DMH 301 Memorandum from the Royal College
of Nursing of the United Kingdom
Executive Summary
- The RCN welcomes the opportunity to respond to
the joint committee on the second draft of the Mental Health
Bill. The RCN acknowledges that the Government has accommodated
many of the concerns raised by the RCN on earlier drafts of the
Bill and welcomes the progress which has been made. However,
there do remain areas of particular concern to the many mental
health nurses within the RCN.
- The RCN has concerns about treatment
under compulsion. Compulsory treatment should always be used
as a last resort. An emphasis on compulsory treatment is likely
to increase, rather than decrease, any risk to the public, as
fear of indeterminate detention is likely to discourage people
with mental health problems from seeking help. Mental health nurses
believe that being involved in any detention of patients which
is not therapeutic as opposed to "clinically appropriate"
will compromise their role.
- Mental health nurses have concerns about community
treatment orders. A patient who requires compulsory treatment
is inevitably seriously unwell. Where a patient is so unwell as
to require compulsory treatment, that patient almost always needs
inpatient care. This is evidently the case where the only form
of treatment amenable to enforcement is chemical. It is unlikely
that community resources will be sufficient to provide adequate
care for such patients without placing a further burden on community
staff and carers. It is unacceptable that compulsory treatment
in the community is used to ease pressure on in-patient beds.
- Whilst we welcome the inclusion of measures such
as advocacy and mental health tribunals, we feel that advocacy
should be available at the point of consideration of detention,
rather than commencement of detention.
- The RCN has serious concerns about the implication
of the draft Bill on the nursing workforce. Some of the proposals
in the Bill will add a new dimension to the nursing role which
may well be counter productive and could damage the nurse-patient
relationship.
- It should be emphasised that problems in community
care are a result of lack of resources rather than the lack of
legal powers of compulsion.
Introduction
1.1 With a membership of over 370,000 registered
nurses, midwives, health visitors, nursing students, health care
assistants and nurse cadets, the Royal College of Nursing (RCN)
is the voice of nursing across the UK and the largest professional
union of nursing staff in the world. RCN members work in a variety
of hospital and community settings in the NHS and the independent
sector, and in educational settings. The RCN promotes patient
and nursing interests on a wide range of issues by working closely
with Government, the UK parliaments and other national and European
political institutions, trade unions, professional bodies and
voluntary organisations.
1.3 The RCN is a member of the Mental Health Alliance,
a group of over fifty voluntary, professional and representative
organisations. The RCN shares the Alliance's concern regarding
many of the proposals within the draft Bill.
Specific issues for comment
2. Is the Draft Mental Health Bill rooted in
a set of unambiguous basic principles? Are these principles appropriate
and desirable?
2.1 The RCN considers that the failure to embed the
draft Bill within a set of explicit and enumerated principles
as utilised in the Scottish Mental Health Act is a serious omission.
The most salient of these being that, 'service users should be
provided with any necessary care, treatment and support in the
least invasive manner and in the least restrictive manner and
environment compatible with the delivery of safe and effective
care, taking account, where appropriate, of the safety of others.'
Such a set of principles can translate into values based practice
and education for service providers. It would also provide a bench
mark for an ethical audit of care and treatment. The RCN believes
that the set of principles outlined by the Mental Health Alliance
provide the best foundation on which to base the Bill.
3. 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?
3.1 The RCN considers that the present definition
of disorder has afforded a greater degree of clarity. Expansion
on the conditions for treatment and care under compulsion have
allowed for greater clarification. However, under the terms of
the draft Bill the issue of "clinically appropriate"
treatment does not require a demonstration that such treatment
would also be of therapeutic benefit to the client. The RCN considers
that expanding on this in the draft Bill would benefit both nursing
staff and clients.
3.2 The issue of treatment under compulsion in non-residential
settings continues to be a considerable concern
for mental health nurses. The issues surrounding non-compliance
with medication are complex and the proposed solution in the Bill
is both simplistic and coercive. In other countries the criteria
surrounding community treatment orders are so specific as to limit
their use to a very specific client group. As indicated in the
written evidence submitted by the Mental Health Alliance, it is
rare in other countries such as Australia and New Zealand for
a community order not to be preceded by a period of assessment
and treatment in hospital. The RCN endorses the recommendations
of the Alliance that a set of criteria similar to those used in
the Canadian province of Saskatchewan be introduced into law.
3.3 As the RCN made clear in its response to the
consultation on the draft Mental Health Bill in 2002, many mental
health patients are cared for successfully in the community.
However, if a patient is so unwell as to require legal compulsion
that patient almost always also requires inpatient care. We acknowledge
that there are some exceptional cases where this is not the case,
but would emphasise that these are very rare. A patient who requires
legal compulsion is, inevitably, seriously unwell. Existing community
resources will rarely permit adequate care of such patients and
the burden on family and other carers is likely to be very great.
The RCN therefore has serious concerns about assessment and treatment
in the community. In the absence of additional safeguards we
believe that these proposals might lead to:
- Compulsory treatment taking place
in the community, due to lack of hospital beds, when the patient
ought to receive hospital care;
- Compulsory medication being used as a substitute
for adequate mental health care;
3.4 The RCN suggest the following safeguards:
- Compulsory treatment should take place in hospital
unless the best interests of the patient specifically require
that it should take place in the community;
- Before making a decision involving compulsory
community care, the tribunal must make enquiries and ensure that
sufficient resources will be available for the care of the patient
in the community;
- The tribunal must be assured that the patient
will have access to mental health care, according to need, 24
hours a day;
- If a situation arises where a patient in the
community needs to receive treatment against resistance, this
should lead to immediate transfer of the patient to inpatient
care until further notice;
- The Mental Health Act Commission (or an equivalent
body) should monitor community care to ensure that these standards
are maintained;
4. 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?
