1. Although there are significant changes in the White Paper vis-à-vis the Green Paper much remains unchanged and where this is the case the College's comments in our response to the Green Paper must remain.

 

2. The College welcomes the explicit and medically obvious requirement that treatment for patients who are a risk only to themselves should be in their best interests. However the College notes the explicitly stated lack of a best interest test for those who pose a risk to others, and the inappropriateness of applying medical care to people where it is not in their best interests. This clearly contravenes the Council of Europe White Paper on 'Psychiatry and Human Rights'. Future legislation on this basis may well be vulnerable to challenge by the Human Rights Act 1998.

 

3. The College wishes to express strongly the view that improving the extent and quality of mental health services will make a substantial contribution to the Government objective of reducing suicides and homicides, but the contribution of any new mental health legislation is likely to be extremely small. Indeed it could be counter-productive because patients could be deterred from seeking care.

 

4. The new proposals may not only deter patients from seeking treatment; they may also deter doctors from entering the psychiatric profession and increase the number of early retirements.

 

5. Psychiatrists have expertise in the assessment and management of patients with mental disorder. Where some patients may require a legal framework for compulsion (because their judgement is impaired by their mental disorder) it is important to emphasise that such patients should only be subject to compulsion under the care of a psychiatrist whilst there is need for psychiatrists' skills.

 

6. The College considers that the proposals contained in Part II regarding detainment are, where no offence has been committed, equivalent to internment without trial. This may explain the Home Affairs Select Committee's concern that, like the Prevention of Terrorism Act, new legislation for 'Dangerous Severely Personality Disordered' people ('DSPD') should be subject to a 'sunset' Clause of regular Parliamentary review. Inclusion of DSPD detention within a new generic Mental Health Act leaves such concerns unaffected.

 

7. The College welcomes the Millan Report proposals in Scotland to use an alternative and flexible criterion of the 'impairment of judgement arising from the mental disorder' as a requirement for compulsion. Use of this criterion has the double advantage of retaining respect for the ethical notion of autonomy and restricting the number of patients who might be compelled.

 

8. The use in the White Paper of very broad entry criteria lays a foundation for wide variation of application, which contradicts the Government's intention. It also puts excessive responsibility on Tribunals since there will be little law capable of judicial review and indeed little law on which Tribunals will be able to make decisions. The process therefore appears more administrative than legal. There is also an absence of clear criteria for discharge particularly in the context of compulsory treatment orders applied to those in the community.

 

9. It should be recognised that very many patients may satisfy the broad criteria in the proposed Mental Health Act but nevertheless there may be no basis for compulsory treatment or detention in current medical knowledge or practice.

 

10. The Government's rejection of the Richardson Committee's proposals to draw mental health law closer to medical common law will result in continuing confusion among clinicians about which part of the law applies to which aspects of patients' needs. The College wishes to emphasise the importance of clarity concerning the boundaries of any new Mental Health Act.

 

11. The very broad entry criteria within the proposed Act invite substantial inappropriate legal compulsion of those with drug and alcohol dependency, given the absence of any exclusion clause.

1.1 The proposals in the White Paper, if implemented in full, would be extremely costly both financially and in terms of medical and other workforces. This should be seen in the context of the current high vacancy rate in psychiatry and the present difficulty in filling the medical member Tribunal places. The proposals would need additional funding to that already given to support the implementation of the National Service Framework.

 

1.2 There are concerns about the lack of rights for patients before they come to a Tribunal (ie within the first 28 days) and the potential for perceptions of collusion between the psychiatrist and the social worker/CPN because of the lack of a required independent application.

 

1.3 The College has grave concerns regarding rights of appeal given the current proposals for a new mental health tribunal. Justice requires that patients must have the option of appeal against their compulsion to a different group of people to those who originally compelled them. A further improvement we would welcome would be the possibility of appeals by patients or doctors against all tribunal decisions.

 

1.4 Standard One of the National Service Framework (listed in the White Paper under paragraph 1.9) and paragraph 1.12 refers to the Government's pledges to reduce stigma and social exclusion for those with a mental illness. These pledges are welcome. However the White Paper focuses heavily on protecting the public and this emphasis will damage the campaign to reduce stigma. There is also clear disparity between this White Paper and the White Paper on Learning Disability('Valuing People - A new strategy for learning disability in the 21st century') in terms of stigma.

 

1.5 New legislation will be framed so that 'those who pose a significant risk of serious harm to others as a result of their mental disorder [are] to be detained in a therapeutic environment where they can be offered care and treatment to manage their behaviour' (1.15). However, the College is concerned that there is no requirement for any therapeutic benefit to the person detained.

