Amending the Mental Health Act

Abolishing hospital managers?

One of the topics for reform identified in the Queen’s speech is to reform the detention process and provide greater support for patients to challenge this.  Will this include abolition of the power of discharge currently vested in hospital managers?

In October 2017 Theresa May announced a review of the Mental Health Act chaired by Professor Sir Simon Wessely, the Regius Professor of Psychiatry at King’s College London and President of The Royal Society of Medicine.  His December 2018 Report included a proposal that hospital managers’ power of discharge should be taken over by the First Tier Tribunal.  It is therefore likely that a reform of this aspect of the detention process will form part of the White Paper proposals.

Currently, patients detained under the Mental Health Act may be discharged by the Responsible Clinician, nearest relative or the hospital managers.  The hospital managers for these purposes are a specific panel of individuals who are not employees of the detaining authority and thus provide a welcome level of independent and external input and scrutiny into the detention process.  Their hearings are relatively informal and governed only by the limited guidance contained in the Code of Practice, and general principles of administrative and natural law. That said, the Act in its current form is almost 40 years old and there have been relatively few court cases arising from the actions of hospital managers — which might suggest the system is working reasonably well.

The replacement provision would likely be to give patients the right to appeal their detention to the First Tier Tribunal rather than the managers.

Whilst the Tribunal will obviously provide a more professional and structured process, if patients appeal all renewed detentions and the issue of all Barring Orders under Section 25 Mental Health Act are all referred to the Tribunal, the work of the Tribunal is likely to increase very significantly.  One question is whether the government has the resources to commit to the extra administrative and judicial staff that would be needed.  Further, on a merely practical point, can the additional qualified individuals be found to staff this?

Of course, the whole process of detention, appeal, discharge and renewal could be revamped to reduce the incidences of such applications and thus the impact on the Tribunal, but surely this only actually serves to reduce patient rights?

Statutory care plans

The areas for reform highlighted in the Queen’s speech include giving patients greater control over their treatment and ensuring that they have a greater say in their care.  In particular, it was said that patients should have greater choice and autonomy, and be able to set out their preferences for care and treatment in advance.

The review of the Mental Health Act chaired by Sir Simon Wessely, which was reported in December 2018, made several recommendations that reflect similar themes:

• Giving patients the right to make an advanced choice document in relation to their mental health care and treatment.
• Requiring Responsible Clinicians to formulate a statutory care plan that should take account of these views.
• Ensuring that these statutory care and treatment plans include leave and discharge plans.
• Giving the First Tier Tribunal the jurisdiction to scrutinise care plans and review treatment, and for patients also to request a SOAD review.
• Making it hard to override treatment refusals.

The review summarised its views as follows:

We have heard time and again from people, that they did not fully understand what was happening nor were their views sought, let alone considered during detention.  We consider that there should be a duty on the Responsible Clinician to formulate a detailed care and treatment plan for each individual as soon as reasonably practicable (and reviewed within 14 days).  That plan should govern everything up to and including leave and discharge.  A key component of that plan should be the wishes and preferences of the patient, which should be considered and, if not followed, a record made of the reason why not.

Giving patients the right to express their views about future care and treatment seems to follow the broad ethos behind advance decisions in the Mental Capacity Act.  Previously the compulsory treatment sections of the Mental Health Act have overridden these, so it remains to be seen whether this will continue to be the case.

A specific requirement for a statutory care plan to be in place within 7 days of admission, and then reviewed after 14 days is new.  However, it is intellectually an extension of the current requirement for a SOAD Certificate where medication is to be provided for more than three months.  The medication regime has previously been authorised by a SOAD and it may be that the proposals simply replace that requirement with the ability for the patient to refer the matter to the Tribunal if they are unhappy with the care being provided.  This may therefore be little more than a broad rehash of the existing statutory scheme although, as we have noted in previous briefings, it remains to be seen whether the Tribunal system will have sufficient capacity to deal with an increased number of applications of this sort.

