Ripping Up the Mental Health Act?

The final report of the Independent Mental Health Act Review (“Modernising the Mental Health Act: Increasing choice, reducing compulsion”) has been released.  For an analysis of how the Review engages with the UNCRPD, see the post by my colleague Oliver Lewis. 

The process started on 7 May 2017 when Theresa May announced she was “pledging to rip up the 1983 act”.

On 4 October 2017, the terms of reference announced, and Sir Simon Wessley was asked to chair the review.  In May 2018 the interim report published.  Over the intervening period the Review has received papers from “topic groups” which included a wide range of stakeholders.

The report repays careful reading.  The tone is thoughtful.  There is welcome frankness in for example the recognition of the role of the combination of “unconscious bias, structural and institutional racism” which contributes to the over-representation those from a BAME heritage in the use of compulsory powers.  There is a recognition of the role of the culture of risk-aversion, especially leading up to the amendments in the 2007 Act.   The report contains stark descriptions of conditions by some of some inpatient settings where “the way they are treated by staff, the levels of threat and violence, the physical environment and the sound levels make hospital sound little different to prisons”.  

The key recommendations include:

•New principles on the face of the Act- a new MHA would join the Mental Capacity Act and the Care Act in having its guiding principles on the face of the act (instead of, as at present. In the Code).  Those would be: Choice and Autonomy; Least Restriction; Therapeutic Benefit and The Person as an individual.  

•The introduction of Advance Choices Documents (ACDs), in which a patient can set out his or her choices and preferences about treatment.  

•A “nominated person” to replace the Nearest Relative, but with similar powers, with a fall-back “interim nominated person” appointed by an AMHP on applying for admission if the patient lacks capacity to nominate.  The nominated person would also be consulted on care plans where the patient has agreed.  This would apply to Part 3 patients as well as those detained under civil sections.

•The Review considered recommending the opportunity to give advance consent to admission to hospital (taken from the provisions recommended by the Law Commission as a reform to the Mental Capacity Act, but subsequently not included in the Bill currently before Parliament) but was not able to secure consensus on this.

•Advocacy to be “opt out” rather than “opt in” and to include patients awaiting transfer from prison and immigration detention.

•Families of those who die in detention to have non-means tested legal aid.  The guidance to Coroners should make it clear that a death under DOLS/LPS in a psychiatric hospital should be considered a death in state detention for the purpose of section 1 Coroners and Justice Act 2009 (the report suggests that this should not require amendment to Section 48(2A) Coroners and Justice Act 2009 which provides: ‘But a person is not in state detention at any time when he or she is deprived of liberty under section 4A(3) or (5) or 4B of the Mental Capacity Act 2005’).

•There should be more accessible and responsive mental health crisis services and community-based services and there needs to be a “concerted cross-organisation drive to tackle the culture of risk aversion”.

•Changes to the detention criteria (and the criteria for CTOs) should be strengthened in two respects:

oTreatment must be available which would benefit the patient, and which cannot be delivered without detention, and

oThere must be a “substantial likelihood of significant harm” to the health safety or welfare of the patient or the safety of others.

•A new statutory “care and treatment plan” to be available and signed off by the responsible clinician within seven days of detention under sections 2 and 3, and which can be reviews (although not altered) by the Tribunal.

•Section 2 to be used only if there has been a change in circumstances when a patient has been detained under section 3 in the last 12 months.

•For patients under section 2, there should be a requirement for a second clinical assessment after 14 days and the patient should be able to apply to the Tribunal beyond the first 14 days

•The initial duration of section 3 to be reduced to 3 months, with a renewal for three months, and thereafter for 6 months. 

•Rationalising the position in relation to 16 – 17 year olds so that:

o They cannot be admitted on the basis of parental consent and

oThe only test for capacity is the Mental Capacity Act 2005 (rather than “Gillick” competence).

•Changes to the power of Tribunals who should be able to:

oDirect rather than recommend leave or transfer

oDirect care and treatment in the community if it is clear that without this the patient will have to remain in hospital 

oRefer cases of suspected breaches of patients’ human rights to the CQC (arguably this is not a new power).

oHear challenges to treatment decisions after a SOAD approvaloOrder changes to the conditions to a CTO.

•Building on the requirements in the Code of Practice, the report recommends that Tribunal members receive training in particular conditions and are “ticketed” to hear cases concerning these conditions.

•The interim report had anticipated recommending substantial changes to CTOS.  The review noted recent research about the impact of compulsory community treatment (CCT) which found “that CCT does not have a clear positive effect on readmission and use of inpatient beds. Evidence suggested a potentially positive effect on treatment adherence, although this result should be interpreted with caution because of the small number of studies included in the analysis. Although CCT might result in increased community service availability, in the absence of clear, consistent evidence on clinical benefits, and the removal of patient liberty involved, this effect is probably insufficient to justify use of CCT. Our review suggests a need to critically examine the future justification for CCT.”—The Lancet, 31 October 2018.  The report considers its recommendations should halve the use of CTOs and make sure that they are only used when they are the least restrictive option.  It should be “hard to restrict a person’s liberty with a CTO” – as the report notes, the question of whether conditions attached to a CTO as currently drafted can lawfully deprive a person of his or her liberty now is being considered by the Supreme Court in the appeal in PJ v Welsh Ministers.  The review recommends othat the criteria for use of CTOs are revised in line with the suggested changes to detention criteria;othat there must be some evidence of non-compliance (some will remember that this was proposed but rejected at the time of the 2007 Act) and oLast for no longer than 24 months.

•The report did not recommend, as it suggested it might, that the entitlement to section 117 aftercare should be extended to those detained under section 2.  Instead, people “in contact” with CMHTs, inpatient care and/or social services should have a “statutory care plan”. 

  •Police cells should be removed altogether as a place of safety.

•There should be a new “Organisational Competence Framework” in the field of mental health which would support organisations to  fulfil their existing obligations under the Equality Act.

The ambitious aim is to “shift the dial” in favour of the patient rather than the professionals.  It will remain to be seen which recommendations will be accepted and the timescale in which any of them will be taken forward.