The Mental Health Act Review

Professor Sir Simon Wessely, Chair of the MHA Review

The Mental Health Act Review, chaired by Professor Sir Simon Wessely, was finally published on 6^th December 2018.

I naturally have a particular interest in the Mental Health Act 1983, because I have been working within the Act as an ASW and AMHP since 1983, as it happens.

It is immediately apparent that the Review is not proposing a new Mental Health Act; instead, it is proposing significant changes to the existing Act, as well as to Mental Capacity legislation, just as the MHA 2007 did. So, if the changes are enacted, we will still be referring to the MHA 1983 (as amended).

I don’t intend to criticise the Review per se, as it says a lot of good things, and is clearly and explicitly placing human rights at the forefront of decision making within the Act. It flags up a number of factors that are adversely affecting the effectiveness of the MHA.

But I have some misgivings, which I will go into in more detail later.

There isn't the space here to critique all the recommendations in the Review, as there are 154 in total, but I will concentrate on the proposed changes which are likely to have the most impact on AMHP practice.

[Aside: Approved Mental Health Professionals (AMHPs) are used to their official title being misunderstood. They are often referred to as Approved Mental Health Practitioners, and the abbreviation is often given as AMPH. I am afraid that even the MHA Review has got the title wrong in one place. In one of the headings we are referred to as Approved Mental Health Act Professionals. Sigh.]

The Four Principles

The Review begins by recommending that four principles should underlie all aspects of practice within the MHA, and that these should be inserted into the Act right at the beginning.

The existing Code of Practice already has guiding principles, which should be considered when acting with the Act. These are:

Least restrictive option and maximising independence

Empowerment and involvement

Respect and dignity

Purpose and effectiveness

Efficiency and equity

The Review, however, is proposing replacing these with 4 new statutory principles:

Choice and autonomy – ensuring service users’ views and choices are respected

Least restriction – ensuring the Act’s powers are used in the least restrictive way

Therapeutic Benefit – ensuring patients are supported to get better, so they can be discharged from the Act

The Person as an Individual – ensuring patients are viewed and treated as rounded individuals

Rather than as at present, where the principles are in the Code, and therefore do not have the same statutory force, the Review is recommending that they should be embedded into the Act, even suggesting the wording for the beginning of the Act, for example, replacing the current Section 1 with a new one:

1. The purpose of this Act is to confer and authorise the powers (including coercive powers) necessary for the treatment of mental disorder and to safeguard the dignity and rights of those who are made subject to the exercise of such powers and for related purposes.

A new Section 2 would then include a statement of these 4 principles, and how they should be followed.

From these principles there flows a range of new or radically refocused proposals. These include addressing the disproportionate use of the MHA with black and ethnic minority patients.

Here are some of the proposed changes to the legislation.

Abolition of the Nearest Relative

As expected, the Review is proposing the abolition of the “Nearest Relative”, replacing it with a Nominated Person, similar to the Scottish Mental Health legislation.

Our recommendations will allow the patient to choose their own Nominated Person (NP) either prior to detention, at the point of assessment for detention or whilst detained through a new nomination process.

Where a patient has not appointed a NP prior to detention, an AMHP would be able to appoint an Interim Nominated Person (INP), which would involve identifying a friend or relative who was most suitable to fulfill the role. This may involve the use of the existing hierarchy for identifying the Nearest Relative, but as soon as the patient has the capacity to do so, they would be able to choose their own NP.

The powers and rights of the NP would also be extended, to include the right to be consulted over renewal of detention, extension of a CTO and transfer from one hospital to another. They would also have the right to be consulted on care plans.

The concept of the Nearest Relative, and the importance in law for AMHPs to identify the correct Nearest Relative, is an issue that produces endless head scratching and discussions within AMHP circles. In our local AMHP hub, a day will rarely go by without a debate on how to identify a particular patient’s Nearest Relative. I have written about this in my blog, and have taught the intricacies of this at length on AMHP training courses. So anything that simplifies this process will by much welcomed.

Informal admission (S.131)

S.131 of the MHA has always been clear that informal admission should be the default for the care and treatment of inpatients. But this is frequently not the case. I have even come across gatekeepers of beds, both in the NHS and in private hospitals, informing me that they will only accept detained patients.

The Review recommends a higher stress on the primacy of informal admission over compulsory detention, to the extent of recommending that “section 131 of the MHA is moved so that it sits above sections 2 and 3 of the Act."

