By Tim Spencer-Lane
The joint committee on the draft Mental Health Bill was appointed in July 2022 to consider the government’s draft bill to reform the Mental Health Act 1983 (MHA), which is summarised here.
The joint committee received 114 submissions of written evidence and over 100 responses to its online survey. Its final report, which includes over 50 recommendations, was published today (19 January 2023). This article provides an overview of its key recommendations.
Fundamental reform versus amending legislation
Some witnesses told the joint committee that more fundamental reform of the MHA was required than was provided for by the draft bill. This should include “fusing” the MHA and Mental Capacity Act 2005 into a single piece of legislation and a new MHA that starts from the rights of service users.
However, the joint committee also recognised a “clear sense” from witnesses that key reforms in the draft bill could not afford to wait for a more radical change. It recommended that the draft bill should not be the end of the process of law reform. There must be an ongoing process of mental health legislation reform, leading in the direction of more “fused” and rights-based legislation, it concluded.
An independent voice for mental health service users
The joint committee noted there was no independent voice advocating for mental health service users set out in statute. This contrasts with the way that, for example, the Children’s Commissioner for England advocates for the interests of children, or the Victims’ Commissioner for England and Wales for victims of crime.
The joint committee recommended that the post of a statutory mental health commissioner should be created, with the support of an office. The role would primarily act as a watchdog to oversee the direction of travel for the key reforms and monitor the outcomes and cultural changes that result.
Principles for the MHA
The draft bill does not include statutory principles. The Independent Review of the Mental Health Act, on which the draft bill is based, had identified four principles to be placed on the face of the reformed MHA: choice and autonomy; least restriction; therapeutic benefit, and the person as an individual.
The joint committee noted that the inclusion of these principles was supported by virtually every group of stakeholders. However, rather than statutory principles, it recommended a new provision, placed at the beginning of the MHA, requiring the government to draw up the revised MHA code of practice having regard to and including the principles set out in the independent review.
Tackling racial inequalities
The joint committee received evidence confirming racial and ethnic inequalities in the application of the MHA. It concluded that the draft bill must be stronger in how it tackles racial disparity, making the following recommendations:
- The principles should be amended to include “respect for racial equality”.
- There should be a ‘responsible person’ for each health organisation whose role would include data collection and analysis on ethnicity and the use of the MHA, and overseeing workforce training and policies to address bias and discrimination.
- The proposed mental health commissioner should promote the work of ‘responsible persons’, and produce proposals on reducing inequalities and improving data.
- The government and NHS England should produce an implementation plan for the NHS’s non-legislative programmes to address inequalities in mental healthcare.
Reforming community treatment orders (CTOs)
The draft bill would tighten criteria for the use of CTOs.
The joint committee was provided with evidence that CTOs were used more than intended and as a more restrictive alternative to discharge.
It concluded there was insufficient evidence to demonstrate benefit for the use of CTOs for part 2 (civil) patients to justify their continued use, especially as the orders were used disproportionately for black and ethnic minority patients.
It therefore recommended that CTOs are abolished for such patients. In respect of part 3 (forensic) patients, the joint committee felt the evidence was inconclusive and recommended the reformed MHA should be reviewed within three years of becoming law.
Resourcing and implementation
The joint committee noted that witnesses were overwhelmingly of the view that successful implementation of the draft bill required adequate funding and workforce provision.
It recommended that the final bill be accompanied by a revised impact assessment to take account of changes in the workforce and the economy since the original was published. It also recommended the government should publish a comprehensive implementation and workforce plan and be required to report annually to Parliament on progress.
The draft bill would amend the detention criteria under part 2 of the MHA by requiring that “serious harm” may be caused to the health and safety of the patient or others without detention, and that detention was necessary given the nature, degree and likelihood of the harm, and how soon it would occur.
In relation to detention for treatment under section 3, “appropriate treatment” would need to be available, meaning there would need to be a reasonable prospect of therapeutic benefit.
