Introduction to amendments to Mental Health Act 1983 introduced by the Mental Health Act 2007 and the Wales code of practice

1. Mental Health Act 2007 Richard Griffith

2. NINE KEY CHANGES Introduces a Simplified Single Definition of Mental Disorder. Abolishes the Treatability Test and introduces a new Appropriate Medical Treatment Test. Ensures that Age Appropriate Services are available to any patients admitted to hospital who are aged under 18 (anticipated by 2010). Broadens the Professional Groups that can take particular roles. Introduces the right for patients to apply to court to displace their Nearest Relative.

3. Ensures that patients have a right to an Advocacy Service when under compulsion (implemented in 2009). Introduced new safeguards regarding Patients and Electro-Convulsive Therapy. Introduced a new provision to allow Supervised Community Treatment. This allows a patient detained on a treatment order to receive their treatment in the community rather than as an in-patient. Makes provision for earlier automatic referral to a Mental Health Review Tribunal (Tribunal) where patients don’t apply themselves

5. Least restrictive alternative principle

6. Respect principle

7. Participating principle

9. The definition of mental disorder The Act changed the Mental Health Act definition of mental disorder Same definition applies throughout the Act

10. From ‘mental illness, arrested or incomplete development of the mind, psychopathic disorder and any other disorder or disability of mind’ four specific categories of mental disorder: mental illness: not defined; severe mental impairment mental impairment psychopathic disorder Section 1(3) no-one dealt with under the Act as having a mental disorder: ‘by reason only of promiscuity, or other immoral conduct, sexual deviancy or dependence on alcohol or drugs’

11. to: “any disorder or disability of the mind”

12. The Act abolished the four separate categories of mental disorder The removal of the categories will mean that parts of the Act will cover certain mental disorders not currently covered such as, for example, mental disorders arising out of injury or damage to the brain in adulthood

13. The Act preserved the effect of the Act as it applies to learning disability Learning disability will only be treated as a mental disorder for Detention for treatment Guardianship Supervised community treatment and Provisions of Part 3 if it is associated with abnormally aggressive or seriously irresponsible conduct on the part of the patient concerned

14. Exclusion for promiscuity and other immoral conduct removed No new exclusions for things like cultural, political and religious beliefs or anti-social behaviour Exclusion for sexual deviancy removed because patients who need compulsory treatment for mental disorder are excluded because their disorder manifests itself in sexual deviancy or offending Removes the barrier to using the Act in cases where clinicians believe that it is the appropriate approach for a person whose only mental disorder is a clinically recognised abnormality of sexual preference Does not mean that the Act can be used on the basis of a person’s sexual orientation

15. Exclusion for dependence on alcohol or drugs retained to make clear that the Act is not to be used to force people who are suffering from no other mental disorder to accept treatment for substance dependence Reworded to make it clearer that people dependent on alcohol or drugs are not excluded from the scope of the Act if they also suffer from another mental disorder ““(3) Dependence on alcohol or drugs is not considered to be a disorder or disability of the mind for the purposes of subsection (2) above”

16. Professional roles The Act broadens the group of practitioners who can take on functions performed by The approved social worker (ASW) and The responsible medical officer (RMO) An ASW is defined in section 145 of the 1983 Act as “an officer of a local social services authority appointed to act as an approved social worker for the purposes of the Act” An RMO is defined in section 34 of the 1983 Act as being “the registered medical practitioner in charge of the treatment of the patient”

17. Approved Mental Health Professional The ASW role opened up to a wider group mental health professionals, including nurses, occupational therapists and chartered psychologists, in addition to social workers The role renamed approved mental health professional (AMHP) Functions of the AMHP the same as for the ASW in the 1983 Act Local authorities will be responsible for approving AMHPs, The requirement for ASWs to be employed by local authorities removed Directions from the Secretary of State and Welsh Ministers will set out minimum criteria for approval of a person as an AMHP in England and Wales respectively

18. Approved clinician Replaces the RMO Opened up to mental health professionals including chartered psychologists, nurses, social workers and occupational therapists, in addition to doctors Not to be confused with the role of section 12 approved doctors who retain the right to recommend detention under the Act Approved clinicians who are doctors will be considered as meeting the criteria for section 12 approval

