Joint Committee on the Draft Mental Health Bill

Joint Committee on the Draft Mental Health Bill Written Evidence

DMH 50 DRAFT MENTAL HEALTH BILL SUBMISSION BY IMHAP

This submission is provided by the Institute of Mental Health Act Practitioners, assisted by Professor Anselm Eldergill a founder member of the Institute.

The Institute of Mental Health Act Practitioners IMHAP was founded in 1990. It has 675 members drawn from all of the relevant mental health professions, the majority of its membership is made up of Mental Health Act managers and administrators. It specialises in providing advice on Mental Health Act administration and management issues. It has published several books in this field.

The Institute welcomes some of the changes that the Government has made to the Draft Bill originally published. For example, we support the amended conditions for compulsion, the new safeguards for children aged under 16 and the removal of Part 5 of the original Bill (which concerned the informal treatment of incapacitated patients).

The Institute remains concerned about several aspects of the Bill.

Our concerns are explained under the following headings, each of which refers to a theme on which the Committee has indicated it particularly wishes to receive evidence:

§1	Basic Principles	Page 2
§2	Definition of Mental Disorder and Related Definitions	Page 2
§3	Conditions for Compulsion and Detention	Page 4
§4	Separation of Powers and the Executive	Page 8
§5	Safeguards concerning Forced Medication and ECT	Page 9
§6	Safeguards against Abuse	Page 10
§7	Safeguards - Abolition of Mental Health Commission	Page 15
§8	Omissions	Page 16
§9	Compliance with the Human Rights Act	Page 17
§10	Balance between Collective and Individual Rights	Page 17
§11	Integration with the Mental Capacity Bill	Page 18
§12	Practicality of the Proposals	Page 19
§13	Concluding Remarks	Page 23
§14	Contact Details	Page 23

§1 THEME - BASIC PRINCIPLES

This part of our submission deals with the following theme, on which the Committee wishes to receive evidence: '1. Is the Draft Mental Health Bill rooted in a set of unambiguous basic principles? Are these principles appropriate and desirable?'

We are not aware that the Government has set out a set of 'unambiguous basic principles'.

It has stated that the existing Act does not adequately protect people from 'the significant risk posed by a minority of patients'. It 'remains based on treatment in hospital, and too often has allowed severely ill people outside hospital to drift out of contact with services.'

In our opinion, the proportion of violence in society attributable to mental illness remains low, and people are better protected from violence of this kind than from most other kinds. Violence has much more to do with education, upbringing, alcohol, drugs and testosterone than mental illness. That is not to say that it is appropriate to detain and treat people in these classes under mental health laws.

When enacting mental health legislation, Parliament has generally sought to erect a balanced legal structure that harmonises three things: individual liberty; bringing treatment to bear where treatment is necessary and can be beneficial; the protection of the public. Those we describe as 'patients' are themselves members of the public, so that the law must seek to ensure that members of the public are not unnecessarily detained, and also that they are protected from those who must necessarily be detained.

The use of compulsion has been permitted when significant harm is foreseeable if an individual remains at liberty. Its purpose is to protect the individual or others from those risks that arise when a person's capacity to judge risks, or to control the behaviour giving rise to them, is impaired by mental disorder.

§2 THEME - DEFINITION OF MENTAL DISORDER AND RELATED DEFINITIONS

This part of our submission deals with the following theme on which the Committee wishes to receive evidence: '2. Is the definition of mental disorder appropriate and unambiguous?'

In our opinion, the definition of 'mental disorder' must be understood together with the definitions of 'medical treatment' and 'hospitals', and we have therefore considered their combined effect.

The approach taken in the Bill is essentially a reworking of the consultation document on 'dangerous severe personality disorder' that was published by the Home Office and the Department of Health in July 1999.

In this document, the two departments advocated that risk alone, as well as mental disorder and criminal punishment, can justify detention. As a result, consideration was given to detaining such people in 'third units', in essence adult secure accommodation of the kind presently provided for some behaviourally-disturbed children.

The 'third-unit' option seems to have been abandoned, probably because it was thought that indefinitely detaining non-offenders in civilian accommodation risks infringing the European Convention on Human Rights.

Article 5(1) permits the detention of convicted persons and those of unsound mind in appropriate facilities (prisons and hospitals, respectively), but does not in clear terms permit the detention of citizens who have not offended merely because there is a risk they will do so in future.

Detention in secure non-hospital accommodation rather rules out pleading mental disorder, and a need for treatment, as the justification, and nor can punishment or lawful sentence be pleaded, because the individuals are not serving a term of imprisonment.

Probably for these reasons, therefore, the Government seems to have retreated, at least for the present, to the justification that such people are mentally disordered: they require medical treatment in hospital or medical treatment under supervision in the community.

Meaning of 'mental disorder'

Key Point
The definition of 'mental disorder' is too broad.
Further Explanation
Unlike the present Act, the Bill does not provide that no one may be dealt with as mentally disordered by reason only of promiscuity, immoral conduct, sexual deviancy or dependence on alcohol or drugs. Thus, one is entitled to assume that the Government intends that it will be lawful to compulsorily treat individuals on the sole ground that their behaviour is of such a kind. See Clause 2(5).

Meaning of 'medical treatment'

Key Points
The definition of 'medical treatment', which includes education and work training, is too broad.
Further Explanation
References in the Bill to 'medical treatment' are references to treatment for mental disorder provided under the supervision of an 'approved clinician.' The term 'treatment' includes education, work training, and training in social skills. See Clause 2(7).

