DMH 286 Memorandum from NOTTINGHAMSHIRE
HEALTHCARE NHS TRUST
1. INTRODUCTION: The Trust is one of the largest
providers of mental health care in Europe and probably the largest
single provider of assessment and comprehensive treatment services
for people with a personality disorder, in the world. We have
almost 6000 employees and operate from more than 100 sites across
the East Midlands. The new Mental Health Act will have a very
significant and direct impact on the way we provide services and
assess and treat our patents. This paper is compiled by the Chief
Executive of the Trust having taken contributions from colleagues
in clinical practice and management over a number of weeks.
2. SUMMARY: We welcome this reform of the 20 year old Mental Health
Act, and particularly this opportunity to contribute to the Committee's
deliberations on the draft Bill. We wish to stress the need for
the Committee to examine adequately issues of reciprocity, also
we believe that greater clarity is needed around the definition
of mental disorder. We wonder if the use of the term "appropriate
treatment" should be confined to the particular locality
or region in which service is delivered and have general concerns
about the level of resources that will be guaranteed to be made
available for the new approach. We are concerned at the potential
loss of expertise locally with the abolition of MHA Associate
Managers and the MHAC, and the potential marginalisation of expert
medical opinion. We welcome particularly the formalising of the
contribution that carers and advocates will make and the independence
and professionalism of the new tribunals, although we have concerns
at the logistics that are required to establish the new system.
The proposed bill does not address "the Bournewood gap"
and the recent ruling by the European Court means that this Bill
or the Mental Capacity Bill will need to be altered.
The mental health services in the UK have delivered
remarkable change over many years and there is the willingness,
professionalism and expertise to deliver a new service within
the bounds of this new legislation. We ask that we be accorded
the necessary time and resources to deliver that service.
3. SPECIFIC POINTS
3.1 The principle of reciprocity is acknowledged
within the Human Rights legislation and implicit within the draft
Bill, but there is for any provider of care under the Mental Health
Act the question of whether there is sufficient guarantee of resources
being available for their to be full reciprocity for the denial
of liberty such that might require the provider to ensure that
the care plan is delivered under, potentially, pain of legal penalty.
3.2 We employ over 250 psychiatrists within our organisation
and can foresee circumstances where there may be no medical opinion
available to the new Tribunals, with the replacement of the Responsible
Medical Officer role by that of clinical supervisor and the clinical
member of the tribunal not necessarily being a qualified medical
practitioner. Mental illness frequently, indeed almost always,
requires medical intervention and whilst we may be moving away,
quite reasonably, from what might be termed a strictly "medical
model" we nevertheless believe that there is a danger that
medical opinion may be marginalised.
3.3 With the abolition of the role of the Managers'
Panels and the absorption of the Mental Health Act Commission
(MHAC) role into the Healthcare Commission we have a fear that
much expertise may be lost to the process of hearing appeals and
considering issues of safety and quality of care, locally. MHAC
members and Non-Executive Trust Board Directors, along with Associate
MHA Managers, provide a largely volunteer workforce of hundreds
of individuals across the country who have developed considerable
expertise in making non-judicial judgments which are an aid to
both patients and local managers. Is all that expertise and considerable
public spirit to be lost, and at what cost to the process of delivering
an effective and equitable mental health service in England and
Wales?
3.4 The foregoing serves to underline the significance
of the change that the government wishes to introduce. That change
is manageable and indeed we are experts in managing change in
the NHS given the revolutions that we have delivered over many
years in the development of mental health and learning disability
services. However, change requires time and resources to be achieved.
These must be available, both in terms of ensuring that there
are a sufficient number of professionals available to service
the new tribunals and in planning the change themselves, on the
ground. An adequate run-in period, with plenty of opportunity
to develop and understand the new Codes of Practice will be essential.
3.5 We believe that our clinical colleagues are right
to express concerns to you about the proposed definition of mental
disorder and would therefore wish to echo their calls for a clear
statement that a person cannot be detained solely for their political,
religious or cultural beliefs, their sexual orientation or drug
or alcohol misuse. We believe that the Bill itself should more
clearly describe what is meant by "appropriate treatment"
and "significant risk of serious harm to others". The
balance between public safety and personal liberty is, of course,
extraordinarily difficult to chart in statute, but we share the
concerns of Psychiatrist colleagues that under the proposed definitions
a manic patient with impaired judgement resulting in personal
over-spending would not meet the criteria for detention. Likewise,
the proposals suggest an increased potential for a person with
impaired capacity but only moderate risk to themselves or others
not receiving the treatment from which they would derive benefit,
should they not agree to this.
3.6 Staying with the issue of "appropriate"
treatment and considering circumstances in which a clinician decides
that there may not be treatment that is appropriate available
locally, but that there is treatment available elsewhere (for
example in the case of local PD services there are 10 national
pilots operating at present around the country) would it not be
reasonable for that practitioner to declare that there is appropriate
treatment available though not within the immediate locality,
but elsewhere, perhaps regionally, perhaps nationally, thus generating
unplanned demand for those local service from out of area referrals?
3.7 With the exception of a few services, such as
our own in Nottinghamshire and the wider East Midlands, there
is little provision for those with Personality Disorder (PD) unless
they are also suffering from a mental illness. Under the proposed
legislation someone with a PD could be detained on account of
their criminal behaviour in the absence of evidence that they
would benefit from such treatment. If that remained so in the
statute it would be reasonable to conclude that those with a similar
PD but who had not offended had an entitlement to treatment on
a voluntary basis along the same lines as that available to the
patient detained for the offending behaviour. Again the issue
of reciprocity raises its head - but also the issue of resources.
Have these considerations been fully explored by the legislators?
3.8 On the matter of Tribunals, whilst welcoming
a reinforcement and expansion of the role that is currently carried
out in an independent and professional judicial capacity by the
Mental Health Review Tribunals, there are some issues of detailed
concern particularly around the assessment and development of
care plans. It is unclear who would have the power to agree changes
to the care plan, whether that would be the independent expert
or the tribunal itself. If it were to be the tribunal itself there
is a danger that significant delays might ensue, or that "all
purpose" care plans might be submitted.
3.9 On the issue of requests for examinations we
share the concerns of many other bodies, practitioners and individuals
that anyone can request someone is examined for use of compulsory
powers of detention. This seems likely to lead to an increase
in the number of inappropriate examinations and have an impact
on the capacity of NHS Trusts. We would endorse calls for clear
guidance on this issue to ensure that the potential impact of
this increased demand is properly understood and incorporated
into the workforce and financial planning associated with the
new MHA.
3.10 There are many aspects of the new Bill we welcome
and would particularly applaud the intention to maximise the formal
role and contribution of carers and advocates - the latter in
the form of the Independent Mental Health Advocate, although this
must not be at the expense of a patient's right to legal representation
and legal aid for that representation. We have experience over
a number of years in our High Secure and local mental health services
of working very closely with carers and advocates and have learned
the value that they can bring to the difficult and challenging
process of delivering effective mental health care on a partnership
basis.
Jeremy W E Taylor
Chief Executive
Nottinghamshire Healthcare NHS Trust
For, and on behalf of, the Trust Board of Directors
30th October 2004
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