Joint Committee on the Draft Mental Health Bill

Joint Committee on the Draft Mental Health Bill Written Evidence

DMH 162 Turning Point

Turning Point's submission to the Joint Scrutiny

Committee on the draft Mental Health Bill 2004

Introduction

Turning Point is the UK's leading social care charity, founded in 1964. We provide services for people with complex needs including those affected by drug and alcohol misuse, mental health problems and people with a learning disability.

We run services in about 200 locations in England and Wales, helping 100,000 people each year. Our mental health provision spans outreach, residential, day and 24-hour crisis services, specialist forensic services and step down provision from secure settings for people with personality disorders. Our clients include people subject to the 1983 Mental Health Act.

Most of our mental health services are for people with severe and long-term mental illness, who have additional issues such as substance misuse, a learning disability, homelessness or offending behaviour. The impact of the draft Bill for such people has been comparatively overlooked and is the focus of our submission.

Turning Point is a core member of the Mental Health Alliance and we refer to their submission where relevant. Our Chief Executive, Lord Victor Adebowale is also a member of the Mental Health Taskforce and the Learning Disability Taskforce.

Ronnie Watson, Mental Health Act Co-ordinator

Caroline Hawkings, Mental Health Policy and Campaigns Officer

28 October 2004

Turning Point

New Loom House

101 Backchurch Lane

London E1 1LU

Tel: 020 7702 2300

Note:

Throughout our submission, the Mental Health Alliance is abbreviated to 'the MHA' and the 1983 Mental Health Act to 'the 1983 Act.'

Summary

Q 2.a Is the definition of Mental Disorder appropriate and unambiguous?

Drug and Alcohol dependency: As drafted, some people with severe drug or alcohol dependency could be inappropriately detained. However, others with concurrent mental health and substance misuse problems who meet the criteria and require treatment, are currently being turned away. To address both these situations the exclusion clause in the 1983 Act needs modification to ensure that people who have such problems in combination with a mental disorder are not refused treatment.

Learning Disability: For the majority of people with a learning disability, the future Mental Capacity legislation will be the most appropriate. If a person has a concurrent mental disorder and compulsion is necessary, the Act is appropriate and learning disability should not be expressly excluded. However, an exclusion clause is necessary to avoid inappropriate detention of people with a learning disability per se.

Q2b The conditions for treatment and care sufficiently stringent?

No, particularly in regard to the Clinical Supervisors powers. We support a wider definition of treatment so that certain people such as those with personality disorders are not deemed untreatable. In this context, we do not believe that a stipulation that treatment should be of 'therapeutic benefit' should be included. However, treatment should never be equated with containment.

Q2c Are the provisions for assessment and treatment in the community adequate and sufficient?

Turning Point supports the principle of assessment and treatment in the community for defined groups in certain circumstances, but does not believe that current provisions are adequate or sufficient. Perceived or real fears may deter many from seeking help. If non-resident orders are to be introduced, clearer criteria for their use, robust safeguards and substantial improvements to community facilities are required.

Q3. 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?

No. The debate about risk has disproportionately influenced the Bill, particularly in relation to people with personality disorders, who risk being further stigmatised. Our main concerns include the apparent lack of professional discretion to treat a person informally, poorly developed risk assessment tools and the lack of good quality treatment to avoid compulsion in the first place.

Q5 Is the draft Mental Health Bill adequately integrated with the Mental Capacity Bill (as introduced in the House of Commons on 17 July 2004)?

Clause 6 of the Mental Capacity Bill may mean that people with a mental disorder and who lack capacity could be detained under the Mental Capacity Bill, without any of the safeguards available under the Mental Health Bill. Our recommendations include: clarification of the relationship of both Bills in the Code of Practice; impaired judgement being a criterion for compulsion in the draft Mental Health Bill; parity in the safeguards for treatment in both Bills and provisions for advance statements and advance directives on the face of both Bills.

