An important point made by the Committee is that the Department of Health has emphasised the importance of "parity of esteem" in the commissioning and delivery of services for mental health patients. This means, in theory, that the care needs of mental health patients should have equal priority to the needs of patients who require physical healthcare.
The Committee has set out a number of detailed recommendations, the most urgent relating to a need for a review of the implementation of Deprivation of Liberty Safeguards (DOLS) for people suffering from mental incapacity. It calls for the review and an action plan to be presented to Parliament within 12 months.
It is our experience that whilst knowledge of DOLS is now fairly universal amongst healthcare providers, being alive to the need to consider them varies considerably. For example, those working in acute hospital settings are likely to encounter fewer DOLS referrals than, say, those working in the provision of long term care. As a result, clinicians working in long term care settings are more likely to be tuned in to the need to consider them. This can mean some patients slipping through the DOLS net.
Mental health legislation
The Mental Health Act 1983 represented a major step forward in mental health legislation. It provided a much clearer legal framework for patients suffering from a mental disorder. Amongst other issues, the Act covers admission to hospital for assessment or treatment and sets out when consent from the patient is required.
The Mental Health Act 2007 amended and updated the Mental Health Act 1983 to reflect the changing ways in which patients can be treated and cared for. Key provisions included:
- A single definition of mental disorder, to incorporate conditions for which the original legislation did not properly account.
- A new "appropriate treatment test", intended to ensure that patients are only detained if treatment appropriate to their condition is available.
- The right for detained patients and those subject to community treatment to be supported by an Independent Mental Health Advocate (IMHA).
- The introduction of Supervised Community Treatment (SCT) to enable some patients with mental disorders to live and be treated in the community subject to a Community Treatment Order (CTO), whilst still subject to recall to detention in hospital.
- DOLS were introduced to protect the rights of patients detained under the Mental Capacity Act 2005.
Further detail is available in Kennedys' Medical Law Guide.
Health Committee review
The Health Committee is appointed by the House of Commons to examine the policy, administration and expenditure of the Department of Health. It has recently undertaken a review of the 2007 Act.
Summarising its findings, the chair of the Committee, Stephen Dorrell MP said:
"Mental health legislation is designed to protect extremely vulnerable patients but our review has found that many vital safeguards are not working effectively."
Examples of concerns raised by the Committee include:
- Many psychiatric wards are over capacity. The Committee found evidence that patients who need hospital treatment are being sectioned unnecessarily in order to access a bed.
- IMHAs were not always available to patients. Where they were, this had resulted in some clinical staff retreating from their obligations to help patients understand their rights.
- CTOs are not working as the legislation intended. There is wide variation in the use of CTOs across the country and their availability has not reduced the number of patients detained in hospital. The Committee has called on the Royal College of Psychiatrists to lead on developing a consistent approach to CTOs, ensuring that financial constraints do not get in the way of clinical judgements.
- The provisions for DOLS are not working well. The Committee found that it is commonplace for DOLS to be ignored, leaving many people at heightened risk of abuse.
Read other items in the Medical Law Brief - September 2013