Mental Health Bill Newsletter March 2007

The Bill has completed its passage through the Lords and now moves to the Commons. We are awaiting the date of the 2^nd reading (when the Bill is first debated in the Commons).

The main changes made by the Lords are listed below. Some of the amendments were Government amendments, I have marked these with an asterisk (the importance of this is that the Government won’t reverse its own amendments during the Bill’s passage through the Commons.

1. The criteria for section 2 and section 3 (not for Part III detentions) includes ‘significantly impaired decision-making by reason of mental disorder’.

2. The definition of ‘Appropriate treatment’ has been amended to treatment which is “likely to alleviate or prevent a deterioration in his condition”. The ‘if available’ test still applies. In other words if the treatment is available but the patient refuses it, detention may still take place.

3. Exclusions now include: substance misuse (including dependence upon, or use of, alcohol or drugs); sexual identity or orientation; commission, or likely commission, of illegal or disorderly acts; cultural, religious or political beliefs.

4. Section 20 renewal now states that if the Responsible Clinician (RC) isn’t a registered medical practitioner (RMP) then renewal requires that both the RC and a RMP (either a RMP who has been professionally involved with the patient or, if one is not available, a RMP who is an Approved Clinician) agree that the requirements for renewal are met.

5. Treatment safeguards: no ECT in the face of capacitous refusal other than in an emergency*.

6. Community treatment orders

7. Section 136: Authority to move the patient from one place of safety to another.*

8. CAMHS

9. Ill-treatment: Punishment for ill-treatment increased from 2 to 5 years imprisonment*

10. Principles. Principles will not be on the face of the Bill. The Bill will be amended with the following statement:

After section 118(2) of the 1983 Act (code of practice) insert— The code shall include a statement of the principles which the Secretary of State thinks should inform decisions under this Act. In preparing the statement of principles the Secretary of State shall, in particular, ensure that each of the following matters is addressed—

a) respect for patients’ past and present wishes and feelings,

b) minimising restrictions on liberty,

c) involvement of patients in planning, developing and delivering care and treatment appropriate to them,

d) avoidance of unlawful discrimination,

e) effectiveness of treatment,

f) views of carers and other interested parties,

g) patient wellbeing and safety, and

h) public safety.

The Secretary of State shall also have regard to the desirability of ensuring—

i) the efficient use of resources, and

j) the equitable distribution of services.

In performing functions under this Act persons mentioned in subsection (1)(a) or (b) shall have regard to the code.*

11. Mental Capacity Act (Bournewood)*

12. Still being discussed

I keep being asked “will the changes stick”?

Following ‘Report’ stage the minister, Rosie Winterton, made a speech in which she set out why she believed the government proposal were the best way forward. She went on to say “But the Lords – or at least a majority of them – have taken a different view. They have not put the public at the heart of their deliberating.  Instead, peers have seriously weakened the changes we want to make and, in my view, have seriously weakened the protection for both patients and the public”. She continued  “We have made decisions which we believe strike the right balance between getting treatment to those who need it, putting in place patient safeguards and minimising the risk to the public. By choosing to ignore the strict conditions for detention already in place, downplaying the importance of the judgment of doctors and the implications of denying treatment for patients, the Lords have altered, either knowingly or unknowingly, the entire balance of the bill. It’s why, for the sake of mental health patients themselves and the safety of the public, these changes must be overturned.

During 3^rd reading, Earl Howe (Conservative) responded as follows: “As this may be the last opportunity to do so, I end by expressing my appreciation for the courtesy and helpfulness of the Minister throughout the passage of the Bill. He has never been less than utterly straightforward and equable, even when, regrettably, we had to disagree. I thank him for that. If he will allow me to say so, I cannot help being fearful that the same spirit of open and constructive engagement may not be carried over into the debates in another place. Last week the Minister’s right honourable friend Rosie Winterton made several public pronouncements about the effect of the amendments carried by your Lordships’ House that were, to be frank, grossly misleading. I stop short of saying that they were wilfully misleading because I have no grounds for going that far, but the Minister was certainly ill briefed. This is not the moment to issue a line-by-line rebuttal of what she said, but I hope that it will be in order for me to do that by way of a letter before the Bill has its Second Reading in the Commons”.

Baroness Barker (Liberal-Democrat) said: “I rebut firmly one charge made by Rosie Winterton in her speech on 1 March, using arguments and phrases that we have heard a lot in the past few months—principally from the Government’s mental health adviser. She said of your Lordships’ House that we had not put the public at the heart of our deliberations. That is completely and utterly wrong. Even a cursory neutral reading of the proceedings of our debates would show that they have been lengthy, well informed and not without a great deal of argument. They have always been predicated on the understanding that mental health legislation exists to protect patients and the public, and that there will always be a need for compulsory treatment within such measures. Your Lordships’ House is entitled to reject utterly and completely that accusation, which is false and without basis”.

Colleagues will be aware the Government has a large majority in the Commons.

I will continue to keep you informed.

Best wishes

Tony Zigmond

Honorary vice-president, Royal College of Psychiatrists

March 2007