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Mental Health Bill - Easy Read

Mental Health Bill - Easy Read

How the Government wants to change the lawH INFORMATION READER BOX

Document Purpose For Information

ROCR Ref: Gateway Ref: 6808

Title Mental Health Bill – easy read

Author DH

Publication Date 17 Nov 2006

Target Audience People with learning disabilities

Circulation List

Description The booklet explains the changes the Government wants to make to mental health legislation.

Cross Ref

Superseded Docs

Action Required N/A

Timing N/A

Contact Details Carla Baker

Department of Health 133–135 Waterloo Road London SE18UG

020 7972 4729

www.dh.gov.uk

For Recipient’s Use Good mental health means having a well mind.


This booklet is about some changes the Government wants to make to the law which helps people who have mental health problems. When we say we in this booklet, we mean the Government. At the end of this booklet there is a list of words and what they mean. These words are in blue letters in the booklet.


There is a lot of information about the law in this booklet.


• You might like to have support when you look at the booklet.


• You might like to look at just onesection at a time.

Contents

Mental health and the law .......................................................2

People who need mental health care .......................................3

What does the Mental Health Act say?.....................................4

What does the Mental Health Bill say? ....................................6

7 changes to the law

Change 1 – What the law says a mental health problem iS................8

Change 2 – The rules for keeping a patient in hospital .............11

Change 3 – Treatment in the community ................................12

Change 4 – Looking after the rights of mental health patients..............15

Change 5 – Who can work with mental health patients? ..............17

Change 6 – Nearest relatives ..................................................19

Change 7 – Bournewood provisions ........................................22

What the words mean ...............24

How to find out more ...............26

Mental health means how you are feeling in your mind. Good mental health means having a well mind.


This booklet is about some changes the Government wants to make to mental health law.


Mental health law is about treating people with a mental health problem when they do not want to be treated, to protect them or other people from harm.


The Government wants to make sure that people get the mental health care they need.

The law about mental health is called the Mental Health Act 1983.

The Government has written about the changes it wants to make to the Mental Health Act 1983 in something called the Mental Health Bill. This booklet is about the Mental Health Bill. We tell you how to find out more about the Mental Health Act and the Mental Health Bill on page 26.

As well as making changes to the Mental Health Act 1983, the Mental Health Bill makes one set of changes to the Mental Capacity Act 2005. These changes protect some patients who cannot decide things for themselves. tal health and the law

A lot of people have problems with their mental health at some time in their life. They can usually get treatment to help them to get better. But a few people do not know that they need help, and a few people do not want help. The Mental Health Act is about making sure these people get the treatment they need, even if they do not ask for it.

This means that they may have to have treatment they do not want.

This is so these people cannot hurt themselves or hurt or someone else.eed mental health care

The Act says:

• Usually, a person cannot be treated for a mental health problem unless they agree.

• But some people can be taken to hospital and treated even if they do not want to be treated so they cannot hurt themselves or hurt someone else.

• The nearest relative is usually a member of the patient’s family who will be told if the patient must go to hospital. They can have a say in whether the patient must go to hospital at all. They can also have a say in whether the patient must stay in hospital. We tell you more about nearest relatives on page 19.

• 2 doctors and a special social worker or the patient’s nearest relative must agree that someone must go to hospital. At least one of the doctors must be an expert on mental health.

• In an emergency the person’s nearest relative or a special social worker can get 1 doctor to agree that someone should go to hospital.

• There are rules to make sure that mental health patients are not kept in hospital for too long.

• The rules say that patients can ask the Mental Health Review Tribunal to check they are being treated properly under the law. The Mental Health Tribunal is a group of people who look after the rights of mental health patients.

We tell you more about the Mental Health Review Tribunal on page 15.

If you want to know more about what it says in the Mental Health Act, you can read about it at

www.dh.gov.uk/mentalhealth


The Mental Health Bill is mostly about 6 changes we want to make to the law in the Mental Health Act and 1 change to the Mental Capacity Act. These changes will make it better for everyone, especially mental health patients.

We want to:

1. Say more clearly when someone has a mental health problem. This is called the definition of mental disorder.

2. Make it clear when someone should get help in hospital even if they do not want it. This is called the criteria for detention.

3. Allow some mental health patients to be treated outside hospital instead of in hospital. We want to give mental health patients more support to make sure they get the treatment they need. This will be called Supervised Community Treatment.

4. Make it easier for the Mental Health Review Tribunal to protect people who do not ask for a Tribunal themselves. We tell you about what the Tribunal does on page 15.

5. Give more experts a say in how mental health patients are treated. These experts will not just be doctors and social workers.

6. Allow mental health patients to change their nearest relative if the wrong person is doing it now. We tell you more about nearest relatives on page 19.

7. Protect the rights of patients who have a mental disorder and are kept in hospital or a care home because they cannot say what they want. These patients are not protected by the Mental Health Act.

We tell you more about these 7 changes in the rest of this booklet.

This is called the definition of mental disorder.

About mental disorders A mental disorder means a mental health problem. At the moment, the law talks about 4 sorts of mental disorder. About things which are not mental health problems The law says that some things are not mental health problems.These are called exclusions. Exclusion means something that is left out.At the moment, the law says that it is not a mental health problem if someone has sex with a lot of other people.

About mental disorders

We think the law should be the same for everyone who needs mental health care. So we think one simple meaning for mental disorder will makeit easier for more people to get the help they need. The new law will only talk about mental disorders, not 4 different sorts of mental disorder.

About things which are not mental health problems

We think the law does not need to talk about some of these exclusions any more. We think people know that having sex with lots of other people is not a mental disorder. So we do not think the law needs to say this any more.The law also says that sexual deviancy is not a mental health problem. Sexual deviancy means wanting unusual kinds of sex, such as a grown-up having sex with a child. Sexual deviancy does not mean being gay, lesbian or bisexual.

The law also says that someone cannot be made to have treatment they do not want, just because they are addicted to alcohol or drugs.

Addicted means they want to drink alcohol or use drugs all the time.

We think sexual deviancy can sometimes be a mental health problem. If it is a problem, we do not think the law should stop people getting the right treatment. So we will take this exclusion out of the law. We agree that people should not be made to have treatment they do not want just because they are addicted to alcohol or drugs. But if someone has a mental health problem because of alcohol or drugs, they may have to have treatment to stop them hurting themselves or hurting other people.

The new law will make this clear.

10

About people with a learning disability

The law says that a learning disability is a mental health problem, even though it is not a mental illness. Most of the time, no-one can be made to have treatment because of their learning disability unless they are very aggressive or do very strange things.

The law says ‘mental impairment’ and ‘severe mental impairment’ when it means ‘learning disability’.

About people with a learning disability

What this part of the law does is not going to change. In future, when the law means ‘learning disability’ it will say ‘learning disability’.

The law says that someone who has a serious mental health problem can sometimes be kept in hospital against their will if it is what is needed to protect them and other people. The law says someone can only be kept in hospital if it is right for them to be treated in a hospital.

The law says that some people can only be kept in hospital if the treatment is likely to make them better, or stop them getting worse. Lots of people call this ‘treatability’.

We are not going to change most of the criteria for detention.

We are going to change the law so that no-one can be kept in hospital unless they will get the right treatment.

This will be called the ‘appropriate treatment’ test.

This means that people who want to keep a patient in hospital will have to think about what help and treatment the patient needs.

People who want to keep a patient in hospital must also think about things like how far the hospital is from the patient’s home, and about the patient’s family and friends.

We will get rid of what people call ‘treatability’ because we think it stops some people with mental health problems getting the help they need.

The law says what the rules are for making some people stay in hospital to have treatment they do not want.

These rules are called the criteria for detention. This is a new idea. We will call this Supervised Community Treatment or SCT. Sometimes, when a mental health patient leaves hospital they stop taking their medicine. They might not see their doctor or others caring for them when they should. When this happens, they may get ill again. Sometimes they have to go back to hospital when they do not want to. SCT should help patients stay in contact with their doctor and others caring for them and help them stay out of hospital. If a patient needs to be treated in hospital again, SCT will allow doctors to bring a patient back to hospital quickly. This is so the patient does not hurt themselves or hurt someone else.


At the moment, a person who needs to be treated for a mental disorder, but who does not want to be treated, must be treated in hospital. Some of these patients could be in the community, as long as they get the right help and support when they come out of hospital.


Change 3 – Treatment in the commun


A mental health patient may be able to go on to SCT if:


•The patient has been kept in hospital against their will.

•A doctor and an Approved Mental Health Professional (AMHP) think the patient is well enough to leave hospitalbut still needs treatment for their illness. An AMHP will do the job that an Approved Social Worker does now. We tell you more about AMHPs on page 17.

•Doctors think the patient might hurt themselves or someone else if they stop having treatment.

•The patient can get the right sort of help and support from the health service and social services when they leave hospital.

14

How does SCT work?

•A doctor and an AMHP will say if a patient can go on to SCT. SCT can last for 6 months after the patient leaves hospital. It can then go on for another 6 months and then for another year, and so on, if a Responsible Clinician says it should.

A Responsible Clinician will do the types of things a Responsible Medical Officer does now. We tell you about Responsible Clinicians on page 18.

•The Responsible Clinician and the AMHP will give the patient rules they must keep while in the community. This could be that the patient should go to a clinic every week for treatment. These rules are to make sure patients get the treatment they need.