Consequently, a person who is drug-dependent and whose behaviour is anti-social and alarming may be said to have a mental disorder that warrants providing medical treatment, in the form of work training or social skills training, under psychological supervision.

Meaning of 'a hospital'

The definition of 'a hospital' includes private houses that provide compulsory education, work training or social skills training under psychological supervision to people with personality, alcohol or drug dependency problems. What constitutes a hospital is broadly defined: see Clause 2(3). A private establishment, such as a converted Edwardian house, is a hospital if its main purpose is to provide medical treatment for mental disorder to persons subject to Part 2 or 3.
Because people with 'personality disorders', substance abuse problems or sexual deviancy may now be categorized as having a mental disorder, and education or training under psychological supervision constitutes medical treatment, an establishment offering such a service is a 'hospital'.
Provided it is suitably registered, it may detain people who meet the conditions for compulsion.

Combined effect of the new definitions

The consequence is that social interventions that most people do not think of as medical treatments, given to individuals who most people do not regard as mentally disordered, constitute medical treatments for mental disorder. Defining anti-social people as mentally disordered, supervised social interventions as medical treatments, and establishments which detain such people or provide social services as hospitals, enables adult secure accommodation to be dressed up for European Convention purposes as hospital treatment for persons of unsound mind.

The Institute would prefer that the containment and management of people categorised as having only personality or substance-dependency problems should either be excluded from the Bill or dealt with under a separate Part of the Bill.
This would ensure that those suffering from mental illness are afforded greater protection from being subject to legislation that makes it relatively easy to subject people to long term, and possibly life-long, containment.

§3 THEME - CONDITIONS FOR COMPULSION AND DETENTION

This part of our submission deals with the following theme on which the Committee wishes to receive evidence: '2. Are the conditions for treatment and care under compulsion sufficiently stringent? Are the provisions for assessment and treatment in the community adequate and sufficient?'

For obvious reasons, we have divided this part of our submission into three parts:

The conditions for short-term compulsion (up to 72 hours)

The conditions for compulsory assessment and treatment under Part 2

The conditions for compulsory treatment under Part 3 (criminal provisions)

The new short-term powers
Key Points It is constitutionally inappropriate that a doctor may detain someone s/he believes requires assessment in the community.	Further Explanation The Bill provides that a doctor may authorise the detention for up to 72 hours of an informal in-patient who appears to require, not detention in hospital, but assessment in the community. See Schedule 6.
It is constitutionally inappropriate that who is authorised to detain an informal patient is not defined and left to regulations.	A 'person falling within a description described … in regulations' may likewise detain such a person for up to six hours: See Schedule 6. Who is authorised to use this power will therefore be determined by the Minister after Parliament has enacted the legislation. It may be that the power will remain reserved to suitably qualified nurses. However, the Bill does not require this.
It is constitutionally inappropriate that a single doctor may authorise a citizen's compulsory admission and detention if the approved mental health professional accompanying her/him is not also of the opinion that detention is appropriate or that there is any urgent necessity for this.	The new 'section 4' emergency admission procedure is set out in Clause 17. It provides that the patient shall be admitted to hospital if the doctor - rather than both professionals, as at present - determines that the person's assessment is an urgent necessity, and that awaiting a second medical examination would involve undesirable delay.
Because the professional opinion is evenly divided, the citizen's detention is not then founded on reliable evidence, which is a Convention requirement.	This is unsatisfactory. Although the approved mental health professional's opinion is that the relevant conditions for compulsion are met, it may also be their opinion that admission and detention are inappropriate. If so, the individual's detention is then founded on one medical opinion with which the approved professional disagrees, and that possibly from a general practitioner, or a doctor with no previous acquaintance of the patient. Furthermore, even if the approved professional believes that detention is appropriate, s/he may not agree that detention or assessment is urgently necessary, or that it is undesirable to await the second medical examination, for example from a consultant psychiatrist.

