DMH 319 Memorandum from HAMPSHIRE PARTNERSHIP
NHS TRUSTT
Hampshire Partnership NHS Trust provides mental health
and learning disability services. This response has been approved
by the Trust Board.
While there are aspects of the draft bill that the
Trust welcomes, its overall conclusion is that it offers insufficient
benefits for patients and clients and would bring significant
barriers to providing effective services which properly respect
the rights of service users. Its adverse impact on staff morale,
recruitment and retention would be very worrying when these are
already major problems for mental health services.
General observations
We welcome the recognition that good care planning
is the key to effective care and the attempt to build treatment
orders around care plans. However, we believe that aspects of
the proposed Bill will in practice undermine this. In particular
the requirement to draw up a care plan within 5 days (Cl 31) provides
too short a timescale. It will encourage standardized programmes
rather than individual attention to the needs of patients. In
addition, the proposed limitation of the right of clinical supervisors
to relieve patients of legal compulsion undermines their responsibility
and accountability for the quality of care. This forces an unwelcome
separation between the delivery of care and the review of the
need for compulsion.
We also welcome the recognition that mental health
care is no longer dependant on hospitalisation.
We welcome the commitment to the provision of advocates,
but are concerned that this will not be properly resourced and
is merely a general duty to provide, not an entitlement of patients
(Cl 247).
1. Is the draft Mental Health Bill rooted in a
set of unambiguous basic principles? Are these principles appropriate
and desirable?
The Bill reflects two very different purposes, therapeutic
and protective. These necessarily lead to ambiguities. The inclusion
of general principles serves to raise the profile of therapeutic
concerns but is disingenuous because it reduces the visibility
of the public protection which underpins the main provisions of
the Bill. A clear commitment is necessary to the basic principles
of human rights, which require patients' interests to be respected
unless outweighed by the rights of others.
We welcome the fact that general principles are set
out at the beginning of the Act. However, the current clause 1(2)
is not sufficient.
(a) It does not refer to human rights,
diversity and equal opportunities, or to the principle of reciprocity
(whereby patients are entitled to treatment if the need for such
treatment is used as the basis of compulsion). There should be
an explicit commitment to promoting the best interests of patients,
including their right to exercise autonomy. This should not outweighed
unless there is a clear risk of significant harm
(b) Clause 1(4) indicates that the Code of Practice
can dispense with the application of these principles. There may
be times when involving patients in decisions may be impracticable
and very occasionally inappropriate if alerting them to the fact
that compulsion is being considered would place others at risk.
However, the need for fairness and openness and minimal compulsion
should always apply.
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 of mental disorder remains too wide
and will cover too many patients. The Trust notes that the recent
Council of Europe Recommendation on Human Rights and Psychiatry
proposes using 'mental disorder as defined in accordance with
international medically accepted standards', and refers to ICD10
Chapter 5 Mental and Behavioural Disorders. This approach is to
be preferred as it keeps the definition restricted and objective
in accordance with international standards- for example, epilepsy
would probably only be included if it caused organic psychosis.
While we welcome the fact that mental health needs
other hospitalisation are noted, we believe that there needs to
be some threshold in the conditions so that all patients are not
threatened with compulsion. The White Paper proposed a reference
to the need for 'specialist' services. This would prevent any
need for mental heath treatment, however small, justifying coercion,
which unacceptably stigmatises patients. Particularly when combined
with the obligation on Tribunals to make treatment orders whenever
the relevant conditions are met, this means that all patients
referred to specialist services will believe that compulsion will
follow and will therefore avoid referral. This will undermine
the aim of services to achieve the early intervention that improves
outcomes for patients.
The reference to 'medical treatment being available'
is still unclear as to whether this means 'treatability' or refers
to access to services. The redrafting since 2002 suggests that
the actual availability of services for this particular patient
to access is what is intended, but it remains ambiguous.
