By Luke Haynes and Mithran Samuel (story updated 10 December)
The government has committed to introduce a Mental Health Bill to transform care for detained patients after an independent review recommended new legislation that placed people’s rights, choices and dignity at its heart.
Following today’s publication of the final report of the Independent Review of the Mental Health Act 1983, the government has, so far, accepted two of its recommendations:
- to replace the nearest relative role, in which a patient is allocated a relative to be involved in decisions about their care, with that of a nominated person that they would choose;
- to allow people to make statutory advance choice documents setting out their preferences for inpatient treatment, which clinicians must honour unless there are compelling reasons not to.
Both of these will be in the Mental Health Bill and the government will give more detail on the legislation and its response to the review in the New Year.
The review’s recommendations are designed to transform the law on the detention and compulsory treatment of people with serious mental health problems around four principles:
- Choice and autonomy – ensuring people’s views and choices are respected.
- Least restriction – ensuring the act’s powers are used in the least restrictive way.
- Therapeutic benefit – ensuring people are supported to get better so they can be discharged from the act.
- The person as an individual – ensuring people are viewed and treated as rounded individuals.
Unlike the current “guiding principles”, which are set out in the code of practice under the MHA, these principles would be on the face of the new act and professionals would be required to have regard to them.
The review’s many recommendations are based on these principles, and in his foreword to the review’s report, chair Sir Simon Wessley said the first principle, choice and autonomy, was central, as a result of what people who had been subject to the act had told the review.
“I was surprised by the number of service users and former patients who have told me that their issues were not so much with being detained, although that is an issue, but the way in which having been deprived of their liberty, they were often deprived of much else. In other words, their wishes, preferences and choices were often not respected.
“So we intend to shift the balance of power between patients and professionals,” said Wessley, a psychiatrist who was appointed to lead the review following its announcement by prime minister Theresa May in October 2017.
Rising detention rates
The review was designed to investigate and make recommendations on rising rates of detention – with use of the act rising by 40% from 2005-6 to 2015-16 in England – disproportionate rates of detention among black Asian and minority ethnic groups and the rights of detained patients.
The review found limited research on detention rates, meaning it was “unable to say how far the rise in detentions reflects more people being detained; or whether we are seeing the same people being detained more often; or if the over-representation of people of ethnic minority groups is going up or down”.
Based on available evidence it said rising rates were in part explained by rising population and the increasing use of the MHA to deprive people of their liberty when they were not objecting to their treatment. It also detected a shift to a more risk averse approach from professionals in recent years which may have played a part in the rise in detentions.
Giving legal weight to advance choices
The review made a number of recommendations to give greater weight to people’s wishes and preferences, including the two accepted by government to replace the nearest relative by a nominated person and introduce statutory advance choice documents (ACDs).
ACDs would be offered to anyone who had been previously detained and potentially those at heightened risk of detention and would set out preferences for and against certain forms of treatment and about how treatment should be administered, and details of who should be informed of a detention and religious or cultural requirements.
Where a person had made an ACD with capacity – something the review recommends should be authenticated by a health professional – clinicians would have to honour them, unless there was a compelling reason not to, such as that the preferred treatment would be harmful.
Where a person lacked capacity to make an ACD, they should still be encouraged to state their preferences in advance, and these should be taken account of by professionals as part of a best interests decision around their treatment.
Nearest relative role would be replaced
Being able to choose their nominated person would also be part of the ACD, though the person could also do that at the point of assessment for detention or during detention itself.
This would replace the current system in which a nearest relative is identified by an approved mental health professional (AMHP) based on a statutory hierarchy of relatives, without reference to the person’s choice.
The review found this sometimes resulted in a completely inappropriate persons being elected.
The nominated person would have similar powers to the nearest relative – to block detention for treatment, discharge a patient and appeal to the tribunal where discharge has been blocked by the responsible clinician. They would also have the right to be consulted – not just informed, as at present – about renewal of a detention, extension of a community treatment order or the transfer of the patient from one hospital to another.
Where a person lacked capacity to nominate a person, an AMHP would identify the person most suitable as an interim nominated person, based on guidance.
Among other measures designed to strengthen patient choice and autonomy, the review also recommended strengthening people’s rights to challenge treatment decisions.
Currently, decisions are largely based on the opinion of the person’s responsible clinician for the first three months of detention, after which the opinion of a second opinion appointed doctor (SOAD) is required if the person lacks capacity to, or has refused to, consent to the treatment.
The review said that several service users questioned this provision. It recommended that the person – or a nominated person or independent mental health advocate on their behalf – could request a SOAD after 14 days.
More powers for tribunals
In addition, people would have the right to challenge their treatment at a tribunal, with non-means-tested legal aid, replacing the current situation where they would need to seek an expensive judicial review.
The tribunal, sitting with a single judge, would be able to require the responsible clinician to reconsider their treatment decision or order that a particular treatment is not given where this had a disproportionate effect on the person’s rights.
The review also recommended extending entitlement to an independent mental health advocate (IMHA) to informal patients and those in the community who are at risk of detention or have previously been detained, in relation to drafting an ACD.
