January 1975: Government announced intention to
review the 1959 Mental Health Act
1976 A Review of
the Mental Health Act 1959
"The Royal College of Psychiatrists has suggested that commissions similar
to the Mental Welfare Commission of Scotland should be established in
England and wales since they regret that the Board of Control was not
replaced by a body of comparable functions"
1978
Review of the Mental Health Act 1959
Other safeguards
6.31 The Consultative Document (paragraphs 8.38 to 8.48) discussed a number
of other suggestions for further safeguards for patients - the Butler
Committee's suggestion of a scheme of 'patients' friends'; the Royal
College of Psychiatrists' suggestion of a Mental Welfare Commission on the
lines of the Scottish one; and MIND's suggestion of an advocacy scheme.
Since the 1959 Mental Health Act there have been a number of developments
aimed at improving the position of patients, many of them for patients in
general but including those suffering from mental disorder. Notable among
these are the introduction of
Community Health Councils and of the
Commissioners for Local Government and the NHS (the Ombudsmen). Another is
the
Health Advisory Service (formerly called the Hospital Advisory
Service)
with its special remit in relation to psychiatric services. In addition,
there are the Davies Committee's recommendations for improving complaints
procedures. A Development Team for the Mentally Handicapped has also been
set up, though this is concerned with advice on services rather than
patients' individual rights. The Consultative Document suggested a further
safeguard by means of a scheme of patients' advisers whose function
it would be to advise patients of their rights generally and about
procedural matters, for example the proper way to make any complaint that
they have and how to apply to a Mental Health Review Tribunal. The Document
suggested that a limited number of trial schemes might be set up and their
usefulness evaluated.
6.32 There was much support for this suggestion, but not for a formal
advocacy system which was generally regarded as unwarranted. The
appointment of patients' friends for all detained patients also lacked
support - for the reason which the Butler Committee itself acknowledged,
that it would be extremely difficult to find enough interested people of
the right calibre.
6.33 There was also only limited support for the establishment of mental
welfare commissions on the lines of the
Scottish Mental Welfare Commission
but since this is an arrangement which seems to be functioning well in
Scotland it is perhaps necessary to explain in more detail why the
Government does not propose to introduce such a scheme in England and
Wales. Those who favour the introduction of mental welfare commissions
argue that it is not realistic to have common arrangements for safeguarding
the position of psychiatric patients and other NHS patients since much of
the psychiatric service is, and will continue for some time to be, separate
from general NHS services and since the compulsory powers which are
available in relation to psychiatric patients make them different from the
vast majority of other NHS patients. They therefore see attractions in
bringing together the various protective functions under a single body,
thus making it simpler for patients and for staff to know to whom to turn
if a problem arises. The Royal College of Psychiatrists argue that the role
of Mental Health Review Tribunals should be expanded and merged into that
of new bodies which would also undertake functions analogous to those of
the Scottish Mental Welfare Commission.
6.34 The Government considers that
the Royal Commission's aim that
psychiatric patients should, to the fullest extent practicable, be treated
in the same way as non-psychiatric patients should remain a
guiding
principle in legislation and in the provision of services. As paragraph
6.31 above, points out, a number of developments in the past decade have
given patients in general opportunities to make known their views on
services and to have any complaints adequately considered. If mental
welfare commissions were to be introduced for psychiatric patients, there
would seem little point in continuing to apply to them the various
arrangements now available to all patients. Mental welfare commissions in
England and Wales would have to draw on scarce manpower resources - medical
manpower in particular - and would have considerable financial
implications - these have been estimated at œ2 million per year at current
prices. More importantly, it is thought wrong in principle to reintroduce a
system for psychiatric patients which is fundamentally different from that
for other patients.
6.35 The Government's view is that the most important factor in
safeguarding the position of vulnerable patients and ensuring that their
rights are upheld is personal contact between the patient and someone whose
job it is to explain the position from the patient's own point of view and
that the introduction of another system of complaints procedure or of
another 'watchdog' organisation is not the answer. The Government therefore
proposes to try out a limited number of experimental schemes of patients'
advisers. It wishes to emphasise that these should in no way be taken as a
criticism of the staff who look after patients but as a recognition that
some patients may have lost their initiative to act in their own best
interest or to seek discharge from hospital or hostel, and may need
encouragement and support which hard-pressed staff are unable to provide on
an individual basis. It is hoped that the trial schemes will have the full
co-operation of all concerned. The schemes will of course need to be
evaluated to see how useful they prove to be.
