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Legal changes

We take a look at the key reforms that form the new Mental Health Bill.

When Theresa May was Prime Minister, she announced a reform of the Mental Health Act. A formal independent review was subsequently undertaken, chaired by Prof Sir Simon Wesseley and subsequent Queen’s Speeches have confirmed the government's commitment to “reform and modernise" the Act. The Bill has recently been published, together with explanatory notes and a Memorandum to the delegated powers and regulatory reform committee.

Purpose

The Memorandum states that the purpose of the Bill is to "reform and modernise the MHA to provide an effective framework for services to support people experiencing the most serious mental health conditions. These reforms will ensure that patients are more empowered, have more choice and influence over their treatment, and receive the dignity and respect they deserve."

Content of the Bill

The Bill does not repeal the existing Mental Health Act 1983 but rather amends its provisions, as has been done previously.

The draft Bill makes changes which are arranged under 14 headings as follows:

  • Autism and learning disability
  • Grounds for detention and community treatment orders
  • Appropriate medical treatment
  • The responsible clinician
  • Treatment
  • Community treatment orders
  • Nominated persons
  • Detention periods
  • Periods for applications and references
  • Patients concerned in criminal proceedings or under sentence
  • Help and information for patients
  • After-care
  • Miscellaneous 
  • General.

What are the reforms?

We will look at the key reforms in separate briefings, similar to those previously published. However, in summary and by way of overview the draft Bill proposes reforms to these issues:

  • The detention criteria to ensure that detention and treatment is necessary and that there are more frequent reviews and appeals
  • Patients’ rights to be involved with the planning of their care and to make choices and refusals regarding treatment
  • The role and powers of people who represent patients including the nearest relative
  • The detention of people with a learning disability (“LD”) and/or autism where there is no co-occurring mental health condition
  • The duties on commissioners to improve understanding of the risk of crisis among those with LD and/or autism
  • The criteria for the use of community treatment orders
  • The use of places of safety, abolishing police stations and prisons as appropriate settings for this
  • The transfer from prison to hospital for prisoners with severe mental health needs by introducing a new 28 day time limit to speed up access
  • Supervised community detention for patients convicted of crimes who are ready for discharge from hospital but who require continuing deprivation of liberty in the community.

Appropriate medical treatment

The test of ‘appropriate medical treatment’ has been in the Mental Health Act (“MHA”) since the last major round of amendments. However, in accordance with the principle of therapeutic benefit, the draft Bill inserts a new requirement that when considering whether medical treatment under the MHA is appropriate for a patient, consideration has to be given to review whether there is a reasonable prospect that that treatment will have a therapeutic benefit for that patient. 

The existing definition of medical treatment requires treatment to have a therapeutic benefit (see section 145(4)) and the amendment therefore has the effect of ensuring the definition of appropriate medical treatment applies throughout. Appropriate medical treatment must have a reasonable prospect of alleviating or preventing the worsening of the patient’s mental disorder, or one or more of its symptoms or manifestations.

The new definition will apply to the detention criteria under Section 3 and the criteria for a CTO under Section 17A. Therefore, if a patient is to be detained or to be put on to a CTO, there has to be a reasonable prospect that that detention or CTO will result in a therapeutic benefit to the patient.

The new nominated person

One of the expected amendments to the Mental Health Act is the proposed amendment to the role of the nearest relative. The draft Mental Health Bill introduces a new statutory role of nominated person (NP) who replaces the nearest relative (NR).

Previously the NR had been a person from a hierarchical list of relatives but it was plain that service users were unhappy with this, particularly where the relationship with the statutory NR was difficult, or even the source of abuse. 

How will this be implemented?

The proposed amendments will allow a patient to select the NP to exercise all the statutory functions previously held by the NR. It is part of a wider policy initiative to empower patients and reflect their views in support of the principle of choice and autonomy.

The Bill anticipates that an NP will be selected by the patient:

  • In advance of the detention via a document signed by the patient and validated by a health or social care professional (this would include when a patient has been admitted to hospital informally);
  • At the time of a MHA assessment – the AMHP would check if a nomination has previously been made or if not ask the patient to do so at that point;
  • Following detention.

In each case, this assumes the patient has capacity to make such a decision. If the patient lacks capacity and no nomination has been made, then an NP can be appointed by an AMHP until the patient has capacity to do that themselves. 

The NP will have all the rights currently held by the NR and, in addition, will have new rights to be consulted about statutory care and treatment plans, transfers between hospitals, renewals, and extensions of detention or a CTO. The NP will have the power to object to detention and to the use of a CTO.

Under the existing Act, where an NR was acting unreasonably, an application could be made to displace them from that role. The Bill proposes that a new regime will apply. As the patient will have nominated the NP, it is important that their views are taken into account, but equally, there may be occasions where they need to be overruled on a temporary basis. This power to overrule would apply to the right to object to detention, the use of a CTO or an application for discharge.

