Section 2 or Section 3?

These are the sections of the Mental Health Act that are the most commonly used when compulsory detention in hospital is being considered.

S.2 Mental Health Act lasts for 28 days, and its main purpose is to assess a patient in hospital (although it does also permit treatment). S.3 MHA lasts for a maximum of 6 months, and is for the purpose of treatment.

Statistics show a general increase in the use of compulsory detention between 2016-17 and 2017-18. Detentions under both S.2 and S.3 have increased.

In the year 2016-17 there was a total of 34,137 admissions under S.2, while in the years 2017-18 there were 37,408. While this shows an increase of 9% over the previous year, it does not approach the peak in the year 2015-16, when detentions under S.2 amounted to 40,063.

In the year 2016-17 there were 21,361 detentions under S.3, while in the years 2017-18 there were 23,073. This shows an increase of 7.5% over the previous year, but still it does not approach the peak in the year 2015-16, when detentions under S.3 amounted to 28,147.

Digging deeper into these statistics, 11,296 of the S.3 detentions followed previous detention under S.2 This indicates that 30% of people detained under S.2 were subsequently detained under S.3 for a longer period of inpatient treatment.

The Code of Practice states that S.2:

should only be used if the full extent of the nature and degree of a patient’s condition is unclear, or there is a need to carry out an initial in-patient assessment in order to formulate a treatment plan, or to reach a judgement about whether the patient will accept treatment on a voluntary basis following admission, or there is a need to carry out a new in-patient assessment in order to re-formulate a treatment plan, or to reach a judgement about whether the patient will accept treatment on a voluntary basis. (14.27)

The Code goes on to say that Section 3 should be used:

if the patient is already detained under section 2, or the nature and current degree of the patient’s mental disorder, the essential elements of the treatment plan to be followed and the likelihood of the patient accepting treatment as an informal patient are already sufficiently established to make it unnecessary to undertake a new assessment under S.2. (14.28)

Despite this guidance, making a choice between S.2 or S.3 is a frequent source of discussion among AMHPs. There are a number of reasons for this.

Some are strictly to do with professional clinical decisions and the imperative to explore least restrictive options. It may be felt, for example, that the shorter detention period of a S.2 is felt to be less restrictive than the 6 months of a S.3.

Some may be more to do with expediency, or more, shall we say, complex issues.

What factors might influence use of S.2 or S.3?

Here are a couple of scenarios. They are fictitious, but describe situations that will be familiar to AMHPs.

Jason

It is 22:00 hrs on Friday evening: an out of hours AMHP is asked to assess a patient detained under S.136.Jason is in York, where he was detained by police attempting to climb onto the altar of York Minister claiming to be the Second Coming of Christ.

The Police have established that he normally lives in Cornwall, where he is well known to psychiatric services, has a diagnosis of paranoid schizophrenia, is subject to S.117 aftercare, and recently went missing from the mental health hostel in which he was living.

On assessment, it is clear that Jason is thought disordered, but is unable or unwilling to reveal any information about his medication or mental health care. It is clear that he needs to be in hospital. Unfortunately, the AMHP is unable to contact mental health services in Jason’s area to obtain more information.

Should Jason be detained under S.2 or S.3?

Applying the principles for decision making in the Code of Practice, the AMHP is aware that Jason is well known to his local mental health services, and has in the past been detained under S.3.

But at the same time, the AMHP is unable to confirm this and discuss the situation with Jason’s care team. Because he is so far from home, neither the AMHP nor the doctors assessing him have had any previous acquaintance with the patient.

The AMHP might in these circumstances consider that S.2 is preferable even though Jason’s diagnosis and presumably treatment is well known. It is just that these things are not well known to the assessing team.

Jonathon

Jonathan is a well known patient with a diagnosis of bipolar affective disorder. He has recently stopped taking his mood stabilising medication and his care coordinator reports that he is becoming increasingly manic, spending profligately, not sleeping, is harassing his neighbours, and becoming sexually disinhibited. These are all warning signs of relapse.

An AMHP and two S.12 doctors assess Jonathan at home and conclude that he needs to be detained in hospital for treatment.

The doctors have a dilemma. No hospital bed has been identified prior to the assessment, and the bed managers can give no indication as to how long it would be to identify a hospital.