The joint committee recommended that consideration of “how soon” harm might occur should not be included in the bill. This was because it might dissuade potentially beneficial and shorter interventions at an earlier stage. It also recommended the meaning of “serious harm” and “appropriate treatment” should be included in the code of practice.
The draft bill would not introduce the new ‘harm-based’ detention criteria for forensic patients, under part 3 of the MHA. The joint committee heard widespread concerns that it consequently may be easier to be detained under part 3, compared to part 2. It therefore recommended that the changes in detention criteria should be consistent across parts 2 and 3.
Learning disabilities and autism
The draft bill aims to strengthen safeguards for those with learning disabilities and autistic people. There would be a statutory right to care (education) and treatment reviews – designed to ensure people are hospitalised for the minimum amount of time possible – and a requirement on integrated care boards to maintain a register of people with learning disabilities and autistic people at risk of detention.
The draft bill would also remove learning disabilities and autism as conditions for which an individual could be detained for treatment under section 3 of the MHA.
The joint committee recommended that the proposed duty on local authorities and integrated care boards to implement the recommendations of a care (education) and treatment review should be strengthened and that the maximum time period between reviews should be shortened from twelve to six months.
Also, the ‘risk register’ should be renamed ‘dynamic support register’, to better reflect its purpose, and there should be a “firm duty” on commissioners to ensure the adequate supply of community services for people with learning disabilities and autistic people
The joint committee also felt that a “staged approach” to the reforms to section 3 was necessary to allow time for investment in community services. Additionally, some witnesses argued that the section 3 reforms might increase the risk of people with learning disabilities and autistic people being detained under the Mental Capacity Act or through the criminal justice system. In response, the joint committee made the following recommendations:
- The government should review the Building the Right Support action plan, designed to reduce the number of people with learning disabilities and autistic people in hospital, in light of the proposals in the draft bill.
- The government should monitor outcomes for people with learning disabilities and autistic people who are no longer eligible for detention under section 3.
- The bill should allow section 2 detentions to continue beyond 28 days for people with learning disabilities and autistic people in “tightly defined exceptional circumstances”, pre-authorised by a specialist tribunal comprising individuals with an understanding of the conditions.
- Section 117 aftercare should be extended to patients who were admitted under the “exceptional circumstances” route.
- The government should consider amending the Deprivation of Liberty Safeguards (DoLS) so they cannot be used as an alternative route to the MHA for those with learning disabilities or autistic people.
- The government should re-examine the inclusion of other specific disorders, such as dementia, under the Liberty Protection Safeguards (LPS) in this context in future, after its implementation to replace DoLS..
The joint committee heard evidence that there was a need for greater clarity and consistency when it came to assessing “child capacity”, especially because the provisions in the draft bill rely heavily on consent, capacity and competence to make decisions. It recommended that the government consult on the introduction of a statutory test for competency, or child capacity, for children under 16.
The joint committee also recommended that the government strengthen the protections against children being placed in inappropriate settings, such as adult wards or placements out of area.
The draft bill would introduce statutory care and treatment plans for detained patients. This was widely welcomed by witnesses. The joint committee felt these could be strengthened by including statutory advance choice documents. These would allow a patient to record a range of preferences when they were well, which they would like to be considered if they become unwell.
It recommended a statutory right for detained patients to request an advance choice document be drawn up. To ensure the patient was meaningfully involved, this should be done with the support of a trained person who was independent of the treatment team.
Right to appeal a treatment decision
The independent review recommended that patients should be able to appeal treatment decisions at the Mental Health Tribunal. This was not included in the draft bill. The government explained this was because of concerns about the power of a single judge, rather than a multidisciplinary panel, to intervene in clinical decision making without the necessary expertise to do so, resulting in possible risk to patient safety.
The joint committee felt that a right to appeal would strengthen the patient’s voice but recognised concerns about the potential conflict between clinicians and tribunal judges and increase in workload for medical professionals. It therefore recommended the draft bill be amended to allow for pilots in the first instance.