 

1.6 Abandonment of the idea of separate 'DSPD' legislation brings the likelihood of acute psychiatric wards being opened up to those being assessed for or diagnosed with 'DSPD' or lesser personality disorder. Such detention would occur in already over-crowded and ill-equipped facilities. Taken together paragraph 3.29 (Part I) and 3.3 and 4.4 (Part II) imply a requirement to admit, or even assess, in the community, or on bail, those with personality disorder whose behaviour may be a risk to others but who fall short of qualifying for the special services identified for the group called DSPD. Paragraph 6.39 (Part II) and the box on page 19 (Part II) explicitly requires admission to general psychiatric facilities in order to determine whether the person might qualify for special DSPD management. This would also apply in relation to admissions to regional facilities.

2.1 The College hopes that the principle of the patient being treated in the least restrictive environment possible will remain in relation to care and treatment orders and should be included in the Act rather than the Code of Practice.

 

2.2 The College notes that certain principles are listed in Chapter 2 but is disappointed that there is no principle relating to the health need of the patient.

 

2.3 The proposed legislation is extremely unlikely to have any impact on suicide or homicide rates (2.3). With reference to suicide, a recent article by Powell, Geddes, Deeks, Goldacre and Hawton (British Journal of Psychiatry, 2000, 176, 266-272), showed that even within the high-risk group of in-patients there would need to be 100 patients detained unnecessarily in order to prevent one suicide. With regard to homicide, Crawford (Psychiatric Bulletin, 2000, 24, 152) has shown that with a predictive test with a sensitivity and specificity of 0.8 (far better than anything available currently) 5000 people would need to be detained to prevent one homicide. Szmukler (Psychiatric Bulletin, 2000, 24, 6-10) has shown that if the predictive test became even better (0.9) this would still require the detention of 2000 people to prevent each homicide. This emphasises that prevention of homicide and suicide can only ever arise as a secondary benefit from improved mental health care for a population and never via prediction per-se of such events.

 

2.4 The College notes that in paragraph 2.9 the White Paper states that a proposed new mental health act would be compatible with the Human Rights Act 1998. The College is concerned that the proposals as they stand are not compatible with the Council of Europe White Paper on psychiatry and human rights and, in fact, may be vulnerable to challenge under the Human Rights Act.

 

2.5 The College welcomes paragraph 2.11 about the participation of patients in discussions relating to their care and treatment. We note, however, that this runs contrary to many other propositions in the White Paper.

 

2.6 The first sentence of paragraph 2.16 makes explicit a core concern of the College's which is the emphasis on public risk over patient care and any other human rights. The College takes the firm view that the only rationale for psychiatric intervention is 'for the benefit of patients' health' and that public protection is a secondary effect. Public expenditure in general is not wholly concentrated on police forces but is balanced with spending on education, health and so on. This recognises the balanced needs of society. This White Paper states that risk is primary and should take precedence over all other purposes of the mental health services. This can only add to the stigma associated with mental health problems.

 

2.7 The College is concerned that there is no evidence that the 1983 Mental Health Act 'has failed to protect the public or patients' or how the proposed reforms would be able to do so.

3.1 The College favours a broad definition of mental disorder, as does the White Paper (paragraph 3.3), but would stress the need for additional gateways for entry into compulsory care. Without tight gateways there is the potential for a large number of people being brought inappropriately under the remit of the Mental Health Act with consequent legal challenge.

 

3.2 The broad gateway without tight criteria also exposes dangers arising from not having exclusion categories (3.4).

 

3.3 The College notes that the remarks in the White Paper (3.4 and 12 on page 5) regarding whether a patient's previous care and treatment can be taken into account when using the Mental Health Act are already dealt with by the Smith case through interpretation of the word 'nature'. (R. v. Mental Health Review Tribunal ex parte Smith. [1999] 47 BMLR 104).

 

3.4 The College fails to comprehend the reason for a 'manageability' test being substituted for the 'treatability' test given the very broad interpretation of 'treatment' adopted in Reid. (R. v. Secretary of State for Scotland [1999] 2 WLR 28).

 

3.5 It is crucially important that legal powers of compulsion do not imply the use of the Mental Health Act unless there are adequate specialist resources to do so.

 

3.6 The College supports the aims set out in paragraph 3.6 (Part I) but notes that the Mental Health Act sets clear limits on which compulsory powers may be used.

 

3.7 With regard to paragraph 3.7 the College's view is that the proposals in the White Paper would result in a substantial increase in compulsory treatment and detention. All those who can be detained under the Mental Health Act 1983 could be detained under the new proposals - however the White Paper would bring extra people under compulsion.

 

3.8 The College supports the single pathway to compulsory care treatment as detailed in paragraph 3.7 (Part I).

 

3.9 The breadth of the criteria used in the Act (paragraph 3.11) would imply a lack of effective discharge criteria. The commonest ground for discharge from an Order is that the patient is no longer suffering from a disorder to a nature or degree sufficient to be detained in hospital; however there is no equivalent criterion in the White Paper.

 

3.10 Paragraph 3.15 (Part I) should include specialist services for those with a mental disorder, given the inclusion of learning disability in the proposed new Act.

