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Mental Health (Miscellaneous Provisions and Prescribed Forms) (Jersey) Order 2018

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A decision made 4 July 2019:

Decision Reference:       MD-HCS-2019-0033

Decision Summary Title :

Amendment to Mental Health (Miscellaneous Provisions and Prescribed Forms) (Jersey) Order 2018

 

Date of Decision Summary:

4th July 2019

Decision Summary Author:

 

Interim Divisional Lead - Mental Health Services

Decision Summary:

Public or Exempt?

(State clauses from Code of Practice booklet)

Exempt Public

Type of Report:

Oral or Written?

Written

Person Giving

Oral Report:

Capacity & Liberty Officer, Mental Health Legislation Team

 

Written Report

Title :

Amendment to Mental Health (Miscellaneous Provisions and Prescribed Forms) (Jersey) Order 2018: Instructions

Date of Written Report:

4th July 2019

Written Report Author:

Interim Divisional Lead – Mental Health Services

Written Report :

Public or Exempt?

(State clauses from Code of Practice booklet)

ExemptPublic

Subject: Amendment to Mental Health (Miscellaneous Provisions and Prescribed Forms) (Jersey) Order 2018.

 

Decision(s):  The Minister agreed to Aan amendment to the 2018 Order, Mental Health (Jersey) Law 2016 (the “MHJL”) is required in order to enable general practitioners (“GPs”) to be approved as approved practitioners (“APs”) under the Mental Health (Jersey) Law 2016 (the “MHJL”) so that they may be appointed as medical members to the Mental Health Review Tribunal Panel (the “MHRT”).

 

Reason(s) for Decision: Currently, the way in which the 2016 Law and the 2018 Order are drafted, and training and experience requirements for APs generally, prevents GPs from being eligible for appointment as medical members. Further background and rationale is provided in the attached written report. It is essential that general practitioners can be eligible under the 2016 Law and 2018 Order for consideration for appointment to the Mental Health Review Tribunal Panel as qualified persons, to act as medical members to the Tribunal subject to appointment in accordance with the 2016 Law.

 

Resource Implications: There are no resource implications.

 

Action required: Officers to instruct the Legislative Drafting Office, and attend to all such ancillary and associated actions, as required.

 

Signature:

 

 

Position:

Minister for Health and Community Services

 

Date Signed:

 

 

Date of Decision (If different from Date Signed):

 

Hide report
Mental Health (Miscellaneous Provisions and Prescribed Forms) (Jersey) Order 2018

1

 

Amendment to Mental Health (Miscellaneous Provisions and Prescribed Forms) (Jersey) Order 2018: Instructions

Introduction

  1. The Law Draftsman is asked to prepare an amendment to the Mental Health (Miscellaneous Provisions and Prescribed Forms) (Jersey) Order 2018 (the “2018 Order”) in accordance with the instructions below.

 

  1. An amendment to the 2018 Order is required in order to enable general practitioners (“GPs”) to be approved as approved practitioners (“APs”) under the Mental Health (Jersey) Law 2016 (the “MHJL”) so that they may be appointed as medical members to the Mental Health Review Tribunal Panel (the “MHRT”). Currently, the way in which the 2016 Law and the 2018 Order are drafted, and training and experience requirements for APs generally, prevents GPs from being appointed as medical members.

 

  1. The instructing policy officer is Graham Wassel, Interim Divisional Lead – Mental Health Services, supported by Toby Farlan, Capacity and Liberty Assessor, both within Health and Community Services. Frank Le Gros, legal adviser, has provided advice on the proposed amendment. The legislative drafter is asked to contact Frank Le Gros in the first instance to discuss policy and legal matters dealt with in these instructions.

Background

  1. Article 47(1) of the MHJL provides that the Bailiff shall appoint a MHRT Panel (the “Panel”) from which the members of a MHRT convened to carry out any of the MHRT’s functions shall be drawn. Article 47(2) of the MHJL provides that the Panel shall consist of such number of qualified persons as in the Bailiff’s opinion is necessary for the purpose of carrying out the MHRT’s functions.

 

  1. Article 47(3)(b) of the MHJL provides that, among others, a qualified person who is to be a medical member of the MHRT is one who is medically qualified by virtue of being an approved practitioner or a practitioner qualified and registered outside of Jersey. Article 47(4) of the MHJL provides that qualified persons shall also be persons who, in the Bailiff’s opinion, have sufficient experience and knowledge to enable them to determine matters falling to be determined by the MHRT, and who are not disqualified under Article 47(4)(b) of the MHJL.

