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Post-Legislative Scrutiny of the Mental Health Act 2007

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Post-Legislative Scrutiny of the Mental Health Act 2007 House of Commons Health Committee Post-legislative scrutiny of the Mental Health Act 2007 First Report of Session 2013–14 Report, together with formal minutes, oral and written evidence Ordered by the House of Commons to be printed 10 July 2013 HC 584 Incorporating HC 997-i–ii, Session 2012–13 Published on 14 August 2013 by authority of the House of Commons London: The Stationery Office Limited £14.50 The Health Committee The Health Committee is appointed by the House of Commons to examine the expenditure, administration, and policy of the Department of Health and its associated bodies. Membership Rt Hon Stephen Dorrell MP (Conservative, Charnwood) (Chair)1 Rosie Cooper MP (Labour, West Lancashire) Andrew George MP (Liberal Democrat, St Ives) Barbara Keeley MP (Labour, Worsley and Eccles South) Charlotte Leslie MP (Conservative, Bristol North West) Grahame M. Morris MP (Labour, Easington) Andrew Percy MP (Conservative, Brigg and Goole) Mr Virendra Sharma MP (Labour, Ealing Southall) David Tredinnick MP (Conservative, Bosworth) Valerie Vaz MP (Labour, Walsall South) Dr Sarah Wollaston MP (Conservative, Totnes) Powers The Committee is one of the departmental select committees, the powers of which are set out in House of Commons Standing Orders, principally in SO No 152. These are available on the Internet via www.parliament.uk. Publications The Reports and evidence of the Committee are published by The Stationery Office by Order of the House. All publications of the Committee (including press notices) are on the Internet at www.parliament.uk/healthcom. The Reports of the Committee, the formal minutes relating to that report, oral evidence taken and some or all written evidence are available in printed volume(s). Additional written evidence may be published on the internet only. Committee staff The staff of the Committee are David Lloyd (Clerk), Martyn Atkins (Second Clerk), Stephen Aldhouse (Committee Specialist), Frances Allingham (Senior Committee Assistant), and Ronnie Jefferson (Committee Assistant). Contacts All correspondence should be addressed to the Clerk of the Health Committee, House of Commons, 7 Millbank, London SW1P 3JA. The telephone number for general enquiries is 020 7219 5466. The Committee’s email address is [email protected]. 1 Mr Stephen Dorrell was elected as the Chair of the Committee on 9 June 2010, in accordance with Standing Order No. 122B (see House of Commons Votes and Proceedings, 10 June 2010). Post-legislative scrutiny of the Mental Health Act 2007 1 Contents Report Page Summary 3 1 Introduction 6 Post-legislative scrutiny 6 Background to the 2007 Act 6 2 The Appropriate Treatment Test, Community Treatment Orders and detention 9 Impact of the 2007 Act 9 Growth in detention 10 Impact of Community Treatment Orders on detention 10 Availability of beds in psychiatric wards 11 Detention in place of voluntary admissions 11 Availability of community services 13 Parity of esteem 13 3 Independent Mental Health Advocates 15 Access to advocacy 15 Responsibilities of clinicians 16 Commissioning and funding 17 The role and function of advocates 18 4 Places of safety 20 Background 20 Hospital-based places of safety 20 Use of police custody 21 Detention of children under Section 136 22 5 Supervised Community Treatment 23 Purpose of the legislation 23 ‘Revolving door’ patients 24 Effectiveness of community treatment orders 25 Variation in the use of CTOs 26 Effect of financial pressures on clinical decisions 28 6 Interaction with the Mental Capacity Act 2005 29 Deprivation of liberty safeguards 29 Implementation of the safeguards 30 Clinical responsibility 30 Urgent need for action 31 7 Ethnicity and the use of the Mental Health Act 33 Disproportionate representation of minority ethnic groups 33 Effect of the 2007 Act 34 2 Post-legislative scrutiny of the Mental Health Act 2007 Conclusions and recommendations 36 Formal Minutes 41 Witnesses 42 List of printed written evidence 42 List of Reports from the Committee during the current Parliament 43 Post-legislative scrutiny of the Mental Health Act 2007 3 Summary The Mental Health Act 2007 (the 2007 Act) amended and updated the Mental Health Act 1983 (the 1983 Act), which remains the cornerstone of mental health legislation in England. The measures in the 2007 Act were proposed to reflect the changing way in which patients with mental health problems can be treated and cared for. Its provisions more accurately reflect the range of professions that work with patients and the desire to provide as much care as possible within communities, rather than in hospital. A single definition of mental disorder was included in the 2007 legislation in order to incorporate conditions which the original legislation did not properly account for. A new ‘appropriate treatment test’ was established by the 2007 Act with the purpose of ensuring that patients are only detained if treatment appropriate to their condition is available. It is striking that the implementation of the test