In focus: The Government response to the Joint Parliamentary Committee Report on the draft Mental Health Bill
Last week the Government published its response to the Joint Parliamentary Committee Report on the Draft Mental Health Bill. Here Welsh Mental Health charity Hafal looks more closely at some of the key responses to the Committee’s recommendations…
• Service provision
The Committee report said that the legislation should be about improving services.
The Government took issue with this, stating that the Bill is not about service provision, but about the legal processes for bringing people under compulsion. The Government argues that steps are being taken to improve services through means such as implementing the National Service Framework (NSF) and the Designed for Life strategy, and that the Bill is not the place to address this.
Hafal’s view: We have seen in Wales that having a National Service Framework and strategies for improving mental health services does not automatically translate into better services; indeed, the NSF for adult mental health services in Wales has not been implemented in a timely or consistent manner across the country. So we do not agree with the Government that service improvement can be entrusted to these processes. A Bill that is so focused upon confining patients should be balanced with a focus upon improving services for patients.
• Patients’ rights
The Committee said to the Government that the Bill places too much emphasis on public safety and not enough on patient rights.
The Government has firmly disagreed, criticising the Committee for not taking sufficient evidence from those who protect the public. The Government believes that the Bill achieves the right balance between the rights of individuals and the need to prevent harm.
Specifically the Government states that it believes it is in patients’ interest to bring them under compulsion if their mental disorder is so serious that they represent a serious risk to themselves or others, and that they will not be brought under compulsion inappropriately under the terms of the Bill. They also point out that the Bill introduces a new range of safeguards for patients, such as rights to advocacy and rights to choose a nominated person.
Hafal’s view: Everybody understands that compulsion is needed as a last resort, mainly to ensure the safety of those who become seriously vulnerable because of their illness. But, as it stands, the Bill makes it too easy for a large number of people to receive compulsory treatment – even if they have done nothing to warrant detainment. Effectively the Bill would subject a number of patients to a distressing and disruptive experience when evidence shows that only a very small minority of people with mental illness pose any risk to the public. Again, the balance of the Bill is too much towards compulsion, without taking the right of patients into account.
The Committee stated that although they thought the Government should retain the definition of mental disorder contained in the current draft, they believed that the scope should be narrowed so that the legislation could not be used inappropriately as a means of social control.
Specifically they recommended that specific exclusions on the basis of:
• substance misuse (alone)
• sexual orientation
and that an extra condition is met in the case of people with learning disabilities and communicative disorders.
The Government agreed that in the case of substance misuse an exclusion is required in the Bill, as this will ensure that the Bill does not encompass the compulsory treatment of people whose only mental disorder is dependency on alcohol or drugs.
However, the Government believed that an exclusion on the grounds of sexual orientation was unnecessary. Furthermore they did not agree that an additional condition for people with learning disabilities and communicative disorders was needed as, they argue, it is the effect, not the diagnosis, that should determine whether compulsory treatment is necessary or justified.
Hafal’s view: We acknowledge the Government’s concession on substance misuse. It would have been inappropriate for this group to come under the scope of the Bill. However, we are still not reassured that the Government has gone far enough in restricting the scope of the legislation which should only be applicable to people with a mental illness.
• Therapeutic benefit
The Committee recommended that there should be a therapeutic benefit to any compulsory treatment, and that those with serious mental disorders who cannot benefit from treatment should be dealt with under separate legislation.
The Government did not agree that there was a need for separate legislation in addition to criminal law, and did not agree that compulsion should be limited to patients whose condition could be improved; in fact, they acknowledged that in some cases treatment might need to be given even when it was unlikely to improve health or prevent illness from worsening.
Hafal’s view: We are dismayed that the Government could consider that compulsory treatment that is not therapeutic is acceptable. What the Government is creating is a convenient way to detain people even when those people could not benefit from it. Non-therapeutic treatment is self-contradictory and, we believe, unjustifiable.
