1 General Comments

1.1 The Green Paper does not demonstrate the same apparent commitment to consensus as the Expert Committee. The Government's concern for public safety is understandable but parliament should not support legislation which discriminates against the mentally ill.

1.2 Motivation for reform arises out of the campaign against the dehospitalisation of the mentally ill. The government's acceptance that "community care has failed" is ambiguous as it could imply that the policy of closure of the asylums has been a mistake. In fact mental health services have shown resistance to moving from a hospital base.¹

1.3 Independent inquiries into homicides by psychiatric patients have been mandatory since 1994. Critical evaluation of these inquiries is lacking.² Nor has any systematic review been attempted. Insufficient attention has been paid to the complexity of healthcare systems.³ Legislation should not proceed without sense being made of these inquiries. They have added to the stigmatisation of the mentally ill.

1.4 The Government cites the national confidential inquiry into suicide and homicide by people with mental illness for its evidence that community treatment orders will lead to a reduction in suicide and homicide. However, reports from this inquiry make recommendations beyond the evidence.⁴ More coercion may in fact lead to an increase in deaths.

1.5 As the Expert Committee was required by the Government to implement community treatment orders it avoided the issue by making little differentiation between hospital and community treatment in its proposals. Explicit consideration needs to be given to the implications of community treatment orders before proceeding to legislation.

1.6 The Expert Committee recommended that a real attempt should be made to understand the experience of mental health legislation overseas. The Department of Health commissioned a systematic review of research, which did not include a comparison with other jurisdictions. This information is required, particularly to learn from the experience of the introduction of community treatment orders in other countries. For example, it is imperative to avoid the polarisation and banality of the "forced drugging" debate in the USA.⁵

1.7 The fear is that the Green Paper will lead to more compulsory treatment, even though there has already been a recent increase in detention under the current Mental Health Act,⁶ and an increase in secure psychiatric beds. For example, the only illustration given in the Green Paper of how the new Act may work is of a 79 year old depressed woman with slight memory difficulties, who is forced to take antidepressant medication in her Part III home. The implication seems to be that wide-ranging powers are being given to mental health services to treat vulnerable people against their will. The justification for this extension of powers has not been made and adequate safeguards must be in place.

1.8 None of the above should be taken to mean that mental health services are not in need of reform. Services tend to be impersonal, lacking in understanding and over-reliant on the use of medication and ECT.⁷ More attention should be paid to the experience of users of the services. The biomedical dominance of psychiatry needs to be challenged.⁸

2. Specific comments on some consultation points

2.A The Government would welcome views on whether the inclusion of principles would aid the interpretation of a new Mental Health Act and on the list of principles proposed in paragraph 4 (page 15).

2.A.1 The Act would benefit from the inclusion of principles listed by the Expert Committee because of fears that it may discriminate against the mentally ill.

2.A.2 Theoretical principles do have practical effects and do not need to be merely pragmatic recommendations such as proposed in the Green Paper in paragraph 4 (page 15).

2.B The Government accepts the Committee's recommendation in principle, but would welcome comments. In particular, what are the advantages and disadvantages of including a more specific definition of mental disorder:

2.B.1 A functional definition of mental illness is necessary, as there is insufficient evidence to substantiate syndromal or biological definitions, and their approval in the Mental Health Act or code would create controversy.

2.B.2 Single-word diagnoses do not necessarily help the understanding of the mentally disordered person as a person.⁹ Although there has been an explicit and intentional concern with diagnosis over recent years, this trend has been misguided and any reference to more specific definitions of mental disorder in the code will need to make reference to this controversy.

2.C The Government would welcome views on the following points:

• Whether the applicant for admission must be an approved social worker or whether they might be a mental health professional either with specialist training or recent knowledge of the patient?
• If the applicant is a mental health professional is it essential that the application is supported by two other opinions or would one opinion from a psychiatrist working in the hospital providing specialist services be sufficient?

2.C.1 The Green Paper suggests "that it is essential that the person responsible for making the application is independent of the hospital that will be providing care and treatment". Currently the ASW need not be independent of the community care team. If independence is essential it will need to be defined.

2.C.2 The current Act only requires two mental health professionals (ie. ASW and section 12 doctor) to be involved in the application, and the case for increasing to three does not seem to have been made. Nonetheless, assessment by three health professionals (one of whom may be a GP) acts as safeguard, particularly if there is disagreement, and no case has been made for a reduction to two health professionals.

