4. Health and Care
Draft Mental Health Bill
1. In September 2004 the Government published a draft Mental Health Bill for pre-legislative scrutiny, with an accompanying document "Improving Mental Health Law Towards a new Mental Health Act", which provided an overview of the draft Bill and set out the background to mental health reform. The Government had published an earlier draft Mental Health Bill in June 2002, on which we commented and reported our views in our 200102 Annual Report.
2. In commenting on the new Bill, we noted that many of the provisions pertaining to the new two tier tribunal system remained broadly the same, with the main changes from the earlier draft Bill concerning policy issues such as the definition of mental disorder, the conditions for compulsion, formal powers in the community and the Tribunal's power to reserve decisions to itself.
3. We submitted a memorandum to the Parliamentary Joint Select Committee appointed to undertake the pre-legislative scrutiny, setting out our views on the draft Bill, including the following matters:
- We expressed concern that the guiding principles governing the Bill's operation were to be contained in a Code of Practice rather than being clearly specified within the legislation itself. Moreover, since the Code of Practice would not be binding on the Mental Health Tribunal, we considered that it would greatly assist the Tribunal in exercising its judicial functions under the Act if a clear statement of its principles were specified in the Act.
- Having expressed concern about the broadly drawn conditions for compulsion in the last draft of the Bill, we noted that some aspects of the conditions had been tightened up, but were still concerned that the remaining broad scope and unqualified nature of some of the conditions would make it difficult for tribunals to discharge patients from compulsory treatment.
- We expressed regret that the Bill had removed a useful and important safeguard under the 1983 Act, which gave the Tribunal discretion to discharge certain patients, even where it was not satisfied that either of the mandatory conditions for discharge was met.
- Under the Bill the Tribunal would have the power to decide whether a patient should receive treatment in hospital or in the community. However, the Bill contained no legal criteria to guide tribunals in making such a decision. It also contained a particularly broad power, again with no guiding legal criteria, enabling the Tribunal to impose a condition requiring a patient not to engage in specified conduct.
- The Bill as drafted would impose a significant additional workload on the new Tribunal, thereby threatening its ability to perform to a satisfactory standard unless additional resources were made available. Moreover, we did not think that the full resource implications had been identified adequately in the Bill's Regulatory Impact Assessment.
- As regards the proposed composition of the new Tribunal, whilst we were content with the proposal for greater flexibility in its composition, we would expect that any substantive issue concerning the use of compulsory powers would always require a three-person Tribunal. Moreover, any discretion in the composition of Tribunals should be a matter for the President.
- We foresaw some difficulty in the operation of the Tribunal's new role in approving care and treatment plans, particularly in cases where the Tribunal's view differed from that of the treating clinician.
- We also envisaged difficulties with the new duty on the Tribunal to make a deferral order, whereby having satisfied itself that the conditions for compulsion were no longer met, it would be required to predict whether the conditions would be likely to be met within 8 weeks if the patient were not to be provided with post-discharge services.
- So far as the new Mental Health Appeal Tribunal (MHAT) is concerned, we were content that some members of the MHAT should also be able to sit as a member of the first-tier Tribunal, subject to the caveat that no member of the MHAT should hear a case in which they had been involved at the lower tier.
- We also expressed concern that neither the draft Mental Health Bill nor the Mental Capacity Bill (now the Mental Capacity Act 2005) provided sufficient safeguards for the detention of patients lacking capacity to consent to treatment in order to ensure compliance with Article 5 of the European Convention on Human Rights. (The Government has recently consulted on proposals for handling the detention of people lacking capacity to consent).
4. We were subsequently invited to give oral evidence to the Joint Select Committee and our Chairman and Penny Letts, one of our members, appeared before the Committee in January along with His Honour Judge Sycamore, the Liaison Judge for the Mental Health Review Tribunal, and Carolyn Kirby, the President of the Mental Health Review Tribunal for Wales. Our Chairman highlighted our long-standing concerns about the administration of the MHRT and expressed our strong support for the Tribunal's early transfer to the new Tribunals Service.
