Frank Dobson, Secretary of State for Health, has announced the Government's views on mental health services into the next millennium. While much has been made of the "failure of care in the community," the strategy does not suggest a return to massive long-stay institutions. There is, however, a recognition of the need for more 24-hour staffed accommodation, and "assertive outreach" for those living more independently. Further secure accommodation will be developed. All in all, Frank Dobson said that there would be £ 700 million extra expenditure over the next three years, on implementing the strategy.
With regard to mental health law, the government's support for compulsory treatment in the community was re-iterated. Also, the "treatability condition" for compulsory admission to hospital for people with psychopathic disorder or mental impairment is to be removed. Under the existing Act, it is a requirement for detention in respect of these two forms of mental disorder that the "treatment is likely to alleviate or prevent a deterioration of" the person's condition. If a person cannot effectively be treated, then the conditions, for example for Section 3 cannot be met. There has been a small number of high profile cases where people were deemed potentially dangerous but could not be detained under the Mental Health Act for this reason.
Professor Genevra Richardson has been appointed by the Government to kick-start a root and branch review of the 1983 Mental Health Act.
Announcing her new role, Health Minister Paul Boateng said that
the new policy direction was now clear and it was time to start
work on a review of the legislation. He said:
" Our new policy aims must be underpinned by modern and robust legislation. Moreover, with our safety-plus approach, the law must make it clear that non-compliance with agreed treatment programmes is not an option. We will look to Professor Richardson and her colleagues for clear advice on how to take forward a root and branch reform of the law.
We are determined to develop comprehensive mental health services that are safe, sound and supportive. They must protect the public, and provide safe and effective care for mentally ill people. New legislation is needed to support our new policies, for example to provide extra powers to treat patients in a range of clinical settings, including, where necessary, in the community, and to ensure a proper balance between the interests of the public and the rights of the individual.
Carers too should have rights, as well as responsibilities. Too often they have been left to pick up the pieces, but were never given any rights at the moment of a crisis affecting those for whom they have been responsible."
Professor Richardson has considerable experience in mental health and chaired an independent inquiry into the circumstances relating to a triple homicide committed by Darren Carr, a mentally ill patient. She will lead a small team of experts responsible for marking out the legislation that needs to be changed, reporting to Ministers by early summer next year. Ministers announced their intention to review mental health law when they outlined fresh policy measures in July, opening the way to a new mental health strategy which is expected in the autumn.
Details of the Review Team, which includes representatives from the legal profession, and professional groups involved in the delivery of mental health services, are:
The terms of reference for the study are:
The Group will have available to them information from an extensive programme of research into the working of the current Act.
The Memorandum to the Mental Health Act, written by the Department of Health, describes the main provisions of the Act, and is intended to be for the guidance of all those who work with the Act.
The initial Memorandum was published in 1983, and this is the first revision. There have been many amendments to the Act since the first Memorandum came out, in particular the arrangements for supervised discharge, which are taken into account in the revised edition.
The new Memorandum to the Mental Health Act is available from the HyperGUIDE BookShop.
Health Secretary Frank Dobson has said that Community Care "has failed" and that a new "third way" has to be found in order to support and supervise those with serious mental health problemsnot leaving them to fend for themselves in the community and pose a risk to the public or themselves, but also not to return to institutional care on a large scale. This approach was set out in a letter to Professor Graham Thonicroft, who is chairing the External Reference Group of the National Service Framework for mental health.
At the same time, in a written answer to a parliamentary question, Mr. Dobson announced a review of the Mental Health Act, summarised in his letter:
"The law on mental health is based on the needs and therapies of a bygone age. Its revision in 1983 merely tinkered with the problem. What I want now is root and branch review to reflect the opportunities and limits of modern therapies and drugs.
It will cover such possible measures as compliance orders and community treatment orders to provide a prompt and effective legal basis to ensure that patients get supervised care if they do not take their medication or if their condition deteriorates.
The changes in practice we are seeking will be backed up by changes in the law. They will be helped by extra funds for mental health which form part of the Comprehensive Spending Review settlement for the NHS and local authority social services. Extra funds will be available for the modernisation of services. These will need to be both clinically and cost effective and targeted on evidence based outcomes."
The Government plans to announce its new mental health strategy to Parliament in the autumn.