 

3.11 The College would make the point that, within the three day period suggested in paragraph 3.17 for the preparation of a written care plan, there may well be a change of psychiatric care team. This may make the preparation of effective care plans very difficult especially in acute hospitals.

 

3.12 In paragraph 3.22 there should be reference made to the wish to 'ameliorate the behaviours that cause a risk of harm to self as well as harm to others'. This also applies to paragraph 3.27.

 

3.13 The College wishes to express its concern that social care for mental health patients will diminish as a result of the proposals in paragraph 3.28. In combination with 3.29 all authority and responsibility seems to rest with Trusts.

 

3.14 Paragraph 3.31 removes the desirability of one of the doctors having previous knowledge of the patient. Also footnote 22 (page 28) appears not to provide adequate criteria for defining independence. The College is opposed to this.

 

3.15 The College notes that paragraph 3.37 makes reference to the protection of other people being in the best interests of the patient; however this is not reflected in paragraph 3.18. Also, it is a very tenuous interpretation of a patient's best interests.

 

3.16 Paragraph 3.43 requires the Tribunal to make an Order when the criteria are met, but removes discretion from a Tribunal that might acknowledge that criteria are met but still think it not appropriate to make the Order. This paragraph also seems to be contradicted by paragraph 3.50.

 

3.17 Paragraph 3.47 makes clear there should be clear and robust criteria for the appointment of Panel Members and most will come from senior clinical practice. Presumably the College will have a significant role in the process of appointing panel members. This should be clarified and stated explicitly. We are very concerned that however basic the criteria for panel membership, there will be insufficient numbers of practitioners available to supply the new procedures' appeal bodies.

 

3.18 The College has serious concerns regarding paragraph 3.51, which refers to the definition of the care plan. There is a high risk of a need to return to the Tribunal too frequently. Also, in our view reservation of discharge to the Tribunal should not be available in cases of civil detention. This should only apply in some cases where this has been a conviction in the Courts and sentencing with a restriction order. At the discretion of the court the restriction should only be on absolute discharge, but not on conditional discharge, in less serious cases.

4.1 With regard to paragraph 4.2 the College believes that for a health intervention to be applied it needs to be deemed in the best interests of the individual.

5.1 The College believes there is a clear case for suggesting all 'advance agreements' should have equal authority whether they relate to physical or mental disorder.

 

5.2 Confidentiality is the cornerstone of the doctor/patient relationship (5.33). Unless patients are assured that what they say is confidential, except with their consent or in the most extreme circumstances of public interest, they will avoid giving information which they believe may incriminate them, yet which is essential if the patient is to be given appropriate and necessary treatment. This is likely to increase, rather than reduce, risk. An example is the Government's proper concern that drug addicts should be encouraged to seek treatment. Their drug taking is illegal. They are unlikely to seek help if information about their activities is to be given to criminal justice agencies.

6.1 The College approves of the Department of Health's attempt to put in place safeguards for patients without capacity and who are not resisting care and treatment, reflecting Lord Steyn's concern in his judgement in the Bournewood case (Re L (By his Next Friend GE) [1998] 3 All ER 289, HL). However, the College doubts the effectiveness of the proposals and is concerned that they will not work without substantial extra resources. The regular review of care programmes supervised by the new Commission for Mental Health will considerably increase the workload of psychiatric staff particularly in the specialties of learning difficulties, rehabilitation and old age psychiatry.

 

6.2 However, chapter six is confusing in that it deals with those not compelled for care and treatment and yet 6.11 (Part I) makes reference to challenging "detention". Also Chapter six seems to determine that the only mental disorder excluded from the Act is a disorder which results in incapacity, albeit in combination with the patient not resisting treatment.

 

6.3 The further inclusion within the remit of Chapter Six of patients in care homes will place a burden of responsibility upon psychiatrists which is unacceptable and unhelpful. The College believes that patients in this situation should be covered by mental incapacity legislation.

7.1 The College welcomes the proposed responsibility (2.33) for the Commission for Mental Health to collect substantial data on the operation of new Act, a function glaringly absent to any substantial degree in relation to the 1983 Act. The conjoining of the functions relating to panel membership is welcomed.

 

7.2 Also welcomed is the proposed responsibility for the Commission for Mental Health to oversee training on the utilisation of the new Act (7.20 and 7.19).

 

 

7.3 The College takes the view that training in the legal aspects of psychiatry should be wholly integrated into clinical training in the same way that medical students are required to have training in medical law and ethics. The College of course plays the major role in training in the context of continuing professional development, and in the future will play a key role in supporting revalidation in psychiatry. Although training for Tribunal and Panel membership can be viewed somewhat differently in that they are outside ordinary clinical practice, the College must have a voice in contributing to such training.

 

7.4 There is no reference in the White Paper to a Code of Practice to accompany any new Act. We believe that there should be such a Code. We would like to see its proposed contents and have an opportunity of influencing this as soon as possible.

8.1 The College welcomes the commitment given to consultation in the process of drafting the Bill particularly since the White Paper is written in such broad terms.