DMH 222 Memorandum from the Royal College
of General Practitioners
The College welcomes the opportunity to comment on
the Draft Mental Health Bill.
The Royal College of General Practitioners is the
largest membership organisation in the United Kingdom solely for
GPs. It aims to encourage and maintain the highest standards of
general medical practice and to act as the "voice" of
GPs on issues concerned with education; training; research; and
clinical standards. Founded in 1952, the RCGP has over 21,500
members who are committed to improving patient care, developing
their own skills and promoting general practice as a discipline.
We focus our comments on the questions and themes
set out in the Joint Committee's call for evidence published on
16 September 2004.
1. Is the Draft Mental Health Bill rooted
in a set of unambiguous basic principles? Are these principles
appropriate and desirable?
1.1 The principles underlying any piece of legislation
that deprives people of their liberty must be clear and binding.
Placing them in a Code of Practice that can be over-ridden in
emergencies is not, in our view, a sufficient safeguard.
1.2 The Government has rightly stated that values
lie at the heart of good mental health practice (Woodbridge and
Fulford, 2004). The values underpinning the draft Bill are in
many ways contradictory. The Explanatory Notes, for example, state
that it should reflect "modern patterns of care and treatment
for severe mental illness". Yet the Bill focuses strongly
on the medical, rather than social, dimensions of treatment despite
the many advances in the latter in recent years.
1.3 The Government also states that it sees the draft
Bill as strengthening safeguards for patients - yet in many aspects
the safeguards are weaker than those which currently apply, such
as the power of professionals over the appointment of a nominated
person and the failure to include advocates at the examination
stage.
2. Is the definition of Mental Disorder
appropriate and unambiguous? Are the conditions for treatment
and care under compulsion sufficiently stringent? Are the provisions
for assessment and treatment in the Community adequate and sufficient?
The definition of mental disorder
2.1 The draft Bill's definition of mental disorder
is much broader than the 1983 Act, which made specific reference
to the nature and type of the disorder and which had clear exclusions
of drug and/or alcohol misuse, promiscuity, sexual deviance and
immoral conduct where they exist on their own.
2.2 This may lead to mental health legislation being
used on people who do not have a mental illness. This could turn
many people away from using drug and alcohol services, for fear
of compulsory treatment. Using the mental health system to treat
such people will also block entry to it for people with severe
and enduring mental health problems.
2.3 Specific exclusions should be made within the
definition of mental disorder. These need not exclude people
who have co-existing mental health and other problems, regardless
of the person's 'primary diagnosis'.
The conditions for compulsory treatment
2.4 The criteria for compulsory treatment in the
draft Bill are worryingly open to interpretation. While clause
4, for example, ensures that patients must be treated without
resort to compulsory powers where it is possible to do so, clause
7 modifies and, in some cases, removes the basic principle of
treating people outside compulsory powers. It places no burden
of proof on professionals that compulsion is necessary. Any people
who fall into this category will have to fight an uphill battle
to demonstrate that their level of dangerousness to others has
reduced.
2.5 Section 9 (8) modifies these criteria further,
stating that a potential 'substantial risk' is to be treated as
a part of the determination of whether all of the above criteria
have been met. The notion of substantial risk is difficult to
establish. Many studies have shown that risk assessment is frequently
an imprecise science (Morgan 2000). Practitioners tend to over-estimate
risks and are often risk averse in their approach. The term 'substantial
risk' could lead to a culture of excessive caution. The nature
of the risk, its severity, likelihood and consequences should
be more clearly specified.
2.6 The issue of function is also not addressed.
Most people who experience mental health problems function normally
in their communities. Though they are symptomatic, they continue
to live without support from the mental health system. Since it
is known that using the mental health system can lead to social
exclusion, marginalisation and stigmatisation (SEU 2004), use
of such a system should only be enforced if an individual is disordered
and not functioning well within their social system. We recommend
that the issue of function be specifically addressed within the
conditions.
2.7 The stipulation that treatment should be appropriate
and available is not enough of a safeguard. We endorse the Mental
Health Alliance policy that there should be a test of therapeutic
benefit for treatment imposed under the Act. We suggest that treatment
be defined as 'clinical and/or social interventions that are likely
to be of therapeutic benefit to the individual concerned'.