In September 1993, Georgina Robinson, an occupational therapist,
was killed by a patient at the hospital where she worked. The
patient, Andrew Robinson, was detained in that hospital under
Section 3 and had a long history of relapses of his mental
disorder. A Committee of Inquiry, which reported in November
1994, was critical of a number of aspects of Andrew Robinson's
care. In particular, the report suggested that opportunities to
admit and treat Robinson had been missed, and claimed that there
is no legal need to wait for a significant deterioration in a
person's mental health before admission can take place under the
Mental Health Act, where there is clear evidence that:
Despite its lengthy and unnecessarily "heavy" style, the Discussion Paper deals with crucial issues which will be particularly pertinent in the anticipated forthcoming review of the Mental Health Act by the government.
This site holds the full text of the Discussion Paper.
The appeal to the House of Lords in the "Bournewood Case" was held on 25 June 1998. The Lords overturned the Court of Appeal decision - see News Items from 27 April 1998 and 16 January 1998. The effect of this is that the status quo from prior to the Court of Appeal judgement has been restored and the Mental Health Act need not normally be used in cases where someone with a mental disorder does not have the capacity to consent to hospital admission, but does not appear to object.
For more details see The
Bournewood Case
Further advice from the Department of Health on the implications of the House of Lords decision is expected shortly.
An inquiry which took over 3 years to complete, has found major shortcomings in the health services, social services and prison service, in relation to the death of Christopher Edwards. Edwards, who had some mental health difficulties himself, was placed in a prison cell with Richard Linford who had a history of violence and psychiatric hospital admissions. Linford beat Edwards to death in their shared cell, inflicting horrific injuries; he is now held at Rampton high security hospital.
The inquiry found that neither man should have been in prison. Edwards, who was on remand from Colchester magistrates' court should have been admitted to hospital for assessment, but his mental illness was not properly brought to the attention of the court by the police. Linford, who had been arrested for assault, had been previously been discharged from Severalls Hospital, but his community care gradually collapsed as he failed to attend appointments, stopped taking medication and lost touch with the services.
The report recommends that key workers overseeing people support following discharge from acute psychiatric care should have a clear statement of their duties and that the level of supervision should increase. Police, the prison service, magistrates and court officials should all have more training in mental health issues.
A Court of Appeal decision given on 7 May has made it clear that where a person has the capacity to consent to treatment not connected with mental disorder, that person can refuse such treatment even if her or his life is at risk. In this case a woman's right to refuse treatment was confirmed, even though not only her own life, but that of her unborn child were both at risk.
In this case, a woman - referred to as "S" - went to see her G.P. when she was about 36 weeks pregnant, having had no previous ante-natal care during the pregnancy. The doctor diagnosed pre-eclampsia, a serious condition threatening the life of both the woman and her foetus, which required urgent hospital admission and induced labour. The woman refused this, saying that she would prefer to let nature take its course, even though she understood the risks of this approach. An Approved Social Worker was called and an application was made to detain the woman under Section 2, based on two medical recommendations. She was admitted to a psychiatric hospital against her will and, later the same day, transferred to a general hospital. The general hospital applied for a court declaration that they could perform a Caesarean section against S's will. S and her solicitor were not told of this application to the court and did not have the opportunity to put her case. The judge involved, who was mis-informed to some extent, granted permission for the Caesarean section to proceed - it did so and a healthy baby was born.
However, around two years after these events, the Appeal Court has found that the Section 2 criteria were not properly met in this case, that there were material mistakes made in processing the transfer from the psychiatric hospital to the general hospital, and that the judge involved should not have dispensed with S's consent to the enforced Caesarean section. Had the Mental Health Act provisions been appropriate and properly applied, had the woman concerned lacked the capacity to consent to the Caesarean section, and had her views been put to the court when the matter was being considered, then the position would probably have been different. In the actual case being considered, the Caesarean section should not have taken place against the woman's wishes, and she is now in a position to seek damages.
The Mental Health Act Commission has issued guidance on the Bournewood case which related to people who are unable to consent to hospital admission for treatment, or assessment for treatment - see original news item from 1997.
The Guidance Note and related letter from the NHS Executive are available at this site: Mental Health Act Commission Guidance Note 1/98: "L v Bournewood Community & Mental Health NHS Trust" and the Mental Health Act.
The Department of Health has been active in promoting a new mental illness public information strategy. In one of two related conferences he has addressed over recent days, Health Minister Paul Boateng warned that stigma and fear can drive people with mental illness away from help and treatment - with potentially serious results. Addressing a group of senior media and advertising professionals, he said:
"Mental illness occurs more often than many people realise. One in four will suffer from some form of mental illness at some time in their lives. It is three times more common than cancer. Most people can cope with mental illness if they get proper help and support. A small minority need to be kept in a safe and secure environment. We must ensure they get it, without stigma or negative stereotyping."