Changes to criteria for detention

The Review proposes that there should be new criteria for significant harm, with the intention of raising the bar for detention:

We believe the Act needs to be more explicit about how serious the harm has to be to justify detention and/or treatment, or how likely it is that the harm will occur. We are recommending that there must be a substantial likelihood of significant harm to the health, safety or welfare of the person, or the safety of any other person.

The Review observes:

The AMHP must clearly state on the application form what specific harm they have identified, and how detention will reduce this, including why alternatives are not available or suitable.

This is at least partly in response to the Review’s concerns about risk aversion among mental health professionals. In trying to identify the factors that have led to a marked rise in the use of detention under the MHA in recent years, the Review cites the culture of risk aversion, arising from fear of the consequences to the patient and others of errors in judgment. Wessely makes the point that, while risk used to focus on risk to the patient, there has been a shift to trying to protect the agency or professional from risk.

I would make the anecdotal observation that some mental health trusts are not encouraging clinical staff to take risks, through reluctance to pay staff at a high enough rate. Some Trusts have reduced the numbers of Band 7 nurses as a cost saving exercise; a consequence has been that less well paid and less experienced staff will be more likely to request an assessment under the MHA for a patient who is not wholly cooperating with their treatment plan, often relying on historic or purely hypothetical risk factors to justify this.

Length of detention and other time scales

The Review is keen to reduce the length of time that a patient can be detained in hospital wherever possible.

S.2 should be reviewed after 14 days, and a decision should then be made to either discharge or detain under S.3: “section 2 should only be used where it is truly necessary to assess someone."

The Review explains:

Where the AMHP is aware that a person has been subject to detention under section 3 within the last twelve months, an application for detention under section 2 can only be made where there has been a material change in the person’s circumstances since they were previously detained under a section 3. We are also recommending that the Code of Practice makes it clear that section 3, rather than section 2 should be used when a person has already been subject to section 2 within the last twelve months.

The Review is also recommending a reduction in the initial maximum detention period under S.3 to 3 months from the present 6 months. There would be a further extension period of 3 months, and only after that could a person be detained for 6 months.

I actually suggested this in my blog over 2 years ago. In the MHA 1959, the time scale for S.26, the predecessor of S.3, was 1 year, then 1 year, then 2 years. The MHA 1983 cut this in half. In view of changes to average detention times since 1983, it seems eminently reasonable to cut this in half yet again.

The Review is also suggesting that there should be a statutory time limit for finding a bed once a decision has been made to detain under the MHA. This is addressing the current dire problems in finding beds in an emergency. I have known it to take up to 4 weeks to find a bed for a patient. This problem also leads to a reluctance to go out and assess someone without there being a bed identified first.

The Review also proposes that there should be a minimum waiting time standard for the commencement of a MHA assessment.

Treatment

The Review recommends that the current criteria for treatment should be tightened up so that “not only must appropriate treatment be available that cannot be delivered unless the person is detained, but also that the treatment would benefit the patient.”

It is also recommending greater protection for people objecting to treatments such as ECT.

Community Treatment Orders

The Review had severe misgivings about CTO’s, especially in view of the dubious research evidence for their efficacy. The Review stated that “CTOs are in the “Last Chance Saloon”.

While not actually recommending that CTO’s should be abolished, there was a desire to seriously reduce their use.

One of the proposals is that two Approved Clinicians and an AMHP should makes decisions about placing a patient on a CTO. Additionally, an AMHP should interview the patient and consult with the NR/NP and CMHT. A CTO should end after 24 months unless there are exceptional circumstances.

Statutory Care and Treatment Plans

Following admission, a Statutory Care and Treatment Plan (CTP) should be in place within 7 days of admission, and should be reviewed within 14 days. This would also identify whether a patient detained under S.2 should be continued to be detained, or discharged from detention, facilitating an early challenge to compulsory treatment.

Advance Choices Documents

These are similar to Advance Directives under the Mental Capacity Act, in which a patient can express their views about future care and treatment. The Review states:

Where a person is recorded as having capacity at that time the choice is made, the presumption will be that it will be honoured unless there are compelling reasons why not. So in future a request for a treatment that might be less than optimal, but still possible, should be honoured.

