Reforming the Mental Health Act White Paper (13.01.21.)

 

The long awaited response to the Wessely Mental Health Act Review published in December 2018 was released on 13th January 2021. There's much to like in it. In fact, it appears that a lot of the recommendations in the Review of the MHA 1983 have been addressed and incorporated into the White Paper.

I'll examine some of the main points.

Guiding Principles

The Government has accepted one of the primary recommendations, which was to replace the five guiding principles in the 2015 Code of Practice (Least restrictive option and maximising independence, Empowerment and involvement, Respect and dignity, Purpose and effectiveness, and Efficiency and equity) with four new guiding principles. These are:

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

It aims to achieve this through the creation of Advance Choice Documents, greater involvement and clarity with Care and Treatment Plans, and making it easier to challenge treatment decisions.

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

Least restriction has always been at the heart of the AMHP decision making process, and the revised Act would strengthen and clarify the criteria required into or to detain and treat people in hospital. The Act would also be aiming to ensure that people are detained for the shortest time possible by making discharge planning a key part of the inpatient process.

Therapeutic benefit – ensuring patients are supported to get better, so they can be discharged as quickly as possible

Therapeutic benefit must be a requirement of detention, so that only people who are likely to benefit from inpatient treatment will be detained, and hence would be discharged from the powers of detention as soon as possible.

The person as an individual – ensuring patients are viewed and treated as individuals

This explicitly focuses on improving access, experience and outcomes for people from black, Asian and minority ethnic backgrounds.

Furthermore, rather than being confined to the Code of Practice, and therefore being guidance rather than law as currently, these principles will be incorporated into the Act itself.

Changes to section 2 and section 3

The White Paper is keen to address the increasing extent to which detention under the MHA is being used, and therefore intends to tighten the grounds for detention under section.

As it points out, section 3 currently states that:

detention should be “necessary for the health or safety of the patient” and that “appropriate medical treatment is available”, neither of which expressly provides for a requirement that the patient should benefit from the treatment allowed for by the detention.

The proposal is therefore to change the requirements of section 3 so that:

In order to for someone to be detained it must be demonstrated that

• The purpose of care and treatment is to bring about a therapeutic benefit

• Care and treatment cannot be delivered to the individual without their detention

• Appropriate care and treatment is available.

This seems to be particularly aimed at addressing the problems experienced by people with learning disability and autism. It states that:

This should prevent the ‘warehousing’ of patients, where they are detained within inpatient settings without treatment which provides therapeutic benefit, something that the Review identified as more likely to happen for people with a learning disability and autistic people.

Both sections 2 & 3 will be amended so that it must be demonstrated that: " There is a substantial likelihood of significant harm to the health, safety or welfare of the person, or the safety of any other person."

These criteria will also be applied to consideration of use of a Community Treatment Order.

Professionals involved in making these decisions will need to document the specific risk that justifies detention and how detention will deliver therapeutic benefit in anew statutory Care and Treatment Plan.

Increased rights to challenge compulsory detention

It is planned to give detained patients more rights to challenge their detention. This will include the right to appeal detention under section 3 three times in the first year, rather than two, as well as to expand the powers of the Tribunal. The time limit for appealing section two will be increased from 14 days to 21 days.

In future, Independent Mental Health Advocates will have the power to appeal on a patient's behalf.

It's also proposed to abolish Manager's Hearings, which in my experience rarely exercise powers to discharge patients.

Increased rights to choose and refuse treatment

In order to strengthen a patient's right to choose and refuse treatment, there will be the creation of  Advanced Choice Documents.

"These will enable people to set out in advance the care and treatment they would prefer, and any treatments they wish to refuse, in the event they are detained under the Act and lack the relevant capacity to express their views at the time. It will be a legal requirement that ACDs are considered when a patient’s care and treatment plan is developed."

These care and treatment plans will be a legal requirement for all patients.

In connection with the right to refuse treatment the White Paper introduces the concept of "the right to choose to suffer". What this means is that patients with the relevant capacity should be able to make their own judgements on the degree of suffering they are willing to accept, and urgent treatment could no longer be given to a patient with capacity, on the basis of the alleviation of serious suffering.