1981
Reform of Mental Health Legislation
Mental Health Act Commission
29. The most important safeguards to ensure that patients are not detained
unnecessarily are the carefully drawn criteria for admission and renewal of
detention and access to Mental Health Review Tribunals; but other checks
are also needed. The 1978 White Paper discussed the possibility of setting
up mental welfare commissions on the lines of the Scottish Mental Welfare
Commission, to protect psychiatric patients, but concluded that it was
wrong in principle to reintroduce a system for psychiatric patients which
was fundamentally different from that for other patients.
The present Government takes a different view: patients detained under the
compulsory powers of the Mental Health Act are in a unique position because
they have no right to discharge themselves, unlike all other patients
including other psychiatric patients. It is essential to ensure therefore
that the procedures leading to the detention of such patients and the
renewal of the authority for their detention are subject to scrutiny. The
responsibility for undertaking this scrutiny must rest with a body which is
independent of those who have been involved in the compulsory admission and
continued detention. Accordingly the Government proposes to set up a Mental
Health Act Commission with a general protective function for detained
patients.
30. A new factor since 1978 which has further influenced the Government
on this matter is one of the proposals made by the Rampton Hospital
Management Review Team, chaired by Sir John Boynton, which reported to the
Secretary of State in October 1980 on the management of Rampton Special
Hospital. In considering the wider issues surrounding their enquiry the
Review Team said:
"There is a strong case for an appointed body to inspect and monitor closed
institutions such as Rampton and the other special hospitals, or indeed
wherever patients are subject to detention under the Mental Health Act. The
exact powers and functions of such a body would be for further
consideration, but we think it might be constituted on the lines of the old
Board of Control or the Scottish Mental Welfare Commission. Its functions
might include the review of patient care and treatment, the independent
investigation of more serious complaints (from whatever source) and a
general protective function on behalf of detained patients which need not
necessarily cut across the functions of MHRTs. Such a protective function
might include some responsibilities in connection with the difficult
problem of consent to treatment in respect of detained patients ....."
The Bill provides for the Mental Health Act Commission to implement this
recommendation.
31. Under this provision the Secretary of State will be required to set up
a special health authority to be called the Mental Health Act Commission
(MHAC) to exercise a general protective function for detained patients and
to carry out certain other functions given to Secretary of State in the
Bill. A 'special health authority' is a body set up under the National
Health Service Act 1977 and the Secretary of State makes provision for its
membership, may direct it to exercise any of his powers and duties and may
give it directions as to how it carries out its functions. The Commission
will thus be responsible to the Secretary of State, but will be an
independent body with members who will be eminent in their different
fields; it will be a real safeguard to patients where-ever they are
detained.
32. The Government intends that the members of the proposed MHAC will be
lawyers, doctors, nurses, psychologists, social workers and laymen. Their
part-time services, as commissioners, will include visiting hospitals where
patients are detained. There will probably be one or two visits a year to
each of the 300 or so local hospitals and mental nursing homes in England
and Wales with detained patients, with around one visit a month to the four
special hospitals. In their visits the Commission members will make
themselves available to detained patients who wish to see them, will ensure
that staff are helping patients to understand their legal position and
their rights. They will look at patients' records of admission and renewal
of detention and at records relating to treatment. They will also ensure
that detained patients are satisfied with the handling of any complaints
they may make.
33. The Commission will not trespass in any way on the Mental Health Review
Tribunal's role of deciding whether an individual patient should continue
to be detained; the Commission's concern will be to ensure that hospitals
have adopted and are following proper procedures for using the powers of
detention. The Commission will look at the use of powers, such as emergency
admissions under section 29, which are outside the scope of the Tribunal.
It will also have an important role in monitoring the use of the explicit
power to treat detained patients without their consent subject to certain
safeguards (see below): it will ensure that those safeguards are understood
by staff and patients and that they are being observed.