•If something goes wrong when a patient is on SCT, they can be brought back to hospital for treatment by the Responsible Clinician. This should only happen if the Responsible Clinician thinks that they might harm themselves or others.

•Patients who go on to SCT will have the same rights to appeal to a Tribunal as patientsin hospital.

We want to make it easier for mental health patients to talk to the Mental Health Review Tribunal. The Mental Health Review Tribunal looks after the rights of mental health patients. If they are asked, the Tribunal decides if the patient should stay in hospital against their will. A patient can ask the Tribunal to decide if they should be let out of hospital. The hospital must make sure that the Tribunal checks regularly that the patient should still be in hospital.Change 4 – Looking after the rights of mental patients

We want to:

•Make it quicker for many patients who do not apply to a Mental Health Review Tribunal to talk to them.

•Allow the government, in the future, to make it even quicker for patients to see a Tribunal if they haven’t applied to see a Tribunal.

•Make sure that if a patient has to wait a long time to find out who their nearest relative will be, they will still see the Tribunal.

•Give the same rights to see the Tribunal to people in hospital and people on SCT.

We want to let more experts have a say in how mental health patients are treated.e changes we want to make

About Approved Mental Health Professionals

We want to change the names of the jobs of people who work with mental health patients. We want to let more people like nurses and occupational therapists do the jobs that only ASWs do at the moment. An occupational therapist is someone who helps mental health patients get better by teaching them new skills. So we want to change the name from Approved Social Worker to Approved Mental Health Professional (AMHP).

We will make sure that people who do this job have the right training and experience.ys now

About Social Workers

At the moment, the people who work with mental health patients are called Approved Social Workers (ASWs) and Responsible Medical Officers (RMOs).mASWs work for the local social services. They help decide if someone should go to hospital.

18

About Responsible Medical Officers

The law says mental health patients must be treated by a Responsible Medical Officer (RMO). This is always a doctor. An RMO decides what treatment to give and when someone can come out of hospital. At the moment, RMOs are psychiatrists. A psychiatrist is a doctor who understands how people’s minds work.

About Responsible Clinicians

We want to let other people who work in mental health, like psychologists, nurses, occupational therapists and social workers, as well as doctors, do the types of work

done by RMOs.

We want to change the name Responsible Medical Officer to Responsible Clinician. We will make sure that people who want to be a Responsible Clinician have the right skills and training before they can be a Responsible Clinician.

NN19

Nearest Relative

A nearest relative is usually someone who lives with or looks after a mental health patient. Every patient has a nearest relative.

The nearest relative can:

•Ask for the patient to be put into or taken out of hospital.


•Ask the doctors to stop the treatment.


•Get information about the patient’s treatment.


Someone cannot refuse to be the nearest relative but they can ask someone else to do the job for them.

A nearest relative could be:

1 The patient’s husband or wife

2 The patient’s oldest child

3 The patient’s older parent

4 The patient’s oldest brother or sister

5 The patient’s oldest grandparent

6 The patient’s oldest grandchild

7 The patient’s oldest uncle or aunt

8 The patient’s oldest nephew or niece

9 A person who has lived with the patient for more than 5 years.ge 6 – Nearest relatives

We want to give mental health patients more say in who is called their ‘nearest relative’.

The first person on this list will be the nearest relative. At the moment, the patient cannot stop the person who is first on this list from being their nearest relative. But, that person could be someone who has hurt the patient or who might do things to hurt the patient.


We want to make it so the patient can ask a judge to make any person they choose their nearest relative when they do not have one.

At the moment, only these people can ask a judge to change who is the nearest relative:

•A relative

•Someone living with the patient

•An Approved Social Worker

At the moment, a patient cannot ask a judge to make someone their nearest relative, if they have no-one.

We want mental health patients themselves to be able to ask a judge to change who is their nearest relative.

We want to make it so a patient can ask the judge to make any person they choose their nearest relative when they do not have one.

At the moment, there are only 3 reasons to change a nearest relative:

1.they are too sick to do the job


2.they are trying to stop the patient from going to hospitalwithout a good reason


3.they are trying to get the patient out of hospital without thinking if this is what is best for the patient or other people.


At the moment, if a patient has a husband or wife they are at the top of the list of relatives.


If the patient is gay or lesbian and has a civil partner, then that person is not on the list at all. 

Civil partners are gay or lesbian people who live together like a married couple.


We want to make a new reason for changing a nearest relative.


We want to let the court change the nearest relative when the person who is the nearest relative has hurt the patient or might hurt them.


If the patient has a good reason to change their nearest relative, they will be able to tell the judge who they would like to be their new nearest relative. This person can be anyone and does not have to be on the list.


We want to add civil partners to the list of people who can be nearest relatives. Civil partners will be at the top of the list with husband or wifehanges we want to make


22


We want people to be as free as possible. We think that noone should be kept in a hospital or a care home and not allowed to leave unless there is a very good reason.


Sometimes people who are kept in hospital or care homes are not able to say what they want. It is important to look after people who cannot look after themselves.


We want to change the law in the Mental Capacity Act to protect the human rights of all people with mental health problems. These changes are called the ‘Bournewood provisions’ the law says now


In the past, the law did not properly protect all the people with mental health problems who had to be kept in hospitals or care homes. Some people could not leave because they were so ill that they could not say what they thought was best for them changes we want to make


We want to make sure that the new law protects the rights of all people with mental health problems who are kept in hospitals or care homes. We will make sure that the courts look after the rights of these people – Bournewood provisions3


These are usually people who live in hospitals or care homes all the time. They may have conditions like autism or dementia. They are often older people. Someone with autism finds ithard to relate to other people.


Dementia is a sort of mental illness.


We will make sure that everyone does what is best for the person. We will make sure that people are helped to be as free as possible. We will make sure someone checks that the person really needs to be in hospital or a care home.


We will make sure that everyone has a person who will speak up for them.


This new law will help protect the rights of people with a mental health problem who are not able to say what they want.


These changes are called the Bournewood provisions.


What the words mean hat the law says now Thhanges we want to mak

Addicted Having to take drugs or drink alcohol all the time.

Approved Mental Health Professional (AMHP) Someone who will do the job that an Approved Social Worker does now.

Approved Social Worker (ASW) The old name for a special social worker who looks after people with mental health problems. They can ask for someone to be taken to hospital.

Autism Someone with autism finds it hard to relate to other people

Bisexual Someone who has sex with both men and women

Bournewood Provisions The name for the changes to the law to look after the human rights of someone who cannot say how they want to be treated.

Civil Partners Gay or lesbian people who live together like a married couple.

Criteria for Detention The rules which say why someone must stay in hospital even when they don’t want to.

Dementia A sort of mental illness.

Exclusions Things that are not covered by the law on mental health.

Homosexual Someone who has sex with someone of the same sex.

Mental Capacity Act A law about how to support and protect people who cannot make their own decisions.

Mental Disorder A mental health problem.

Mental Health Act 1983 A law about mental health.

Mental Health Bill Changes we want to make to the Mental Health Act

Mental Health Care Looking after someone’s mental health.

Mental Health Review Tribunal A group of people who look after the rights of mental health patients.

Nearest Relative Someone who makes decisions on the patient’s care and who helps look after the patient’s rights.

Occupational Therapist Someone who helps mental health patients get better by teaching them new skills.

Psychiatrist A doctor who knows about how people’s minds work.

Responsible Clinician Someone who will do the types of things that a Responsible Medical Officer does now.

Responsible Medical Officer (RMO) A doctor in charge of a mental health patient’s treatment.

Sexual Deviancy Wanting unusual kinds of sex, such as a grown-up having sex with a child.

Supervised Community Treatment (SCT) Looking after mental health patients in the community.

Tribunal Short for Mental Health Review Tribunal in this booklet.


26


This booklet tells you a bit about our plans to change the law.


If you want to find out more about the Mental Health Act 1983 or the Mental Health Bill you can:

Visit www.dh.gov.uk/mentalhealth

Email [email protected]

Telephone 020 7972 4477

There is a lot of information about the law on the website.

• You might like to have support when you look at the website.

• You might like to look at just one section at a time


MPs prepare for renewed struggle in Commons over peers' amendments

Posted: 15 March 2007 | Subscribe Online

writes Simeon Brody

The Mental Health Bill completed its passage through the House of Lords last week with peers defeating the government on six key areas of the legislation (see Six Key changes made to the bill by peers).


Now the focus moves to the Commons, where health minister Rosie Winterton has vowed to overturn the amendments, claiming peers had "seriously weakened" the government's plans to protect patients and the public.


Although the opposition parties said they would back the peers' changes it may prove difficult to garner enough rebel Labour MPs to block the government.


Mental Health Alliance chair Andy Bell said he hoped enough Labour MPs would see it as an "issue of conscience not party politics".


Shadow health minister Tim Loughton said: "The battle is hotting up and we will be going full pelt to make sure the amendments from the lords prevail."


The government is expected to offer several compromises in the Commons, such as including principles protecting people's rights in the bill's code of practice and improving access to advocates for detained patients.


Winterton's criticisms of the Lords amendments drew a sharp response from Liberal Democrat peer Lord Carlile, who chaired the scrutiny committee that reviewed the 2004 draft Mental Health Bill.