What should the doctors do?

The difficulty here is that, unlike medical recommendations for S.2, the doctors have to state on a S.3 recommendation the name or names of hospitals where appropriate treatment would be available.

In the real world, where there is a national shortage of psychiatric beds, especially for children and people with learning disabilities, doctors will often make recommendations for S.2 and then leave them with the AMHP. These can then be used at any time within 14 days from the date of the recommendations. The doctors do not have to be involved in another assessment.

But the doctors in Jonathon’s case would not be able to complete their medical recommendations, because they could not name the hospital in which the patient could receive treatment. So they can’t just sign the document and go on their way.

Might they be tempted to find some pretext that might justify detention under S.2 for assessment, rather than S.3 for treatment?

And would that be ethical?

The Nearest Relative

The rights and powers of the Nearest Relative of a patient are important factors that AMHPs have to take into account when considering detention under the MHA.

For a S.2, the NR should at the least be informed that detention has taken place, and should be made aware of their rights to order the discharge of the patient from hospital.

However, for a S.3, it is a legal requirement for the NR to be consulted if at all possible, because if they object, detention under S.3 cannot take place. The only option then for an AMHP is to go to the Courts to have the NR displaced. This can be a time consuming process, and it can take weeks for the courts to make a final decision.

This is where some interesting decisions might be taken to avoid consulting the NR, especially if it is known that they are likely to object to detention under S.3.

There is a body of Case Law relating to the NR and failure to consult them. Sometimes, AMHPs (and ASWs in the past) have got into considerable trouble.

One example is GD v The Managers of the Dennis Scott Unit at Edgware Community Hospital and The London Borough of Barnet, Queen’s Bench Division (Administrative Court), 27th June 2008.

In this case, there were real fears that the patient’s father might hide the patient if it was known that an assessment under the MHA was going to take place. The ASW did not contact the NR before the assessment, and only let him know by leaving a message when the assessment was actually taking place. When the NR returned the call 20 minutes later, the paperwork had already been completed. He then indicated in no unclear terms his feelings about this and his objection.

But the ASW had by then filled in the section of the form indicating that it had been “impracticable” to consult with the NR.

The Judge in the case found that the patient had been illegally detained because the ASW had deliberately failed to make adequate attempts to consult with the NR as he knew that the NR would object.

So an AMHP may be confronted with a dilemma. The AMHP might be clear that a certain patient in the community, who is well known to services with a clear diagnosis, and where it is known what treatment the patient requires, needs to be detained for treatment under S.3.

But the AMHP is also aware that the NR may object, making it impossible to ensure their admission and treatment, at least without having to go to a Judge to have the NR displaced.

So does the AMHP bite the bullet, make efforts to consult, then go through the necessary legal processes if the NR objects?

Even if this might put the patient in danger?

Or does this hypothetical AMHP consider that just maybe they can find some justification for detention under S.2, for assessment, hence avoiding the need to obtain the NR’s consent, and at the same time ensuring the patient’s safety?

The Mental Health Act Review

The recently published review of the Mental Health Act makes many recommendations for changes to existing law. Some of these relate to the use of S.2 and S.3.

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

For a start, the Review is keen to reduce the use of compulsory detention at all. It is suggesting that the bar for justification of detention should be raised, and even where a patient is detained under S.2, the detention 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."

It goes on to say:

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.

At the same time 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 am inclined to the view that, even though the Review’s recommendations have a long way to go before a change in the law might take place, an AMHP should still heed the Review’s opinions, especially as the recommendations are backed up by people’s rights under the Human Rights Act.

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.

Mental Health Act Review – Interim Report

The Government arranged for a review of the current Mental Health Act back in October 2017.

The review’s terms of reference were “to make recommendations for improvement in relation to rising detention rates, racial disparities in detention, and concerns that the act is out of step with a modern mental health system.”

Having taken submissions and recommendations for changes from service users, professionals and professional bodies, this interim report was published at the beginning of May 2018.

This is still an ongoing review, which will make concrete recommendations later in the year. However, judging from the tone of this report, I am very encouraged that the eventual recommendations will reflect changes in the approach to human rights, and will make sensible and achievable changes.