34. Equally the proposed functions of the Commission will be separate from
other inspectorial bodies; the Commission will not inspect and report on
services in mental illness and mental handicap hospitals and units in the
way that the Health Advisory Service and the Development Team for the
Mentally Handicapped do. The Commission's concern will be the particular
problems which arise from detention of specific individuals in hospital
rather than the general services which affect all mentally ill and mentally
handicapped patients. The name 'Mental Health Act Commission' has been
chosen deliberately to emphasise its responsibilities for seeing that
patients have full advantage of all the available legal safeguards under
the Act as amended.
35. The Commission will have important duties concerning consent to
treatment. This is currently one of the most important and most difficult
issues in the mental health field and has been widely discussed. In
particular there has been much debate about whether, and to what extent,
staff should be authorised to impose treatment on detained patients. The
Government takes the view that compulsory admission should be closely
related to the prospect of benefit from treatment. It therefore proposes to
provide specific statutory authority for treatment to be given to detained
patients for their mental disorder without their consent in certain
circumstances. But there must be safeguards for the patient and the nature
of these has also been much debated. A balance must be struck between
protecting the rights of the patient and providing for him to receive the
treatment he needs.
36. That balance depends on the particular form of treatment. The
proposals in the Bill distinguish three groups of treatment for mental
disorder:-
(a) Treatments which give rise to special concern - -
only to be given with the patient's consent and the agreement of an
independent doctor.
(b) Other specific items of treatment prescribed under the direction of
the responsible medical officer which are not identified as giving rise to
special concern-may be given without the patient's consent with the
agreement of an independent doctor.
(c) Forms of treatment (including general medical and nursing care) which
come within the definition of medical treatment under the Act but are not
included in (a) or (b) above -
may be given without the patient's consent by or under the direction
of his responsible medical officer.
Special conditions are set out for treating patients in an emergency.
37. The first group, treatments which give rise to special concern, are
those where the detained patient needs most protection since (in the terms
of the 1978 White Paper and the Butler Report) they are "hazardous,
irreversible or not fully established". In these cases the patient's
consent is needed as well as a second opinion. Paragraph 38 describes the
way these treatments will be defined and paragraph 39 explains what is
meant by "an independent doctor". The second group consists of specific
items of treatment (such as drugs) which are not included among the
treatments of special concern. The Bill will authorise the responsible
medical officer to give such a treatment to a detained patient who is
capable of giving consent but is unwilling to do so, provided that an
independent doctor agrees that the treatment should be given. The agreement
of an independent doctor to the treatment will also be necessary if a
patient is unable to understand what is involved in consent to treatment.
The third group includes all other treatments for mental disorder which
came within the definition of "medical treatment" in the Act again
excepting those which give rise to special concern. Medical treatment has a
wide meaning in the Mental Health Act - it includes nursing and care,
habilitation, and rehabilitation under medical supervision. The Bill
provides that these treatments may be given to a detained patient without
his consent, though in practice it is impossible to undertake many of the
therapies concerned without a patient's co-operation.
38. The Mental Health Act Commission will have two major responsibilities
in these matters. Firstly, it is intended that they will consider which
treatments give rise to special concern. Some may be listed in regulations,
but it will be difficult to give precise legal definitions to all the
treatments which give rise to special concern and the circumstances in
which they do so. For this reason the Bill provides for a Code of Practice
as well as regulations. The Code will not be legally binding, but doctors
would take account of it in deciding how to treat their patients. It is
intended that the Mental Health Act Commission will be directed to draw up
the Code of Practice, after suitable consultation, and to revise it from
time to time, to take account of new and changing forms of treatment. The
Code's contents will be for the Commission to decide, but it might include
reference to treatments such as electroconvulsive therapy when used in
particular circumstances, long acting drugs, and behaviour therapies.
