DMH 199 Leeds Mental Health Teaching Trust
Trust Board
Evidence submitted to the Joint Committee
on the Draft Mental Health Bill
Summary
Taken as a whole, the prevailing view in this submission
is that the Draft Bill represents a qualified advance on its predecessor.
Welcome changes have been made which address some of the serious
concerns encountered in the first draft. Nevertheless there are
significant and worrying flaws still apparent in the current draft.
The Trust welcomes the opportunity of inviting the Joint Committee
to consider these in the hope that the proposed legislation can
be further shaped to ensure it is fit for purpose, and that it
does not result in effects not intended by Parliament.
Background
Leeds Mental Health Teaching NHS Trust
is a specialist provider of Mental Health and Learning Disability
services. With some 2,500 staff and an annual budget of around
£90 million, the Trust provides a wide range of services
for all age groups except children and adolescents. Its core services
are provided to the population of Leeds (some 720,000 in total),
but the Trust is also involved in providing a range of specialist
services throughout Yorkshire region and beyond.
3 Compilation of Response
This evidence has been produced following consultation
amongst mental health professionals and service users in the Trust,
as well as formal presentation and discussion in the Trust Board.
In view of the timescale for submission, it has not been possible
to secure absolute consensus for all the views here expressed,
but there is widespread agreement on the key points submitted.
The Response
In respect of the specific questions
posed by the Joint Committee, the response is as follows:
4.1 Is the Draft Mental Health Bill rooted
in a set of unambiguous basic principles? Are these principles
appropriate and desirable?
There remains substantial and worrying ambiguity
regarding the underpinning principles. This appears evident in
relation to where the balance is intended to lie between (i) protecting
individual rights as opposed to the public interest and (ii) respecting
individual autonomy as against intervening in the face of capacitous
refusal. So long as these principles remain ambiguous, it is difficult
to say whether they are appropriate and desirable, but on the
face of it the balance in favour of public protection and also
compulsion despite capacity appears both undesirable and unduly
stigmatising.
4.2 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?
4.2.1
It is noted that the definition and "relevant conditions"
have changed from the first draft, and the move towards introducing
a "treatability" equivalent is welcome. Nevertheless
concerns remain regarding how the definition and conditions will
be interpreted and the undesirable effect this may have on the
threshold for compulsion.
4.2.2 Firstly,
the definition as set out in clause 2 could be taken to include
individuals with neurological conditions (such as Multiple Sclerosis
or Parkinson's Disease) who have no evidence of mental disorder
as currently construed. This appears perverse and undesirable.
Recommendation 1
The introduction of a test of "impaired
decision making" into either the definition or the relevant
conditions would be one mechanism for addressing this problem,
as well as refining the scope of the Bill to ensure it is consistent
with its intended purpose.
4.2.3 Secondly,
the third "relevant condition" (clause 9, 4 (a) ii)
would have the effect of unduly restricting the applicability
of the Bill, specifically where it may properly be needed to treat
those with moderate illness for whom compulsion may be both necessary
and in their best interests.
4.2.4 Thirdly,
the fifth condition (clause 9, 6) goes some way to introducing
the notion of treatability. As worded, however, it appears open
to wide interpretation and it fails to specify any test of either
therapeutic benefit or "best interests". Consequently
this may have the perverse and unintended effect of substantially
lowering the threshold of compulsion, thereby significantly increasing
the numbers subject to it. In turn this could dissuade people
with mental health problems from seeking necessary treatment.
A local view amongst service users is that:
"A number of our members know
that they will be reluctant to contact mental health services
at all because of the increased fear of intrusion and coercion"
4.2.5 Finally,
clause 9,7 has the effect (in the circumstances described) of
dictating that compulsion must be applied despite compliance on
the part of the service user. This flies in the face of the principle
of using the least restrictive option, set out not least in Part
1 of the Draft Bill itself (clause 1 (3) c). This is ethically
questionable, and would further serve to alienate potential service
users.
Recommendation 2
The definition and relevant conditions
should be reworked to address the points above, taking into account
the desirability of using the minimum restriction necessary, as
well as incorporating some explicit requirement for therapeutic
benefit.
4.3 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?