Non-resident orders
2.8 A system similar to that used in Saskatchewan,
Canada, should be considered for non-resident orders in England
and Wales.
2.9 Non-resident orders (NROs) should only be applied
where there is clear evidence that they would reduce the need
for repeated compulsory admissions to hospital. There are two
key principles: that people are treated in the least restrictive
setting possible; and that the use of NROs should on balance benefit
the life of the individual by preventing the regular use of more
restrictive treatment settings.
2.10 Both principles are in the end for the judgement
of clinical and professional social care staff. These judgements
should be made more secure through the approval of a qualified
social care professional to the course of action proposed and
through a binding Code of Practice.
2.11 One of the conditions for a non-resident order
is that the treatment is available. It should also be accessible,
for example in terms of time, location and language. There should
be an obligation on the service provider to ensure that the person
can attend (e.g. funding a taxi, offering it at a time so that
they can continue to work).
Race equality
2.12 The current Mental Health Act is not implemented
equally among ethnic groups. African and Caribbean people face
a disproportionate risk of being placed under compulsory powers
and of receiving coercive treatment within them. This discrimination
can be explained only in terms of the stereotyping of Black people
in our society (SCMH 2002).
2.13 Although action is being taken on this issue,
racism will remain a real threat in mental health services for
the foreseeable future. It is vital that a new Act includes a
specific provision for race equality and for monitoring its use
among different ethnic and religious groups. It should also specify
that any care or treatment under the Act is provided in a culturally
sensitive manner and environment. Without these specific safeguards,
Black people are likely to continue to stay away from services.
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 There is concern that the draft Bill does not
balance these two concerns. There is a significant risk that
the proposals in the Bill, and the message it sends out more widely,
will strongly contradict what the Government is trying to achieve
in tackling the stigma of mental illness and promoting inclusion
among those who experience it. The draft Bill is incompatible,
for example, with plans to help more people with mental health
problems to get into work, education and training.
3.2 Advances in the treatment of personality disorders,
and new sentencing powers, already make it possible to treat people
who have committed violent crimes under existing law. There is
a risk that the draft Bill would bring many more people with personality
disorders into the ambit of compulsion with no evidence that it
would either benefit them or protect others.
4. Are the proposals contained in the
Draft Mental Health Bill necessary, workable, efficient, and clear?
Are there any important omissions in the Bill?
A right to assessment
4.1 The absence of a right to be assessed for mental
health needs is a major omission from the draft Bill. Homicide
inquiries frequently discover that tragedies have followed a patient's
(or their carer's) requests for help being ignored.
4.2 While waiting times across most of the NHS continue
to fall, in mental health delays in getting access to psychological
therapies remain prohibitively high. The new Mental Health Act
is an historic opportunity to tackle this inequity. A legal obligation
on services to assess people's needs and to provide the treatments
they require as quickly as possible would also be an important
means of helping services to become more patient-centred.
Advance statements
4.3 There is no provision in the Bill for advance
statements: a missed opportunity to be rued in years to come.
Advance statements allow practitioners and service users to make
plans in advance for future relapses. They also reflect the growing
value of patient choice in health care. Establishing reference
to or consultation with these plans would help to create a sense
of control for service users at a time when they have little or
no control over their lives.
4.4 Advance statements are now being implemented
in Scotland under their new mental Health Act. Their experience
of putting advance statements into practice will be invaluable
for England and Wales and should not be dismissed at this stage.
Aftercare arrangements
4.5 The proposals for aftercare in the current draft
represent a major loss of service. The suggestion that services
need only be provided for a six week period reflects a lack of
understanding of the process and delivery of an adequate care
plan. Where someone has been subject to formal powers for many
months it is important that services facilitate a programme of
support for them to return to a satisfactory quality of life.
This often takes time.
4.6 If a person has to be placed on a waiting list
for aftercare, anything provided after six weeks would need to
be paid for. This could lead to people dropping out of services.
We suggest that aftercare be provided for as long as is necessary
- subject to the review of the care plan by the multi-disciplinary
team.
5. Is the proposed institutional framework
appropriate and sufficient for the enforcement of measures contained
in the draft bill?
Access to advocacy
5.1 The welcome creation of a new role of the Independent
Mental Health Act Advocate is an important step forward. We are
disappointed, however, that access to advocacy is not proposed
until after the examination stage. This leaves some of the most
vulnerable patients without access to a most important source
of support - the first few days are critical. Additionally, those
who are 'ill' or have a 'mental disorder' cannot be advocates
yet often could be the most appropriate advocates.
