DMH 156 NACRO 2
12
September 2002
Nacro's response to the Draft Mental Health
Bill published June 2002
Introduction
Nacro welcomes the opportunity to participate in
the process aimed at producing a new Mental Health Act. The existing
Act (the Mental Health Act 1983) has proved a generally sound
piece of legislation. However, it was designed for a time when
hospital-based care and treatment were the norm in the psychiatric
services and, since this is no longer the case, it is long overdue
for reform. Over the last decade, the focus of psychiatric services
has moved increasingly towards community-based services and patient
centred issues, such as capacity, and new legislation is needed
to reflect these major changes.
In responding to the Draft Bill, Nacro's particular
concern is with how the proposed legislation would serve mentally
disordered offenders (MDOs). Various studies and surveys over
the last decade or so have shown that a significant proportion
of both remand and sentenced prisoners are mentally disordered,
while the number of offenders who are recognised as being mentally
disordered before or while they are being dealt with by the courts
has also risen. The way in which the legislation impacts on this
section of the population is therefore, in our view, of considerable
importance.
Our response to the Draft Bill is in three main parts.
First, we set out our general comments on the Draft Bill and the
consultation process. In the second part, we respond to the points
in the Consultation Document accompanying the Draft Bill. We have
not attempted to respond to all the consultation points but have
reserved our comments for those points which we believe are particularly
relevant to MDOs. In the third part, we set out our views in relation
to specific matters in the Draft Bill where these have not already
been covered in earlier comments.
General comments
PROCESS
We have a number of general concerns about the Draft
Bill, the first of which relates to the consultation process.
The initial review of the Mental Health Act undertaken by the
Expert Committee chaired by Professor Genevra Richardson was subjected
to considerable pressure to achieve completion within a short
timescale. Having done so, the Expert Committee's Report[226]
was published in November 1999, alongside the Green Paper Reform
of the Mental Health Act 1983 - Proposals for Consultation[227].
Despite that initial urgency, the White
Paper Reforming the Mental Health Act[228]
did not appear until December 2000 and it has taken a further
two and a half years for the Draft Bill to be produced.
Notwithstanding this protracted process, consultation
on the Draft Bill is now again subject to unseemly haste. The
Draft Bill has been published without warning and with a consultation
period precisely timed to coincide with the summer months during
most of which Parliament will be in recess and MPs and others
will be away. This seriously curtails the opportunity for proper
consultation and hampers organisations which normally consult
widely among staff and members or through a committee structure.
INCOMPLETE BILL
The consultation process is further invalidated by
the fact that the Draft Bill - as stated in the consultation document
- does not include everything which it is intended should be in
the Final Bill to be introduced to Parliament, thus preventing
a full public debate about all of the proposals. It is difficult
to be anything other than worried about what else will emerge.
Given that mental health legislation goes to the heart of individual
liberty and public well-being, this is a very serious concern.
DRAFTING
We are extremely concerned at the poor quality of
the drafting of the Bill, which has frequent cross-referencing
back and forth, making it excessively, and unnecessarily, difficult
to follow. It makes already complex legislation into something
virtually incomprehensible. We believe this is a serious flaw
and, if it is not put right, the resulting legislation is likely
to be almost impossible for practitioners to apply when it finally
comes into force. This is likely to lead to Judicial Reviews which
will be lengthy, and during which patients may be detained erroneously
and will be subject to continuing anxiety and uncertainty.
We are similarly concerned about what the Code of
Practice will look like if it is required to clarify ambiguous
or poorly drafted statute - by definition the Code should be easily
understood by the range of professionals involved in enacting
the legislation and should be free of ambiguity or unnecessary
detail.
DEFINITION OF MENTAL DISORDER
Nacro favours the new definition of mental disorder,
which is broader than that contained in the Mental Health Act
1983. We recognise the concerns expressed by some service users
and practitioners about the new definition but we believe that
for others - eg those working in the criminal justice system -
it will be much easier to understand. We also hope that it will
prevent many MDOs, who are currently excluded from services and
assessments because they do not meet the criteria under the current
Act, from being excluded in future.