5. In its Report, which was published in March 2005, the Committee concluded that the Government should proceed with the Bill, but only with significant amendments. At the time of drafting this Report, the Government's response to the Report had just been published. We also noted that Mental Health legislation was mentioned in the Queen's Speech, outlining proposals for the new parliamentary session.
Mental Health Review Tribunal
6. Our Social Affairs Committee had meetings during the year with the outgoing Head of the MHRT Secretariat, Mrs Margaret Burn, and her successor, Mr Jack Fargher, who took up the position at the end of 2004 on transfer from the Department for Constitutional Affairs.
7. The meeting early in the year with Mrs Burn enabled our Committee members to see the new arrangements and premises for the MHRT's administrative staff, who had been accommodated in Wellington House, one of the Department's London HQ buildings. We learned about the ongoing difficulties with the case management database and the resulting problems in matching tribunal members' availability dates with those for hearings. Training of new administration staff was being done on a modular basis, covering only those aspects of the work of direct relevance to individual staff members. The appointment of the new full-time regional Chairs had made a positive difference and numbers of adjourned hearings were reducing. Two new business managers had also been appointed. Late filing of medical reports for hearings remained a problem, but this was being addressed by the regional Chairs.
8. In the subsequent meeting with Mr Fargher he outlined his plans to address some of the problems affecting the operation of the MHRT, which included:
- drawing up a 6 month recovery plan
- putting in place a proper business plan
- resolving the ongoing problems with the IT system and addressing the Tribunal's long term IT needs, whilst bearing in mind the needs of the new Tribunal under the Mental Health Bill
- running a pilot case management system
- publishing an Annual Report
- making contacts with stakeholders, including the possibility of a customer survey
- the need to co-locate the Tribunal's two administration offices.
9. We were encouraged by the plans Mr Fargher outlined and have proposed a follow-up meeting with him before the end of the year. The MHRT is in the first wave of tribunals to transfer to the new Tribunals Service and we have been supportive of the proposal for an earlier transfer in 2006. Again, one of our members is sitting as a member of the Implementation Board, which has been set up by the Department for Constitutional Affairs.
10. We were pleased to be invited to sit as a member of the newly re-constituted MHRT Stakeholders Group, which held its first meeting in February 2005. The new group is chaired by His Honour Judge Sycamore, the MHRT Liaison Judge, and includes in its membership a range of external bodies with an interest in the work of the MHRT. The aim of the group is to provide a forum to discuss the operation of the MHRT. We welcome the decision to reconstitute the group with its wider membership, which we believe serves a useful purpose.
Care Standards Tribunal
11. The President of the Care Standards Tribunal, His Honour Judge David Pearl, published his Annual Report for 200304 in September 2004. The Report covered the second year of the Tribunal's operation under its expanded jurisdiction. The Report highlighted the continuing low numbers of appeals received by the Tribunal against the numbers that had been originally expected. However, Judge Pearl anticipated an increase in appeals as a result of the introduction of the Protection of Vulnerable Adults List (PoVA), with effect from 26 July 2004.
12. We were pleased to note that the average waiting time for appeals from receipt to date of hearing had reduced from last year's figure of 235 days to 98 days. Judge Pearl had previously explained that last year's average figure had been skewed through having had to carry forward some long-standing protection of children cases and the "staying" of some cases while the parties negotiated a settlement outside the appeals process.
The Tax Credits (Approval of Child Care Providers) Scheme 2004
13. We were consulted by the Department for Education and Skills and the Department for Work and Pensions on draft regulations extending the jurisdiction of the Care Standards Tribunal to include approved childcarers. The regulations provided for the approval of unregulated childcare in the home or on other domestic premises. Our main interest lay in the extension of the jurisdiction of the Care Standards Tribunal to deal with appeals against the refusal of approval by the Approval Body or withdrawal of previously granted approval.
14. As with previous proposals to extend the Tribunal's jurisdiction, we were broadly content, but noted that this potentially constituted a significant broadening of the existing childcare provisions, which could in due course lead to a marked increase in appeals to the Tribunal. We urged that this be closely monitored to ensure that the Tribunal has the necessary resources to deal with the additional cases which would come to it.
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