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Why Mental Health Law?

2. Mental health legislation, of course, is an extremely difficult and sensitive issue. But it is not a subject, as a country or Government, we can duck.

3. One in six people suffer from mental health problems at some time in their lives. Over one million people each year seek specialist treatment. It’s why the Government has made improving mental health provision a major priority.

4. For the vast majority of people, the help they receive from their GP or specialist out-patient services is enough to help them manage or cure their problems. Others willingly seek in-patient help.

5. But a small number of patients – some 14,000 at any one time - have problems so severe they need to be detained in hospital to allow treatment and to protect themselves or the public from harm.

6. These risks are real. Every year over 1,300 people in contact with mental health services take their own lives. Every year mental health patients commit around 50 homicides. Often these are preceded by a reluctance to take treatment that would have kept them well. This number is higher than of homicides (46) by shooting last year. And these figures of the lives lost – frightening enough in themselves - do not reflect, of course, the full scale of the distress and misery that those with severe mental health problems feel themselves or cause to their loved ones or the wider community.

7. This all explains why, for the last 150 years, it has been recognised there are occasions when it is necessary to detain someone with a mental health problem, and treat them without their consent, in order to protect them and the public.

8. The decision to detain people to enable treatment is, by no means, unique to this country. Almost all countries recognise in law that it must be taken on occasions. At its root is a recognition that society has made a very explicit choice that we want to act to prevent harm rather than waiting until it has already happened.

9. But the law also recognises that depriving someone of their liberty and providing treatment without consent – even for the best of reasons – can never be taken lightly.

10. It is why we have mental health legislation which puts in place strict safeguards to make sure that people are detained and treated without consent only when absolutely necessary

Why are we updating MH legislation?

11. Over the last ten years, the Government has given a much higher priority to mental health services. We have invested enormously to improve the services provided and put in place reforms to ensure this extra funding delivers real improvements to patients.

12. We have also recognised – and here there is general agreement - that our mental health laws do not reflect advances in knowledge and treatment and need to be updated.

13. In particular, we believe the present law can deny treatment to those who are in urgent need of it. We want to modernise the law to remove these obstacles, both for community-based and hospital treatment, for the good of patients themselves and to help better protect the public.

SCT: supervised community treatment

14. We want, for example, to introduce supervised community treatment which ensures patients can get the support and treatment they need without having to stay in hospital.

15. It will deal specifically with what are often dubbed revolving door patients – those who are in hospital, start to get better, are discharged, fail to take their medication or stay in touch with mental health services, relapse, and have to be brought back into hospital for treatment, hopefully before harming themselves or the public.

16. Supervised treatment allows patients who are able, with supervision, to return to the community and to the care of those closest to them. If they need to return to hospital they can, and return before their condition seriously worsens.

17. This is good for the patient who can return earlier than they might otherwise have done to their homes. It is good for their families and friends, to know that the support framework is there to help. And it is good for society to know that action is being taken to prevent relapse and the scope for harm associated with relapse.

Other changes

18. The Bill makes other important changes too. As I have already said, a fundamental aspect of the Bill is about making sure that patients with serious mental health problems receive the treatment and care they need to prevent them from harming themselves or others.

19. So we want to close a loophole which has led to some with personality disorders being denied treatment and both the patient and public being denied protection.

20. This has been the unintended consequence of the so-called ‘treatability test’ in the existing 1983 Act. As part of the safeguards for the individual in the Act, this required clinicians to predict that treatment was likely to work before certain patients could be detained.

21. But this safeguard has, on occasions, been misinterpreted as meaning that patients can only be detained if they can be cured, rather than treated. This confusion has led to too many patients with personality disorders – which can be treated but not cured – being turned away from services. These are people with profound mental health needs, At times they will pose a serious risk. Some of these will have had terrible experiences in childhood and our concern for them as children is not reflected in the way we turn them away as adults.

22. On top of this, if they are detained the loophole has sometimes let their lawyers argue against detention even when clinicians believe they may pose a danger to themselves or others. The consequence is that some patients are denied treatment and left unsupervised in the community.

23. The Bill gets rid of the treatability test, and instead says that appropriate treatment must be available. This will mean that there is no excuse for denying the treatment now available to those with personality disorders and no way that such people, or their lawyers, can argue that they should not be subject to compulsory powers when necessary. This must be in the best interests of the patients themselves and society as a whole.