GENERAL PRINCIPLES
We wholeheartedly support the inclusion in the Draft
Bill of the general principles which are to underpin the provisions
in the new legislation. However, we are very disappointed at the
following gaps in those principles:
- there is no principle of reciprocity;
- there is no right of access to a mental health
assessment;
- the Green Paper principle 'Informal care and
treatment should always be considered before recourse to compulsory
powers' has been excluded;
- there is no principle with regard to patient
capacity.
We think that, if the inclusion of the general principles
in the new legislation is to have any real meaning, these omissions
must be remedied.
TRIBUNAL SYSTEM
We favour the proposals which provide for greater
scrutiny of the imposition and maintenance of compulsory powers
by the new Mental Health Tribunal - though we have considerable
doubts about whether these improvements can be achieved (see Resources
p6 below). We are also pleased to note that the Draft Bill recognises
the need for there to be two separate tribunal mechanisms: one
to deal with decisions about care and discharge and the other
to deal with appeals (the latter being the responsibility of the
new Mental Health Appeal Tribunal). We do have some reservations
about the proposal for Single Member Tribunal Sittings and these
are addressed in response to the consultation points below (p8).
ASSESSMENT
We particularly welcome the improvements in the arrangements
for assessment which will allow patients (both offender and non-offender)
to undergo mental health assessment in non-residential settings
in the community, rather than requiring them to be detained in
hospital. In the current system, mentally disordered offenders
are often excluded from relevant services and resources because
they carry the label 'offender'. We are concerned that this may
remain a problem but we are hopeful that the new arrangements
will be beneficial in terms of reducing the use of remands in
custody for offender patients.
COMPULSORY TREATMENT IN THE COMMUNITY
Although we welcome the provisions facilitating assessment
in community settings, we remain fundamentally opposed to the
concept of compulsory treatment in the community. We take
the view that those who are sufficiently disordered to warrant
treatment on a compulsory basis are also sufficiently disordered
to require detention and treatment within a hospital environment.
We would argue that those who are non-compliant with medication
and fail to co-operate with other aspects of care and treatment
are the least suitable candidates for compulsory treatment in
the community, since they frequently fail to turn up for appointments
or to keep appointments scheduled at their own place of residence.
In cases where this does not apply, it is difficult to see why
compulsory measures would be needed.
There is a risk that the use of the resources of
various agencies to trace individuals who failed to comply with
compulsory orders would be disproportionate and would act adversely
on the delivery of services to the majority of patients who can
be safely and effectively maintained at a reasonable level of
functioning within the community, without resort to compulsory
measures.
There are legitimate reasons - such as side effects
and personality clashes - why people may sometimes not wish to
take medication or to co-operate with certain aspects of their
care plan. We believe that the way to deal with this is to work
intensively with such individuals in order to gain their trust
and to achieve treatment goals which are in their own interests.
The aim should be to work with patients to achieve a satisfactory
level of functioning, not simply to use their concerns as a trigger
to initiate compulsory powers. The service model of assertive
outreach, prison in-reach, and crisis teams has made a considerable
difference to working with MDOs and we are concerned that the
emphasis on compliance will undermine this good work and may lead
people to disengage from services and move away.
We are disappointed that the emphasis in respect
of community treatment is on compulsion. We strongly believe that
the emphasis should be on properly resourcing comprehensive community
mental health services, so that the risk of patients' conditions
deteriorating to a point where compulsory treatment becomes necessary
is substantially reduced.
PART 3: PATIENTS CONCERNED IN CRIMINAL PROCEEDINGS
ETC
The provisions in this part of the Draft Bill are
largely unchanged from those in the existing Mental Health Act.
There has been no substantial research to indicate whether the
existing provisions work well or to identify what deficiencies,
if any, there are. The systematic review[229]
of the existing provisions which was undertaken around the same
time that the Expert Committee conducted its wider review of the
1983 Act found:
- an almost exclusive emphasis on quantitative
data that, in isolation, do not provide an adequate basis on which
to judge the effectiveness of existing legislation;
- most research has been opportunistic, with research
questions arising from the available data rather than from careful
consideration of what questions should be asked;
- research designs often result in no more than
a descriptive analysis of the use of the legislation itself or
of the resources associated with those provisions: to judge the
appropriateness of the legislation itself, research needs to be
more clinically driven;
- there has been relatively little research at
all on Part III compared to other provisions of the existing Mental
Health Act;
- the majority of research that has been done is
skewed towards the remand provisions and the use of restriction
orders and conditional discharge under Part III.