Replacement of the Nearest Relative

The Nearest Relative has a number of powers and functions under the Act. As was widely recommended, the legal concept of the nearest relative will be replaced by a Nominated Person. This means that a patient can identify their own Nominated Person, rather than the current situation, where a somewhat arcane system is used to identify a person's nearest relative without any significant consultation with the patient.

AMHPs have for many years spent many, many hours discussing and arguing who someone's nearest relative might be, using a combination of a complex hierarchy delineated in the Act and if all else fails consulting the I Ching.

At last, a patient can decide their own Nominated Person, who will have powers to ensure that their detention is lawful and necessary. They can nominate this person in advance, and include this in their Advance Choice Document. If a person has not identified someone prior to detention an AMHP will be able to make a decision about the best person to fulfil this role.

CTOs

The criteria for the use of CTOs will be restricted. They will only be able to be used when there is a substantial likelihood of significant harm to the health, safety or welfare of the person, or the safety of any other person, and where a CTO will provide a therapeutic benefit to the patient. A Nominated Person must be consulted, and  will have a new power to object.

The intention is to reduce the overall use of CTO's and to limit the length of time they can be used.

A&E

Consideration will be given to extending the powers of section 5 MHA to apply to patients in A&E departments. It looks like this will only be extended to section 5(2), meaning only a senior clinician would be able to detain.

People with learning disability and autistic people

There is reinforcement of the Code of Practice's advice on the detention and treatment of people with learning disability and people with autism. It states:

We are committed to reducing the reliance on specialist inpatient services for people with a learning disability and autistic people and to developing community alternatives.

It addresses recent high profile cases where detained in-patients with a learning disability and autistic people were not receiving sufficiently therapeutic or reasonably adjusted care, and concludes that for some people with a learning disability and autistic people, the use of the Act to detain someone for assessment and/or treatment, however justifiable or beneficial initially, can lead to interminable and unjustifiable detention.

The White Paper says:

We propose to revise the Mental Health Act to be clearer that for the purposes of the Act we do not consider autism or a learning disability to be mental disorders warranting compulsory treatment under section 3. The proposed revisions would allow for the detention of people with learning disability and autistic people for assessment, under section 2, of the Mental Health Act, when their behaviour is so distressed that there is a substantial risk of significant harm to self or others (as for all detentions) and a probable mental health cause to that behaviour that warrants assessment in hospital.

It also proposes the potential creation of new duties on Local Authority and Clinical Commissioning Groups to ensure an adequate supply of community services for people with a learning disability and autistic people with the express intention of reducing the use of and need for mental health inpatient services.

People from black, Asian and minority ethnic backgrounds

It's well established people from black, Asian and minority ethnic backgrounds are not served well by the Mental Health Act, or mental health services in general. The latest statistics show that black British people are over four times more likely than white British people to be detained, and are over ten times more likely to be subject to a CTO. Black British people also experience poorer outcomes, as there is evidence that black patients may be subject to much higher levels of restraint than white British people.

While there is little explicitly aimed at reducing this inequality in the proposed changes to the Mental Health Act, the White Paper recognises the need to increase advocacy for this group, to encourage a more racially diverse professional workforce, and to ramp up research and the collection of data to monitor these inequalities.

Use of Police Custody

The White Paper states that " we have committed to update sections 135 and 136 to remove police stations as a designated place of safety by 2023/24." (Although the vast majority of patients detained under section 135 and 136 are in any case now taken to approved places of safety).

There is much talk in the White Paper of the need to improve funding of mental health services in order to make changes to the law and practice meaningful. An example is a plan to improve the experience of ambulance conveyance by providing additional mental health professionals to deliver mental health specific initiatives and extra capacity in ambulance services, such as having mental health staff based in 111/999 control rooms to improve telephone triage and support, as well as a national programme to increase mental health training and education of ambulance staff.

Some argued at the time of the Review (me included) that if mental health services had had adequate funding over the long term, then the crisis in mental health care leading to increased use of the powers of detention under the Mental Health Act would never have occurred in the first place.

I recall when the 1983 Act first came into force, that the introduction of the need for ASW's to consider alternatives to admission might mean investment to provide viable alternatives, but that never really happened.

For any changes to the Act to have any significance, mental health and the organisations such as the police and ambulance service must receive hugely increased funding to address the current crisis in mental health, which is only going to be made worse by the long term effects of the Coronavirus Pandemic.