The report states from the beginning that “the aspiration is to increase informal admissions and/or alternatives to admission, rather than compulsory admissions, in keeping with the original intentions of modern mental health legislation, first laid out in the 1959 MHA.”

It is worth remembering that much of the current Act, despite the extensive amendments from the 2007 MHA, the Health & Social Care Act 2012, the Care Act 2014, most recently the Policing and Crime Act 2017, still contains a lot of the original MHA from 1959.

It is also worth remembering that the MHA 1959 replaced the Lunacy Act 1890. It is incredible now to think that a Victorian law governed the management of people with mental health problems well into the middle of the 20th Century.

One of the largest conceptual changes was to introduce the concept of a social perspective informing assessments for compulsory detention in hospital. Rather than doctors having virtual free rein to incarcerate mentally ill and learning disabled patients in asylums, often for many years, the 1959 Act only allowed doctors to make recommendations. The final decision was to be made by a “mental welfare officer”, a non medical role that eventually evolved into the “approved social worker” role created by the 1983 Act. This role morphed again into that of the “approved mental health professional”.

Having had all three of those titles, I can speak from personal experience of the impact that that change in approach had on decisions about whether or not to admit people to psychiatric hospital. While MWO’s had minimal training, the ASW role in the early years required a compulsory training course and the necessity to pass an examination in order to practice. Today, the AMHP not only has to undergo months of training, but also has to prove their ongoing competence to practice.

The interim report makes some cogent observations, one being that “we have seen unprecedented investment in talking therapies for those with common mental health problems, and an upsurge of general interest in mental health”. It goes on to say:

“Most of this new interest is at one end of the spectrum, with far less attention given to those at the other end of the spectrum, those with the most severe forms of mental illness. Yet those with the most severe forms of mental illness have the greatest needs, and continue to be the most neglected and discriminated against. Furthermore, they are also the group who are the most likely to be subject to the influence and powers of the MHA.”

The report is clear that “we remain committed to the goal we set out when we began – namely to make the MHA work better for everyone. We know that much of what is required to achieve these goals, of a mental health service that provides dignified and therapeutic care for those with the most severe of mental illnesses, is not going to be achieved by legislative means alone. We know that issues such as resources and staffing are fundamental to these objectives.”

The report lays out 10 explicit aims to improve mental health care.

Service users and carers being treated with dignity and respect

Greater autonomy for people subject to mental health legislation

Greater access to services for those that need them

Making the least restrictive option appropriate to a person’s circumstances the default option

Improved service user and carer wellbeing

Service users and carers supported to be fully involved in treatment as possible

Reduced disparities between groups with protected characteristics

Greater focus on rights-based approaches

Reduced harm and improved safety for all

Professionals better able to deliver their expertise 

I cannot find anything there with which to take issue.

From an AMHP perspective, I am also heartened with the comment that “Many service users had a positive or largely positive view that [detention under the MHA] was the right course of action, with some service users, on reflection, commenting that being detained saved their life and prevented suicide. However this view was not universal and an almost equal number did not believe detention had been the right approach for them.”

The Review identifies a total of 18 key topics requiring particular attention. These are divided into four areas: before detention, during detention, leaving hospital, and issues for specific groups. I will not analyse all of these, as this post would risk being a long as the Interim Report itself.

Rising numbers of detentions

The Review sees it as a priority to address the rising numbers of detentions under the MHA, noting that this has grown steadily for each of the last 10 years. (Is it coincidental that this period largely covers the time since the Coalition, and then the Conservative Government, have been in power? I can only speculate.)

It goes on to say that:

“We have been told people are not receiving the care they need in the community, and which might have prevented them from reaching crisis. We have also been told that a reduction in acute bed numbers has made the use of the MHA more important to get someone a bed when needed.”

It is encouraging that the Review is listening to the legitimate concerns of those with both a professional and personal interest in mental health legislation.

The Review also makes observations relating to changes in the perception and handling of risk:

“The decision to detain, either at the stage of initial admission or at the point of renewal, is primarily based on risk. A theme identified by many stakeholders has been the emphasis on risk and the differing risk thresholds that are applied when making decisions about using the MHA or continuing to detain a service user when a renewal is due.”

One interesting suggestion is that sections 2 & 3 should be combined into a single section of shorter duration. I certainly posited some time ago on this blog that there was no rational reason for a S.3 to last for 6 months.