In our view, this lack of research reflects the fact
that insufficient attention has been paid to the provisions relating
to MDOs. We have no confidence that the status quo is now
largely being maintained because it represents the optimum procedure
for dealing with MDOs. We would urge that high quality research
on the working of this Part of the new Act should be initiated
without delay, so that in future Government will be properly informed
about how well the arrangements work and decisions about any necessary
changes can be made on the basis of proper research evidence.
DEALING WITH DANGEROUS PEOPLE
The White Paper published in 2000[230]
separated out the proposals in relation to high risk patients,
including the very small group - designated as dangerous people
with severe personality disorder - who pose a high level of risk
of serious harm to others. Personality disorder is an extremely
complex mental health issue, which poses difficult questions about
diagnosis, care, treatment, management and risk.
Nacro had previously welcomed the programme of research
to find better more exact ways of assessing risk and dangerousness
(and parallel research to identify effective responses to those
so assessed). In the absence of conclusions from that research,
risk assessment remains a far from exact science, hardly a sound
basis for indefinite detention[231].
In respect of public safety, we are concerned that the Government
may be making a serious error in equating offending behaviour
with a higher risk of future violent or dangerous behaviour. As
Nacro showed clearly in its publication Risks and Rights[232],
previous behaviour or offending does not, of itself, accurately
predict future risk.
We are dismayed that in the Draft Bill there is no
distinction between this high risk group and mentally disordered
people generally, adding weight to the public perception that
all mentally disordered people are dangerous and leading to widespread
concerns that compulsory powers may be applied and maintained
inappropriately as a result of wrong diagnosis or inaccurate risk
assessment. The alarm of people who fear that they may inappropriately
be made subject to coercion under a new act is a serious cause
for concern. The likelihood is that such fears will drive people
away from contact with relevant agencies and services, thus having
the opposite effect to that which the Government desires, which
is to increase public protection.
In our response to the consultation paper Managing
dangerous people with severe personality disorder[233],
we supported the proposal for a new jurisdiction alongside mental
health and criminal justice legislation to deal with this small
group of dangerous people. The new jurisdiction was to involve
the establishment of an indeterminate reviewable sentence and
we favoured the development of a 'single system' approach, incorporating
risk assessment, therapeutic regimes and secure positive management
with new service provision within a system comprising the range
of existing health, criminal justice and social care provision
for this category of offender.
We believe it is important to remember that those
who fall into this small group are exceptional and special provision
needs to be made for them. The vast majority of MDOs commit relatively
minor offences. Only a small proportion represents a significant
risk to others which justifies detention in a secure setting.
We are disappointed to find that the proposal for a new jurisdiction,
especially to cater for the small high risk group, appears to
have been abandoned in favour of a 'one size fits all' form of
mental health legislation. We believe this is a mistake.
We note that the new Criminal Justice White Paper
Justice for All includes a proposal for a new sentence
to ensure that dangerous violent and sexual offenders stay in
custody for as long as they present a risk to society. We wonder
whether this is intended to serve in place of the separate jurisdiction
for high risk patients. If that were the case, it is not clear
how it would be linked to the specialist assessment and regimes
which such patients would clearly need.
Approved Mental Health Professionals (AMHPs)
We do not object in principle to the role of the
Approved Social Worker (ASW) being extended to other mental health
professionals provided that they are properly trained and qualified
with the emphasis on the range of skills, knowledge and experience
they would need in order to qualify for approval, so as to provide
a social care - as opposed to medical - perspective on cases.
We think it is essential that AMHPs should be capable of
maintaining their independence when considering cases with their
medical colleagues and that the need for mental health professionals
and clinicians to reach independent conclusions should be emphasised.
There is also the question of accountability, which becomes even
more of an issue, as in many cases both AMHPs and their medical
colleagues will be employed by the same Trust. We would expect
the Code of Practice to continue to give strict guidance on the
issue of complicity and would wish to see this aspect of the process
being monitored by the new health care inspectorate.
