DMH 389 Memorandum from the Health and
Social Services Committee National Assembly for Wales
REPORT BY THE HEALTH AND SOCIAL SERVICES
COMMITTEE
Draft Mental Health Bill
Background
1. On 14 October 2004 the Health and Social Services
Committee considered the Draft Mental Health Bill published by
the UK Government on 8 September for pre-legislative scrutiny.
The Committee invited those organisations in Wales that gave
evidence on the previous draft Bill in September 2002 to do so
again. Copies of the written evidence submitted in advance of
the meeting are appended to this report, together with the minutes
of the meeting.
2. The organisations represented were:
- Association of Directors of Social Services;
- HAFAL;
- Mind Cymru;
- Royal College of Psychiatrists;
- Royal College of Nursing.
The Law Society was also invited to the meeting,
but had not been able to accept.
Consideration of Evidence
3. The Committee focused its examination of the draft
Bill on the changes from the draft Mental Health Bill that was
published in 2002 and the extent to which the new draft met the
concerns raised then.
General Principles
4. Written evidence from the Royal College of Psychiatrists
addressed the question of whether the draft Bill was rooted in
a set of unambiguous principles. They recommended a number of
issues that the Bill should address specifically as principles.
Hafal supported this view.
The Committee's Conclusion and Recommendation
- The Committee took the view that the principles
underlying the draft Bill should be set out clearly. The current
draft, as with the 2002 draft, was not compatible with Assembly
policy.
Conditions for Compulsory Treatment
5. All of those who gave evidence took the view that
the revised definition and associated conditions would result
in increased levels of compulsory detention. New groups would
come under the scope of the legislation inappropriately, including
those with substance misuse problems and people with personality
disorders, for whom there was no clear course of treatment.
6. In their written evidence, the Royal College
of Psychiatrists said that any new Act must not have an adverse
effect on voluntary (consenting) patients. This could occur because
patients who are under compulsion will have first call on the
limited resources. This view was supported by Hafal, who felt
that the Bill would not help people who sought treatment voluntarily
in the early stages of mental illness.
Committee's Conclusions and Recommendations
- The definition of mental disorder was too
broad and needed to be qualified by exclusions.
- The emphasis on compulsion would draw heavily
on resources resulting in less scope for early therapeutic intervention
where this was sought voluntarily. The right of people to have
voluntary treatment needed to be given equal status.
TREATMENT ORDERS IN THE COMMUNITY
7. In their written evidence Hafal had been particularly
concerned about the loss of carers' rights. It felt that carers
would no longer have powers to seek the discharge of patients
and they were effectively excluded because new provisions for
the Nominated Person replaced the previous rights of carers.
Vicky Yates, a carer who gave oral evidence to the Committee felt
that carers would have all the responsibility and none of the
rights. She believed the new legislation would put pressure on
carers to ensure patients did not breach conditions, which could
be seen as part of the coercing process and would have an adverse
effect on the caring relationship.
8. Hafal also raised concerns that under Clause 14(1)
any person could request the Local Health Board to carry out an
assessment of a mentally disordered person. This could lead to
malicious or mischievous requests.
9. Mind also raised concern that the nominated person
was entitled only to be 'consulted' and had no powers to discharge
a patient under compulsion. They felt that the nominated person
should have the same powers as the nearest relative under current
law and should retain the right to block the patient's admission.
Mind took the view that it was unlikely that people who were well
enough to be in the community and not in hospital would need compulsory
treatment. It could be difficult to break the cycle of compulsory
treatment where treatment was shown to be effective and removal
of compulsion could put the patient at risk.
10. The Royal College of Psychiatrists told the Committee
that, although the draft Bill provided for compulsory treatment
in a health care setting, it did not contain enough detail about
how this might be achieved. In its written submission, it recommended
that the rights and safeguards should be same under the Mental
Capacity Bill and the Mental Health Bill.
Committee's Conclusions and Recommendations
- The role of the nominated person would be
weaker than that of the current "nearest relative".
This needed to be addressed, as did the role and rights of carers.
The Committee recommended that the Joint Parliamentary Committee
be asked to look at the roles of the nominated person and carers
in the cycle of assessment and treatment.
- The concerns about compulsory treatment
raised by the Committee in 2002 had not been addressed. These
related to the criteria for applying compulsion and how compulsory
treatment would be given in the community.
- Clause 14(1) was open to abuse in people making
malicious or frivolous requests for assessment. It was recognised
that this clause was probably intended to protect the rights of
families and carers, but its intention needed clarification.
- There is potential for people being trapped
in a cycle of incidents of compulsion. Compulsion should be a
temporary measure only.
- It was important that the provisions and terminology
of the draft Mental Health Bill and the Mental Capacity Bill currently
before Parliament should be compatible.
Effects on Professional Roles
11. In their written evidence, the Royal College
of Nursing said that the Approved Mental Health Professional may
require a different view, possibly a conflicting one, from that
of the actively caring nurse, patient or manager and there were
clear implications for the therapeutic role. The role needs to
be clarified. They supported this in their oral evidence with
the view that moving the focus from a therapeutic, caring relationship
to one of compulsion could be extremely damaging.
12. The Association of Directors of Social Services
was disappointed that the Approved Social Worker role had not
been retained. The Bill did not take account of the increasing
integration of health and social care and the aims of the National
Service Framework. Mind expressed grave concerns at the loss of
independence resulting from the creation of the Approved Mental
Health Professional. The current Approved Social Worker was seen
to have a level of independence because he or she was not normally
employed by the NHS. Service users had been extremely concerned
by this proposal.
13. The Royal College of Psychiatrists highlighted
the current shortfall in consultant psychiatrists in Wales, where
there are 40 vacancies. It estimated that 30 more psychiatrists
would be required in addition to filling the vacancies, if there
were to be no diminution in services for patients not subject
to detention.
Committee's Conclusions and Recommendations
- The provisions in the Bill for compulsion
could damage the therapeutic relationship between the patient
and health care professionals.
- It would not be appropriate for the role of
the Approved Social Worker to fall to a professional in the health
service.
- If the number of people receiving compulsory
assessment and treatment were to increase under the Bill as predicted
it would be necessary to recruit more psychiatrists.
Other Resource Implications
14. In their written evidence all of the organisations
expressed concerns about implications for resources, both staffing
and financial. The Royal College of Nursing and the Association
of Directors of Social Services expressed the view that mental
health services were already under funded and that the requirements
of the Bill would exacerbate the problem.
Committee's Conclusion
- The additional costs that would be associated
with providing more tribunals and advocacy were noted, although
evidence on this had not been discussed.
Effects on Welsh Mental Health Services
15. Hafal expressed the view that the provisions
of the bill would increase the stigma attached to mental illness
Committee's conclusion and recommendation.
- The Bill should seek to reduce, rather than
increase, the stigma associated with mental illness. The Committee
recommended that the Joint Parliamentary Committee address this
issue in detail when it scrutinises the Bill.
David Melding AM
Chair
November 2004
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