Tuesday 25 November 2008

Patients, their victims and the NHS

Health services now have much greater obligations towards the victims of their patients

On 3 November, most of the Mental Health Act 2007 came into force. Its main purpose was to amend the Mental Health Act 1983 (MHA). Now it has done that – and done it controversially – the 2007 Act will melt away. But it will leave behind some significant amendments to other acts of Parliament as well.

One of those amendments is to the Domestic Violence, Crime and Victims Act 2004 (DVCVA), which gives the victims of certain sexual or violent offenders the right to receive information over the course of the offender’s sentence and to make representations about any conditions to which he will be subject on release. (The offences in question, of which there are a great many, are those scheduled in the Criminal Justice Act 2003.)

Since 2005, similar rights have been available to the victims of offenders whom the courts have ordered to be detained in hospital and who are subject to special restrictions. Under MHA, restrictions may be imposed by the sentencing court if it considers them necessary to protect the public from serious harm.

The effect of the 2007 Act is to extend these rights to the victims of patients who, though they are detained in hospital by court order, are not the subject of special restrictions. The same rights will apply where such a patient is discharged from hospital onto Supervised Community Treatment (SCT).

To assist victims, there are new statutory duties. Many of the new duties will be owed to victims by the NHS trust responsible for the hospital in which an offender is detained. The MHA calls it the ‘hospital managers’.

It will usually be the responsibility of probation services to identify eligible victims and, with their consent, to pass on their details to hospital managers. Where a court sends an offender to hospital for mental health treatment, the managers will have to give information to his victims and pass on any representations they make.

Where a NHS body – such as a hospital trust or, in some cases, a PCT – has the power to discharge a patient from detention under the MHA or take him off SCT, it may only do so once it has considered any representations the patient’s victims have made.

Where a patient is detained in hospital by order of the court, the clinician with overall responsibility for his case must inform the managers if he is to be discharged or certain decisions are to be made about him. The clinician must also consider the representations of any victims when deciding what conditions to impose upon a patient who is discharged onto SCT. An approved mental health professional (AMHP) will also have to consider any such representations when deciding whether to agree to those conditions.

Guidance suggests that in order to discharge their new duties properly, hospital managers will need to have in place arrangements that allow them to: identify relevant patients and know which victims have asked to make representations or receive information; invite and pass on such representations; give victims required information and decide whether to give them additional information; and inform the managers of any new hospital that becomes responsible for a patient.

This will increase the workload of probation services, clinicians and AMHPs considerably. The greatest burden, however, is likely to be borne by NHS services. Official figures suggest that now the unrestricted have been added to the restricted, the number of patients whose victims enjoy DVCVA rights has increased by almost 50%.

The guidance referred to here was published by the Department of Health and the Ministry of Justice, and may be found here