PATIENTS LACKING CAPACITY
We also welcome the inclusion of proposals in relation
to the informal treatment of patients not capable of consenting
(Part 5 of the Draft Bill), which seek to resolve the 'Bournewood
Gap'.
RESOURCES
The proposed new legislation, particularly in the
context of the new Mental Health Tribunal, will necessitate considerable
additional resources. The existing tribunal system is already
under severe strain and the new Tribunal will have additional
powers and responsibilities requiring yet more personnel and resources.
We see no reason to dispute the statement by the
Royal College of Psychiatrists and the Law Society[234],
which estimates that 600 additional psychiatrists will be required
to service the new tribunal system alone. We do not believe an
adequate pool of sufficiently trained and qualified staff exists
at the present time and the training of new psychiatrists is a
lengthy process.
We would like to suggest that the running of the
Tribunals should be funded by a source other than the Department
of Health, since it is a judicial process and not a function of
patient care. Arguably, as a judicial process, there would be
greater justification for it to be financed by the Lord Chancellor's
Department. This would also emphasise the independence of the
Tribunal.
As indicated above (Compulsory treatment in the
community, page 3), we believe the emphasis should be on avoiding
the need for compulsion, whenever possible, through the provision
of properly funded and resourced, comprehensive mental health
services.
If the new legislation is to be fully effective on
implementation, the matter of resources must be addressed and
clear commitments regarding funding and resources will need to
be spelt out.
Our views on the issues highlighted for consultation
As indicated in our introduction, we are concentrating
primarily on those issues which relate to MDOs, though we are
also commenting on some of the broader issues which we think will
also have an impact on offenders. In each case, we include the
heading of the consultation issue and the relevant paragraph number
from Chapter 3 of the Consultation Document.
SCRUTINISING THE PROPER APPLICATION OF THE ACT
PARA 3.5
We support the proposal for improved scrutiny functions.
In our view, it is essential that these functions - including
visits where there is concern about a patient's care - should
also apply in prison settings so that MDOs in prison would receive
the same protection as other patients.
PROTECTING CHILDREN WITH SERIOUS MENTAL DISORDERS
PARA 3.10
We welcome the proposal to extend the legal rights
and protection of young people, enabling those of 16 plus to take
decisions without parental consent, but we believe the issue of
consent to treatment should be considered separately from the
provision of treatment. We would not be happy if the fact that
the Draft Bill treats those aged 16 or 17 as adults were allowed
to undermine delivery of treatment to them through Child and Adolescent
Mental Health Services (CAMHS).
We think the Bill should include a specific focus
on the needs of children and young people. In particular, the
regulations concerning approved clinicians and mental health professionals
should ensure that those working with children and young people
have relevant training and experience in relation to child and
adolescent mental health services.
RESPECTING THE LEGAL RIGHTS OF PATIENTS AND HEALTH
CARE WORKERS
PARA 3.17
We believe that the balance in the current framework
needs adjusting and agree that the proposal in the amended provisions
appears to strike the right balance. However, we believe there
should be greater emphasis on mechanisms other than the courts
for dealing with complaints (though the courts will necessarily
remain a point of recourse where other arrangements for dealing
with complaints have failed).
FOCUSING ON INDIVIDUAL NEEDS, REMOVING EXCLUSIONS
PARA 3.24
We see no need for specific exclusions to be contained
in any new Mental Health Act. We take the view that the existing
exclusions have on occasion been used to exclude people from access
to mental health services they needed, especially in the case
of those with mental health problems who also have problems with
substance misuse. The purpose here is not to suggest that substance
misuse on its own is a mental disorder but to ensure that the
definition of mental disorder is not used to exclude those with
co-morbidity from services so that they fall into the gap between
mental health and substance misuse services. Comprehensively funded
services are required and these must also cater for alcohol misuse.
There is a tendency for both substance misuse and psychiatric
services to concentrate on drug misuse and overlook the problems
caused by alcohol misuse. Proper application of the conditions
governing compulsion should provide adequate safeguards to prevent
inappropriate interventions.