Alongside the power to overrule, the county court will retain the power to terminate the appointment of an NP. An application for termination may be made by the patient, an AMHP, or any person engaged in caring for the patient or interested in their welfare. Such an application would be made on the grounds that:

  • The NP is unreasonably objecting to an application for admission for treatment or guardianship; or
  • Without regard to the welfare of the patient or in the interests of the public, the NP has exercised the power of discharge or is likely to do so; or
  • The NP unreasonably objects to the making of a CTO; or
  • The patient has done something which is clearly inconsistent with the NP remaining as such; or
  • The NP lacks capacity or is otherwise not a suitable person to act as NP.

Schedule A1 to the Act includes detailed rules on the appointment of an NP, including the relevant documentation, and the process for the appointment of an NP by an AMHP.

A new approach to Community Treatment Orders

Community Treatment Orders (CTOs) were brought in by the 2007 amendments to the Mental Health Act (MHA). Now, some 14 years later, it is felt that these are overused and the draft Mental Health Bill (the Bill) sets out a number of proposals, seeking to restrict and regulate their use.

S17A of the MHA allows a patient who is detained in hospital to leave the hospital setting and be treated in the community under a CTO if certain criteria are met.

The changes to the use of CTOs, reflect the Bill’s key principles:

  1. Choice and autonomy — ensuring that patients’ views and choices are respected;
  2. The least restrictive option — ensuring that MHA powers are used in the least restrictive way possible;
  3. Therapeutic benefit — ensuring patients are supported to recover so that they can be discharged from the MHA; and
  4. The person as an individual — ensuring patients are viewed and treated as individuals.

Changes to the criteria for a CTO

As well as the existing criteria, the Bill includes a new two-part test that must be fulfilled to meet the criteria for detention (the amendments to the criteria will be subject to a separate briefing), renewal and for the use of CTOs:

  1. Serious harm may be caused to the health or safety of the patient or another person, if they are not detained or made subject to a CTO; and
  2. The decision maker must consider the nature, degree and likelihood of the harm, and how soon it would occur.

Conditions on a CTO

The draft Bill alters the basis required in order to impose a CTO condition. Subsection (1) of Clause 20 of the Bill, provides that a CTO may only be used where ‘necessary’ for that particular patient. Previously, conditions could be used where ‘necessary or appropriate’.

Removing the ability for conditions to be imposed where simply ‘appropriate’, aligns with the principle of therapeutic benefit, by ensuring that conditions are only imposed where there is a strong justification for their use. It removes the need for a complex assessment of what is ‘appropriate’ for a patient, which may well be contentious, and helps ensure patients are treated as individuals.

The role of the Community Clinician

A patient who is subject to a CTO will have been placed on this by their responsible clinician (RC). Once in the community they will be supervised by a community clinician who may or may not be the same person as their RC.

The Bill aims to bring the Community Clinician to the forefront of any decisions in respect of the patient’s CTO to assist with continuity of care. This includes the core decision to impose a CTO, vary its conditions, or discharge the CTO altogether.

The main proposals can be summarised as follows:

  1. The Community Clinician must approve the CTO conditions, in addition to the approved mental health professional as is currently required;
  2. The RC must consult the Community Clinician before varying or suspending any conditions;
  3. The Community Clinician must be consulted before the RC recalls a patient back to hospital;
  4. The Community Clinician must be consulted before a CTO is revoked and the patient placed back under section, the CTO is extended, or it is discharged.

New detention and renewal criteria

The draft Bill proposes an amendment to the criteria for detention under sections 2, 3 and 5 of the MHA, and of necessity the same changes will apply to the criteria for renewal of detention and in relation to community treatment orders. There will be a separate briefing in this series on the changes to CTOs.

The amendment to the detention criteria focuses on the level of risk that a patient must pose in order to be detained under the MHA. The intention is that patients can only be detained if they pose a risk of serious harm to themselves or others. This amendment reflects one of the key principles enshrined in the Bill, namely to ensure that powers are used in the least restrictive way possible.

The Bill expressly adopts four of these key principles:

  1. Choice and autonomy — ensuring that patients’ views and choices are respected;
  2. The least restrictive option — ensuring that MHA powers are used in the least restrictive way possible;
  3. Therapeutic benefit — ensuring patients are supported to recover so that they can be discharged from the MHA; and
  4. The person as an individual — ensuring patients are viewed and treated as individuals.

The Bill proposes to adopt two new tests that must additionally be met to fulfil the criteria for detention:

  1. Serious harm may be caused to the health or safety of the patient or another person, if they are not detained; and
  2. The decision maker must consider the nature, degree and likelihood of the harm, and how soon it would occur.

Continued detention after conditional discharge from hospital

Restricted patients are those patients who have come to be detained in a psychiatric hospital by the Secretary of State (SoS) following their involvement in criminal proceedings. The SoS, in sufficiently serious cases, has the power to impose additional restrictions on decisions relating to leave and discharge meaning that, in the main, decisions around leave and discharge are reserved to the SoS. The SoS has the power to discharge both absolutely and with conditions as does the Tribunal. Where a patient is discharged conditionally they remain subject to recall to hospital.