The conditions that govern when a warrant to remove a citizen to a place of safety may be issued require amendment, in order to bring them into line with practice.	The new section 135(1) power (Warrant to remove a person to a place of safety) is set out in Clause 227. It adopts the existing statutory grounds and, because they remain unchanged, so they remain defective. Whether a person can care for themselves, or is being ill-treated or neglected, is not the same issue as whether the only way in which a statutory assessment can be undertaken is by forced entry and removal. Although this is the usual reason for using the power, it continues not to be a ground for issuing the warrant.
It is constitutionally inappropriate to use mental health legislation to allow constables to remove citizens who are drug or alcohol dependent from their homes without any need for a warrant. We are concerned that the power may be misused.	The most controversial short-term provision is the urgent removal power in Clause 228. Necessarily, this power, as with all of the others, extends to people who are alcohol or drug dependent, or 'sexually deviant'. In other words, they too are liable to be removed to a place of safety by a constable acting without a warrant.
The 'relevant conditions' for compulsion under Part 2
The relevant conditions for compulsion must be understood in the context of the statutory definitions of 'mental disorder' and 'medical treatment'	The statutory criteria for compulsion under the civil provisions in Part 2 are called 'the relevant conditions' (See Clause 9). The conditions for compulsion must be understood in the context of the very broad definitions of 'mental disorder' and 'medical treatment' referred to above.
The meaning of the word 'lawfully' in Clause 9(5) needs to be clarified.	In most cases, compulsion under Part 2 is only permissible if 'medical treatment cannot lawfully be provided to the patient without him being subject to the provisions of this Part.' The word 'lawfully' has been added here, and it is ambiguous. Is it intended to mean that the person cannot be 'sectioned' if s/he consents to informal treatment, or does it mean that an incapacitated person cannot be 'sectioned' if s/he can be treated instead under the Mental Capacity Bill or the common law doctrine of necessity? This is an important point that needs to be clarified.
In contrast to the present Act, the Bill allows for the compulsory treatment of people who are not treatable. If they are not treatable why force treatment on them?	The Bill abolishes the existing 'treatability test'. In other words, where a person has a learning disability or personality disorder, it will no longer be a condition of longer-term compulsory treatment that treatment is likely to alleviate their condition or prevent its deterioration. The equivalent condition in the draft Bill is that 'appropriate medical treatment is available'. This 'appropriate' medical treatment may, of course, consist of nothing more than education or work training not provided under any medical supervision. 'Appropriate' is a very general word, and the Bill does not say that treatment is only appropriate if it is likely to alleviate the patient's condition or prevent its deterioration.
Because what constitutes 'medical treatment' may be extended by making regulations that extend who is an 'approved clinician' under the Bill, so the relevant conditions for compulsion may be extended by regulations.	Because 'treatment' only constitutes 'medical treatment' if it is 'provided under the supervision of an approved clinician', and who is or may be approved will be determined by the Secretary of State after the legislation has been passed, it can be seen that the grounds for compulsion can periodically be varied by secondary legislation. This is unsatisfactory, and may be unlawful. For example, because it enables the conditions for compulsion to be varied periodically by Ministers without going back to Parliament.
The criteria for detention in hospital under Part 2
Provided a citizen meets the relevant conditions for compulsion, the Bill leaves to regulations the issue of whether s/he should be liable to be detained in a hospital. This is constitutionally inappropriate, and we are sure that it does not comply with the European Convention.	The new Clause 15(2) provides that, 'If the patient falls within a description specified by the appropriate authority in regulations, each of the examiners must, in carrying out an examination, also determine whether it is appropriate for the patient to be detained in a hospital while an assessment of him is carried out.' It is therefore proposed that Parliament should be silent as to the circumstances in which citizens will be liable to detention under mental health laws, imposing no conditions or safeguards, entrusting instead the 'liberty of the subject' to the executive and regulations made by the Minister from time to time.
The Bill provides that a citizen may be detained even though the medical evidence is evenly divided as to the need for detention. Again, we are sure that this does not comply with the European Convention, which requires that detention is founded on reliable evidence.	Clause 16(5) then provides that a person who meets the conditions for compulsion may be detained in hospital if an approved mental health professional and one doctor consider it 'appropriate', notwithstanding that the other doctor, who may have special expertise in psychiatry, considers it to be inappropriate. Thus, the individual's detention is authorised even though the medical opinion is evenly split, with the expert opinion being against detention. The test for detention is as subjective as such tests can be. Not 'is the individual's mental disorder sufficiently severe to warrant deprivation of liberty?', or 'is depriving this individual of their liberty justified by the risk of harm?', but 'does a professional person think it is appropriate to detain them while an assessment is carried out?'
Admission to hospital of non-resident patients
In certain circumstances, the Bill authorises the detention of a citizen to be founded upon a single medical opinion, and this an opinion that may conflict with the determinations previously made by three practitioners. Again, having regard to Convention requirements, we doubt the lawfulness of this.	The Bill provides that the consultant of a non-resident patient may sign a statutory form, upon the completion of which the patient may be conveyed to hospital and detained there: See Clauses 28, 48 and 51. Thus, although detention at the time of the original examination is only possible if an approved mental health professional agrees it is appropriate, once that examination has been completed the patient's detention may be founded on one medical opinion - an opinion which conflicts with, and overturns, the decision of three examiners or a tribunal as to its inappropriateness. Re-examination by three examiners would, we think, be preferable.
Imposing conditions on non-resident patients
We consider that the conditions which may be imposed on a non-resident patient should be specified.	The conditions that may be imposed on a non-resident patient include those specified in Clause 15(4). The use of the word 'include' leaves open, and unclear, what other conditions may lawfully be imposed, and this is unsatisfactory.
The conditions for compulsion under Part 3
The conditions for compulsion under Part 3 are too lax. It suffices that the offender has a mental disorder (e.g. substance dependency) of a nature that warrants providing medical treatment under psychological supervision (e.g. social skills training) and that this 'appropriate treatment' is available.	The conditions for imposing longer-term compulsory treatment under the criminal provisions in Part 3 are much laxer. It suffices that the individual has a mental disorder of a nature or degree that warrants providing medical treatment to them, and that appropriate medical treatment is available (Clause 116). This is a matter that requires the most careful consideration, given the broad definitions of mental disorder and medical treatment, and the number of people with personality or substance-dependency problems who appear in court.

§4 THEME - SEPARATION OF POWERS AND THE EXECUTIVE

This part of our submission deals with the following theme on which the Committee wishes to receive evidence: '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?'

Balance between legislation and regulations

Key Points
The drafting of the Bill is 'back-to-front' and reserves constitutional issues affecting 'the liberty of the subject' to regulations made by the Secretary of State.
Further explanation
The drafting of the Bill is unusual, and 'back-to-front'. It is silent about matters which one would expect to find defined by Parliament, such as the grounds upon which a citizen can be detained, and prescriptive about matters that are probably not intended to be legally enforceable and are merely directory, e.g. the numerous requirements to consult and notify people and to keep the status of patients under review.

As already noted, who may detain an informal in-patient for up to six hours, when a person is liable to detention for assessment under Part 2, and who is an 'approved clinician' (and, therefore, what constitutes medical treatment) are all matters left to regulations.
The Bill even states that the Secretary of State may prescribe matters that must be dealt with in tribunal applications (see, e.g., Clause 39), a function that surely belongs to the Lord Chancellor.

