MENTAL HEALTH ACT 2007

“in many ways a missed opportunity”

Following eight years of heated debate, we finally have a new Mental Health Act. Its implications for health services are far-reaching. Under new powers, the NHS will have extra powers to detain people in hospital and also to impose treatment upon them outside hospital under threat of a forcible return if they do not comply

During its passage through parliament, the bill that began with important new powers for practitioners but no new safeguards for patients has to some extent become more balanced, as a result of robust debate in the House of Lords in particular.

The original bill would have allowed a person to be detained without any test that treatment given would be to their benefit. Now, professionals will need to demonstrate a therapeutic purpose before they detain someone: specifically that treatment given under compulsion must have the ‘purpose of alleviating or preventing the worsening’ of the person’s condition or ‘one or more of its symptoms or manifestations’. The bill would have allowed just one clinician to renew a detention or put someone on a supervised community treatment (SCT) order. Now, all such decisions need to involve more than one professional who works with the patient.

Parliament has also added some important new safeguards. Children will now be protected against an inappropriate admission to an adult psychiatric ward. People subjected to detention will have a right to an independent advocate to speak up for them. Both of these are genuine steps forward but will require primary care trusts in particular to invest as a priority in more appropriate inpatient facilities for children and young people and in advocacy provision.

Despite these important mitigating measures, some worrying aspects of the bill have not been changed. Supervised community treatment can still be imposed on a person after just one spell in hospital, though with a partial safeguard that their risk of getting worse on release should be considered beforehand. Community orders can also be renewed for an indefinite period and people placed under them will have no means to appeal against the restrictions placed upon people for their ‘health and safety’.

How supervised community treatment orders get implemented will be pivotal. Most countries’ experience of community orders is that over time their use escalates but that at best they neither help nor hinder people in getting their lives back. It is as yet unclear how people on SCT will be monitored, and by whom. There will be important roles for community teams, GPs, social services and a range of other agencies, including police and ambulance services. What roles they have, and how their workload will be affected, will need to be specified well in advance of the act being implemented. Training for the staff involved will be crucial, but it will be equally vital to ensure that services for people who are not on SCT do not get put to the back of the priority list as a result.

The new act is also in many ways a missed opportunity for a more thorough modernisation of mental health law. It fails to recognise that a person’s ability to make decisions about their care and treatment should be respected. It gives no legal recognition to advance statements made by service users when they are well about how they wish to be treated when they are unable to make their views known: though these are likely to be featured in the code. And it has not changed the outdated system that determines how a person’s ‘nearest relative’ is chosen. All of these changes would have brought England and Wales into line with good practice in many other jurisdictions, most notably Scotland.

Nonetheless the act will present a major challenge for health and social care organisations. It will open up the statutory roles previously taken only by doctors and social workers to a wider range of professionals. How those people are trained, accredited, monitored and supported remains to be determined.

The act also has the potential to increase the total number of people at any time subject to compulsory powers. With a wider definition of what constitutes mental disorder, a potentially wider condition of ‘appropriate’ treatment and the creation of SCT, the act could, if implemented without care and attention, bring more people under compulsory powers for longer periods of time.

What happens next is therefore vital. The code of practice and implementation of the act will need the active involvement of all those who have to make it work and those who have to live with the consequences. Implemented well, the act could still offer some people with mental health problems better chances in life; done badly, it will make those people’s lives more difficult than they already are.

Andy Bell is chair of the Mental Health Alliance

The new act is….in many ways a missed opportunity for a more thorough modernisation of mental health law

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“a law that is focused primarily on public safety, rather than.. equality for people with mental health problems”

So all the shouting is over. After nine years and 10 ministers and secretaries of state, of what often seemed like trench warfare between stakeholders and government, we finally have a reformed Mental Health Act. It is due to come into force in October 2008

While there’s a sense of relief all round that the process is over, the opportunity has been missed to produce a really progressive, rights-based piece of legislation fit for the 21 st century. Although the act is much improved from the version that went into Parliament in November last year, with the right to advocacy included for example, it remains a law that is focused primarily on public safety, rather than promoting choice, rights to services, and equality for people with mental health problems.

Nevertheless, as a society we broadly condone the existence of legal powers to detain and treat people with mental disorders if they are of risk to themselves or others. This act is a result of that. What we should all be striving for now is to ensure that it is implemented and used in a way that seeks to build trust and show respect for mental health service users and their families, and minimises coercion and control. Naturally this will be very challenging.

However, while the act itself does not contain principles it does require the code of practice (a draft of which will be out for public consultation) to contain principles that should inform decision-making under the act. It identifies a number of areas that the principles must address including respect for, and involvement of the service user, minimising restrictions on liberty, and avoidance of unlawful discrimination. The principles are crucial. NHS mental health trusts and local authorities will need to be updating policies and procedures and ensure staff are made aware and trained in readiness for the new law. But these processes should not simply be mechanistic changes. Instead, the principles should be embedded throughout in order to achieve a cultural change in the way mental health services are provided, particularly to those subject to compulsory powers. This in its own right will be difficult because at times there will be tensions between principles, such as minimising restrictions on liberty against public safety. Mental health services and professionals need to be able to manage these tensions. But if services rise to this challenge, and involve service users and carers in doing so, it will help build that trust and respect.

One practical way of doing this could be around the policies and protocols that are put in place locally for the new community treatment orders (CTOs). CTOs have always been viewed with suspicion by service users as well as many mental health professionals. There is the genuine fear that they will be used as psychiatric ASBOs, indiscriminately applied to service users, and once on a CTO people will never get off them. Within what the law and the code says, designing policies and protocols for CTOs provides a good opportunity to involve service users and carers, among others, to ensure that they are not used for these purposes and that they properly reflect the principles such as respect for the person’s wishes and feelings and minimising restrictions on liberty.