In order to strengthen the authority of the ACD, the Review states:

Where a patient has capacity for advance decisions, ACDs should be authenticated where possible by a health professional, unless the patient objects to this. In other words, we think that a health professional should confirm that the patient has capacity to make the choices contained in the document. We make this recommendation to remove the potential for doubt later as to whether the person had capacity to make the choices contained in the documents.

This should make it less likely that a case such as Kerrie Wooltorton, who was allowed to die from ingestion of antifreeze because she had written a “living will” refusing treatment, could recur. Further information about this notorious case can be found on my blog.

Advocacy

The right to an Independent Mental Health Advocate (IMHA) would be extended to informal patients. Additionally:

We think that IMHAs should be able to challenge treatment decisions, and make applications for discharge, on behalf of the patient where the patient lacks capacity to do so.

Children and young people

One of the proposals relating to children and young people is that young people between the ages of 16 and 17 should not be admitted to hospital or treated purely on the basis of parental consent.

While I welcome this stance, I think that this occurrence is in any case fairly rare for this age group. My own view is that any child over the age of 13 is better served by using the MHA if appropriate, rather than relying on children’s legislation and parental rights.

Learning disabilities and autism

In view of the fact that the current Code of Practice tends to take a dim view of the use of hospital admission for people with learning disabilities and autism, and it was also intended that the MHA should only ever rarely be used for this group, I did wonder whether the Review would remove them entirely from the scope of the Act.

What the Review does do is affirm the general inappropriateness of the MHA for these people:

We are recommending changes to the detention criteria to establish a culture which is less risk adverse because it too easy for the behaviour of a person with a learning disability, autism or both to meet the current threshold of risk. When detention is being considered, professionals will need to focus on more than just a person’s presenting behaviour that is perceived to be challenging. There will need to be a ‘substantial risk’ of ‘significant harm’.

The Police and the MHA

The Review recommends that police cells should never be used as a place of safety, suggesting a cut off point of 2023/24. In fact, this is only an affirmation of the current policy of only using designated health based places of safety for detention under S.136.

A welcome suggestion is that S.136 should be amended so that a police officer can make the decision to end a detention, rather than an AMHP and a doctor. This would arise where it was clear that a full assessment under the MHA was not justified.

Section 140

S.140 states that those responsible for providing hospital beds should fulfill this duty.

The Review suggests:

The operation of this responsibility needs to be discharged more consistently and more effectively, in particular to address the fact that people who are arrested under the criminal law are staying in police cells for too long, often unlawfully, after it has been established that they need to be admitted to hospital following a Mental Health Act assessment.

Ambulance services

The Review has some interesting things to say about the provision of ambulances for the conveyance of mental health patients. The bane of AMHPs’ lives (or at least one of them) is delays in ambulances attending to convey a detained patient.The Review sates:

Ambulance services should establish formal standards for responses to section 136 conveyances and all other mental health crisis calls and ambulance commissioners and ambulance trusts should improve the ambulance fleet, including commissioning bespoke mental health vehicles.

Conclusions

I have only concentrated on some of the highlights of the Review, which is after all, over 300 pages long.

Were all the recommendations to be taken on board by Parliament, I do think we would have a much more robust and rights based legislation for people with mental health problems.

But I see a lot of problems.

Some of the recommendations fall short of changes to legislation, recommending instead government policy changes, or changes to the wording of the Code of Practice. Sometimes it is difficult to detect the difference between suggesting what might be better, and proposing actual changes to the Act.

Many, if not most, of the necessary changes would require a huge additional investment in mental health services, which may not be forthcoming (in fact, until now, the reverse has been the case). Had adequate funding remained in place since 2007, there may not even have been a need to review the MHA.

It was first proposed that the MHA 1983 should be reformed as long ago as the late 1990’s. Several draft Mental Health Bills were published before the MHA 2007 (amending the 1983 Act) eventually came into law nearly 10 years later. Even if Parliament had the will, I would not expect to see any of these changes happening within the next 2-3 years.

The recent review of the Mental Capacity Act has led to a new Mental Capacity Bill which was markedly different from the Law Commission’s detailed proposals.

A Government press release in response to publication of the MHA Review, while stating that it is committed to reforming the MHA, appears to go on to say that is only accepting 2 of the recommendations, these apparently being:

Those detained under the Act will be allowed to nominate a person of their choice to be involved in decisions about their care. 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.

So I’ll not be holding my breath.