Q6 Are the safeguards against abuse adequate? Are the safeguards in respect of vulnerable groups…sufficient?

We focus on people from black and minority ethnic groups for whom safeguards are not sufficient. Disproportionate use of compulsory powers is likely to continue, especially as planned improvements to services for BME groups are out of step with the timing of this Bill. We recommend an anti-discrimination statement on the face of the Bill, advocacy being available at examination stage and more recruitment of culturally and racially appropriate personnel.

Q 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?

The additional mental health professionals and time and training requirements, created by the Bill are likely to make it unworkable. Our staff are particularly concerned that the time spent monitoring whether people comply with conditions of the non-resident order may assume more importance than client focused and appropriate care.

Q 2.a Is the definition of Mental Disorder appropriate and unambiguous?

Drug and alcohol dependency

1. Turning Point works with many people who have multiple needs. We would echo the findings of the recent SEU report that approximately 30-50% of people misusing drugs have mental health problems and that figures are rising.[236]

2. Some of our clients could meet the criteria under the Bill, but for them compulsion would be inappropriate. Equally, there are others who may have been turned away from mental health services in the past, who may benefit from the exclusions being removed as the Bill proposes. We deal with these two situations below.

3. As drafted, there is a danger that people who are severely drug or alcohol dependent will meet the definition of having a mental disorder and trigger the mechanisms for compulsory powers solely on the basis of these problems, especially against a backdrop of increasing 'social control', for unusual or undesirable behaviour.

4. Example: Mr C is an unemployed teenager who injects heroin and is dependent on alcohol. He often stays out on the streets all night and becomes disorientated and anxious after particularly heavy drinking episodes. He is often arrested by the police during these periods due to his behaviour and obvious distress, but has refused treatment when offered it in the past.

5. However, Turning Point's experience also suggests that many people with a serious mental disorder and substance misuse problems, ('dual diagnosis') who could meet the criteria for compulsory powers, are being poorly served in the community[237].

6. Currently, the 1983 Act allows for treatment of this group, but all too often, the presence of a drug or alcohol problem alongside a mental disorder is used as grounds not to treat and people are turned away from mental health services. Consequently, people are not receiving the help they urgently need, their mental health deteriorates even further and community services endeavour to help, despite being ill equipped to do so.

7. The reasons why people use illicit substances are complex. Sometimes it can be to self-medicate and treat the symptoms of mental illness and should not be interpreted as being resistant to treatment or engagement with services. We do not believe that addressing the confusion over exclusions through education and training is sufficient to remove the barriers to treatment.

8.  Example: Ms A in her 30s has a diagnosis of depression and borderline personality disorder. She also has longstanding drug and alcohol difficulties and self injures on a regular basis. When admitted for inpatient treatment, she is often put on a contract stating that she will be discharged if she self-injures or uses drugs or alcohol. These are her coping strategies, so she invariably resorts to using or self harm, and so she is discharged. On occasions she isn't admitted when expressing suicidal thoughts because she has been drinking.

Recommendation:

9.  Turning Point believes that it is necessary for the Bill to include some form of exclusion clause, but that the existing 1983 wording requires modification.

10.  Turning Point suggests additional wording as follows: 'no one may be treated under the Act as suffering from mental disorder by reason only of promiscuity, or other immoral conduct, sexual deviancy or dependence on alcohol or drugs, but this should not exclude people who have such problems in combination with a mental disorder from receiving treatment'

Learning Disability

11. Turning Point believes that the most appropriate legislation under which the majority of people with a learning disability should receive treatment will be the Mental Capacity Bill when it becomes law.

12. We also recognise that there is a high incidence of mental illness in people who have a learning disability[238]. When a person clearly has a mental disorder in addition to a learning disability and it is necessary to use formal powers, it is appropriate for them to come under the draft Mental Health Bill. Excluding people with a learning disability who have a concurrent mental disorder will be a barrier to them accessing the services they need.