Reforming the role of the nearest relative

The statutory scheme created by the current Mental Health Act includes a role for the patient’s nearest relative. This was concisely set out in R(M) v SOS for Health:

“The nearest relative plays an important part in the scheme of the Act.  He may make an application for assessment (section 2), an emergency application for admission for assessment (section 4) and an application for admission for treatment (section 3).  No application for admission or treatment under section 3 may be made by an [approved mental health professional [AMHP] without first consulting with the nearest relative unless the [AMHP] considers that such consultation is not reasonably practicable or would involve unreasonable delay (section 11(4)).  Unless the patient objects, the managers of a psychiatric institution in which a patient is detained have to inform the nearest relative in writing about, amongst other things, the right to apply to a tribunal, the right to be discharged, the right to receive and send correspondence and the right to consent to or refuse treatment (section 132(4)).  A nearest relative may order the discharge of a patient who is detained under [section 2 and] section 3 (section 23).  Prior to exercising this important power the nearest relative can appoint a medical practitioner to examine the patient and the appointed practitioner can require the production of records relating to the detention or treatment of the patient (section 24).  The right to order discharge under section 23 is limited when the responsible clinician certifies that the patient would, if released, be likely to be a danger to himself or others (section 25).  Where a patient is to be discharged other than by the order of the nearest relative, the detaining authority is required to notify the nearest relative of the forthcoming discharge unless the patient requests that no such information is supplied (section 133 (2)).

In addition to the power to order a discharge under section 23 the nearest relative may apply to a tribunal in certain circumstances for the discharge of the patient pursuant to section 66…  Where the nearest relative is the applicant to the Tribunal he may appoint a registered medical practitioner to visit and examine the patient and that practitioner may require production of and inspect any records relating to the detention and treatment of the patient (section 76(1)).”

The identity of the nearest relative is dependent upon a statutory list which establishes who this is based on degrees of blood relation and age.  The working of this part of the Act has been criticised for many years:  the statutory scheme in effect “imposes” an individual on the patient as their nearest relative with the right to exercise the range of powers set out above.  However, there may be many reasons why that person is either unsuitable or not wanted by the patient.

The fact that the Queen’s speech highlights a greater control for patients, and the review of the Mental Health Act chaired by Sir Simon Wessely (December 2018) suggested changing this area of law is likely to mean that this issue is ripe for amendment.

The Act has always made it possible for an application to be made to the Court to remove the nearest relative, however, this can be a slow legal process.  The 2007 amendments allowed patients to apply to the court to make this change, but one wonders how many are in a position to do that.

Sir Simon Wessely’s review of the Mental Health Act recommended replacing the nearest relative with a nominated person chosen by the patient.  This was part of their wish to enhance patient choice.  The review envisaged interim arrangements for those who were unable to choose their own “nominated person” and restrictions on removing that person just because they object to the admission.  It is likely that the White Paper will mirror these proposals.

Earlier debates about the role of the nearest relative have always focused on issues such as whether patients are likely to seek to nominate the Queen or the Prime Minister as their nearest relative.  Whether this is a significant risk remains to be seen, however, it could easily be addressed by either:

• Prescribing a category of person who can be appointed or;
• Providing a speedy “cancellation” process that would apply where an inappropriate nominated person is put forward. This action would fall presumably on the detaining authority.  If the Tribunal were given jurisdiction to determine this, it will further increase that workload.  However, it seems more equitable to organise the system putting the onus on the relevant authorities rather than retaining a reduced level of patient choice by imposing a statutory list.

Reducing the use of Community Treatment Orders

Community Treatment Orders (“CTOs”) were introduced by the 2007 amendments to the MHA.  At the time, many psychiatrists were sceptical about taking responsibility for community patients, particularly against the backdrop of the Courts having recognised a form of virtual Community Treatment Order in the way they had interpreted the application of Section 17 leave to patients who were on long term leave.

The 2007 amendments established a regime of CTOs whereby patients who met the relevant stated criteria could be cared for in the community subject to the CTO which gave a power of recall to hospital.