2.D The Government would welcome views on the proposals for emergency powers of detention:

2.D.1 The period of 24 hours should be sufficient if a clear duty is imposed on health authorities to ensure that arrangements are made to provide easy access to section 12 doctors.

2.D.2 No case seems to have been made for reducing the current requirement of two professionals outside hospital.

2.D.3 It makes sense to replace the 6 hour holding power by the 24 hour emergency provision, as there seems to be little to be gained by involving the RMO or nominated deputy as in current arrangements for section 5(2).

2.E The Government would welcome views on whether there is a real need for an independent review within 7 days of the commencement of assessment and on what alternative measures might be put in place to ensure prompt assessment and care planning.

2.E.1 Early involvement of the independent review is necessary as the authority for detention seems to reside with the independent review. It appears unclear to whom an application for a community treatment order should be made. The Green paper suggests the registered person will be the Chief Executive, but there is currently limited joint mental health authority between NHS Trusts and social services. To avoid confusion it seems that the authority for at least community treatment orders has to reside with the independent review to whom applications will be made. Using this argument, early involvement of the independent review is not only about ensuring prompt assessment and care planning, but also about ratifying that the order was appropriate.

2.F The Government would welcome comments on the three models proposed by the Committee. We would also welcome views on the alternative model proposed in paragraph 40 (page 28).

2.F.1 The need for a medical opinion on the tribunal may depend on the use of independent medical opinion in advocacy.

2.G The Government would welcome views on whether a capacity-based approach to compulsory care and treatment for those with a mental disorder is helpful in terms of practical outcomes. In particular:

2.G.1 The current law takes insufficient account of people's capacity to make their own decisions. A capable decision does not need to be reasonable, right or responsible,¹⁰ but the risk is that in practice these will be the criteria used to assess incapacity.

2.G.2 It is not just the level of risk which determines the need for compulsion. There are people with high risk who are not mentally disordered.

2.G.3 The Expert Committee seems to have introduced the notion of capacity as a safeguard against the extension of powers to the community. Removal of the requirement for hospital admission could increase the potential number of people subject to compulsion; yet, the aim of the new Act should be to reduce the need for compulsory powers. If the notion of capacity is not used there needs to be some other limitation on the use of community treatment orders. This issue was not explicitly considered by the Expert Committee.

2.G.4 The notion of incapacity is complex. The test of understanding the nature and effect of the decision may be easier to apply in cases of cognitive impairment or learning disability. Mentally disordered people are generally not cognitively impaired. A deluded person or a person lacking in insight may still be responsible for their actions and capable in that sense. Emotional arousal in a mentally disordered state may make someone less capable. Intervention when a person is acutely disturbed and likely to settle following intervention is relatively easy to justify.

2.H The Government would welcome views on the practicality of the proposals outlined for compulsory care and treatment in a community setting.

2.H.1 Previous versions of the Code of Practice have thought that people should not be forced to acquiesce to informal admission by suggestions of compulsory admission. Introduction of community treatment orders increases the potential for undue pressure to be put on patients, and is likely to lead to a reduction in those seeking help voluntarily.

2.H.2 Noncompliance will occur amongst a proportion of those under a community treatment order. Guidance about revocation of orders may be necessary.

2.H.3 The efficacy of community treatment orders has not been well evaluated. There have been few randomised controlled trials, and what evidence there is suggests that outpatient commitment is no substitute for intensive treatment.¹¹

2.I The Government would welcome views on whether the tribunal should have exclusive power to discharge compulsory orders unless they choose to leave this responsibility to the clinical supervisor.

2.I.1 The tribunal is unlikely to be able to review regularly whether admission criteria were still being met, which would be necessary if it had the exclusive power to discharge.

2.J The Government would welcome views on these proposals. Would a single power to order assessment and treatment meet the sentencing needs of the court, and enable the best disposal to be made, irrespective of the offender's actual mental disorder?

2.K Should the court have the power to grant leave of absence to a patient remanded for assessment and treatment? Should there also be provision for the court to decide, when the remand order is made, whether or not the power to grant leave of absence should be delegated to the patient's clinical supervisor?

