| SPOTLIGHT |
Is Wales striking out alone on mental health reform? Alex Ruck Keene KC (Hon) looks at recent developments.
In a fascinating development, James Evans MS, who won the relevant ballot, is to seek to put before the Senedd in Wales the equivalent of a Private Members Bill to amend the provisions of the Mental Health Act 1983 so as to introduce significant parts of the reforms proposed by the Independent Review of the Mental Health Act. The proposals have the support of Mind Cymru; Adferiad; the Royal College of Psychiatrists; and the Royal College Mental Health Expert Advisory Group.
[Update, there was a unanimous vote on 13 December 2023 in the Senedd to allow the Bill to progress].
The Explanatory Memorandum to the proposal for a Mental Health Standards of Care (Wales) Bill explains how the Bill would:
A further change – not proposed by the independent Review – would be to introduce the provision for remote (virtual) assessment under ‘specific provisions’ relating to Second Opinion Appointed Doctors (SOADs), and Independent Mental Health Advocates (IMHAs). And further changes would be introduced to the existing Mental Health (Wales) Measure 2010 to ensure that there is no age limit upon those who can request a re-assessment of their mental health and to extend the ability to request a re[1]assessment to people specified by the patient.
The Explanatory Memorandum sets out a number of areas that were considered, but not advanced, as follows:
a. Placing a duty on clinicians to have regard to advance choices – the clinical checklist provisions. This is largely a codification of what should already be happening, and as a matter of good clinical practice could be progressed without legislation.
b. Shortening the period that a patient may be kept in detention for treatment so that a patient’s initial detention period will expire sooner and if the patient’s detention is to continue it must be reviewed and renewed more frequently. There are some resource implications to this in terms of clinician and others time to carry out the reviews more frequently.
c. Amending the frequency that a person may seek reviews through Mental Health Review Tribunals (MHRTW). This would result in a different regime compared to England and would have significant resource implications as the MHRTW would need greater capacity to deliver this.
d. Amending section 132 of the Act to place a statutory duty on hospital managers in respect of detained patients to supply complaints information to both the patient and the NP. Supply of information could be achieved without legislation. From April 2023 there is a legal duty of candour requiring NHS organisations in Wales to be open and transparent with service users, which includes talking to service users about incidents that have caused harm and apologising and supporting them through the process of investigating the incident.
e. Amending s.117 aftercare provisions to ensure the deeming provisions are consistent with other legislation. This relates to who is responsible for providing aftercare when a patient moves between different local authority areas. This has been a more significant issue in England than in Wales. Since we cannot legislate to change the system in England, Wales-only legislation would only serve to complicate matters around cross-border issues, and risks potentially creating cracks in the system.
f. Autism and learning disabilities. Changing in how the Act applies to patients with a learning disability and/or autistic people under Part 2 of the Act to end the practice of patients in this group being detained under the Act in unsuitable long-stay wards, in line with the principle of least restriction. Welsh Government are currently reviewing the Code of Practice for Autism Services. How neurodivergent people including autistic people receive support / treatment when diagnosed with co-occurring mental health concerns will be integral to this review.
It is perhaps of note that the proposed measure draws directly on the work of the Independent Review, rather than on the draft Bill put before the Westminster Parliament and, as such, for instance, proceeds on the basis that it is possible to put principles on the face of the MHA 1983. It is also of note that the measure does not seek to remove autism and learning disability – a proposal that had been put forward in the draft Bill, but which the Independent Review had not called for as it did not consider that such would solve the problem of unnecessary and unnecessarily extended detentions of autistic people and those with learning disability.
Assuming that this progresses, this is a striking development by contrast to the legislative silence that has descended in England. It also raises the prospect of some interesting devolution issues to navigate as regards (for instance) the application of the statutory principles to Part 3 patients.
For those wondering whether an enterprising MS might take the opportunity of introducing an equivalent provision to bring into force the LPS or an equivalent thereof in Wales, the answer is such lies outside the legislative competence of the Senedd (otherwise, given the furious response of Welsh Government to the delay, it is entirely likely that it would have sought to do itself).
Alex Ruck Keene KC (Hon) is a barrister at 39 Essex Chambers. This article first appeared on his Mental Capacity Law and Policy blog.
