Action to clarify processes under the Mental Health Act
- Published on Wednesday, 31 October 2012 09:47
- Posted by Scott Buckler
The Department of Health is taking action to correct an irregularity in the application of the Mental Health Act 1983
A technical issue has been identified in the way some Strategic Health Authorities (SHAs) have been administering the process for approving doctors to work under the Act. This involves the process of approving doctors to assess and detain patients. This issue applies in four SHAs (North East, Yorkshire and Humber, West Midlands and East Midlands).
There is no suggestion that the hospitalisation or detention of patients has been clinically inappropriate; nor that the doctors involved are anything other than properly qualified to make the recommendations; nor that these doctors might have made incorrect diagnoses or decisions about the treatment that patients need.
The issue is a technical irregularity involving the approval process of doctors who make the assessments – not the validity of the assessments themselves. Doctors who assess patients, and make recommendations under the Mental Health Act, are required under section 12 of the Act to be 'approved' to do so. The Act requires the approval to be by the Secretary of State. The Secretary of State has properly and lawfully delegated that approval function to SHAs since 2002. However, four out of the ten SHAs asked mental health trusts to carry out the validation and approval process for them, but did not ask for it to be referred back to those Strategic Health Authorities for final confirmation.
All doctors involved have now been approved under the correct processes. There is therefore no issue with new assessments taking place under sections of the Act as of today.
Although there is clear legal advice that there are good arguments that previous detentions under the Mental Health Act were and are lawful, it is important that there should be no doubt about this. That is why, in relation to past and existing sections under the Act, the irregularity will be corrected by emergency retrospective legislation. The effect of the legislation will be retrospectively to validate the approval decisions that were made.
Because of the need for absolute clarity in this area, the legislation will be a simple and rapid process, and will apply in principle to the approval of all doctors under the Mental Health Act since its introduction in 1983.
Health Secretary Jeremy Hunt said:
"We believe that all the proper clinical processes were gone through when these patients were detained. They were detained by medically qualified doctors. We believe that no one is in hospital who shouldn't be and no patients have suffered because of this.
"But for the avoidance of any remaining doubt, and in the interests of the safety of patients themselves, as well as the potential concerns of their families and the staff who care for them, we are introducing emergency legislation to clarify the position."
The processes involved in this issue will be subject to an investigation so that any and all lessons for the future are learned. Not least, the Department wants to learn any lessons to help inform how these processes work from April 2013, when the structure of the NHS changes.
The Department of Health has asked Dr Geoffrey Harris, Chair of NHS South and former Chair of Buckinghamshire Mental Health Trust to undertake an independent review to look at how this responsibility was delegated by these four SHAs; and, more broadly, the governance and assurance processes that all SHAs use for delegating any responsibilities
Dr Harris will report to the Secretary of State by the end of the year with recommendations to ensure every part of the new system employs the highest standards of assurance and oversight in the delegation of any functions.