Mental Health Act 2007

Post-legislative assessment of the Mental Health Act 2007

Memorandum to the Health Committee of the House of Commons

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Presented to Parliament by the Secretary of State for Health by Command of Her Majesty July 2012

Cm 8408 £16.00

9133-TSO-DH-Post-legislative assessment.indd 1 11/07/2012 19:44 © Crown copyright 2012 You may re-use this information (excluding logos) free of charge in any format or medium, under the terms of the Open Government Licence. To view this licence, visit http://www.nationalarchives.gov.uk/doc/open-government-licence/or e-mail: [email protected]. Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned. Any enquiries regarding this publication should be sent to us at Customer Service Centre, Department of Health, Richmond House, 79 Whitehall, London SW1A 2NS. This publication is available for download at www.official-documents.gov.uk This document is also available from our website at www.dh.gov.uk ISBN: 9780101840828 Printed in the UK for The Stationery Office Limited on behalf of the Controller of Her Majesty’s Stationery Office ID P002501139 07/12 Printed on paper containing 75% recycled fibre content minimum.

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Introduction 2 Objectives of the Mental Health Act 2007 2 Other post-legislative reviews 3 Implementation of the Mental Health Act 2007 3 Preliminary assessment of the effects of the key elements of the Mental Health Act 2007 4 Single definition of mental disorder 4 Appropriate medical treatment: The Appropriate Treatment Test 5 Guiding principles 6 Professional roles 7 Nearest relatives’ rights 8 Independent mental health advocacy 8 Supervised community treatment (community treatment orders) 11 Places of safety 17 Age-appropriate accommodation 20 Deprivation of Liberty Safeguards (Mental Capacity Act 2005) 20 Victims’ rights (Domestic Violence, Crime and Victims Act 2004) 24 Next steps 25 Annexes: Annex A: Overview of when sections of the Mental Health Act 2007 were enacted 26 Annex B: Secondary legislation 29 Annex C: Materials Produced to Support Implementation 31

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1. This memorandum provides a preliminary Domestic Violence, Crime and Victims Act assessment of the Mental Health Act 2004. 20071 and has been prepared by the Department of Health for submission to Summary of changes the Health Committee of the House of 4. The following are the main amendments Commons. It is published as required by to the 1983 Act made by the Mental the process set out in the document Post- Health Act 2007: legislative Scrutiny – The Government’s approach (CM7320).2 • Introduction of a single definition of mental disorder (Section 1 and 2. This assessment does not cover aspects of Schedule 1). the Mental Health Act 2007 which are • Introduction of a new definition of within the legislative competence of the appropriate medical treatment (Sections devolved administrations. 4 to 7). Objectives of the Mental Health Act • The introduction of guiding principles 2007 into the Mental Health Act 1983 Code of Practice (Section 8). 3. The legislation governing the compulsory treatment of certain people who have a • Broadening the range of professions who mental disorder is the Mental Health Act can take on specific professional roles in 1983 (referred to in this assessment as relation to the 1983 Act (Sections 9 to 16 the 1983 Act). The main purpose of the and 18 to 21). Mental Health Act 2007 was to amend • Changes to provisions on the nearest the 1983 Act in a number of areas, where relative (Sections 23 to 25). it was generally agreed reform was needed. The Mental Health Act 2007 also • Introducing requirements for independent introduced “deprivation of liberty mental health advocacy: it places a duty safeguards” through amending the on the Secretary of State to make Mental Capacity Act 2005; and extended arrangements for help to be provided by the rights of victims by amending the independent mental health advocates (Section 30). • Introducing requirements for age- 1 Mental Health Act 2007 http://www.legislation.gov. appropriate services so that patients aged uk/ukpga/2007/12/contents 2 Post-legislative Scrutiny – The Government’s under 18 admitted to hospital for mental approach http://www.official-documents.gov.uk/ disorder are accommodated in an document/cm73/7320/7320.asp

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environment that is suitable for their age 7. The Mental Health Alliance published The (subject to their needs) (Section 31). Mental Health Act 2007: a review of its implementation4 in June 2012. • Introduction of supervised community treatment (SCT) for patients following a 8. Since 2009, the Care Quality Commission period of detention in hospital (Sections (CQC) has had a duty under the 1983 32 to 35 and Schedules 3 and 4). Act to monitor the implementation of the • New rights for victims of mentally Act (this was a role previously undertaken disordered offenders who are not subject by the Mental Health Act Commission). It to restrictions (this is an amendment to reported its latest findings in its Mental the Domestic Violence, Crime and Victims Health Act Annual Report 2010/11.5 Act 2004) (Section 48 and Schedule 6). CQC also has a duty to monitor Deprivation of Liberty Safeguards • Introduction of Deprivation of Liberty (DOLS),6 and published its second annual Safeguards to provide for procedures to report The operation of the Deprivation authorise the deprivation of liberty of a of Liberty Safeguards in England 2010/11 person resident in a hospital or care home in March 2012.7 who lacks capacity to consent (this is an amendment to the Mental Capacity Act Implementation of the Mental Health 2005) (Section 50). Act 2007 5. The Mental Health Act 2007 (the 2007 9. Most sections of the 2007 Act were Act) received Royal Assent on 19 July brought into force on 3 November 2008. 2007. An Impact Assessment for that Act Annex A provides more detail on when can be found on the Department of different parts of the Act were Health website.3 commenced.

Other post-legislative reviews 6. The Department of Health through the Policy Research Programme (PRP) and 4 Mental Health Alliance, The Mental Health Act 2007: the National Institute for Health Research a review of its implementation (May 2012) http://www.mentalhealthalliance.org.uk/news/ (NIHR) has funded a number of research MHA_May2012_FINAL.pdf studies which examine aspects of the 5 Care Quality Commission, Monitoring the Mental implementation of the 2007 Act and Health Act in 2010/11 http://www.cqc.org.uk/sites/ these are discussed in the relevant default/files/media/documents/cqc_mha_ sections of this assessment. report_2011_main_final.pdf 6 The Mental Capacity (Deprivation of Liberty: Monitoring and Reporting and Assessments – Amendment) Regulations 2009 http://www. legislation.gov.uk/uksi/2009/827/contents/made 3 Mental Health Bill regulatory impact assessment: 7 Care Quality Commission, The operation of the revised version (June 2007) http://www.dh.gov.uk/ Deprivation of Liberty Safeguards in England en/publicationsandstatistics/Legislation/ 2010/11(2012) http://www.cqc.org.uk/sites/default/ Regulatoryimpactassessment/DH_076477 files/media/documents/dols.pdf

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Single definition of mental disorder 13. Section 3 of the 2007 Act further Overview of provisions simplified the definition by substituting a single exclusion in place of a number of 10. The Mental Health Act 2007 introduced a exclusions. The single exclusion states single definition of mental disorder. that dependence on alcohol or drugs is Before the introduction of this definition, not considered to be a disorder or the 1983 Act required clinicians to place disability of the mind (ie a mental patients subject to the Act into one of disorder) for the purposes of section 1(2) four categories of mental disorder, of the 1983 Act (the definition of mental namely mental illness, mental impairment, disorder). psychopathic disorder and severe mental impairment. Some provisions in the 1983 Implementation Act did not apply to people in some of 14. The Department is not aware of any these categories. This led to difficulties as practical concerns about the introduction some mental disorders did not fall of the single definition of mental disorder. obviously into any of the categories. The Department acknowledges, however, the issue that someone with a learning 11. Section 1 of the 2007 Act abolished the disability who displays “abnormally categories and replaced them with a aggressive or seriously irresponsible single definition of mental disorder: behaviour” may be displaying such ‘“mental disorder” means any disorder behaviour in an attempt to communicate or disability of the mind’. that they have a problem such as physical pain or fear, rather than as a result of the 12. To ensure that the single definition does worsening of a mental disorder. The not result in people being detained solely Department recognises the importance of on the basis of learning disability, section mental health professionals being alert to 2 of the 2007 Act provides that (for this possibility when considering whether certain provisions of the 1983 Act) a someone with a learning disability should person cannot be considered to be be detained for treatment under the 1983 suffering from a mental disorder simply as Act. This is addressed in Chapter 34 of a result of having a learning disability, the Code of Practice, Mental Health Act unless that disability is “associated with 1983,8 which deals with issues of abnormally aggressive or seriously irresponsible conduct” on the part of the 8 Code of Practice: Mental Health Act 1983 (2008) person concerned. http://www.dh.gov.uk/en/Publicationsandstatistics/ Publications/PublicationsPolicyAndGuidance/ DH_084597