Another way would be to promote and encourage the use of advance statements, whereby service users can indicate the way they would like to be treated and cared for when they are in crisis. Although not included in the Mental Health Act they are referred to in the Mental Capacity Act (which also gives advance refusals of treatment particular legal status). While advance statements are not legally binding they will greatly assist staff involved in a person’s care particularly if that person is in serious mental distress that may require detention in hospital.

And perhaps the arrival of the new act is a good time to review policies on control and restraint, given the genuine fears (particularly among people from black and minority ethnic communities) that a compulsory admission into psychiatric hospital may result in their death as a result of excessive restraint, through physical or chemical means.

But legislation in its own right cannot automatically produce good services and in many respects the debates over reform of the Mental Health Act have distracted attention from the wider issue of ensuring that mental health services are fit for purpose. Changing demographics and needs, service user-led models of recovery, personalisation of care, social inclusion, the implications of becoming a foundation trust, and the ongoing debate about the whole concept of mental ‘illness’, to name but a few, are all critical and sometimes contentious areas of mental health service development that require both thinking about and usually doing something about. The new Mental Health Act certainly needs adding to that list but lets try and assist services to improve, to help ensure that the act needs using as little as possible.

Toby Williamson is associate head of service improvement & workforce development, the Mental Health Foundation

as a society we broadly condone the existence of legal powers to detain and treat people with mental disorders if they are of risk to themselves or others

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“there is, apparently, little place for personal autonomy for a person with a mental illness”

Eight years of deliberation, two draft bills and one real bill have resulted in the Mental Health Act 2007 (applicable only in England and Wales). It is clear that this act which amends the Mental Health Act 1983 (leaving to one side the 'Bournewood' amendments to the Mental Capacity Act,) is preferable to either of the draft mental health bills or to the bill as introduced to Parliament. Whether it is an act for the 21st century is likely to be discussed for some time to come

We all agreed that the act needed updating, with the twin aims of helping safeguard patients rights and protecting patients and others from harm. What is the result? The act includes some important new safeguards. Access to independent advocacy for all detained patients is welcome. The right of patients who retain decision-making capacity to refuse ECT (other than as a life saving treatment in an emergency) is another gain, both for the reassurance it offers patients and because it demonstrates that the government understands that people with a mental illness may be able to make sound decisions about their own healthcare and, perhaps more importantly, that they should have the right to do so-it might be argued that if the government had understood the benefits of applying this view more widely we would have ended up with a less repressive act.

The requirement that all under 18s who require admission should be admitted to a service appropriate for their age should significantly enhance child and adolescent mental health services although careful monitoring will be needed to ensure that this provision becomes a reality. The provision that capacitous refusal of treatment, by 16 and 17 year olds, cannot be overridden by those with parental authority removes confusion and promotes autonomy. The ability to move section 136 patients from one place of safety to another should reduce time spent in a police station. Other advances include the right for a patient to change their nearest relative-albeit that that the provision is much more restrictive than necessary-and rights for victims.

Despite broad support for these changes, Earl Howe, who led for the Opposition, said in his closing speech in the House of Lords: "The sadness is that ministers and we on this side of the House should have approached the task of amending the Mental Health Act from two different perspectives, which in the final analysis have not been reconciled". He continued: "It should not be the function of mental health law to impose treatment on those who are clearly able to make decisions for themselves. That principle has been the subject of much high level support over the years. It is the reason why we sought, unsuccessfully, to persuade the government that a test of impaired decision making would do more to bring mental health services into the modern world than just about any other change".

The act perpetuates two erroneous beliefs. First, that a patient with a mental disorder should not have the right, however capable their decision making, to decide what is appropriate healthcare for him or herself, even if s/he presents no dangers to anyone. The national director of mental health said: "Every restriction (placed in the act) is a person not treated". It matters not that the decision is reasoned, for example, that for the patient the disease is less of a burden than the treatment. There is, apparently, little place for personal autonomy for a person with a mental illness.

Secondly, it reinforces the view that society can be made safer if professionals are given enough powers. Some patients who could not previously be brought under compulsion, because their conditions were excluded from the definition or sub-types of mental disorder, can now be detained and patients will be able to be kept under compulsion in the community indefinitely. Will this work? It seems unlikely. There have, tragically, been many homicide inquiries. Not one has supported the need for greater powers for professionals. Danger, be it for the patient or others, does sometimes result from untreated, or poorly treated, illness. This has repeatedly been shown to be due to a number of factors including patients avoiding the service due to stigma or fear or because no service was available when the patient or their family requested it. Of course, compulsory powers are needed for some patients, but whether the extension of powers in the way set out in the act will enhance care or drive patients away, as the patients themselves have said it will, remains to be seen.

We await publication of the regulations and code of practice which will give further guidance on the interpretation of parts of the act. In the meantime, does the Mental Health Act 2007 provide the best legal and ethical framework for the protection of patients and the public currently available? The scope of equivalent legislation in Scotland, New Zealand and many states of Australia is much more limited. The recently published Bamford report for mental health law reform in Northern Ireland should also be given serious consideration. It sets out proposal for a single Act covering all non-consensual treatment. Were it to become law, it might become the benchmark for effective, fair, non-stigmatising legislation.

Dr Tony Zigmond is former vice-president of the Royal College of Psychiatrists and member of the College's Westminster parliamentary committee

it reinforces the view that society can be made safer if professionals are given enough powers

whether it is an act for the 21st century is likely to be discussed for some time to come