13. Example: Mr R, a resident at a small group home, has a severe learning disability and bipolar affective disorder. He needed treatment for his mental disorder. This was his first manic episode since being a resident of the home and it was causing distress to himself, the seven other residents and the staff, who did not feel able to support him adequately. At this time, he needed help on a ratio of 3-1 which put considerable pressure on the small staff team. The local hospital refused to admit him on the grounds that they could not deal with him.

14. However, in both the 2002 and 2004 draft Bills, the definition of mental disorder is so broad that people with a learning disability could still come under formal powers even if they do not have a co-existing mental health problem. Turning Point remains concerned, especially as the Explanatory Notes explicitly state that 'examples of a mental disorder include schizophrenia, depression or a learning disability'[239].

Removal of the 'abnormally aggressive or seriously irresponsible conduct' criterion in the definitions of mental impairment and severe mental impairment in the 1983 Mental Health Act means that a person with a learning disability can come under formal powers, even if they do not have 'seriously irresponsible or abnormally aggressive conduct' or another mental disorder.

The effects of this include:

Exacerbating existing confusion about mental illness and learning disability

Increased stigmatisation and the detention of people who have a learning disability alone

A resultant growth in institutional care (which is counter to the intentions of the White Paper 'Valuing People').

17. Example: Mr S, who has a severe learning disability, autism and communication difficulties lives in a residential setting. He was detained under the 1983 Act because he was becoming increasingly agitated and exhibiting aggressive behaviour, by banging his head against a wall.

18.  It was later discovered that Mr S had a twig in his ear which was causing him distress, which he expressed by his agitated behaviour. This scenario shows how the distress of a person with a learning disability can be automatically attributed to a mental disorder without paying sufficient attention to physical factors.

Recommendations:

19.  Turning Point does not recommend that learning disability be expressly excluded from the draft Bill.

20.  An additional exclusion clause on the face of the Bill which explicitly states that a person with a learning disability, who does not have another co-existing mental disorder should be excluded from the Act, in line with legislation in New Zealand.[240]

21.  Furthermore, it will be essential (for the Healthcare Commission) to monitor the extent to which people with a learning disability on its own, or in conjunction with other conditions, are affected by the use of formal powers under the Act.

2b Are the conditions for treatment and care under compulsion sufficiently stringent?

22. We do not believe that the conditions for treatment and care under compulsion are sufficiently stringent. We fear that far more people will become inappropriately subject to formal powers and share many of the MHA's concerns.

23. In particular, there does not appear to be any restrictions on the Clinical Supervisor's sole discretion to modify the care plan and any treatment without consent therein once it has been approved by a Tribunal. This negates much of the protection of having care plans approved.

24. We oppose any extension of preventative detention. (see Question 3).

A wider definition of treatment

25. Treatment under compulsion should be the last resort. However, if it is necessary, it is important that all who may need it are not excluded. Therefore, we support a wider definition and are pleased that the definition now includes 'cognitive therapy, counselling or other psychological intervention.'

Paragraph 2 (7)(c)

26. At present, people with personality disorders who would otherwise meet the criteria for detention under the current Act are often deemed 'untreatable'. When a person has a label of personality disorder, it can become an overriding factor, even in the presence of other clearly diagnosed mental disorders. A wider definition of treatment helps to mitigate the view that people with certain conditions such as personality disorders are not treatable.

27. Example: On several occasions, Mr P who has schizophrenia relapses to the point that a section may be helpful, but is refused admittance to hospital in Liverpool on the basis of his anti-social personality disorder. His 'solution' is to travel to London in order to be admitted via A&E.

28. We do not believe that a stipulation within the Act that treatment should be of therapeutic benefit would be helpful. Turning Point works with many people with personality disorders and this requires greater emphasis on psychological approaches based on changing behaviour patterns. The evidence base for effective treatment for this client group is developing and is less well established in comparison to traditional interventions based on medication, but this should not be used as a barrier from people receiving support.