It also enables the Secretary of State to regulate the giving of ECT without the usual certificates (see Theme 5).

§5 THEME - SAFEGUARDS CONCERNING FORCED MEDICATION AND ECT

This part of our submission deals with the following theme on which the Committee wishes to receive evidence: 'Are there enough safeguards against misuse of aggressive procedures such as ECT and psychosurgery?'

Safeguards concerning medication given without consent, etc

Key Points
The Bill abolishes the existing right of patients to an independent, binding, second-opinion concerning the appropriateness of the medication they are forced to take. This seems contrary both to common-sense and recent court decisions, so that we doubt whether it complies with the European Convention.
Further Explanation
Fairness and commonsense dictate that decisions to authorise treatments that can be given by force should be subject to safeguards.

The Government's intention appears to be that anti-psychotics and other drugs given for mental disorder constitute 'Other medical treatment', and will be governed by Clauses 198 to 200.

Clauses 199 and 200 provide that the consent of a patient who is liable to assessment or treatment under Part 2 or 3 is not required in respect of any medical treatment of such a kind provided it is described in her/his care plan (or care plan as approved by the tribunal with modifications).

We strongly believe that the Expert Panel should be given this function to perform. Because a tribunal can only modify the medical treatment in a care plan with the patient's consultant's consent, this amounts to abolishing the right that patients detained for treatment presently have to a binding second-opinion on their drug treatment from an independent consultant psychiatrist appointed by the Mental Health Act Commission. The Bill could, but does not, transfer this protective function to the new Expert Panel.

Administering medication without consent in 'hospital settings'

The broad definition of what constitutes a hospital leads to a correspondingly broad list of places where citizens may be held down and given medication by force. The Bill allows for administering medication without consent in a hospital (Clause 198). Medication may be given without consent in an NHS clinic, in small 'mental nursing homes' that are willing to provide this service, and small private establishments that constitute 'hospitals' for legal purposes.

Administering medication without consent in non-hospital settings

If one takes 'patient consent' to mean that that the patient freely consents to treatment then it is inevitable that drug treatments will often be given to people in their own homes without their consent. After all, if they accept the need for treatment there is no need for it to be given under a compulsory order. In practice, it is likely that consultants or tribunals will impose a requirement or condition that the patient takes prescribed medication, in addition to a requirement that s/he attends hospital as required. It will be pointed out that there will be no need to require the patient to attend hospital, or to convey them there, if an injection can be given at home. The patient has this option.
It may be objected that any medicines given in such circumstances are not given with consent, for if the person truly consented to their administration a compulsory treatment order would be unnecessary.

Against this, the procedures for patients liable to compulsory treatment under the 1983 Act provide for medicines being given with or without consent. The current statutory position is therefore that a patient may give a valid consent to medication notwithstanding that a refusal may result in administration by force.
If this is the case, home treatment and assertive outreach teams will be giving medication within the home to people who would refuse it if free to decide. To the non-lawyer, this amounts to administering medication without the person's consent outside hospital settings.

Safeguards concerning ECT given without consent, etc

We are concerned that it will be too easy in practice for consultants to by-pass the protective scheme set out for ECT. In our opinion, the safeguards concerning ECT, though modified, remain unsatisfactory. They are set out in Clauses 177 to 190.

Under Clauses 182 to 184, a patient may effectively be given a whole course of ECT if their consultant certifies at the out set of the course of treatment that the treatment is immediately necessary to alleviate serious suffering. That being so, it is unclear how often consultants will decide that it is necessary to apply to a Mental Health Tribunal for authorization.

Here again, the Secretary of State has reserved to himself the power to regulate the scheme although, by constitutional convention, all significant encroachments on the liberty and security 'of the subject' should, we believe, be determined by Parliament and entrenched in statute law.

§6 THEME - SAFEGUARDS AGAINST ABUSE

This part of our submission deals with the following theme on which the Committee wishes to receive evidence: '6. Are the safeguards against abuse adequate?'

Many safeguards against the poor or inappropriate use of compulsion are abolished. In addition to those already mentioned: The Bill:

fetters the new Mental Health Tribunals;

revokes the powers of a patient's nearest relative;

provides that the guidance in the Code of Practice may be qualified;

abolishes the statutory duty to provide long-term after-care;

revokes the discharge powers of NHS bodies and local authorities;

may endanger professional independence;

does not provide for an independent, standalone, Mental Health Commission.