The concept of a CTO was intended to address the “classic revolving door” patient who was discharged from hospital, deteriorated and was returned to hospital before improving and again being discharged before recommencing the cycle.  As set out in the Code of Practice:

“The purpose of a CTO is to allow suitable patients to be safely treated in the community rather than under detention in hospital, and to provide a way to help prevent relapse and any harm — to the patient or to others — that this might cause.  It is intended to help patients to maintain stable mental health outside hospital and to promote recovery.  The principle, in particular, of treating patients using the least restrictive option and maximising their independence; and purpose and effectiveness should always be considered when considering CTOs”.

CTOs have however been immensely “successful”.   At the time of the 2007 amendments the government anticipated 10% of detained patients would be affected.  During the passage of the 2007 amendment Act through Parliament an amendment that would have restricted the use of CTOs to patients who had already been detained more than once failed. The latest data suggests that there were about 5500 patients subject to a CTO in 2018, or around 30% of patients. It is suggested by some that patients actually find it helpful to have a framework imposed on them in the community, and for them to have something to follow.  However, their use has been criticised.  Some suggest CTOs are coercive, restrict patients’ personal liability and have detrimental impact on the patient’s therapeutic relationships.  It is also suggested that CTOs do not reduce the severity of a patient’s symptoms nor the rate of readmission.

The review of the Mental Health Act chaired by Sir Simon Wessely which reported in December 2018 suggested that the use of CTOs should be reduced by tightening the criteria and limiting their use to a maximum of two years.  The issues highlighted by the Queen’s speech in relation to giving patients greater choice and autonomy would suggest that the statutory basis of CTOs is likely to be reviewed and amended as part of any update to the Mental Health Act.

Amendments to affect people with learning disabilities and/or autism?

One of the topics for reform is the application of the Mental Health Act (‘MHA’) in respect of those with learning disabilities and/or autism. The review of the MHA chaired by Professor Sir Simon Wesseley that was reported in December 2018 considered this issue and concluded as follows:

“We have been told that the Mental Health Act isn’t providing the right type of support and care for people with learning disabilities, autism or both.  The MHA is being used in a way that is not in line with its intended purpose, and is too often being used to compensate for the lack of adequate and meaningful support within the community.

The overall effect of the changes that we are recommending should be to help tackle the long-term warehousing of patients and ensure that being detained has a therapeutic benefit for the person.  This includes, for example, the statutory care and treatment plan, the tightening of the detention criteria and what can be considered “treatment”, nominated person and requirement to make reasonable adjustments.

There is a clear consensus that what is most important is sustained long term investment in alternatives to detention, a view we endorse.  That is why we are recommending a new duty on health and social care commissioners to collaborate to provide sufficient community based alternatives to detention for those with learning difficulties, autism or both, and to facilitate timely discharge.

We have considered whether learning disabilities and autism spectrum disorder should remain within the MHA.  We heard moving testimony concerning the adverse consequences that have arisen following detention, and agree that the status quo is not an option.  But is the solution to redefine these conditions as outside the MHA?  There seems no clear consensus on this, and we have heard also about the many negative consequences that could arise from being outside this framework.  It is a fine balance.  There are cases when the MHA has been the only option at a point of crisis.  Not only has it been the only option, it’s been the only option that worked for the patient.  We have ultimately been persuaded that the risk of completely removing learning disabilities and autism from the Act is too high, although we think this should be kept under review.

Recommendations

The Review concluded that despite changes having an impact, it was not established to consider the best approach in law to be taken in relation to the care and support of people with learning disabilities or autism as ‘that would be a much wider task’. The review made the following recommendations:

• Health and social care commissioners should have a duty to collaborate to ensure provision of community based support and treatment for people with a learning disability, autism, or both, to avoid admission into hospital and support a timely discharge back into the community
• Amend the MHA Code of Practice to clarify best practice when the MHA is used for people with autism, learning disability or both
• Care and Treatment Reviews should be given statutory force in the MHA
• The Mental Health Services Dataset should include specific data to monitor the number of detentions and circumstances surrounding the detention of people with autism, learning disabilities or both.