Lords changes

24. But the Lords – or at least a majority of them – have taken a different view. They have not put the public at the heart of their deliberating. Instead, peers have seriously weakened the changes we want to make and, in my view, have seriously weakened the protection for both patients and the public. I want to spell out the impact of the changes peers have made and the risks if they are not reversed.

25. I am pleased, for example, that the Lords agree that the treatability test had resulted in some people with serious mental disorders being denied appropriate treatment and left in the community. What is difficult to understand is why they have amended the bill to introduce new wording which in effect introduces a new treatability test with exactly the same effect. It will mean those patients with personality disorders currently being denied services will continue to be turned away – with all the risks involved for the patients and the public.

26. Nor is it easy to understand why the Lords have placed such restrictions on supervised community treatment that will mean far fewer patients will benefit from this essential change. The result will inevitably be either that patients have to stay longer in hospital, or be discharged without proper supervision. The result again may be that they become a danger to themselves and others. Every restriction is a patient untreated, a family in distress.

27. The Lords have also saw fit to introduce an ‘impaired judgement’ test. This test will make the use of detention no longer be determined by patients’ needs. Instead, the first question will be whether the patient’s capacity to make decisions about treatment is impaired. If it cannot be shown to be impaired, then detention will be forbidden – however much the patient needs treatment and however much they or other people will be at risk without it.

28. The implications are clear. Not all suicidal patients have impaired judgement. The Lords in effect are expanding the right to suicide. Examples psychiatrists have given to me are of a young women with borderline personality disorder who are suicidal but do not have impaired judgement. Who exactly are we helping by not enabling clinicians to help this woman?

29. Furthermore, by adding a range of unnecessary exclusions, the changes forced through by the Lords will inevitably open up new avenues for patients and their lawyers to use to try to secure premature discharge for some of the most dangerous patients.

Implementation

30. Local government will play a key role in the successful implementation of the Bill and I congratulate you on holding this conference today to consider these issues. We are already working on the support we need to give you to improve service delivery once we have improved the legal framework.

31. As you will know, local government will be responsible for approving all Approved Mental Health Practitioners. This new vital role will build on the existing expertise and valuable contribution made by approved social workers at present.

32. I am also well aware of the interest you will have in supervised community treatment given your provision of housing and day care to those who are suffering from mentally illness. To support the implementation of supervised community treatment, we have asked the Care Services Improvement Partnership (CSIP) to run a national project specifically on this topic. This is just one of a number of national projects they will be running to support Bill implementation.

33. The SCT programme will support organisations - such as those you represent - in scoping and planning for the changes. It will work with local government to develop guidance for professionals in delivering SCT and to help you prepare and train your workforce.

34. We will also be providing training and support on the ‘Bournewood’ provisions included within the Bill. These safeguards are for those who lack capacity and have to be deprived of their liberty in their own best interests to keep them safe.

35. Local government has a particularly vital role to play with relation to Bournewood. It is local government that will provide care and services to many people who may meet the Bournewood assessment criteria. It is local government that will grant authorisations for deprivation of liberty in care homes. We are grateful for the important contribution already made by those from local government through our implementation advisory network, and we look forward to working closely with you in the future.

36. As well as these national projects, each of the CSIP Regions have appointed a lead person to co-ordinate implementation locally. Each Region has already been consulting with local government and other stakeholders in producing a local implementation plan. There are also local networks established which many local authorities have got involved with. So I urge you - if you haven't already - to make contact with your CSIP regional office, and ensure you are engaged in this work.

Conclusion

37. As I have said, mental health law is a very delicate and important area. No one can claim the Government has rushed into the reforms we want to make nor that we have failed to consult widely.

38. We have made decisions which we believe strike the right balance between getting treatment to those who need it, putting in place patient safeguards and minimising the risk to the public.

39. By choosing to ignore the strict conditions for detention already in place, downplaying the importance of the judgment of doctors and the implications of denying treatment for patients, the Lords have altered, either knowingly or unknowingly, the entire balance of the bill.

40. It’s why, for the sake of mental health patients themselves and the safety of the public, these changes must be overturned.