He said: "If she had listened to the debates, she would have heard evidence from cross-party peers, with wide-ranging professional expertise, that nothing in the bill will lead to the prevention of a single murder."


Six key changes made to the bill by peers (back)


œ Compulsory community treatment would be restricted to patients who would otherwise be in and out of hospital, rather than anyone who had been sectioned.

œ Detained children would be placed in age-appropriate accommodation.

œ A person could only be detained if the treatment would be "likely to alleviate or prevent a deterioration in his condition", rather than when "appropriate treatment" was available, as the government proposed.

œ People could not be sectioned solely on the basis of their substance misuse, sexual orientation or cultural beliefs.

œ A detention renewal must be agreed by a medical practitioner and a responsible clinician, rather than just a responsible clinician, such as a nurse.

œ People could not be sectioned unless they had impaired ability to make decisions about their treatment.

MENTAL HEALTH BILL

House of Lords

Mental Health Bill [HL]

EXPLANATORY NOTES

Explanatory notes to the Bill, prepared by the Department of Health and the Home

Office, in consultation with the Welsh Assembly Government, are published

separately as HL Bill 1—EN.

EUROPEAN CONVENTION ON HUMAN RIGHTS

The Lord Warner has made the following statement under section 19(1)(a) of the

Human Rights Act 1998:

In my view the provisions of the Mental Health Bill [HL] are compatible with the

Convention rights.

HL Bill 1                                                                                                             54/2

Mental Health Bill [HL]

Contents

Part 1

Amendments to Mental Health Act 1983

Chapter 1

Changes to key provisions

Mental disorder

HL Bill 1                                                                                                      54/2

Mental Health Bill [HL]                                                                                    ii

Mental Health Bill [HL]                                                                                       iii


Chapter 8


Miscellaneous

Schedule 1 —

Categories of mental disorder: further amendments etc

Part 1 —

Amendments to 1983 Act

Part 2 —

Amendments to other Acts

Schedule 2 —

Approved mental health professionals: further amendments

to 1983 Act

Schedule 3 —

Supervised community treatment: further amendments to

1983 Act

Schedule 4 —

Supervised community treatment: amendments to other Acts

Schedule 5 —

Cross-border arrangements

Part 1 —

Amendments to Part 6 of 1983 Act

Part 2 —

Related amendments

Schedule 6 —

Mental Capacity Act 2005: new Schedule A1

Schedule 7 —

Mental Capacity Act 2005: new Schedule 1A

Schedule 8 —

Amendments relating to new section 4A of,& Schedule A1 to,

Mental Capacity Act 2005

Part 1 —

Other amendments to Mental Capacity Act 2005

Part 2 —

Amendments to other Acts

Schedule 9 —

Transitional provisions and savings

Schedule 10 —

Repeals and revocations

Part 1 —

Removal of categories of mental disorder

Part 2 —

Replacement of “treatability” and “care” tests

Part 3 —

Approved clinicians and responsible clinicians

Part 4 —

Nearest relative

Mental Health Bill [HL]                                                                 iv

Part 5 —

Supervised community treatment

Part 6 —

Organisation of tribunals

Part 7 —

Cross-border arrangements

Part 8 —

Restricted patients

Part 9 —

Deprivation of liberty

Improving Mental Health Law


Towards a new Mental Health Act


Summary

The Government is changing the law on mental health. This booklet tells you more about the planned


changes. It sets out:


• how the draft Mental Health Bill aims to bring improvements; and


• how we consulted organisations that represent people who are mentally disordered and other


stakeholders, and acted on what they said.


Further details about the Government’s response to issues raised during consultation; the Government’s


implementation project; workforce strategy and research strategy are available in the full 

version of this


document – Improving Mental Health Law – Towards a new Mental Health Act.

Improving Mental Health Law


Towards a new Mental Health Act


Summary


© Crown copyright 2004


First published Sep 2004


Produced by the Department of Health


CHLORINE FREE PAPER


The text of this document may be reproduced without formal permission or charge for personal 

or in-house use.


www.dh.gov.uk/publications


Ministerial foreword

Chapter 1 Why do we need a new Mental Health Act? 1

Chapter 2 How will the Bill bring improvements? 3

Chapter 3 What does the Bill do? 7

Chapter 4 How will we implement the new law? 17

Contents


The Government is committed to developing and implementing new mental health legislation.


Providing a mentally disordered person with treatment against their wishes raises difficult 

ethical issues.


But sometimes, as a last resort, we have to do this for the patient’s own safety or, in a very small number


of cases, to protect others. When we do so, we need to make sure that there are proper safeguards for the


patient. To achieve this, mental health legislation needs to strike a fine balance between an individual’s


liberty, the need for treatment and the health and safety of the patient and others.


The Bill provides a comprehensive new legal framework in line with modern practice and developments


in human rights law. It ensures that there is no compulsion without the provision of appropriate


treatment and it strengthens support and safeguards for patients.


We are indebted to the contributions of the many individuals who have helped us to shape the Bill.


We have taken seriously the concerns that have been raised and we have made a number of changes – the


new draft of the Bill contains important changes from the version that was published for consultation in


2002. We have published separately a more detailed response to the issues raised in consultation, along


with details about the work we are doing now to ensure the effective implementation of the legislation


when it is enacted. This includes our plans to develop the workforce, to publish a Codes of 

Practice in


England and Wales, and to undertake research and evaluation of the new legislation.


There is now a further opportunity for discussion as the draft Bill will be subject to Parliamentary prelegislative


scrutiny. The pre-legislative scrutiny Committee will take evidence from stakeholders and


Ministers and this process will give Parliament the opportunity to consider the legislation carefully


before it is formally introduced.


Rosie Winterton Paul Goggins Don Touhig


Ministerial Foreword


1


The Government’s strategy for mental health


1.1 Mental health is a key Government priority. The draft Mental Health Bill is a fundamental part of our


strategy to improve the provision of mental health services and make them more focused on the needs of


the individual. We have a three-part strategy to help deliver mental health services that serve the interests


of patients and society. We are:


• Substantially increasing investment in mental health services.We are investing additional


funding in mental health services for children and adolescents, adults and older people to


provide better and faster care to people of all ages with mental health problems in England. For


example, we now spend over £300m more on adult mental health services per year compared


with 2000/2001. The National Assembly for Wales has also identified mental health as one of


its key health priorities and has provided additional investment in Wales.


• Developing new and innovative community services. These include assertive outreach, crisis


resolution, home treatment, and early intervention teams. The Mental Health National Service


Frameworks for both England and Wales set out national standards for the development of high


quality services for people with mental disorder. The impact is now starting to be felt by service


users and carers who are able to exercise more choice; be treated at home instead of in hospital


when appropriate; and access services more easily in an emergency. Early evidence from a


number of areas suggests a significant impact: fewer bed days, and reduced use of the Mental


Health Act.


• Improving mental health law. The current Mental Health Act is now more than twenty years


old. The law needs to be modernised to reflect significant developments in the way mental


health services are delivered. In addition, the Act has now three times been found by the courts


to be incompatible in specific respects with the European Convention on Human Rights. The


Bill will put in place a comprehensive new framework, which is specifically designed to honour


our human rights obligations both now and for the future.


How has reform of the legislation been developed?


1.2 The purpose of mental health law is to protect patients and others from any harm that can arise from


mental disorder. Its sets out the procedures that must be followed when it becomes necessary to treat


someone for their mental disorder without their consent and the safeguards and support there should be


for the patient.


1.3 In July 1998, we announced the first root and branch review of mental health law since the 1950s. We


have since consulted widely and taken account of the different voices and perspectives of people affected


by mental health law. This process continues with the pre-legislative scrutiny that begins in September


2004 (see Figure 1).


Chapter 1 – Why do we need a new

Mental Health Act?

Figure 1: The history of legislative reform


October 1998 – Expert committee established, chaired by Genevra Richardson


November 1999 – Expert Committee report “Review of the Mental Health Act 1983”


published


– Green Paper “Reform of the Mental Health Act 1983” is published


November 2000 – Summary published of over 1000 responses received on Green Paper


consultation


December 2000 – White Paper, “Reforming the Mental Health Act” published


June 2002 – Draft Mental Health Bill published for consultation – over 1700


formal responses and over 200 official letters received during


consultation period


June 2003 – May 2004 – Meetings with stakeholders on a range of issues including 

information


sharing, patient safeguards, treatment in the community, ECT,


provisions for offenders, compulsion in prison, new inspection

arrangements, children, and the relevant conditions (for being brought



under compulsion) to road test the provisions of the Bill


September 2004 – New draft of the Mental Health Bill published. Pre-legislative scrutiny

starts


2

Improving Mental Health Law Summary – The Mental Health Bill


3

2.1 The Bill will bring significant improvements in each of these areas. It puts a new focus on the individual,


ensuring that there is no compulsion without the provision of appropriate treatment; allowing flexibility


in the use of compulsory powers in ways that fit with patients’ changing needs; increasing support to


ensure patients’ views are taken into account; and strengthening safeguards.


