Sir: The current proposals for Mental Health Act reform (Department of Health, 2000) appear to have met with wide-spread concern from old age psychiatrists. Burton (Reference Burton2001) has perhaps expressed the concern more clearly than most. But the proposal that all those with long-term mental incapacity should have a care plan that is reviewed by a second opinion doctor seems bound to bring deep foreboding to those who work in the field.

It is certainly the case that the lack of safeguards highlighted by the Bourne-wood case give cause for concern ( R v Bournewood, 1998) and that there is an absolute need for effective measures to be available that prevent abuse. However, before agreeing to use a safeguard procedure on all patients with long-term incapacity we should at least consider likely effects. Given the large numbers of patients in residential and nursing homes with incapacity, it must be clear that if the current proposals become law, then the time taken to produce care plans and get second opinions look set to outstrip the entire availability of old age psychiatry in the UK. Moreover, and perhaps more importantly, we know that the more rare a positive finding on a screening system, the more stringent is the screening method required to avoid missing a positive case. In long-term incapacity, we think that this means that the proposed routine safeguard procedure will miss most abuse. We are also very concerned at the restriction of safeguards to hospital nursing and residential homes. Surely we need some safeguards for patients living at home and in day centres, etc.

The legislation as proposed is cumber-some and bureaucratic. We think that implementation would make access to care harder for those with severe incapacity and will thus be discriminatory (and thus Human Rights Act non-compliant).

We therefore urge consideration of a simpler system. We advocate the use of a broadly accessed but selective system that would only be used when concerns are raised about the care or rights of an individual. In our view anyone who is concerned about the care of an incapacitated person should be able to trigger a review. People able to initiate reviews would include nurses, carers, relatives and perhaps even a milkman or a priest. Once triggered, a review would need to include a proper assessment and second opinion such as that provided by the Mental Health Act Commission now, but would also need to be able to extend its remit beyond the mere principle of detention and administration of drugs as is currently the case. Environment, care standards and staffing levels might all be appropriate for the review. We think that such a process would have the advantages of being both focused where problems have some chance of being detected, as well as avoiding the destruction of old age psychiatry services by their distraction into an ineffective process. We also believe that the process would provide the access to statutory safeguards that are required under the Human Rights Act assessment and second opinion such as that provided by the Mental Health Act.