Ultimately this is a matter for Parliament
to decide, but from the above it can be seen that there is sufficient
ambiguity in the Draft Bill to create uncertainty about where
this balance would actually or intentionally lie. This could well
lead to effects not intended by Parliament.
4.4 Are the
proposals contained in the Draft Mental Health Bill necessary,
workable, efficient and clear? Are there any
important omissions in the Bill?
Covered in responses to other questions.
4.5 Is the proposed institutional framework
appropriate and sufficient for the
enforcement of measures contained in the draft
bill?
The transfer of responsibilities from
the Mental Health Act Commission to the Healthcare Commission
makes sense in the interests of integrating its work into the
wider regulatory framework for health services. The Joint Committee
may, however, wish to seek reassurance that regulatory arrangements
will be appropriately streamlined without compromising the focus
on protecting the rights of those subject to compulsion. The expanded
remit of Mental Health Tribunals (especially in respect of the
being the "gateway" to treatment orders) is welcomed
in so far as this protects patients' interests. The workload and
resource effects, however, are referred to below.
4.6 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?
No comments offered.
4.7 Is the balance struck between what
has been included on the face of the draft bill and what goes
into Regulations and Code of Practices right?
Matters of significant substance and
concern are left to be dealt with in Regulations. These include
the question of what powers the Tribunals may reserve to themselves,
and what rules will govern the circumstances in which compulsion
in the community may be applied ("non-resident orders").
Once again the answers to such questions may have a major effect
on the impact and applicability of the legislation, suggesting
that more should appear on the face of the Draft Bill to guard
against unintended and undesirable consequences.
4.8 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 Mental Capacity Bill is still proceeding
through Parliament. Until it achieves its final form it appears
difficult to judge how well the two Bills are integrated. That
they should be so integrated, however, is beyond question, not
least in light of the recent European Court of Human Rights Judgement
concerning the "Bournewood" case.
4.9 Is the
Draft Mental Health Bill in full compliance with the Human Rights
Act?
This is a matter for legal advice,
but on the face of it the Draft Bill in its current format has
features where legal challenge could be envisaged.
4.10 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?
As a provider of Mental Health services,
the Trust finds these questions of major concern. The key issues
are as follows:
4.10.1 The fact that "Approved
Mental Health Professionals" and "Clinical Supervisors"
can be drawn from a wider range of professional groups is in principle
welcomed. More attention must be given, however, to ensuring that
such practitioners have the requisite competencies to go with
their new roles and responsibilities. This is turn will have significant
training and hence resource implications.
4.10.2 The establishment
of Independent Mental Health Act Advocates is welcomed though
there is concern that the projected numbers may be insufficient
to accommodate the work required in this important role.
4.10.3 It is noted that
work has been done to assess the possible workforce and resource
requirements stemming from the Draft Bill. From the available
documentation, however, that assessment appears to lack rigour
and to be based on potentially flawed assumptions.
4.10.4 Foremost amongst
these is the fact that the calculations ("Explanatory Notes"
p134) assume that there will be no overall increase in the
numbers subject to compulsion. From comments made above, it
can be seen that this is a distinctly risky assumption.
4.10.5 Even
if that assumption is well founded, however, concerns remain about
how the workforce requirements as stated might be delivered. For
instance, the projections suggest an additional 130 psychiatrists
(wte) will be needed.
Currently Consultant vacancies in the UK are somewhere
between 12 and 15%
(ca 400 psychiatrists). There is a danger that the
Draft Bill would have the undesirable and possibly dangerous effect
of exacerbating shortages, consequently drawing psychiatrists
away from providing direct clinical care. This would pervert the
very principles underlying the need to modernise mental health
legislation in the first place. Similar observations apply to
other professional groups.
Recommendation 3
Steps should be taken to ensure
that the workforce assumptions connected with the Draft Bill are
fully determined and the risks associated with them comprehensively
understood. Following that, work should be done to identify the
full resource requirements, and means found to deliver them in
such a way that it can be guaranteed that resource is not diverted
away from direct clinical care.
For and on behalf of the Trust Board
Ms Neera Tyagi
Vice Chairman
Leeds Mental Health Teaching NHS Trust
28 October 2004
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