DMH 269 King's
Fund
2 November 2004
Clerk to the Scrutiny Committee, Draft
Mental Health Bill 2004
House of Commons
London SW1A 0AA
Dear Sir
DRAFT MENTAL HEALTH BILL
We are grateful for the opportunity
to submit comments to the Scrutiny Committee. The King's Fund
is an independent charitable foundation working for better health
and health care, with a special focus on London. We carry out
research, policy analysis and development activities, working
on our own, in partnership and through development grants.
The Fund is a member of the Mental Health
Alliance, the grouping established in 1999 to comment on the Government's
proposals to reform the Mental Health Act 1983. We support the
views set out in the Alliance's submission to the Scrutiny Committee.
Without repeating the Alliance's views,
there are some issues we believe are particularly important, and
we comment on these below. Our comments are informed in particular
by the findings of our major Inquiry into London's mental health
services, published in 2003, London's State of Mind. These
demonstrated that although good mental health services exist,
there are still serious problems facing many people with serious
mental health needs who are being failed by the present system,
including those who are subject to mental health legislation.
What should a new Mental Health Act
do?
The Government is clear that "The
purpose of mental health law is to protect patients and others
from harm that can arise from mental disorder" (Improving
Mental Health Law: Towards a new Mental Health Act, Summary,
September 2004). New legislation is certainly needed to update
the Mental Health Act 1983, partly to reflect changes in practice
and partly to address breaches of human rights legislation. Unfortunately
the Government has followed traditional thinking about mental
health law. It should have started from the premise that patient
and public protection is best served not just by measures taken
in certain limited circumstances when a patient becomes seriously
ill, but by setting out duties to provide good care from an early
stage of illness. This it fails to do.
The Bill therefore starts from the wrong
perspective. Rather than tackle issues of patient care and support,
it focuses on risk and dangerousness. At a time when the Government
is promoting the cause of patient choice, the Bill introduces
new powers to restrict choice for some patients living in the
community, even when they have the capacity to make decisions
for themselves.
Similarly, the Bill does little to support
the Secretary of State's assertion that he wishes to ensure the
NHS is genuinely a health not an illness service, and that everything
should be "geared towards preventing illness".
In adopting this approach, the Government
is missing a real opportunity to introduce powers and duties that
would tackle the wider issue of public health mental health. For
example, it fails to introduce a right to an assessment of mental
health needs - not just an assessment for compulsion at a point
of crisis - and to have assessed needs met. At the same time,
the Bill removes the specific Mental Health Act 1983 duty on authorities
to provide aftercare services following discharge from compulsion
until they are no longer needed.
We know that earlier intervention and
consensual aftercare would mean that fewer people would reach
a stage where they could become a danger to themselves or others,
and that, as a result, compulsory powers would be required less
often.
Community-based treatment Orders
One of the most controversial aspects
of the Bill is the introduction of community-based treatment Orders.
The Committee will be aware that powers already exist under the
Mental Health Act 1983 for extended leave and guardianship, together
with supervised discharge powers that were introduced in 1995.
All of these allow for a patient to be in the community under
some form of restriction or obligation. We believe it would be
a useful for the Committee to explore with the Department of Health
and mental health professionals why these current provisions are
not widely used and why the Government does not consider them
adequate to deal with the problems of patient and public safety.
In addition, the Committee may be aware
of the considerable literature that has been published over the
last 20 years or so on the introduction of community-based Orders
around the world (primarily from Australia, New Zealand and the
United States). The findings from studies in this area suggest
that there is still considerable uncertainty on whether community-based
orders are effective and in what circumstances. Again this may
be a fruitful area to pursue.
Our analysis suggests such Orders may
work for a small number of people when they are backed by well
developed community support services. But the research also suggests
that if there are good community support services then introducing
community-based Orders makes little or no difference to outcomes.
In other words, it appears that it is the services that are crucial
rather than the Orders.
One area that does concern us is the
impact these Orders may have on the overall levels of compulsion
with the system. This is a topic that does not appear to have
been researched in any depth and at present we do not know how
many more people might be subject to compulsion under a community-based
Order system, compared to the number subject to compulsion at
present. The Government has said that it is not its intention
to increase the number of people under compulsion. But along with
other critics of the Bill we have real worries that patients who
are not now subject to compulsion may find themselves drawn into
the system. We are currently undertaking a small study into this
area based on similar systems in other countries and hope we may
have some findings to submit to the Committee before it reports
next March.
Workforce
There are significant resource issues
linked to the Bill, the most evident being the apparent shortage
of staff to ensure the new procedures are properly implemented.
The main groups involved are consultant psychiatrists to participate
in Tribunals; community psychiatric nurses and other community
staff to monitor people living in the community under a compulsory
Order; and the new statutory advocates.
The Committee will be aware that similar
(though not identical) new legislation has already been passed
in Scotland and will come into effect in 2005. A Scottish National
Mental Health Services Assessment of March 2004 concluded that
"There are not enough staff to make the Act work, especially
psychiatrists, mental health officers and advocacy workers…..
The Review Team found that….. there will be difficulties
in implementing [the Act] and significant changes and developments
will be needed".
Such problems are also very likely to
be met in England and Wales. According to the Department of Health's
own figures (NHS Workforce Vacancy Survey, March 2004), there
are significant vacancy rates in England among consultant psychiatrists
(9.6%, that is 334 whole time equivalents, the largest percentage
shortfall among any group of medical staff), yet it estimates
that the new legislation will need an additional 130 psychiatrists
(page 134 of the Explanatory Notes to the Bill). The Tribunal
arrangements set out in the Bill would be impractical without
this significant increase.
There are also shortages
of psychiatric nurses, with the Department of Health figures showing
community psychiatric nurses with 1.9% vacancies (235 wtes) and
"other psychiatry" nursing staff with 4.7% vacancies
(1,282 wtes) in England. The Department of Health estimated need
for the Bill is for an extra 110 nurses. Should the Bill become
law then community psychiatric nurses would have a major role
in monitoring whether people subject to compulsion in the community
were adhering to their care plans.
On top of this, there is the introduction of a right
to statutory advocacy. While welcome, this will involve the recruitment
and training of a whole new category of staff. The Department
of Health estimates 140 will be required for England and Wales.
Even assuming that the number of people under compulsion remains
broadly the same after new legislation is passed as today (there
were 46,900 detentions under the 1983 Act in 2002-03 in England
alone according to the Office of National Statistics Bulletin
2003/22), this would seem to give each advocate an impractical
workload.
While we are aware of the Government's plans to meet
the workforce implications of the Bill, we are not convinced this
has been properly thought through.
Positive aspects of the Bill
However let us conclude on a positive note - the
Bill does contain some welcome provisions, including the right
to statutory advocacy, the change from the nearest relative to
a nominated person and a more regular Tribunal system. We hope
that the Committee will be able to build on these aspects and
recommend amendments to the Bill to produce something that will
help create a modern mental health system that encourages early
intervention and supports those with mental health problems, thereby
creating a service that protects patients and the public alike.
I hope these comments are helpful - if you require
anything further from us please do not hesitate to get in touch.
We are happy for this submission to
be in the public domain.
Yours faithfully,
Niall Dickson
Chief Executive
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