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Mental Health Act – a new age?

21 January 2019

Those with a keen eye on mental health law will have seen that Sir Simon Wessely’s full report on the Mental Health Act was published on 6 December 2018. A link to the report can be found here.

Context

Mental health issues have attracted more public attention and awareness in the last few years. It is in this context that many groups representing service users have been raising concerns for some time that parts of the existing Mental Health Act are out of step with public attitudes and opinion. There is a lot of concern about the rising number and duration of detentions, particularly amongst black and minority ethnic (BME) groups. Similarly community care provision is considered to be patchy with some research also questioning the efficacy of community treatment orders. Specialist interest groups lobbied government heavily, highlighting some of their own in-depth research; the Mental Health Alliance being just one example, suggesting as many as 50% of people did not feel confident that their basic human rights would be protected if detained under the Act. Similar concerns were also shared in the CQC’s State of Care in Mental Health Services 2014-2017, which particularly flagged the widespread use of restraint.

The recently published review puts forward a wide range of recommendations for the government to consider. It is interesting to remember that this whole process started during the 2017 election when Teresa May stated that, if elected, her government would replace the “flawed Mental Health Act” in its entirety. At the time of publication however, the government has so far only indicated that they will be accepting 2 of the 154 recommendations made by the review.

The report

Main themes

Vying for attention amongst the backdrop of current Brexit turmoil may be a challenge. The report extends to 307 pages, making 154 recommendations. Perhaps given away by the title of the document, the broad theme is 'more choice and less compulsion' in every aspect of mental health care. The review recommends that a set of four central principles should be included in the Act:

  • Choice and autonomy – one consistent concern has been that patients do not have enough say in their treatment. The report aims to tackle the complex balance between the right to autonomy and the need to protect the vulnerable/the public. A number of recommendations essentially look to a move to a more rights based legal framework, with patients being able to make more choices for themselves than is currently the case. It suggests advance planning, greater advocacy rights and rebalancing the system in favour of patient wishes. It sees restoring dignity to people as fundamental to improving services.
  • Least restriction – against a backdrop of rising concern about increasing levels of coercion, the report seeks to tighten criteria for detention, including the requirement that patients must be refusing admission before resorting to detention powers. Essentially, the report seeks the return of the informal patient and seeks to place more emphasis on avoiding detention and supporting people in crisis. It also recommends that police cells are no longer used as a place of safety for anyone of any age.
  • Therapeutic benefit –the report seeks to emphasise the need to demonstrate measurable therapeutic benefit to minimise use of detention powers so that people can be discharged from the Act entirely. It also talks about inpatient environments and cultures enabling people to get better.
  • The person as an individual – patients report feeling like a diagnosis, not a person. The recommendations seek to ensure that patients are viewed and treated as rounded individuals with their own idiosyncratic beliefs, priorities, abilities and limits. It also recommends the creation of an organisational competency framework designed to address the disproportionate detention of those from some BME communities.

Professionals would be required to record how the principles have been taken into consideration, and to enable local auditing and monitoring and CQC to consider this as part of their monitoring and inspection role.

Detail

Whilst summarising 307 pages into a short digestible format is a challenge, some of the central points are as follows:

The government has so far accepted 2 of the review’s recommendations to modernise the Mental Health Act:

  • Those detained under the Act will be allowed to nominate a person of their choice to be involved in decisions about their care as their nearest relative. Currently, they have no say on which relative is contacted. This can lead to distant or unknown relatives being called upon to make important decisions about their care when they are at their most vulnerable.
  • People will also be able to express their preferences for care and treatment and have these listed in statutory 'advance choice’ documents.

Changes to the nearest relative role

The report recommends that patients should be able to choose a nominated person at the point of assessment for detention or during detention itself.

There has been wide opposition to the current concept of the 'nearest relative' and widespread support for the proposition that the patient should be able to choose their own 'nominated person'.

This would replace the current rather arbitrary system whereby the nearest relative is identified by reference to a rigid hierarchical list of relatives set out in the Act.

The nominated person would have slightly wider powers to the nearest relative – to prevent s.3 detention, discharge a patient, apply to the Tribunal, and to be consulted where detention is to be renewed, or the patient is to be transferred to a different hospital.

Where a person lacked capacity to nominate a person, the Approved Mental Health Professional (AMHP) would be required to identify the person most suitable as an interim nominated person, based on guidance.

Giving greater weight to personal autonomy and choices, and strengthening rights of challenge

The review sets out a number of recommendations around this theme, including the two recommendations so far accepted by the government. The review states that concepts in the Mental Capacity Act of advance decision-making and welfare powers of attorney should also apply in the context of the Mental Health Act. It is recommended that decisions made by patients with capacity for example to refuse treatment should only be overridden when absolutely necessary. It is also recommended that at all times, whether a patient has capacity or not, it should become the norm to record their wishes and preferences together with reasons why these should not be followed. The review recommends the tightening of detention criteria to include a requirement of a substantial likelihood of significant harm to the health, safety or welfare of the patient or another person and for beneficial treatment to be available before detention can be authorised.

