DMH 243 Memorandum from WEST LONDON MENTAL
HEALTH NHS TRUST
SUBMISSION TO THE JOINT COMMITTEE ON
THE DRAFT MENTAL HEALTH BILL
October 2004
Introduction:
- West London Mental Health NHS Trust was formed
in 2001 through the merger of Ealing, Hammersmith & Fulham
Mental Health NHS Trust and Broadmoor Hospital Authority, and
latterly, through the absorption of mental health services in
Hounslow. It now provides a full range of local mental health
services for children, adults and older people to three London
Boroughs and other specialist and forensic mental health services,
including high secure services to a wider catchment area. The
Trust has around 30 significant sites and approximately 1,200
beds of which 650 are secure. It employs almost 4,000 staff.
- This submission collates written and verbal views
invited by staff in all disciplines and all services. The majority
of opinions emanate from psychiatrists, nurses, social workers
and administrative staff performing statutory functions although
many other professionals have commented on a single issue or in
a personal capacity. It is acknowledged that there is a variety
of viewpoints so where possible, strength of feeling on particular
issues is reflected.
Theme One: Is the Draft Mental Health Bill
rooted in a set of unambiguous basic principles? Are these principles
appropriate and desirable?
1.1 Few views were expressed on this theme as
it was judged to have been fully addressed in other written submissions
to the Joint Committee, notably those of the Royal College of
Psychiatrists and the Institute of Mental Health Act Practitioners.
Those that have commented, from all disciplines, sense that the
Bill is unduly weighted by 'public safety' concerns which are
at least overstated. It would be more desirable that its underlying
principles should include a stated commitment to de-stigmatising
the vast majority of the population with mental health problems.
Theme Two: 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?
2.1 There is almost unanimous agreement across
all groups that the exclusions in the current Act, should be reinstated
to avoid people being detained on inappropriate grounds. Equally,
it seems desirable to ensure in such primary legislation, stated
safeguards for the wider population, protecting them from the
use of compulsion on political, religious or cultural grounds.
The 'breadth' of the definition may cause inappropriate referral
to mental health services e.g. intoxicated individuals attending
Accident & Emergency departments and even though in a given
case it is determined that an individual does not require treatment,
there is a likelihood that mental health professionals will be
blamed when things go wrong thereafter.
2.2 The conditions for treatment and care under
compulsion require that "medical treatment is available which
is appropriate in the patient's case..." It is not clear
whether geographical or financial limitations will apply so that
it may be fairly judged (by the assessing doctors and approved
mental health professional or the Mental Health Tribunal) that
this condition is not met.
2.3 A number of medical and nursing staff have
suggested that the provisions for care and treatment in the community
are an improvement on currently available options: aftercare under
supervision, guardianship and section 17 leave. The growth of
community focused services is not well-served by an Act which
mainly centres on bed occupancy. However, there is little perceived
need for non-resident compulsory assessment.
Theme Three: 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 Please refer to paragraph 1.1 above.
3.2 There is little, if any, perceived justification
for the Mental Health Tribunal's right to reserve to itself powers
of discharge, transfer and leave for some Part II patients.
3.3 In relation to restricted patients, Broadmoor
Hospital's Medical Advisory Committee is unanimously of the view
that the Mental Health Tribunal should have the power to grant
leave to restricted patients and approve their transfer from one
hospital to another. Given that it will have the right to discharge
restricted patients and authorise leave and transfer in almost
all other cases, it is clearly well-placed to exercise such powers.
3.4 The same forum notes that the effect of a
restriction order is very similar to the effect of a life sentence.
Given that the setting of tariff dates for lifers has recently
been removed from the executive to the courts in the interests
of openness and the avoidance of any impression of political interference
and that the Home Secretary has had to cede decisions about release
of life-sentenced prisoners to the Parole Board, they would welcome
a review of whether similar arrangements should apply to restricted
patients.
3.5 There are allied concerns about the quality
of some decisions made by the Home Office in restricted cases.
3.6 It is not entirely clear why written notice
is required prior to transfer of resident patients other than
in emergencies but all clinical groups are clear that this requirement
runs the risk of denying a bed to a person in greater need. Perhaps
an 'emergency' might include the need to provide urgent treatment
to another patient. It would be appropriate to waive the required
notice if a patient is initially admitted for assessment or treatment
outside their local catchment area, to avoid delays in returning
them to their local mental health service where this is in their
best interests.
