DMH 196 Tees & NE Yorks NHS Trust
Evidence to the Joint Committee on the
Draft Mental Health Bill
Tees & North East Yorkshire NHS Trust
October 2004
Introduction
I. This submission is provided by Tees &
North East Yorkshire NHS Trust, a specialist Mental Health and
Learning Disability Trust, providing regional services for Adult
Forensic, Learning Disabilities Forensic, and Forensic CAMHS as
well as a full range of generic services for adults, people with
learning disabilities, CAMHS and older people.
II. The Trust covers a wide geographical area
and has a number of in-patient facilities as well as comprehensive
community service provision. The number of service users that
the Trust provides care to who are subject to compulsion can fluctuate,
but on average on any given day the number would be approximately
260 service users. We are pleased to have this opportunity to
comment upon the provisions of the draft Mental Health Bill.
III. The Trust recognises the need to reform
mental health legislation in order to ensure that the legal framework
governing psychiatric compulsion is suitable to support developing
services and expectations in a modern society. We are supportive
of many of the concepts within the Bill such as the speedy access
to a Tribunal, the necessity for formal review early on in any
period of compulsion, statutory access to advocacy and that some
of the Human Rights issues and requirements may be addressed.
The remainder of this document will address the particular themes
on which the Committee has invited evidence.
1. Is the draft Mental Health Bill rooted
in a set of unambiguous basic principles?
Are these principles appropriate and desirable?
1.1 It is difficult when reading the draft Bill
to determine exactly what the basic principles in which it is
rooted are. Given that, it must be said that the principles are,
therefore, ambiguous.
1.2 We feel that it would be useful if the Bill
clearly defined the legislation in terms of its scope and purpose
and we consider that within this definition should be stated,
clearly and unambiguously, the principles of the Bill.
2. Is the definition of Mental Disorder appropriate
and unambiguous?
2.1 The changes from the 2002 draft definition
of mental disorder are welcome in that the effect of the
disability or disorder is considered before the cause i.e.
an impairment resulting from a disability rather than a disability
resulting in an impairment. However, the definition of Mental
Disorder as "an impairment of or a disturbance in the
functioning of the mind or brain resulting from any disability
or disorder of the mind or brain" continues to be liable
to very broad interpretation. Whilst the definition endeavours
to prevent any inappropriate exclusions, there is a significant
potential for over inclusion.
2.2 The 2004 draft continues, as did the 2002
draft, to omit to include particular exclusions which are contained
in our current legislation, namely, drug and alcohol dependence,
sexual deviancy, promiscuity and immoral conduct. The 1983 Act
construes these exclusions as implying that a person cannot be
brought within the scope of the Act by reason of the above alone
if they do not also have a defined mental disorder.
2.3 The Government explains the decision to omit
these exclusions by giving the reason that the exclusions had
been misunderstood and that some clinicians would not apply the
Act to anyone with, for example, drug or alcohol dependence despite
the person also having a coexisting defined mental disorder. This
has certainly not been our experience and, from discussions with
colleagues from a number of other Specialist Mental Health Trusts,
it has not been an issue for them either.
2.4 It would be appropriate and correct that
specific exclusions similar to those in the 1983 Act are contained
in any new legislation, and that they are drafted in such a way
and with the necessary clarity in order to ensure that they cannot
be misunderstood, rather than omitting exclusions with very poor
and undetermined justification.
Are the conditions for care and treatment under
compulsion sufficiently stringent?
2.5 Given that the definition of Mental Disorder
is so broad, it is imperative that the conditions for care and
treatment under compulsion are sufficiently stringent in order
to prevent the potential for treatment to be given in the absence
of consent to those people who should not be brought within the
scope of compulsion.
2.6 Some of the difficulties in determining whether
the conditions are stringent enough arise from the fact that the
definition of the 'medical treatment' that must be 'necessary'
for formal powers to be used is not clearly defined. It is also
clear that the meaning of the term 'Approved Clinician' would
have to be more specific but is currently left to the Regulations,
as the approved clinician becomes the clinical supervisor who
is to be in charge of the treatment and assessment of the patient.