PARA 3.25
We note that the 'relevant conditions' quoted in
the Consultation Document are not identical to those set out in
Clause 6 of the Draft Bill. In the Draft Bill, sub-section 6(4)(a)
dealing with high risk patients excludes the requirement that
treatment cannot be provided unless the patient is subject to
the provisions of the Act. We see no justification for this exclusion
and we are concerned that the conditions as drafted will result
in an unjust, two-tier process of assessment. If this is an attempt
to cater for dangerous people with severe personality disorder,
we believe it is flawed and will not provide a satisfactory solution.
As indicated above (Dealing with dangerous people, p4), we believe
there should be a new separate jurisdiction to deal with this
group.
We are also disappointed that the condition included
in the Green Paper: 'that the care and treatment proposed for
the mental disorder and for conditions resulting from it, is the
least restrictive alternative available consistent with safe and
effective care' has been removed from the conditions and believe
this should be restored in place of the fourth condition included
in the Draft Bill.
SHARING INFORMATION TO IMPROVE PATIENT CARE
PARA 3.32
We believe that information sharing between agencies
is crucial to the effective management of MDOs, to ensure that
patients get the care and treatment they need. We believe that
this is the case not just where compulsory treatment is being
considered but also as a general principle in relation to the
delivery of mental health services. Better communication between
agencies would lead to better quality care and reduce the likelihood
of a deterioration in a patient's condition to the point where
compulsory treatment became necessary.
We welcome the proposal to include a statutory duty
to co-operate in the sharing of information and believe this should
apply just as much to the care planning process as to issues of
risk management and assessment. In our view, clear guidance on
information sharing protocols is essential and must be backed
up by active mechanisms to ensure that these are adopted and used
appropriately at a local level. There will be a substantial cost
- in respect of the training, the development input and the changes
to information recording systems that are required - and resources
will need to be made available for this.
BETTER CARE FOR PRISONER PATIENTS
PARA 3.42
We believe that the right to a mental health assessment
(see General principles above, p2) should be enshrined
in the new Act and should also be extended to prisoners, whether
sentenced or on remand.
We are concerned, however, that assessment should
not take place in inappropriate settings. If assessments are to
be conducted in prisons, this should only be in a properly resourced
health/assessment centre.
We have welcomed the spirit of Changing the Outlook,
a Strategy for Developing and Modernising Mental Health Services
in Prison[235]
because we recognise that there will always
be some offenders whose offence[s] warrant a prison sentence and
whose mental health needs do not warrant care and treatment in
hospital but do nevertheless require some input while the person
is in prison. For prisoners who are compulsorily detained and
treated in psychiatric hospital but who then return to prison,
the Bill should specify a statutory requirement for care planning
during the remainder of their sentence and after their release.
We believe strongly, however, that prison is not
an appropriate setting for the provision of compulsory
treatment and that where treatment of a prisoner on a compulsory
basis becomes necessary that individual must be transferred to
hospital.
For prisoners whose assessed treatment needs do not
bring them within the criteria for compulsory treatment, there
is, in our view, a need for the Bill to specify what should happen
to them. First, we think the Bill should require that offenders
believed or suspected to be suffering from mental disorder should
be assessed by approved clinicians and approved mental health
professionals. This assessment (probably through prison in-reach,
as currently being piloted in a number of prisons) should be wider
than simply assessing whether compulsory treatment is needed.
Where compulsory treatment is not needed but where there are identified
mental health needs that would benefit from support and treatment
in the widest sense, this should be provided by community based
mental health services working alongside the relevant prison staff
(again probably through prison in-reach, as currently being piloted
in a number of prisons). The aim should be to ensure there is
continuity of care for such prisoners while in custody and after
their release.
MENTAL HEALTH TRIBUNALS - SINGLE MEMBER SITTINGS
PARA 3.49
We are prepared to accept that a single member tribunal
would normally be sufficient for uncontested cases and this would
alleviate some of the pressure on the tribunal system. However,
we are uncomfortable about the possibility of single member tribunals
in any other circumstances as this would remove the checks and
balances provided by the full tribunal structure. Who, for example,
would decide whether an application related to a 'simple matter
of fact'? We think that the pressures on the tribunal system -
which are already considerable and which are likely to increase
under the new system - would make it tempting to use single member
sittings as a matter of expediency rather than appropriateness
and we are concerned that they should not be used as a result
of financial or administrative pressures, regardless of the suitability
of individual cases. On a practical level, it is likely it would
be necessary for the single member to obtain views from members
of the Expert Panel and, in that event, potential savings in terms
of time and costs would be significantly reduced.
