The Mental Health Act
The Mental Health Bill received Royal Assent on the 19 July 2007 and is now The Mental Health Act 2007. The Act now comes into force on the 3rd November 2008 see below for the early commencement provisions.
TOP 10 MYTHS AND CONFUSIONS!
1. THE MENTAL HEALTH ACT 1983 IS BEING REPLACED
The Mental Health Act 2007 replaces the Mental Health Act 1983 - No it doesn’t!
• Basic mental health legislation remains the Mental Health Act 1983, the 2007 Act just amends it.
• The 1983 Act has been amended before, eg Mental Health (Patients in the Community) Act 1995 which introduced after-care under supervision.
2. DEFINITION OF MENTAL DISORDER
The definition is being widened - Not per se.
• New basic definition “any disorder or disability of the mind” means the same as the old definition, just shorter. But …
• “Sexual deviancy” no longer excluded – so some mental disorders no longer excluded
• Four categories of disorder abolished – so may be a few disorders (at the margin) now covered by section 3 etc which aren’t now.
3. LEARNING DISABILITIES
Learning Disabilities aren’t mental disorders unless they cause abnormally aggressive or seriously irresponsible behaviour - Not quite.
• Learning disability qualification excludes learning disabilities unless they are “associated with” (not “cause”) abnormally aggressive/seriously irresponsible behaviour
• The qualification only applies to certain sections (NOT section 2 or section 136, for example)
• The effect Is basically the same as now.
4. APPROPRIATE MEDICAL TREATMENT TEST (AMTT)
It is just Treatability by another name – No, it really isn’t.
• Treatability test focused on the “likelihood” of the outcome of treatment. AMTT does not require anyone to say what is likely to happen
• AMTT goes much wider – is about appropriateness in the round
• AMTT applies equally to all groups of patients (though not to all patients, because not part of the criteria for section 2, for example).
The appropriate medical treatment test enables the detention of people with personality disorders - No, that could be done anyway, BUT it does have practical effects:
• Doctors making recommendations will need to know in advance where the patient is likely to be detained.
• Risk of challenge – providers need to think about appropriateness to the individual – one size fits all mentality is now a legal issue, not just poor practice.
5. APPROVED MENTAL HEALTH PROFESSIONALS (AMHPs)
The Government wants AMHPs to be health professionals employed by NHS trusts – No, the Act gives choice. Local Social Services Authorities (LSSAs) decide what to do with it.
Only some of AMHPs functions are under the control of Social Services Authorities - AMHPs can only do things if they are acting on behalf of a LSSA. LSSAs have ultimate control over who does what on their behalf (but can’t tell AMHPs what decision to reach, of course).
6. SUPERVISED COMMUNITY TREATMENT
You don’t have to be detained first – yes, you do.
They are only for people who need medication in the community – no they’re not. “Medical treatment” goes much wider than medication.
You can be given medication by force in your own home, but only if you lack capacity to consent to it AND (unless your attorney or deputy consents for you) only if it’s immediately necessary and proportionate to the risk of harm you’d otherwise face.
Recall means in-patient admission – no, recall can be for outpatient treatment as well.
Responsible Clinicians will be hospital clinicians – no, the one who first makes the Community Treatment Order will be, but after that the Responsible Clinician can change as often (and as soon as) necessary.
7. CODE OF PRACTICE
This is stronger than before. No - it’s status is essentially the same as now. You can’t ignore it, you can’t “take it or leave it”, but you don’t necessarily have to follow it if you can justify doing differently.
8. MENTAL HEALTH REVIEW TRIBUNALS
The act is widening access to the Tribunal - Up to a point. Rights to apply aren’t really changing (just being adapted to deal with SCT). The changes are to Hospital Managers’ duty to refer people who don’t apply themselves. Those changes are:
• Duty to refer Part 2 patients who don’t apply themselves in first 6 months will now start at date of detention regardless of whether it’s under s2, 3 or 4 (and applications made while they were s2 patients will be ignored).
• Three year rule will now literally means three years, not “first renewal after three years are up”.
• “For three years read one year” rule will now apply to under 18s, not just under 16s.
9. AGE APPROPRIATE ACCOMMODATION
You can use an adult ward for a child if it’ll meet the child’s needs - Not exactly. Hospital managers’ duty will be to make sure that environment is suitable having regard to patient’s age (subject to patient’s needs). Which means…
• First question - what is suitable for a patient of this age ?
• Second question - is there something about this patient that means you should use an environment that wouldn’t normally be suitable for a patient of this age?
• That could be atypical need of patient (ie age-suitable environment wouldn’t be patient-suitable) – or overriding need (ie an age unsuitable hospital environment is better than no hospital environment at all).
• But if you could equally well meet needs in an age suitable environment or another one – then you have to use age suitable one.
10. MENTAL CAPACITY ACT (MCA)
The Mental Health Act takes precedence over the Mental Capacity Act - Only where one or the other says so, BEWARE GENERALISATION!
• That said … you can’t use section 3 if using MCA deprivation of liberty instead would be just as safe and effective.
• And before using section 2, guardianship or SCT always need to consider if MCA meets the need instead (or better).
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COMMENCEMENT OF PROVISIONS
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Commencement orders
31 July 2008
The "Mental Health Act 2007 (Commencement No.7 and Transitional Provisions) Order 20086 and After-care under Supervision: Savings, Modifications and Transitional Provisions) Order 2008" brings the main changes that the Mental Health Act 2007 makes to the Mental Health Act 1983 into force on 3 November. Between them, the order and Schedule 10 of the 2007 of the 2007 Act itself, contain a number of transtional provisions relating to:
Applications for detention under Part 2 of the 1983 Act;
Detention under Part 3 of the 1983 Act;
Renewal of detention
Consent to treatment under Part 4 of the 1983 Act;
Guardianship;
Tribunals;
Applications to the County Court about the appointment of acting nearest relatives;
Approved mental health professionals; and
Decisions made prior to 3 November 2008 to be treated as decisions of approved clinicians.
The transitional arrangements required to enable the smooth introduction of approved clinicians are now included in - the "Mental Health Act 1983 Approved Clinician (General) Directions 2008" (which incorporate, and therefore replace the Mental Health Act 1983 Approved Clinician Directions 2008 published on 7 May).
Implementation of the Mental Health Act 2007: transitional arrangements The Mental Health Act 2007 (Commencement no 7 and Transitional Provisions) Order 2008. Statutory Instrument - draft The Mental Health Act 1983 Approved Clinician (General) Directions 2008
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TRANSITIONAL ARRANGEMENTS - IMPLEMENTATION OF THE MENTAL HEALTH ACT 2007
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http://www.dh.gov.uk/en/Healthcare/NationalServiceFrameworks/Mentalhealth/DH_077359
This revised Code of Practice has been prepared in accordance with section 118 of the Mental Health Act 1983 by the Secretary of State for Health after consulting such bodies as appeared to him to be concerned, and laid before Parliament. The Code will come into force in November 2008.