5.2 It is also vital that sufficient resources are
made available for this service. Providing a decent level of support
to the 25,000 people who are treated compulsorily each year requires
a significant number of highly skilled people. It is vital that
the new service is not 'poached' from existing voluntary sector
provision of advocacy to some of the most marginalised groups
of people in the mental health system.
Care planning
5.3 The draft Bill gives little guidance about what
constitutes a care plan. Mental health services currently use
a Care Programme Approach (CPA) to plan a person's care. Implemented
properly, the CPA has many benefits, not least the involvement
of the person and their carers in the process, and the breadth
of issues it covers.
5.4 It is important that people treated under the
new Act are offered full CPA care plans. Without them, we risk
creating a two-tier system as well as causing confusion for staff
and service users alike - especially for those who move between
voluntary and compulsory care.
9. Is the Draft Mental Health Bill in
full compliance with the Human Rights Act?
9.1 There is a risk that some aspects of non-resident
orders could clash with the Human Rights Act. In particular, the
requirement people must live in a certain place, without providing
financial assistance to do so, and the proposed powers for the
police to take people from their homes (in some cases without
a warrant).
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?
Staffing concerns
10.1 There is concern about the staffing implications.
Overall, the powers in the draft Bill make it highly likely that
more people than currently would be brought under compulsory powers.
The necessary safeguards and procedures also increase the amount
of work each case of compulsion will entail; while the creation
of non-resident as well as hospital care for those under compulsion
will make the system much more complex to manage. These factors
combined will have an enormous effect on staff time as well as
changing radically the way some teams work.
10.2 There remain major gaps in the understanding
of the impact of the proposals in the draft Bill on mental health
workers. Three of these are noted below. They must all be fully
explored before any legislation is allowed to pass through Parliament.
Approved Mental Health Professionals (AMHPs)
10.3 The creation of AMHPs could be problematic in
the short term. The existing shortage of ASWs will be exacerbated
by the need to train them in the new role and the likely wastage
from that process of those nearing retirement. That will place
the greatest pressure on nursing staff, for whom the transition
to AMHP status will require considerable training, and whose former
roles will need to be filled.
10.4 Longer term, the loss of the ASW could also
have a major impact on services. As a professional grouping with
a clear identity, ASWs act as a peer group, providing support
to one another in making decisions and maintaining a different
perspective to that of the health professionals. This is an important
safeguard for patients and indeed the wider public. The new AMHPs
will come from different professions and have varying lines of
accountability (not all need be social services staff).
Effects on community teams
10.5 The creation of non-resident orders will have
a dramatic impact on community mental health teams. The brunt
of enforcing NROs could fall on assertive outreach teams, who
work with the people other services find it hardest to engage.
10.6 These teams, recently established across the
country, work on the basis of encouraging people to comply with
care plans voluntarily. Much of the value of assertive outreach,
indeed, is in building the confidence of clients and helping them
get back to an ordinary life. Imposing compulsion in these circumstances
could damage those relationships and undermine the basis on which
services are currently provided.
Non-dangerous offenders
10.7 The Draft Bill suggests a new model of dealing
with non-dangerous defendants and offenders in the courts. This
proposes that persons can be remanded in hospital (as under the
1983 Act) or in the community. This has the benefit of offering
a less restrictive alternative for some people. There is a risk,
however, that community teams will lack the skills to support
people remanded in the community, or that doing this will divert
resources from other groups of service users.
Specific Impact on Primary Care
The above comments relate specifically to the Bill
as published. However there are a number of concerns that relate
to the potential implementation of the Bill which should be addressed
in the Code of Practice. In particular there are issues of safety
and communication between community teams and primary health care
teams when providing care for people on non resident orders.
Dr Maureen Baker CBE DM FRCGP
Honorary Secretary of Council
References
Morgan S 2000, Clinical Risk Management London:
SCMH
Sainsbury Centre for Mental Health 2002, Breaking
the Circles of Fear London: SCMH
Social Exclusion Unit 2004, Mental Health and Social
Exclusion London: ODPM
Woodbridge K and Fulford K 2004, Whose Values? London:
SCMH
29 October 2004
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