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particular relevance to patients with “treatability” test with a new appropriate learning disabilities, autistic spectrum treatment test. disorders or both. However, CQC inspections following the BBC Panorama 17. The former so-called “treatability” test programme on 31 May 2011 about required the relevant decision-maker to Winterbourne View Hospital revealed determine whether medical treatment that a number of hospitals for people was “likely to alleviate or prevent with learning disabilities were not deterioration in the patient’s condition”. applying the good practice described in The test was felt to lead to some the Code of Practice. The Department’s significant problems. In some cases interim report9 recommends that when clinicians felt unable to detain people or the Code of Practice is updated following Tribunals felt obliged to discharge people the implementation of the Health and on the grounds that their disorder was Social Care Act 2012, the update of untreatable. It was felt some patients Chapter 34 should take account of the were being denied appropriate treatment findings of the review. and care, especially in the light of emerging evidence about treatments. 15. A multi-site assessment of the impact of the Mental Health Act 2007 (the AMEND 18. The 2007 Act introduced a new study), led by the University of Warwick appropriate treatment test which requires and commissioned and funded by the decision-makers to determine whether Department of Health Policy Research appropriate treatment is available for the Programme, is looking at the impact of person to be detained under the 1983 changes introduced in the Mental Health Act. The new test was intended to Act 2007, including the definition of support services which would pre-empt mental disorder. This will report in and help to manage behaviour rather July 2012. than react to behavioural breakdown. It also aimed to deal with the issue of Appropriate medical treatment: patients refusing to engage with The Appropriate Treatment Test treatment in the hope this would end Overview of provisions their detention. In addition its aim was to ensure that assessment and treatment 16. The 2007 Act changed the 1983 Act’s under the 1983 Act was for clear clinical definition of medical treatment, defining purposes and that it would not be used a new concept of “appropriate purely for preventive detention. The treatment” and replacing the definition of the new test was subject to considerable, constructive debate during the Parliamentary passage of the Mental 9 Department of Health Review: Winterbourne View Health Bill 2006. Hospital Interim Report (June 2012) http://www. dh.gov.uk/health/files/2012/06/Department-of- Health-Review-Winterbourne-View-Hospital-Interim- Report1.pdf

9133-TSO-DH-Post-legislative assessment.indd 5 11/07/2012 19:44 Implementation Guiding principles 19. The Department thought that the Overview of provisions appropriate treatment test might lead to 21. During the passage of the 2007 Act there a small increase in the number of people was considerable discussion about the detained under the 1983 Act but has importance of fundamental or guiding no anecdotal or statistical evidence to principles for the operation of the 1983 suggest that this has been the case. Act. It was suggested that they should be Nor does it have evidence of any spelt out in the primary legislation, but problems with the operation of the this risked possible, unpredictable conflicts new appropriate treatment test. between the principles and other provisions of the 1983 Act. It was finally 20. The AMEND study (see paragraph 15) agreed to include principles in the Code is examining the impact of the test by of Practice,10 which could take a more investigating how mental health flexible and practical approach. The professionals understand and interpret matters to be addressed in the Code, “appropriate medical treatment” as however, were listed in four new defined in the amended 1983 Act. The subsections which the 2007 Act inserted final report will be available in July 2012, into section 118 of the 1983 Act. but emerging findings in October 2011 showed that: Implementation

• Mental health professionals understand 22. The matters listed in the amended 1983 the appropriate treatment test and Act were distilled into five guiding recognise the change in definition which principles which were set out in Chapter allows treatment for disorders previously 1 of the Code of Practice and then used considered untreatable. throughout the Code of Practice to • For most professionals their practice illustrate how they might be applied to remains unchanged except that when decisions taken under the Act. The assessing patients, they now consider principles are: if appropriate treatment is available. • Purpose principle; • There is little evidence of disagreement • Least restriction principle; about the application of the appropriate treatment test between professionals. • Respect principle; • Clinicians have noticed little change in • Participation principle; and service provision since implementation • Effectiveness, efficiency and equity in 2008. principle.

10 Code of Practice: Mental Health Act 1983 (2008) http://www.dh.gov.uk/en/Publicationsandstatistics/ Publications/PublicationsPolicyAndGuidance/ DH_084597

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23. The statement of principles was drafted group of professionals, including nurses, following extensive consultation on the occupational therapists and certain Code of Practice. There have been no psychologists, is eligible to be approved legal challenges. They are intended to to be an approved mental health inform every decision made under the professional – as long as the individuals 1983 Act and improve the quality of have the right skills, experience and services for people who come under the training set out in regulations.11 provisions of that Act. Implementation

Professional roles 28. The Department does not collect Overview of provisions information on how many approved clinicians there are who are not medical 24. The 2007 Act made changes to allow a practitioners nor how many approved wider range of professionals to perform mental health professionals there are who certain roles which are central to the are not social workers. However, the 1983 Act. As modern mental health purpose of the change was not to require services increasingly involve a range of a different approach but to give flexibility professionals, this was an area where the to employers should they feel that the restrictions in the legislation could be a users of their services would benefit from barrier to the service a patient needed. a wider set of clinical expertise. A report in May 2012 of inspections of the 22 25. The 2007 Act introduced greater AMHP training courses in England found flexibility in who could undertake certain that of the 936 candidates who had roles. In particular, it replaced the role of completed their training since November the “responsible medical officer” (RMO) 2008, 84% were social workers and 15% with that of the “responsible clinician” nurses. The health professionals were and the role of the “approved social found to be as equally competent in the worker” with that of the “approved role as social workers.12 mental health professional” (AMHP).

26. The responsible clinician may now be any practitioner who has been approved for that purpose (an “approved clinician”). Approval need no longer be restricted to medical practitioners, and may be 11 Mental Health (Approved Mental Health extended to practitioners from other Professionals) (Approval) (England) Regulations 2008, SI 2008/1206 as amended http://www. professions, such as nursing, psychology, legislation.gov.uk/uksi/2008/1206/contents/made occupational therapy and social work. 12 General Social Care Council, GSCC targeted inspections of Approved Mental Health Professionals 27. Similarly with approved mental health (AMHP) in England (2011-12) (May 2012) http:// professionals, the role is no longer www.gscc.org.uk/news/97/GSCC-launches-report- on-Approved-Mental-Health-Professionals-(AMHP)- restricted to social workers. A wider courses.html

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29. The 2007 Act introduced a new right for 32. The changes introduced in the 2007 Act a patient to apply for an order to displace were designed in the interests of patients the nearest relative. It also changed the to give them more say on who could act requirement that the acting nearest as their nearest relative, and to ensure relative be, in the court’s opinion, a that those acting as nearest relatives “proper person” to act as the nearest were suitable. relative. It substituted a requirement that the person is, in the court’s opinion, a Implementation “suitable” person to act. 33. The Department considers that the changes have addressed the issues raised 30. The nearest relative has certain rights in in the challenge in the European Court connection with the care and treatment and is not aware of any further concerns of a mentally disordered patient under with the implementation of this part of the 1983 Act, including the right to apply the 2007 Act. for admission to hospital, the right to block an admission for treatment, the Independent mental health advocacy right to discharge a patient from compulsion and the right to certain Overview of provisions information about the patient. 34. Independent mental health advocates (IMHAs) were an aspect of the 2007 Act 31. The 1983 Act’s framework for the that attracted widespread support. The appointment of “nearest relatives” was 2007 Act puts a duty on the Secretary of founded upon a hierarchical list without State to make reasonable arrangements reference to patients’ own wishes over to ensure that IMHAs are available to whom amongst their family might be help qualifying patients. Qualifying considered for this role. This automatic patients are primarily those detained, or identification of “nearest relatives”, on a Community Treatment Order, coupled with the powers granted to subject to guardianship or on conditional persons who are so identified, was found discharge under the 1983 Act. in certain circumstances to be in breach Deliberately excluded are people detained of Article 8 of the European Convention under “short-term” sections because an on Human Rights, as a disproportionate IMHA service could not reasonably interference with the right to privacy and provide an “emergency response” family life. In response to the first service. Small numbers of other patients, challenge on such grounds to reach the such as those being considered for European Court (in March 2000),13 the psychosurgery and under-18s being Government promised to introduce the considered for electro-convulsive therapy