 

  1. An ‘approved practitioner’ is defined in Article 16(1) of the MHJL as –

 

“A registered medical practitioner may be approved by the Minister under this Article where the Minister is satisfied, on the production of such evidence as may be prescribed, that the practitioner has sufficient experience and training in the field of mental health and in the operation of legislation relating to mental health.” [Emphasis added]

 

  1. Article 16(2) of the MHJL provides that the Minister for Health and Community Services may approve a person as an ‘approved practitioner’ “upon such terms and conditions as the Minister thinks fit, and the approval may be revoked and the terms and conditions upon which it is granted may be varied by the Minister”. Note that Article 95(3) of the MHJL provides that Orders under the MHJL may make such supplemental provision as may appear to the Minister to be necessary or appropriate.

 

  1. Pursuant to Ministerial Decision (Decision reference MD-HSS-20187-0058 dated 27 November 2018) the Minister delegated a number of ministerial functions under the MHJL to the Mental Health Law Administrator (appointed under Article 4 of the MHJL). Those functions include the approval of approved practitioners under Article 16 of the MHJL.

 

  1. The 2018 Order prescribed a number of matters required to be prescribed under the MHJL including the evidence of training and experience required to be produced for the purposes of approval as an approved practitioner. Article 3 of the 2018 provides (set out in full for ease of reference) –

(1)     For the purposes of approval under Article 16 of the Law, a registered medical practitioner must be a person who –

(a)     holds a full registration with licence to practise from the General Medical Council; and

(b)     also fulfils one of the requirements in paragraph (2).

(2)     The requirements mentioned in paragraph (1)(b) are that the person –

(a)     is a member or fellow of the Royal College of Psychiatrists and has attained approval to practise as an approved practitioner following completion of the Mental Health (Jersey) Law 2016 Approved Practitioner Training Programme;

(b)     is a member of the Royal College of General Practitioners appearing on the National Performers List with a minimum of 3 years’ full-time experience including –

(i)      substantial experience in the diagnosis or treatment of mental disorder, and

(ii)      at least 4 months spent in a supervised psychiatric training post within a training programme recognized by the Royal College of Psychiatrists,

and has attained approval to practise as an approved practitioner following completion of the Mental Health (Jersey) Law 2016 Approved Practitioner Training Programme; or

(c)     has –

(i)      a minimum of 3 years’ full-time experience in either a psychiatric training post or a non-consultant career grade post, including in each case substantial experience in the diagnosis or treatment of mental disorder, and

(ii)      attained approval to practise as an approved practitioner following completion of the Mental Health (Jersey) Law 2016 Approved Practitioner Training Programme.

(4)     The training programmes prescribed for the purposes of Article 16 of the Law are the training programmes known by the names mentioned in paragraph (2) and approved by the Minister for those purposes.”

 

  1. When the MHJL was being developed and implemented, together with associated secondary legislation including rules for procedures within the MHRT, it was proposed that the MHRT would move toward using specialist mental health practitioners recruited from Guernsey and the UK to act as medical members. The policy intention was to move away from using local general practitioners as medical members because there was a perceived conflict of interest in using locally registered medical practitioners to review decisions of the Minister or Health and Community Services (“HCS”) and because it was considered inappropriate for general practitioners to review the decisions of specialist psychiatrists.

 

  1. For a number of reasons, including unforeseen difficulties in the off-island recruitment process, to date it has not been possible to secure the services of off-island specialist practitioners as had been intended. As such, the practice of using local general practitioners has continued. The issue is that general practitioners do not have the required training and experience as required by the 2018 Order, and in particular have not been trained in accordance with the Mental Health (Jersey) Law 2016 Approved Practitioner Training Programme, so are not sufficiently trained and experienced to be ‘approved practitioners’ for the purposes of the MHJL and, in turn, cannot be appointed as ‘qualified persons’ to the Panel.

 

Instructions

  1. The Legislative Drafting Office is requested to prepare an amendment to Article 3 of the 2018 Order which would enable general practitioners to be eligible for approval as ‘approved practitioners’ and, therefore, considered for appointment to the Panel, as qualified persons, to act as medical members.

