DMH 107 Memorandum from the Sainsbury
Centre for Mental Health, October 2004
The Sainsbury Centre for
Mental Health (SCMH) is an independent charity working nationally
to improve mental health services through research, development
and training. Our knowledge of how services operate informs this
submission on the draft Bill. It covers those issues on which
we have specific evidence for the committee.
In addition to these concerns,
SCMH is a core member of the Mental Health Alliance and fully
endorses its submission.
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, sufficient.
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.
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
for people with severe and enduring mental health problems.
2.3 We recommend that
specific exclusions 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 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 we know that using the mental
health system can lead to social exclusion (SEU 2004), its use
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
(NROs)
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
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).
2.12
We also note that
existing guardianship provisions, though under-used, are sufficient
for most people leaving hospital who need a more structured approach
to their treatment. They offer people treatment without the immediate
threat of being taken back to hospital if they do not comply.
They should be considered as a part of any new Act as an alternative
to NROs for some people.
Race equality
2.13 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).
2.14 Although action is
being taken on this issue, racism will remain a real threat in
mental health services for the forseeable 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 The draft Bill does
not, in our view, 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 are providing therapeutically beneficial
treatment options for this group. Additionally, it is now possible
to detain people who have committed violent crimes for as long
as is necessary. Extra powers are not, therefore, needed. 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, delays in getting access
to psychological therapies remain prohibitively long. 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.
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 We welcome the creation
of a new role of Independent Mental Health Act Advocate. 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 an most important source
of support at a critical time.
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 services
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,
including the involvement of the patient and their carers, and
its broad coverage of social as well as health issues.
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 plans.
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 We are very concerned
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 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 back-filled.
10.4 Longer term, the
loss of the ASW could also have a major impact. 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 health professionals. This is an important
safeguard for patients and indeed the wider public. The new AMHPs
will come from many different professions and have varying lines
of accountability and regulation. They will need a lot of support
to remain independent, develop a common approach and establish
a professional identity.
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.
Key recommendations
- The definition of
mental disorder must have exclusions.
- The conditions for
compulsion must be more clearly defined and should include function
and therapeutic benefit.
- Non-resident orders
should be used in more limited circumstances, with extra safeguards,
and should provide accessible services.
- The Act should promote
race equality and incorporate ethnic monitoring of its usage.
- There should be a
duty of assessment on services.
- Assessments should
consider all of a person's circumstances, not just their medical
condition.
- Advance directives
should be recognised and respected wherever possible.
- Aftercare should be
provided free of charge for as long as it is needed.
- Advocacy should be
available from the outset and must be fully resourced.
- Care planning under
the Act should always be under the CPA system.
- The impact of the
draft Bill on mental health staff and teams must be better explored
and understood before any legislation is passed.
To discuss any of these
issues further, please contact Andy Bell, Director of Communications,
on 020 7827 8353.
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
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