13 JT v UK [2000] 1FLR 909

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also qualify for independent mental allocations. Costs in the first year of health advocacy. implementation (2009/10) were estimated to be £7.64 million. 35. The 2007 Act enabled the making of regulations on IMHAs. These regulations14 37. Responsibility for commissioning IMHA set out requirements for the services falls on the PCT where the commissioning of IMHA services. There is patient is registered with a GP to avoid a requirement to take account of the placing an unfair burden on PCTs which “diverse circumstances” of qualifying have a disproportionate number of patients. There is also a requirement that psychiatric hospital beds in their area. contracts must require IMHA providers to This however caused complications for comply with the Regulations about who the funding of IMHA services for patients can be appointed as an IMHA. The 2007 placed out of area, in specialised services Act itself requires commissioners to have or independent hospitals. These issues regard to the principle that IMHAs have been dealt with pragmatically by should, as far as possible, be independent commissioners. of the people professionally involved in the patient’s treatment. The Regulations 38. The responsibility for commissioning also require that IMHAs must be able to IMHA services will transfer to Local act independently of both commissioner Authorities in April 2013 under the and provider. The IMHA Regulations also Health and Social Care Act 2012, and require that IMHAs have appropriate guidance will be issued to ensure that all training and/or experience, having regard qualifying patients have access to an to guidance.15 IMHA service.

Implementation IMHA training and national advocacy qualification Commissioning 39. The Department was instrumental in the 36. The duty to make arrangements for establishment of a national advocacy advocacy provision is currently delegated qualification. The qualification (which has to Primary Care Trusts (PCTs). PCTs both certificate and diploma levels) is commission advocacy services, typically awarded by City & Guilds, and training from specialist, voluntary sector, advocacy providers must be accredited by City & providers. The funding for IMHA services Guilds to offer it.16 It is a largely has been made available through PCT workplace-based qualification. There are 14 The Mental Health Act 1983 (Independent Mental four generic modules, and then a number Health Advocates) (England) Regulations 2008 of specialist modules, including two for SI2008/3166 http://www.legislation.gov.uk/ IMCAs (independent mental capacity uksi/2008/3166/contents/made advocates under the Mental Capacity Act 15 Department of Health, Standards: Appropriate Experience and Training http://www.dh.gov.uk/ prod_consum_dh/groups/dh_digitalassets/ 16 For further information, documents/digitalasset/dh_092056.pdf see www.cityandguilds.com/48098.html

9133-TSO-DH-Post-legislative assessment.indd 9 11/07/2012 19:44 2005) and one for IMHAs. Guidance on Quality the required qualifications and experience 42. Quality and accessibility of IMHA services for IMHAs (see paragraph 35) states that varies around the country. This has been IMHAs should normally have successfully shown consistently in reports in 2010 completed the IMHA module within a and 2011: year of being appointed. • the Mental Health Alliance Briefing Paper IMHAs’ access to records 3 (February 2011);19 40. The 2007 Act gives IMHAs (when acting • the CQC’s 2009/10 annual Mental as such) certain statutory powers to visit Health Act report20 found that 18% of and interview people, and to look at wards did not have access to IMHA patients’ records (with their permission, services. This figure had improved only if they have capacity to consent, slightly in the 2010/11 report21 to 15% otherwise if the record holder thinks it of wards. appropriate). This led to questions about whether IMHAs could see parts of 43. Following the implementation of IMHA patients’ records which would be services the Department of Health Policy withheld from patients themselves and, Research Programme commissioned and if so, whether they could share them funded an independent review of the

with patients. Concerns about patient quality of IMHA services undertaken by confidentiality meant that the the University of Central Lancashire. Department issued supplementary This is, in part, an evaluation of the implementation of IMHA services, but the guidance.17 main aim of the study was to understand Additional support – Action for Advocacy the characteristics of a good quality project IMHA service.

41. The Department gave Action for Advocacy (A4A) a three year Third Sector Investment Grant of £195,000 from 2010-11 to 2012-13 to provide a central support and development resource for IMHA providers. This includes a 19 Mental Health Alliance, Briefing Paper 3 Independent telephone helpline and facilitating Mental Health Advocacy www.mentalhealthalliance. 18 regional IMHA forums. org.uk/news/pr_imha_report.html 20 Care Quality Commission, Monitoring the Mental 17 Independent mental health advocates: supplementary Health Act 2009/10 http://www.cqc.org.uk/sites/ guidance on access to patient records under section default/files/media/documents/cqc_monitoring_the_ 130B of the Mental Health Act 1983 (2009) use_of_the_mental_health_act_in_200910_main_ http://www.dh.gov.uk/en/Publicationsandstatistics/ report_tagged.pdf Publications/PublicationsPolicyAndGuidance/ 21 Care Quality Commission, Monitoring the Mental DH_098828 Health Act in 2010/11 http://www.cqc.org.uk/sites/ 18 For more on the project, see www.actionforadvocacy. default/files/media/documents/cqc_mha_ org.uk/articleServlet?action=list&articletype=73 report_2011_main_final.pdf

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44. This study commenced in 2010 and the Act were aimed at allowing some patients final report The Right to be Heard was with a mental disorder to live in the published on 21 June 2012.22 community whilst still being subject to recall and certain powers under the 1983 45. The overarching conclusion of this report Act. Only those patients who are is that ‘when people get access to these detained in hospital for treatment23 are advocacy services they really appreciate eligible to be considered for SCT. In order them but there are specific problems for for a patient to be placed on SCT, various access for black and minority ethnic criteria need to be met, and an AMHP communities, and older people’. The needs to agree that SCT is appropriate. report considers that some of these Patients who are on SCT are subject to challenges reflect the way services conditions whilst living in the community. have developed. Most conditions depend on individual circumstances but the SCT must be for 46. The report recommends that all people the purpose of ensuring the patient detained under the 1983 Act should be receives appropriate medical treatment automatically referred to IMHA services which is necessary for their health or with the option of opting out. It finds safety or for the protection of others. that this may overcome the problems of Such conditions form part of the patient’s access for particular groups. community treatment order (CTO) which is made by the responsible clinician. 47. The recommendations of the report, Patients on SCT must be able to be including better assessment of local need recalled to hospital for treatment should to respond to diversity, will be considered this become necessary. Afterwards they as part of the handover of responsibility may then resume living in the community for commissioning IMHA services to local with SCT or, if they need to be treated as authorities. This will be a good an in-patient again, their responsible opportunity to apply the findings from clinician may revoke the CTO and the this research more generally to improve patient will remain in hospital for the the quality and accessibility of IMHA time being. services. 49. SCT differs from after-care under Supervised community treatment supervision, which it replaced, in that it (community treatment orders) allows patients who do not need to be Overview of provisions treated in hospital to be discharged into the community, but with powers of recall 48. The supervised community treatment to hospital if necessary. It is different (SCT) provisions introduced in the 2007 23 This includes patients who are subject to a hospital 22 The Right to Be Heard Review of the Quality of order or guardianship order under Part 3 of the 1983 Independent Mental Health Advocate (IMHA) Act (which deals with mentally disordered offenders Services in England (2012) www.uclan.ac.uk/schools/ and defendants in criminal proceedings) who are not school_of_health/the_right_to_be_heard.php also subject to a restriction order or direction.

