Archive for the ‘Mental Health Act’ Category

When ‘must’ becomes ‘should’

February 3, 2008

Well, when DOES ‘must’ become ‘should’?   You should stop at a red traffic light?  You should stop when people are using a pedestrian crossing?   You should not open the door of a moving train?   This could go on for a long time – but the reality is that if people are allowed to operate choice in these types of situation, then things will go wrong, and the people involved, and their families, may well suffer seriously.

Last Monday, 28th January, was the last day for responding to the Welsh Assembly Government’s request for comments of the draft Code of Practice for the Mental Health Act.  (The draft Code of Practise now reflects the Mental Health Act 1983 as amended by the Mental Health Act 2007).  Hopefully many people – receivers of services, carers, professional workers, voluntary agencies and others with an interest in mental health in Wales – did so.  The document itself is large – 219 pages including appendicies – and being written in ‘document speak’ is not the easiest read.  But it needs to be read as it is important for everyone who may be treated under the MHA 2007 and their relatives.      So important that Edwina Hart, AM,  Minister for Health and Social Services has apparently said that she intends to read every response to the Consultation.    But to my mind there is a basic problem with the advisory words and phrases used throughout the Code in that there are many ‘shoulds’ and few ‘musts’.   Just taking the pages 3 – 7, which contain the guiding Principles 1 – 28, there are 33 ‘shoulds’ and five ‘musts’.    Yet, taking just a couple of examples for the purpose of this post, (chosen only because they are relatively brief and save me work)  it is hard to understand why ‘should’ was used instead of ‘must’.   1.25 reads:  Decisions under the Act should be taken with a view to minimising the harm done by mental disorder, by ensuring the safety and wellbeing (mental and physical) of patients and protecting the public from harm.    1.29 reads:  Where patients are in transition from one service to another, for example from adolescent to adult care or from adult to older adult services, practitioners should ensure that patients are receiving the most appropriate service to meet their needs and, where practicable, delivered in line with their expressed wishes.        Surely these two ‘shoulds’ ought to be ‘musts’?   Why would you NOT want the ‘must’ word here?     Well, I can think of reasons, such as service weaknesses and lmited budgets, but therein lies the problem for the service receivers and carers.  

Does this matter?   Yes, it does.   The intention of the Code is to guide practitioners in the discharge of their duties and also to protect the service receivers and their carers and families.   Never mind the ‘should’ protect them – it ‘must’ protect them.  The Code is the protection for both those who provide services and those who receive them – but on present reading it appears weak in relation to those who receive.  What has also surprised me is that although service users and chosen voluntary agencies have been involved throughout the drafting process, they seem to have missed this essential point – in law ‘must’ is protective and ‘should’ is not.   It is difficult to understand how the discussions were able to progress without this basic understanding having been resolved.  In fact, I don’t understand.  Along with some other professional colleagues I raised this issue at one of the WAG consultation events – and the hesitant response was far from convincing.  I become concerned when, in matters which may restrict an individual’s liberty and encroach their Human Rights they are not firmly protected – maybe because to guarantee such protection and properly recognise individual Human Rights would require major alterations to current mental health services – and attitudes?  Time is running out if implementation is to take place in October 2008.    But should the service users, carers and particularly the Voluntary agencies that were involved in this process have been prepared to admit any flexibility on such important issues?   I think not, and I would like to know why they did?

All comments, explanations, clarifications and any other ‘tions’ will be welcome. 


Mental Health News.

January 15, 2008

Courts failing to use the option of mental health treatment for offenders outside prison, says new report. 

From the Sainsbury Centre for Mental Health.   For more information click on Mental Health News in the Pages section on the right.  This report is interesting.

Update Mental Health Act 2007.

July 26, 2007

SUMMARY OF THE MENTAL HEALTH ACT 2007 As at 19th July 2007.  

The Mental Health Act 2007 gained Royal Assent on the 19th of July 2007; it amends the Mental Health Act 1983, the Mental Capacity Act 2005, and the Domestic Violence, Crime and Victims Act 2004. 

 Key provisions within the Mental Health Act 2007 

Although the structure of the Mental Health Act 1983 remains intact, some significant changes have been made to it by the 2007 legislation.  They include:


§     The introduction of a simplified definition of mental disorder that will apply throughout the Act, and the abolition of the current four separate categories of mental disorder

§     A requirement that appropriate treatment must be available if patients are to be subject to detention or the new provisions for supervised treatment in the community

§     The introduction of supervised community treatment, which will be available for patients following an initial period of detention and treatment in hospital

§     The replacement of the Responsible Medical Officer with a Responsible Clinician, who need not be a consultant psychiatrist (but must be an ‘approved clinician’)

§     The replacement of the Approved Social Worker with an Approved Mental Health Professional; in addition to registered social workers other mental health professionals will be able to take on the role of AMHP after suitable training

§     A new ground for an application to be made to the county court for the nearest relative of a patient to be displaced, and a new power to enable the patient to apply to the county court for the displacement of their nearest relative

§     A duty on hospital managers to ensure that an age-appropriate environment is provided to all patients who are under the age of 18 years

