briefing september 2008 ISSUE 171 Implementing the Mental Health Act 2007 What boards need to know and do

The Mental Health Act 2007 updated the and the Key points . The recent amendments to the 1983 Act provide clarity in the legal criteria for the use of compulsion, and better safeguards • New mental health legislation for mental health service users, with new rights to advocacy, the ability to means that mental health trusts displace their nearest relative and the right to refuse electro-convulsive can now progress with making therapy. Flexibilities in staff roles support new ways of working, changes are a real difference for their service made to place of safety arrangements, and supervised community treatment users. is introduced. • The recent amendments update the Mental Health Act 1983 and This Briefing outlines the key points of the new legislation and sets out what the Mental Capacity Act 2005. trust boards need to do to implement it and the timescales for doing so. • There are significant implications for commissioners, particularly in Background Health in (NIMHE) has been relation to advocacy services and providing implementation support. the provision of age-appropriate The new Act brings mental health law Implementation of the amendments settings for children and into line with service modernisation is being staged, with some of the most adolescents. and current case law. It also ensures significant changes becoming operational on 3 November 2008. • Implementation of the compliance with human rights legislation and European convention. Important new advocacy provisions amendments is being staged, The Act ends the uncertainty of come into force in April 2009, and with some of the most significant the past few years and means that primary care trusts (PCTs) must changes becoming operational mental health trusts are better commission age-appropriate on 3 November 2008. placed to progress with making a real environments for children and young • A revised code of practice for difference for their service users. people by 2010. the Mental Health Act 2007 also comes into force in November Since the Act’s in July NIMHE has provided an implementation 2008. 2007, the National Institute of Mental self-assessment tool (ISAT) which

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supports board-level assurance of The implementation self-assessment tool (ISAT) timely preparation for the changes (see box on right). Providers and commissioning bodies can use the ISAT to benchmark their systems and make progress in the effective implementation of the Act. The Department of Health consulted The ISAT places particular emphasis on: widely on the code of practice and the regulations that underpin the new • the collection, analysis and use of data to improve services legislation. The resulting 2008 code of • delivery of the Act within an ethical framework practice introduces five new principles which govern decisions and actions • engagement of service users in planning, delivery and monitoring. made under the Act (see box on page 3). When making decisions on how The Healthcare Commission recognises the ISAT as evidence of they provide care, practitioners and self-assurance for core standards. service providers should demonstrate For more information, see http://mhact.csip.org.uk that they have taken account of each principle and will need to be able to explain any departure from one or put a legal label to patients’ disorders. constitutes appropriate treatment, more of the principles. All mental health disorders are now at least initially. treated in the same way. Alcohol and drug dependence remain excluded, Medical treatment continues to The revised legislation but ‘sexually deviant’ mental disorders include psychological intervention and are now included. specialist mental health rehabilitation This Briefing covers the and care. An appropriate range of implementation of the 2007 Criteria for detention interventions must be available to meet amendments to the Mental Health A new ‘appropriate medical treatment’ the needs of the local population. Act 1983. The Government used the test applies to all powers of detention same parliamentary process for treatment. As a result, service users Supervised community to introduce an amendment to cannot be compulsorily detained for treatment (SCT) the Mental Capacity Act 2005, treatment unless appropriate medical New community treatment orders concerning deprivation of liberty. treatment is available to them. The require suitable service users to The scope of this change includes, ‘treatability test’ no longer applies. undergo a period of supervised but goes beyond, mental health community treatment following an services and is not included in this Key issues: The changes to the initial period of detention in hospital paper; instead, it is described in NHS criteria do not affect the validity of for treatment. This amendment will Confederation Briefing 117, The an existing detention. However, allow some service users with a Mental Capacity Act. processes need to be in place to live in the to ensure that service users community while subject to certain Definition of mental disorder currently detained or with a conditions to ensure they continue The 2007 Act simplified the definition planned admission will meet the with the medical treatment they need. of mental disorder so that one amended criteria for detention The responsible clinician can recall definition now applies throughout. after 3 November. After this date, them to hospital if necessary. Categories of disorder are abolished, responsible clinicians, hospital and this amendment complements managers and any necessary tribunal Key issue: Trusts will need to ensure the changes to the criteria for must apply the amended criteria, effective individual care planning and detaining service users. including the appropriate medical that health and social care resources treatment test. There may be some are available in the community to Key issue: It is no longer necessary to legal challenges about what provide appropriate community

