Summary of the current position on the Mental Health Bill.

Louis Appleby 3 April 2007

The Bill has completed its initial passage through the House of Lords and will now be considered by the Commons. A number of amendments were made by the Lords, as follows:

1. Supervised community treatment: the Lords have amended the community treatment order so that it will not apply to patients whose risk is
suicide, only to those whose risk is violence to others. In addition to a preceding admission under Section 3 (the Government proposal), it will be
necessary for a patient to have another previous admission, and a history of non-compliance with treatment leading to serious consequences.

2. An impaired judgment test has been introduced for all patients as a criterion for the use of compulsory powers.

3. If a section is being renewed by a non-medical responsible clinician, medical agreement will be required (the Government had proposed
consultation with a doctor).

4. Additional exclusions have been added to the definition of mental disorder, including illegal behaviour and sexual orientation.

5. The wording of the current treatability test has been reinstated.

6. Children who are detained will have to be admitted to age-appropriate accommodation.

In addition, there have been a number of amendments to the Bill from the Government itself, or made with Government support. The main ones are:

1. The Bill will refer to principles and will say what these will cover, though the principles themselves will be in the Code of Practice.

2. People aged 16 to 17 years will essentially be treated as adults, i.e. they will not be treated compulsorily on the basis of parental consent.

3. It will not be possible to give ECT to a patient with mental capacity who does not consent.

4. The maximum penalty for neglect or ill-treatment of patients will be increased from two years to five years in prison, in line with the Mental
Capacity Act.

The Government has said that it will reverse the six amendments passed by the Lords (first list above). Taking each of these in turn, Government
opposition is for the following reasons:

1. As a general principle, we want as few restrictions as possible on the use of supervised community treatment, preferring to leave it to individual
assessment by frontline clinicians. We don't agree that it should be limited to people with two or more previous admissions because this may not
be a good indication of current risk - also, relapse and admission are no longer the same since the advent of home treatment.

2. We don't want to introduce a capacity or impaired judgment test, as this will exclude some patients at high risk of suicide or harm to others.

3. There is a general DH position that the roles of health professionals should be based on their skills and training rather then their professional
background. The responsible clinician role is a reflection of this, although we have kept a requirement for two medical recommendations for the
initial use of compulsory powers. I am sure that most responsible clinicians will still be doctors but, if it is agreed that another health
professional may play this role, it will be undermining to require them to get the agreement of a medical colleague on renewing a section. They
should of course consult.

4. As a general point, we see no reason to exclude from the definition of mental disorder, behaviours which are not mental disorders in the first
place. Remember also that no one is detained for having a mental disorder alone - it has to be suitable for treatment under specialist services,
there has to be a risk, and appropriate treatment must be available.

5. The Government proposal is to abolish the treatability test for reasons set out in numerous previous emails, and this amendment simply puts the
test back. We will continue to look for a solution that reassures clinicians and patients that detention must service a therapeutic purpose.

6. The only disagreement here is on whether age-appropriate accommodation should be referred to in the legislation. We are exploring non-legislative options. The Government's general position is not to legislate for service provision.