9133-TSO-DH-Post-legislative assessment.indd 11 11/07/2012 19:44 from leave of absence under section 17 drawn. There are a number of sources of of the 1983 Act, which is primarily meant data and a detailed research study which for patients where there is reason to will become available in the next 12 believe that the patient will need further months, which will allow further review in-patient treatment as a detained and evaluation. patient. Leave of absence will therefore be suitable to give shorter term leave 52. The issues and concerns which have from hospital as part of the patient’s emerged since November 2008 when overall management as a hospital patient. CTOs were introduced are: • Appropriateness of CTOs for all the 50. SCT is a clinical decision, only the patients who are on them patient’s responsible clinician can discharge them onto SCT from detention • Length of CTO (and only then with the agreement of an • Equality aspects AMHP). A Tribunal can recommend the responsible clinician to consider SCT, but • Quality and outcomes cannot put a patient on SCT itself. CTO • Safeguards for patients on CTOs conditions are not enforceable: responsible clinicians can include • Section 5 holding powers “conditions” in CTOs (eg about treatment or where the patient is to live) Use of CTOs which patients are expected to comply 53. One of the objectives of the CTO with, but those conditions are not directly provisions was to help tackle the enforceable. With two exceptions patients “revolving door” syndrome of patients cannot be recalled to hospital just being detained, discharged, disengaging because they have breached their CTO from treatment and then being detained conditions. The only exception are the again. The view was that SCT should be two mandatory conditions in all CTOs, used wherever it was necessary. That which allow patients to be recalled to be could mean using it to prevent people examined by the responsible clinician to getting into the “revolving door” cycle, comply with the rules on extending as well as removing people from it. CTOs, and by second opinion appointed During the passage of the 2007 Act, the doctors (SOADs). Government resisted attempts to amend the criteria to make SCT apply only to Implementation patients with a history of non-compliance 51. The introduction of CTOs was with their treatment. controversial and a number of issues and concerns continue to be raised about 54. Some commentators have asked why them. They have not yet been in place SCT is being used for people “it was long enough for there to be sufficient not intended for”, for example CQC’s evidence for robust conclusions to be 2009/10 annual report questioned the

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number of SCT patients who do not have Table 1: Use of CTOs, 2008/09 to 2010/11 24 a history of non-compliance and this Year Number of Number of concern has been repeated in the Mental CTOs revocations Health Alliance’s recent report.25 These and comments may be a misunderstanding of discharges the original intention of the 2007 Act November 2008/ 2,134 176 which was that SCT should be available March 2009 to support “modern provision of mental (5 months health services, where treatment is based operation) in the community rather than in 2009/10 4,103 1,789 hospital”.26 2010/11 3,834 2,185 Length of CTO Table 2: Numbers of people subject to a CTO 55. There have also been questions about on 31 March, 2009 to 2011 how long a CTO should last. The 2007 Year Male Female Act intended that this should depend on the individual patient’s needs. For some 31 March 2009 1,178 577 people, a brief period of SCT might be all (after five months of operation) that is needed to enable them successfully to re-establish their life in the community, 31 March 2010 2,109 1,216 while for others, it might be necessary on 31 March 2011 2,712 1,579 a long-term basis to help reduce the From CQC Annual Report28 chances of them relapsing. Equality Aspects 56. Currently the Department of Health only has data on the use of CTOs for the 57. There is long standing concern about the period from November 2008 until March disproportionate numbers of people from 2011 (the latest data available). minority ethnic groups, particularly Black Caribbean, Black African and other Black groups, using in-patient mental health services and detained under the 1983 24 Care Quality Commission, Monitoring the Mental Act. Consideration of early data24,27 Health Act 2009/10 http://www.cqc.org.uk/sites/ suggested that Black and Black British default/files/media/documents/cqc_monitoring_the_ were over represented amongst people use_of_the_mental_health_act_in_200910_main_ on SCT, and that more patients from report_tagged.pdf 25 Mental Health Alliance, The Mental Health Act 2007: a review of its implementation (May 2012) 27 NHS Information Centre Mental Health Bulletin – http://www.mentalhealthalliance.org.uk/news/ Fifth report from Mental Health Minimum Dataset MHA_May2012_FINAL.pdf (MHMDS) annual returns, 2011 http://www.ic.nhs. 26 Mental Health Bill regulatory impact assessment: uk/statistics-and-data-collections/mental-health/nhs- revised version (June 2007) http://www.dh.gov.uk/ specialist-mental-health-services/mental-health- en/publicationsandstatistics/Legislation/ bulletin--fifth-report-from-mental-health-minimum- Regulatoryimpactassessment/DH_076477 dataset-mhmds-annual-returns-2011

9133-TSO-DH-Post-legislative assessment.indd 13 11/07/2012 19:44 Black and minority ethnic (BME) groups mental health services. There needs to be than might be expected were placed on more detailed understanding of the a CTO in 2009/10. However, further experience of different population groups analysis of the latest data shows a more at each part of the pathway into and complex picture with CTO rates higher through mental health services. Since than average for Black Caribbean and patients can only be on CTOs following Black African groups and slightly higher detention under section 3 or section 37 for Other Black groups,28 with different of the Mental Health Act 1983, patterns of use of the 1983 Act for these consideration of the use of CTOs in BME three groups. Table 1 in the CQC report groups will be part of the wider work on gives further detail on the use of the equality in mental health services which is Mental Health Act 1983 (including CTOs) being undertaken as part of the for people from a range of Black and Government’s Mental Health Strategy, minority ethnic groups in 2010/11. No health without mental health (2011).

58. Greater understanding is needed about Quality and outcomes for SCT patients the factors that lead to the variations that 60. The CQC report Monitoring the Mental exist between the proportions of some Health Act 2010/1130 raises issues about ethnic groups detained under the 1983 the quality of care planning and support Act, which is reflected in the population for SCT patients: on CTOs. CQC recommend that comparative provider level data on use • SCT patients who had a more positive of the Mental Health Act is made public, approach to their treatment on a CTO including (where possible) standardisation almost invariably felt supported by and by age, gender and ethnicity to inform involved in their care plans. Conversely local monitoring and service patients who were poorly involved in development.28 their care planning tended to regard their CTO simply as a way for doctors to 59. The Mental Health Alliance report29 enforce their compliance. The CQC found highlights the considerable debate and that not only had these patients not had disagreement over the complex mix of their rights and choices explained to factors which leads to the them, but the experience and outcome of disproportionate representation of black the CTO is likely to be poor. and minority ethnic groups throughout • The CQC continued to find evidence that the legal powers of CTOs were 28 Care Quality Commission, Monitoring the Mental misunderstood within some mental health Health Act in 2010/11 http://www.cqc.org.uk/sites/ providers; an issue first identified in the default/files/media/documents/cqc_mha_ report_2011_main_final.pdf 29 Mental Health Alliance, The Mental Health Act 2007: 30 Care Quality Commission, Monitoring the Mental a review of its implementation (May 2012) http:// Health Act in 2010/11 http://www.cqc.org.uk/sites/ www.mentalhealthalliance.org.uk/news/MHA_ default/files/media/documents/cqc_mha_ May2012_FINAL.pdf report_2011_main_final.pdf

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Annual Report for 2009/10. The Annual that an SCT patient could not be given Report for 2010/11 recommends that: specified treatments unless a second ‘Providers should ensure that all staff who opinion appointed doctor (SOAD) had care for patients subject to CTOs certified on a statutory form that the understand the scope and limitation of treatment was appropriate in the patient’s this power. Any instance of unlawful case. This is known as the “certificate treatment should be investigated... and requirement”. patients should be offered due recourse if necessary’.31 64. When SCT was introduced, a SOAD opinion was required for all SCT patients 61. The Mental Health Alliance has drawn whether they consented to their attention to the risk that CTO conditions treatment or not. In this, it differed from may interfere with patients’ human rights the rules which were already in place for to privacy and family life and that there is consenting patients who have been no right to challenge them in the detained under the 1983 Act for whom Tribunal.32 The Department is not aware second opinions are not required. The of any human rights challenges to CTO 2007 Act thus imposed additional conditions, and would not accept that restrictions on SCT patients compared to there is such interference, but this is detained patients. another aspect of experience and outcome of CTOs which might be 65. The additional pressure on the SOAD considered as part of an evaluation of the service led to delays in SOAD opinions for quality and outcomes of CTOs. all patients and SCT patients have found it inconvenient or objectionable to have Safeguards for patients on CTOs to be examined by a SOAD before they can be given treatment to which they are 62. There was concern at the time of the consenting. 2007 Act that patients subject to these new provisions should be given additional 66. This part of the 2007 Act has therefore safeguards. Some of these have proved in been amended by section 299 of the practice to be anomalous and overly Health and Social Care Act 2012 bureaucratic. (Certificate of consent of community patients to treatment) so that approval 63. One of the requirements put in place by a SOAD will not generally be when SCT was introduced in 2008 was necessary if the patient is consenting to the treatment in question. 31 Care Quality Commission, Monitoring the Mental Health Act in 2010/11 http://www.cqc.org.uk/sites/ default/files/media/documents/cqc_mha_ 67. The Mental Health Alliance supported report_2011_main_final.pdf this change ‘which removes an anomaly 32 Mental Health Alliance, The Mental Health Act 2007: whereby treatment cannot be legally a review of its implementation (May 2012) http:// www.mentalhealthalliance.org.uk/news/MHA_ given to someone in the community May2012_FINAL.pdf without SOAD approvals even if they are