• Community Treatment Orders
The Committee recommended that the use of non-residential treatment under compulsion should be limited to a clearly defined and clinically identifiable group of patients, such as patients who frequently relapse.
They also stated that there should be a maximum time limit for treatment under a non-residential order – certainly of not more than three years in any five-year period.
The Government agreed that groups of patients initially eligible for assessment and treatment in the community needed to be clearly defined in legislation. However, they did not agree that there should be a restriction on which patients may be non-resident as this would discriminate against those resident patients whose condition had improved to the point where, although they still required treatment, they no longer needed to be detained as resident patients.
Hafal’s view: We think that the group of people for whom non-residential treatment is appropriate should be clearly specified in the Bill. This would prevent community treatment orders being given to people who would be better off being treated in hospital.
• Reciprocal rights
The Committee recommended that service users have the right to ask for an assessment of their need for mental health care as a resident or non-resident patient, and that the authorities be required to justify in writing any decision to decline such voluntary assessment.
The Government stated that it would not agree to imposing specific requirements to carry out assessments within the Bill, as it was up to the NHS to ensure the quality and timeliness of services. It was pointed out that the Welsh National Service Framework covers the need for individuals to have their needs assessed and receive appropriate treatment and support.
Hafal’s view: If severe mental illnesses like schizophrenia are treated early, patients are far less likely to become very ill and end up needing to be subject to compulsion. It also means that their illness is better managed from an early stage. A right to early treatment would prevent the need for compulsion in many cases. This is a missed opportunity to reduce the need for compulsion; it is also fundamentally unjust to apply compulsion to people who have done no wrong without giving them compensating rights.
• Nominated Person
The Committee recommended that the nominated person should have broadly the same rights and powers currently exercised by the nearest relative under the 1983 Act.
The Government did not agree to this, stating that as the safeguards in the Bill are constructed differently to the 1983 Act, the nominated person need not be given the rights of the nearest relative. For instance, under the Bill the clinical supervisor has the ongoing duty of reviewing whether conditions continue to be met.
Hafal’s view: One of the key benefits of the Nearest Relative provisions in the 1983 Act was the ability it gave carers to resist the imposition of compulsion in the first instance: this vital safeguard is largely compromised in the proposed Bill. The proposed limited rights for carers to be informed and consulted are insufficiently rigorous being subject to qualifications of appropriateness and practicability.
• Wales services
The Committee concluded that the standard of mental health services in Wales must be at least as good as it is now in England before the provisions in the draft Bill can be implemented. Resources should be allocated in order to enable the service to be brought up to the English standard.
The Government responded by pointing out that responsibility for resource allocation in Wales lies with the National Assembly, and that the Assembly Government has invested in improving mental health services as well as making mental health one of the top health priorities. It did not state that the standard of mental health services in Wales must be at least as good as it is now in England before the provisions in the draft Bill can be implemented.
Hafal’s view: Wales simply has not got the infrastructure to support this legislation. The Commission for Health Improvement has reported that Wales’ services are less developed than those in England. Very little of Wales’ National Service Framework has been implemented and there is no clear timetable for implementing many of the required standards. Wales has an acute shortage of psychiatrists and other key human resources; psychology services are also seriously under-resourced.
Implementation of this Bill, which requires a marked increase in Tribunals, would have the effect in Wales of diverting already scant resources away from timely and effective services into the management of the legal process: this in turn would mean more people deteriorating to the point where compulsion was necessary. The Government has dismissed this in its responses.
Plans to introduce the Mental Health Bill into Parliament in this session were announced in the Queen’s Speech. The government is now redrafting the Bill to take account of changes to be made following consideration of the Committee’s report.
Despite the Government’s plans, Hafal will continue to fight to amend the Bill. Our Members are more determined than ever to put their points across, particularly with regard to services in Wales which are insufficient to cope with the demands of the current draft of the Bill. Hafal now calls on Welsh MPs and Lords to press for constructive amendments to the Bill when it is introduced.