Dependent upon the clinical background of the clinical supervisor
this may have a significant effect upon the treatment that may
be given. The phrase 'medical treatment for mental disorder' is
inextricably linked to the term 'clinical supervisor' as any treatment
is given under their supervision and it is not clear who will
be able to be a clinical supervisor, which may determine the range
of treatments and therefore affect the conditions for compulsion.
2.7 We are pleased to see that the Bill specifies
the concept of treatment as being 'necessary for the protection
of the patient from suicide or serious self-harm or serious self-neglect
of her/his health or safety, or for the protection of others'
as opposed to the current Acts concept as being 'necessary for
health or safety'. Even though this phrasing makes it clearer
that there must be a degree of risk associated to enable the use
of compulsion as opposed to compulsion being used for the general
health or safety of the patient, it is still not clear what is
meant by 'necessary' or 'serious'. This may, therefore, be left
to the judgement of the assessing clinicians and there would have
to be a balance between the degree of interference with the level
of associated risk. This will inevitably be determined and judged
differently by different people and indeed by different professional
groups leading, potentially, to different thresholds to compulsion.
2.8 Given the potential for differing opinions
described above, it is very disconcerting to see at Clause 16
that when it has been determined that a person meets the relevant
conditions for assessment and it is necessary to determine whether
that assessment should be as a resident or non resident patient,
provided that the AMHP and one Registered Medical Practitioner
agree, then the patient may become a resident patient. This is
despite the fact that the other Registered Medical Practitioner
may completely disagree and may, in fact, have greater experience
and indeed may be the person who will eventually be the Clinical
Supervisor responsible for the care and treatment of a person
that they believe should never have been brought into hospital
as a resident patient in the first place.
2.9 Within the Bill there is great emphasis placed
upon the presence of risk as a determining factor when considering
the use of compulsion. Whilst this is appropriate, there is the
potential for it to preclude some groups of people such as the
incapacitated but resistive person who only presents with moderate
as opposed to serious risks. Again, determining whether risk is
moderate or serious will essentially be a matter for individuals
and the outcomes may vary greatly. It may be that this group
of people will come within the scope of the Mental Capacity Bill,
however, this is not clear and even if they do come within the
scope of the Mental Capacity Bill there are insufficient safeguards
in that Bill in its current draft to satisfy the Convention requirements
in relation to non arbitrary detention, speedy independent review
etc.
2.10 Within the relevant conditions in Clause
9, condition number 7 gives rise to some concern. It states that
if a person aged over 16 poses substantial risk of causing
serious harm to other persons (my emphasis) then no proof
is required that it was necessary to bring the person under formal
powers. Again, substantial and serious are not defined in this
context which, given that no proof is required of the necessity
for compulsion, may potentially not meet Convention requirements
regarding arbitrary detention.
2.11 Condition 6 in Clause 9 states that 'medical
treatment is available which is appropriate in the patient's case'.
There is no concept in the Bill that treatment should be beneficial
or that it should, as a minimum, prevent deterioration. It raises
the question of whether it is appropriate to bring a person under
the scope of compulsion when the treatment that is available within
that framework may not even be of benefit to them.
Are the provisions for assessment and treatment
in the community adequate and sufficient?
2.12 The provisions for assessment and treatment
in the community are not clear enough to determine whether or
not they are adequate and sufficient. Clause 15 states that the
patient must fall within a description specified in regulations,
which is as yet unknown, and so it cannot be determined which
patients this would apply to. Improving Mental Health Law states
at paragraph 3.37 that it will primarily be patients who
have previously been treated in hospital (? subject to compulsion
or not) but is not clear in using the word primarily that it will
not apply to others who have not.
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 It must always be borne in mind when considering
a question such as this, that the mentally ill are also
the public whom we are trying to protect from the mentally
ill. Mental health problems will affect approximately 1 in 4 of
us at some time in our lives, but until it happens we consider
ourselves as the 'public'. It is only a tiny minority of people
with mental health needs who also present a risk to public or
personal safety and we must be careful not to implement legislation
that caters for this tiny minority and in doing so marginalizes
the vast majority of people with mental health needs who present
very little or no risk at all.