Mental Health Tribunals
Key Points We believe that tribunals should continue to have a discretionary power to discharge people from compulsion.	Further Explanation The powers of the new tribunals are limited. In particular, they have no discretion to discharge a person who meets the statutory conditions for compulsion. Here too, practitioners are prohibited from taking into account matters not referred to in the Government's test. As a result, more patients will be subject to perennial compulsion, because some people with chronic illnesses never satisfy the statutory test for discharge. That is not to say that they ought not to be discharged once they are functioning at their optimum level, provided that neither they nor anyone else is at significant risk.
The Bill should provide that a tribunal must release a citizen from detention unless it is satisfied that clear grounds which Parliament has determined justify depriving a citizen of her/his liberty are met.	Whether a patient who meets the conditions for compulsion is actually released from detention, but not compulsion, is left entirely to the tribunal's discretion, there being no grounds which qualify when detention is or is not lawful.
If citizens who have not committed an offence are to be subject to restrictions of the kind imposed on dangerous offenders then similar protections should be put in place.	A notable feature of the new scheme is that people who have not committed an offence may be placed under restrictions on discharge, transfer and leave of the kind now imposed by the Crown Court on offenders who pose a risk of serious harm to the public.
Where a person applies to be discharged from short-term compulsory assessment, we do not agree that a tribunal should be empowered to not only refuse their application to be released but also to extend the period of compulsion by up to six months. Because the rules will no doubt provide that where two applications are outstanding they may be heard together, it is better to leave it to the clinical supervisor to decide whether to apply for a further order.	Where a person who has been detained for up to 28 days asks the tribunal to review the grounds for the detention, it can extend the period of compulsion by up to six months. Necessarily, many patients will be wary of challenging their detention, given the purpose and possible consequences of independent review. This wariness is likely to be reinforced by the fact that their perception of tribunals will change. Instead of being the independent body that can order their release, it will be seen as the authority that imposes long-term compulsion. It must still be doubtful that these provisions satisfy Article 5.
We are concerned that a tribunal may authorise a person's further detention for up to eight weeks when it has just determined that s/he does not satisfy the relevant conditions for compulsion, let alone detention.	Where a detained Part 2 patient does not meet the relevant conditions for compulsion in the community, the tribunal must in some cases authorise her/his detention for a further eight weeks. See Clauses 63 and 64.
Nearest relatives and nominated persons
Key Points A patient's spouse or partner should retain their existing power to object reasonably to admission to hospital. Why get rid of the right to lodge a reasonable objection? That person should also retain the existing power to discharge from detention a patient who is not likely to act in a manner dangerous to her/himself or others.	Further Explanation A person's nearest relative has several important powers under the present Act, two of which protect patients against the inappropriate use of compulsion. Although most of our members know of instances where an inappropriate person has been entitled to act as the patient's nearest relative, the nearest relative's right under the existing Act to order the patient's discharge is a key protection for patients that should not be abandoned lightly.
If the patient has no spouse or partner, any relative who is her/his ordinary carer (as defined in the Bill) should also have these rights.	These powers recognise the importance of the family in people's lives, and the need to limit the circumstances in which the state may interfere with individual and family life. A balance is achieved between the state's claim to provide protective compulsory care and the right claimed by families to care for their loved ones, and to cope with and manage behaviour that mostly affects only them.
A scheme of this kind still enables necessary treatment to be given as a non-resident patient.	The vast majority of patients have caring, responsible, relatives. When relatives see their children or other close family members detained on a ward that for varying reasons is either not therapeutic or causes the patient undue distress, they should retain the right to care for the individual at home, provided the patient is not a danger to themselves or others.
	The Bill abolishes the nearest relative as a legal entity, and with it the family's right to these protections.
We wonder whether the 'nominated person' is given a sufficiently useful role to justify all of the consultation and notification requirements.	A new 'nominated person' replaces the nearest relative. However, this person has but one power, which is to apply to the tribunal for the patient's discharge.
We are concerned that the functions of independent MHA Advocates include explaining things such as the requirements imposed on the patient - who are they advocating for - and we are not clear how their independence of the detaining authority (who may well be paying them) is to be guaranteed.	Patients and nominated persons have a right to help under the Bill's advocacy provisions. However, their statutory role is as much concerned with explaining the consultant's treatment, and why the patient must comply with it, as it is with protecting or promoting the patient's legal rights. Such advocates will be appointed by the NHS - and probably often by the detaining trust in practice - and the detaining trust may refuse the advocate access to the particular patient's records. See Clause 247.
We generally welcome the rights given to carers by the Bill.	Carers who provide regular and substantial care must also be consulted about some decisions. However, by definition, these rights are carers' rights, and of course their advice may be that the patient should remain subject to detention or compulsion.
Qualified Code of Practice
We are concerned that the Secretary of State has excluded her/himself from having to comply with good practice requirements set out in a Code of Practice, and that it is considered inappropriate in certain circumstances to say what is good practice.	The new Code of Practice may provide that one or more general principles shall not apply in circumstances in which its application would be 'inappropriate', or in relation to specified decisions or persons. A new sub-clause now also provides that certain matters are excluded from the remit of the code. Almost all of these matters relate to functions of the Secretary of State. In other words, the Secretary of State will not himself be subject to the Code of [Good] Practice. See Clause 1 and Schedule 1.
Abolition of section 117
As a general principle, where a person has been so ill as to require long-term detention and compulsory treatment in a psychiatric unit, we think it a good thing that the after-care authorities should be under a duty to provide them with such after-care as is reasonably necessary to minimise the risk of relapse and readmission. We do not believe that it is fair to require people to pay for treatment they are compelled to receive.	The Government indicated in the White Paper that patients would not be charged for services they are compelled to receive. Clauses 53 and 68 deal with free care services before and after discharge. Patients who are required to reside in accommodation that is their ordinary place of residence may be charged all or part of the cost of that accommodation.
Powers of hospital managers and others
We believe that the managers of a hospital should retain the power to discharge a person detained by them if they are of the opinion that the statutory conditions which make detention lawful are no longer met.	Hospital managers, Health Authorities, NHS trusts, and local authorities all lose their powers to discharge individuals from compulsion. Only the patient's clinical supervisor or the tribunal may discharge a patient. Under the Mental Health Act 1983, the hospital managers have the power to discharge patients from liability to detention. This has resulted in NHS trusts appointing local people with suitable experience and qualifications to hear requests for discharge made by patients to the detaining NHS trust. Our research shows that approximately 3-4% of these hearings result in the patient having her/his appeal against detention upheld.
	We believe that these informal 'appeal hearings' are an important additional protection for patients against unjustified detention However, the draft Bill abolishes the hospital managers' power of discharge, and with it this avenue of appeal.
We do not believe that the 'independent' MHA advocacy service is an adequate substitute for the protection presently afforded to citizens by co-opted independent managers.	We do not consider that the new Mental Health Act advocacy service is an adequate substitute. The advocates possess no formal powers. Furthermore, the new advocacy services will require extensive training and considerable payment. They will be superimposed onto existing advocacy services and many patients are likely to be confused about the respective functions of qualified solicitor advocates and the new informal advocates. We feel that patients will end up with less protection and increased confusion.
Hospitals should continue to co-opt managers from the local community.	It will also be important that hospitals continue to co-opted managers from the local community, to fulfil some of their functions under the Bill.
Professional independence
We are concerned about the possibility that all three examiners may be employed by the prospective detaining authority.	The existing separation of powers, which requires that the applicant is independent of the doctors recommending compulsion, is abolished. Subject to regulations, in future examinations may be conducted by three health service colleagues employed by the detaining body. See Clause 14. There is currently a shortage of approved social workers and the situation is due to get worse. The broadening of the pool of mental health professionals who may be approved as AMHPs under Clause 3 is therefore understandable. However, their independence must be preserved and safeguarded by ensuring that when they undertake this function they act independently of the employing NHS trust.
Abolition of Mental Health Commission
	We consider this constitutional issue to be so important that we deal with it under a separate major heading immediately below.

