THE MENTAL HEALTH ACT 2007

The Mental Health Act 2007

Amends the mental Health Act 1983

Does not replace the 1983 Act

Mental Health Act 2007 – objectives

• To ensure patients receive the care they need to protect themselves and other people from harm

• To support modernised services• To strengthen patient safeguards• Remedy Human Rights incompatibilities

What’s Changing?

• Supervised Community Treatment (SCT)• Definition of Mental Disorder• Criteria for Detention • Consent & ECT safeguards • Professionals Roles• Nearest Relative• References to MHRT• Right to advocacy• Deprivation of Liberty Safeguards (DOLS)

Code of Practice Principlesmust inform decisions and address…

• Respect for patients past and present wishes and feelings

• Respect for diversity• Minimise restrictions• Involve patients in their

care and treatment• Efficient use of

resources• Equitable distribution of

services

• Avoid unlawful discrimination

• Effectiveness of treatment

• Views of carers and others

• Patient well being and safety

• Public safety

Definition of Mental Disorder – the 1983 Mental Health Act (now)

Psychopathic disorder

Mental disorder

Severe mentalimpairment

Applies to section 2

Other sections of 1983 Act (e.g. section 3) have to categorise the type of mental disorder

Mental Illness

Mental impairment

Definition of Mental Disorder – what will change with the amendments?

Learning disability must be associated with abnormally aggressive or seriously irresponsible conduct

(autistic spectrum disorders are not learning disabilities)

Mental disorder - “Any disorder or disability of the mind”

Applies to all sections – Decisions about compulsory interventions should

be based on risk and need rather than category

Definition of Mental Disorder Exclusions

• 1983 Act (now) excludes promiscuity & other immoral conduct. 2007 Act removes these exclusions as self evident they are not mental disorder

• Exclusion is “sexual deviancy” is removed• 1983 Act excludes dependence on alcohol or

drugs – the 2007 Act retains this

Criteria for DetentionUnchanged from 1983 Act (now):• must be suffering from a mental disorder in one of the 4

categories• disorder must be of a nature or degree to make

treatment in hospital appropriate• treatment in hospital must be necessary for patient's

health or safety, or for protection of others• detention is the only way of delivering the treatment

Changing:• if mental impairment or psychopathic disorder,

treatment must be likely to alleviate or present deterioration ("treatability”)

• replaced by “appropriate medical treatment available"

Appropriate Medical Treatment Test

• Can only detain if medical treatment appropriate to mental disorder – and all other circumstances of their case, is available

• Might include distance from home, cultural requirements etc

• Must have a holistic assessment• Purpose of treatment must be to alleviate or

prevent worsening of the disorder, its symptoms or manifestations

• Must be clinical purpose to detention

Consent and ECT Safeguards

• Except in emergencies, a person must consent to ECT - or where they lack capacity, a second opinion Doctor (SOAD) must give authorisation

• People who have capacity cannot have wishes over ridden except in an emergency

• SOAD cannot give a certificate if this conflicts with a valid and applicable advance decision, objection by a donee (LPA) or deputy (appointed by Ct Protection)

• Where a person gives consent, but then loses capacity before or during the ECT treatment, a second opinion must be sought

Consent and Young People• Patients under 18 who are not detained, will have

statutory right to advocacy for section 58 treatments• ECT for under 18s (detained or informal) is not allowed

without a SOAD’s authorisation unless it is an emergency

• 16 and 17 year olds who have capacity, cannot have their refusal to be admitted to or remain in hospital for mental health treatment over-ruled by a person with parental responsibility - now commenced

• Hospital managers must ensure that voluntary or detained patients, under 18 years old, must be in an environment suitable for their age, subject to their needs

1983 Act – Existing Community Powers

• Guardianship – can require to reside; give access; attend for treatment (cannot enforce medication); attend for occupation and education

• Supervised Discharge - can require to reside; give access; attend for treatment (cannot enforce medication); attend for occupation & education – no power of recall

• Section 17 leave of absence – for patients already detained

Amendments - Supervised Community Treatment

• Supervised discharge will be abolished• Community Treatment Orders (CTOs) can only be

applied for person already detained under section 3 or some sections imposed through the courts