2.L The Government would welcome views on whether the arrangements for transferring prisoners to hospital for compulsory care and treatment for mental disorder should be changed

2.M The Government would welcome views on whether police powers to remove people who appear to be in need of medical treatment from public places should be extended to cover cases where the person concerned is found by the police when they have legitimately entered private property

2.M.1 There is evidence that police already exceed their current powers. Police powers to detain under the Mental Health Act should probably be restricted to those who would otherwise be liable to arrest.

2.N The Government would welcome views on the Committee's proposals to ensure that people who have been arrested get early access to a gate-keeping assessment where necessary

2.N.1 If there are difficulties in the police obtaining Mental Health Act assessments this may be due to lack of court assessment or similar schemes rather than reflecting a need for a change in the Mental Health Act. A clear duty imposed on health authorities to ensure that arrangements are made to provide easy access to section 12 doctors may also help.

2.O The Government would welcome views on the safeguards that should apply to use of ECT. In particular:

2.O.1 If it is accepted that ECT can save lives in cases of severe depression, there seems to be no need for it to be imposed on any patient who retains capacity and is not consenting, as severely depressed people are likely to have lost capacity because of psychosis.

2.O.2 The requirement for second opinion has probably been a useful safeguard against indiscriminate use of ECT. If necessary any disagreement about the need for ECT could be resolved by appeal to the tribunal with independent advocacy available.

2.P The Government would welcome views on use of special safeguards for specified treatments. In particular:

• According to what criteria should the Secretary of State impose safeguards on treatments?
• Which treatments should be covered?

2.P.1 Acceptance of the requirement for an independent tribunal means that the tribunal should not only make decisions about the need for compulsion but also must be involved in resolving disagreements about the need for treatment. It therefore has a responsibility for better health outcomes.

2.P.2 Safeguards in the use of medication are currently inadequate. The use of psychotropic medication has increased dramatically since the 1959/1983 Acts. Particularly in the case of people not consenting to treatment, there is a responsibility to ensure that prescribing is necessary and appropriate.

2.Q The Government would welcome views on the appropriate time to bring in a second opinion doctor. Should the period during which medication is allowed to continue without consent and without a second medical opinion be changed from the current period of three months? If so, what would be a better period?

2.Q.1 The current system of second opinion for medication probably gives little safeguard. The tribunal should have the power to resolve disagreements about the need for medication with independent advocacy available for the person required to take medication.

2.R The Government would welcome views on the issues of treatment without consent in the period before a formal compulsory order is issued:

2.S The Government would welcome views on how this recommendation might be implemented:

• What criteria should the tribunal use to appoint a nominated person for an incapable patient?
• How should provision for a nominated person relate to other preferences the patient might express?

2.T The Government would welcome views on whether the principles outlined by the Committee are the best way to achieve the right balance between confidentiality, the patient's health and welfare and the protection of others?

2.U The Government would welcome views on whether rights in the Victims' Charter for victims and their families to be given information about detention and release of offenders should be extended to cover those restricted patients who have committed serious, violent or sexual offences.

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2. Szmukler G (2000) Homicide inquiries. Psychiatric Bulletin 24: 6-10

3. Cook RI, Render M & Woods DD (2000) Gaps in the continuity of care and progress on patient safety. BMJ 320: 791-4

4. Geddes J (1999) Suicide and homicide by people with mental illness. BMJ 318: 1225-6

5. Oaks D & Fuller Torrey E (2000) No forced drugging. Psychiatric Services 51: 389-90

6. Wall S, Hotopf M, Wessely S & Churchill R (1999) Trends in the use of the Mental Health Act: England 1984-96. BMJ 318: 1520-1

7. Newnes C, Holmes G & Dunn C (1999) This is madness. A critical look at psychiatry and the future of mental health services. Ross-on-Wye: PCCS books

8. Critical Psychiatry Network (no date) Website [online] Available http://www.critpsynet.freeuk.com/ [2000, Mar 28]

9. Meyer A (1951/52) Collected Papers (Four Volumes) (Ed. E. Winters). Baltimore: John Hopkins Press

10. Roth LH, Meisel A & Lidz CW (1977) Tests of competency to consent to treatment. American Journal of Psychiatry 134: 279-284

11. Swartz MS, Swanson JW, Wagner HR, et al (1999) Can involuntary outpatient commitment reduce hospital recidivism? Findings from a randomised trial with severely mentally ill individuals. American Journal of Psychiatry 156: 1968-1975