The Bill:


Provides new support for patients …


• a nominated person to help the patient, represent them and apply to the Mental Health Tribunal on their

behalf


• help from independent Mental Health Act advocates for patients and their nominated person


… and greatly strengthen safeguards for them


• authorisation of use of formal powers beyond 28 days by an independent judicial body, the Mental Health

Tribunal


• integrated standards of inspection through the Healthcare Commission, which will also have some new powers


• safeguards for children who have serious mental disorders but who are refusing treatment which is being

given by virtue of parental consent


• notifications given to appropriate people, such as carers, at different stages in decision-making


Ensures that patients receive appropriate treatment…


• enables some patients to be treated subject to requirements in the community, reducing the risk of social

exclusion that can result from detention in hospital under the current Act

• raises the threshold of risk of harm to self and avoids arbitrary exclusions so that formal powers can be

properly targeted on patients who present most risk to themselves or others

• requires that appropriate treatment must be available for the individual patient before formal powers can

be used

• requires individual written care plans for all compulsory treatment, which must then be approved by the

Mental Health Tribunal or a Court


… increases choice for patients under compulsion …

• involvement in decision-making (as will be the case for their carers)

• choice of nominated person to represent their views

• new rights to refuse electro-convulsive therapy (ECT) where they have the mental capacity to do so

… and supports a competence based approach to professional practice

• the Bill will allow staff who have the right skills and experience to carry out key roles instead of restricting

roles automatically to particular professional groups

Chapter 2 – How will the Bill


bring improvements?


How the Bill has changed since 2002


2.2 The new draft of the Bill is different from the 2002 version in several ways. We have taken seriously the


concerns raised about the first version of the draft Bill and have made a number of key changes.


However, it is also important to clarify some of the basic intentions of the Bill in order to avoid

misunderstanding.


Figure 2: Clarifying some of the basic intentions of the Bill


The Bill does not introduce a new power of indefinite detention for people with mental disorder


who pose a risk to public safety nor does it introduce a new power of “preventive detention”.


The ability to detain people as long as necessary, on the basis of the risk they pose to themselves or


others, has been with us since 1959. Indeed, for some people, the Bill will have the opposite effect.


If their risk can be appropriately managed in the community, it will no longer be necessary to detain


them in hospital in order to treat them.


There will be a clear “gateway” to treatment under the Bill, which will help to ensure that


formal powers are not used inappropriately.


The conditions set out the circumstances in which a person might be made subject to compulsion,


that is, when they are at risk of suicide or serious self-harm, or serious self-neglect, or at risk of


harming someone else (see Table 1).


Clinicians will not be asked to take on a public protection responsibility that conflicts with


their role as health professionals.


It will be for clinical and social care staff to decide whether, in their professional judgement, the


conditions for compulsion are met. If they decide that they are not, then the patient cannot be 

made


subject to compulsion. All conditions must be satisfied, including that there must be treatment


available for the individual patient that practitioners judge to be appropriate, taking into account all


of the patient’s circumstances (see Table 1).


Patients in the community who are ill and vulnerable will get the treatment they need. The


Bill will restrict the initial use of formal powers in the community, to make sure that they are


not used inappropriately.


At the moment, the system sometimes fails some of society’s more vulnerable people, causing them


and their families distress. One of the fundamental aims of the Bill is to make community care work


for the people who need it most. Under Part 2 of the Bill (which deals with civil patients) the initial


powers to treat people under compulsion in the community will be focused on patients who are well


known to services and who are prone to cycles of discharge, relapse and readmission to hospital


(see Table 1). We will carefully monitor the use of these powers, to make sure they are being applied


appropriately. It will also be possible, under Part 3 of the Bill, for mentally disordered offenders


who are not dangerous to be given a mental health disposal in the community as an alternative to


a prison sentence. This means that we will be able to deal more effectively with the mental health


needs of these offenders, and so reduce their risk of re-offending.


Forced treatment at home is not, and never has been, permitted under the Bill


This is not what the use of formal powers in the community will be about – patients under formal


powers in the community will be subject to requirements (for example, that they attend an


outpatient clinic once a week) and, if they fail to comply with these or if their circumstances change,


the clinical supervisor can change their status to that of a resident patient. But under no


circumstances is forced treatment outside hospital permitted.


4


Improving Mental Health Law Summary – The Mental Health Bill


2.3 The table below provides a summary of the key changes we have made to the Bill as a result of the


consultation. We have published separately a more detailed response to the points raised in consultation


(Improving Mental Health Law – Towards a New Mental Health Act).


Table 1: Key changes since 2002 proposals

Policy area Issues raised in consultation How the proposals have changed

We agree. The Bill now provides that where a patient

over 16 has capacity they may refuse ECT as well as

consent to it, except in emergency cases.

• Should not be possible

without consent where

patient has capacity

Electro-convulsive

therapy for patients

over 16

Compulsion in prison will not be pursued.

We proposed the use of formal powers in prison.

Respondents felt that prison is not an appropriate

environment for the treatment of people under formal

powers. We have listened to these concerns and

decided not to pursue this policy.

• Prison not a ‘therapeutic

environment’- hospital should

be used

Compulsion in

prison

The Tribunal’s power will be limited in regulations.

The Tribunal’s discretionary power to decide that only

it can discharge, transfer or grant leave to a patient,

will be limited to patients defined in regulations. The

intention is that the power will only be available in

cases where patients pose a significant risk of causing

serious harm to others. This will make clear that the

power should only be used on an exceptional basis to

better manage risk to the public posed by a small

minority of patients.

• This Tribunal power will erode

clinical autonomy and should

be better defined.

• This Tribunal power will

create an impractical burden

on the Tribunal system and

will delay discharge of

patients

Tribunal power to

reserve decisions

to itself

Patients eligible for initial assessment in the

community will be defined in regulations. It is the

intention that these will primarily be people who have

previously been treated in hospital. This will narrow

the basis on which treatment under formal powers in

the community can be provided. It will not be possible

for someone who is brought under the formal powers

of the Bill (as a civil patient) to be under compulsion

in the community without assessment in hospital on a

previous occasion. Overall, however, our expectation

is that the majority of patients under compulsion at

any one time will be in hospital.

• Eligible group should be

better defined, or different

conditions set

• Potential for increasing scale

of compulsion

Formal powers in

the community

The definition of mental disorder now emphasises

what is key here – the presence of psychological

dysfunction, that is the effect rather than the

underlying cause.

The conditions now define more specifically when

formal powers can be used to protect patients from

self-harm. The threshold has been raised from the

general threshold of “for the health and safety of the

patient” to “for the protection of the patient from

suicide, or serious self-harm, or serious neglect by him

of his health or safety”

The conditions now make it clear that there must be

a holistic approach in deciding whether the

requirement is satisfied that appropriate treatment is

available for the patient. This must take account of all

the patient’s circumstances, including the nature or

degree of the mental disorder and their social

circumstances, ensuring the care plan meets the needs

of the individual patient.

• Definition of mental disorder

too broad

• Conditions for compulsion

too broad

• Need for therapeutic benefit

requirement

The definition of

mental disorder and

conditions for

compulsion

5

How will the Bill bring improvements?

Policy area Issues raised in consultation How the proposals have changed

2.4 Some provisions that were in the Bill have been taken forward in other Bills. Provisions for the informal


treatment of patients not capable of consenting have been taken forward in the Mental Capacity Bill.


Provisions on information for victims and criminal procedure (insanity) legislation have been taken


forward in the Domestic Violence, Crime and Victims Bill.


Carers play a crucial role. Under the Bill, practitioners

are required to consider consulting anyone acting as a

carer for a patient, having regard to the patient’s

wishes and feelings and all the relevant circumstances.

In some situations it may be right to consult the carer

despite the opposition of the patient. The Bill now

adopts a wider definition of carer, which reflects the

definition in the Carers and Disabled Children Act 2000.

• Patient’s agreement required

before professionals can

consult with carers

• Definition of carer too narrow

Carers

We agree. The Bill now does not interfere with the

common law position of parents who consent to

treatment on behalf of a child under 16. Children

under 16 will be entitled to safeguards where they

refuse or resist treatment and are so seriously ill that,

without parental consent, the conditions for use of

formal powers would be met.

• Parental consent should

continue to provide the

authority to treat children.

Safeguards for

children and young

people

We have raised the maximum sentence to 5 years

in line with a similar amendment to the Mental

Capacity Bill.

• Increase the maximum

sentence on conviction from

2 years to 10 years

imprisonment.

Offences for ill

treatment or

neglect of patients

We agree. The Healthcare Commission can take a

more ‘pro-active’ approach and investigate in cases

where no explicit ‘cause for concern’ exists, as well

as in reactive situations.

• Pro-active visiting power

required.

Inspection

There will be a new safeguard for all children under

16, whether treated under the formal powers or not.

ECT will only be provided where authorised by the

Tribunal or the Court.

• Should not be possible to give

ECT to children

Electro-convulsive

therapy for children

under 16

6


Improving Mental Health Law Summary – The Mental Health Bill


7


3.1 The Bill sets out the safeguards for patients and procedures that must be followed when it becomes


necessary to treat someone for their mental disorder without their consent. It is a complex piece of


legislation, containing around 300 clauses and 14 schedules, which will replace the Mental Health Act


1983. This section summarises the new legal framework it will put into place. A more detailed version of


this section may be found in Improving Mental Health Law – Towards a New Mental Health Act.


3.2 This framework allows patients to be treated compulsorily only if they meet both a particular definition


of mental disorder and a set of conditions (the ‘relevant conditions’ – see box below). Health and social


care professionals must each decide whether the conditions are met in any individual case.