§     For capacious 16 or 17 year old patients their consent or refusal to admission informally may not be overridden by a person with parental responsibility for them

§     A requirement that those performing functions under the Act have regard to the Code of Practice published under the Act, and that the Code includes a statement of principles that must inform decisions taken under the Act

§     Abolition of the power to impose electro-convulsive therapy (ECT) on a capacious detained patient in a non-emergency situation

§     The introduction of a new independent mental health advocacy scheme for qualifying patients

§     Changes to the provisions that require the Hospital Managers to refer a patient’s case to the Mental Health Review Tribunal (MHRT)

§     The abolition of finite restriction orders

§     The power to transfer a s136 patient from one place of safety to another

§     A new power to “take and convey” a guardianship patient to the place where they are required to reside

§     Increase the tariff for an offence of ill-treatment


The amendments to the Mental Capacity Act 2005 will provide a procedure for the authorisation of the deprivation of liberty of persons resident in hospital or care home, who lack capacity (for the decision to reside there), and who are not subject to the mental health legislation safeguards.  These are known as the Deprivation of Liberty Safeguards (DoLS).


The amendment to the Domestic Violence, Crime and Victims Act 2004 will extend victim’s rights to information about the discharge of mentally disordered offenders.


Next steps


The Welsh Ministers are preparing the subordinate legislation arising from the 2007 Act and the Acts that the new legislation amends.  The Lord Chancellor will be preparing the MHRT Rules.


There will be a new Mental Health Act Code of Practice for Wales, and a new Code for England.  The Mental Capacity Act Code of Practice (which covers England and Wales) will be amended to include guidance on the Deprivation of Liberty Safeguards.


It is anticipated that most of the provisions of the 2007 Act will be brought into force in England and Wales in October 2008.

 Mental Health Act Implementation Project 

The Welsh Assembly Government has established an implementation project to secure full and successful transition to the amended legislative frameworks without detriment to either service users, carers, staff or public, within the timescales set by the legislative process.


The Assembly will be issuing revised Implementation Guidance shortly, and further guidance and information will also be made available in due course.


For further information on the Mental Health Act 2007 or the Assembly’s Implementation Project, please contact:


                        Claire Fife, Mental Health Act Implementation Project Manager

                        Welsh Assembly Government, Cathays Park, Cardiff. CF10 3NQ




A copy of the Act is available online at the Office of Public Service Information:

Mental Health Bill

April 26, 2007

The following has been received from MIND – support their actions by having a vote! 

Will the Mental Health Bill be good for service users? Of course not! The Bill will divert scarce resources from already over-stretched services into the bureaucracy of forced treatment in the community, and it will deter people from seeking help when they’re unwell. Its focus on compulsion rather than compassion will fundamentally damage mental health services.

Vote now in the Community Care poll, go to the bottom right hand side on the home page.

The results will be printed in the next edition of Community Care, the biggest health and social care journal — read by professionals and policy makers.

David Stone
Parliamentary Officer

15 – 19 Broadway
London E15 4BQ

A Rosie view of advocacy…

November 28, 2006

On Saturday morning I was so pre-occupied with the recent news that the ‘right to advocacy’ committment has disappeared from the Mental Health Bill published on 17th November, that it was a couple of  minutes before I realised that my struggles to find the sleeves in my bath towel were never going to be successful.    Have you seen the text of the speech given by Rosie Winterton, Minister of State for Health Services, at the Sainsbury Conference Centre earlier this year?                                                                                                                                        
                         images.jpg                                                                          winterton-2.jpg
                                          two pics of Rosie Winterton 

 The following is an extract from it:  “We remain committed to modernising mental health services to provide patients with quick, easy access to high quality services and effective treatment and care, and to give people a say in the treatment and a say in the care they receive. And if that is to mean anything, we need effective advocacy.I have already paid tribute to the work done over many years by voluntary and other advocacy services and groups.  The importance of their contribution has been considerable.  We believe that it is now time to build on their work and contribution, and to develop advocacy services that better meet the demands and challenges of 21st century.We know that some vulnerable people can feel overwhelmed by statutory services. People can even feel intimidated and do not know where to start to engage with services. And, of course, it is often when we are unwell that we find it hardest to explain what we need. Many service providers understand this all too well and advocates have an invaluable role to play in all of this.Advocacy is a way of making sure that the voices of those people most in need are heard,  thereby enabling  everyone  to access the services and support to which they are entitled. It means taking action to help people say what they want, to secure their rights, to represent their interests and obtain the services that best meet their needs. If people can’t do that, in this area in particular, it can have an impact on recovery.”

High talk, as they say in Arizona, and then when the Mental Health Bill was published on 17/11/06, we read that the right to advocacy commitment had been dropped from the bIll.   So what happened to the sensitivity and understanding being shown earlier in the year ?   Didn’t the following quotes mean anything real?

“And if that is to mean anything, we need effective advocacy.” 

“Advocacy is a way of making sure that the voices of those people most in need are heard”

……….”If people can’t do that, in this area in particular, it can have an impact on recovery.

Fine talk, as they say in Texas, but how do you understand it?