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medical treatment. It will also be Electro-convulsive therapy detained under the Act. An advocate necessary to monitor the impact of The 2007 Act offers more scope (independent of the service SCT to inform the planning of future for detained service users to refuse providing care or treatment) will be service models. electro-convulsive therapy. It also available to support each detained makes provision to add further service user who wishes to use this treatments that service users could service for the duration of periods of Additional safeguards also refuse. compulsion. for patients Mental health advocacy The role of the mental health Nearest relative Service users detained under the advocate includes ensuring that Service users are currently unable Mental Health Act 1983 now have a the service user has full information to ‘displace’ their nearest relative, statutory right to an advocacy service. about the application of the Act in which is incompatible with the The new legislation puts a duty on their particular case and the various Human Rights Act 1998. The 2007 service providers to inform service safeguards which are available to Act amends this to allow service users about advocacy services and to them, including entitlement to users to apply to court to displace take all practical steps to make sure legal representation and appeal their nearest relative. It also adds civil they understand what is available to to a tribunal. partners to the nearest relative list. them and how they can obtain help. The advocacy service may require Key issue: The courts will still Key issues: From April 2009, information from the service provider expect a high standard of evidence commissioners will have a statutory in order to undertake its duties; for to be proved before taking the duty to provide independent mental example, access to relevant records major decision to displace an existing health advocacy as a service which or reports concerning the decision to nearest relative. is available to qualifying patients use compulsion under the Act.

The key amendments

The Mental Health Act 2007 updated the Mental Health Act 1983 and Mental Capacity Act 2005. The Mental Health Act 2007 (“the Act”) includes the following amendments to the Mental Health Act 1983: • a single definition of mental disorder with fewer exclusions • the introduction of a requirement for appropriate medical treatment • the introduction of supervised community treatment • the provision of additional safeguards for patients • changing professional roles • improved access to review tribunals • an age-appropriate service for children and young adolescents • changes to place of safety arrangements.

The Act also contains one amendment to the Mental Capacity Act 2005, which addresses provisions required by a European Court of Human Rights ruling that a man with autism had been unlawfully deprived of his liberty by Bournewood Community Mental Health NHS Trust.

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Advocacy staff may support the performed by the approved social they do now. Also, the Secretary of service user by having discussions worker and responsible medical State for Health and Welsh ministers with clinicians, or attending care officer. The new role of responsible can now reduce the amount of programme approach meetings or clinician can be undertaken by a time before a service user’s case ward rounds. NIMHE’s best practice number of qualified mental health is automatically referred. But the guidance suggests that a local professionals with the appropriate Government has said that it won’t engagement protocol be agreed skills and training. do this until tribunal and health between advocacy services and and social care resources allow. mental health service providers. Key issue: It is vital that resources are made available and protected for Age-appropriate services Commissioners need to assess the the training and ongoing support of From 2010, trusts must provide an local needs for Mental Health Act professionals who adopt the new role. environment in hospital for child and advocacy in preparation for their adolescent mental health in-patients statutory duty to provide this service. The local social service authority which is appropriate to their age Consideration should be given to the (LSSA) remains responsible for (subject to their particular needs). local demography of detained service the provision of training and PCTs will be required to state where users in terms of ethnicity, language, authorisation of the new role of child and adolescent mental health age and special needs such as sensory approved mental health professional. service (CAMHS) beds exist and to or learning disabilities. provide this information to the courts. Mental health review Professional roles tribunals Key issues: There is currently a The new legislation broadens the Some hospital managers will have shortage of CAMHS inpatient beds; group of practitioners who can to refer some service users to mental therefore, mental health providers take on the functions currently health review tribunals sooner than and commissioners will need to

New guiding principles

The revised code of practice introduces a new set of guiding principles which replace those in place for the Mental Health Act 1983 now. These five principles inform decisions rather than determine them. All decisions must, of course, be lawful and informed by good professional practice. A summary of the principles is shown below. • Purpose – decisions under the Act must be taken with a view to minimising the undesirable effects of mental disorder by maximising the safety and well-being of service users, promoting their recovery and protecting others from harm. • Least restriction – people taking action with a service user’s consent must try to minimise the restrictions they impose on the service user’s liberty. • Respect – people taking decisions under the Act must recognise and respect the diverse needs, values and circumstances of each service user, including their race, religion, culture, gender, age, sexual orientation and any disability they might have. • Participation – as far as is practicable, service users must be given the opportunity to be involved in planning, developing and reviewing their own treatment. The involvement of carers, family members and other people with an interest in the service user’s welfare should be encouraged and their views taken seriously. • Effectiveness, efficiency and equity – people taking decisions under the Act must seek to use the resources available to both them and service users in the most effective, efficient and equitable way.