3.2 The proposals within the Draft
Bill appear to be very risk focussed. This can be demonstrated
in the example that it is not even required, when making someone
subject to compulsion, to show that it is necessary that that
person be provided with medical treatment if they are over 16
and at 'substantial risk of causing serious harm to other persons'
(Clause 9 condition 7). This appears to make provision for mental
health legislation to be used to detain someone where it has not
been shown that they require medical treatment for that mental
disorder. It must surely be questionable as to whether this is
protecting the Human Rights of the mentally ill. We feel that
the right balance has not been struck and that, in fact, the balance
tips very markedly towards the level of risk posed as opposed
to an identified need for treatment that will be beneficial in
nature.
4. Are the proposals contained in the Draft
Bill necessary, workable, efficient and clear?
Are there any important omissions in the
Bill?
4.1 There is a consensus of opinion that the
1983 Mental Health Act requires amendment. Aspects of it have
already been found to be incompatible with the European Convention
on Human Rights. However, in order to address these issues of
incompatibility and other issues around concern for public safety,
the Government have decided to draft completely new legislation
as opposed to amending existing legislation which may well have
been sufficient. The drafting of new legislation is a major task
in itself, not least complicated by the convoluted and complicated
way in which this Bill has been drafted.
4.2 With regard to whether the Bill is workable
or not, this we feel will be one of the major potential problems
in relation to the practical implementation of a new Act if it
remains in the form of the current Bill. The current Tribunal
system is stretched to almost breaking point with numerous administrative
and procedural issues and problems that have been comprehensively
documented. The proposals within the draft Bill with regard to
Tribunals, whilst laudable for the safeguards that they would
offer to patients if they could be implemented effectively, are
undoubtedly out of reach in the current climate in terms of time,
space and resources (the availability of appropriate personnel
as well as financial). If this major proposal, which is effectively
the fulcrum on which most other proposals in the Bill will balance,
were not able to be effectively implemented then the whole of
the reforms will inevitably fail and leave patients in a much
worse position.
4.3 The major omissions from the draft Bill are
the absence of safeguards for incapacitated, compliant patients
who are admitted to hospital without the use of compulsion and
the exclusions that are present in the definition of mental disorder
in the current Act, or some similar wording. There were clear
proposals in the 2002 draft regarding compliant incapacitated
patients and whilst they may have been omitted from this draft
in anticipation that the Mental Capacity Bill will address them,
this is clearly not the case.
5. Is the proposed institutional framework
appropriate and efficient for the enforcement of measures contained
in the Draft Bill?
5.1 The measures contained within the Draft Bill
are intended to ensure that patients are made subject to longer-term
compulsion only with the agreement of an independent body (the
Mental Health Tribunal). The Tribunal effectively gate-keeps entry
to longer term compulsion. However, the Mental Health Tribunal
is also the body that hears patients' appeals against the use
of compulsion. This appears to be somewhat incongruous and it
could be construed that this is inappropriate.
5.2 The abolishment of the Mental Health Act
Commission established by the 1983 Act as an independent body
with a very specific remit of safeguarding and ensuring the welfare
and rights of detained patients through processes of regular visits,
monitoring and advice will almost certainly affect the ability
to enforce measures contained within the Draft Bill. It would
equally affect the ability to enforce the measures contained in
our current legislation were it to be abolished in the absence
of new legislation. It is proposed that the monitoring role of
the MHAC will be transferred to the Commission for Healthcare
Audit and Inspection, commonly known as the Healthcare Commission.
The very terms 'Audit and Inspection' immediately throw a different
slant on the potential monitoring role that they may fulfil and
we feel that it is very important that the visiting and protective
elements of the current MHAC are maintained.
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 the misuse
of aggressive procedures such as ECT and psychosurgery?
6.1 The Draft Bill provides for longer sentences
of imprisonment to be imposed on those who ill-treat or wilfully
neglect patients. This must be recognised as a positive proposal
given the nature of this offence.
6.2 The safeguards in relation to incapacitated
but compliant patients are not sufficient as previously discussed
at Para 4.3.