4.1 The balance between individual rights and the
public safety is a difficult and fine judgement. We consider
that as nurses we have a duty to not only the client but also
a responsibility to those with whom they interact. However, we
feel that there is a risk here of perpetuating certain misunderstandings
regarding the propensity of mentally ill individuals to violence.
This may lead to inappropriate detentions and again create an
aversive perception of services that deters the most vulnerable
members of our society from seeking help. The RCN welcomes the
opportunity to discuss the guidance that the new Code of Conduct
will afford to practitioners in areas such as these.
5. Are the proposals contained in the Draft Mental
Health Bill necessary, workable, efficient, and clear? Are there
any important omissions in the Bill?
5.1 The RCN continues to have grave reservations
regarding the proposed non-residential treatment orders. These
focus mainly around our view that coercion could have a negative
and corrosive effect upon our relationship as mental health nurses
with our clients. Good and effective engagement with service
users is underpinned by a relationship built on trust not coercion.
Furthermore, this process could potentially alienate individuals
with whom we are most keen to engage with. "Revolving door"
clients are people who may be mistrustful of the services provided
and as mental health nurses we have more creative means of engagement
and maximising client outcomes than coercion. As a result the
RCN would welcome further clarification regarding the criteria
for the use of non residential treatment orders.
5.2 The RCN also believes that the needs of carers,
who may in some instances be young people, should be considered
and assessed if someone is so unwell as to require compulsory
treatment in a non-residential setting.
5.3 As mentioned previously (in 2.1), a major omission
has been the opportunity to explicitly clarify as in the Scottish
Act the clear underpinning principles that guide not only the
Act's structure but which would clearly guide its use.
5.4 The RCN believes that a clear consideration of
the issue of advanced directives would reinforce compliance with
human rights legislation. We support the Mental Health Alliance
view that advance directives are an important mechanism for safeguarding
and promoting a patient's interest and health. The RCN supports
the Mental Health Alliance recommendation that a duty to consult
the advance directives should be contained within the Bill.
6. Is the proposed institutional framework appropriate
and sufficient for the enforcement of measures contained in the
draft Bill?
6.1 The RCN underlines the Mental Health Alliance's
support for the Bill's proposals for advocates and for the mental
health tribunal, both of which are welcome measures. In earlier
stages of consultation the RCN has called for the inclusion of
advance statements as a useful tool for patients and clinicians.
We therefore welcome their inclusion in the draft Bill. However
we recommend the involvement of advocacy at the point of consideration
of detention rather than the commencement.
7. 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?
7.1 The RCN believes strongly that the emphasis on
individual 'case' consideration and the use of expert opinion
in situations of irreversible treatment are important safeguards.
7.2 The draft Bill places emphasis upon
parental consent to safeguard children who have serious mental
disorders. It is crucial that there are independent advocacy
arrangements in place to ensure that the best interests of children
and young people are always central to decision-making. The draft
Bill also underlines the need for legal intervention (either through
tribunal or court) prior to the use of electroconvulsive therapy
for children and young people. The RCN strongly supports this
measure as a means to safeguard the welfare of children and young
people. The RCN also emphasises the need
to ensure that children and young people are not cared for on
adult wards and that age-appropriate accommodation is provided
unless there are compelling reasons not to do so.
8. 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 Practices right?
8.1 The development of the Code of Practice is an
essential piece of work and is where much guidance is sought by
nurses in the implementation of legislation. The RCN looks forward
to contributing to the detail of regulations and codes of practice
from a practitioner point of view.
9. Is the Draft Mental Health Bill adequately
integrated with the Mental Capacity Bill (as introduced in the
House of Commons on 17 July 2004)?
9.1 There could have been clearer integration particularly
in the issue of Advanced Directives. This is an aspect of practice
that will undoubtedly impact on the delivery of services and needs
careful exploration. This may indeed occur within the Code of
Practice but would be a welcome addition to the Bill.
10. Is the Draft Mental Health Bill in full compliance
with the Human Rights Act?
10.1 Whilst guidance supplied by the Department of
Health provides examples of compliance, it is questionable that
the detention of an individual on the basis of their likelihood
to undertake future behaviour (which is notoriously difficult
to forsee) is consistent with the Human Rights Act.
11. 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?
11.1 This is an area of specific concern to the RCN.
The proposed workforce requirements of an extra 200 nurses to
implement this Bill are considered to be inadequate. The effect
of certain aspects of the Bill will undoubtedly impact upon the
work of nurses, in particular the non-residential treatment orders.
This may well create an added dimension to the nurse-patient relationship
that will prove counter-productive. It is envisaged that clients
may well withhold information regarding their health and treatment
for fear of a compulsory return to hospital. This may adversely
affect client outcomes as interventions may commence later rather
than sooner (contrary to the aspirations of the Bill).
11.2 The RCN believes that implementation of the
national service frameworks for mental health in England and Wales
and the availability of plentiful and attractive mental health
services would ensure better care for service users, support for
carers and lead to a reduction in the need for compulsion. Clients
possibly fail to engage with services simply because they do not
meet their perceived needs.
11.3 Furthermore it should be noted that where there
are problems in community care, these are not the result of a
lack of legal powers of compulsion. They are the result, notably,
of lack of resources and we would urge that greater resources
should be provided, and the dissemination of more creative ways
of working should be disseminated.
Royal College of Nursing
October 2004
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