Dear Colleague,
For many years, the College has been involved
in campaigning for a new and improved Mental Health Act. We have
played a key role in developing policy intended to create a modern,
workable system.
We were pleased that the 2004 draft Mental
Health Bill was abandoned. The Government has now published its new
Bill to amend the Mental Health Act 1983 for England and Wales.
Whilst the proposals in this Bill are more acceptable to
psychiatrists, there remain areas of concern. We are continuing to
work with the Mental Health Alliance, a coalition of 77
organisations, in putting forward our concerns and amendments.
We would like to encourage you to express your
views to your Member of Parliament. This can be done by:
- writing to your MP, using some of the points
from the briefing below (including any general concerns about the
Bill, how it will impact on service users and your Trust, letters
and e-mails with personal examples are helpful);
- inviting your MP to visit your place of
work;
- making an appointment with your MP at their
‘surgery’.
You can find your MP’s name and address
here.
The Bill and associated documents are online
here.
The College’s approach to ethical and workable
mental health legislation was described in our submission to the
Joint Committee of Parliament which scrutinised the 2004 draft
Mental Health Bill. Our document and a link to the scrutiny report
may be accessed here.
Best wishes
Dr Tony
Zigmond
College lead on the Mental Health
Act
Dr Ian Hall
Chair, Parliamentary Liaison Committee
November 2006
Our key concerns with the Mental
Health Bill:
The College’s Parliamentary Liaison Committee
would like to draw to your attention to the following issues:
(*Denotes that this proposal was supported by
the Parliamentary scrutiny committee either as a recommendation or
by default because it was in the 2004 draft Bill proposals.)
1. We are
disappointed that Principles are not on the face
of the amended Act*, though they are in the Code (published
alongside the Bill). We feel that principles are necessary to
enshrine underlying values into the legislation. We would like to
see the following principles included in the Act:
a.
Patient autonomy - the freedom to decide for
oneself whether or not to accept medical help, if one retains the
decision-making capacity to do so. We know some colleagues have
some reservations about this. However, we consider that this is
fundamental to ensuring that patients’ rights are at the core of
this legislation. Other countries, including Scotland, have made
this central to their legislation.
b.
Informal treatment, care and support –
detention/compulsory treatment should only be used only if there is
no alternative.
c.
Non-discrimination and respect for diversity - the
Race Discrimination Act places a duty on Government to ensure that
all legislation is framed positively to reduce possible
discrimination.
d. Least
restrictive and invasive treatment – if
detention/compulsory treatment is required then the treatment
should only include what is necessary.
e. Best
interests – as in the Mental Capacity Act. There should be
no lesser standard when treating mental illness than physical
illness.
f.
Reciprocity – doctors should not be detaining
people unless there is a therapeutic purpose, i.e. some health
benefit for the patient.
g.
Respect for carers - those members of families,
friends or partners, who provide care to service users on an
informal basis should receive respect for their role and experience
and have their views and needs taken into account.
h. Child
Welfare - we believe that in addition to being cross
referenced to the Principles of the Children Act 1989, mental
health legislation should contain an explicit principle about child
welfare.
2.
Definition of mental disorder – this has been
improved since the 2004 Bill, but we would like to see stronger
exclusions (i.e. mental disorder cannot be diagnosed solely on the
basis of the following..). We believe that people should not be
detained for the following behaviours:
a. We are
pleased the Government are keeping the ‘alcohol/drug dependence’
exclusion. However, we would prefer the term ‘alcohol/drug
misuse’.
b. Sexual
deviancy needs to be retained as an exclusion, otherwise gender
dysphoria and paedophilia would be included in the definition of
mental disorder (ICD 10).
c. Cultural and
political beliefs*.
d. Illegal and
disorderly acts*.
e. Developmental
disorders should have the same extra condition as learning
disability i.e. abnormally aggressive/seriously irresponsible
behaviour*.
3.
Criteria for detention - should include:
a.
Impaired decision-making* - we think it is wrong
that people who retain full decision-making capacity should have
their capacitous choices/wishes overridden. People with mental
illness should be treated no differently from people with physical
illness. One cannot use the same definition of incapacity as in the
Mental Capacity Act because it is based, almost exclusively, on the
ability to think (cognition). It does not take into account
emotions and abnormal experiences (hallucinations/delusions). Hence
the preferred term ‘impaired decision-making by reason of mental
disorder’. This is a requirement for detention/compulsory treatment
in Scotland.
b.
Therapeutic benefit* - patients should not be
forcibly detained in hospital, under the care of doctors and
nurses, unless there is some health benefit or clear therapeutic
purpose for them. We are not convinced that this requirement is met
by the Government’s ‘appropriate treatment’ test (which includes
‘care’).
4.
Supervised community treatment* – this should be
limited to ‘revolving door’ patients. A recent Cochrane review of
community treatment orders (CTOs) showed it would need 85 patients
to be on a CTO to prevent one admission and 238 to prevent one
arrest.
5.
Section 20 renewal* - it has always been difficult
to understand why a single medical opinion authorises a further six
months detention, when two doctors and an approved social worker
are required for the initial section (even if only for 28 days). A
Responsible Clinician (new term for responsible medical officer),
may be from any clinical discipline, and yet will be responsible
for completing the ‘medical recommendation’ under section 20. The
College is therefore recommending that renewal is replaced by a new
section 3.
6.
Section 58* – the 3/12 time rule should be reduced
to 28 days in order to offer greater protection to patients,
particularly because of concerns in relation to high doses of
medication and polypharmacy.
7.
Bournewood - the Bill will also amend the Mental
Capacity Act to permit deprivation of liberty under that
legislation. The rights and safeguards proposed are very different
from those under the Mental Health Act. The College believes there
should be broad equivalence. Most importantly:
a. There should
be a medical Second Opinion Approved Doctor system in relation to
‘serious medical treatment’ (as defined in the Mental Capacity Act
regulations).
b. Appeal should
be to the mental health review tribunal rather than the more remote
Court of Protection.
c. All care for
those deprived of their liberty should be provided free of
charge.