Foreword

It seems probable that publication of this issue of the Journal will coincide with publication by the Department of Health of the eagerly awaited White Paper containing the Government’s intended reform of mental health legislation

Foreword

We begin this issue of the Journal by focusing on Parts I and II of the Government White Paper - Reforming the Mental Health Act, which was published in December last year

Foreword

Those who have been following the progress of the mental health law reforms in England and Wales may be forgiven for experiencing a sense of déjà-vu during the Queen’s Speech last year, as the much anticipated Mental Health Bill was (perhaps not surprisingly) absent from the Government’s parliamentary agenda for the second year running. It would seem that ministers are unable to reach agreement on the exact direction of the new Bill. There are also rumblings that the much needed Mental Health Act reforms are not being afforded sufficiently high priority by the Government. John Reid, the Health Secretary, was quick to respond such criticisms in November, confirming the Government’s intention to bring forward a revised Bill for pre-legislative scrutiny by Parliamentary Committee “as soon as possible”. For the time being however, it remains to be seen when the new reforms will be introduced

Foreword

This special issue of the Journal of Mental Health Law has been prompted by the recent publication of the Government’s Green Paper Review of the Mental Health Act 1983: Proposals for Reform. The Green Paper aims to "modernise the legal framework within which mental health care is delivered" by proposing a number of reforms to the current regime established under the Mental Health Act 1983.We have aimed in this edition to highlight some of the key issues arising from both the Green Paper and the Report submitted to the Department of Health by the Scoping Study Review Team, in July 1999

Foreword

Nobody who works in or writes about this area of the law can fail to acknowledge that we are experiencing a period of explosive change. Since the last issue of the Journal we have seen the publication of two new draft Bills, which together promise to change the shape of mental health care and services in the future. On 18th June 2004, the Mental Capacity Bill was published, reflecting many of the recommendations made by the Joint Parliamentary Scrutiny Committee appointed last summer to consider the Mental Incapacity Bill 2003. More recently, on the 8th September, the new Mental Health Bill 2004 was finally published, and will also be subjected to pre-legislative scrutiny by an expert parliamentary committee which is due to report its findings by March 2005. Finally, this very week, the draft Code of Practice for the Mental Capacity Bill 2004 was announced by the Department of Constitutional Affairs

Foreword

In the final months leading to the publication of a revised Bill in 2003, this issue of the Journal seeks to highlight the many fundamental concerns about the current draft Bill expressed by sectors working in the mental health field, by bringing together a handful of the estimated 2000 or so responses made during its short consultation period last summer. For ease of reference, the articles and commentaries which focus squarely on the implications of the draft Bill have been placed in a separate section at the end of this Journal (when editing this section, we have assumed that readers have some prior knowledge of the contents of the Bill)

Malingered mental health: Legal review and clinical challenges in English and Welsh law

Malingering – the feigning of mental or physical health symptoms for external gain – is a significant problem for clinicians, the courts, and society. For clinicians working in mental health settings, it is a complex task to differentiate malingered presentations from genuine ones, with a range of potential legal and ethical questions facing the clinician who conducts this task. Yet, the malingering of mental health problems has a range of potential impacts. For the courts, malingering presents a significant threat to their basic function by acting as a significant impediment to truth. For society, malingering wastes clinical time, leaves the potential for injustice to occur in response to criminal acts, and has a significant financial burden in unwarranted civil payments. The focus of the present review is therefore to review the issue of malingering from a legal perspective, leading to a consideration of recommendations for a clinician faced with assessing a client suspected of malingering behaviou

Planning for tomorrow whilst living for today: the views of people with dementia and their families on Advance Care Planning

Background: Advance care planning (ACP) is increasingly prominent in many countries; however, the evidence base for its acceptability and effectiveness is limited especially in conditions where cognition is impaired, as in dementia. Method: This qualitative study used semi-structured interviews with people with mild to moderate dementia (n = 17) and family carers (n = 29) to investigate their views about planning for their future generally and ACP specifically. Results: People with dementia and their families make a number of plans for the future. Most people undertook practical, personal, financial, and legal planning. However participants did not make formal advance care plans with the exception of appointing someone to manage their financial affairs. Five barriers to undertaking ACP were identified: lack of knowledge and awareness, difficulty in finding the right time, a preference for informal plans over written documentation, constraints on choice around future care, and lack of support to make choices about future healthcare. Conclusions: Health and social care professionals can build on people's preferences for informal planning by exploring the assumptions underlying them, providing information about the possible illness trajectory and discussing the options of care available. Health and social care professionals also have a role to play in highlighting the aspects of ACP which seem to be most relevant to the wishes and aspirations of people with dementia

Planning for tomorrow whilst living for today: the views of people with dementia and their families on advance care planning

Background: Advance care planning (ACP) is increasingly prominent in many countries; however, the evidence base for its acceptability and effectiveness is limited especially in conditions where cognition is impaired, as in dementia. Method: This qualitative study used semi-structured interviews with people with mild to moderate dementia (n = 17) and family carers (n = 29) to investigate their views about planning for their future generally and ACP specifically. Results: People with dementia and their families make a number of plans for the future. Most people undertook practical, personal, financial, and legal planning. However participants did not make formal advance care plans with the exception of appointing someone to manage their financial affairs. Five barriers to undertaking ACP were identified: lack of knowledge and awareness, difficulty in finding the right time, a preference for informal plans over written documentation, constraints on choice around future care, and lack of support to make choices about future healthcare. Conclusions: Health and social care professionals can build on people's preferences for informal planning by exploring the assumptions underlying them, providing information about the possible illness trajectory and discussing the options of care available. Health and social care professionals also have a role to play in highlighting the aspects of ACP which seem to be most relevant to the wishes and aspirations of people with dementia