Mr. Boateng unveiled an advertising poster drawing parallels between unacceptable racist language and the continuing use of language such as "nutter, loony, psycho" which reinforces stigma and prejudice against those with mental health problems.
At the second conference, the Minister spoke of the priority the Government has placed on improving the health - including the mental health - of black and ethnic minority groups:
"This means reflecting and understanding the varied needs of Britain's multiracial society and overcoming the obstacles and disadvantage different ethnic groups face in the mental health system. We need to involve communities and black and ethnic minority workers in local agencies to help find solutions."
A report from the Zito Trust has highlighted concerns that those who most need to remain in touch with psychiatric services can be those who are allowed to drift away from contact with mental health professionals. The report examined 35 cases where someone with serious mental health problems, living in the community, committed a homicide. It found that over half of this group had not been taking the medication prescribed for their mental illness.
One reason why people generally stop taking anti-psychotic medication is that unpleasant side-effects are experienced by many. The report is critical of the fact that more modern types of medication, which have fewer and less severe side effects, are still often not used in preference to the older - and considerably chaper - options.
Supervised Discharge introduced by the Mental Health (Patients in the Community) Act 1995 has no power to impose medication and - the Zito Trust report indicates - has been largely ineffective in keeping people discharged in touch with appropriate services. The report calls for community nursing and social work teams with a high staff to client ratio and easy access to hospital admission facilities when needed.
Statistics have been published on the use of the Act in 1996-97. A summary is available at this site.
As part of the work on the government's new mental health strategy, the possibility of closing the three "top security" special hospitals is being considered. While the hospitals accommodate some of the most infamous psychiatric patients in the country, they have also been the subject of considerable controversy and even scandal. Most recently, Ashworth Hospital in Merseyside has been in the news as a result of the amount of pornography found on wards and the fact that a young girl was allegedly brought on to a ward housing sex offenders. Along with Rampton in Nottinghamshire and Broadmoor in Berkshire, Ashworth would be closed and replaced by a larger number of smaller secure units.
Although the special hospitals are, indeed, hospitals, some aspects of their management have more in common with the prison system - for example, the nurses are organised by the Prison Officers' Association rather than the nursing bodies/unions. The changes being considered would draw the services for this group of patients more clearly under the healthcare umbrella, but there could be opposition from local communities near any proposed sites for the smaller units.
Amid the public debate over the problem of people who have been imprisoned for sexual assaults against children being released from prison without any continuing supervision, The Times newspaper has reported that the Home Office and Department of Health have been considering extending the scope of mental health legislation. This might involve a paedophile who was thought to pose a risk to the public on release from prison, being detained in a psychiatric hospital.
Currently paedophiles are generally regarded as "bad not mad" and, in the absence of any explicit evidence of mental disorder, would be excluded from the scope of the Mental Health Act by the exclusions set out in Section 1.
There was little mention of mental health in the Labour Party's election manifesto, and the new Labour government has been relatively quite on the topic, at least until recent weeks. However, it is now clear that a major new mental health strategy is being planned, to be published later in the spring.
The government has clearly taken on board the need for additional 24-hour staffed accommodation for people who need such support, a factor in the immense pressure on acute psychiatric beds in many parts of the country. However, concern exists that the public's attitude is hardening against people with mental health needs and that the government's action could be seen to be a reaction to public prejudice. There will be a need for a careful balance to be struck as the strategy is implemented.
It is reported that the new strategy will involve additional resources - a figure of an additional £ 50 million per annum for 10 years has been suggested. The strategy is also expected to include a major review of the Mental Health Act.
Frank Dobson, the Secretary of State for Health, stated in a BBC interview yesterday that doctors should be able to recall a person to hospital, or possibly compel treatment in the community, if the person stops taking prescribed medication for mental illness.
At present, the formerly Sectioned patients who can be recalled to hospital are the relatively small number who are subject to a Section 41 Restriction Order. Although certain conditions can be imposed on other people through Supervised Discharge, these fall short of a recall to inpatient care or compulsory treatment in the community. Most people discharged following a Mental Health Act admission are free to choose whether or not to take medication.
The argument for Community Treatment Orders is often put by doctors and other professionals who see people's mental health deteriorate as a result of ceasing medication against medical advice. The doctor has no power to intervene formally unless or until the person's mental health has deteriorated to the extent that a fresh Application for Admission under the Act can be made. If the person could be forced to have treatment earlier, the argument goes, then the relapse would not proceed so far and the episode of poor mental health may be more brief. Risk to the patient him/herself and to others would be minimised.