3.3 There are three distinct elements at the core of the Bill, which together form an integrated, patientfocused


system. The Bill:


• defines clear and fair procedures for assessment and treatment. There will be a new Tribunal

system that will authorise use of formal powers beyond the initial assessment of the patient.


• provides a number of safeguards to ensure good decision-making, including the involvement

of service users and their representatives. The system will also be independently inspected.


• ensures there is support for patients so that their voice is heard.


The relevant conditions


These require:


• the presence of a serious mental disorder: a person must be suffering from a mental disorder of such


a nature or degree as to warrant the provision of treatment under the supervision of a specialist


doctor or senior mental health practitioner


• the treatment must be necessary for the protection of the patient from suicide, serious self-harm or


serious neglect of their health or safety, or for the protection of others


• there is no alternative: in other words, appropriate treatment cannot be provided unless the powers


in the Bill are used (except for patients over 16 at substantial risk of causing serious harm to others)


• treatment must actually be available for the individual patient which is appropriate to their case,


taking into account the nature or degree of mental disorder and all other circumstances


Chapter 3 – What does the Bill do?


How do patients become liable to compulsory treatment?


3.4 There are three routes into the formal powers of the Bill:


• through the civil procedures (Part 2 of the Bill);


• through the criminal provisions (Part 3 of the Bill); and


• transfer from another jurisdiction – Scotland, Northern Ireland, Isle of Man and Channel


Islands (Part 4 of the Bill).


3.5 As now, the large majority of patients who become liable to compulsion will do so as civil patients under


Part 2. This section outlines the procedures in Part 2 with some illustrative case studies to show how the


provisions might work.


3.6 In reading this section, it is also helpful to look at Figure 3, which gives an overview – in the form of a


flowchart – of the main features of the proposed new system for civil patients, focusing on entry and exit


routes from treatment under powers of compulsion. The details of each stage in the process are explained


more fully in the following pages. In particular, the role of the Tribunal is described in more detail on


pages 12-14. The flowchart does not show all the procedures that an individual may encounter, for


example, resident patients may be granted leave from hospital, may be transferred to another hospital, or


patients may apply to the Tribunal for a change in residency status.


Stage 1: examination


3.7 The first stage in the process is for the patient to be examined to see whether they meet the conditions


for use of formal powers. At this early stage, the following safeguards will apply:


• Multi-disciplinary decision-making – there will be two doctors and a social worker or other nonmedic


(the approved mental health professional) involved in any decision to use formal powers.


This will ensure that decision-making will look at all of the patient’s circumstances;


• Consultation with and notification of people who know the patient, such as carers (subject to the

patient’s wishes and feelings);


• Accountability – written records of decisions; and


• Time-limits to ensure decisions and procedures are carried out without excessive or unreasonable


delay.


Stage 2: assessment


3.8 If all three initial examiners decide that the conditions are met, the patient will be liable to assessment.


The examiners will also decide whether assessment and initial treatment will be provided on a resident or


non-resident basis.


8


Improving Mental Health Law Summary – The Mental Health Bill


Figure 3: Overview of entry and exit routes for civil patients under Mental Health Bill


No

No

No No

No

Yes

Yes

Yes

Yes

Yes

No

No

No

Yes


Any person may request an

examination (eg carer, nurse, social

worker, police)

The relevant NHS body decides

whether there is sufficient evidence

that the relevant conditions appear

to be met

NON-EMERGENCY

Examination by Approved Mental

Health Professional and 2 doctors to

decide whether conditions met (within

5 days)

Examiners determine, for those patients

described in regulations, whether assessment

should be as resident or non-resident patient

Patient liable to formal assessment

under the Bill

Person appears to be in need of assessment or treatment

• person at home

• person in public place. Police can take patient to place of safety for up to 72 hours

• patient in hospital informally. Doctors holding powers up to 72 hours.

Others (eg nurses) holding powers up to 6 hours

Advocacy available. Approved

Mental Health Professional registers

patient with hospital (within 24 hours)

and appoints Nominated Person

Hospital Managers appoint Clinical

Supervisor. Patient admitted to

hospital or requirements imposed in

the community (within 7 days)

Clinical Supervisor prepares care plan

(within 5 days) and begins assessment

and treatment

Clinical Supervisor under continuing

duty to keep conditions under review

Conditions met. Clinical Supervisor

applies to Mental Health Tribunal

(within 28 days)

Tribunal determines whether

conditions met

Tribunal makes Order authorising

assessment or treatment as resident

or non-resident patient and approves

care plan

Clinical Supervisor under continuing

duty to keep conditions under review

Clinical Supervisor applies to Tribunal

for further order before expiry of the

current order

EMERGENCY

Examination by Approved Mental

Health Professional and 1 doctor

to decide whether conditions met

(within 24 hours)

Patient admitted to hospital and

examined by second doctor (within

72 hours) to decide whether

conditions met

Patient, Nominated Person or parent

can apply to Tribunal for discharge

from assessment

Conditions for compulsion do not

appear to be met

No formal examination

Conditions not

met – person not

liable to

assessment or

treatment under

formal powers of

compulsion

Patient may be

treated

voluntarily

Patient, Nominated Person or parent

can apply to Tribunal for discharge

or amendment of Order

Conditions not met – patient not

liable to assessment or treatment

under formal powers of compulsion

Conditions not met – patient ceases

to be liable to assessment or treatment

under formal powers of compulsion

Conditions not met – patient ceases

to be liable to assessment or treatment

under formal powers of compulsion


9


What does the Bill do?


What happens during assessment?


3.9 The purpose of assessment under the Bill is to determine what treatment is required for a patient who


meets (and continues to meet) all of the ‘relevant conditions’. As soon as the three examiners decide that


a patient is liable to formal assessment, the approved mental health professional must:


• notify the patient, explaining the reasons for the decision;


• register the patient with the hospital that is to be responsible for the patient’s care and treatment

(this applies to community-based patients as well);


• explain to the patient about the availability of the specialist advocacy service; and

Case Study 1 – initial examination


D is a 42-year-old woman who has been under the care of the Community Mental Health Team for


the past three years since moving into the area. She has a 20 year history of contact with mental


health services. For the past few weeks the approved mental health professional (AMHP who is a


former approved social worker), has been visiting D at home, and has become concerned that D is


becoming increasingly unwell. This morning, the AMHP notices a number of unopened packets of


anti-psychotic medication in the flat, suggesting that D has not been taking her medication. When


asked about this, D says that she is completely well, and does not need to take the pills. However,


her behaviour is extremely distracted and agitated, which in the past has been a sign that D is


hearing lots of unpleasant voices. Her conversation is confused and does not always make sense. The


AMHP notes that D is living in highly chaotic circumstances: the house is a mess, there is no food,


and the electricity meter has not been topped up so there is no electricity or heating in the house. D


is quite determined that she will not go into hospital for her physical or mental health. The AMHP


was aware that when D had previously been unwell she had presented in a similar way and had then


gone on to deteriorate rapidly, with a tendency to go without food or drink for days.


Having discussed the case with a member of the crisis team, to assess whether D could still be


looked after safely in the community, the AMHP suspects that he may need to arrange for a mental


health act examination. The AMHP, after consulting with D, spoke to the next-door neighbour,


who is D’s closest friend and main source of support. After speaking to the neighbour, the AMHP


decides to arrange for an initial examination of D.


The initial examination is carried out by the same AMHP, the psychiatrist from the CMHT and

another doctor. They ask D about her illness, and assess whether she is so seriously unwell that she


might need further assessment and treatment in hospital. They also speak again to the next door


neighbour. Having discussed D’s circumstances they each, independently, decide that D does meet


the conditions to be treated in hospital under formal powers. They each make a record of their


decisions and the reasons for them, and give them to the AMHP (within the 72 hours time limit).


The AMHP has a number of duties. He tells D about why the decision was made, and what will

happen next. He also explains to D about the help available from an Independent Mental Health


Act advocate. He then registers D with the hospital that will be responsible for her care and

treatment so that D can be assessed, and arrangements are made to drive D to hospital. When 

D was


admitted to hospital previously under the old Mental Health Act, the law said that her mother had


to be consulted because she was her nearest relative. But D and her mother have never been close.


Under the new system, D can choose her own ‘nominated person’ to represent her, and so she picks


her next door neighbour. The AMHP discusses with the neighbour what this role entails before

confirming the appointment.


10


Improving Mental Health Law Summary – The Mental Health Bill


• appoint a nominated person who will be, wherever possible, the patient’s own choice.

The nominated person will play an important role in making sure the patient’s rights are

safeguarded. They can also exercise rights on behalf of the patient for example by making

applications to the Tribunal.


3.10 Once a patient is registered, the hospital managers must appoint an approved clinician 


(meeting the

criteria for approval set by the Secretary of State or the National Assembly for Wales) as the patient’s


clinical supervisor. The clinical supervisor will have lead responsibility within the multi-disciplinary


team responsible for the patient’s care and they have certain duties and responsibilities under the Bill.


It is intended that they will be specialist doctors or senior mental health practitioners.


3.11 Once a patient is admitted to hospital or a non-resident patient (ie. a community-based 

patient) is


notified of the requirements with which they are expected to comply, the clinical supervisor must


produce a care plan within 5 days. This must follow consultation with the patient, nominated 

person


and carer, wherever practicable and appropriate.


