Disappearing act

Having been badly mauled at consultation stage over the draft
mental health bill, the government, after a period of licking its
wounds, may be ready to unveil a revised version. Mark Hunter
assesses reaction to the anticipated changes.

The draft mental health bill was last seen more than a year ago,
scuttling back to the Department of Health under a hail of
criticism from mental health professionals and service user
groups.

After fielding more than 2,000 responses during its 10-week
consultation period, the bill retired hurt. It was left out of last
year’s Queen’s Speech and, with parliament otherwise
engaged for most of this year, the government appeared to have
abandoned its radical attempt to update the Mental Health Act
1983.

Recently, however, hopes have risen that a revised and improved
bill may re-emerge in the Queen’s Speech this autumn,
although what form the legislation will take remains unclear. Will
it, for instance, take on board the criticisms of the 50-plus
mental health charities and professional groups that joined
together to form the Mental Health Alliance in opposition to the
initial document? Or will it simply be a watered down version of
the much-maligned draft?

For those hoping for a complete re-write there have been some
promising initial signs.

Speaking recently at a meeting for psychiatrists, Louis Appleby,
the national director for mental health, admitted that the draft
bill was “not as good as it needs to be” and should be revised “to
make sure that it carries the confidence of the people who will
operate it”. And earlier this year, Adrian Sieff, head of mental
health legislation at the DoH, hinted that the bill was being
refined in response to views expressed during the consultation
process.

Meanwhile, behind-the-scenes meetings between DoH officials and
the various professional and patient interest groups have suggested
that many of the controversial clauses in the draft bill will be
dropped.

“We have had several exchanges and meetings with the DoH on
aspects of the bill and we think these have been constructive and
our views have been taken on board,” says a spokesperson for the
Mental Health Alliance. “But what is still up in the air is what
the timetable is likely to be. Are we going to get something in the
autumn in the Queen’s speech or will we have to wait until
next year?”

The delay has been frustrating for all concerned, not least
because the one thing on which everybody agrees is that new
legislation on mental health is desperately overdue.

The draft bill, originally published in June last year, was
intended to refocus mental health legislation on the individual
patient. It aimed to introduce one broad definition of mental
disorder, one set of tight conditions under which compulsory powers
could be used and bring the Mental Health Act into line with the
European Convention on Human Rights. This would, the government
claimed, result in greater protection for the public from dangerous
mentally disordered patients and reduce the use of compulsory
powers.

But, as a diverse array of critics were quick to point out, the
measures contained within the draft document could have completely
the opposite effect.

For instance, the draft bill’s definition of mental
disorder specifically removes a number of exclusions contained in
the 1983 act, including drink and drug dependency. This means that
people with drink or drug problems and no other mental health
disorder could suddenly find themselves subject to compulsory
treatment.

The bill also removes the proviso that patients must be admitted
to hospital before compulsory powers are used.

“From the start the DoH’s position was that they wanted to
reduce the number of compulsions,” says Paul Corry, head of policy
at the mental health charity Rethink.

“We pointed out that they had done everything possible to cause
an increase.”

Rethink is also concerned that the bill’s proposal that
“nominated persons” rather than “nearest relatives” should have the
right to represent a sectioned patient’s interests could
marginalise carers.

Another bone of contention within the draft bill is the proposal
to replace the role of the approved social worker with that of
approved mental health professional (AMHP) which would be open to
workers from other disciplines such as psychologists and mental
health nurses.

This has caused fierce debate, even among members of those
professions who would become eligible for the new AMHP role.

Nurses attending road shows run by the DoH during the
bill’s consultation period pointed out that ASWs were able to
provide a non-medical social perspective whereas a nurse might not.
And the Royal College of Nursing’s response to the draft
highlighted concerns that the AMHP role would replace nurses and
social workers with “a policing rather than a therapeutic
role”.

The British Association of Social Workers, in its response,
claimed the AMHP role perpetuated “all the inherent difficulties in
the present ASW role” while omitting “those elements of
professional judgement and discretion, and the ability to take into
account the social and environmental circumstances, which make the
ASW a professional social work role”.

Indeed, BASW warned that social workers might

not be able to take up the new AMHP role as to do so might
breach the General Social Care Council’s code of conduct.

According to Robert McLean, chairperson of the approved social
worker interest group, the very prospect of an end to the ASW role
is already causing problems.

“There’s already a national shortage of ASWs, which may be
part of the reason for broadening out the definition,” he says.
“But the draft bill has made that worse as we are seeing fewer
training courses being offered because of uncertainty about the
role.”

