DMH 107 Sainsbury Centre for Mental Health
Memorandum from the Sainsbury
Centre for Mental Health, October 2004
The Sainsbury Centre for Mental Health
(SCMH) is an independent charity working nationally to improve
mental health services through research, development and training.
Our knowledge of how services operate informs this submission
on the draft Bill. It covers those issues on which we have specific
evidence for the committee.
In addition to these concerns, SCMH
is a core member of the Mental Health Alliance and fully endorses
its submission.
1. Is the Draft Mental Health
Bill rooted in a set of unambiguous basic principles? Are these
principles appropriate and desirable?
1.1 The principles underlying any piece
of legislation that deprives people of their liberty must be clear
and binding. Placing them in a Code of Practice that can be over-ridden
in emergencies is not, in our view, sufficient.
1.2 The Government has rightly stated
that values lie at the heart of good mental health practice (Woodbridge
and Fulford, 2004). The values underpinning the draft Bill are
in many ways contradictory. The Explanatory Notes, for example,
state that it should reflect "modern patterns of care and
treatment for severe mental illness". Yet the Bill focuses
strongly on the medical, rather than social, dimensions of treatment
despite the many advances in the latter in recent years.
1.3 The Government also states that
it sees the draft Bill as strengthening safeguards for patients
- yet in many aspects the safeguards are weaker than those which
currently apply, such as the power of professionals over the appointment
of a nominated person and the failure to include advocates at
the examination stage.
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
2.1 The draft Bill's definition of mental
disorder is much broader than the 1983 Act, which made specific
reference to the nature and type of the disorder and which had
clear exclusions of drug and/or alcohol misuse, promiscuity, sexual
deviance and immoral conduct.
2.2 This may lead to mental health legislation
being used on people who do not have a mental illness. This could
turn many people away from using drug and alcohol services, for
fear of compulsory treatment. Using the mental health system to
treat such people will also block entry for people with severe
and enduring mental health problems.
2.3 We recommend that specific exclusions
be made within the definition of mental disorder. These need
not exclude people who have co-existing mental health and other
problems, regardless of the person's 'primary diagnosis'.
The conditions for compulsory treatment
2.4 The criteria for compulsory treatment
in the draft Bill are worryingly open to interpretation. While
clause 4, for example, ensures that patients must be treated without
resort to compulsory powers where it is possible to do so, clause
7 modifies and, in some cases, removes the basic principle of
treating people outside compulsory powers. It places no burden
of proof on professionals that compulsion is necessary. Any people
who fall into this category will have to fight an uphill battle
to demonstrate that their level of dangerousness to others has
reduced.
2.5 Section 9 (8) modifies these criteria
further, stating that a potential 'substantial risk' is to be
treated as a part of the determination of whether all of the above
criteria have been met. The notion of substantial risk is difficult
to establish. Many studies have shown that risk assessment is
frequently an imprecise science (Morgan 2000). Practitioners tend
to over-estimate risks and are often risk averse in their approach.
The term 'substantial risk' could lead to a culture of excessive
caution. The nature of the risk, its severity, likelihood and
consequences should be more clearly specified.
2.6 Most people who experience mental
health problems function normally in their communities. Though
they are symptomatic, they continue to live without support from
the mental health system. Since we know that using the mental
health system can lead to social exclusion (SEU 2004), its use
should only be enforced if an individual is disordered and not
functioning well within their social system. We recommend that
the issue of function be specifically addressed within the conditions.
2.7 The stipulation that treatment should
be appropriate and available is not enough of a safeguard. We
endorse the Mental Health Alliance policy that there should be
a test of therapeutic benefit for treatment imposed under the
Act. We suggest that treatment be defined as 'clinical and/or
social interventions that are likely to be of therapeutic benefit
to the individual concerned'.
Non-resident orders (NROs)
2.8 A system similar to that used in
Saskatchewan, Canada, should be considered for non-resident orders
in England and Wales.
2.9 Non-resident orders should only
be applied where there is clear evidence that they would reduce
the need for repeated compulsory admissions to hospital. There
are two key principles: that people are treated in the least restrictive
setting possible; and that the use of NROs should on balance benefit
the life of the individual by preventing the regular use of more
restrictive treatment settings.
2.10 Both principles are in the end
for the judgement of clinical and professional social care staff.
These judgements should be made more secure through the approval
of a qualified social care professional to the course of action
proposed and through a binding Code of Practice.
