DMH 156 NACRO 1
28 October 2004
Nacro's response to the Call for Evidence
by the Joint Committee on the Draft Mental Health Bill
Summary
Nacro welcomes:
- The new definition of mental disorder
- The conditions set for the provision of compulsory
treatment
- The provisions for assessment in non-residential
settings
- The decision not to introduce compulsory treatment
in prison
Nacro remains concerned about:
- The over-emphasis on compulsion
- The mechanism for dealing with 'high risk'
patients
- The complexity of the Bill
- The proposals relating to the provision of
ECT
- The apparent lack of appreciation of the major
increase in resources required, without which the Bill will be
unworkable.
Our full response follows.
28 October 2004
Nacro's response to the Call for Evidence
by the Joint Committee on the Draft Mental Health Bill
Introduction
1. Nacro, the crime reduction charity, is dedicated
to making society safer. Nacro believes that responses to offenders
with mental health problems should focus on their care and treatment,
rather than punishment, while recognising that there can be difficulties
in balancing the needs of the individual and safeguarding the
interests of the community.
2. Nacro's Mental Health Unit has been working
with national and local agencies in this field since 1990. Our
evidence to the Joint Committee reflects our interest in the overlap
between mental health and criminal justice issues. We have concentrated
on responding to the questions set out by the Joint Committee,
where relevant to our concerns. As background, we attach our response
to the 2002 Draft Mental Health Bill.
Question 1
3. Nacro welcomes the grounding of the Draft
Bill on general principles to underpin the provisions of the new
legislation, and endorses the basis for those principles as set
out in Clause 1.
Question 2
4. Nacro favours the new broader definition of
mental disorder. We believe that for many practitioners, such
as those working in the criminal justice system, it will be easier
to understand. From our work, we are aware that many criminal
justice practitioners believe that the exclusions in the 1983
Act are invoked to exclude 'difficult people' from services. The
broader definition and removal of the exclusions may result in
improving access to services for mentally disordered offenders
(MDOs).
5. We endorse the raising of the threshold of
risk to self and are generally satisfied that the 'relevant conditions'
for compulsory care and treatment are set at a sufficiently high
level to avoid unnecessary compulsion. We see no justification,
however, for the exception in Clause 9(7), relating to those considered
a substantial risk to others. The assessment process in relation
to all patients will involve determining whether they would comply
with treatment voluntarily, for the purposes of the fourth condition,
and in all cases it will be necessary to consider the whole picture.
The inclusion of the exception appears to be an artificial mechanism
for attempting to deal with a particular category of 'high risk'
patients. Such patients must still satisfy the other conditions
in order for compulsory powers to be imposed and we think the
exclusion clause is likely to lead to confusion in the application
of the conditions or to a two-tier assessment process. We do not
think concerns relating to provisions for 'high risk' patients,
which were expressed in response to the 2002 Bill, have been adequately
addressed.
6. We welcome the provisions which will allow
some patients (both offenders and non-offenders) to undergo assessment
in non-residential settings in the community, rather than in hospital.
We hope that the provisions allowing remand on bail for the preparation
of reports will reduce the use of remands in custody by the courts.
We would, however, favour the inclusion in the Draft Bill of criteria
governing whether assessment in the community should be permitted,
rather than the proposal to define categories of patients in regulations
(Clause 15(2)). At present, the basis on which patients will be
deemed suitable for assessment in the community remains unclear.
7. We particularly welcome the decision not
to introduce the use of compulsory treatment in prison. We understand
this position could change if the standard of healthcare in prisons
became comparable to that in the community. However, we regard
prison as a wholly inappropriate environment for the provision
of compulsory treatment and would remain opposed to such a change.
8. We remain unconvinced by the arguments in
favour of compulsory treatment in the community. According to
the launch of the Draft Bill on 8 September, the measure is intended
to deal primarily with 'revolving doors' patients. Such patients
frequently lead chaotic lifestyles and need the support of services
which can work with them on an intensive basis, such as the Revolving
Doors Link Worker scheme[225].