We would like to be reassured that exclusions of
the uses of substance misuse and sexual deviance as diagnostic
criteria will at least be continued in the Code of Practice, although
we do not think that they need necessarily appear in the statute
itself.
3. Does the draft Bill achieve the right balance
between protecting the personal and human rights of the mentally
ill on the one hand, and concerns for public and personal safety
on the other?
The Bill remains unbalanced, pursuing a public protection
agenda to the detriment of the rights of the mentally ill. This
can be seen in many parts of the Act, for example,
- the fact that there is no threshold in cl 9(4)
so that ANY harm to others will satisfy the 'third condition'
however trivial.
- The failure to provide for a proper standard
of proof in relation to predictions of risk, a notoriously difficult
exercise.
- The obligation to make an assessment whenever
requested by any person (cl 14) irrespective of the reasonableness
of or motivation behind that request.
- The mandatory referral to Tribunal (Cl 38) and
the fact that the Tribunal is obliged to make an order whenever
the relevant conditions are met (Cl 45) irrespective of whether
compulsion is desirable or likely to be effective.
The relevant conditions should define the scope of
cases where compulsion may be appropriate and leave discretion
as to whether it is in fact appropriate. The current drafting
makes it obligatory to exercise compulsion in respect of all patients
who fall within the scope of the Act. This makes the fact that
the Act is drawn so widely even more concerning.
4. Are the proposals contained in the draft mental
health bill necessary, workable, efficient and clear? Are there
any important omissions in the Bill?
Consultation with staff, including those familiar
with the existing Mental Health Act and accustomed to reading
statutes has revealed that the drafting of the Bill has caused
confusion. Given that the success of any new legislation depends
substantially on health and social care professionals being able
to understand their duties under the Act, we regard this as a
serious defect in the Bill. We think that it will take considerable
effort to determine whether the Bill can be made to be workable
in practice, given its legalistic drafting style, considerable
length, complex structure, and the fact that many details will
be set out in regulations so that the Bill will not make sense
when read alone.
As an example of confusion, we would cite that it
is unclear when a patient becomes liable to assessment, something
which front line staff need to know in order to determine whether
they are acting lawfully. Is it only from the point when an examination
has been completed (as implied by Cl 17(3)), in which case the
assessment would seem to be unlawful unless the patient consents,
or does it commence when arrangements are made for an assessment
to be carried out (as implied by Cl 18(4)).
The workability of the duty to arrange examinations
is unclear. There is no mechanism for dealing with vexatious referrals,
so services may be swamped by the obligation to make arrangements.
In addition it is unclear how the authority can determine whether
ALL of the conditions 'appear to be met' from the information
likely to be supplied. As such a determination needs to be made
before an assessment is arranged, this is a crucial stage in the
Act's processes.
5. Is the proposed institutional framework appropriate
and sufficient for the enforcement of measures contained in the
draft Bill?
We note that the Mental Health Act Commission will
be subsumed into the Healthcare Commission. We believe that functions
relating to inspection and complaints can effectively be carried
out by the Healthcare Commission, but would seek reassurance that
there will be a specialist division of the reconstituted Commission
concerned with developing standards in connection with mental
health care and that the power to issue advice would include good
practice notes as the MHAC has done.
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?
Young Patients
We welcome the continuing provision for informal
treatment for those under 16 on the basis of parental consent,
believing that to be preferable to routine compulsion. We also
welcome the introduction of safeguards when young patients reject
or resist treatment.
The draft bill fails to address two areas where law
reform would be beneficial.
- No steps are proposed to ensure that young patients
will get the educational and social services support that are
necessary to carry their care and treatment through to successful
fruition. These agencies should be party to any treatment order
and obliged to devote resources to fulfilling the care plan.
- There seems to be no assistance in dealing with
the difficult question of young patients with fluctuating competence,
on which current common law is confusing and unhelpful.
We welcome the recognition that sixteen and seventeen
year olds should receive full protection and an increased say
in their lives.