3.12 A patient who is liable for assessment may be a resident patient treated as a hospital in-patient. Nonresident


patients are subject to requirements (for example, that they attend an outpatient clinic once a

week) and, if they fail to comply with these requirements or if their circumstances change, the clinical


supervisor can change their status to that of a resident patient. Both types of patient will have a care


plan. If necessary, treatment included in the plan can be given without the patient’s consent, but only


at a hospital. No one will be treated against their wishes outside of hospital.

How does assessment come to an end?


3.13 The clinical supervisor must keep the conditions under review at all times. If the clinical supervisor


decides within the assessment period that any one of the relevant conditions is no longer met, they must


discharge the patient from treatment under formal powers. The patient may choose to continue to be


Case study 2 – assessment


B is a 24-year-old man who was brought into psychiatric hospital for assessment two weeks ago,


under the care of Dr S who was formally appointed as his clinical supervisor. An initial care plan for


B was drawn up, in consultation with B and his wife who is acting as his nominated person.


Dr S has a duty to keep two questions under constant review: are the conditions for compulsion still


met, and does B need to remain in hospital for treatment or could he be treated at home, or

elsewhere, with requirements placed upon him? At this morning’s ward round, Dr S considers


whether the conditions for compulsion remain satisfied in B’s case, otherwise it would not be

possible to treat B under the Act. Dr S notes that B’s health seems to have improved slightly 


since he


came into hospital, but decides that the conditions for compulsion continue to be met. Dr S also

decides that it is necessary for B to continue to be assessed in hospital. The advocate has explained to


B that he (or his nominated person on his behalf ) has the right to apply to the Tribunal to challenge


Dr S’s decisions, but B decides not to pursue this for the moment.


Dr S has until the end of the 28-day assessment period to decide whether to apply to the 

Tribunal


for an order to extend B’s spell of being subject to the formal powers. Now that Dr S has a clearer


understanding of B’s condition and how he is responding to treatment, he thinks that it will be


necessary to apply to the Tribunal for an order authorising the continued use of formal powers


beyond the first 28 days. In consultation with B and his wife, the treatment under the care plan is


revised and is submitted to the Tribunal along with an application for a treatment order for their

consideration.


11


What does the Bill do?


treated or stay in hospital voluntarily. The clinical supervisor must also keep the patient’s residency status


under review so that, if appropriate, the patient can continue to be treated without having to remain in


hospital.


3.14 Where the clinical supervisor decides that the conditions continue to be met, assessment 

and treatment


under the Act may only continue beyond 28 days if authorised by the Mental Health Tribunal. The


clinical supervisor must apply to the Tribunal before the expiry of the 28-day period.


3.15 The patient or the nominated person can request a Tribunal hearing during the initial assessment to see


if the patient can be either discharged from treatment under formal powers or treated on a 

non-resident

basis. The clinical supervisor may decide to bring forward an application for a Tribunal order so that


both applications are dealt with at the same time. The Tribunal must appoint a medical practitioner


from a specially appointed Expert Panel to examine the patient and provide a report on the


application(s). The Tribunal may appoint other Panel members, eg. a further specialist in learning


disability. Expert Panel members can visit, interview and examine the patient and inspect any relevant


records when preparing their report.


3.16 The Tribunal will consider whether all of the relevant conditions are met – if they are not, 

it must


discharge the patient. If it decides that all of the conditions are met, the Tribunal can decide to:


• confirm the patient’s liability to assessment, but may change the patient’s residency status.

This does not extend the original assessment procedure so the clinical supervisor must still

decide whether to apply to the Tribunal within the original 28 day period;


• make an order for a further 28 day period of assessment, which means there will need to be

further consideration of the case by the Tribunal within 28 days of its decision and may change

the patient’s residency status; or


• make a treatment order that can be for up to six months and may change the patient’s

residency status.

Case study 3 – The Tribunal

P has been liable to assessment for 2 weeks. He decides that he wants to apply to the Tribunal for


discharge from hospital. He asks his advocate how to go about this. His psychiatrist (the clinical

supervisor) thinks that P’s illness warrants treatment under formal powers and decides to proceed


with an application to the Tribunal for a treatment order.


Before submitting his application to the Tribunal, the clinical supervisor reviews P’s care plan with


members of the multi disciplinary team, having also consulted P and P’s brother (his main carer and

nominated person), about the medical treatment specified in the plan.


The two applications, one on behalf of the patient and one from his clinical supervisor are


considered by the Tribunal at the same time. The Tribunal appoints a psychiatrist, Dr C, from the


Expert Panel to assist it in determining the applications. Dr C interviewed and examined P and

reviewed his records before submitting a report to the Tribunal supporting the clinical supervisor’s

assessment that a treatment order was appropriate.

The Tribunal consists of three members, a legal member as chairman, a clinical member and a lay

member. It considers the report from Dr C and representations made at the Tribunal hearing by the

clinical supervisor, a member of the ward staff, P’s social worker and representations made by the

nominated person on P’s behalf. The Tribunal determines in the first instance that P still meets all

the relevant conditions.

12

Improving Mental Health Law Summary – The Mental Health Bill

How long can Tribunal orders last?


3.17 Assessment or further assessment orders cannot be longer than 28 days and between them, assessment

and further assessment orders cannot last more than three months in total. An assessment order cannot

be given once a treatment order has been given.


3.18 A treatment order can be for up to six months in the first instance. If three treatment orders have been

given, or where the total period a patient has been under treatment orders is 12 months, an order of up

to 12 months can then be given.


3.19 The Tribunal must always be satisfied that all the relevant conditions are met before an order is made.

If they are not met, it must discharge the patient from treatment under formal powers.

Case study 4 – Person on a treatment order (and provision of ECT)

H was admitted to hospital as an emergency four months ago by the crisis team following a period

of very severe depression where she had become increasingly withdrawn, unwilling to communicate

with the people around her and unable to cope with daily life. She is a very loving mother of two

children, but in the months before her admission to hospital she was haunted by beliefs that she may

be a danger to her family, and was terrified of accidentally poisoning their food. Nearly three

months ago, a Tribunal gave a treatment order for H to remain in hospital for up to six months.

At that time, electro-convulsive therapy (ECT) was not envisaged as necessary, and so it was not

included in the proposed care plan. Since then she has been treated with anti-depressant and antipsychotic

medication, and weekly psychotherapy sessions as part of her care plan. However, H’s

depression has not lifted.



H’s psychiatrist, Dr P, believes that H may benefit from a course of ECT. But H feels very strongly

that she does not want to receive ECT. H’s nominated person also confirms their understanding that

ECT would definitely be against H’s wishes. Dr P explains carefully to H exactly what a course of

ECT would involve and the possible benefit it could have by helping to break her out of the cycle of

depression. H says that she understands this and explains her worries about having the treatment.

After careful consideration, Dr P concludes that H does understand the nature of the treatment and

the likely consequences of consenting or refusing it. As Dr P considers that H has capacity to 

make


this decision and that her concerns are not based on depressive delusions, he is unable to pursue the

option of providing ECT. Dr P discusses an alternative treatment plan with H, and she agrees to his

suggestion to add a mood stabiliser to her drug regime to try to alleviate her depression.

P has a history of being treated under the powers of mental health legislation for severe depression.

The social worker and the nominated person emphasised to the Tribunal that P’s recent illness

appeared to have been triggered by the death of his mother two months ago. The social worker also

made the Tribunal aware that P’s brother would be moving nearer to the area shortly, and would

be able to look after P. It was also noted that P had started a new job just before he got ill, which he

enjoyed very much. The clinical supervisor still had doubts about whether P would be able to cope

if he returned home, and thought there was a high risk of relapse. However, given the circumstances

of P’s case, he agreed that a treatment order as a non-resident patient could be made, so that that

P could remain at home and possibly do some work. The Tribunal agreed and made a treatment

order for P on a non-resident basis for up to 6 months. The Tribunal makes it a condition of

the order that P should attend the hospital on certain days so that his progress can be reviewed.

P understood that not complying with the requirement placed on him could result in him being

readmitted to hospital.


13


What does the Bill do?

How is a patient discharged from treatment under formal powers?


3.20 It is possible for a Tribunal order to be discharged and for a patient to cease to be subject to treatment

before the expiry of the time limit set by the order. This could happen where:


• any relevant condition is no longer met. The clinical supervisor must then either discharge the

patient from liability for treatment under the Bill or, in a few cases, must apply to the Tribunal

for discharge. The clinical supervisor is under a duty to keep the conditions under review at

all times.


• the patient or their nominated person applies to the Tribunal for discharge. Patients (or their

nominated person on their behalf ) can apply to the Tribunal as soon as they are made liable

to assessment, or during any Tribunal order made for more than three months, or whenever

a non-resident patient is made a resident patient. If the Tribunal decides that any relevant

condition is no longer met, it must discharge the patient from liability for treatment under

the Bill.


What else does the Bill do?


3.21 The Bill also makes provisions in the following areas:

• Patients Concerned in Criminal Proceedings


Part 3 of the Bill sets out the powers available to assess and treat mentally disordered offenders.


