Service providers need to prepare for with changing mental health legislation
Immediately after it reaffirmed its commitment to mental health reform in this year's Queen's Speech, the government published a new mental health bill.
Last year, previous efforts at reform were discarded after seven years of consultation. The government plans to do the minimum necessary to achieve its objectives, but the ethical difficulties at the root of the reform remain, namely whether the right balance is being struck between patient interests and public protection.
A supervised community treatment order for the 'revolving door' patient is new. The plan is to limit orders to people first detained for treatment in hospital. A right of recall for non-compliance or where there is a risk of harm is included. A person must consent to treatment in the community.
The definition of mental disorder will be replaced by a 'new and simplified definition' of 'any disorder or disability of mind'. The only exclusions will be for alcohol or drug dependency, and learning disability associated with abnormally aggressive or seriously irresponsible conduct. The government says disorders including fetishism and paedophilia will be covered by the act.
Powers of compulsion
The 'treatability' test will be replaced by an 'appropriate treatment' test applying to all disorders. Treatment must be available. But this falls far short of the right to treatment sought by campaigners and does not require that treatment should be likely to alleviate or prevent deterioration in a person's condition. This clause will be under pressure for change from the umbrella lobby group Mental Health Alliance and others, with the absence of any 'therapeutic benefit' potentially turning hospitals into prisons for management of some disorders.
The scope for use of compulsion will be increased, raising concerns that people will be confined where there is no clear health benefit.
With increased powers of compulsion comes the need for robust risk management and independent scrutiny. Logically, this will increase the burden on health organisations to ensure that patients' rights are real rather than illusory - particularly as additional advocacy support for patients has been dropped. Planned changes to mental health review tribunals will also need additional resources.
The government proposes a different regime under the Mental Capacity Act 2005 for the compulsory detention and treatment of the 'Bournewood' patient - the incapacitated adult who cannot consent and who is not detained under existing mental health legislation. Instead of one regulatory regime for detention and treatment without consent there will be two with different rules and safeguards.
All health providers supplying care in hospitals and care homes will have to manage this interface. It is proposed that primary care trusts and local authorities will be responsible for authorisations, a task for which they have little or no current skills or resources. PCTs and hospitals must be alert to these changes. The act comes into force on 1 April 2007. Probably the most significant and welcome piece of mental health reform in more than 20 years, it will affect an estimated 2 million patients and 6 million carers.
Any organisation providing care to an adult who cannot make a decision for themselves about their personal welfare - including healthcare - will have to comply with the act and have regard to its code of practice when making decisions. In August the Department of Health published a best practice toolkit for the NHS and private hospital providers to assess their state of readiness for the act.
It adopts the formulaic but helpful red, amber and green approach to preparedness.
How ready organisations will be in April 2007 will depend largely on how far they have already embraced the principles of the act. With less than six months to go, and the detailed code of practice and some learning aids still to be published, a 'wait and see' approach is misguided. Much can and should be done now.
Susan Thompson is a partner in national law firm Beachcroft LLP and a member of the Law Society's Mental Health and Disability Committee