9133-TSO-DH-Post-legislative assessment.indd 15 11/07/2012 19:44 willing to take it and will free up SOAD extended to SCT patients at the next time to focus on those who lack capacity legislative opportunity. to consent.’33 Information available

68. Section 299 of the Health and Social Care 71. The Department does not consider that Act 2012 commenced on 1 June 2012. there is yet sufficient evidence to allow The Department of Health and CQC, robust conclusions to be drawn about any which runs the SOAD service, will keep adjustments which may be needed. For the impact of the change under review. example, a significant number of patients are still on CTOs who were put on them Section 5 holding powers very soon after they were introduced. 69. Section 5 of the 1983 Act provides for The characteristics of that group of hospital in-patients to be held temporarily patients, for whom this option was while arrangements are made to have rapidly taken up by their responsible them assessed for an application for clinician, may differ from patients going detention. This does not apply to SCT on to CTOs in 2012. Although numbers patients. It was thought that the of new CTOs are decreasing (see table responsible clinician’s power of recall above) the point at which numbers of should be used instead (and the 2007 Act new CTOs are balanced by those being expressly says that an SCT patient who is discharged from CTOs has not yet been already in hospital can nonetheless be reached. In addition each CTO is an recalled). However, only a responsible individual clinical decision and the clinician can recall an SCT patient and this Department understands that individual may be a problem if a patient needs an clinicians have varying practice in their urgent assessment, at night for example. use of CTOs. Areas which need further review are emerging as: 70. The recent judgment of Rabone v • Overall numbers of CTOs and the length Pennine Care NHS Foundation Trust of time that some patients are remaining [2012] UKSC 2 indicated mental health on them providers have a responsibility for the safety of voluntary as well as compulsory • Disproportionate use for some groups patients. Consequently, consideration • Why CTOs end and the outcomes for may need to be given to whether patients providers also have a responsibility in relation to SCT patients, and whether 72. The Oxford Community Treatment Order section 5 holding powers should be Evaluation Trial (OCTET) study is due to report in July 2013. The trial is funded by a Programme Grant from the National 33 Mental Health Alliance, The Mental Health Act 2007: Institute of Health Research and is being a review of its implementation (May 2012) conducted by the Social Psychiatry Unit http://www.mentalhealthalliance.org.uk/news/ MHA_May2012_FINAL.pdf at the Department of Psychiatry,

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University of Oxford. The overall aim of outcomes from the OCTET study in July OCTET is to improve patient outcomes by 2013, a further set of annual figures and informing mental health policy and the ability to understand more about practice. The study seeks to do this by: patients on CTOs and their pathways through in-patient services, will enable • Providing rigorous and convincing the Department of Health to understand evidence as to CTO effectiveness more about patients on CTOs and • Demonstrating whether adding CTOs to determine what further steps may be high quality community care reduces necessary to improve the use of CTOs. readmission rates and affects a range of The Department will pay particular other patient outcomes attention to how the use of CTOs may differ for a range of ethnic groups of • Identifying patient characteristics and care patients. This will be the opportunity to patterns associated with good outcomes bring together evidence and carry out • Informing an economic analysis to model further reviews of data to judge whether the national cost of introducing CTOs action on legislation, policy or practice around CTOs is needed. • Contributing to training for effective implementation. Places of safety 73. In addition, another set of annual figures Overview of provisions (up to March 2012) about patients 75. Under sections 135 and 136 of the 1983 subject to supervised community Act a police officer may remove a person treatment will be available from the who is believed or appears to be suffering NHS Information Centre in October from a mental disorder to a place of 2012. This will increase the available safety where they may be detained for data significantly. During 2012, the a maximum of 72 hours. Information Centre is conducting a fundamental review of these statistics. 76. Places which may be used as a place of As part of the Information Centre review, safety include a hospital, a care home for it has been recommended that the data mentally disordered persons, a police for these annual figures be sourced via station or any other suitable place whose the Mental Health Minimum Dataset occupier is willing to receive the patient (MHMDS). Using the MHMDS as the temporarily. source data for this publication will mean that more information about the people 77. Police stations are not ideal places in subject to the 1983 Act (such as gender which to detain someone suffering from and ethnicity) and their care pathways mental disorder, but the 1983 Act did not will be available. permit someone who was removed to a place of safety to be moved to another, 74. In summary, it is too early to draw firm more conducive place of safety. The 2007 conclusions on the use of CTOs. The Act therefore introduced changes to the

9133-TSO-DH-Post-legislative assessment.indd 17 11/07/2012 19:44 1983 Act to allow a person to be taken Table 3: Use of hospital based places of safety from one place of safety to one or more under section 136 other places of safety during the 72-hour Year Male Female maximum overall period. Section 44 of 2007/08 4,037 2,998 the 2007 Act, which deals with places of safety, came into force on 30 April 2008. 2008/09 4,893 3,602 2009/10 6,778 5,260 Implementation 2010/11 7,839 6,272

78. Informal communications suggest that Source: KP90 Data collection this provision has allowed some people detained under section 136 to be moved 81. The numbers of detentions following the from a police station to a more use of section 136 has not shown such appropriate environment for assessment, a rapidly increasing trend as the number leading to better quality care during the of uses of section 136 (See Table 4). section 136 detention and better decisions on their future care. Table 4: Detentions following use of section 136 79. However the numbers recorded for those Year Detained following detained under section 136 in hospital Section 136 based places of safety have been 2007/08 2,020 increasing since they were first collected on a national basis in 2006/07. There is 2008/09 1,753 no suggestion that this increase is linked 2009/10 1,922 to the provisions of the 2007 Act. 2010/11 2,376

80. The use of hospital based places of safety Source: KP90 Data collection has increased from 7,035 in 2007/8 to 14,111 in 2010/11.34 Some of this 82. However the proportion of all detentions increase could be due to improved coming via section 136 was at a 5 year recording as well as an overall increase in high in 2010/11 (4.8% of all detentions). the use of hospital places of safety. 83. Despite this increase in the use of health- based places of safety a number of police forces still report being unable to access health based places of safety for a significant proportion of section 136

34 NHS Information Centre, Inpatients formally detained in hospitals under the Mental Health Act 1983 and patients subject to supervised community treatment, Annual figures, England 2010/11 http://www.ic.nhs.uk/pubs/inpatientdetmha1011

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removals.35 The use of police stations as authorities must ensure that mentally places of safety is monitored locally and disordered persons receive adequate this should inform commissioning of and appropriate psychiatric care and health based places of safety, and local treatment while detained. This was protocols for transfer and acceptance. highlighted in the recent case of MS v UK,36 which concerned the use of a 84. As far as equality analysis is concerned police station as a place of safety. the gender balance has changed in the recorded use of hospital based places of 87. MS had been diagnosed with mental safety. Although more males than impairment and admitted previously to females are still affected, the proportion mental hospitals. He was detained, has changed from 42% of those detained arrested and transferred to a police being female in 2007/08 to 44% in station as a place of safety under section 2010/11. Ethnicity was not reported in 136 of the 1983 Act. Although MS was the NHS Information Centre publication assessed and an order was made for his but it is generally accepted that rates of detention for assessment under section 2 use for BME groups are above average of the 1983 Act, he was not transferred as in other uses of the 1983 Act. to a psychiatric clinic for four days (a few hours beyond the 72 hour limit). He 85. The Health and Social Care Act 2012 could not be admitted until the clinic was establishes that from April 2013 the NHS sufficiently staffed to admit him safely. Commissioning Board (NHSCB) will be During his detention in the police station, responsible for commissioning health MS became more agitated and, in the services for people who are detained in latter stages of his detention, refused prison or other accommodation of a offers of food and drink. prescribed description. This is intended to include those in police custody. As police 88. The Court found that, though there was forces transfer health commissioning no intention to mistreat MS, his treatment arrangements, the NHS and police was nevertheless severe enough to partnerships will be able to develop breach Article 3 (the right not to be robust commissioning plans for health- subjected to degrading treatment) of the based places of safety. European Convention on Human Rights (ECHR). This was because of MS’s Recent legal cases particular vulnerability due to his visible 86. Recent decisions of the European Court symptoms of mental disorder and need of Human Rights make it clear that for urgent psychiatric treatment. Failing to transfer MS sooner excessively 35 Care Quality Commission, Monitoring the Mental diminished his human dignity. The Court Health Act 2009/10 http://www.cqc.org.uk/sites/ ordered the UK to pay damages and default/files/media/documents/cqc_monitoring_the_ costs. use_of_the_mental_health_act_in_200910_main_ report_tagged.pdf and Hansard, 14 June 2012 Column 509 36 MS v UK[2012] ECHR 804[1]

9133-TSO-DH-Post-legislative assessment.indd 19 11/07/2012 19:44 89. The Court did not comment on the use adult wards has reduced to a very low of police stations as places of safety, level – five bed days in 2010/11.37 but UK legislation and best practice in relation to their use will be relevant in 93. Information on bed days for under-18s determining whether or not treatment on adult wards is no longer being and/or conditions breach Article 3 of collected by the Department but the NHS the ECHR. Information Centre is collecting data on bed days for under 16s on adult wards. Age-appropriate accommodation However, there are data quality issues 38 Overview of provisions which are currently being investigated.