coincided with a substantial increase in the detained patient population, but there is insufficient evidence to identify a causal relationship between the test and detention. The Department of Health does not appear to have clear understanding of the factors driving increased detention, particularly in relation to failures in community treatment and the readmission of patients. Over the course of this inquiry the Committee learnt of severe pressure on beds, with some wards running at over 100% occupancy. It is now acknowledged that there appears to be an inverse relationship between the number of available beds and rates of detention. The most worrying consequence of this was the suggestion that voluntary admissions to psychiatric wards are now so difficult to access that patients are being sectioned to secure treatment in hospital. The Committee is very concerned that clinicians would resort to a practice which represents a major infringement of a patient’s civil liberties. In the Committee’s view, the Department of Health should urgently investigate whether patients have been sectioned in order to access psychiatric units and report to Parliament on the prevalence of this practice. Coupled with this, the Committee also heard reports that patients who manage to access treatment voluntarily are subject to ‘de facto detention’, whereby they are detained under section if they seek to leave hospital. It appears that this practice is not extensive within the mental health system; nonetheless, the Committee regards it as completely unacceptable. We believe that the professional regulators should review their advice to clinicians regarding the use of sectioning powers. This review should make it absolutely clear that sectioning in place of voluntarily admission is never acceptable, that patients must be made aware that they have the right to discharge themselves unless they are detained under a properly authorised section, and that all clinicians have a duty to highlight concerns if they believe these principles are being breached. The Department of Health has emphasised the importance of ‘parity of esteem’ in the commissioning and delivery of services for mental health patients. In practice this means that the care needs of mental health patients should have equal priority to the needs of patients who require physical healthcare. This is a welcome principle, but evidence we received suggested that the behaviour of commissioners is not consistent with it. The Committee heard that community mental health services are vulnerable to cuts and that commissioners find it easier to cut mainstream mental health services because of the way 4 Post-legislative assessment of the Mental Health Act 2007 in which they are commissioned through block contracts. For ‘parity of esteem’ to be meaningful the Department of Health must encourage the development of commissioning and payment systems which reflect this objective and do not make mental health services vulnerable to cuts by local commissioners. Under the 2007 Act, detained patients and those subject to community treatment have the right to be supported by an Independent Mental Health Advocate (IMHA). An independent advocate who helps patients make best use of their rights is an important provision, and the Committee believes that this aspect of the legislation has improved the safeguards available to patients. Nevertheless, it is clear that there is substantial variation in access to IMHAs across the country. Similarly, research suggests that the more a patient needs an independent advocate the less likely they are to find one that can meet their requirements. The Committee therefore recommends that rather than being an opt-in service, patients should be allocated an IMHA unless they decide to opt-out. Local authorities are responsible for commissioning advocacy services and therefore ensuring equity of access and quality. The Committee believes that Health and Wellbeing Boards should ensure that high quality advocacy services are being delivered. The Committee was told that the presence of IMHAs had resulted in clinicians retreating from their duty to inform patients of their rights and to help patients take advantage of them. Whilst the Committee regards IMHAs as a valuable supplement to support patients, clinicians should lead in helping patients to understand and make best use of their rights. Section 136 of the 1983 Act gives police officers the right to remove from a public place to a place of safety a person who they believe to be suffering from mental disorder. The 2007 Act amended this power so that patients taken into police custody can be conveyed to a hospital which, evidently, is a more appropriate place of safety. The Committee found no cause for concern with the power to convey, but the extent to which it has been used and its impact on patients is unclear. An independent assessment of the power should be commissioned by the Department of Health to ensure that the legislation is working as intended. In examining this aspect of the legislation the Committee found that detentions under section 136 of the Mental Health Act have grown considerably.
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