Mental health tsar remains bullish in the face of criticism of draft bill

Louis Appleby has a particularly difficult job at the moment. As
national director for mental health, he has to quell the furore
surrounding the draft mental health bill for England and Wales.

Throughout its consultation period, the draft bill, which was
unveiled in June, provoked outrage among mental health staff.
Although the consultation period has now finished, the lobbying
against the proposals seems to have only just begun.

Much of the criticism has focused on concerns that the proposals
will lead to the increased use of compulsory powers and wrongful
detention. But Appleby emphasises that, in fact, the government
intends to reduce the incidence of compulsion.

“I hope people now understand that there isn’t some sort of dark
government intent to increase compulsion for some sort of
unidentified reason of social cleansing – there is nothing like
that,” he says.

According to Appleby, the measures to reduce compulsion are the
same as those that will improve services in general. These include
bringing in assertive outreach teams to support vulnerable people
in order to reduce the number of times they are admitted to
hospital under compulsory powers.

Approved social workers oppose the draft bill because it recommends
they be replaced by “approved mental health professionals”.
Although social workers will still come under the AMHP bracket,
other professionals, such as nurses or occupational therapists,
could equally carry out the role.

ASWs fear that, in substituting their position, assessments could
lose an independent, non-medical contribution.

But Appleby remains convinced that, even without a social worker,
assessments can still be balanced and not overshadowed by medical
views.

“I am confident about that because that’s what happens at the
moment. Not because of the demarcations we’ve got in place but
because the act is operated by sensible people aware of their
position.”

He believes that the success of the assessment process is not
dependent on the fact that one person is a social worker and the
other is a doctor with different medical and social perspectives.

“It’s because professionals working in this area are aware of the
importance of what they do and the seriousness of the process of
detaining somebody so they do properly operate and reflect the
position of importance they have been given. That will be true if
we have a different sort of person playing the traditional social
worker,” he says

ASWs’ anger is unlikely to be pacified by Appleby’s explanation
that the change in their role is down to a “change across the
health service to people being defined by skills rather than their
professional background”.

He adds: “There is much greater interest now in making sure for
people who come into the NHS that their role is not determined by
the door they come in at, marked psychiatrist or social worker or
nurse, but by the kind of skills they can develop within the
system.”

But Appleby is sympathetic towards the anxiety felt by social
workers and emphasises they will always have a vital role to play.
“People always feel uneasy when their professional position might
be changed but it will still be the case that we will need people
who bring the non-clinical perspective to mental health care in
relation to the act and generally to the nature of care.”

Others in the mental health field have been concerned that the
proposal to scrap the Mental Health Act Commission, which
safeguards patients’ interests under the current act, could result
in some of its functions falling by the wayside. Appleby says this
is not the case and that patients will still be visited and checks
will be made that the act is being correctly implemented.

He says: “We’re not trying to make it more difficult to inspect the
use of the act. We are trying to bring it in line with how the rest
of mental health services are examined.

“These things will still happen, it’s just a matter of who does
it.”

The Commission for Health Improvement’s successor will take on the
MHAC’s role, monitoring standards and carrying out inspections for
services in general.

“The question is, should we have a separate organisation that does
that in relation to the use of the Mental Health Act or should we
have that as part of the brief for CHI, which does this for mental
health services as a whole. I think the sensible thing is to bring
the two together,” he says.

Many experts believe children’s mental health needs should be
addressed separately, but Appleby says he has yet to see a strong
case for this. He adds that proposed changes would give children
from 16 similar rights to adults, and achieve a better balance
between a child’s wishes, in terms of treatment and parental
rights.

The bill’s critics are keeping their fingers crossed that the
consultation process will yield positive results and the desired
amendments to the bill. Appleby insists that the consultation is
being taken seriously and opinions are being listened to.

“This is a genuine attempt to get the bill right,” he promises.

Scotland’s solution

The Mental Health Foundation believes that the Mental Health
(Scotland) Bill is a “vast improvement” on the draft bill for
England and Wales.

Maddy Halliday, director of Scotland and UK development at the MHF,
says there are several factors as to why the Scottish bill is
superior.

First, she says the political and cultural contexts of the bill are
different, with the focus in England dominated by criminal justice
concerns.

“The political thrust in the two countries is different,” she says.
“In England and Wales it is driven by concerns around
dangerousness. We would say that public safety is an issue, but
that it is better addressed by criminal justice legislation.”

Second, the Scottish bill proposes strengthening the powers of the
Mental Welfare Commission, which is responsible for visiting
detained patients and ensuring the mental health laws are correctly
implemented. Under the English bill the Mental Health Act
Commission would be scrapped. “We think mental health is so complex
that it needs its own commission and the Scottish bill is
strengthening it,” says Halliday.

A third reason is due to the different definitions of mental
disorder. Halliday says the Scottish definition offers greater
clarity about who should be included in the scope of the bill and
who should be excluded.

“We feel the phrasing in the English bill makes it less clear in
terms of exclusion,” she says.

Under the Scottish bill, the tribunal has the option to order
compulsion, whereas in England and Wales the tribunal would have to
make a compulsory order if the conditions were met.

Further, the Scottish bill requires the tribunal to receive
evidence from various individuals, including the patient, the
patient’s named person and carer and the representative of the
local social services authority.