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ensure that they have sufficient procedures, and confirmation of ‘Mental health providers age-appropriate settings to meet the respective agency responsibilities. and commissioners will need to needs of children and adolescents ensure that they have sufficient requiring this level of care. For parts of the country which still age-appropriate settings to routinely expect the police to provide meet the needs of children and Although the age-appropriate a facility, there may be both safety and adolescents’ amendment is not scheduled for resource issues for the NHS to address. commencement until April 2010, Commissioners and regulators will commissioners and providers can expect to see significantly improved use the time beforehand to prepare data collection regarding local use and liaise with the Department of Health for implementation. Successful performance standards on the use of and has maintained strong links with implementation will necessitate Section 136. NIMHE and stakeholders to ensure reconfiguration of existing resources, that its members are fully supported some of which rest with working in preparing for implementation. age mental health services. Foundation trust managers Code of practice NIMHE is providing information for users The revised code of practice covering and carers, guidance for commissioning, Bringing arrangements for foundation the Mental Health Act 2007 comes and an environmental audit tool to trust hospital managers into line into force in November 2008. The ensure boards are assured that clinically with those for NHS trusts, the 2007 Department of Health consulted appropriate standards can be met. Act allows NHS foundation trusts to widely with the people who provide exercise their power of discharge and receive services under the Mental Commissioners need to be able to by appointing people specifically Health Act to revise the code of assure themselves that trusts can to act on their behalf. Foundation practice. The code provides guidance demonstrate how they will meet the trusts may continue to appoint their to registered medical practitioners, resource implications. non-executive directors to exercise approved clinicians, managers and this power and they will be able to other hospital staff, and approved ‘Place of safety’ joint work with delegate to appointees who cannot mental health professionals on police and ambulance services be directors or to other employees of how they should proceed when The 2007 amendments include a the foundation trust. undertaking their duties under the Act. power, available since April 2008, to move a person, taken by the police, Key issue: This arrangement was While the Act does not impose a legal from one ‘place of safety’ to another. enacted in July 2007 to bring duty to comply with the code, the foundation trust hospital managers staff listed above must “have regard to The Royal College of Psychiatrists has in line with those of NHS trusts. the code” and record and explain any led the production of up-to-date multi- reasons for not adhering to it. agency guidelines which set national standards, and a national template for Implementation data collection in this area, endorsed Commissioners by the NHS Confederation and other The NHS Confederation’s Mental partners in health, social care and the Health Network played an active role The new legislation has particular criminal justice system. Local joint in influencing the Mental Health Bill implications for those responsible for agency protocols now require review. on its journey through Parliament, commissioning mental health services. They must include clarity on the and has worked hard to influence the designation of the preferred place of implementation programme and code Intelligent information safety, updating of conveyance of practice. The Network continues to The introduction of five principles to

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Figure 1. Strategy for managing intelligent information

2. Analysis – Trends – Outcomes 3. Board action • Purpose? • Set course of action • Least restrictive alternative? • Allocate resources • Respect? • Monitor • Participation? • Involve users, carers, staff • Effective, efficient equitable? • Build public confidence • Review