 

  1. General practitioners will, of course, be registered medical practitioners registered under the Medical Practitioners (Registration) (Jersey) Law 1960. Many general practitioners have a degree of experience and training in matters pertaining to mental health sufficient to enable them to sit as medical members on the Panel. This is currently the case for those continuing to be involved in the Panel. Before the commencement of the MHJL, local general practitioners routinely sat as medical members on the Panel and a number of those general practitioners have continued to sit on the Panel as constituted under the MHJL since the repeal of the Mental Health (Jersey) Law 1969 and the previously constituted MHRT. From a practice perspective, it can be considered sufficient to have appropriate general practitioners acting as medical members, such as those general practitioners currently ‘acting’ as medical members to the Panel, and others who may be required to act in future.

 

  1. In order to enable general practitioners to act as medical members to the Panel, it is proposed that an amendment to the 2018 Order would enable general practitioners with a sufficient degree of training and experience in mental health to be eligible for approval as approved practitioners under Article 16 of the MHJL for the purposes only of consideration as qualified persons to act as medical member to the MHRT. In turn, this will enable the Bailiff to consider those practitioners for appointment to the Panel as qualified persons.

 

  1. The vires in Article 16(1) and 95(3) of the MHJL is considered sufficient to enable the 2018 Order to make provision that would restrict the Minister’s approval of general practitioners for a specific purpose, ie for the purpose of being eligible for consideration for appointment as a qualified person to act as medical member, rather than for the purposes of acting as an ‘approved practitioner’ generally for the purposes of the MHJL. In addition, the Minister would then, in approving general practitioners under Article 16(1) and further to Article 3 of the 2018 Order (as amended), grant approval on the condition that the general practitioner is approved as an approved practitioner only for the purposes of consideration as a qualified person. The provision in Article 3 of the 2018 Order (as amended) and the nature of the Minister’s approval will make it absolutely clear that general practitioners are not approved for the same purposes as other practitioners who are approved more generally as approved practitioners for wider MHJL purposes, such as providing opinions in relation to the admission of patients under Part 3 of the MJL. This restriction would ensure that a general practitioner could not, for example, then seek to provide an opinion for the purposes of the admission for assessment or treatment under the MHJL.

 

  1. As such, the Legislative Drafter is asked to prepare an amendment to Article 3 of the 2018 Order which would limit the requirement for the production of evidence to satisfy the Minister of the matters in Article 16(1), in the case of general practitioner’s who are to be approved as approved practitioners simply for acting as medical members, to such evidence that demonstrates that the general practitioner has such degree of expertise or training in mental health issues to be an effective medical member.

 

  1. The effect of this is that the evidence of training and experience required from general practitioners in order for them to be eligible for approval as approved practitioners to act as medical members, will be such that the Minister considers suitable for the purposes of that general practitioner being as effective medical member. This will be determined on a case by case basis by the Minister. To be absolutely clear, general practitioners whom it is proposed will act as medical members to the Panel will not have the qualifications and training specified in Article 3(2) of the 2018 Order[1]. The intention of the amendment to the 2018 Order is to make a special exemption from those requirements in the case of general practitioners for the purposes of their eligibility for approval as approved practitioners.

 

 

  1. As explained above, an amendment to the 2018 Order along these lines would then require the Minister to approve, as approved practitioners, general practitioners who are considered to have sufficient experience and training in mental health for the purposes of acting as medical members to the MHRT. This will require HCS or MHRT officers to brief the Minister as to the training and experience of those general practitioners proposed to act as medical members and obtain formal approval of those individuals as approved practitioners. The nature of the Minister’s approval will also need to include a condition that the practitioners are only approved with a view to those persons being considered by the Bailiff for appointment to the Panel to act as medical member to the MHRT. Thereafter, the Bailiff will be required to appoint those same individuals to the Panel, on the basis that they are ‘qualified persons’ to act as medical member to the MHRT, by virtue of being approved by the Minister as approved practitioners. The appointment of these individuals by the Bailiff will need to be coordinated with officers at the Bailiff’s Chambers.

Timing

  1. HCS, the Tribunal Service and the Judicial Greffier are faced with a number of operational difficulties until such time as the issues discussed in these instructions can be resolved. A number of MHRT hearings have been postponed until the amendment to the 2018 can be made, in order to enable general practitioners to act as medical members to the MHRT. Hearings scheduled for this week have been postponed for one week so there is a need to ensure that the amendment to the 2018 Order is completed before Wednesday 10 July.

 

Graham Wassel

Interim Divisional Lead – Mental Health Services

Health and Community Services

[1] In passing, it is noted that there is a numbering error in Article 3 of the 2018 Order. There is no Article 3(3).  

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