90. The 2007 Act introduced new provisions 94. The reduced number of under-18s being to help ensure that patients under the treated on adult wards is encouraging but age of 18 admitted to hospital for mental this should be an issue which disorder are accommodated in an commissioners continue to address. environment that is suitable for their age (subject to their needs). The Government Deprivation of Liberty Safeguards did not commence this provision until Overview of provisions April 2010 to give the NHS additional time to prepare. 95. The Deprivation of Liberty Safeguards (DOLS) were introduced into the Mental Implementation Capacity Act 2005 by the 2007 Act. 91. There has been significant progress in reducing the number of children and 96. The DOLS provide a statutory framework young people aged under 18 placed on for authorising the deprivation of liberty adult wards. For a small number of the for people who lack the capacity to latter group, admission to an adult ward consent to treatment or care, where in may be the most appropriate option their own best interests, that care can because of (a) overriding need when a only be provided in circumstances that young person needs immediate admission amount to a deprivation of liberty. for their safety or that of others, and (b) atypical need when, even if a CAMHS (Child and Adolescent Mental Health 37 See data on child and adolescent mental health Service) bed was available, an adult ward services at: http://www.dh.gov.uk/en/ Publicationsandstatistics/Statistics/ is the most appropriate clinical placement. Performancedataandstatistics/ Integratedperfomancemeasuresmonitoring/ 92. The number of bed days recorded for DH_112554 under-18s on adult wards was 10.1% of 38 See: http://www.ic.nhs.uk/statistics-and-data- the total bed days in 2008/09 but collections/mental-health/nhs-specialist-mental- health-services/routine-quarterly-mental-health- reduced to 2.6% in 2010/11. The minimum-dataset-reports--final-q2-and-provisional- number of bed days for under-16s on q3-2011-12-summary-statistics-and-related- information

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The safeguards apply in hospitals and 100. The Government has issued two Codes of care homes. Practice that relate to the Mental Capacity Act 2005. The first, the Code of 97. The legislation39 contains detailed Practice which related to the original requirements about when and how such provisions of the Mental Capacity Act deprivation of liberty may be authorised. 2005, was published in 2007, while the The legislation provides for an assessment Code in relation to the DOLS was process that must be undertaken before published in 2008 to take effect in 2009. deprivation of liberty may be authorised This was supported by an Impact and detailed arrangements for renewing Assessment.40 and challenging the authorisation of deprivation of liberty. Implementation 101. The introduction of DOLS has resulted in 98. The safeguards regulations cover the a national statutory framework to protect following topics: individuals and raised awareness of • The eligibility criteria for, and selection of, human rights in care homes and hospitals. deprivation of liberty safeguards assessors The CQC’s second annual report41 on the operation of the safeguards found that: • Timescales within which assessments must be completed • CQC inspections of providers show that many have developed positive practice, • The information to be submitted with a notably in involving people and their request for a standard authorisation of carers in the decision process deprivation of liberty • While the number of applications for • The arrangements that are to apply in authorisation under the safeguards rose certain cases where there are disputes from 7,157 in 2009/10 to 8,982 in about the place of ordinary residence of 2010/11, there continue to be areas that a person coming within the scope of the need to be addressed deprivation of liberty safeguards provisions • The selection and appointment of representatives for people who become 40 Mental Capacity Act 2005 Deprivation of Liberty subject to a deprivation of liberty Safeguards Code of Practice and Impact Assessment of the Mental Capacity Act 2005 Deprivation of authorisation. Liberty Safeguards to accompany the Code of Practice and regulations http://webarchive. 99. The DOLS came into effect in April 2009. nationalarchives.gov.uk/+/www.dh.gov.uk/en/ SocialCare/Deliveringadultsocialcare/MentalCapacity/ MentalCapacityActDeprivationofLibertySafeguards/ 39 See: http://webarchive.nationalarchives.gov.uk/+/ index.htm#jumpTo4 www.dh.gov.uk/en/SocialCare/ 41 Care Quality Commission, The operation of the Deliveringadultsocialcare/MentalCapacity/ Deprivation of Liberty Safeguards in England MentalCapacityActDeprivationofLibertySafeguards/ 2010/11 http://www.cqc.org.uk/sites/default/files/ DH_084948 media/documents/dols.pdf

9133-TSO-DH-Post-legislative assessment.indd 21 11/07/2012 19:44 • CQC is developing its monitoring role so Training that it forms part of inspections of how 105. The Department worked with the General well care providers are complying with Social Care Council on developing a essential standards framework for the accreditation of Best • There continues to be concern about the Interests Assessors training. The complexity of the safeguards (some of Department commissioned the these are discussed in the paragraphs development of a two day training course below). CQC will continue to discuss for all Independent Mental Capacity these with the Department as and when Advocates (IMCAs) on the DOLS. The their overview of the system enables training was provided by Action for identification of areas for exploration. Advocacy, and was free for all IMCAs. 102. To support implementation of DOLS, 106. The Royal College of Psychiatrists the Department funded a national produced the DOLS Mental Health implementation team which was Assessor Training Modules (and all related responsible for awareness raising, training materials) in collaboration with training, and supporting national and the Department of Health. In line with regional initiatives. the regulations,43 the training is made available by the Royal College of 103. The Department also issued a series of Psychiatrists. standard forms, briefing on legal cases, a data collection system and guidance Terminology on changes to qualifying requirements for psychologists to assist with the 107. The terminology (deprivation) is implementation of the DOLS.42 sometimes thought to be an obstacle and some have argued that a more positive 104. As well as issuing the Code of Practice on description (such as human rights the DOLS, the Department issued a safeguards) would result in a larger complementary leaflet which was a short number of care homes putting forward introduction to DOLS, designed to assist their residents for the safeguards. care homes and hospitals to help staff understand the safeguards. The leaflet 108. The definition of a ‘Deprivation of was translated into Arabic, Bengali, Liberty’ has also been an issue of some Chinese, French, Gujarati, Polish, Punjabi, debate. The Code of Practice reflects the Somali, Tamil and Urdu. Further material judgment in HL v UK44 in stating that was produced to support implementation, there is no simple definition of a see Annex C. deprivation of liberty and it is a matter of

42 See the DH website at: http://webarchive. 43 Mental Capacity (Deprivation of Liberty: Standard nationalarchives.gov.uk/+/www.dh.gov.uk/en/ Authorisations, Assessments and Ordinary Residence) SocialCare/Deliveringadultsocialcare/MentalCapacity/ Regulations (SI 2008/1858) http://www.legislation. MentalCapacityActDeprivationofLibertySafeguards/ gov.uk/uksi/2008/1858/contents/made index.htm 44 [2005] 40 EHRR 32

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degree and intensity rather than nature Official Solicitor is appealing this and substance. The Code does however judgement in the Supreme Court. offer guidance; it cautions to distinguish between deprivation and restriction, and 112. These judgements have looked at it summarises some case law on this issue. different aspects of the DOLS and this is clearly still an evolving area of law. Court of Protection Variation 109. Since the publication of the Code of Practice on the DOLS, there have been a 113. National statistics47 suggest that there are number of important judgements by the geographical variations in the Court of Protection and the High Court.45 implementation of the safeguards, which These have provided important guidance may mean some areas are using them less on the issue of deprivation of liberty in than they should. Numbers overall the context of the human rights of a however are increasing, suggesting that person who lacks capacity to make his the safeguards are becoming better own decisions and the need to balance understood and there is increasing protection by the state with recognition awareness. of a person’s autonomy. Interface with the Mental Health Act 1983