19. Mental Health (Approved Clinician) Directions 2008 Schedule 2 Competencies The role of the approved clinician and responsible clinician Legal and Policy Framework Assessment of mental disorder Treatment Care Planning Leadership and Multi Disciplinary Team Working Equality and Cultural Diversity Communication

20. Responsible clinician will Have overall responsibility for the patient’s case Be able to Renew detention under section 20 Authorise compulsory treatment (subject to safeguards) under section 63 Place a patient on Supervised Community Treatment Detain a patient under s 5(2) Grant leave under s 17 (issue a recall under 17(4)) Discharge a patient Bar discharge by the Nearest relative

21. Nearest Relative Under the 1983 Act, each patient, except for a restricted patient, has a NR The NR is the person nearest the top of a specified hierarchy of relatives, starting with the spouse Relatives who lives with, or provide care to the patient is given preference over other relatives The NR cannot refuse to be the NR though there is no obligation for them to exercise their powers The NR can delegate their role to another person but not the patient The county court can transfer the functions of the NR to someone else in certain circumstances

22. Role of the Nearest Relative The NR has various powers such as the power to discharge the patient from compulsion, to apply for or to block detention, to request a review of their detention and to receive certain information about the patient

23. Reform To rectify an incompatibility with the European Convention on Human Rights for determining who can be the NR NR provisions in the 1983 Mental Health Act could leave a patient in a situation where their NR may be someone who poses a risk to their health or well-being NR provisions will be brought into line with the Civil Partnership Act 2005, putting civil partners on an equal footing to spouses from December 2007

24. Act Introduces a new right for a patient to apply for an order displacing the NR on the same grounds currently in existence for other applicants, and on the additional ground that the NR is unsuitable AMHP Person living with the patient Relative Patient This will provide a way to displace a NR who is, for example, abusive to the patient Extend the period of the court order for an indefinite period Applications to the court can be made to change or end orders that displace the NR

25. Safeguards provided by NR Act preserves the safeguards provided by NR that will be extended to Supervised Community Treatment (SCT) Authority to detain patients for compulsory treatment will remain with doctors and approved mental health professionals Role of the NR continues

26. Criteria For Detention Treatability Test Act abolishes the treatability test under section 3 Removing treatability and the categories of disorder will take away some unnecessary obstacles to practitioners’ ability to use the Act where it is warranted by the needs of the patient and the risk posed by their disorder The Act makes equivalent changes to the criteria for renewal of detention and discharge by the Mental Health Review Tribunal (MHRT) in sections 20 and 72 Detention can only continue so long as appropriate medical treatment remains available for the patient

27. Criteria for detention Act Introduce a new appropriate treatment test which will apply to detention under section 3 (and the similar powers in Part 3) Detention under these powers cannot be used or continued unless medical treatment is available which is appropriate to the individual patient’s mental disorder and all the other circumstances of their case

28. Decision makers will have to consider not only the clinical factors, but also, for example, whether treatment will be culturally appropriate, how far from the patient’s home the proposed service is and what effect it will have on the patient’s contact with family and friends The appropriate treatment must actually be available to the patient It will not be enough for treatment to exist in theory, if it cannot actually be offered or accessed

29. Practitioners will be required by law to make a holistic assessment of whether appropriate treatment is available before detaining someone Clinicians are allowed to decide what treatment is clinically appropriate in the same way as they would for any other patient

30. Appropriate treatment test applies to all groups of patients Detention can only continue so long as appropriate medical treatment remains available for the patient Second opinion doctor will in future certify that it is appropriate for the treatment to be given, taking account of the nature and degree of the patient’s mental disorder and all the other circumstances of the case

31. Medical Treatment Current definition of medical treatment in section 145(1) of the Act “includes nursing, and also includes care, habilitation and rehabilitation under medical supervision” Reference to medical supervision to be removed Definition of medical treatment amended to “includes nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care”

32. Consent to Treatment Even though the provisions of the Mental Health Act 1983 allows for compulsory treatment without consent it is essential that care and treatment is given in a climate of consent with respect for the rights and dignity of the patient. The European Convention on Human Rights places a negative obligation, a duty not to breach a patient’s human rights, on mental health nurses. Treatment for mental disorder can engage rights under article 3, the right to be free from torture, inhuman and degrading treatment, and article 8, the right to respect for a private and family life that includes respect for personal autonomy and dignity.