Review of law in Scotland

The Review has asked the government to take into account the findings of the review of the law in Scotland.  The final report of the Independent Review of Learning and Disability and Autism in the Mental Health (Care and Treatment) (Scotland) Act 2003 was published in December 2019 and contains a number of proposals for law reform, most of which gained strong support from those who were consulted. Key recommendations included:

1. The removal of autism and learning disability from the definition of mental disorder
2. Creation of a new law to support access to positive rights, including the right to independent living.

Removal from definition of mental disorder

Providers may be interested to read the discussion in Hansard concerning the exclusion of autism and learning disabilities from the definition of mental disorder, comments as follows:

• Baroness Hollins: …in detaining somebody in hospital under the Act, the excuse of doing so to improve—or with the intention to improve—their behaviour, even though their behaviour may be a reaction to inadequate social care, is an inadequate reason for detention under legislation?
• Baroness Browning: The real problem is that we do not have sufficient psychiatrists who understand and can differentiate between autistic behaviour and what they believe to be psychotic behaviour. Once patients start the spiral of medication for psychosis, the autism disappears and the person disappears altogether.
• Baroness Blackwood: ‘The Government accept completely that autism and learning disability are not mental disorders. The question is whether being excluded from the legislation would cause challenges or difficulties for those who may have autism and mental disorders’.
• Lord Addington: ‘The treatment of many people with autism [have] undergone is probably the best way to induce poor mental health in many of them. Can we please do something to stop that?

It appears that there was an appetite to remove learning disabilities from the definition in the Mental Health Act 2007 however as noted by Sheila Hollins et al, ‘the vague exception for abnormally aggressive or seriously irresponsible behaviour meant that it was not fully removed’.  The fact that only those with a learning disability can be detained for such behaviour is considered discriminatory and it is important to note that there is no definition within the MHA Code of Practice (the ‘Code’) which details what would constitute this. There is however commentary which confirms that unusual or bizarre behaviour would not. Hollins et al have further noted that the inclusion leads to lazy diagnosis as the underlying causes for the behaviour do not need to be investigated. Others are concerned regarding the disparity between how learning disabilities and autism are treated under the MHA, in that people with autism can be considered to have a mental disorder. One option which has been suggested is the addition of an autism qualification, this could perhaps mirror the learning disability qualification so that there must be some form of prescribed behaviour present in addition to the autism itself in order to be captured by the definition of mental disorder, so that the two are on an equal footing. Variations of this proposal were discussed as part of the Government Consultation, No voice unheard, no right ignored in 2015.

Concerns are routinely expressed in relation to the detention of those with autism. No Voice Unheard, No Right Ignored (p 42) identified it felt people with autism were detained due to autism associated behaviours even where no appropriate medical treatment was available, which is both inappropriate and illegal. For clarity, Chapter 20 of the Code (para 20 and 20.22) is clear that autism is not a mental illness and detaining a person with autism in hospital is rarely likely to be helpful, since it will inevitably involve changes in routine that will provoke anxiety. In contrast, it has been suggested that the exclusion of both from the MHA could result in a rise in self harm, suicide and harm to others if people are not supported effectively.

Hollins et al suggest that the Mental Capacity Act 2005 can provide frameworks for intervention where people with learning disabilities and/or autism have no co-existing mental illness and this is certainly something which requires further careful consideration. Clearly a consequence of the exclusion would be an increase in workload for the Court of Protection in dealing with deprivations of liberty and/or other court orders as required.

It is important to bear in mind that changes in this regard will also have associated repercussions as regards the criminal justice context, as the MHA allows the courts to divert people who are accused or have committed an offence to an impatient setting rather than remanding them to custody or imposing a custodial sentence. It will therefore be vital to consider what options will be available for those with learning disabilities and/or autism in this context. The case of R (Hall) v SSJ [2018] EWHC 1905 (Admin) highlighted the varying levels of awareness and training received by prison staff regarding necessary reasonable adjustments for prisoners with autism and moreover the lack of accredited institutions more generally. As was suggested in 2015, learning disabilities and autism could be excluded from the civil but not the criminal sections of the MHA. Again, this would not be without difficulty.