1. Collection of Mental Health Act data

guide all decisions and actions relationship with lengths of stay in principles framework will influence taken under the Act (see box on page hospital or the take up of alternatives the allocation of resources intended 4) provides an important opportunity such as supervised community – and a coherent framework – for treatment or guardianship. Other key points for commissioners to contract for commissioners ‘intelligent information’ about the use Examining data about the least of compulsion in the population for restrictive alternatives will indicate which they are responsible. Figure 1 which alternatives to compulsion or Commissioners need to be aware of sets out what boards need to do. hospital admission may be most all the changes that update the 1983 effective. The principles concerning Mental Health Act, in particular, For example, commissioners may wish respect and participation can be commissioners need to know: to use the framework provided by the applied as quality indicators which • An appropriate range of guiding principles to understand why involve continuous feedback from interventions must be available compulsion is being used in a particular service users and carers with direct to meet the needs of the local locality or specialist needs group. It will personal experience of applying the population. help them understand the extent to Act, local organisations such as MIND which Mental Health Act assessments or mental health advocacy providers. • From April 2009, commissioners result in detaining service users or The fifth principle concerns the use will have a statutory duty to whether there are other outcomes, of resources and achieving best provide advocacy services to such as the impact of emergency work, value in the use of staff time and patients detained under the Act. the balance between assessment or the facilities, the costs of appropriate • The impact of SCT should be use of treatment orders in association treatments, and using available monitored to inform future service with demographics of the detained budgets. Such data can be used as models. population. Commissioners will be intelligent information at executive interested to know the factors level when it is applied to review • From 2010, commissioners must that make a difference in these service trends and outcomes provide age-appropriate settings outcomes as well as the duration of and to inform courses of action. in hospitals to meet the needs of compulsion where it is used, and the Systematically applying the guiding children and adolescents.

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to support the application of the Act conferences which, over the last impact for the future planning of where appropriate. Reporting at board year, have focused upon each of services, including the provision of meetings open to the public will the main amendments to the Act. culturally appropriate services. provide an important opportunity to involve and use feedback from service The Mental Health Network is users and carers. The stigma associated Confederation viewpoint working to improve partnership with severe mental disorders and working between healthcare and ‘sectioning’ can only be addressed The NHS Confederation’s Mental organisations which deal with through building public confidence Health Network has supported people who come into contact in dependable local services that can preparation for successful local with the criminal justice system. be shown to be safe as well implementation. We now hope We therefore strongly support the as orientated towards recovery that our members can make a change to Section 136 arrangements and greater social inclusion. difference to service users’ care regarding places of safety. The under the amended Act. There are police station is rarely the right Support for trusts some key changes that may be a environment to assess a mentally challenge, and trust boards may distressed person and may add to The Department of Health gave NIMHE wish to monitor local issues, including: stigma and discrimination through a key role in the preparation for these • ISAT benchmarking the impression that the subject may changes and in ensuring successful be involved in criminal behaviour. implementation. • the impact of supervised community treatment In April 2009 the Care Quality Implementation is being supported by • progress in ensuring Commission will come into force; a number of best practice age-appropriate environments for we are keen that patients who publications and other materials, children and young people. require detention continue to available on NIMHE’s implementation receive the same level of protection website. This national programme Monitoring ethnicity will continue offered by the Mental Health Act is delivering support through: local to be a priority for mental health Commission. implementation networks which services, in particular in relation to are active across England; a ‘train supervised community treatments. If you have any comments on the the trainers’ workstream which As increased treatment is offered in issues raised in this Briefing, please includes a range of briefing and the community, it will be important contact training materials; and regional for organisations to monitor the [email protected]

Further information

The Mental Health Act 2007. NHS Confederation briefing issue 148, July 2007 www.nhsconfed.org/publications National Institute for Mental Health in England (NIMHE) www.nimhe.csip.org.uk Implementation of the Mental Health Act 2007: transitional arrangements. DH, July 2008 www.dh.gov.uk/en/Publicationsandstatistics (Gateway ref 10307) Mental Health Act 2007, commencement orders, regulations and other secondary legislation www.dh.gov.uk/en/Healthcare/NationalServiceFrameworks/Mentalhealth/DH_077359

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The Mental Health Network

The Mental Health Network was established as part of the NHS Confederation to provide a distinct voice for mental health and learning disability service providers. We aim to improve the system for the public, patients and staff by raising the profile of mental health issues and increasing the influence of mental health and disability providers.

The NHS Confederation is the only independent membership body for the full range of organisations that make up today’s NHS. Its ambition is a health system that delivers first-class services and improved health for all. As the national voice for NHS leadership, the NHS Confederation meets the collective needs of the whole NHS as well as the distinct needs of all of its parts through its family of networks and forums. The Mental Health Network is one of these.

To find out more about the Mental Health Network, visit www.nhsconfed.org/mental-health or email [email protected]

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