§7 THEME - SAFEGUARDS - ABOLITION OF MENTAL HEALTH COMMISSION

This part of our submission deals with the following theme on which the Committee wishes to receive evidence: '6. Are the safeguards against abuse adequate?'

When vulnerable people are subject to detention or compulsory medical treatment, the law has usually sought to protect them by requiring that a specialist, independent, legal body visits them periodically, in order to ensure that these powers are not being abused.

Agreed international standards now require governments to provide for this: See, e.g., Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, adopted by United Nations General Assembly resolution 46/119 of 17 December 1991. Inspections must be sufficiently frequent to ensure that the conditions, treatment and care of patients comply with international principles.

The Mental Health Act Commission presently performs this essential function. Its active visiting regime has had a positive impact on most NHS trusts in the country, and many detained patients have benefited from these visits during the past 21 years. Members of the Institute have found the Commission to be supportive and helpful in improving compliance with the Code of Practice and the Mental Health Act.

The Bill provides for the Mental Health Act Commission's abolition, and it also abolishes the visiting function. The Government proposes that henceforth the Commission for Healthcare Audit and Inspection (CHAI) will exercise some functions in relation to the new Act: see Clauses 256 to 277 and 289 to 292.

In our opinion, getting rid of a small, standalone, semi-independent, specialist Mental Health Commission will do enormous harm.

A much better funded specialist Mental Health Commission, with a clearer and more focused remit, would be a better and more positive development, rather than hiving this function off to a large Healthcare Commission whose remit is far too broad and politically sensitive to do justice to this relatively small and vulnerable group of patients. These patients are citizens who are being detained, and in most cases medicated against their will.

A separate Commission is essential, given the number and range of people who will be liable to compulsion; the fact that compulsion will now take place in the community; the position of incapacitated people; and the overall reduction in safeguards for those subject to compulsion.

The danger is that the constitutional imperative will be consumed by the larger political imperatives if the MHAC becomes one small division within a super-Commission dedicated to monitoring compliance with the NHS programme. When CHAI budgets are set, 'mental health legal money' will compete with NHS performance-targets, and be diverted to the inspection of acute care - in the same way that funds announced for mental health initiatives are now sometimes diverted by Health Authorities to reducing waiting list times.

It must also be doubtful whether any merger will achieve its stated aim of reducing NHS bureaucracy.

Visiting patients, and ensuring that they are being treated kindly and lawfully, does not increase regulation. It is not a regulatory exercise. CHAI does, however, operate as a regulatory body and is concerned with general management systems.

Furthermore, merging 'quangos' so that they exercise their functions as divisions of one 'super-quango' does not reduce regulation. This requires reducing the range of functions performed. Furthermore, one can only successfully join institutions that perform similar functions.

Recommendation

1 There should continue to be an independent, standalone, Mental Health Commission, the functions of which comply with agreed international standards.

In 1982, Parliament amended the last Mental Health Bill by strengthening the role of what was to be the new Mental Health Act Commission. We hope that it will again perform a similar valuable service. If it does, there is much to be said for placing the Mental Health Commission on the same footing as the Health Service Commissioner: that is, accountable to and funded by Parliament, or (if this is not possible) accountable to and funded by the Department of Constitutional Affairs.

§8 THEME - OMISSIONS

This part of our submission deals with the following theme on which the Committee wishes to receive evidence: 'Are there any important omissions in the Bill?'

Seclusion and mechanical restraint

Key Points
The Bill should regulate the use of seclusion and mechanical restraint.
Further Explanation
For reasons that are obvious, we consider that the Bill should regulate the use of seclusion (solitary confinement) and mechanical restraint.

Rehabilitation provisions

The Bill does not include any rehabilitation provisions The Bill does not include any rehabilitation provisions of the kind set out in the Mental Health (Northern Ireland) Order 1986. We think that if person's detention or compulsion does not exceed 28 days, s/he should not be required to state in any future employment or insurance application that s/he has been 'sectioned'.