The Police Role

The Report notes that:

“The police recognise that helping people with mental health issues is a part of their core business. The police are key partners in the community-based model of mental health care. This is particularly true in cases of immediate responses to people in mental health crisis.”

It continues by recognising that the police should not be placed in a position of having to make up for gaps in NHS provision, and also that it should be a matter of principle that those under arrest who have been assessed as requiring detention in hospital “should be treated within the NHS rather than a police cell.”

The Nearest Relative Role

I am pleased to see that attention has been given to changing the NR role. This is directly in accordance with the recommendations of the three main professional bodies representing those involved in administering MHA legislation: The Royal College of Psychiatrists, the Law Society, and the British Association of Social Workers, all of whom have submitted that the current NR role does not reflect current needs.

“At present, this provision and the statutory order of preference of the nearest relative can result in inappropriate people automatically being selected to be the nearest relative. AMHPs have highlighted the complexity of identifying the correct nearest relative. “

The favourite model appears to be a system whereby a patient can appoint their own person to take on the role, in a way similar to the Scottish MH legislation. In principle, I would welcome this, although I can also see that the legislative framework to ensure this best meets the needs of the patient could be fraught with problems.

A similar situation to that under the Mental Capacity Act, where someone can in advance appoint a lasting power of attorney to manage their affairs were they to lose capacity might work, but how many people would foresee this need, and appoint an NR in advance?

Community Treatment Orders

These were introduced by the changes in 2007, and have been somewhat controversial. The Report says:

“About 5,000 people are currently on a CTO at any time, considerably more than the number estimated by the government prior to their introduction. The latest MHA statistics show that ‘Black or Black British’ people are nine times more likely to be given a CTO than white people.”

The submissions by BASW and the Law Society expressed clear misgivings about this legislation, the Law Society asking “are they in practice a crude mechanism for the chronic bed management issues in hospitals?” BASW suggested that they should either be abolished, or “the criteria for their use strengthened so that they only apply to individuals with clear and evident history of rapid and repeated relapses,” although the RCPsych preferred CTOs to be retained, although with some modifications.

The Report was clear that:

“We are not persuaded that CTOs should remain in their current form. In reforming or replacing them, we will start by ensuring that there is clarity of purpose, and also that future provisions do not reproduce the current overrepresentation of some BAME groups, particularly men of black African and Caribbean descent.”

Issues for particular groups

The Report has clearly identified issues and problems associated with specific groups, not least those from black and minority ethnic communities, who are disproportionately represented in statistics relating to detention under S.2, S.3, and S.136, as well as CTOs.

It correctly identifies problems with hospital beds for children and young people, who are often placed in hospitals far from home. It also flags up the anomalies associated with the interface between different legislation, including the MHA, the Mental Capacity Act and children’s legislation.

The Report identifies “wider questions about whether or not learning disabilities and autism are conditions that are treatable under the MHA definition of treatability”, the authors observing that “we have been struck by the significant level of disagreement about the inclusion of learning disability and autism in the MHA and the subsequent role of the interaction with the MHA to provide the most appropriate care for their needs.”

BASW has gone so far as to suggest that “it is inhumane for learning disabled people to be detained in hospitals because their behaviour cannot be managed in the community”, also stating that “formal detention of learning disabled people in hospital where there is evidence of ‘seriously irresponsible or abnormally aggressive’ behaviour is inappropriate”, and because “psychiatric hospitals can exacerbate the distress of these service users, their needs should be met in the community”.

It appears clear that those in charge of this Review are committed to ensuring as far as possible that the needs of people subject to the MHA are met, and that their consideration of their human rights should be paramount. I am very encouraged by this.

The final recommendations of the Review will likely be far from the end of the process of revision, however.

In the late 1990’s a review of the MHA 1983 was mooted, and several draft Bills were published, which culminated not in a completely new Act, but merely extensive revisions to the existing Act in 2007. On the way, some of the more contentious proposals were jettisoned, such as the concept of a power to detain indefinitely someone deemed to have a dangerous and untreatable personality disorder, even if they had not actually committed any offence.

And of course, the present Government has other legislative priorities, which may indefinitely postpone a new Mental Health Act, especially if it is likely to cost more money.