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Mental Health Act reform – draft legislation now announced

In the Queen’s Speech this week, it was announced that draft legislation would be brought forward to reform the Mental Health Act in England and Wales. Alex Ruck Keene looks at what we know so far.

The background notes to the Queen’s Speech provide in relevant part as follows:

The purpose of the draft Bill is to:

  • Ensure patients suffering from mental health conditions have greater control over their treatment and receive the dignity and respect they deserve.
  • Make it easier for people with learning disabilities and autism to be discharged from hospital.

The main benefits of the draft Bill would be:

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  • Modernising the Act so that it is fit for the 21st century and provides a framework for services in which people experiencing the most serious mental health conditions can receive more personalised care, with more choice and influence over their treatment and a greater focus on recovery.
  • Helping to address the existing disparities in the use of the Act for people from ethnic minority backgrounds – especially for detentions and for the use of Community Treatment Orders.
  • Ensuring that detentions only happen where strictly necessary.
  • Improving how we support offenders with acute mental health needs, ensuring they have access to the right treatment, in the right setting, at the right time – with faster transfers from prison to hospital, and new powers to discharge patients into the community while ensuring the public is protected.

The main elements of the draft Bill are:

  • Amending the definition of mental disorder so that people can no longer be detained solely because they have a learning disability or because they are autistic.
  • Changing the criteria needed to detain people, so that the Act is only used where strictly necessary: where the person is a genuine risk to their own safety or that of others, and where there is a clear therapeutic benefit.
  • Giving patients better support, including offering everyone the option of an independent mental health advocate, and allowing patients to choose their own ‘nominated person’, rather than have a ‘nearest relative’ assigned for them.
  • Introducing a 28-day time-limit for transfers from prison to hospital for acutely ill prisoners and ending the temporary use of prison for those awaiting assessment or treatment.
  • Introducing a new form of supervised community discharge. This will allow the discharge of restricted patients into the community, with the necessary care and supervision to adequately and appropriately manage their risk.
  • Increasing the frequency with which patients can make appeals to Tribunals on their detention and provide Tribunals with a power to recommend that aftercare services are put in place.
  • Introducing a statutory care and treatment plan for all patients in detention. This will be written with the patient and will set out a clear pathway to discharge.

It has been some considerable time since Sir Simon Wessely’s review reported (full disclosure, I was the legal adviser), and much has happened in the interim with the potential to derail legislation. There remains the potential for derailment still, but the commitment in the Queen’s Speech is very significant.

The White Paper published in response to the Review’s recommendation adopted the vast majority of the Review’s recommendations. Many will no doubt be parsing these background notes carefully to get a better sense of what may be in the draft legislation as it moves forward. One obvious omission is any reference to placing the ability to make advance choice documents on a statutory footing, which many will be looking for. However, until we get the draft legislation it is not possible to say whether this is because this is not being taken forward – which would be surprising given how central a part this played in the thinking of the Review – or whether the government are going to tackle the question in a different fashion.

That the bill is being proposed in draft, to be subject to pre-legislative scrutiny, may frustrate some, but for my part is important to enable non-partisan stress-testing. I would hope (and anticipate) that the stress-testing would include a particular focus on the proposal in effect to remove learning disability and autism from much of the scope of the MHA, which had not been a recommendation coming from Sir Simon’s review. Whilst coming from an entirely legitimate and understandable desire to try to stop the inappropriate detention of people with these conditions, for my part I have grave doubts that, in isolation, this change would achieve this as opposed to leading to the use of an alternative framework (the Mental Capacity Act) to authorise detention of those in crisis. A serious discussion is needed, and I would hope could take place during pre-legislative scrutiny, as to whether such would actually achieve the goal being sought.

In a post I wrote when the Review report was published, I said:

You should, of course, read the whole report, but the easiest way to summarise the 154 recommendations is to set out how things would look in December 2028 when (not, of course if) the recommendations have been implemented and have had time to bed down. At that point, we would have a system: 

    • In which there are more alternatives to detention (including alternatives proposed and developed with service users, and those for people with learning disability and autism, for whom entry into hospital, whether formal or informal, almost invariably reflects failure in another part of the system even more starkly than for others).
    • Where, if people are admitted to hospital, admission is truly informal wherever possible. Where it is not informal, the default will be that treatment is on the person’s own terms, any other course of action being deliberately difficult for the relevant professionals to take, and subject to an effective right of challenges;
    • Stays in hospital are short, targeted, and purposive. Any other course of action will be difficult and painful for those seeking to justify it. Where the justification is a system failure, there will be a tribunal able to take appropriate action to unlock it.
    • Where we as a society are in the position to make an informed decision as to whether we should move beyond separate mental health legislation.

I do not underestimate the potential for things to go awry, but so far, it seems to me that this hope remains a valid one. I am also very conscious that there are many who consider that the Review should have taken a stance that admission and treatment for mental health treatment should only ever be on the basis of capacitous consent. For the reasons set out in some detail in the Review report, that conclusion is not compelled by either the ECHR or the text of the Convention on the Rights of Persons with Disabilities. That, though, does not of course mean that this is a direction of travel which should not be considered. The Review set down five ‘confidence tests’ for a move towards capacity-based legislation, which would mean that admission/treatment could never be lawful where the person capacitously refuses. They were (1) the views of service users (the term adopted by the Review); (2) the impact of ‘fusion’ legislation in Northern Ireland (still, frustratingly, not yet fully in force); (3) whether the assessment of capacity is reliable enough to provide the sole basis for care and treatment; (4) that associated processes are adapted to support the change; (5) whether capacity-based legislation can take into account what is in the public interest. Whilst the White Paper published in response does not expressly adopt these tests, I would suggest that these remain important tests for all those concerned with law reform to engage with, as laying the foundation stones for the MHA 2032.

Alex Ruck Keene QC (Hon) is a barrister at 39 Essex Chambers. This article first appeared on his Mental Capacity Law & Policy blog.

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