2.11 One of the conditions for a non-resident
order is that the treatment is available. It should also be accessible,
for example in terms of time, location and language. There should
be an obligation on the service provider to ensure that the person
can attend (e.g. funding a taxi, offering it at a time so that
they can continue to work).
2.12
We also note that existing guardianship
provisions, though under-used, are sufficient for most people
leaving hospital who need a more structured approach to their
treatment. They offer people treatment without the immediate
threat of being taken back to hospital if they do not comply.
They should be considered as a part of any new Act as an alternative
to NROs for some people.
Race equality
2.13 The current Mental Health Act is
not implemented equally among ethnic groups. African and Caribbean
people face a disproportionate risk of being placed under compulsory
powers and of receiving coercive treatment within them. This
discrimination can be explained only in terms of the stereotyping
of Black people in our society (SCMH 2002).
2.14 Although action is being taken
on this issue, racism will remain a real threat in mental health
services for the forseeable future. It is vital that a new Act
includes a specific provision for race equality and for monitoring
its use among different ethnic and religious groups. It should
also specify that any care or treatment under the Act is provided
in a culturally sensitive manner and environment. Without these
specific safeguards, Black people are likely to continue to stay
away from services.
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?
3.1 The draft Bill does not, in our
view, balance these two concerns. There is a significant risk
that the proposals in the Bill, and the message it sends out more
widely, will strongly contradict what the Government is trying
to achieve in tackling the stigma of mental illness and promoting
inclusion among those who experience it. The draft Bill is incompatible,
for example, with plans to help more people with mental health
problems to get into work, education and training.
3.2 Advances in the treatment of personality
disorders are providing therapeutically beneficial treatment options
for this group. Additionally, it is now possible to detain people
who have committed violent crimes for as long as is necessary.
Extra powers are not, therefore, needed. There is a risk that
the draft Bill would bring many more people with personality disorders
into the ambit of compulsion with no evidence that it would either
benefit them or protect others.
4. Are the proposals contained
in the Draft Mental Health Bill necessary, workable, efficient,
and clear? Are there any important omissions in the Bill?
A right to assessment
4.1 The absence of a right to be assessed
for mental health needs is a major omission from the draft Bill.
Homicide inquiries frequently discover that tragedies have followed
a patient's (or their carer's) requests for help being ignored.
4.2 While waiting times across most
of the NHS continue to fall, delays in getting access to psychological
therapies remain prohibitively long. The new Mental Health Act
is an historic opportunity to tackle this inequity. A legal obligation
on services to assess people's needs and to provide the treatments
they require as quickly as possible would also be an important
means of helping services to become more patient-centred.
Advance statements
4.3 There is no provision in the Bill
for advance statements: a missed opportunity to be rued in years
to come. Advance statements allow practitioners and service users
to make plans in advance for future relapses. They also reflect
the growing value of patient choice in health care. Establishing
reference to or consultation with these plans would help to create
a sense of control for service users at a time when they have
little or no control over their lives.
4.4 Advance statements are now being
implemented in Scotland under their new Mental Health Act. Their
experience of putting advance statements into practice will be
invaluable for England and Wales.
Aftercare arrangements
4.5 The proposals for aftercare in the
current draft represent a major loss of service. The suggestion
that services need only be provided for a six week period reflects
a lack of understanding of the process and delivery of an adequate
care plan. Where someone has been subject to formal powers for
many months it is important that services facilitate a programme
of support for them to return to a satisfactory quality of life.
This often takes time.
4.6 If a person has to be placed on
a waiting list for aftercare, anything provided after six weeks
would need to be paid for. This could lead to people dropping
out of services. We suggest that aftercare be provided for as
long as is necessary - subject to the review of the care plan
by the multi-disciplinary team.
5. Is the proposed institutional
framework appropriate and sufficient for the enforcement of measures
contained in the draft bill?
Access to advocacy
5.1 We welcome the creation of a new
role of Independent Mental Health Act Advocate. We are disappointed,
however, that access to advocacy is not proposed until after the
examination stage. This leaves some of the most vulnerable patients
without access to an most important source of support at a critical
time.
5.2 It is also vital that sufficient
resources are made available for this service. Providing a decent
level of support to the 25,000 people who are treated compulsorily
each year requires a significant number of highly skilled people.