29. In certain situations, management of a condition, even when there is no prospect of 'cure', is relevant. This is used in other areas of healthcare, such as with 'inoperable' cancer. We interpret management as being a form of treatment which brings benefits including stability and structure. Management should not be confused with containment. The Code of Practice should make this clear and include worked examples of good practice.

2c Are the provisions for assessment and treatment in the community adequate and sufficient?

30. Turning Point supports the principle of assessment and treatment in the community, providing that the groups are sufficiently defined and that appropriate treatment is available given all circumstances of the case.

31. The merits of non-resident orders (NROs) include:

bringing treatment closer to a patient's home or place of residence
less disruption to normal daily life and
better access to family and carer support.

32. These factors may potentially achieve a better outcome for some clients and Turning Point would support their introduction in certain circumstances.

33. Example: Mrs T lives in a residential setting, with a typical cycle of being well (and compliant with medication), while on a section (25), but prone to resisting medication and then to relapse when not under section. Her husband is unable to cope and hospitalisation results. In this individual case, Mrs T herself recognises that the element of enforced structure which comes through the Mental Health Act, brings stability to her life which is beneficial.

34. However, we do not consider that the current provisions for assessment and treatment in the community are adequate or sufficient.

35. Turning Point's concerns with the current proposals are set out in detail by the MHA and include:

The potential imposition of treatment on people who have capacity and may wish to refuse treatment or medication.
A focus on drug treatments
Wide powers of the Clinical Supervisor to change the status of orders from 'resident' to 'non-resident'.
A significant undermining of the therapeutic relationship.

36. For example, disclosure of information needs to be handled sensitively particularly if by doing so, compulsion may ensue and result in children being taken into care. This delicate balance may be upset.

37. One common scenario causing concern is where a client with mental health problems continues his illicit substance misuse, which he perceives to be one of his coping mechanisms in difficult situations. However, the professional view is often that a person's continuing substance misuse is an indication of their non-compliance with voluntary mental health treatment. The professional considers that imposing compulsion through a non-resident order is an appropriate response, but such a decision can make a client even more distressed and further alienated from community services.

38. Whilst some service users can see some benefits, the majority are fearful about how NROs will operate in practice, what conditions they will impose and how they will curtail an individual's liberty. These fears may deter substantial numbers from seeking help and therefore presenting to services at all.

39. We concur with the MHA that if NROs are to be introduced, more robust criteria governing their application, more safeguards for their use and improved facilities in the community should be in place. We refer the Committee to the Saskatchewan criteria suggested by the MHA.

Q3. 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?

40. We acknowledge that the powers to detain people who have not offended, but who need treatment to protect them or others from the harmful effects of their disorder, already exist and that it is appropriate to use them in a very small number of cases.

41. However, Turning Point does not believe that the right balance has been achieved and that the Bill gives precedence to concerns for public and personal safety over the human rights of people with mental health problems.

42. Whilst it is important that people who need treatment under the Act can receive it, we believe that the debate about risk, particularly in relation to personality disorders, has had a disproportionate influence on this Bill. It has muddled perceptions and risks further stigmatising people with personality disorders because too often, their disorder is automatically equated with dangerousness. There are different types and levels of personality disorders. The vast majority are not dangerous. For many, compulsion will be unnecessary and inappropriate.

43. We strongly support the detailed response made by the MHA to this question.

44. Our particular concerns include:

The apparent lack of professional discretion to treat a person informally. This is a serious omission.

For a person who satisfies the other criteria for compulsion and is deemed a serious risk to others, Clause 9 (7) suggests that informal treatment is not an option - a person must be made subject to compulsion. Thus any patient subject to compulsion who continues to be deemed a serious risk to others cannot be discharged, even if they would accept treatment informally. It becomes difficult for a person to be discharged especially in the light of increasingly defensive professional practice.