INFORMATION FOR VICTIMS
Para 4.2
We agree that there is a distinction between clinical
information relating to the care and treatment of a patient and
information concerning detention and release under the Mental
Health Act. We support the proposal that victims of mentally disordered
offenders should be entitled to receive relevant, clearly defined
information concerning the detention and release of patients who
have committed serious violent or sexual offences. Clear guidance
on exactly what information could be released, in what circumstances,
and to whom, should, in our view, be included in the Code of Practice.
CRIMINAL PROCEDURE (INSANITY) LEGISLATION
PARA 4.3
We are disappointed that the intended new provisions
for amending existing insanity legislation have not been included
in the Draft Bill so that we are unable to comment on them.
PROVIDING CARE FOR PATIENTS ON COMMUNITY ORDERS
PARA 4.4
We are totally bemused by the suggestion that patients
subject to compulsion may be charged for the provision of services
that they need. This is unprincipled, unethical and would be a
further incentive to people to seek to avoid involvement with
the mental health services, thereby potentially putting themselves
and others at greater risk.
COMPULSION SIMULTANEOUS WITH A PRISON SENTENCE
PARA 4.7
We see no reason for a change to the situation which
currently obtains under the Mental Health Act 1983.
Specific comments on the Draft Bill
In this section, we comment on specific issues arising
from the Draft Bill where these have not already been covered
by comments made earlier.
PART 1: INTRODUCTORY
CLAUSE 1: CODE OF PRACTICE
The Code of Practice needs to be consistent with,
and complementary to, other relevant codes. Currently there appear
to be operational differences between the latest Code of Practice
for the 1983 Act and that for the Police and Criminal Evidence
Act 1984, particularly with reference to s136 of the 1983 Act.
Clause 2(8)
We would like clarification about the regulations
covering 'approved clinicians'. It would be helpful to know who
would qualify. For example, we think there should be routes available
making it easier for forensic medical examiners (FMEs) and general
practitioners (GPs) with appropriate knowledge and experience
to obtain approval.
Part 2: Examination, assessment and treatment
Chapter 3: Assessment
Clauses 17 and 18
We welcome the introduction of a 24 hour time limit
for applications to be registered and the reduction to 7 days
of the period during which non-emergency patients must be admitted.
PART 3: PATIENTS CONCERNED IN CRIMINAL PROCEEDINGS
CHAPTER 1: REMAND
Clause 61(4)
We welcome the reduction from 6 months to 16 weeks
of the maximum overall period during which a patient may be remanded
for assessment.
Clause 62(1)
We also welcome the extension to the magistrates'
court of the power to remand for treatment. (We must comment that
the drafting of subsection (2) and of Clause 66 is so complicated
as to make it virtually impossible to determine to whom the measures
would apply.)
Clause 75(2)
We trust that patients who wished to obtain their
own independent medical report would be eligible to apply for
legal aid for this purpose.
CHAPTER 2: ORDERS AND DIRECTIONS
Clause 77(4)
We welcome the requirement that courts must consider
a care plan before making an order for compulsory treatment.
CHAPTER 3: TRANSFER TO HOSPITAL
Clause 92(2)
We think this will make it easier for the transfer
of mentally disordered prisoners to hospital for assessment to
be effected because it will only be necessary to show that the
individual is suffering from mental disorder and nothing further.
Clause 96(6)
We welcome the reduction from 14 to 7 days for the
transfer period for remand prisoners and wonder whether a similar
reduction could not also apply to sentenced prisoners, for whom
the period is 14 days (Clause 94(6)).
