DMH 283 NHS Confederation
Joint Scrutiny Committee
on the Draft Mental Health Bill
Evidence from the NHS Confederation
October 2004
Introduction
1. The NHS Confederation welcomes
the Committee's inquiry into the Draft Mental Health Bill and
welcome the opportunity to present evidence.
2. The NHS Confederation is a membership
body that represents over 93% of all statutory NHS organisations
across the UK. We have 100% of mental health and learning disability
trusts currently in membership. Our role is to provide a voice
for the management of the NHS and represent the interests of NHS
organisations. We are independent of the UK Government although,
of course, we work closely with the Department of Health and the
devolved administrations
3. Our evidence sets out our general
views on the Draft Mental Health Bill but then concentrates on
the specific questions posed by the Committee
4. The NHS Confederation is an associate
member of the Mental Health Alliance and supports the Alliances
submission.
Overall view
5. We believe that the new Bill
has many positive aspects aimed at ensuring there are clear and
fair procedures for assessment and treatment; safeguards to ensure
good decision making; and support for patients. However our members
have raised a number of concerns outlined in answer to the questions
outlined by the committee.
6. The Confederation is concerned
that the definition of mental disorder and conditions for compulsion
are too broad. It is essential that there are clear boundaries.
We also recommend the reinstatement of exclusions.
7. The Bill is at times impenetrable
and open to interpretation. It is essential the Bill be accessible
so patients can understand their rights and professionals understand
their responsibilities and obligations.
8. The Bill often refers to issues
that will be covered in the regulations to be drafted in the future.
We believe these should be consulted on fully.
9. In summary we have serious concerns
as to the extent to which the implementation consequences have
been fully thought through, particularly in terms of the expanded
tribunal system and capacity of the service. We believe the
government has seriously underestimated both the cost and the
workforce implications and do not believe the proposed tribunal
system is workable
In response to the Committee's questions
Question 1 - Is the Draft Mental
Health Bill rooted in a set of unambiguous basic principles? Are
these principles appropriate and desirable?
10. We support the principles of
least restriction, patient involvement in decision-making and
fair and transparent processes. However the Code of Practice
will state circumstances in which the application of the principles
may be ignored, this is likely to create confusion for service
users and staff. It would be better to have guiding principles
that cover all people under compulsion, such as equality and anti-discriminatory
practice.
Question 2a - Is the definition of
Mental Disorder appropriate and unambiguous?
11. The Confederation is concerned
that the definition of mental disorder is too broad. It is essential
that such a broad definition has clear boundaries. We would also
recommend the reinstatement of exclusions.
12. Although the current law does
not prevent the treatment of someone suffering from a mental disorder
that also has other behavioural issues, the removal of the current
exclusion in relation to drug and alcohol dependency as well as
sexual deviancy may lead to people being held under compulsory
powers inappropriately. Mental health service users should not
have their needs confused with those whose problems arise from
drug or alcohol dependence, or who have a lifestyle that differs
from society's current norm. We recommend exemptions remain to
protect people from being inappropriately incarcerated.
13. Wider criteria for compulsion
may also lead to extra demand for mental health services both
in the acute and community setting. It is essential that there
is capacity in the NHS to deliver effective patient care.
Question 2b - Are the conditions
for the treatment and care under compulsion sufficiently stringent?
14. The Draft Bill is likely to
increase the number of people under compulsion, as the conditions
for compulsion are broad, for example the condition of "protection
of other persons" has no statement of seriousness or risk.
The broad conditions and removal of the discretion of decision-makers
to take into account other circumstances may mean people will
enter into the system far too easily, but find it difficult to
leave.
15. The conditions in the Draft
Bill make no reference to the decision making capacity of the
person. People who are physically ill are not detained in
hospital against their will because they refuse treatment that
may improve their condition. However, a person with a mental
illness can be detained and treated without their consent even
though when the person has the capacity to understand the nature
of the illness and treatment choices. Mental illness and lack
of capacity are not one and the same. In the light of the clear
definition in the Mental Capacity Bill we hope there will not
be confusion. We recommend that one of the conditions should
identify the need to show that the person has impaired decision-making
capacity in relation to treatment. We support the condition in
the Scottish Act which allows compulsion "because of the
mental disorder the patient's ability to make decisions about
the provision of such treatment is significantly impaired".
We are aware of the debates around the difficulty of applying
a concept of capacity when a person's condition may change but
these problems may be overcome by giving the clinician some discretion
over discharge if person regains capacity and by setting out guidance
in the Code of Practice.
Question 2c - Are the provisions
for assessment and treatment in the Community adequate and sufficient?
16. We support the treatment of
people in the community, but it is essential there is clear guidance
on assessment and treatment, linked to a capacity test. It is
also necessary that there are appropriate safeguards to ensure
people under NROs are reviewed regularly and not held under compulsory
powers inappropriately.
17. We would stress the importance
of ensuring community mental health services are able to meet
the needs of people under NROs. This may involve the development
of national standards, training of staff and investment in resources.
Question 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?
18. As stated above the condition
of "protection of other persons" is too broad and has
no statement of seriousness or risk assessment.
Question 4 - Are the proposals contained
in the Draft Mental Health Bill necessary, workable, efficient
and clear?
19. The Bill has 307 clauses, 14
schedules and the language is at times impenetrable and open to
interpretation. We are concerned that this will mean professionals;
patients and carers will not fully understand the Bill. It is
essential the Bill be accessible to enable patients to understand
the rights they have and professionals to understand their responsibilities
and obligations.