On the other hand, the arguments against Community Treatment Orders have won the day so far. People should have the right to refuse treatment - this may be a balanced and well informed decision, weighing up factors such as the side effects of medication and a desire to remain medication free for part of the year, even if other parts of the year have to be spent in hospital. People have the right to refuse treatment for serious physical illnesses, after all. Some professionals working in the community would argue that the element of compulsion would overshadow all their work, making clients suspicious of community health and social services staff. A nightmare scenario is painted of several professionals and police charging into someone's living room in order to hold them down for a forced injection.
Mr. Dobson says that he is asking his staff to review whether sufficient powers exist but are not being used, or whether the powers do not exist. If he is committed to compulsory community treatment, then the answer will surely be new legislation.
Today's edition of The Daily Telegraph claims that statements made by Frank Dobson, the Secretary of State for Health, amount to the scrapping of the Care in the Community policy.
Dobson promises that there will be no return to large Victorian-style institutions, but acknowledges the need for far more 24-hour residentially-based care - and recognises the substantial cost associated with this. A full review is to take place to identify the number of people needing such care.
Despite the press angle that the Government has finally
recognised that Care in the Community was a dreadful mistake,
Dobson is, in fact, quoted as recognising its successes:
Quite clearly there are a lot of people who were formerly locked
up who now are getting a better life and nobody is suffering
...however...
there are others who need a lot more attention and unless they
get a lot more attention they can make other people's lives a
misery. There are a higher proportion of people still needing
some form of 24-hour residential care than the system recognises.
Few would argue that there is a need for more money to go into supporting those who cannot manage living independently in their own accommodation. It remains to be seen how much new money will become available, and whether the money will come along with new legal restrictions on the people who are deemed to need higher levels of care and support.
The NHS Executive has issued guidance to NHS Trusts in relation to the Court of Appeal decision in December 1997 - see original news item - which is likely to result in far greater numbers of people with dementia and people with learning disabilities being detained under the Act. The Court decided that people who lack the capability to consent to hospital admission cannot receive treatment for mental disorder as informal patients. If treatment is required this can only be given if formal detention under the Act can, and does, take place first (except in an emergency where a hospital could take necessary action to stop the person from harming themselves until other arrangements are made).
In order to help Trusts consider issues of consent in relation
to admission and treatment, the guidance refers to material
produced for the new Code of Practice, similar to the draft of Chapter 15, in
relation to a person's capacity to decide on a particular
treatment. A person is presumed to have this capacity unless he
or she:
The Department of Health is taking further advice on the wider implications of the Court of Appeal decision, and the Mental Health Act Commission is preparing a Practice Note on this topic. Publication of the new Code of Practice and Memorandum may be delayed if an appeal is made to the House of Lords, as the legal position would perhaps change again as a result of the decision made there.
The launch of the European Institute of Mental Health Law is planned to take place at a conference in London in the autumn of 1988 or spring 1999. It will particularly focus on the law in relation to civil detention and capacity to consent and will include issues surrounding elderly persons and those with a learning disability (mental handicap).
The European Institute aims to promote a better understanding of European Mental Health law. Its focus will be on legal practitioners and individual mental health professional, particularly those working directly with service users. The European Institute will focus upon the needs of individual practitioners. It will seek to gather and disseminate information on the legal interface between law and practice in an accessible and stimulating way.
The Institute, which is in the process of registering as a charity in the UK, is also promoting the Democracy Project. One of the principal aims of the project is to provide opportunities for learning about the respective positions on mental health law and policy in Poland and Britain. In Britain the debate is beginning about revisions to the Mental Health Act. In Poland, as with most central and eastern European states, the state of mental health law and policy relating to community care practice is even more fundamental, or even non-existent.
The exchanges envisaged under the democracy programme will be in the form of conferences, seminars in each of the two countries, as well as training programmes for the targeted professionals outlined above. It will be part of a two-year project, which seeks to lay the foundation for continuing work in the area of mental health policy, law and practice. It will also be used as a platform for work of a similar nature in other central and eastern European states, as well as the New Independent States.
For more information on the launch of the Institute, watch http://www.solutions.uk.com
A new Code of Practice for the Mental Health Act, which will be the third edition, is expected around the end of March 1998. The second edition was published in August 1993, and consultation about the proposed revisions to the Code took place from October 1996 to February 1997. This site includes the complete text of the draft revised Code of Practice.
At the same time, it is expected that there will be a new Memorandum to the Mental Health Act. The first Memorandum was published at around the time the 1983 Act came into force. It has largely fallen into disuse, but with more recent changes in the law and in thinking about the role of the Mental Health Act Managers, it is timely to update and reissue this booklet.
Both the new Code of Practice and the new Memorandum to the Mental Health Act are available from the HyperGUIDE BookShop.