Offences

Who has the duty to investigate and prosecute offences under the new Act should be made clear. The Bill seems to make no provision.

§9 THEME - COMPLIANCE WITH THE HUMAN RIGHTS ACT

This part of our submission deals with the following theme on which the Committee wishes to receive evidence: '9. Is the Draft Mental Health Bill in full compliance with the Human Rights Act?'

Non-compliance issues

Key Points
Our opinion is that some of the Bill's provisions in relation to detention and compulsory treatment are likely to breach the European Convention on Human Rights
Further Explanation
These matters have been dealt with above.

§10 THEME - BALANCE BETWEEN COLLECTIVE AND INDIVIDUAL RIGHTS

This part of our submission deals with the following theme on which the Committee wishes to receive evidence: '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?'

Whether the Bill achieves the right balance?

Key Points
No.
Further Explanation
Patients are themselves members of the public, so the law must ensure that members of the public are not unnecessarily detained, and also that they are protected from those who must necessarily be detained.

The Bill removes many important protections against abuse that either have no impact on the risk of self-harm or harm to others (such as the abolition of the Mental Health Act Commission and its visiting function, of second-opinions concerning antipsychotic drugs, of clear criteria for detention) or only a minimal impact that is outweighed by the protection afforded to citizens (such as the abolition of managers' powers). It is this fact, perhaps more than any other, that has given the impression of uncaring disregard and caused such opposition to the Department of Health's proposals.

Even if people are inadequately protected from the actions of people who have a mental disorder, this may not be a fault of our laws. It may be due to insufficient resources, poor government, poor service management, poor risk management, faulty practice, a faulty understanding of the law, or simply part of the human condition. In other words, a problem or limitation that is to a significant extent replicated across a world full of different mental health laws.

Implicit in any discussion about the need for new laws is the assumption that modifying their content modifies outcomes. However, the extent to which this is true is unclear. Legislation is actually a relatively ineffective means of modifying behaviour. Although it can provide a framework for managing violence associated with mental disorder, it cannot significantly reduce these risks. That this is so is clear from the many homicide inquiry reports. Had the professional carers foreseen what was about to happen, they already had power under the present law to intervene. That they did not intervene was due, not to any lack of legal powers, but to the fact that they did not foresee what was about to occur. Yet no amount of new legislation can improve foresight.

§11 THEME - INTEGRATION WITH THE MENTAL CAPACITY BILL

This part of our submission deals with the following theme on which the Committee wishes to receive evidence: '8. Is the Draft Mental Health Bill adequately integrated with the Mental Capacity Bill introduced in the House of Commons on 17 July 2004?'

Mental Capacity Bill and common law powers

Key Points
The Bill does not refer to the Mental Capacity Bill or to common law powers. That being so, it must be the case that it is not integrated.
Further Explanation
The Draft Bill does not refer to the Mental Capacity Bill introduced in the House of Commons on 17 June 2004.
It is clearly important that considerable attention is given to the extent to which the various powers, duties and rights concerning incapacitated patients set out in the Mental Health Bill, the Mental Capacity Bill and the common law conflict. The interplay between the different statutory and common law schemes is a potential minefield that could take years to resolve, and be very expensive for healthcare providers.

§12 THEME - PRACTICALITY OF THE PROPOSALS

This part of our submission deals with the following themes on which the Committee wishes to receive evidence:

'4. Are the proposals contained in the Draft Mental Health Bill necessary, workable, efficient, and clear?

5. Is the proposed institutional framework appropriate and sufficient for the enforcement of measures contained in the draft bill?'

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?'

Having regard to these requirements, and the many demands already made on the time of Mental Health Act administrators, doctors and other health service professionals, we have significant reservations about the practicality of the new provisions. Indeed, we think that many of the provisions may be unworkable.

Drafting ambiguities and errors

Key Points
We believe that the Bill would benefit from being redrafted.
Further Explanation
We believe that the Bill contains many drafting ambiguities and errors, and it is certainly highly repetitive and unnecessarily complicated. We think that it would be sensible for the Department of Health to seek further legal advice.

The 'assessment period'

We believe that the period allowed before a clinical supervisor must apply to a tribunal for an assessment or treatment order should be extended.
However, during this extended period, the patient should be entitled to apply for her/his discharge if s/he so wishes.
We are concerned about the impact that the very short assessment time frame for producing reports will have on the ability to provide care plans that are agreed with the patients and are sufficiently detailed to be able to have clarity of purpose and intent. The Institute would suggest, as it has in the past, that a six week time frame for assessment should be used. In the majority of cases, this will enable an agreed care-plan to be produced, with a medication regime that has the opportunity of having settled prior to the tribunal.
Further benefits may be a significant reduction in the number of tribunal hearings, fewer adjournments (to allow for further assessment) and a more inclusive approach to report preparation for tribunals. This would better reflect the direction that good practice has been developing over the past ten years.

Implementation issues

The Institute's concerns about the implementation of the Bill include that: The Institute has a number of significant concerns about the implementation of the Bill:

The new tribunal system will not work In our opinion, the proposed Mental Health Tribunal system will not work. The present system is already at breaking point, and we estimate that the number of tribunal hearings will quadruple.

It will be impossible to recruit sufficient professionals We believe that it will prove impossible to recruit sufficient professionals to carry out the necessary tribunal hearings three weeks after the commencement of compulsion.

Care teams will provide less care The preparation of reports within that timescale will also create major problems, and care teams will need to focus increasingly on meeting statutory deadlines rather than on patient-focused therapies and creating inclusive care plans.