33. Safeguards Some treatment under the 1983 Act may only be given where provisions safeguarding patients have been met. There are three categories of safeguard, Treatments that require consent and a second opinion, this includes psychosurgery, and both the consent of the patient and an agreeable second opinion from a doctor appointed by the Mental Health Act Commission.

34. Treatments that require consent or a second opinion, includes the giving of medication for mental disorder beyond three months from when it was first administered, where either the consent of the patient or an agreeable second opinion from an appointed doctor.

35. Statutory Provision Patient who fall outside the provisions of Part IV Mental Health Act 1983 Capable Informal patients Patients detained under the emergency provisions of Section 4, the holding powers of Section 5, or the place of safety arrangements of Section 37(4), Section 135 , or Section 136 - Police place of safety power Part IV of the Act does not apply to people subject to Guardianship or Supervised Discharge. Valid consent required for treatment

36. Mary Davies, 30, is an informal patient with a learning disability and a very long history of self-mutilation. She has tried all the treatment her consultant has suggested without success. She is now in despair. The consultant believes her last hope is psychosurgery. Can Mary agree to this operation going ahead?

37. Treatment Which Requires Consent AND a Second Opinion - Section 57 Treatments deemed hazardous as their effects cannot be reversed The treatments which fall into this category are: any surgical operation for destroying brain tissue or for destroying the functioning of brain tissue [this category of treatment is specifically written into the Act] the surgical implantation of hormones for the purposes of reducing the male sex drive [this is a category that has been added by the Secretary of State for Health, and further categories could be added by being specified in the Code of Practice]. R. v Mental Health Commission Ex p. W [1988] The Commissioners have no power to refuse a course of treatment with a drug not surgically implanted and not a hormone, whether natural or synthetically manufactured, designed specifically to treat sexual deviancy.

38. Three people (one doctor and two others who cannot be doctors) appointed by the MHAC have to certify that the patient is capable of understanding the nature, purpose and likely effects of the treatment and has consented to it.

39. The appointed doctor must: consult two people who have been professionally involved in the patient’s medical treatment, one of whom must be a nurse and the other can be neither a doctor nor a nurse then certify in writing that the treatment should be given, having regard to it alleviating or preventing a deterioration of the patient’s condition Section 57 applies to detained and informal patients

40. Andrew Young, 56, has been diagnosed as having paranoid schizophrenia and learning difficulties and is detained under s3 Mental Health Act 1983. He has been on medication for mental disorder since his admission and is usually willing to accept it. However now he refuses to continue taking medication as he thinks it is harming him. Can the ward team insist that he take this medication? Would this be different if more than three months had elapsed since he first stated to take the medication?

41. Section 58 - Treatment Which Requires Consent OR a Second Opinion The treatments which fall under Section 58 requirements are: medication for the person’s mental disorder, if 3 months have gone by since the patient first had the treatment during their current period of detention under the Act. This is often referred to as the 3 Month Rule In the first 3 months the treatment can be given without consent, and without the Section 58 requirements being necessary. The 3-month period starts when medication for the mental disorder is first given and the “clock keeps running” even if there is a break in the medication, the Section is renewed or the type of medication changes. [This category of treatment is written into the Act itself].

42. Section 58 deals with three possibilities: the patient concerned is capable of understanding the nature, purpose and likely effects of the treatment and consents to it The RMO is the gatekeeper of the system the RMO discusses a plan of treatment the RMO decides if this consent is valid and certifies this on statutory form 38 and includes a brief description of the treatment consented to. Unlike consent forms used in medicine or surgery the patient does not sign the form only the signature of the RMO is required. The Code of Practice does not call for an informed consent, only a valid consent based on the patient’s capacity to understand what the treatment involves in broad terms. In order to help the patient the code calls for the RMO to explain the treatment at a level that is appropriate to the patient’s assessed ability.

