Changes within the latest draft of the Mental Health Bill

The reform of mental health services in England and Wales began in 1998 when an expert committee was appointed to inform the principles of any new legislation (Department of Health, 1999). However, the government's first two attempts in 2002 and 2004 attracted widespread criticism for being too complex and unethical.

In 2005 an independent parliamentary scrutiny group expressed serious reservations about the resource implications of many of the proposals in the 2004 bill (Joint Committee on the Draft Mental Health Bill, 2005). It warned that 'significant amendments' would be required.

Faced with this prospect and concerned about the pressures on parliamentary time, the government abandoned its plans.

The latest and third draft of the Mental Health Bill, which had its second reading in November 2006, now seeks to amend the current 1983 Mental Health Act rather than substantially rewrite it.

The Mental Health Alliance, which includes the RCN, the Mental Health Nurses Association and the Royal College of Psychiatrists, is dismayed that the government has missed the chance to radically overhaul services. It also fears that the latest proposals focus too heavily on public protection at the expense of patient safeguards. The Alliance suggests that the government should take its lead from the 2003 Scottish Mental Health (Care and Treatment) Act.

The Conservative Party and several prominent members of the House of Lords have also demanded substantial changes.

Issues of contention
The right to independent advocacy, the creation of care plans and separate arrangements for children and young people have all been left out of the new bill.

However, some of the more contentious features of its 2004 predecessor have been retained. These include a single definition of mental disorder as 'any disorder or disability of the mind', rather than the four different categories currently used.

The new proposals also modify the groups eligible for treatment under the act. The previous exclusion of 'sexual deviancy' has gone but that of alcohol or drug dependency remains, although this will be reworded to make it clear people with drug and alcohol problems should not be excluded from treatment if they are mentally ill. The government says this will make the act easier to use and prevent arbitrary exclusions. However, critics fear its scope will widen the range of people who can be forcibly admitted to hospital for treatment. There were almost 47,000 episodes of compulsory hospital treatment in England in 2004-2005 (Office for National Statistics, 2006).

An 'appropriate treatment test' also replaces the 'treatability test' that currently restricts compulsory detention and treatment to those whose condition could be therapeutically improved.

Provided 'appropriate' treatment is available, the new test will apply to everyone. It will therefore include conditions currently considered untreatable, such as severe personality (psychopathic) disorders.

Although competent 16- and 17-year-olds can also be compulsorily admitted to hospital if they refuse treatment - provided their parents give consent - the bill does not specify the need for age-specific treatment.

However, practitioners will now be legally obliged to take into account whether the treatment is culturally appropriate, how far the service is from the patient's home, and what effect it will have on contact with family and friends.

The government claims the new test will encourage the growth of responsive services and better protect the public from harm. The alliance objects to this measure, insisting that compulsory treatment must have some clear health benefit.

Another contentious issue is the introduction of supervised community treatment, which will oblige patients to continue treatment and maintain contact with mental health services after they have completed a compulsory detention period. Only patients considered to pose a risk to themselves or others would be eligible, and only on condition that appropriate community support services were in place.

The government says this will stop the 'revolving door' syndrome, where mental health deteriorates once treatment stops and patients end up back in hospital, or worse, in prison. But critics say there appear to be no time limits on this type of treatment and that the eligibility criteria are too loose.

Workforce issues
Under the 2006 draft bill nurses, occupational therapists and chartered psychologists would be able to train for the new roles of approved mental health professionals (AMHPs) and approved clinicians, which would replace approved social workers and responsible medical officers, respectively.

The role will also include providing supervised community treatment, and AMHPs will be able to apply to the county court to take over responsibility for making decisions about a patient if the nearest relative is deemed unsuitable.

The Department of Health and the Welsh Assembly will set out the specifics of training and competencies required for both roles, although the AMHP role will be based on current social work training.

The parliamentary scrutiny committee (2005) wanted national training standards and methods of monitoring to be set out in the legislation. It warned that without adequate staff and funds the new tribunal would be unworkable, and that mental health would remain a 'Cinderella' service.

What had been hoped for?
The 2005 parliamentary group concluded that a clear set of principles to underpin the legislation needed to be included to guide practitioners and tribunal members on the extent of their powers and reassure service users. The Mental Health Alliance agrees and is also calling for principles of non-discrimination and diversity to be included in a bid to more effectively promote the rights of black and minority ethnic service users.

The 2005 National Mental Health and Ethnicity Census (Mental Health Act Commission, 2006) shows that disproportionately high numbers of BME people are detained and compulsorily treated under the current act. They are also more likely to be misdiagnosed. The lack of effective action on the treatment of BME patients with mental health problems prompted the resignation in early December of Lord Patel, the head of the government's dedicated ethnic minority health programme.

The code of practice that will accompany legislation will contain a set of principles, and the government says that it has already taken on board recommendations arising from a Race Equality Impact Assessment of the proposals (DH, 2006).

The proposals do little to address the lack of long-term care and support for the mentally ill and their carers, or to compel services to assess and meet the needs of people with mental health problems.

Mental health service reform is an important issue. Statistics show that one in six adults will have a mental illness at some point in their lives, and one in four will seek help (Joint Committee, 2005).

Accessing appropriate help early can prevent deterioration and relapse as well as avoiding the need for compulsory treatment (Heinimaa and Larsen, 2002). However, mental health services have been among the hardest hit in the recent round of cuts to NHS services, which will make this challenging to implement.

THE BILL PROPOSES SEVEN MAJOR CHANGES
- A broader definition of mental disorder

- Abolition of the 'treatability test'

- Supervised community treatment for those who have completed compulsory treatment (having been sectioned)

- Right to remove a 'nearest relative' through the county court

- Widening the range of professionals involved in roles previously assigned to social workers and doctors

- Shortening the time limits for a patient's automatic referral to an independent tribunal (also known as a mental health review tribunal)

- Strengthening safeguards for people without the capacity to consent to care under detention, such as those with dementia, to comply with human rights legislation. This will be amended in the 2005 Mental Capacity Act.

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