The government has dropped a proposed overhaul of the interface between the Mental Health Act 1983 (MHA) and the Mental Capacity Act 2005 (MCA) due to limited support.
It has also rejected amending the MHA to permit remote assessments, which are currently unlawful. However, it plans to press ahead with its broader reforms to the act after they received a positive response in consultation, though without a timetable to do so or firm commitments in relation to additional funding.
The change to the interface was proposed in the MHA reform white paper, published in January. It would have meant that people without relevant capacity, who were not clearly objecting to arrangements to deprive them of their liberty, would have these managed under the MCA’s Deprivation of Liberty Safeguards (DoLS) or its successor, the Liberty Protection Safeguards (LPS).
Currently, people in these circumstances can be detained under either the MHA or DoLS, and the proposal – adopted from the 2018 report of the Independent Review of the Mental Health Act 1983 – was designed to bring clarity for practitioners. Government-commissioned research, published in February, found that people were being unlawfully detained because of professionals’ lack of shared understanding of the interface and their use of blanket rules to determine which law to use.
‘Very limited support’
However, in its response to the white paper consultation, published last week, the government said there had been very limited support for the proposed change. Some respondents said that objection was not always clear, could fluctuate or was influenced by other people, with others proposing more resources to help practitioners make decisions under the current framework.
Rejecting its previous plan, the government said it would continue to build an evidence base to better understand the interface and what support it could give practitioners to apply it. It said it would review arrangements once the LPS – due to come into force next April – is embedded.
At the time of the white paper, the government was of the view that the MHA permitted approved mental health professionals (AMHPs) and doctors to carry out out remote assessments, and NHS England and NHS Improvement had produced guidance for their use during the pandemic. However, a High Court judgment issued shortly after the white paper’s publication ruled them unlawful because of the act’s requirements for AMHPs to have “personally seen” the person in the two weeks before an application and for doctors to have “personally examined” them.
The government then consulted with stakeholders over whether it should legislate to permit remote assessments but found that “the broad consensus was that the presence of professionals in the room with people is required”.
Positive response to MHA overhaul
Overall, the government said it had a positive response to its proposals to reform the MHA, that it would continue to develop them and that it still intended to bring forward a bill to bring them into effect. However, it gave no time commitment for doing so – saying this would be when parliamentary time allowed – while stressing that any measures requiring funding were subject to decisions taken in this autumn’s government spending review.
The consultation, which received over 1,700 responses, found strong or majority support for proposals to:
- Tighten criteria for detention, to require that it provide therapeutic benefit to the patient and only take place when there is a substantial likelihood of significant harm to the patient or others. Currently, the act only requires that appropriate medical treatment is available and that detention is “necessary for the health or safety of the patient or the protection of other persons”.
- Replace the current nearest relative role – selected according to a hierarchy of relatives specified in the act – with a ‘nominated person’ (NP), selected by the patient, and to provide the NP with additional powers to be consulted on the patient’s care and treatment.
- Bring forward, or make more frequent, the automatic referrals of detentions or community treatment orders (CTOs) to the mental health tribunal to improve patients’ ability to challenge them.
- Introduce advance choice documents to enable people to set out in advance the care and treatment they would prefer should they be detained.
- Ensure that people with a learning disability or autistic people can only be detained for treatment under the act if they have a co-occurring mental health condition, with detention for assessment only permitted if there was a probable mental health cause for their behaviour.
Though the consultation did not ask specific questions about this, the government also said there was broad support for its proposals to limit the use of CTOs by raising the threshold for their use, reviewing them more frequently and time limiting them, though with issues raised about the practical application of these measures.
Concerns over AMHPs taking on new role
There was also strong backing for the government’s plan to introduce an independent role to oversee transfers from prisons and immigration removal centres (IRCs) to hospitals. About two-thirds of respondents backed proposals to create a new role within the NHS or, across the NHS and the prisons service, with only a third supporting the alternative plan to give this role to AMHPs.
While respondents felt that AMHPs had the right skills for the role, the government said that “a common theme was that the AMHP workload is already too high to take on this responsibility”.
However, while the government said it would continue to work on developing the independent role, taking account of consultation responses, it did not rule out giving it to AMHPs.
A key aim of the reforms is to reduce the substantial racial disparities in the use of the act, with black people four times as likely to be detained as white people, according to the latest available figures.
Specific measures include piloting culturally appropriate advocacy services, and the further development of the Patient and Carer Race Equality Framework, which is designed to improve mental health trusts’ response to black or ethnic minority groups.
‘Exasperating failure to acknowledge systemic racism’
In its consultation response, the government reiterated its commitment to piloting culturally appropriate advocacy, and said it was currently scoping requirements for this.
“Given the scale of disparity that exists, and the further inequalities the impact of Covid has highlighted, we must ensure the proposed changes from the white paper will have a positive impact on people from black groups,” it added.
However, in response to the consultation outcome, Vicki Nash, head of policy and campaigns at Mind, said: “It is exasperating and shocking however that the report completely fails to acknowledge the structural and institutional racism pervading the Mental Health Act. The report fails to outline how it will address the systemic racism that results in disproportionate detentions and the use of humiliating and life-threatening practices among people from certain racialised communities.
“Too many people – especially Black men – have died as a result of use of physical and chemical restraint while under the act and community treatment orders are 10 times more likely to be used on Black people.”
Nash added: “Further work on reforming the act must be done, so new legislation can be introduced as soon as possible – with additional funding attached, to make sure people can get the support they need when at crisis point.”