It is vital that the new service is not 'poached' from existing
voluntary sector provision of advocacy services
Care planning
5.3 The draft Bill gives little guidance
about what constitutes a care plan. Mental health services currently
use a Care Programme Approach (CPA) to plan a person's care.
Implemented properly, the CPA has many benefits, including the
involvement of the patient and their carers, and its broad coverage
of social as well as health issues.
5.4 It is important that people treated
under the new Act are offered full CPA care plans. Without them,
we risk creating a two-tier system as well as causing confusion
for staff and service users alike - especially for those who move
between voluntary and compulsory care plans.
9. Is the Draft Mental Health
Bill in full compliance with the Human Rights Act?
9.1 There is a risk that some aspects
of non-resident orders could clash with the Human Rights Act.
In particular, the requirement people must live in a certain
place, without providing financial assistance to do so, and the
proposed powers for the police to take people from their homes
(in some cases without a warrant).
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?
Staffing concerns
10.1 We are very concerned about the
staffing implications. Overall, the powers in the draft Bill
make it highly likely that more people than currently would be
brought under compulsory powers. The necessary safeguards and
procedures also increase the amount of work each case of compulsion
will entail; while the creation of non-resident as well as hospital
care for those under compulsion will make the system more complex
to manage. These factors combined will have an enormous effect
on staff time as well as changing radically the way some teams
work.
10.2 There remain major gaps in the
understanding of the impact of the proposals in the draft Bill
on mental health workers. Three of these are noted below. They
must all be fully explored before any legislation is allowed to
pass through Parliament.
Approved Mental Health Professionals
(AMHPs)
10.3 The creation of AMHPs could be
problematic in the short term. The existing shortage of ASWs
will be exacerbated by the need to train them in the new role
and the likely wastage from that process of those nearing retirement.
That will place the greatest pressure on nursing staff, for whom
the transition to AMHP status will require considerable training,
and whose former roles will need to be back-filled.
10.4 Longer term, the loss of the ASW
could also have a major impact. As a professional grouping with
a clear identity, ASWs act as a peer group, providing support
to one another in making decisions and maintaining a different
perspective to that of health professionals. This is an important
safeguard for patients and indeed the wider public. The new AMHPs
will come from many different professions and have varying lines
of accountability and regulation. They will need a lot of support
to remain independent, develop a common approach and establish
a professional identity.
Effects on community teams
10.5 The creation of non-resident orders
will have a dramatic impact on community mental health teams.
The brunt of enforcing NROs could fall on assertive outreach
teams, who work with the people other services find it hardest
to engage.
10.6 These teams, recently established
across the country, work on the basis of encouraging people to
comply with care plans voluntarily. Much of the value of assertive
outreach, indeed, is in building the confidence of clients and
helping them get back to an ordinary life. Imposing compulsion
in these circumstances could damage those relationships and undermine
the basis on which services are currently provided.
Non-dangerous offenders
10.7 The Draft Bill suggests a new model
of dealing with non-dangerous defendants and offenders in the
courts. This proposes that persons can be remanded in hospital
(as under the 1983 Act) or in the community. This has the benefit
of offering a less restrictive alternative for some people. There
is a risk, however, that community teams will lack the skills
to support people remanded in the community, or that doing this
will divert resources from other groups of service users.
Key recommendations
- The definition of mental disorder
must have exclusions.
- The conditions for compulsion must
be more clearly defined and should include function and therapeutic
benefit.
- Non-resident orders should be used
in more limited circumstances, with extra safeguards, and should
provide accessible services.
- The Act should promote race equality
and incorporate ethnic monitoring of its usage.
- There should be a duty of assessment
on services.
- Assessments should consider all
of a person's circumstances, not just their medical condition.
- Advance directives should be recognised
and respected wherever possible.
- Aftercare should be provided free
of charge for as long as it is needed.
- Advocacy should be available from
the outset and must be fully resourced.
- Care planning under the Act should
always be under the CPA system.
- The impact of the draft Bill on
mental health staff and teams must be better explored and understood
before any legislation is passed.
To discuss any of these issues further,
please contact Andy Bell, Director of Communications, on 020 7827
8353.
References
Morgan S 2000, Clinical Risk Management
London: SCMH
Sainsbury Centre for Mental Health 2002,
Breaking the Circles of Fear London: SCMH
Social Exclusion Unit 2004, Mental Health
and Social Exclusion London: ODPM
Woodbridge K and Fulford K 2004, Whose
Values? London: SCMH
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