It empowers the courts to remand offenders for report or treatment at all stages of trial up to


sentencing. It also enables the courts to divert offenders from prison to allow them to receive


specialist medical treatment either in the community or in hospital. Where a restriction order is


made, the Home Secretary has certain powers and responsibilities to scrutinise the 

management


of offenders subject to mental health orders to ensure that the public is protected against


further harm.


Broadly speaking, the courts will continue to have the same powers available to them as they do


under the Mental Health Act 1983. However, case study 5 illustrates the new power available to


the Courts where they are dealing with a non-dangerous offender, which is the ability to assess


or treat them in the community.


Case study 5 – Powers available to the courts for non-dangerous


offenders under the Bill


N is a young man who is remanded in custody following arrest for the theft of a games console from


a video shop. He already has a number of convictions for petty theft. He is unemployed and lives


with his mother.


The prison reception screening tool indicates that N has mental health problems and a referral is


made to the prison mental health in-reach team. In prison N displays psychotic symptoms and his


medical history reveals symptoms of schizophrenia which, on occasion, become florid and are then


linked to offending behaviour. In response to his psychotic symptoms N’s behaviour becomes


increasingly disturbed but not to a degree which warrants an attempt to secure a hospital transfer as


a priority. The visiting psychiatrist, working in the mental health in-reach team, concludes that N is


mentally ill but that his condition does not currently warrant residential treatment. N’s compliance


with treatment in the past has been intermittent. The psychiatrist’s opinion is that medication will


control N’s symptoms and consequently his bizarre offending behaviour. N’s mother is supportive.


14


Improving Mental Health Law Summary – The Mental Health Bill


• Code of Practice and General Principles


The Bill provides for separate Codes of Practice for England and for Wales to guide decisionmakers


on how to implement and work within the new law. The Codes will include the general


principles that underpin the legislation, namely that:


• wherever possible, patients should be involved in decision making;

• decisions should be made fairly and openly; and

• the least intrusive method of treatment should be adopted and the restrictions imposed on

patients should be kept to the minimum necessary to protect their health and safety or to

protect others.

The Bill allows one or more of the general principles to be disapplied in certain circumstances;

for example, when their application would be impracticable or inappropriate and/or when

blanket application of the principles would undermine the legislation’s purpose in preventing

further harm.


• Carers


The Bill includes explicit new requirements for professionals to consult carers about the


patient’s wishes and feelings and the effect that decisions are likely to have on carers themselves.


Before consulting carers, professionals must take into account the patient’s wishes and feelings


about the carer being consulted.


• Independent Mental Health Advocacy


Patients and their nominated persons are to have access to specialist independent mental health


advocacy services.


• Cross Border Provisions


For the transfer of patients subject to treatment under compulsion between England or Wales

and Scotland, Northern Ireland, Isle of Man, Channel Islands.


• Medical Treatment – Special Safeguards


In connection with the authorisation and delivery of treatments with special safeguards such as


electro-convulsive therapy and psychosurgery. The Bill provides that where a patient over 16 has


capacity they may refuse ECT as well as consent to it, except in emergency situations. It also


provides that ECT cannot be given to any child under 16 (whether under formal powers or not)


without authorisation by the Tribunal or the Court.


Under the Bill’s provisions the psychiatrist could, if she considers it appropriate, recommend that


N should be remanded for assessment in the community. The clinical supervisor will then prepare


a care plan for N’s treatment in the community, based in his home with an element of social


supervision, and will submit the care plan to the Court.


When N is convicted the Court considers imposing a prison sentence because he is a prolific repeat


offender. But the Court decides instead to make a mental health order for his care and treatment in


the community. The Court concludes that the latter will enable N to receive the supervision and


treatment he needs to prevent a relapse to offending behaviour. Failure to comply with the


requirements of the mental health order or a change in N’s circumstances means that the clinical


supervisor could change his status to that of a resident patient. If the option of this mental health


order had not been available to the Court, N would have received a prison sentence.


15


What does the Bill do?


• Provision for the informal treatment of children and young people aged under 18.


The Bill provides that patients aged 16 or 17 may agree or refuse treatment for mental disorder


and their decision cannot be overridden by parental consent. This means that where the


conditions for the use of formal powers are met, they will be treated as adults and be entitled


to the full range of safeguards. Children under 16 who are refusing or resisting treatment and


who are so seriously disordered that they would meet the conditions for treatment under


formal powers (were it not for the fact that the parents had consented to treatment) will be


“qualifying children” entitled to safeguards similar to those available for patients treated

under formal powers.


• Powers of Entry, Conveyance and Detention


The Bill provides powers of entry for the police to enter premises and convey mentally


disordered people, who appear to be in need of urgent care and treatment but are not receiving

it, to a place of safety.


• Appeals


The Bill provides for a new second tier appellate structure. Appeals on points of law against the


decisions of the Mental Health Tribunal will be heard by the Mental Health Appeal Tribunal,


and thereafter by the Court of Appeal.


• Monitoring Arrangements


The Bill abolishes the Mental Health Act Commission and transfers its functions to the

Commission for Healthcare Audit and Inspection – known as the Healthcare Commission.


It sets out the Healthcare Commission’s functions in relation to providing information and

advice on how the various functions under the legislation are being exercised, and to carrying

out investigations.


• Offences


Certain offences and their penalties are set out by the Bill, for example, for ill treatment or

neglect of patients.


16


Improving Mental Health Law Summary – The Mental Health Bill


17


4.1 To support the effective implementation of the new law, work has already begun in England and Wales on:


• the regulations and Tribunal rules that will be required in order to implement the Bill;


• developing the workforce; and


• creating new Codes of Practice that will function as a decision support tool.


4.2 We have also started work on developing the functions and roles that the Bill creates, such as approved

mental health professionals and new inspection arrangements. This work includes developing the

extensive training and support that will be needed to implement the legislation.


4.3 We are also putting in place a research strategy to add an evidence base to the use of mental health

legislation. Some of this work has already been commissioned so that we can establish a baseline against


which to compare the effect of new legislation.


4.4 Further details about this work are given in Improving Mental Health Law – Towards a New Mental


Health Act (available at www.dh.gov.uk/publications).


Chapter 4 – How will we implement

the new law?


More details about the Mental Health Bill – including an electronic copy of this

document – can be found on the website www.dh.gov.uk/publications


You can contact the Department of Health about the Mental Health Bill at the following

email address: [email protected]


We will read all messages received but will not necessarily be able to respond to them.

© Crown copyright 2004


40450 1p 5.5k Sep 04 (RIC)

If you need further copies of this title, please quote 40450/Improving Mental Health Law

Summary and contact:


DH Publications Orderline


PO Box 777

London SE1 6XH


Tel: 08701 555 455


Fax: 01623 724 524


E-mail: [email protected]


08700 102 870 – Textphone (for minicom users) for the hard of hearing


8am to 6pm Monday to Friday.


40450/Improving Mental Health Law Summary can also be made available on request in

Braille, on audio-cassette tape, on disk and in large print.


www.dh.gov.uk/publications

Critical committee will reconvene to ensure new plans face scrutiny


A committee of MPs and peers that scrutinised the draft Mental Health Bill is set to reconvene unofficially to consider the government’s new proposals. more info


Posted: 18 May 2006 | Source: Website EAS | Full Article


Which way to turn?


After failing with two draft mental health bills, the government is pressing ahead with amendments to the 1983 act. But Katie Leason finds that campaigners who opposed the bills are now unsure of the more info


Posted: 12 May 2006 | Source: Website EAS | Full Article


Groups ready to fight after accusing government of advocacy 'betrayal'


The scrapping of plans to establish a right to advocacy for people detained under mental health powers has been branded a "betrayal" and has become a key battleground in the government's revised more info


Posted: 13 April 2006 | Source: Website EAS | Full Article


Special report on scrapping of the Mental Health Bill


The government has decided to scrap the draft Mental Health Bill and instead amend existing legislation, following widespread opposition. New “shorter and less costly” proposals were published last more info


Posted: 31 March 2006 | Source: Website EAS | Full Article


Wales to refocus on service improvement


Mental health campaigners in Wales hope the government’s decision to drop the Mental Health Bill will enable the Welsh assembly government to concentrate on fully implementing its own reforms. more info


Posted: 30 March 2006 | Source: Website EAS | Full Article


Campaigners in Wales speak out on dropped mental health bill


Mental health campaigners in Wales hope the Westminster government’s decision to drop the draft mental health bill means the Welsh assembly can concentrate on fully implementing its own legislation. more info


Posted: 24 March 2006 | Source: Website EAS | Full Article


Mental Health Act 1983 to be amended


The Mental Health Act 1983 is to be amended rather than a new bill being introduced, health minister Rosie Winterton announced today. more info


Posted: 23 March 2006 | Source: Website EAS | Full Article


Bill could be dropped and 1983


Opposition politicians and campaigners say there will be no mental health bill during this parliamentary session and the bill may be dropped in favour of reform of the 1983 act. more info


Posted: 16 February 2006 | Source: Website EAS | Full Article


Fears that draft mental health bill could be dropped


Opposition politicians and campaigners say the Mental Health Bill will not be introduced this parliamentary session, and could be dropped altogether in favour of a reform of the 1983 Act. more info


Posted: 15 February 2006 | Source: Website EAS | Full Article


Bill 'plays to public fears', minister told


Health minister Rosie Winterton was forced to defend the draft Mental Health Bill after being told at a meeting on discriminatory media coverage of mental health issues that the planned laws would more info


Posted: 26 January 2006 | Source: Website EAS | Full Article

The draft Mental Health Bill: an Action Network briefing

This page was created by the BBC.


