On 23 March 2006, the Government announced that its plans for a new Mental Health Bill would be abandoned in favour of amendments to the 1983 Mental Health Act, due to concerns over the length and complexity of the new Bill and pressures on Parliamentary time.
The Mental Health Amending Bill was published on 17 November 2006 and is now making its way through Parliament.
To read our bulletins about the mental health bill, click on the links below:
For more information on the progress of the Bill through Parliament click here.
Draft Mental Health Bill 2004: Previous News
Draft Bill 2004
The 2004 Draft Bill superseded an earlier Draft published in 2002 that was heavily criticized. The key changes, and the key criticisms leveled against the 2004 Draft by a number of organizations, can be summarised as follows:
Key changes to the 2002 Draft:
- Definition of ‘mental disorder’ made more specific
- Conditions for compulsion made more specific
- Patients eligible for initial assessment in the community more clearly defined
- Tribunal’s power limited, with focus on patients who could harm others
- Compulsion in prison abandoned
- Over-16 patients given right to refuse ECT
- ECT only to be provided to under-16s where authorised by the Tribunal or Court
- Healthcare Commission to take a more proactive, investigatory approach
- Minimum sentence for ill-treatment or neglect of patients increased to 5 years
- The Bill no longer interferes with the common law position of parents
- Wider definition of carer adopted
Key criticisms of 2004 Draft:
- Poor fit with Welsh policy and services
- Rights to early treatment not in place
- Definition of mental disorder still too broad
- New groups will inappropriately come under the scope of compulsion legislation
- Risk of resources taken from services – this is seen as a particular problem in Wales
- Risk assessment role given to psychiatrists might lead them to confine unnecessarily
- Rights of carers still not sufficient or appropriate
- Introduction of compulsory powers in the community might increase number of people subject to compulsion
- Increased use of compulsion may discourage people from seeking treatment
- Following discharge from hospital, a patient will be entitled to free aftercare services for only six weeks
- Approved Social Worker (ASW) to be replaced by Approved Mental Health Professional (AMHP)
Joint Committee Report
A Joint Parliamentary Committee was appointed to scrutinise the 2004 Draft Mental Health Bill following its publication. In March 2005 the Committee published its report, with the following key findings:
- the Bill should proceed – but only with significant amendments
- there’s too much focus placed on protecting the public from a small minority of people with a mental illness
- the powers granted in the current Draft could potentially be used as the equivalent of a mental health ASBO – enforcing treatment on people who might only be a ‘nuisance’
- compulsory treatment should be used only where there is no other alternative and where it has therapeutic benefit
- people who can’t benefit from treatment should be dealt with by separate legislation (for example people with an untreatable “personality disorder”)
- treatment in the community should be more restricted than under current proposals
- there should be reciprocal rights to treatment including the right to assessment
- the law should play a part in improving services and combating stigma
- fundamental principles should be set out at the start of the Bill.
- mental health services in Wales are significantly less developed than in England
- areas of Wales which are sparsely populated will “complicate the implementation” of an Act as will the necessity for a bilingual service
- mental health services in Wales must be at least as good as now in England before the provisions of the Draft can be implemented – and resources should be made available to achieve this
- mental health services should be available in Welsh and English.
The Government response to the Joint Parliamentary Committee Report
In July 2005 the Government published its responses to the Joint Parliamentary Report. Whilst a significant number of the Committee’s recommendations were taken on board either fully or partly, key recommendations were not accepted. Here we look at some of the key responses to the Committee’s recommendations:
The Committee report said that the legislation should be about improving services.
The Government took issue with this, stating that the Bill is not about service provision, but about the legal processes for bringing people under compulsion.
The Committee said to the Government that the Bill places too much emphasis on public safety and not enough on patient rights.
The Government has firmly disagreed, criticising the Committee for not taking sufficient evidence from those who protect the public.
The Committee stated that although they thought the Government should retain the definition of mental disorder contained in the current draft, they believed that the scope should be narrowed so that the legislation could not be used inappropriately as a means of social control.
The Government agreed that in the case of substance misuse an exclusion is required in the Bill, as this will ensure that the Bill does not encompass the compulsory treatment of people whose only mental disorder is dependency on alcohol or drugs.
However, the Government believed that an exclusion on the grounds of sexual orientation, an additional condition for people with learning disabilities and communicative disorders, was unnecessary.
The Committee recommended that there should be a therapeutic benefit to any compulsory treatment, and that those with serious mental disorders who cannot benefit from treatment should be dealt with under separate legislation.
The Government did not agree that there was a need for separate legislation in addition to criminal law, and did not agree that compulsion should be limited to patients whose condition could be improved.
Community Treatment Orders
The Committee recommended that the use of non-residential treatment under compulsion should be limited to a clearly defined and clinically identifiable group of patients, such as patients who frequently relapse.
The Government agreed that groups of patients initially eligible for assessment and treatment in the community needed to be clearly defined in legislation. However, they did not agree that there should be a restriction on which patients may be non-resident as this would discriminate against those resident patients whose condition had improved to the point where, although they still required treatment, they no longer needed to be detained as resident patients.
The Committee recommended that service users have the right to ask for an assessment of their need for mental health care as a resident or non-resident patient, and that the authorities be required to justify in writing any decision to decline such voluntary assessment.
The Government stated that it would not agree to imposing specific requirements to carry out assessments within the Bill, as it was up to the NHS to ensure the quality and timeliness of services. It was pointed out that the Welsh National Service Framework covers the need for individuals to have their needs assessed and receive appropriate treatment and support.
The Committee recommended that the nominated person should have broadly the same rights and powers currently exercised by the nearest relative under the 1983 Act.
The Government did not agree to this, stating that as the safeguards in the Bill are constructed differently to the 1983 Act, the nominated person need not be given the rights of the nearest relative.
The Committee concluded that the standard of mental health services in Wales must be at least as good as it is now in England before the provisions in the draft Bill can be implemented. Resources should be allocated in order to enable the service to be brought up to the English standard.
The Government responded by pointing out that responsibility for resource allocation in Wales lies with the National Assembly, and that the Assembly Government has invested in improving mental health services as well as making mental health one of the top health priorities. It did not state that the standard of mental health services in Wales must be at least as good as it is now in England before the provisions in the draft Bill can be implemented.
Plans to introduce the Mental Health Bill into Parliament in the next session (i.e. before the end of 2006) were announced in the Queen’s Speech. The Government is now redrafting the Bill to take account of changes to be made following consideration of the Committee’s report.
Mental Health Alliance website (the Alliance is a coalition of 60 organisations campaigning for a better Mental Health Bill)