3.7 It is of wide concern that if the relevant
conditions for compulsion are met, there is no discretion about
its use. Equally, the Mental Health Tribunal has no discretion
to discharge in the same circumstances.
3.8 The proposal that anyone should be able to
request the appropriate authority to decide whether the relevant
conditions appear to be met (and therefore arrange a formal assessment)
is of concern. It is not clear how vexatious or repeated requests
will be dealt with.
Theme Four: Are the proposals contained in
the Draft Mental Health Bill necessary, workable, efficient and
clear? Are there any important omissions in the Bill?
4.1 Increasingly, more staff of Consultant status
who will take on the role of Clinical Supervisor are being employed
on a part-time basis. Under the present scheme, it is ever more
difficult to arrange attendance at Mental Health Review Tribunals.
Under the proposed scheme, the frequency of Tribunals will increase.
Some degree of flexibility is required to ensure this is workable.
4.2 Concerns have been expressed by several staff
groups that the role of the Approved Mental Health Professional
might ultimately lead to the social work role being diminished
if it becomes cheaper to utilise Community Psychiatric Nurses
rather than social workers.
4.3 Some feel that the independence of staff
who have trained under the 'medical model' will be insufficient
and that their therapeutic relationship with patients may suffer.
Equally, there are concerns that a lack of social care experience
will reduce knowledge of available support networks.
4.4 By virtue of Clause 272(5), Clause 272(1)
permits CHAI to remove original medical records from a hospital.
While everyone agrees with the right to take copies, we are concerned
that with modern colour coding and filing systems, there is a
risk of loss of important clinical information or failure to note
warnings if the original file is removed.
4.5 When a Court wishes to send a remand prisoner
to hospital for assessment or treatment, there is no power, either
in the current Act or the Draft Bill, by means of which disputes
can be resolved. This can include disagreement between psychiatrists
in medium and high secure settings about the required level of
security. Where both doctors work under different Strategic Health
Authorities, there is no managerial remedy. It seems sensible
that the Court be empowered to formally request a resolution.
4.6 Where a Tribunal order a patient's conditional
discharge, there may be difficulties in making arrangements that
meet the conditions. Local authorities can order their staff to
provide a service to a patient but very often the provision of
hostel places is bought in from private or charitable suppliers
who insist on assessing clients and refuse to provide a service
for those they consider unsuitable. Further referrals to agencies
across England to provide suitable accommodation will further
delay the search for a medical supervisor. We are aware of delays
of more than three years in such cases.
4.7 Clauses 63 & 64 require the Tribunal
to make a Deferral Order if it wishes to discharge a patient in
the absence of an appropriate care plan, on the basis that he/she
would be likely to meet the conditions for compulsion within 8
weeks and Clause 64(4) provides that a care plan be drawn up within
that period. This is unachievable in some cases, particularly
in forensic cases involving a conviction for arson.
4.8 We would welcome the ability to extend this
period in appropriate cases, particularly for patients in high
secure services, and for the Tribunal to have greater powers to
re-consider its decision if it has not taken effect.
4.9 A number of medical staff have indicated
that for many patients, relapse is likely to take several months
rather than 8 weeks. They would welcome discretion to make a Deferral
Order in such cases.
Theme Five: Is the proposed institutional framework
appropriate and sufficient for the enforcement of measures contained
in the Draft Bill?
5.1 Only one comment was received on this theme.
The proposal to remove responsibility for the Tribunal system
from the Department of Health to the Department for Constitutional
Affairs is welcomed. It is believed that Tribunals form a central
part of their work and consequently, there should be improved
systems.
Theme Six: Are the safeguards against abuse
adequate? Are the safeguards in respect of particularly vulnerable
groups, for example children, sufficient? Are there enough safeguards
against misuse of aggressive procedures such as ECT and psychosurgery?
6.1 The proposal to extend safeguards to under
16s is welcome. However, our Child & Adolescent Mental
Health Services have queried whether it is proposed that
no child under 16 should ever need to come under Part II or III if
someone with parental responsibility is empowered to consent?
They take the view that particularly with older adolescents,
there are situations where it is undesirable from a parent's
perspective to be party to detention. It is sometimes
preferable that professionals initiate formal compulsion.