Updated: 01 Apr 2005


By BBC Action Network team


Mental health laws could face a major upheaval if the government’s draft Mental Health Bill makes it through Parliament. The government believes current laws do not go far enough to protect the public or safeguard patients’ rights.


But the new proposals have been criticised as too harsh by mental health charities. They argue that the mental health system is failing its patients and reform should focus on reducing the stigma associated with mental health problems.

This briefing looks at what the draft Mental Health Bill proposes, responses to the bill, and what you can do if you want to get involved.


For a discussion of the wider issues facing the treatment of mentally-ill people, see Mental health in England and Wales: an Action Network briefing.

1. What does the draft Mental Health Bill do?


The government wants to put more emphasis on the protection of the public. The draft Mental Health Bill would make it easier to detain people with personality disorders who may pose a risk to society - whether or not they have committed a crime.


A revised version of the bill was published in November 2004 after the original 2002 draft was fiercely opposed by mental health organisations. The new draft includes proposals to:

  • Broaden the definition of mental disorder to make it easier to treat forcibly people with personality disorders
  • Broaden the definition of medical treatment to ensure people with personality disorders could be forcibly treated but only if doctors justify treatment as clinically sound to a tribunal
  • Allow for the compulsory treatment of patients cared for in the community so they would not need to be sectioned - confined to hospital - in order to be forced to take medication
  • Tighten the criteria for Community Treatment Orders so patients who are in and out of psychiatric hospitals could be forcibly treated in the community
  • Tighten the criteria under which patients are detained and treated in hospital to cover those at highest risk to others or themselves
  • Introduce safeguards so people can’t be detained unnecessarily - for example, there would be an independent tribunal to look at care plans for those held over 28 days
  • Introduce a new "nominated person" who can help patients challenge the use of compulsory powers

2. What has been the response to the bill?


The Mental Health Alliance, a group formed by 60 organisations to present a unified front against the original bill, says the new bill has not addressed their objections. It argues that the number of patients who may pose a danger to society is too small to justify this as the main focus of the bill, and that linking mental health problems and violence would just add to stigma and discrimination.


Listed below are some of the specific concerns of campaigning organisations and pressure groups:

  • The threat of compulsory treatment is too wide, according to Mind, which says more people will be forced into hospital and doctors would be turned into jailors
  • Staffing pressures would worsen, according to the Royal College of Psychiatrists, which says there aren’t enough psychiatrists for the proposed tribunals
  • Civil liberties are at risk, according to the British Medical Association, which says the bill gives rise to serious concerns about the rights of mental health patients
  • Patients might be forced to take drugs that don’t help in the name of public protection, according to Mind, which says such treatment doesn’t always work
  • Proper care cannot be guaranteed, according to Mind, which says a non-statutory Code of Practice is all that exists to ensure acceptable standards for patients admitted against their will
  • The real issue of access to care is ignored, according to Rethink, which claims that people encounter severe problems when trying to get help
What do supporters of the bill say?


The Department of Health argues that the revised bill does address these concerns by including the right to challenge forced treatment and the right to be consulted about treatment.

The Zito Trust, an organisation for the victims of people with mental disorders, supports the bill. The trust was set up after the unprovoked killing of Jonathan Zito by a paranoid schizophrenic in 1992. It campaigns for better community care of the mentally ill. It welcomes measures to ensure people with severe personality disorders get the appropriate treatment to avoid situations where they might pose a danger to themselves or the public.

3. Where are things at?


The bill was reviewed by a "scrutiny committee" of MPs and Lords to decide whether it should be introduced into Parliament or whether further changes need to be made. The committee's report, published in March 2005, said that the draft bill would make it too easy to force a person into compulsory treatment and could be used as a mental health anti-social behaviour order. The Department of Health will respond to the committee report in the summer.

4. How to get involved

If you have concerns about the draft bill or if you support the proposed measures you should send your views in to the scrutiny committee.


Rethink has a campaign pack for people with concerns about the draft Mental Health Bill, which includes sending a form letter.


Talk to your MP

A group of MPs have tabled an Early Day Motion to support the Mental Health Alliance’s attempts to change the bill before it starts going through Parliament. If you agree with the motion, you should let your MP know.


If, however, you oppose any efforts to change further the draft Mental Health Bill and are concerned that the parts of it intended to protect the public might be diluted, you should also make this clear to your MP. Get in touch with the Zito Trust which supports the bill.

Department of Health

Published:

Thursday 23 March 2006

Reference number:

2006/0108

New shorter Bill to amend existing Mental Health Act


Health Minister Rosie Winterton today announced a fresh approach to radically overhaul mental health law as she and Home Office Minister Fiona Mactaggart outlined proposals for a Bill to amend the existing Mental Health Act.


The new amending Bill, which will be substantially shorter than the draft Mental Health Bill 2004, will introduce supervised treatment in the community to ensure that patients who have been discharged from compulsory treatment in hospital continue to comply with treatment. This will benefit patients and improve public safety.


It will also introduce a new simplified definition of mental disorder throughout the Act and remove the “treatability” test. Both changes will ensure that people who require treatment to prevent harm to themselves or others are able to receive it.


The Bill will improve patient safeguards through taking order-making powers in regard to Tribunal hearings and be used to introduce the Bournewood safeguards which will protect people who lack capacity and who are not under compulsion, but are deprived of their liberty.


The Government has spent a number of years consulting on how to update mental health legislation to keep pace with the growth of modern community-based services, to address concerns over public safety and to be compatible with obligations under the European Convention on Human Rights. Wide consultation took place about the 2004 draft Bill but the Government has taken into account concerns over the length and complexity of the earlier draft as well as pressures on parliamentary time, and so today has committed to introducing a shorter, streamlined Bill which will be easier for clinicians to use and less costly to implement.


Rosie Winterton said:


“Introducing supervised community treatment is a vital part of getting help to people who need it, supporting carers and protecting the wider public.


“This new approach will fulfil our commitment to delivering modern mental health services via a streamlined Bill which will be simpler to understand and less costly to implement than previous proposals.”

Notes to editor

1. Media enquiries only to Victoria MacCallum on 020 7210 5724. All other enquiries should be directed to the Public Enquiry Office on 020 7210 4850.


2. The new Bill, which will be introduced when Parliamentary time allows, will:

  • introduce supervised treatment in the community for suitable patients following an initial period of detention and treatment in hospital. This will help ensure that patients continue to comply with treatment and enable action to be taken to prevent their relapsing in the community.. The introduction of treatment in the community reflects modern service provision enabling patients to be treated according to their individual needs and circumstances.
  • expand the skill base of professionals who are responsible for the treatment of patients treated without their consent.
  • improve patient safeguards by taking order-making powers with regard to the Mental Health Review Tribunal. We are currently considering across government the precise terms of the changes, and will continue to consult with stakeholders.
  • reflect a widespread consensus and the views of the Joint Committee and will introduce a new, simplified single definition of mental disorder to ensure that people who require treatment to prevent harm to themselves or others are able to receive it.
  • replace the “treatability test” (which currently results in some people with personality disorder being inappropriately excluded from the treatment they need)
  • keep, as recommended by the Joint Committee, the exclusion for drug and alcohol dependency, and preserve the effect of the Act as it relates to people with learning disabilities.
  • amend the current Act to remedy an ECHR incompatibility in relation to the Nearest Relative. At the same time, we will bring the Act into line with the Civil Partnership Act 2004 in relation to the Nearest Relative provisions.
  • The Bill will be used as the vehicle for introducing the Bournewood safeguards, through amending the Mental Capacity Act 2005. These safeguards are for people who lack capacity and are deprived of their liberty but do not receive mental health legislation safeguards.
  • We will address safeguards for children treated on the basis of parental consent through the Children Act 1989. Children detained under the Mental Health Act will continue to receive the same safeguards as adults. We will also look at ways that we can continue to pursue other patient safeguards, such as advocacy, through other means.

A government announcement on the future of the proposed mental health bill is expected this week, communitycare.co.uk has learned.


Posted: 21 March 2006 | Full Article

section 136

Joint Committee on the Draft Mental Health Bill Written Evidence

Memorandum from M Telfer (DMH 416)


With regards to the Draft Mental Health Bill, I see the Police Federation, are not giving oral evidence to the Scrutiny Committee.


Surely it is vital that you hear from the Police, this Bill will have huge repercussions on them, and the Public.


An increase in the use of 136 sections will be inevitable. (This is of great concern to me having been 136 sectioned. My first and thankfully only encounter to an incredibly frightening system.)


Should this Bill go through far more resources are required. For instance I am aware that cadets In West Kent are only given an hour and a half of diversity training. This is nowhere nearly sufficient, if this Bill goes through we must have an intensive training for not only cadets but for all our bobby's on the beat.


Are the Police preparing for the rise in 136 sectioning, and is it possible to track down the figures for these sort of detentions. I believe that they are held by the Home Office. This must have been researched, so could we get the prediction figures for the next few years? As we should be prepared for the true impact of this Bill.


Miranda Telfer


October 2004