Currently, in England, IMHAs are only available for detained patients and those subject to CTOs, though in Wales voluntary patients also have access. Also, to address the problem of people not receiving their entitlement to an IMHA, this would be provided on an ‘opt out’ basis so the person were automatically referred to an advocate.
The chief executive of mental health charity Mind, Paul Farmer, welcomed the review’s recommendations to prioritise the preferences of the patient, which he said had “the potential to make a real difference to those who are in an extremely vulnerable situation”.
Raising the bar for detention
In what would be a significant shift, embodying the review’s second principle of least restriction, it proposed raising the threshold for detention.
The current criteria allow detention where this is “in the interests of” or “necessary for the health or safety of the patient” or for the purpose of protecting others, which the review said set the bar too low and allowed “for any vague notion of risk to be put forwards as grounds”.
It proposed instead that detention may only be permitted if there was “a substantial likelihood of significant harm to the health, safety or welfare of the person, or the safety of any other person”.
It also said that the requirement that appropriate medical treatment is available, which provides an additional criterion for admission for treatment under section 3 was too weak. It proposed a new treatment criterion, under which 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. For “the great majority of patients”, benefit would involve contributing to discharge, not just public safety, while the requirement to establish that the person cannot be treated in the community should support a shift towards community-based treatment, the review added.
A statutory care plan
A core plank of the review’s proposals to make treatment the least restrictive was its recommendation that every patient has a new statutory care and treatment plan (CTP). This would be in place within seven days of admission and provide a comprehensive assessment and plan of the needs and wishes of the patient, the options available to meet those needs, and the route towards discharge.. It would then be reviewed after 14 days.
The review said the CTP should include the full range of treatment and support available to the patient, information on why any compulsory treatment was required, the least restrictive way in which the care could be delivered, planning for discharge, how the person’s past and present wishes, and those of their family, have informed the plan, and any known cultural needs
The review said that, while this constituted good care planning, it was not always done, and by making the CTP a statutory duty, professionals would think more specifically about the least restrictive way in which the patient could be treated.
Tackling lengths of detention
The review also proposed measures to reduce lengths of detention and what it saw as an overuse of section 2 admissions for assessment. People admitted under section 2 would be able to apply to the tribunal for discharge at any point, and not after 14 days, as at present.
To ensure section 2 was only used for people in need of assessment, applications would only be permitted, where an AMHP was aware that the person had been detained in the previous 12 months, when there had been a material change in the person’s circumstances. The code of practice should also be amended to state that section 3, not section 2, should be used where a person had been detained under section 2 in the previous 12 months.
It also proposed cutting the maximum period of initial detention under section 3 from six to three months, followed by renewal for a further three months and then a further six months.
The review said the CTP would also help tackle what it saw was an overuse of section 2 admissions, which, it said, should only be used when it was truly necessary to assess someone.
Shifting the boundary between the MHA and MCA
Other measures to restrict use of the MHA included removing provisions that allow people to be detained under the act when they are not evidently objecting to their treatment.
Currently, both the MHA and Deprivation of Liberty Safeguards can be used in situations where a person lacks capacity to consent to admission to hospital for treatment for a mental disorder and is not objecting.
The review proposed that, in future, under such situations, the person may only be deprived of liberty under the Liberty Protection Safeguards, which are due to replace DoLS once the current Mental Capacity (Amendment) Bill becomes law. However, this will depend on the LPS allowing for a person to be deprived of their liberty on the basis of the risk of harm to others, as opposed to harm to the person themselves.
Curbing use of CTOs
As well as measures to reduce use and duration of admissions within hospital, the review also proposed recommendations to significantly curb the use of community treatment orders.
These were introduced in 2008 and allow people to leave hospital following admission under section 3 but with conditions on them to ensure they continue with treatment and to prevent readmission.
The review cited evidence that indicated that CTOs did not reduce readmission, while black or black British people were even more disproportionately likely to be subject to CTOs than admission to hospital.
In line with the increased threshold for admission it proposed, the review recommended increasing the threshold for a CTO and for recall to hospital by requiring:
- that it is necessary for an order to be made to maintain engagement with services and to protect the safety of the person and others, rather than, at present, that it be necessary for the health and safety of the person or the protection of others;
- that the responsible clinician (RC) show that previous disengagement with services had led to a significant deterioration in the person’s condition, strengthening the current position when the RC only needs to have particular regard to the person’s history and what risk there would be of deterioration if the person were not in hospital;
- that a person is only recalled to hospital from a CTO if there was a substantial risk of serious harm to the health or safety of the patient or others, rather than a simple risk of harm, as at present.
In addition, the nominated person would be able to object to the CTO, not just be consulted as at present, while an order would require the agreement of two doctors and an AMHP, not just the AMHP and responsible clinician.
The review recommended that CTOs should generally end after 24 months, and that tribunals have the power to change or remove CTO conditions, not just discharge the patient from the order, as at present.
The review rejected repealing CTOs altogether at this point, saying they had heard evidence they have benefited some patients. However, it said that CTOs should be reviewed within five years and, if outcomes were not improved, they should be abolished.