43. the patient concerned is capable of understanding the nature, purpose and likely effects of the treatment and refuses the treatment the patient concerned is not capable of understanding the nature, purpose and likely effects of the treatment and therefore cannot consent to it. A doctor is appointed by the MHAC to give a second opinion. The appointed doctor must consult two people who have been professionally involved in the patient’s medical treatment, one of whom must be a nurse and the other can be neither a doctor nor a nurse. The second opinion appointed doctor can then: certify that, the patient should be given the treatment, having regard to the likelihood of it alleviating or preventing a deterioration of the patient’s condition, or if the second opinion is that understanding and consent are present, certify that this is the case.

44. Jane Jones, 36, has a learning disability and has developed a severe depression following the birth of her child. She is detained under s2 Mental Health Act. She has received 3 of the 6 ECT treatments she consented to but is now refusing to have anymore Can the ward team insist that she continue to have the course of ECT?

45. Section 58A ECT cannot be given without the consent of a capable patient or agreement from an appointed doctor where the person is incapable. An incapable patient with a valid and applicable advanced decision refusing healthcare or a person who can refuse consent to ECT under a Lasting Power of Attorney or Court Deputy cannot have ECT authorised by an appointed doctor.

46. Withdrawing Consent A patient who does consent to treatment under sections 57 or 58 has the right to withdraw that consent at any time under the provisions of section 60. Any treatment that falls within the safeguards prescribed by section 57 must then stop immediately. Treatment in a category covered by section 58, that is ECT or a treatment plan following the three month rule might continue without consent if it can by justified as urgently necessary under section 62.

47. Emergency Treatment Allows treatment to be given if a second opinion cannot be arranged in time to deal with an emergency while at the same time providing safeguards against hazardous or irreversible treatments. Section 62 states that section 57 and 58 do not apply to any treatment which is immediately necessary to save a persons life: or which (not being irreversible) is immediately necessary to prevent a serious deterioration in his condition: or which ( not being irreversible or hazardous) is immediately necessary to alleviate serious suffering by the patient: or which (not being irreversible or hazardous) is immediately necessary and represents the minimum interference necessary to prevent the patient behaving violently or being a danger to himself or others.

48. The RC and Emergency Treatment The Code of practice stresses that it should be the RC who initiates treatment not nurses or junior doctors. The Code of Practice also leaves it to the RC to decide if the treatment to be given is irreversible or hazardous having regard to mainstream medical opinion at that time

49. Monitoring the use of treatment given under section 62 The Code of Practice strongly recommends that trusts should develop a suitable form to monitor the use of treatments authorised under section 62 that will be completed by the patients RC every time emergency treatment is given. Details to be recorded include; the nature of the proposed treatment; why it is urgently necessary and the length of time for which it is to be given

50. George Harris is detained under section 3. He has been diagnosed as having learning disability with one of the main features being a refusal to eat. His physical condition is deteriorating rapidly. The care team want to force feed him to bring his weight up to non-critical levels. Can they do this?

51. Other treatment : section 63 The purpose of putting in the provisions under section 63 is to put the legal position beyond doubt for the sake of psychiatrists, nurses and other staff who care for patients with mental health problems. Section 63 provides that;The consent of the patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering, not being treatment falling within section 57 and 58 above, if the treatment is given by or under the direction of the responsible medical officer.

52. Adoption of the treatment as a whole approach by the courts has allowed B v Croydon HA [1988] force feeding of anorexic and other patients Mental health Act Commission Guidance Note blood tests Tameside and Glossop Acute Services NHS Trust v CH (A Patient) [1996] caesarean section R. v BHB Community Healthcare NHS Trust Ex p. B [1999] limited inpatient care

53. Inappropriate relationships John a mental health worker at a psychiatric hospital has been having a consensual sexual relationship with a woman who had formally been a patient in his care The patient has now complained to the hospital authorities

54. Zero Tolerance Regulatory bodies have long had a policy of zero tolerance towards inappropriate relationships with clients The usual sanction for the offence is a striking off order Employing authorities also usually take a firm stand