Advance choice documents would be offered to anyone who had been previously detained and potentially those at heightened risk of detention and set out the persons views about what treatment should be administered and how. Clinicians would be required to respect these unless there was a good reason not to, such as that the treatment being requested was harmful. The review also recommends a ‘beefing up’ of the existing second opinion appointed doctors scheme with earlier reviews, a role for the Tribunal whereby individual treatment decisions could be challenged and in some cases review by the High Court or Court of Protection (in relation to overturning a patient’s wishes about ECT (electroconvulsive therapy) treatment).

Other recommendations include:

  • Tribunal access – the review recommends that this should be increased, including right to access the Tribunal within 3 months of initial detention and a second opinion appointed doctor/CQC right to refer a case to the Tribunal. It is also recommends that there should be a power to convene a Tribunal, even where the patient does not request it.    
  • Advocacy – the report recommends that the right to advocacy should be an opt-out rather than the current opt in provision, and should be available to a patient whether formally detained or not.
  • Resource – the review comments that broadly speaking, quality of care, once accessed, is good, but the difficulty lies in accessing services. All too often crisis opens the door, not the need for early, timely (and less restrictive) intervention. The report acknowledges the resource issue and encourages a long term plan to recruit highly skilled staff, especially from currently over represented service user populations.
  • Detention periods – the report recommends a shorter initial section 3 period of detention – reducing this from the current 6 months to 3 months, to allow early scrutiny of decisions. It also recommends the widening of Tribunal powers in this regard.
  • Hospital managers – The report recommends abolishing hospital managers hearings and states that further assessment is required of where Hospital Manager resource should be deployed.
    Cross ticketing of Tribunal and Court of Protection judges where there is a complex interplay between the Mental Capacity and Mental Health legislation.
  • Community treatment orders – whilst not calling for abolition, the report makes clear their view that community treatment orders are overused. It recommends that the community treatment order criteria should be tightened with a need to show that previous disengagement has led to deterioration in mental health. Approval of three professionals should be required (including the community provider) and they should not ordinarily extend over two years. In addition it is recommended that Tribunals should be able to vary conditions and the report also suggests further research is required on efficacy and use. To use the vernacular, community treatment orders are in the 'last chance saloon'.
  • Estate – the report makes it plain – investment in the NHS estate is required.
  • Community care – s.117 aftercare, it is felt, creates inequality and confusion. The report does not seek to address this, instead leaving it to the NHS Long Term Plan and emphaising the need for separate national guidance.
  • Children/young adults – there is a recommendation that parental consent should no longer be sufficient to authorise detention and treatment from parents of 16/17 year olds who have capacity to make decisions regarding their care.
  • Learning disability and autism - on balance, the review does not recommend that learning disability and autism be removed from the ambit of the Act, but recommends this should be kept under review.
  • criminal justice – it is recommended that to limit the scope for remanding mentally ill people to prisons, this should be declassified as a place of safety on welfare grounds when bail conditions are being considered. The report also recommends extending Magistrate powers to remand to hospital (subject to bed availability resourcing issues). New time limits for transfers are also recommended.
  • conditional discharge and deprivation of liberty – the report recommends that the Government should legislate to give the Tribunal the power to discharge patients with conditions that restrict their freedom in the community, potentially with a new set of safeguards. This would potentially fill the existing legislative void that we have around some patients created by the recent MM Supreme Court judgment.

Conclusion and comment

Wide ranging as this review is, it must be set in context of larger scale reform and investment in the health and care sector. As such, it should be read in conjunction with the NHS Long Term plan and the changes envisaged to the deprivation of liberty processes. Legislation is also only one small part of the puzzle with other wider societal and cultural changes being also required to effect real change.

There is a lot of detail which is difficult to distil into a short article and many of the recommendations read a little like a wish list; it is widely accepted that with apparently rising mental health issues within the population, particularly the young, significant ongoing investment is required to achieve the aims this review has been asked to address. Whilst at this time the government has accepted only 2 of the recommendations, the detail of the report may carry significant weight for those lobbying for more investment in a strained mental health system.

The appetite for parliamentary time within the current environment remains to be seen (though the government did state its intention to respond in the new year). As above, two recommendations have already been accepted (nominated person and advance choice documents), but whatever the timescales, it is clear that some of these recommendations require long term planning and resource allocation. We await the government’s response keenly.

How we can help

Browne Jacobson has a wealth of mental health and mental capacity law experience, including top ranked individuals and members of the team who are part time coroners, a part time first tier tribunal judge and former clinicians. We regularly advise a wide range of mental health providers and commissioners in both the public and private sector and would be pleased to hear from you regarding your views on the impact of this review on your organisation.

The review will be one of the topics to be covered in our forthcoming webinar scheduled to take place on 21 February 2019. We also regularly hold Mental Capacity/DoLS and Mental Health forums. For more information, please also visit our Mental health, mental capacity and deprivation of liberty hub.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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