McLean claims that it is unreasonable to expect professions
without a solid grounding in social care to be able to play the
ASW’s role in sectioning.

“In some of the discussions I’ve had with the DoH they
haven’t fully understood the role of the ASW. There’s a
lot more to it than knowing the Act. It’s about organising
the whole sectioning process. Here in the North West the average
sectioning takes around six hours. I can’t see other
professions wanting to do that.”

McLean is also concerned that by removing the local authorities
which employ ASWs from their obligations in invoking compulsory
powers, the bill will result in medical personnel dominating the
sectioning process.

“Section 117 which obliges local authorities to provide
aftercare will be taken on by the NHS trusts which again risks
moving too far towards the medical model of care. I also
don’t think that local authorities will be that keen on
appointing social workers specifically for mental health unless
there is a legal obligation to do so.”

According to Rethink’s Paul Corry, the long wait for the
draft bill to re-emerge will be worth it if it results in a mental
health act that truly respects the rights of people with severe
mental disturbance. But this will only happen if the government
acts on the criticisms raised during the consultation process.

“Our position is still that the 1983 act needs reforming, but
it’s important to get that reform right,” says Corry. “If the
bill was put to parliament in its original form it would be
extremely controversial and would undoubtedly be subject to a lot
of debate and delay. What we are keen to do is assist the
government to produce a bill that can pass quickly through
parliament on the basis of consent.”

Contested revisions

Bill’s proposal
To broaden the definition of mental disorder and the
criteria for compulsion.

What the critics say
Likely to lead to increased and unwarranted use of
compulsion, resulting in increased distress for service users,
strain on the mental health and tribunal system, and greater cost.
(Mind)

Bill’s proposal
To require those in the process of applying compulsory
powers to record their reasons in detail, including reasons for not
sectioning the patient.

What the critics say
Mindful of complaints or legal claims against them, they
may feel obliged to err on the side of caution and section patients
against their better clinical judgement. (Mind)

Bill’s proposal
Introduction of community treatment orders to allow
compulsion to take place within the community.

What the critics say
ADSS has concerns whether there will be sufficient staff
and services in place to enable these provisions to operate
effectively. (ADSS)

Bill’s proposal
To replace the role of approved social workers with
approved mental health professionals.

What the critics say
The AMHP role, as defined, is not one which a qualified
social worker could properly undertake, since to do so would
contravene BASW’s code of ethics and in all probability the
GSCC code of conduct. (BASW)

Bill’s proposal
To extend powers of compulsion to the prison service

What the critics say
A prison is not a therapeutic environment for a person
with a mental disorder. (LGA)

Bill’s proposal
“Nominated person” to replace nearest relative to look
after the patient’s interests

What the critics say
Considerably worsens the position of carers and therefore
increases the difficulties for people with mental illness in
getting access to appropriate support, care and treatment.
(Rethink)

Case Study: In a state of limbo?

Elsie is a 60-year-old woman from Yorkshire with a history of
schizophrenia. She rejects her diagnosis and has refused to accept
treatment for several years. The only family member she has contact
with is her daughter Karen who lives in London. Elsie blames Karen
for the fact that she was sectioned 20 years ago.

Recently Elsie has begun quarrelling with her neighbours and
there have been complaints to the police about her aggressive
behaviour.

One Sunday Karen received a telephone call from the minister at
Elsie’s local church. He said she had assaulted members of
the congregation believing them to be possessed by evil spirits. He
believes she needs urgent help.

Karen contacted Elsie’s GP but he said he could not do
anything unless Elsie asked him for help. The community mental
health team said they could not intervene unless the GP made a
referral. Karen reluctantly concluded that only compulsion could
help her mother.

Under section 13 paragraph 4 of the Mental Health Act 1983 Karen
is her mother’s nearest relative and can require an approved
social worker to assess the situation with a view to detaining
Elsie under the MHA. She also has some rights to information and
consultation if an application is made.

Whereas under the provisions of the draft bill the minister
could ask for Elsie to be assessed but it would be up to the
authorities to decide whether or not the request is “reasonable”.
An approved mental health professional could ask Elsie to nominate
someone to represent her, but as she does not regard herself as
ill, she might not do so. There is no carer who meets the
definition in the draft bill. Karen is the only relative willing to
take on the responsibility, and nobody else has her knowledge of
Elsie’s background and history. But Elsie would clearly
object to Karen becoming the nominated person. This would leave
Elsie with nobody to represent her interests.