CHAPTER 4: APPLICATIONS AND REFERENCES TO THE MENTAL
HEALTH TRIBUNAL
Clause 102 entitles restricted patients, under Part
3 of the Draft Bill, to make an application to the Mental Health
Tribunal. It is understood that Clause 42 provides access to the
Tribunal for unrestricted patients, who are subject to compulsory
powers under Part 3, but this has not been set out clearly. The
Bill must make it clear that unrestricted Part 3 patients can
apply to the Tribunal.
Clause 106(2)
We welcome the requirement to refer the cases of
patients recalled to hospital to the Mental Health Tribunal within
7 days.
PART 4: MEDICAL TREATMENT
Clause 118(2)
We are most concerned at the provisions allowing
the use of electroconvulsive therapy (ECT) without a patient's
consent. We take the view that ECT should never be administered
to any patient who retains capacity without that patient's consent
and that there is no justification for overriding this principle
in an emergency.
PART 6: POWERS OF ENTRY, CONVEYANCE AND DETENTION
CLAUSE 143
This appears to be a new power enabling the police
to enter private property in an emergency without a warrant. We
wonder what evidence there is that such a power is necessary and
that in such cases it has not been possible for the police to
gain access under common law? We are concerned about the possibility
that this power may be used simply to avoid the trouble of obtaining
a warrant and of the potential for violation of human rights.
CLAUSE 144
We welcome the power facilitating the movement of
patients from one place of safety to another which should mean
that patients originally taken to the police station can be moved,
if appropriate, to another more suitable setting.
Conclusion
There are some aspects of the Draft Bill which we
are particularly pleased to see, especially the introduction of
care plans, the measures facilitating remands for assessment in
non-custodial settings, and closer scrutiny of the management
of cases by the Mental Health Tribunal.
Nevertheless, we remain extremely disappointed at
the continuing focus on compulsion in the community with the resultant
increased involvement of the police which will be required where
patients fail to comply and have to be conveyed to hospital. We
believe this will have a detrimental effect on patients' engagement
with community mental health services. We are also concerned that
there is to be no separate jurisdiction for dangerous people with
severe personality disorder.
Whilst we are not opposed in principle to the extension
of the current role of ASWs to other mental health professionals,
we do have concerns about the possible implications of this. Social
care and housing are key aspects of the successful maintenance
of mentally disordered people within the community. We would not
wish to see any reduction in the commitment of social services
and housing departments as a result of a reduction in the statutory
responsibilities of local authority staff, thus leading to even
greater emphasis on a medical model of care.
In our view, therefore, there are still extensive
flaws in the Draft Bill and we would urge strongly that these
should be remedied before the Bill is placed before Parliament.
S:\mhu\Reform of MHA\MH Bill response final 12.09.02
226
Report of the Expert Committee chaired by Professor Genevra Richardson
(1999) Review of the Mental Health Act 1983 London: Department
of Health Back
227 Department
of Health (1999) Reform of the Mental Health Act 1983 - Proposals
for Consultation London: The Stationery Office Back
228 Department
of Health/Home Office (2000) Reforming the Mental Health Act
London: The Stationery Office Back
229 Wall S,
Churchill R, Hotopf M, Buchanan A and Wessely S (1999) A systematic
review of research relating to the Mental Health Act 1983
London: Department of Health Back
230 The White
Paper comprised two parts: 'Part I - The new legal framework'
and 'Part II - High risk patients' Back
231 At the
launch of the consultation paper Managing dangerous people
with severe personality disorder on 19 July 1999, Professor
Jeremy Coid indicated that, using positive prediction value(PVD)
correct predictions were only likely in 7 out of 10 cases and,
using negative prediction value (NVD), the rate fell to 6 out
of 10. Back
232 Jewesbury
I, Sandell G and Allen R (1998) Risks and Rights: Mentally
Disturbed Offenders and Public Protection London: Nacro Back
233 Home Office/Department
of Health (1999) Managing dangerous people with severe personality
disorder - Proposals for policy development London: Department
of Health Back
234 25 June
2002 Back
235 Department
of Health, HM Prison Service and National Assembly for Wales (2001)
Changing the Outlook, a Strategy for Developing and Modernising
Mental Health Services in Prisons London: Department of Health
(The Head of Nacro's Mental Health Unit is a member of the Expert
Group on Mental Health Care in Prisons chaired by Professor Louis
Appleby) Back
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