6.3 In respect of the safeguards put in place
for children in the Draft Bill, some are welcome; however, others
are somewhat concerning. A child or minor is defined as anyone
under the age of 18 years and yet at clause 9(7) it can be assumed
from the wording that children over the age of 16 years can
be brought within the scope of compulsion and no proof is required
that it was necessary to bring the person under formal powers.
This is clearly a decision based upon the level of risk and the
protection necessary for others and does not make the child's
welfare the paramount consideration which is in direct conflict
with current enacted legislation, namely the Children Act 1989.
6.4 The safeguards proposed in relation to the
treatment of children under the age of 16 years are welcome.
6.5 The safeguards that are in
place for Psychosurgery are sufficient to minimise its misuse.
It is also helpful to see that the High Courts can authorise this
treatment for patients who cannot consent due to their incapacity
but clearly stand in need of the treatment.
6.6 In relation to ECT, the safeguards go some
way to prevent its misuse, however, they also paradoxically have
the potential to reduce the protection available to patients.
Because a capacitated patient can refuse ECT, it can only be given
therefore if the patient is incapacitated or if the situation
is an emergency. It is concerning that if the concept of mental
incapacity is used as a legal threshold for compulsion in relation
to the administration of ECT, any disagreement between a patient
and the supervising clinician may, potentially, result in a finding
of incapacity and thus simply have the effect of increasing the
number of patients who are considered to lack capacity to consent
to treatment. Also, if a capacity test were to be too stringent
or rigorous it could result in capacitated patients not receiving
appropriate treatment until their condition deteriorates to such
a degree that they no longer can make a capacitated refusal. It
would be more likely, however, that the supervising clinician
would use emergency treatment powers in order to prevent this
level of deterioration. In both these situations, incapacity and
emergency, the protections afforded in relation to ECT do not
come into force and so, potentially, the patient is in a less
protected position. Also, consideration must be given to whether
it is going to be appropriate to override a capacitated patient's
refusal if that refusal could result in a risk of suicide or serious
self harm to the patient or a substantial risk of serious harm
to others.
6.7 The last point that we would wish to make
in relation to this question is, why is it that capacitated patients
may refuse ECT but may not refuse any other treatment such as
medication (which may include polypharmacy and dosages above recommended
limits). Surely treatments such as this must be considered to
be aggressive.
7. 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 Practice right?
7.1 We believe that in order for any legislation
in relation to mental health and the use of compulsion to operate
effectively, it must be clear on the face of that legislation
which people can be brought within its scope and who can determine
when they should be so brought. It must also make clear how formal
powers will be operated and ensure that they are operated in such
a way as to be compatible with Human Rights.
7.2 The Bill has been drafted in such a way as
to leave many of these basic issues to Regulations and the Code
of Practice. The Bill is not adequately prescriptive about fundamental
issues such as the grounds for detention and yet is bordering
on being overly prescriptive about such things as consultation,
which, whilst essential, may have been more appropriately defined
within Regulations or the Code of Practice. We feel that this
is evidence that an appropriate balance between what is included
in the Bill and what is left to Regulations and the Code of Practice
has not been struck.
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)?
8.1 The Draft Mental Health Bill makes no
reference to the Mental Capacity Bill. It appears on reading both
Bills that there will potentially be significant areas of overlap.
However, the one significant area, namely the treatment of incapacitated
compliant patients which has been brought to the fore once again
by the recent judgement of the European Court in HL v UK,
is not adequately addressed in either Bill. This issue was addressed
in the 2002 Draft Mental Health Bill but has been sadly omitted
from the 2004 Bill and has not been replaced in the Mental Capacity
Bill possibly, one must speculate, because the people who drafted
that Bill were not expecting it to be removed from this one as
it was one of the areas that was warmly welcomed and received
the least criticism.
8.2 The concepts behind the Draft Mental Health
Bill and the Mental Capacity Bill are very different. The first
is based upon professionals determining the necessity of treatment
based on a broad definition of mental disorder and taking risk
issues very much into account, and the latter is based upon whether
a person is able to make decisions about their own affairs (it
goes much further than medical treatment issues alone). Given
these two vastly differing concepts, it is impossible to say that
the Bills are integrated in any way.
