Yesterday afternoon we passed emergency legislation, introduced into the house and passed in one day, including receiving Royal Assent. This is a relatively rare occurrence. It can only happen if all parties agree to the urgent necessity. The Mental Health (Approval Functions) Bill came about because the Government discovered that 4 out of 10 Strategic Health Authorities have since 2002 been delegating to Mental Health Trusts their powers to approve doctors as qualified to detain patients under the Mental Health Act. So for 10 years no less, thousands of detentions under the Act were unwittingly but possibly illegal. The decisions to detain patients were however made in good faith by doctors and other professionals who had no idea they had not been correctly approved and indeed the process of approval by specially trained panels was the same as if the approval process has not been incorrectly delegated. Complicated huh?
Everyone agrees, including the voluntary organisations that represent patients interests, that there was no option but to give retrospective approval to these doctors to ensure that their actions were legal. So the Bill does just that. Questions remain…how did these health authorities get the approval delegation scheme so wrong? One of the most grave powers doctors have is to deprive mentally ill patients of their liberty under certain prescribed circumstances; ensuring that these doctors are skilled and experienced is a serious responsibility. The reason the regulations do not sanction the delegation of approval by Authorities to Mental Health Trusts is because these Trusts are the very same body responsible formally for detaining patients and hearing appeals against detention. It is important that patients perceive no conflict of interest in the various roles in relation to their detention. Lord Pannick raised a concern that the legislation is exceptionally broad…a blanket sanction of past approvals. I sympathised with that point but I fear that there may have been earlier authorities making the same mistake and the Government has no way of identifying them, hence the catch all.
How will this administrative thoughtlessness be conveyed to patients who believed their detentions were all above board? And by the way, the courts may well decide that the detentions were legal anyway? It won’t improve patients’ confidence in the “sectioning” system. I am pleased that the government has announced a full inquiry is to be conducted into how the error occurred and to ensure there are no other authorities making similar delegations.