This issue is important as practitioners and patients within forensic services will often see the move from hospital into a community setting as a necessary and positive part of that persons treatment. In our experience mental health professionals in planning for and facilitating step down arrangements, will often and following assessment, determine that a degree of supervision in the community will be necessary at least for a time, in order to transition from hospital to the community safely. The basic marker for what constitutes a deprivation of liberty has broadly come to be defined as an inability for the person to leave (i.e. of their own free will and within the boundaries of available resource, move and go to live wherever they please) and is under continuous supervision and control in the absence of a valid consent.

The question of consent is interesting as if a patient consents to the confinement, it is not technically a deprivation of liberty. Whilst the case law does not appear to have drawn any firm conclusion  on this point, the Courts have questioned whether a true consent can in fact be given when your choices are between one species of detention and another. As such the focus has been on whether conditions can lawfully be imposed that amount to a deprivation of liberty and is a question that has been in and out of the Court since the introduction of the most recent iteration of the MHA in the 1980’s.

The Courts have been fairly clear on this point, that such conditions are not lawful, with some minor fluctuations, firstly to the effect that a person could not be discharged to another hospital and then in 2002 that a patient could, providing the patient was not deprived of their liberty.

The issue was then before the Court of Appeal in 2011 in reviewing a decision of the upper Tribunal that ‘discharge’ in the conditional sense, did not necessarily mean from liability to be detained. In this case – and whilst there was no consideration of the effect of the patient’s consent - the Court dissented from the Upper Tribunal’s conclusion and decided that conditional discharge into conditions of a further deprivation of liberty were not compliant with Article 5, as further detention during conditional discharge was amongst other things insufficiently prescribed by law – a

requirement for lawful detention under Article 5 which protects our right to liberty – in that further detention as part of a conditional discharge was not expressly written into the MHA.

The question came to be considered once more by the Supreme Court in 2018. The appeal arose from a decision of the Upper Tribunal to the effect that compliance with a care plan (containing a continued deprivation of liberty upon discharge) would get round the problem as they saw it. The Supreme Court found (as other Courts had before) that there was no express authority within the MHA to provide for a continuing deprivation of liberty as part of a conditional discharge, whether or not the patient consented, and that any such detention was not therefore ‘prescribed by law’ - which is a requirement enshrined in Article 5 of the ECHR – and as such, was unlawful.

This tension between the need, as clinical teams can see it, to carefully manage and test the patient’s return to the community vs the lack of a legal basis upon which to impose the degree of control and supervision necessary, was seen (often by all involved) to affect that patient’s ability to progress down their treatment pathway, with the potential for people to be spending longer in hospital than needed.

Following the MM case, the Prison and Probation Service (PPS) - who oversaw restricted patients - issued guidance in January 2019 saying that it ‘recognises that there are some patients already living in the community subject to conditions amounting to a deprivation of liberty and, therefore, unlawful conditions’. The PPS solution (pending further legislation) was for the treating authority to either recall the patient and grant long term s17 leave and/or ask the Tribunal to defer conditional discharge (a power it has) pending an application to the Court of Protection for an order authorising the detention or for an authorisation under the Mental Capacity Act (MCA) deprivation of liberty safeguards. The draw back with the MCA is that the MCA only applies to persons who lack capacity in the requisite areas and is an Act that expressly disapplies itself where the matters in question fall under the auspices of the MHA, so may not be a workable solution in most cases. On the other hand whilst long term s17 leave runs the risk of an argument that the patient no longer needs to be in hospital for treatment and should therefore be discharged absolutely, the fact that there is not yet a safe and lawful way to achieve a trial community discharge with the necessary supervision and oversight, such that the hospital consultant needs to remain involved to oversee the success of the community placement, provides a basis for argument that there is still a necessary component of hospital care required. This makes the chance of a premature and unsafe discharge by the Tribunal less likely, although this is not always an easy position to sustain.

Proposed Resolution

It is this dichotomy that the Draft Mental Health Bill 2022 has sought to address through its proposed addition of an express power granted to both the Secretary of State and the Tribunal to direct conditional discharge into an arrangement that amounts to a continued deprivation of a person’s liberty.

In the case of the Secretary of States’ power to discharge subject to conditions amounting to a deprivation of the patient’s liberty, and according to the Draft Bill the Secretary of State must be satisfied that the conditions are necessary for the protection of the public from serious harm.

In the case of the Tribunal, the Draft Bill as it currently stands provides that the Tribunal can now direct a conditional discharge that amounts to a deprivation of the patient’s liberty where it is

necessary for the protection of another person from serious harm if the patient were discharged from hospital and is also satisfied that for the patient to be discharged subject to those conditions would be no less beneficial to their mental health than for them to remain in hospital.”

Where conditions do amount to a continuing deprivation of liberty, the Draft Bill also includes greater access to the Tribunal for a such a patient. The Draft Bill proposes that the patient shall be entitled to apply from between 6 months and 12 months after the start of the depriving condition and two yearly thereafter. The non-deprived conditionally discharged patient’s window starts (as has been the case previously) from between 12 and 24 months and  once every two years thereafter.

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