People with learning disabilities, autism or mental health conditions should have a right to a named social worker to help protect their rights and ensure they receive the least restrictive care possible, under government proposals.
A consultation paper, designed to tackle high rates of institutional care for these groups, says that social workers are not as engaged in care planning or reviews of inpatient admissions as they could be. It proposes giving people the right to a named professional, with a social worker the default option, who would take primary responsibility for ensuring community treatment options had been fully considered and give the person and their family a personalised summary of their rights.
The need for change
The proposal is one of a series of reforms, including potential changes to the Mental Health Act 1983 and and its statutory code of practice, tabled by care minister Norman Lamb today. Lamb said the changes would transfer power from services to people and promote community support as an alternative to hospital so it was harder to admit people to institutions by default.
“We have to end the horror of families feeling that they aren’t listened to, that their concerns are ignored. Just because an individual is sectioned under the Mental Health Act shouldn’t mean that the family is excluded,” he said.
The consultation will close on 29 May, three weeks after the 7 May general election. That means any decision whether or not to develop the proposals further will be down to the next government.
While the timing of the paper is unusual, Lamb said action was needed as existing legislation and policy had not delivered the ‘scale and pace of change’ required and too many families had been let down by the system.
As of 31 December, 2014, there were 2,453 people with learning disabilities or autism and additional mental health needs in inpatient settings despite the government’s 2012 commitment to end inappropriate such placements by June 2014 – its key response to the Winterbourne View scandal. A new NHS England-led plan to cut down admissions was launched earlier this year.
Today’s consultation paper also pays tribute to the ‘powerful argument’ for change made by the Justice for LB campaign. The campaign was launched following the preventable death of 18-year-old Connor Sparrowhawk (nicknamed Laughing Boy or ‘LB’) in 2013 while he was a patient at an NHS learning disability unit. It is producing its own proposals for legal reforms, known as the LB Bill.
Other proposals put forward in the consultation include:
- Councils or NHS bodies must clearly seek an individual’s approval (where they have capacity to consent) to admit them to an inpatient or residential setting.
- Individuals, families and advocates should be given the right to request a move, transfer or discharge from the placement if it is not working out.
- The uptake of Independent Mental Health Advocates should be increased by making the service opt-out rather than opt-in for people who lack capacity to consent to an advocate.
- Duties placed on local authorities to promote wellbeing and a diverse market in services under the Care Act should be extended to the NHS in complex cases involving health and social care support.
- The rights of people with learning disabilities or autism to a personal budget should be strengthened.
Mental Health Act changes
The paper also includes a number of proposals that specifically relate to changes to the Mental Health Act and would have implications for social workers working as approved mental health professionals (AMHPs) and the people they support. These include:
- Individuals, families or advocates should have the legal right to challenge an inpatient admission under the Mental Health Act immediately on, or prior, to admission if they think the patient’s wishes have not been ‘properly taken into account’ by AMHPs.
- Regulations underpinning the act should be changed so that AMHPs and doctors who are recommending a person should be detained to hospital must record the reasons why the person could not be treated in the community. The current regulations require the AMHP/doctor state why they consider it necessary for the person to be detained in hospital.
- People should be able to choose their own ‘nearest relative’, a role that involves specific legal duties under the act, if they wish to. The act currently assigns the ‘nearest relative’ based on a hierarchical list.
- The act should be amended to cover people with learning disability or autism ‘more appropriately’. Options include excluding learning disability and autism from the act’s definition of ‘mental disorder’ or altering the current learning disability qualification.
The consultation also proposes introducing a ‘clarification’ that the Mental Health Act code of practice applies to commissioners. The current code of practice, an updated version of which was launched in January, is only statutory for professionals and providers.
Key tests for the paper
Bill Love, head of learning disability and support at the National Development Team for Inclusion, said the test for the paper will be in whether it “leads to a sea change” in the way the rights of people with learning disabilities are viewed and supported.
“We welcome the conversation about developing a range of community based supports but the history of the last few years shows us that this will only be done successfully if it is led by genuine co-production with people with learning disabilities and families, involves providers who are seeking to develop new person-centred supports (rather than just growing what is there now) and has commissioners with the time, skills and budget for real market development’,” he said.
Mark Lever, chief executive of the National Autistic Society, said it was encouraging that the consultation suggested introducing stronger rights to challenge hospital admissions.
“Whoever forms the next government must carefully consider people’s views and act quickly if it’s to end unnecessary and potentially damaging hospitalisation and help people with autism to live the life they choose,” he said.