45. Poorly developed risk assessment tools. At present assessment of risk is

not adequately developed to be able to accurately predict the degree of risk

among those who have not committed offences.

46. The lack of good quality treatment which is a significant factor in minimising

risk in the first instance.

Q5 Is the draft Mental Health Bill adequately integrated with the Mental Capacity Bill (as introduced in the House of Commons on 17 July 2004)?

47. Turning Point is a member of the Making Decisions Alliance and broadly supports the proposals in the Mental Capacity Bill (but with concerns that adequate safeguards are introduced to ensure that the Bill does fully empower people to make their own decisions).

48. With respect to the crossover between the Mental Health Bill and the Mental Capacity Bill, Turning Point is concerned that Clause 6 of the Mental Capacity Bill, in combination with Clause 9 (5) of the Mental Health Bill, may mean that people with a mental disorder already in hospital and who lack capacity, could be detained under the Mental Capacity Bill, without any of the safeguards available under the Mental Health Bill. Clarification is urgently needed as to whether the Mental Capacity Bill could be used to admit people to hospital to receive treatment for their mental disorder, where they pose a risk to themselves, even if they objected to their admission.

49. Recommendation: The Code of Practice to the Mental Capacity Bill should clarify its scope and relationship with the Mental Health Bill.

50. We are also concerned that the provisions in the Mental Capacity Bill do not close the 'Bournewood Gap'. The Bill does not give sufficient protection to mental health in-patients who lack capacity and therefore cannot consent to their treatment following the decision to transfer the Part V safeguards of the Mental Health Bill 2002 to the Mental Capacity Bill. The recent ECHR Judgment on the Bournewood case highlights the need for additional safeguards. They should include:

Information about help available from mental health and legal advocates and the right to apply to the Court of Protection
Automatic access to the Court of Protection together with legal aid
The appointment of a Nominated Person, with the equivalent role to under the Mental Health Bill.
A right to a care plan, which is subject independent review and special authorisation for ECT and serious non-emergency treatment before approval of the treatment plan

Recommendations:

51.  There needs to be consideration of how physical and mental health issues are dealt with by the two Bills where someone has both mental health and physical needs.

52.  We believe that the Mental Capacity Bill makes the case for impaired judgement to be used as a criterion for compulsory treatment (at the moment there is no consideration of capacity by the Mental Health Bill), where the individual represents a risk only to themselves.

/continued overleaf
(continued)

53.  There should be parity in the safeguards for treatment in both Bills.

54.  Where a treatment is provided with additional safeguards in the Mental Health Act, safeguards of the same degree should be available to someone who does not have capacity, but who is being treated under the Mental Capacity Bill. Treatments covered should include ECT, psychosurgery and treatment for more than 28 days when a care plan is not in place. Equally, the Mental Health Bill should not be able to override advance refusals of treatment. At the moment an advance decision to refuse treatment for a mental disorder may be overridden, but cannot be for a physical condition. This means someone may have control over some of their healthcare but not other aspects. This is illogical.

55.  The Mental Capacity Bill and the Mental Health Bill should both include provision for advance decision making. Advance statements (which are statements of wishes) and advance directives (which are advance refusals of treatments) should both be provided for on the face of both Bills. This is important so that those providing treatment under the Mental Health Bill are aware of their duty to follow advance directives.

Q 6: Are the safeguards against abuse adequate? Are the safeguards in respect of vulnerable groups…sufficient?

56. We pay particular attention to people from black and minority ethnic groups, for whom the safeguards are not sufficient. Turning Point believes that based on figures from the 1983 Act, conditions for the use of formal powers under this Bill will have a differential impact on BME communities[241].

57. Recommendation: Turning Point believes an anti-discrimination statement on the face of the Bill is essential.

58. Provisions for independent advocacy are welcome but are only available when a patient is already liable to assessment and not at the examination stage when the decision whether or not a person meets the criteria to use formal powers is being taken. We believe that the examination process amounts to an assessment (as to whether the person satisfies the criteria for compulsion).