6.2 Opinion is divided on whether these safeguards
should be extended to all under 16s given their acknowledged vulnerability.
Some feel that this would displace an important common law right
enjoyed by parents, to an external body (i.e. the Tribunal) while
others feel it is imperative that similar rights are afforded
to children who are neither resisting treatment nor capable of
expressing their wishes. There is wholehearted support for automatically
extending safeguards to all under 16s if they are ever admitted
to a facility that is primarily for adults.
6.3 We do share concerns expressed in other submissions,
that CHAI is specifically barred by Clause 260(6)(b) from investigating
the management of restricted patients by the Secretary of State.
Decisions about these often vulnerable patients should be made
in as open a way as possible and it is in everyone's interests
that they should be subject to scrutiny. There is no objection
to the continuance of annual statutory reports to the Home Secretary,
copies of Tribunal reports and the right to be heard at Tribunals
but decisions must be made by the Tribunal itself.
6.4 Additionally, a number of groups have expressed
concern that there will no longer be a stand alone Mental Health
Act Commission. The proposal that it be subsumed into the Healthcare
Commission does suggest that the needs of those subject to detention
will be just one of many competing priorities in an organisation
whose concerns will be mainly in the acute medical arena. It is
held by all staff groups that there should be a statutory right
to investigate individual patient issues.
Theme Seven: 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 Practice right?
7.1 We would comment on the sheer complexity
of the Draft Bill for non-lawyers. Given that it will be necessary
for people at all levels to be conversant with the final Bill,
its Regulations and its Code of Practice, there are concerns that
there will be widespread confusion once it goes 'live'.
7.2 Comments at paragraph 2.1 above apply equally
here.
Theme Eight: Is the Draft Mental Health Bill
adequately integrated with the Mental Capacity Bill (as introduced
in the House of Commons on 17 July 2004)?
8.1 Further to paragraph 7.1 above, it will be
necessary for professionals throughout mental health services
to have a reasonable working knowledge of both Bills and both
Codes of Practice. This makes it even more likely that there will
be greater reliance on expensive legal advice and a huge increase
in legal actions.
8.2 Individual professionals have commented that
they are unsure when one Bill would apply rather than the other.
This is likely to be particularly complicated in services for
older people. The recent 'Bournewood' judgment (HL v the United
Kingdom) from the European Court of Human Rights has created
even greater confusion as it now appears that whether patients
who lack capacity amount to 'detained' patients, will have to
be determined on an individual basis.
Theme Nine: Is the Draft Mental Health Bill
in full compliance with the Human Rights Act?
9.1 Our comments at paragraph 3.7 above relate
to this theme.
9.2 The view of our speech and language therapists
is that greater compliance with the Human Rights Act will be achieved
by enshrining a right to have information supplied by interpreters
and signers in languages other than English and Welsh. Particular
consideration should be given to the needs of mentally ill patients
who suffer from 'language disorders' directly or indirectly by
virtue of mental disorder and/or disability. This is likely to
be more appropriately covered by the Code of Practice.
Theme Ten: 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?
10.1 West London Mental Health Trust has the largest
resident detained population of any Trust in the United Kingdom.
We are therefore acutely aware of the likely resource implications
of the Draft Bill. There has not been time to quantify and analyse
the future requirements of the Mental Health Tribunal locally
but we are confident that in this Trust alone, four to six panels
will be required to sit on almost every working day of the year
to accommodate the current level of detained patients. In smaller
Trusts and provider units, we anticipate huge problems in simply
providing accommodation for the Tribunal.
10.2 Quite apart from the need for further investment
in Mental Health Act Administration staff (again, not yet fully
projected) it is also our confirmed view that the need for investment
in the Tribunal system has been significantly underestimated,
not least to ensure that professional time is not wasted as it
so often is due to inadequate financial and human resource investment
in the current Tribunal system.
10.3 Finally, there is concern through all staff
groups that training requirements have equally been underestimated.
We have no reason to doubt the projected costs of this but do
believe that the timescale is over-ambitious. Given the need to
train additional staff groups, some with little current knowledge
of Mental Health Law, this is a huge task.
Simon Crawford
Chief Executive, West London Mental Health NHS
Trust
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