20. We are concerned as to the extent
to which the implementation consequences have been fully thought
through, particularly in terms of the expanded tribunal system
and capacity of the service. We believe the government has underestimated
the cost of the proposed system and workforce implications.
Are there any important omissions in the Bill?
Aftercare
21. The current Bill places duties
on both health and local social services to provide free aftercare
services until they no longer in needed. The draft Bill limits
the care package to a period of 6 weeks after discharge, aligning
with current social care policy. We would welcome a debate on
whether someone who is under compulsory treatment should pay for
treatment they are compelled to have.
Advance statements
22. Advance refusals and advance statements setting out a
patient's wishes for their care and treatment could be a way to
safeguard and promote a patient's interests. Under current law
an advance refusal to accept treatment, can be overridden if a
person is under compulsory powers. We would like to raise the
debate as to whether advance refusals should have the same status
for compulsory and informal patients.
Question 5 - Is the proposed institutional
framework appropriate and sufficient for the enforcement of measures
contained in the draft bill?
23. We have no specific comments
on this question.
Question 6 - Are the safeguards against
abuse adequate? Are the safeguards in respect of particularly
vulnerable groups, for example children, sufficient?
24. The draft Bill states that anyone
can request someone be examined for use of compulsory powers.
This may lead to an increase in the number of inappropriate examinations.
We would like to see clear guidance on this issue to ensure
people are not inappropriately examined and that the potential
impact of this increase in demand is properly understood and incorporated
into workforce and financial planning.
25. Under the current Mental Health
Bill the Tribunal has discretion not to use compulsory powers
even when a patient meets conditions for detention. This discretion
has been removed. The broadening of the criteria for compulsion,
the removal of the Tribunal's discretion and the fact that neither
hospital managers or the patients nominated person will have a
right of discharge may make the system easy to enter and hard
to leave. We would like to see clear guidance on this issue.
26. The Bill seems focused on addressing
the needs of working age adults with mental health problems and
as such the needs of both children and older people have not been
thoroughly considered.
27. The new Bill has many positive
aspects aimed at ensuring there are clear and fair procedures
for assessment and treatment; safeguards to ensure good decision
making; and support for patients. However we are concerned as
to the workability of the safeguards, particularly the expanded
tribunal system.
Question 6c - safeguards against misuse of aggressive procedures
such as ECT and psychosurgery?
28. The draft Bill outlines that
ECT cannot be used on a patient that has capability to make decisions.
We would welcome debate around how capability could link to the
government's current policy initiative on patient choice, if a
patient has capacity to refuse ECT should a person have the right
to refuse or choose other treatments?
Question 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 Practices right?
29. The Bill often refers to items
that will be covered in future regulations and the Code of Practice.
For example when the general principles do not apply, the powers
the Mental Health Tribunal can reserve itself and circumstances
when the clinical supervisor will have to go back to the Tribunal
in relation to changes to the Care Plan. We believe these are
significant issues and should be open to consultation.
30. Because there is much that will
be part of the Code of Practice we reserve judgment until that
is seen.
Question 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)?
31. We are concerned that a psychiatric
patient may be subject to both the Mental Health and Mental Capacity
Bill which may causes confusion for professionals and service
users. We would also like to see further debate around people
with fluctuating capacity.
Question 9 - Is the Draft Mental
Health Bill in full compliance with the Human Rights Act?
32. We have no specific comments
on this question.
Question 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?
33. The Department of Health has
stated that the Bill will need an additional 830 whole time equivalent
staff to cope with the increase in the total number of hearings.
These staff will be needed as all patients will have their case
considered by a Tribunal within 28 days of their assessment beginning
to decide on the use of compulsory treatment and there will be
additional examinations of patients by members of the Expert Panel
to provide independent advice to the Tribunal. We also take the
view that the new Bill will increase the number of people detained
and so increase the number of staff needed in both acute and community
settings.
34. The Department of Health estimate
of 830 additional staff includes; 130 psychiatrists; 50 social
workers; 200 nurses, therapists and clinical psychologists; 140
advocates; 200 support staff; and 110 legal and lay members of
the tribunal. Just taking the 130 additional psychiatrists, this
is 26,000 working days a year. It is essential that there are
effective safeguards to protect patients and the public, but we
would like discussion as to whether this is the most effective
way of to provide safeguards, could the tribunal system be modernized
to release staff to deliver direct patient care, and could the
system be made less bureaucratic and costly.
35. There will be an expansion in
the types of decisions that tribunals will consider, such as authorising
care plans, authorising ECT and examining whether the relevant
conditions apply. This will impact on the recruitment and training
of tribunal members. The present Tribunal system is struggling
to manage with appeals being cancelled and delayed. We do not
believe the proposed expanded system will be workable.
36. The proposed system will lead
to the establishment of a bureaucracy around tribunal management
and impact on inter-trust relationships in terms of provision
of independent expert advice, particularly in the context of current
policies such as Payment by Results and Foundation Trusts.
37. In summary we have serious concerns
as to the extent to which the implementation consequences have
been fully thought through, particularly in terms of the expanded
tribunal system and capacity of the service. We believe the
government has seriously underestimated both the cost and the
workforce implications and do not believe the proposed tribunal
system is workable
For further information on this
submission or the work of the NHS Confederation please contact
Catherine Meaden, Senior Government and Parliamentary Officer
on 020 7959 7236 or catherine.meaden@nhsconfed.org
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