59. It is also a time when different perspectives among individuals from BME communities and professionals, many of whom are white, are likely to arise.

60. 'Inside Outside: Improving Mental Health Services for BME Communities in England'[242] states that all services should have a clear policy and practice around assessment of people from BME groups, taking into account the significance of ethnicity, culture, language and religion. It suggests as a national standard that assessments should be carried out if necessary …with the support of an interpreter, translator or advocate.'

61. Recommendation: Advocacy should be made available at the initial examination stage.

62. Further, we have serious concerns as to whether the 140 advocates proposed under the Bill will meet demand and reflect the diversity among black and minority ethnic populations. The recruitment of culturally and racially appropriate personnel eg Advocates, Clinical Supervisors, AHMPs and members of expert panels and tribunals requires particular attention.

/continued overleaf

63. Turning Point acknowledges that since the 2002 draft Mental Health Bill, the Department of Health is undertaking a major programme of work concerning people from BME groups[243]. This programme is essential and is a step in the right direction, but progress is likely to be slow, especially as some consider that racism within the NHS is on an institutional level. It will take a long time for attitudes and practices to change and therefore the safeguards must be more robust.

64. Improvements notwithstanding, the timing is out of step. The Department of Health states that 'a full review of the NIMHE black and minority ethnic programme of work will take place in 2007 and a reassessment of the impact of mental health services on black and minority ethnic communities will be carried out in 2010'.[244] Our understanding of current timescales suggests that a new Mental Health Act will be implemented by this date.

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 implementation of the Bill?

65. We endorse the detailed submission from the Royal College of Psychiatrists that the additional mental health professionals and time and training requirements created by the Bill is likely to make it unworkable.

66. Turning Point has extensive knowledge of frontline practice in a range of community and residential settings. Staff are concerned that the time spent monitoring whether people are complying with conditions of the non-resident order (such as taking medication or attending a day centre) may assume more importance than client focused and appropriate care.

236 Mental Health and Social Exclusion (SEU 2004) p18.

Also, in 'Waiting for Change Treatment delays and the damage to drinkers' (Turning Point 2003), half of alcohol dependent adults said they had a mental health problem.

Back

237 The reasons for this include:

· no common understanding of what is meant by 'dual diagnosis'

· poor assessment tools for co-existing conditions and pre-occupation between primary and secondary conditions

· strict criteria and high thresholds for access to services

The Dual Diagnosis Toolkit (Turning Point and Rethink 2004) Back

238 Research has indicated that people with learning disabilities have higher rates of mental health problems than the general population - estimated at between 10-39% by Borthwick-Duffing (1994). The Government's White Paper, Valuing People also states that 'people with learning disabilities 'are more likely to experience mental illness and are more prone to chronic health problems'. Valuing People also makes clear that people with learning disabilities and mental health needs should be included in the mental health NSF. Back

239 Paragraph 32 p11 re mental disorder Back

240 The New Zealand Mental Health (Compulsory Assessment and Treatment) Act 1992.

Part 4 General rules relating to liability to assessment or treatment
The procedures prescribed by Parts 1 and 2 of this Act shall not be invoked in respect of any person by reason only of-
(a) That person's political, religious, or cultural beliefs; or
(b) That person's sexual preferences; or
(c) That person's criminal or delinquent behaviour; or
(d) Substance abuse; or
(e) Intellectual disability

Back

241 A recent systematic review of research suggested that BME patients are four times more likely to be detained, whilst research undertaken for the Dept.of Health suggests they may be six times more likely to be detained. Hard data collected by the MHAC show that in many areas, patients from BME groups are detained at twice the rate expected from their presence in the local population See Mental Health Act Commission, 10^th Biennial Report, pages 238-9