Psychology services will be placed under an even greater burden There is a desperate shortage of clinical psychologists at presently, and consequently they have high workloads. It is unlikely that many of them will be interested in taking on the additional and substantial responsibility of being a clinical supervisor. Those that do will put further pressure on the clinical workloads of those that do not.

The number of Mental Health Act Administrators will need to be at least doubled The workload involved at the service provider end of the process will require at least doubling the number of Mental Health Act administrative staff. This will have major cost implications.

The accommodation requirements of tribunals will be difficult to meet. The accommodation requirements of the Mental Health Tribunal hearings will also pose a major problem for a majority of service providers. This too will have major cost implications.

Administration of the new Act

If the Bill is viable, it will be necessary to allow those who must implement it a lengthy induction period before it comes into force. The time allowed should, we think, take the following considerations into account:

The extension of compulsion to community settings.
The extension of the population liable to compulsion.

The transitional provisions in Schedule 14.

The need for services that today are not involved in compulsory procedures to familiarise themselves with practice in this area, e.g. psychology departments and substance-dependency services.

The need for hospitals to recruit additional staff in order to comply with the Bill's extensive consultation and notification requirements.

The anticipated increase in the number of tribunal applications (applications for discharge, assessment orders, treatment orders, further orders, applications relating to transfers or leave, applications to vary orders).

The need for the tribunals to reorganise and for the Legal Services Commission to make the necessary arrangements for patients to be legally represented.

The requirement that NHS trusts determine whether a citizen appears to meet the relevant conditions for compulsion every time it is requested to do so by any person.

The requirement that NHS trusts arrange for every person who appears to meet these conditions to be examined by two doctors and an approved mental health professional.

The duty to record the many kinds of determinations provided for by the Bill and the reasons for them.

The many formal requirements imposed on the managers of hospitals, e.g. to 'secure' that clinical supervisors make tribunal applications when required to do so by the terms of the Bill, to appoint clinical supervisors, to secure that patients are assessed and that care plans are prepared, to require patients to comply with conditions imposed on them, to deal with requests for determinations, to register patients, to record changes in the status of resident and non-resident patients, to process tribunal applications, to liaise with the new tribunals and the Expert Panel, to furnish reports and other prescribed information, etc.

The many formal duties imposed on clinical supervisors, e.g. to review and amend patients' care plans, to make tribunal applications when required by the Bill, to keep the legal status of all patients under review, to comply with the consent to treatment provisions, etc.

The need to retrain all doctors, social workers, nurses, managers and other mental health professionals who will be involved in implementing the new Act. They will need to be familiar with the Act, regulations, statutory forms, rules, Code of Practice, and the guidance issued by the Department of Health, Home Office, CHAI and Mental Health Tribunals.

The need to organise the necessary nominated person and advocacy services.

The need to put into place systems for approving clinicians and mental health professionals.

The need to make arrangements for the inevitable increase in NHS litigation, and to allow the NHS and independent hospitals time to agree satisfactory legal cover and insurance.

Issues concerning statutory forms

The new statutory forms will require careful consideration and they should be devised in conjunction with IMHAP The need to monitor and report on the use of the new powers will necessitate developing statutory forms which ensure that each stage of a patient's compulsion and care, from assessment through to treatment, is recorded.

There are many possible different paths and the devising of these forms will require careful consideration and discussion. IMHAP represents over 80% of Mental Health Act Administrators, and we believe that it should play the central role here.

The statutory forms used to record patients' care plans should take account of the lessons of the 1983 Act, and require the clinical supervisor to specify each drug and dosage (and not allow any drug within a general class to be given up to the maximum licensed dosage).

Training

Training is a crucial issue. Substantial time and money will need to be set aside for training on the Bill. It will be necessary to retrain all those doctors, social workers, nurses, hospital managers and other mental health professionals who will be involved in implementing the new Act.
Services that today are not involved in compulsory procedures will need to familiarise themselves with practice in this area, e.g. psychology departments and substance-dependency services.
They will all need to be familiar with the Act, regulations, statutory forms, rules, Code of Practice, and official guidance.

Sharing of information

The clauses that deal with 'information sharing on request' (Clauses 286 to 288) are extremely unhelpful. Having set out what seems to be a new set out statutory duties concerning the sharing of information, this part of the Bill then ends with, 'Nothing [above] authorizes the provision of information if such provision would be prohibited or restricted under or by virtue of any enactment or by any rule of common law.'
In other words, the poor practitioner is told to decide for her/himself whether any of the 'duties' in the Bill is a new duty or a breach of confidentiality.

§13 CONCLUDING REMARKS

We recognise that the Government has attempted to address the concern expressed by many people about the criteria for civil compulsion contained in the original Bill. We also welcome the introduction of new safeguards for children aged under 16.

Unfortunately, we also feel bound to note that in most other respects the contentious provisions of the original Bill remain unaltered. Indeed, the relevant conditions aside, the new Bill is if anything less satisfactory in terms of the constitutional balance it strikes between those persons in positions of authority and those subject to their authority.

We are particularly concerned about the abolition of a specialist Mental Health Commission, the way in which central government departments have excluded themselves from the Code of Practice and other safeguards, and the fact that matters such as the criteria determining whether a citizen is detained are left to regulations. Lastly, we remain concerned about the length of the Bill and the quality of the drafting, the practicality of the proposals and the complexities and expense involved in administering it.

§14 CONTACT DETAILS

All correspondence and enquiries concerning this submission should be addressed to:

Yens Marsen-Luther
Chief Executive
IMHAP



© Parliamentary copyright 2004	Prepared 2 November 2004