Service models, such as assertive outreach, prison in-reach and
crisis teams, have made a real difference, enabling MDOs and patients
in the community to engage with services on a voluntary basis.
Where such approaches are unsuccessful and a patient's condition
deteriorates to the point where compulsory treatment becomes necessary,
it will not be possible for treatment to be provided without recourse
to a return to hospital. We appreciate the merits of making the
process of returning patients to hospital less cumbersome. However,
we think the emphasis should be on ensuring that intensive services
are the norm in all areas, rather than, as at present, only patchily
available and inadequate to meet demand. If such resources were
in place, the need for compulsory treatment would be likely to
be substantially reduced.
Question 3
9. We welcome the improved safeguards for patients
but remain concerned that there is an over-emphasis on compulsion
and 'high risk' patients, which perpetuates the myth that mentally
disordered people are dangerous when, in reality, only a tiny
minority could be so categorised.
Question 4
10. The Draft Bill remains extremely complex
and difficult to follow, which is likely to make implementation
problematic. Whether the proposals will be workable in practice
will depend primarily on two factors. The Code of Practice will
need to be drafted in a clear and straightforward manner, making
clear what needs to be done, and by whom, to implement the new
provisions. Also the proposals in the Bill will require considerable
additional resources both in terms of services to support the
provisions for compulsory assessment and treatment and in terms
of personnel and support for the vastly increased role of the
Tribunal. We believe the resources required for the Tribunal have
been grossly underestimated and this could throw the viability
of the Bill into jeopardy.
Question 6
11. We welcome the increased focus on legal rights
and protection for children and young people. We think that, where
children and young people are to be treated on a compulsory basis,
or as 'qualifying patients', it is crucial that their care should
be supervised by a specialist in child and adolescent mental health.
We think regulations should stipulate that only in exceptional
circumstances would it be acceptable for a non-specialist to supervise
a young person's care. Resources must be provided to ensure a
sufficiency of appropriately trained and experienced clinicians
and mental health professionals.
12. Professional opinion about the use and efficacy
of ECT is divided. It is not universally accepted that its use
is advantageous. We do not believe that ECT should ever be given
to patients capable of consenting, without their consent. The
patient's autonomy and right to consent should be respected and
emergency grounds should not be used as a means of overriding
a patient's will where consent has already been refused. Where
patients lack capacity, ECT should only be given where this has
been authorised by the Tribunal (or the High Court), even in an
emergency. The assessment of whether a patient satisfies any of
the emergency conditions is a matter of clinical judgment and
not one on which all professionals would agree. It is not, therefore,
justifiable to remove the safeguard of authorisation by an independent
body.
Question 7
13. As indicated above (para 6), we think the
criteria governing whether assessment and/or treatment is to be
provided in the community should be included in the Bill, rather
than by way of categories of patients defined in regulations.
In other respects, we think the balance between what is contained
in the Bill and what will be included in the Code and in regulations
is about right.
Question 9
14. We have reservations about compatibility
with the Human Rights Act in relation to the power allowing police
to enter premises without a warrant and the provisions for 'high
risk' patients.
Question 10
15. In our view (see paras 10 and 11), the proposals
in the Bill have major implications in terms of human and financial
resources. Shortages of personnel and resources already exist,
especially in psychiatry and in the availability of community
services, such as outreach teams. In some areas, patients have
to wait a considerable time before they can be assigned to an
appropriate team. This has adverse repercussions for patients
awaiting discharge from hospital and for patients struggling in
the community with inadequate support. It can lead to decisions
which are resource, rather than needs, driven. We know of areas
where assessments are delayed, pending identification of a bed,
and we are concerned that lack of resources in terms of in-patient
facilities, may result in an inappropriate and under-resourced
use of compulsory treatment in the community, rather than in hospital.
16. The Bill's proposals will add a considerable
burden to existing demands. The Government's estimates of increases
in professional staff do not appear to be realistic or to take
account of drop-out rates, part-time working and retirement. More
thought needs to be given to recruitment and retention of staff
across the range of relevant disciplines.
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