• Similar criteria to sec 3; i.e. must still require treatment and no other less restrictive alternatives could be used

• Decision made by Responsible Clinician + second opinion of Approved Mental Health Professional (AMHP)

• Must be necessary to be able to recall the patient to hospital for treatment

SCT continued…• Conditions of care can be imposed • Purpose of conditions must be explicit & can only be

made to ensure medical treatment or prevent harm to patient’s health or safety or protection of others

• Must be necessary having regard to patient’s history• Care provided free of charge• Medication cannot be enforced in the community

except in certain limited emergency situations• Can be recalled• Re-detention by Responsible Clinician, agreed by

AMHP• Rights to appeal to tribunal and must be referred to

MHRT if the CTO is revoked

Professionals involved in decisions – 1983 Act (now)

• 1983 Act requires two doctors to make a recommendation that the person requires compulsory treatment

• An Approved Social Worker reviews all the circumstances and where no alternative care plan can be made, they will make an application for the person to be compulsorily admitted.

New Professional Roles - AMHP

• Introduction of Approved Mental Health Professional - appropriately trained and qualified mental health professional

• Functions will be the same as Approved Social Worker

• Training will be accredited and based on current ASW training

New Professional Roles - RC• 1983 Act - Detained patients all have a

Responsible Medical Officer • Amendments will replace RMO with a

Responsible Clinician• At point of assessment, two doctors must make

medical recommendations• For renewals, RC must get agreement from MH

practitioner from another profession • Role to have an overview of all assessment and

treatment• Responsible Clinician is appointed according to

the needs of the patient

Nearest Relative1983 Act (now)• ‘Nearest relative’ is a

person defined in law • NR has various rights

including to be consulted, to object to admission and to discharge

• Can only be displaced from this role through Court, and grounds for this are limited

Amendments• Includes civil partners • NR rights remain and apply

also to SCT• Courts can displace the

nearest relative where it is deemed reasonable on the ground the NR is “unsuitable”

• Patient has new right to apply to the courts for displacement

• Courts can displace the nearest relative for an indefinite period

Mental Health Review Tribunals1983 Act (now)

• Detained patients have right to appeal in each term of detention

• Hospital must refer patient’s case periodically if they don’t apply themselves

Amendments• Right of appeal for those on

SCT• Those whose SCT is

revoked must be referred to MHRT

• Automatic referral after 6 months from start of detention, not just start of section 3

• Reference after exactly 3 years/ 1 year of last hearing - not at the next renewal point

• 1 year period applies to under 18’s, not under 16’s as previously

Statutory Right to Advocacy

• All detained, SCT and guardianship patients have right to advocacy

• Informal patients have right to advocacy where treatment is under sec 57 – requiring consent and second opinion (i.e. psychosurgery) - this also applies to under 18’s in respect of ECT

• Patients have to be given information about advocacy

• Advocates have right of access to records (with patients permission)

• Can advocate in areas of treatment, care planning, reviews

Deprivation of Liberty Safeguards (DOLS)

– care for those without capacity • Mental Capacity Act does not permit deprivation

of liberty• Mental Health Act 2007 amends the Mental

Capacity Act to provide a legal means of authorising deprivation of liberty

• Will affect those over 18 who lack capacity to give informed consent to their care where the nature of the care could be depriving them of their liberty

• If patent objects to hospital admission and could be detained under the MH Act instead, DOLS cannot be used

Deprivation of Liberty Safeguards

• Deprivation of liberty must be authorised via a legal procedure

• Assessment must establish eligibility criteria and best interest + necessary + proportionate + no other viable alternative

• Assessor can attach conditions to the authorisation including time period of authorisation

• Maximum period of authorisation is 12mths• Person has right of appeal and a representative

appointed• Where the representative is an unpaid person, they

have right to refer to an IMCA on any issue

Additional Amendments

• Rights of victims to information about discharge of certain mentally disordered offenders extended from restricted offenders to unrestricted offenders as well

• Patients in a place of safety (for the purpose of assessment – sections 136 and 135) can be transferred between places of safety