Legal duties on CCGs and LAs

The Parliament’s Joint Committee for Human Rights (‘JCHR’) report also recommend narrowing of the MHA criteria to avoid inappropriate detention, which is noted to ‘cause suffering’ and ‘does long term damage’. The JCHR has identified that the right housing, social care and health services needed to prevent people being detained inappropriately are simply not being commissioned at local level. The Committee suggest that legal duties on clinical commissioning groups and local authorities should be created to ensure the right services are available in the community.  This is commendable, however it fails to appreciate the stark reality, that changes in the law alone will not transform care. As was highlighted in a recently published Court of Protection judgment, Dorset Council v A (Residential Placement: Lack of Resources) [2019] EWFC 62 the lack of appropriate placements are at the forefront of issues faced by individuals and commissioners alike, particularly in relation to those with learning disabilities and/or autism. His Honour Judge Dancey emphasised that the problems are huge, noting that placements are seized upon when they do appear and sometimes it has taken so long to identify an alternative placement that trust has broken down. This only serves to compound the difficulty of moving young people on.

As has been commented, the better placements coveted cannot simply be conjured up and of course commissioners already have a duty to commission appropriate services pursuant to the National Health Service Act 2006. Equally local authorities are under Care Act 2014 duties to promote an efficient and effective market for adult social care and support as a whole in relation to both diversity and quality of services. Query whether both should have regard to the need for sufficiency of community treatment and support moving forwards No Voice Unheard (p.22 para 1.21), and whether this could appropriately be recorded in the new MHA.

The voluntary patient

The review of the Mental Health Act chaired by Sir Simon Wessely, which was reported in December 2018, commented as follows on the position of the voluntary patient:

“We are concerned about the near demise of the “voluntary” or “informal” admission.  Over the last few decades, the proportion of those in inpatient beds that are informal admissions has fallen relentlessly, due to two factors.  First, as is well known, and a cause for celebration, the overall number of beds has reduced by over 90% since the start of the deinstitutionalisation in the 1960s.  So inevitably those who now occupy beds are more likely to be severely ill and hence detained.  Second, however, has been the change brought about by the 2007 amendments to the Mental Capacity Act and then the decision of the Supreme Court in “Cheshire West” in 2014.  It is now necessary to provide a lawful justification for a deprivation of liberty in any person who lacks capacity and is today de facto “detained” in hospital, even if seemingly consenting to this situation.  Almost unremarked upon has been the steady decline of informality in mental health settings despite the provisions of Section 131, which explicitly protects the status of informal patients.

It seems to us that the aspiration towards voluntary admission, as is the norm, is worth asserting.  First, we think that voluntary admission should be the first to be dealt with in the Act before coming to compulsory powers.  Second, we discuss issues of advance consent to admission itself, whether expressed by way of Advance Choice Documents or through the appointment of a health and welfare attorney under the Mental Capacity Act.  We have not made firm recommendations here, recognising that there are genuine disagreements that mandate wider consultation.”

One might therefore assume that this issue will be covered by the proposed amendment of the Mental Health Act, both to retain a provision such as S.131 to confirm the existence of voluntary admissions, and possibly to elevate it to a mandatory consideration before detention on a compulsory basis.  That chimes with the current principle of “least restriction”, although it might also be said that it is no more than a consideration of whether the patient meets the criteria for detention i.e do they need to be detained.

A wider use of advance consent may increase the use of voluntary admissions, although one may suspect that the two key issues that determine the use of voluntary admission are:

• The focus on treating in hospital only the most unwell patients because of the rise of community care and a decrease in beds
• The interaction with the Mental Capacity Act, and the deprivation of liberty arrangements (via a Court Order, a Deprivation of Liberty (“Dols”) Authorisation, or the Liberty Protection Safeguards).

The interface with the Mental Capacity Act

The review of the Mental Health Act chaired by Sir Simon Wessely, which was reported in December 2018, commented as follows:

“For historical reasons the MHA and Mental Capacity Act have grown up separately and operate under different court structures.  This makes for neither clarity nor simplicity.  We recognise that in the short to medium term it would not be possible to merge the two systems (what is known as a “Fusion Act”) and there is at present no firm agreement as to whether this would be a sound long-term aim.  In the meantime, choices will have to be made as to which system to use in relation to decisions about detention and treatment where the patient lacks the requisite mental capacity.