110. The judgements have also provided useful 114. The Mental Capacity Act 2005 and the guidance on issues such as the duties of a Mental Health Act 1983 are different Supervisory Body, on the issue of restraint pieces of legislation and DOLS need to and seclusion in social care, and on what engage with both. The Departmental constitutes a good care plan. Policy Research Programme has commissioned and funded an Cheshire West and Cheshire 111. The recent independent research project, undertaken Council v P 46 case has introduced the by the University of Cambridge, to concept of a comparator in determining examine the interface between DOLS and whether or not there is a deprivation of the 1983 Act. The research team is due liberty. Whether or not there is a to report its findings in July 2012. The deprivation of liberty is in part a reflection Department will carefully consider the of whether the care proposed is very findings and any recommendations. different from the care provided for a person of similar needs, limitation and Supervisory Bodies capabilities in a different setting. The 115. There has been some criticism that there may be a conflict of interest inherent in the system as Supervisory Bodies and Best 45 G & E & a local authority and F [2010]EWHC 621; P & Q and Surrey County Council & others[2011] 47 Care Quality Commission, The operation of the EWCA Civ 190. DM v Doncaster MBC & Secretary of Deprivation of Liberty Safeguards in England State for Health [2011]EWHC 3652 2010/11 http://www.cqc.org.uk/sites/default/files/ 46 [2011]EWCA Civ 1257 media/documents/dols.pdf

9133-TSO-DH-Post-legislative assessment.indd 23 11/07/2012 19:44 Interests Assessors are often part of the obligations. However, the courts have not same team. Additionally there is a need declared any of these systems to be to balance two roles: the local authority incompatible with the European or PCT role as commissioner of a care Convention on Human Rights. The home or hospital, and the role of the Department has also commissioned Supervisory Body authorising the further guidance on mediation, to deprivation of liberty of an individual. encourage better use of mediation and These roles are different, need to be seen understanding of potential human rights as separate and need on occasion to issues. challenge each other. The Department considers they can be managed Summary effectively within one organisation. 118. The establishment of DOLS means that there is now a statutory framework which People deprived of their liberty in settings other than care homes or hospitals protects against arbitrary detention in a care home or hospital for those lacking 116. DOLS apply to people deprived of their capacity. These safeguards have thrown a liberty in care homes and hospitals. Some spotlight on the care and treatment of have commented that this leaves those in some of the most vulnerable people in other settings unprotected. There is society and ensured safeguards to protect however a different system for protecting the human rights of people who might people who may need to be deprived of need to be deprived of their liberty in their liberty in care settings, such as their own best interests. supported living, which are not registered as care homes or hospitals. This system 119. The safeguards are still relatively new, requires an application to the Court of potentially uneven in their use, and are Protection before anyone may be still evolving. They play an important part deprived of their liberty in such in the range of safeguards available to surroundings. The Court must consider protect people who need high quality the case and impose such conditions as it “best interests” decision-making. considers appropriate. This is a different approach to reflect the different Victims’ rights (Domestic Violence, circumstances in which people live. Crime and Victims Act 2004)

Compliance of review and appeals process Overview of provisions with the European Convention on Human 120. Section 48 of the Mental Health Act 2007 Rights introduced Schedule 6 which extends, 117. Some have raised concerns that in their with some modifications, the rights of view the DOLS review and appeals victims under the Domestic Violence, process within local authorities and PCTs Crime and Victims Act 2004. These as well as the Court of Protection may changes extended rights to the victims of not comply fully with human rights persons convicted of a sexual or violent

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offence, where that person is subject to Deprivation of Liberty Safeguards and various provisions under the Mental the Mental Health Act 1983) is emerging. Health Act 1983 (such as a non-restricted The Department continues to review hospital order). the implementation of the 2007 Act as the evidence grows. The Department will 121. The changes in the 2007 Act meant that consider what further evidence may be for victims in these groups, the local needed, and whether any further changes probation board must take reasonable to legislation, guidance or policy are steps to establish (a) if the victim of the required, in the light of this developing offence wishes to make representations evidence base. as to whether the patient should be subject to conditions in the event of discharge from hospital; and (b) whether the victim wishes to receive information about those conditions in the event of his discharge.

Implementation

122. Although evidence is limited and there are instances of good practice in implementing the legislation, some people have raised concerns over a lack of clarity in respect of the roles and responsibilities resting with hospitals when communicating with victims of both restricted and unrestricted patients. Anecdotal evidence suggests that where communication works well this is due to time being invested in developing good relationships between victim liaison units and hospitals.

Next steps 123. The changes introduced in the Mental Health Act 2007 are relatively recent. We know that the introduction of independent mental health advocacy is valued and evidence from research on some of the areas of most significant change (supervised community treatment and the interface between the

9133-TSO-DH-Post-legislative assessment.indd 25 11/07/2012 19:44 Annex A: Overview of when sections of the Mental Health Act 2007 were enacted

1. Most sections of the Mental Health Act • Clarified the law on conflicts of interest 2007 (the 2007 Act) were brought into (section 22); force on 3 November 2008. The Mental • Improved patients’ rights (sections 23 to Health Act 2007 (Commencement No. 7 25 and 27 to 29); and Transitional Provisions) Order 2008 (SI2008/1900 (C84)) commenced • Made provisions for specialist provisions which: accommodation (section 31 (1), (2) and (4)); • Abolished the previous categories of mental disorder and replaced them with a • Introduced supervised community single definition of mental disorder treatment (sections 32 to 35 and (section 1 and Schedule 1); Schedules 3 and 4); • Qualified the application specified • Made changes in relation to mental sections of the Mental Health Act 1983 health review tribunals (sections 37 (the 1983 Act) to people with a learning and 38); disability (section 2); • Addressed issues affecting cross-border • Removed some out-of-date exclusions patients (section 39 and Schedule 5, from the 1983 Act – the sole remaining insofar as not already in force); and exclusion being dependence on drugs or • Improved victims’ rights (section 48 and alcohol (section 3); Schedule 6). • Spelt out definitions of medical treatment and appropriate treatment for the 2. Section 48 amended the Domestic purposes of the 1983 Act (sections 4 Violence, Crime and Victims Act 2004. to 7); All other provisions described above amended the Mental Health Act 1983 • Set out issues to be addressed by the with a few also making consequential guiding principles in the “Code of amendments to other Acts. Practice Mental Health Act 1983” (section 8); 3. Regulation-making powers pertaining to • Replaced responsible medical officers with the measures described above were approved clinicians (sections 9 to 16) and brought into force by “The Mental approved social workers with approved Health Act 2007 (Commencement No. 4) mental health professionals (sections 18 Order 2008” (SI2008/745 (C30)) on and 21 and Schedule 2); 1 April 2008.

9133-TSO-DH-Post-legislative assessment.indd 26 11/07/2012 19:44 Overview of when sections of the Mental Health Act 2007 were enacted

4. Section 36 of the 2007 Act repealed under sentence) and section 42, which sections of the 1983 Act relating to after- increased the maximum penalty on care under supervision, also on 3 conviction for ill-treating a patient from November 2008. In commencing this two years to five, and section 49 which section, “The Mental Health Act 2007 amended a section of the Mental (Commencement No. 6 and After-care Capacity Act 2005 dealing with Under Supervision: Savings, Modifications independent mental capacity advocates. and Transitional Provisions) Order 2008” • Commencement Order No. 3 also (SI2008/1210 (C52)) made some commenced section 26 (which inserted transitional provision for people who civil partners in the list of nearest relatives were subject to after-care under in section 26 of the 1983 Act, but with supervision on that date. effect from 1 December 2007), and commenced section 43 (on informal 5. A few substantive provisions were admission of patients aged sixteen or commenced earlier than 3 November seventeen) with effect from 1 January 2008 2008. • The Mental Health Act 2007 • The Mental Health Act 2007 (Commencement No. 1) Order 2007 (Commencement No. 5) Order 2008 (SI2007/2156 (C80)) commenced section (SI2008/2635 (C39)) brought section 44 45 which made a technical changes into force on 30 April 2008. This allows a relating to powers on hospital managers police officer or an approved mental in NHS Foundation Trusts. health professional to transfer a person • The Mental Health Act 2007 he has taken to a place of safety from (Commencement No. 2) Order 2007 that place to another place of safety. (SI2007/2635 (C102)) commenced section 51 which made a minor 6. A very few sections were not commenced amendment to the Mental Capacity Act until 2009 or 2010. 2005: • The Mental Health Act 2007 • With effect from 1 October 2007, The (Commencement No. 10 and Transitional Mental Health Act 2007 Provisions) Order 2009 (SI2009/139 (Commencement No. 3) Order 2007 (C9)) commenced a number of sections (SI2007/2798 (C108)) commenced on 1 April 2009. These introduced section 19 to enable the General Social independent mental health advocates Care Council to approve training courses (section 30) and inserted the Deprivation for approved mental health professionals of Liberty Safeguards into the Mental and section 39 on cross-border patients Capacity Act 2005 (section 50 and (in part). It also commenced sections 40 associated Schedules). and 41, relating to patients subject to • Finally, The Mental Health Act 2007 Part 3 of the 1983 Act (patients (Commencement No. 11) Order 2010 concerned in criminal proceedings or (SI2010/143 (C17)) introduced a