9. Is the Draft Mental Health Bill in full compliance
with the Human Rights Act?
9.1 This Bill has been drafted in such a way
that the Government believe it to be fully compliant with the
Human Rights Act 1998. This may be so and will probably only
be determined when and if challenges are made, however, there
are a number of areas within the Bill that may give rise to challenges
around Human Rights concerns. These include:
- The broad scope of the definition of mental
disorder
- The potential broad range of treatments that
can be provided which are dependant both on the definition of
mental disorder and the definition of clinical supervisor
- The criteria for compulsion and the level
of medical evidence required to demonstrate that it is met
- The ability within the proposals to restrict
the transfer, leave and discharge of particular groups of patients
(who have not committed offences), and leave those decisions to
the discretion of the Mental Health Tribunal as opposed to the
clinical supervisor
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 the implementation of the Bill?
10.1 The human and financial resource implications
are potentially massive. There are already major problems in the
numbers and recruitment of Psychiatrists and Psychologists and
a shortage of ASW's and Occupational Therapists. Given that, this
Bill and its proposals would require that these groups of professionals,
alongside nursing staff and other professionals, spend much more
time away from their clinical roles in order to be present at,
and prepare for, Mental Health Tribunals. This would not be such
a major problem and would, in fact, be of benefit to patients
if their case loads could be reduced to such levels as to ensure
that they have enough time to devote to clinical duties balanced
with the time that they are required to spend at and preparing
for Tribunals but as we have already noted, there are a shortage
of these professionals and so, in fact, their case loads are likely
to increase as opposed to reduce.
10.2 Another major effect on resources would
be the availability of space and accommodation. In a hospital
that has a number of in-patient beds and so the potential to have
a number of patients subject to compulsion as resident patients,
not even counting those that may be subject to compulsion as non
resident patients, Mental Health Tribunals would be sitting almost
permanently and potentially more than one at a time. Space in
most hospitals is at a premium, the concentration being on improving
the space available to patients who are in hospital and reducing
the amount of space available for offices and meeting rooms. Whilst
this is on the whole appropriate, it causes some difficulty currently
and having to find the extra space to house potentially two Tribunals
would be almost impossible in most establishments.
10.3 As well as the impact on the clinical
professionals, the implementation of the Bill would have dramatic
implications for Mental Health Act Administrators. The requirements
would mean that their workloads would increase dramatically necessitating
an increase in their numbers with the associated cost, accommodation
and training issues. It is also not clear who will provide any
necessary administrative support in relation to mental health
care and the Mental Capacity Bill. Could this potentially devolve
to MHA Administrators due to their current expertise in this area
and thus potentially significantly impact on their workload in
another way?
10.4 In relation to training, the Government
must ensure that the introduction of any new Mental Health Legislation,
whether it is this Bill in its current form or a revised version,
allows for an adequate period of training and familiarisation
and the resources to enable this to happen. The sheer numbers
of people that will have to be trained are enormous, ranging from
MHA Administration and Management staff to the professionals who
will have specific roles and duties under the Act, Advocacy Services,
Solicitors, User and Carer Groups, Tribunal members down to every
person who will be involved with patients subject to compulsion,
either as residents or as non residents. One major question is
- where will we find sufficient numbers of people with the skills,
knowledge and experience to train these vast numbers and if they
are in short supply, what effect will this have on any associated
fees?
10.5 A significant problem at the moment with
training clinical staff is that they are difficult to release
from their clinical duties to attend training. We can forsee that
in order to train people to a sufficient level in relation to
MH Legislation will require more than a one off training event.
Rather, it will be potentially a course of training, longer or
shorter depending on the staff group, but in any event they will
have to be released from clinical duties. This alone could have
significant cost implications to backfill their posts whilst they
are away from their clinical areas and coupled with the potential
costs of trainers and accommodation in which to train, the financial
impact could be significant and the Government must ensure that
this is taken into account.
Mel Wilkinson (Ms)
MHA/CPA Advisor
Tees & North East Yorkshire NHS Trust
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