55. Sexual Offences Act 2003 Offences by care workers Section 38: Care workers: sexual activity with a person with a mental disorder Section 39: Care workers: causing or inciting sexual activity Section 40: Care workers: sexual activity in the presence of a person with a mental disorder Section 41: Care workers: causing a person with a mental disorder to watch a sexual act

56. Like the previous two sets of offences, these sections are concerned with the situation where a person (A) involves another person (B) in sexual activity where B has a mental disorder. The difference here is that A and B must be in a relationship of care. There is no need to prove that B is unable to refuse. The definition of mental disorder is at section 79(6); the definition of sexual activity is at section 78. The relationships of care that are covered by these offences are set out at section 42. The prosecution must prove, in addition to the other requirements, that the defendant knew or could reasonably have been expected to know that B had a mental disorder. Subsection (2) of each section puts an evidential burden on A in this respect. This means that, unless A shows from the evidence that there is an arguable case as to whether or not he knew or could reasonably have been expected to know of B's mental disorder, it is presumed that he did know or could reasonably have been expected to know of this.

57. Care workers: interpretation An example of a relationship covered is where A is a member of staff in a care home and B is a resident there. An example of a relationship covered by subsection (3) is where A is a receptionist at the clinic that B attends every week. Subsection (4) covers any situation where A provides care, assistance or services to B in connection with B's mental disorder. An example of a relationship covered by subsection (4) is where A takes B on outings every week or treats B for his learning disability with complementary therapies in B's own home. In all cases, A must have, or be "likely to have", regular face to face contact with B. The "likely to have" limb is to cover persons who do not provide care to B in these situations from day one of their involvement with B.

58. John Beattie, 57, from Cyffylliog, near Ruthin, was employed at the Ablett unit at YsbytyGlan Clwyd, Bodelwyddan, where the female victim was a patient. He had earlier admitted four charges and was jailed for two years at Mold Crown Court. He was also put on the sex offenders' register for 10 years. The offences did not occur at the hospital. This is the first case of its kind in Wales where a carer has been sentenced for sexual involvement with one of his patients. As part of the Sexual Offences Act 2003, a new offence was created relating to care workers using their position to take advantage of patients.

59. Resorting to the 1983 Act cannot be done to enforce treatment for an unrelated physical disorder St George's Healthcare NHS Trust v S [1998]

60. Human Rights Issues Hertzegfalfy v Austria [1992] Court considers the position of inferiority and powerlessness typical of patients confined in psychiatric hospitals calls for increased vigilance in reviewing compliance with the Convention. For the medical authorities to decide on the therapeutic methods to be used, if necessary by force, to preserve the physical and mental health of patients.

61. Established principles of medicine are in principle decisive in such cases; as a general rule, a measure which is a therapeutic necessity cannot be regarded as inhuman or degrading. The Court must nevertheless satisfy itself that the medical necessity has been convincingly shown to exist R (W) v Broadmoor Hospital [2001] N v Dr M [2003]

62. Supervised Community Treatment (SCT) The Act introduces Supervised Community Treatment (SCT) for patients following a period of detention in hospital Only people who would be a risk to their own health or safety or that of others if they did not continue to receive their treatment when discharged from hospital can be considered for SCT

63. Where long term leave, over seven days, is contemplated the responsible clinician must first consider the use of a community treatment order. This order allows an approved clinician to test the rehabilitation of a patient detained for treatment by discharging the patient subject to their being recalled to hospital if they do not continue with treatment in the community.

64. A patient subject to a community treatment order is known as a community patient. A community patient cannot be made to take treatment by force in the community. Where compulsory treatment is deemed necessary then recall to hospital would be necessary.