39. The second major responsibility of the Mental Health Act Commission
will be to appoint the "independent doctors" whose agreement must be
sought. The Bill provides that agreement to treatment in the circumstances
discussed above may only be given by medical practitioners appointed for
the purpose by the Secretary of State. It is intended that the Commission
will exercise the Secretary of State's powers to appoint medical
practitioners, who will include the psychiatrist members of the Commission
itself. This will ensure that the opinions are independent and will enable
the Commission both to monitor the use of the power to impose treatment and
to offer advice on professional and ethical complexities. A psychiatrist so
appointed who gives the second opinion on any case will be able to discuss
the principles which should apply in giving second opinions (with
Commission (members from other disciplines and to take account of their
views. It is also intended that the independent doctor will discuss the
patient's treatment with members of the team caring for him before giving
his opinion and will take account of wider social and ethical matters. The
Commission will build up considerable expertise in the care and treatment
of detained patients and particularly on consent to treatment. They will be
able to include in the Code of Practice and in other publications advice
about all aspects of the care and treatment of detained patients and
guidance on the giving of treatment for mental disorder with or without the
patient's consent.
40. The Mental Health Act Commission will therefore be given important
responsibilities, on behalf of the Secretary of State, on consent to
treatment as well as its more general protective function for detained
patients. It will also be a forum for inter-professional discussion of
issues concerning the law and ethics on the treatment of detained patients.
The Commission will thus have a central role in the working of the revised
Mental Health Act.
...
Other Safeguards
41. The Bill also proposes other changes to the law which affect detained
patients in hospital. It will considerably curtail the circumstances in
which incoming or outgoing mail may be withheld, and will ensure that there
is no scrutiny at all of the mail of informal patients. The Bill provides
that outgoing mail from a detained patient may be withheld only if the
proposed recipient has asked that this should be done with correspondence
addressed to him by the patient. Incoming mail will not be opened or
withheld at all except in the special hospitals, where exceptional
arrangements are needed for security
reasons. In the special hospitals, an officer will be authorised to
withhold mail if it is necessary in the interests of the patient's safety
or to protect others. This will not apply to letters from a number of
persons and bodies including MPs, the Health Service Commissioner, and a
Mental Health Review Tribunal. If mail is withheld from a patient in a
special hospital on security grounds he will have to be informed within 24
hours and will be able to make representations to the hospital managers.
42. The proposals described above will all help staff as well as patients;
one of the greatest problems in using the 1959 Act has been the uncertainty
about some of its provisions. The Commission will be able to discuss, and
advise on, problems concerning the law and good practice in relation to
detained patients; as a result staff will benefit from clear
recommendations and procedures. The proposals for handling patients' mail
will also help staff in special hospitals to carry out their difficult task
of caring for patients in conditions of high security. Other proposals in
the Bill, notably the introduction of the nurses' holding power, will give
staff clear legal protection in carrying out their professional duties
1983 Mental Health
Act
A "special health authority" known as "The Mental Health Act Commission"
was established by section 121(1)
It:
121(2a): Appoints the doctors to give a second opinion with respect to
consent to treatment
121(2a) + 118: Appoints doctors to prepare a Code of Practice, including
specifying extra forms of treatment that should not be given without
consent.
121(2b) + 61: Receives reports on treatment under the consent to treatment
provisions
121(2b) + 120(1): Reviews the way the detention of patients under the Act
is exercised by visiting and interviewing patients in private and
investigating complaints
121(4): with consent of the Secretary of State, it may keep under review
the care and treatment of patients not formally detained
121(7+8+9): Reviews any decision to withhold correspondence
121(10): Produces a report every two years
1985 Extracts from
Bopcris summary of first report -
archive -
, indicating
how the Commission interpreted what it was supposed to do:
The Commission has identified many areas in mental health services for
detained patients (and for some informal patients as well) where
difficulties have arisen in terms of practice and in the law. This Report
and a draft Code of Practice that the Commission is formulating are
intended to address this problem. The Report is divided into the following
sections: (1) introduction; (2) Commission - structure and organisation;
(3) context of Mental Health legislation; (4) main changes made in 1983;
(5) Commission's functions; (6) features of the Commission's role; (7)
visits to hospitals and nursing homes; (8) subjects arising on visits; (9)
visits to Social Services Departments; (10) complaints; (11) second
opinions; (12) special hospitals; (13) draft Code of Practice; (14) postal
packets; (15) black and ethnic minorities; (16) present and the future; and
(17) conclusion