexity of the proposals
(317 sections, 12 schedules, Codes of Practice and Regulations)
makes it incredibly likely that the legislation will be misapplied.
When considering how the workability of the proposals may be
improved, careful thought should be given to the layout of the
clauses, and in particular the key provisions.
See responses to 2 and 3 on omissions.
The decision not to include a duty to provide aftercare
services beyond 6 weeks will mean that vulnerable people are unlikely
to receive free services aimed at preventing a deterioration
in their condition following discharge. The preventative value
of free aftercare should not be disregarded. Consequences of
excluding aftercare include (a) a multi-tiered system where those
who can afford aftercare services stand a better chance of avoiding
future mental disorder, and (b) inappropriate extension of non-resident
orders in breach of Article 5(1) ECHR.
The demands on resources by increased numbers of
qualifying patients and demands on Tribunals will require major
human and economic investment so diverting funds from patient
groups not subject to compulsory powers.
The requirement for the healthcare professional to
share information would benefit from further clarity to avoid
confusion.
The absence of any equivalent consent to treatment
protection under section 58 and the SOAD role leave patients only
with the protection of the care plan which is likely to be inadequate
as plans will be generic to avoid regular returns to Tribunals
for amendment.
5. Is the proposed institutional framework appropriate
and sufficient for the enforcement of measures contained in the
draft Bill?
The role of the Tribunal as the independent body
which both makes the order and hears the appeal creates an opportunity
for challenge under Articles 5(4) and 6 ECHR. Additionally, there
is major doubt over the ability of the Tribunal to deal with its
workload leading to delays. There will be significant reliance
on the expert panel.
There is no framework allowing the detaining NHS
Trust to apply to the MHAT where it believes there has been an
error of law. It will continue to have to rely on the mechanism
of judicial review in the High Court (as now) which seems a missed
opportunity.
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?
The protections are patchy. There is no protection
for children under 16 (unlike the 2002 draft) and we would propose
an automatic right to all children to apply to a Tribunal after
3 months.
Children should have increased safeguards to avoid
their placement on adult wards, where they face an increased risk
of abuse.
Why just ECT? What other aggressive or controversial
procedures will be safeguarded? In an emergency the clinical supervisor
can authorise ECT. Where the clinical supervisor is not a doctor
this should be prohibited.
The powers and functions of CHAI as successor to
the MHAC are not sufficiently clear.
See responses to 4 and 8.
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 Practice right?
No, but it is impossible to comment in the absence
of Regulations and the Code of Practice. Guiding principles and
key provisions should be included in the primary legislation similar
to the Children Act 1989 and the Mental Capacity Bill.
As lawyers we believe too many key questions are
left to Regulation and the Code of Practice which makes the legislation
susceptible to legal challenges given its key effect, the deprivation
of liberty under Article 5(1) ECHR e.g.
- which category of person can be treated in the
community?
- when can the clinical supervisor be denied the
right to discharge?
- what decisions will be reserved to the Tribunal
and their powers?
- who can detain under the equivalent section 5?
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)?
The case of HL v UK highlights a key area
left unresolved. There is a lack of clarity around which Bill
would apply to this group of patient and in what circumstances.
The relationship between the two Bills needs further clarification.
Neither Bill safeguards the compliant incapacitated
patient, despite the European Court's comments on the Mental Capacity
Bill in HL v UK. This has been recognised by members of
this Joint Committee in debate on the Mental Capacity Bill post
HL v UK. Provisions similar to those previously found
in Part 5 of the 2002 draft Bill should be included in capacity
legislation or there should be an automatic right of appeal to
all persons detained in hospital or institutional setting to an
appropriate court or tribunal within a specified period to avoid
arbitrary use of powers.
Clause 28 of the Mental Capacity Bill has clarified
how each statute would function in relation to patients subject
to compulsory powers. However, the value of effective mental
capacity legislation for the treatment of incapacitated patients
who suffer from mental disorder will be diminished by the broad
inclusion criteria under the draft Mental Health Bill.
9. Is the Draft Mental Health Bill in full compliance
with the Human Rights Act?
No, it could be seen as discriminatory to broad groups
of individuals with insufficient flexibility built into the legislation,
particularly around the exercise of discretion by professionals
and the Tribunal, to successfully defend challenges. We are particularly
concerned about challenges to Articles 5(1) and (4), Article 6,
Article 8 and Article 14.
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?
See response to 4. We believe NHS Trusts will become
a frontline service moving away from secondary/tertiary provider
with the need for significant workforce changes. It is unclear
whether resources will be available to implement the proposals
safely for all stakeholders. Will practitioners and stakeholders
be willing to embrace the changes or will there be an exodus of
staff? We anticipate extensive need for training and legal advice
throughout the life of the legislation with potential scope for
challenge by individuals which will leave NHS Trusts vulnerable
to legal challenge and costs.
Susan Thompson and Stuart Marchant
Bevan Brittan, Solicitors
susan.thompson@bevanbrittan.com stuart.marchant@bevanbrittan.com
1 November 2004
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