We are firmly of the opinion that the decision should be made on the basis of whether the patient is “objecting” to what is proposed (using objecting in the usual sense of the word, as opposed to being unable to consent or dissent as in the sense of the Cheshire West judgment).  That is a decision with which professionals are familiar, and is in keeping with the history and existing functions of the two Acts.  It also had the virtue of simplicity — namely if objecting, the MHA should be used; if not and the person lacks capacity, the MCA.  Of course, it is necessary to note the difference between the two regimes in terms of safeguards and after-care, differences that we believe are proportionate to the differences in intrusion into a person’s life between the two Acts.

Some harmonisation could be achieved by “cross ticketing” judges of the Court of Protection and the Mental Health Tribunal to hear cases where a person is subject to both the MHA and the MCA, and by ensuring recognition in both regimes of advance decision making, and the position of those who hold power of attorney and of deputies.  All this must be considered in the context of the Liberty Protection Safeguards.  We have to recognise that in this area we are on shifting sand.”

In the absence of a drive for a Fusion Act, fusion of the Mental Health Act and Mental Capacity Act is unlikely to be the result of the proposed amendments to the MHA.  A Fusion Act ought to clarify the often very complex issues that arise when considering the interface of the MHA and the MCA, and would probably be welcomed by most practitioners, whether legal or care practitioners.  However, such an Act is likely to require considerable parliamentary time to debate and the Government probably have other priorities.

The “objection” test if adopted, should assist in simplifying the approach.  However, the position of those who are unable to dissent needs careful consideration.

The interface issues will also need to consider the role of advance consent, and emergency holding powers.

What can we learn from the Coronavirus Act 2020?

In our previous briefings on this topic, we suggested that the areas for amendment were likely to be those topics that have been flagged by the independent review of the Mental Health Act, chaired by Sir Professor Sir Simon Wessely, the Regius Professor of Psychiatry at Kings College Hospital, which reported in December 2018.

However, when the Covid-19 pandemic hit, the Government enacted emergency legislation to address those areas of statute which it felt would need early amendment for the system to cope in a national emergency. These seem to be issues of systemic efficiency rather than being points that follow the more patient-centred approach outlined in the Queens Speech. There must also be a question as to whether the MHA amendments will be a priority for Government and Parliamentary time post virus when there will no doubt be said to be many economic challenges to consider first.

The Coronavirus Act is in force for two years unless brought to an end earlier. If there remains pressure on resources in the post-virus period, it is possible that some of the areas amended by that Act will be included as subjects for long-term review.

So what issues did the Coronavirus Act deal with? The areas addressed (although readers should check whether they were ultimately in force) were as follows:

Only one doctor’s opinion to be required to detain patients

Previously this had required two doctors certifying that the patient met the criteria for detention.  The emergency provisions reduced this to one doctor if obtaining a second opinion would be impractical or would involve undesirable delay.  One doctor did however have to be s.12 approved and to have personally examined the patient.

Suspending the SOAD review of treatment and medication decisions

Section 58 Mental Health Act required a second opinion before providing treatment without a patient’s consent.  The emergency legislation removed this requirement for a second opinion, where the approved clinician considered that would be impractical or there would have been undesirable delay.  The approved clinician was however required to certify in writing that the treatment without consent was appropriate and that he had consulted a person who had been professionally concerned with the patient’s treatment before providing the certification.

Extending temporary detention under s.5(2) and s.5(4)

The duration of detention under s.5(2) was extended from 72 hours to a maximum of 120 hours.  The emergency detention pursuant to s.5(4) was extended from 6 to 12 hours.

Tribunals to have one judge

Mental health tribunals could proceed with one panel member, as long as that was a legally qualified mental health judge.  There were to be no medical examinations of patients by a medical tribunal member.

These amendments therefore seem to be more indicative of emergency operational need rather than likely long term substantive statutory change.