9133-TSO-DH-Post-legislative assessment.indd 27 11/07/2012 19:44 requirement to care for young people under the age of eighteen in age- appropriate accommodation 7. Section 38, subsections (3) to (9) were never commenced in relation to England as they were overtaken by the Tribunals, Courts and Enforcement Act 2007 which, together with The Transfer of Functions Order SI 2008/2833, transferred the functions of the Mental Health Review Tribunal for England to the new First-tier Tribunal (Mental Health) in England. As a result, the sections amended by section 38 no longer apply to England. They do however provide for Wales to have a Mental Health Review Tribunal.

9133-TSO-DH-Post-legislative assessment.indd 28 11/07/2012 19:44 Annex B: Secondary Legislation

Mental Health Act 1983 under the 1983 Act in which clinicians should not act due to a potential conflict 1. Several orders, and sets of and of interest. Section 12A of the 1983 Act regulations and one set of directions were (inserted by section 22(5) of the 2007 made as a result of the changes the 2007 Act) refers. Act made to the 1983 Act. The main ones were: • Mental Health (Approved Mental Health Professionals) (Approval) (England) • Mental Health (Hospital, Guardianship Regulations 2008 (S.I. 2008/1206) (Laid and Treatment) (England) Regulations on 7 May 2008, came into force on 3 2008 (S.I. 2008/1184) (Laid on 7 May November 2008.) 2008, came into force on 3 November These regulations deal with issues to do 2008.) with the approval of people to be These are the main regulations dealing approved mental health professionals. with procedural matters relating to the compulsory treatment of people under • Mental Health (Nurses) (England) Order the 1983 Act as amended by the 2007 2008 (S.I. 2008/1207) (Made on 28 April Act. Numerous sections of the 1983 and 2008, came into force on 3 November 2007 Acts refer. 2008.) This order spells out the classes of nurse • Mental Health (Mutual Recognition) empowered to detain patients under Regulations 2008 (S.I. 2008/1204) (Laid section 5(4) of the 1983 Act. on 7 May 2008, came into force on 3 November 2008.) • Mental Health Act 1983 Approved These regulations set out the Clinician (General) Directions 2008 circumstances in which a practitioner (Made on 31 July 2008, came into force approved in England for specified on 3 November 2008). purposes under the 1983 Act may be These directions deal with issues to do treated as approved for those purposes in with the approval of people to be relation to Wales (and vice versa). Section approved clinicians. 142A of the 1983 Act (inserted by section • Mental Health Act 2007 (Consequential 17of the 2007 Act) refers. Amendments) Order 2008 (S.I. • Mental Health (Conflicts of Interest) 2008/2828) (England) Regulations 2008 (S.I. This order made consequential 2008/1205) (Laid on 7 May 2008, came amendments to primary and secondary into force on 3 November 2008.) legislation. These regulations set out circumstances

9133-TSO-DH-Post-legislative assessment.indd 29 11/07/2012 19:44 • Mental Health Act 1983 (Independent Person’s Representative) Regulations Mental Health Advocates) Regulations 2008 (Laid on 20 May 2008, came into 2008 (S.I. 2008/3166) (Laid on force on 3 November 2008). 16 December 2008, came into force on • The Mental Capacity (Deprivation of 1 April 2009.) Liberty: Appointment of Relevant Person’s These regulations make provisions about Representative) (Amendment) Regulations who can be appointed to act as 2008 (Laid on 12 September 2008, came independent mental health advocates into force on 3 November 2008). and the arrangements whereby they These regulations correct a minor defect may be appointed. in the earlier regulations: they prevent 2. There have also been a few sets of supervisory bodies from selecting paid representatives from amongst their own amending regulations to correct minor employees, thus avoiding any conflicts mistakes in the drafting of the main of interest. provisions identified above. For example, The Mental Health (Hospital, • The Mental Capacity (Deprivation of Guardianship and Treatment) (England) Liberty: Monitoring and Reporting: and (Amendment) Regulations 2008 Assessments – Amendment) Regulations (S.I. 2008/2560). 2009 (Made on 31 March 2009, came into force on 1 April 2009). 3. In addition to the formal secondary They contain measures relating to the legislation above, the Department also monitoring and reporting of the operation of the deprivation of liberty safeguards by prepared a new Code of Practice Mental the Care Quality Commission. Health Act 1983 to reflect the many changes to the 1983 Act which were • Mental Capacity Act Deprivation of made by the 2007 Act. This was laid Liberty Safeguards (MCA DOLS) and before Parliament on 12 May 2008 and Section 75 partnerships under the National came into force on 3 November 2008. Health Service Act 2006 in the NHS Section 118 of the 1983 Act refers. Bodies and Local Authorities Partnership Arrangements ( Amendment) Regulations Mental Capacity Act 2005 2009. The Government laid amending regulations 4. A number of sets of regulations have to the NHS Bodies and Local Authorities been made to implement the Deprivation Partnership Arrangements Regulations of Liberty Safeguards (DOLS). These are: 2000. MCA DOLS was included on the list • The Mental Capacity (Deprivation of of functions of NHS Bodies in regulation 5, Liberty: Standard Authorisations, thereby enabling PCTs to enter into formal Assessments and Ordinary Residence) partnership arrangements with a local Regulations 2008 (Made on 9 July 2008, authority under Section 75 of the National came into force on 3 November 2008). Health Service Act 2006. Local authorities were enabled to carry out MCA DOLS • The Mental Capacity (Deprivation of functions on behalf of PCTs. Liberty: Appointment of Relevant

9133-TSO-DH-Post-legislative assessment.indd 30 11/07/2012 19:44 Annex C: Materials Produced to Support Implementation

1. The National Institute for Mental Health 3. A range of material has been produced (England) produced several publications to support the implementation of the and other materials to support Deprivation of Liberty Safeguards. implementation of the 2007 Act. They They can be found on the Departmental can be found at: www.nmhdu.org.uk. website. They include: Making decisions booklet: The IMCA role 2. These include: Information on DOLS: a guide for family, Supervised Community Treatment: friends and unpaid carers Pathway (May 2008) Dear colleague letter from David Supervised Community Treatment: A Nicholson outlining roles and Guide for Practitioners (October 2008) responsibilities around DOLS for health Mental Health Act 2007: New Roles and social care providers (October 2008) (Guidance for approving A Guide for primary care trusts and local authorities and employers on Approved authorities Mental Health Professionals and Approved Clinicians.) A guide for hospitals and care homes Shoulder to Shoulder, a new DVD for A Guide for the Relevant Persons Independent Mental Health Advocates Representative (December 2008) 4. The Department also issued a number of Independent Mental Health Advocacy, DOLS Newsletters in 2008 and 2009, Guidance for Commissioners (December together with ‘Frequently Asked 2008) Questions’ and developed an The Legal Aspects of the Care and implementation tool that Mental Capacity Treatment of Children and Young People Act 2005 Networks were invited to use to with Mental Disorder: A Guide for estimate the number of assessments and Professionals (January 2009) staff that might be required. Independent Mental Health Advocacy: 5. The Department issued LAC(DH) 2009 Effective Practice Guide (August 2009) (2) which set out the resources for the Independent Mental Health Advocacy: Mental Capacity Act 2005 and the DOLS Workbook for Independent Study for the year 2009-2010 and the provisional figures for 2010-2011.

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