The new nominated person (NP) role, which would replace the nearest relative, was broadly welcomed by witnesses. The joint committee recommended that the government work with approved mental health professionals to address certain practical concerns and that the choice of NP is included in advance choice documents.
The joint committee also recognised concerns around the potential for legal conflict if a child chose an NP who did not have parental responsibility. It noted that the government had agreed to look at this issue again and recommended a consultation on how NP provisions are applied to under 18s, regarding potential conflicts with other legislation affecting children, such as the Children Act 1989.
Rights to advocacy
The draft bill would extend the statutory right to an independent mental health advocate (IMHA) to all mental health inpatients, including voluntary patients. It would also introduce a form of ‘opt out’ advocacy to ensure all detained patients are offered a service.
The joint committee recommended that once capacity has been built up in the advocacy sector, the ‘opt out’ scheme should be extended to voluntary patients. It also recognised the shortages of advocates with specialist knowledge of learning disabilities and autism, relevant language skills or cultural knowledge and recommended that the government examine the case for a central advocacy service to address this. The joint committee further recommended a statutory right to request ‘culturally appropriate advocacy’.
The draft bill would introduce a new category of conditional discharge for restricted patients, which would enable discharge with conditions amounting to a deprivation of that person’s liberty, known as ‘supervised discharge’. The joint committee was concerned that this new power might be used more than envisaged and disproportionately against black and ethnic minority patients.
It recommended a duty to collect and publish data on the new power and a statutory review after three years. In addition, the tribunal must be involved in the decision to place someone on supervised discharge to ensure that therapeutic benefit is considered.
Transfer to hospital
The draft bill would introduce a 28-day time limit within which relevant bodies must “seek to ensure” patients are transferred from prison to hospital under the MHA. The joint committee recommended that independent oversight was needed to protect patients’ interests and monitor compliance. Also, the duty should be strengthened by removing the words “seek to”.
Short-term detention in emergency departments
The joint committee heard concerns about a ‘gap’ in mental healthcare when individuals experiencing a crisis arrive in A&E departments, yet there is no power to formally hold them. It recommended the government should consult on a short-term emergency detention power, and whether this would provide greater legal clarity to clinicians and accountability for what is happening in A&E services.
Interaction of the MHA and the Mental Capacity Act
Many witnesses pointed to the complex and sometimes problematic interface between the MHA and Mental Capacity Act. The joint committee highlighted three issues that the government should resolve under the LPS when it comes into force:
- The new power to deprive a person of liberty in an emergency, under section 4B of the Mental Capacity Act, will not cover any period in which a person is being referred for assessment under the MHA. The committee warned that if someone needed to be detained during the referral period, this could result in the police using their detention powers under section 136 of the MHA, or other options that may be “inappropriate, impracticable, or unlawful”.
- The LPS cannot be used to authorise to authorise the additional deprivation of liberty of MHA patients for physical health treatment, requiring the hospital to go apply to the Court of Protection for such treatment to take place. The committee argued that the government has not justified the additional time and expense this would entail.
- In determining whether a patient falls within the MHA or Mental Capacity Act, there is a subjective test of whether the patient “objects”, rather than an objective test. The committee questioned this, saying there were difficulties in determining whether a person who lacked capacity to make relevant decisions was objecting.
Places of safety
The draft bill would remove prisons and police cells as “places of safety”. This was welcomed by the joint committee. Due to concerns that the police lack the relevant expertise, the joint committee recommended that people with learning disabilities and autistic people should have the reasonable adjustment flag attached to their record, which should includes their preferred means of communication and the name of their advocate.
It also recommended that the government increase the provision of appropriate health-based places of safety, and include plans for this within the implementation plan.
Tim Spencer-Lane is a lawyer who specialises in mental capacity, mental health and social care law and legal editor of Community Care Inform.