Aggressive procedures
We believe that the protections in relation to ECT
and psychosurgery are sufficient. We support the recognition that
these procedures should be available to incapable patients, subject
to the necessary independent approvals as we believe that they
can sometimes be of benefit and should not automatically be withheld
from incapable patients.
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?
At a number of places, too much is left to the Regulations
and Code of Practice and clearer provisions should be made on
the face of the Bill. For example from Part 1 of the Act.
- It is not appropriate to permit the general principles
to be compromised through the Code of Practice (Cl 1(4)).
- Clause 3 needs to identify more clearly what
qualifications and experience are required to be an approved clinician
or mental health professional.
- Clause 7 should set out the qualifications for
appointment to expert panels. The explanatory notes contain an
illustrative list and this should appear on the face of the Bill.
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)?
We do not believe that the two bills are sufficiently
integrated. In particular, it is not clear which Act is intended
to prevail. On one reading, the fourth of the relevant conditions
would prevent the Mental Health Bill applying to incompetent patients,
save where treatment is not in their best interests (because the
Mental Capacity Bill would make treatment lawful). Yet the provisions
relating to treatment include sections dealing with cases where
the patient cannot consent. We believe that further work is required
to integrate the bills satisfactorily and that it would be beneficial
to consolidate the two pieces of legislation if they are passed.
9. Is the draft Mental Health Bill in full compliance
with the Human Rights Act?
No. We believe that the lack of thresholds for seriousness
of disorder and risk to others mean that the Bill does not ensure
that infringements of human rights are made only where this is
proportional to a legitimate aim so as to be necessary in a democratic
society. We are very concerned that the Government has made a
reservation to the Council of Europe Recommendation on Human Rights
and Psychiatry because the Bill is not compatible (http://www.coe.int/T/E/Legal_affairs/Legal_co-operation/Bioethics/News/Rec(2004)10%20e.pdf).
We do not understand why this country alone should be unable to
comply with the European consensus on the application of human
rights in mental health services.
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?
We believe that the Government has seriously underestimated
the human resource implications of the Bill. The suggestion that
all advocacy work indicated under the Bill can be carried out
by 140 staff confirms our fears about the commitment to patient's
rights (Regulatory Impact Statement, Table 4).
The clearest indication of inadequate resourcing
and a major threat to the workability of the Act can be seen in
relation to psychiatrists. The Regulatory Impact Assessment estimates
that there will be an increase in the number of hearings of 84%
but suggests that this can be met by an increase of only 50% in
the number of psychiatrists. In Hampshire Partnership Trust there
were 399 formal admissions under the MHA 1983 during 2003-4, all
of which would require tribunals to be held under the proposed
Bill. Only 127 tribunals were held relating to our patients in
the same period.
Even this is based on the assumption that the number
of people under formal compulsion would remain constant. That
assumption is patently false when it is noted (a) that the scope
of compulsory powers would be broader because of the definition
of mental disorder, (b) that whenever the relevant conditions
are met there must always be a tribunal even when no specific
benefit arises for either the patient or the public.
In addition, we note that at present the Tribunal
system is unable to cope efficiently with the current volume of
work. Consequently, we have no confidence that the proposed Tribunals
can be staffed.
No account seems to have been taken of the fact that
mental health act assessments are likely to increase due to the
proposed duty to assess reducing the exercise of clinical judgment
on whether formal assessment is necessary.
.
Finally, the Government has not addressed the risk
that clinical staff will seek early retirement if the proposals
are forced through. A significant proportion of staff in this
Trust (over 16%) is eligible for retirement either at present
or within five years. We could not afford to lose these staff
because they resent the legal framework within which they are
forced to work. From our soundings, this is a real risk. It is
vital that they have confidence in the new system and do not believe
that they will be forced to undertake more legal bureaucracy without
therapeutic benefits for their patients.
Jonathan Montgomery
Professor of Health Care Law, University of Southampton
Chair of Hampshire Partnership NHS Trust
31 October 2004
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