65. Criteria Similar to those for admission for treatment under Section 3 of the Act All patients will have been assessed and treated in hospital first They must be under Section 3 of the Act or detained under a Part III power without restrictions A patient’s responsible clinician will decide if SCT is appropriate Responsible clinician must obtain a second opinion from the AMHP before a patient can be placed on SCT An appropriate package of treatment and free support services will be put into place by the NHS and local authority social services before a patient leaves hospital on SCT

66. There will be requirements on patients in the community to ensure that they stay in contact with mental health services and practitioners can monitor them for signs of deteriorating health, and if necessary decide that they must be recalled to hospital The responsible clinician must agree these requirements with the AMHP

67. Failure to comply does not on its own justify recall to hospital but maybe taken into account when considering if it is necessary to use the recall power Following recall to hospital the responsible clinician must obtain a second opinion from an AMHP in order to re detain a patient in the longer term under Section 3 This must happen within 72 hours of recall to hospital If treatment against a patient’s will is clinically necessary a patient will be recalled to hospital for treatment Renewal of SCT occurs along the same timeframe as renewal of detention under section 3

68. Treatment of patients subject to SCT s64A will allow for non forcible treatment of incapable adults in the community subject to the provisions of the Mental Capacity Act 2005 – Advanced decisions, LPA, Court order s62A will allow for the treatment of recalled patients for their mental disorder subject to Part IV safeguards

69. Safeguards Patients on SCT will receive similar safeguards as patients detained in hospital All patients on SCT will have their treatment if it involves giving medicines reviewed and certified by a SOAD after three months from when medication was first given or one month from discharge from hospital whichever is later People on SCT will have their case regularly reviewed in the same way as detained patients, and will be discharged when they no longer meet the criteria

70. Access to a Mental Health Review Tribunal Same access to a Mental Health Review Tribunal (MHRT) as patients who are detained under section 3 The MHRT will be able to discharge patients from SCT Hospital managers must refer a patient’s case to the MHRT if a patient is recalled to hospital and then is detained there for more than 72 hours

71. Changes To The Mental Health Review Tribunal The Government wants to increase the frequency with which the Mental Health Review Tribunal (MHRT) considers the cases of civil patients treated under the Mental Health Act Patients who are detained for assessment and then admitted for treatment will be referred to the MHRT six months after their initial detention rather than from the date of their detention for treatment Extending the referral process to cover those patients who have continued to be detained for assessment while the County Courts determine who their Nearest Relative should be

72. Increased frequency of MHRT involvement creating a maximum time before a hospital managers must refer a civil patient’s case to a tribunal introducing a new right for patients treated under Supervised Community Treatment to apply to the MHRT break the link between renewal and referral hospital managers will be obliged to refer at three years from the last hearing Government will have the power to reduce the three year period but will only do so when the workforce and resource implications have been fully considered For under 16 year olds the period of referral is currently one year This too will be able to be reduced by the order

73. Hospital managers’ hearings As well as being able to apply to a tribunal, civil and unrestricted patients can apply to the hospital managers to be discharged Hospital managers also consider whether a patient should be discharged when the Responsible Clinician asks them to renew the authority to detain the patient under the Mental Health Act These hearings will continue

74. Independent Mental Health Advocate Duty to establish an IMHA service Duty to instruct where patient is a qualifying patient

75. A patient is a qualifying patient if he is— liable to be detained under this Act Except section 4 or 5(2) or (4) or section 135 or 136; subject to guardianship or a community patient. Possibility of treatment under section 57 Under 18 and possibly having treatment under section 58A (ECT)

76. An independent mental health advocate may— visit and interview the patient in private; visit and interview person professionally concerned with his medical treatment; require the production of and inspect any records relating to his detention or treatment or after-care service; require the production of and inspect any records of, or held by, a local social services authority which relate to him.

77. The support which IMHAs provide must include helping patients to obtain information about and understand the following: their rights under the Act; the rights which other people have in relation to them; the parts of the Act which apply to them any conditions or restrictions to which they are subject any medical treatment that they are receiving or might be given; the reasons for that treatment (or proposed treatment); and the legal authority for providing that treatment, and the safeguards and other requirements of the Act which would apply to that treatment.

78. Informal admission of 16 & 17 Year old patients Can consent to admission on an informal basis Cannot have their refusal of consent overruled by a person with parental responsibility (from January 2008) Duty to accommodate minors (under 18) in an environment suitable to their age Govt accepts service is nowhere near ready for this and the duty will not commence until April 2010