Right! – legal eagles may be keen to know the summary of what’s inside the Wessely Review of the Mental Health Act. Standard caveats apply: this is not the whole thing, it’s written mainly for the police / paramedics towards whom this blog tends to be addressed. I’ve tried to touch just on those areas I would want professionals to understand so they know the context in which they’re conducting their business and also anything which would directly affect their work in practice. This is split in to two sections –
- The changes to old stuff you should already be familiar with.
- The introduction of new ideas, which by definition, you won’t be familiar with!
We’ll do this relevant section by relevant section: section number (what it currently relates to in today’s act) – followed by a description of how it may be changed.
- Admission to Hospital
- Section 2 (admission for 28 day assessment) – this will still last for 28 days, but that should be considered in the future as two distinct 14 days blocks. A new statutory Care and Treatment Plan (CTP, see below) written within seven days and reviewed within 14 days will lead to decision half-way through the s2 detention, if not before, as to whether the patient will be discharged, further detained under s3 MHA or whether the second 14 day block of s2 assessment is required, which must be for a reason which documents why detention under s3 MHA cannot yet occur. The patient would still have a right to apply to the tribunal within the first 21days of their s2 admission – because if they apply after 21days, the tribunal may not convene before the s2 expires anyway.
- Section 3 (admission for treatment) – admission currently lasts for up to 6 months in the first instance and is renewable for a further 6 months; and then in 12mths extensions (6-6-12, if you like). The proposal is that it be changed to 3-3-6-12 and that instead of having just one right to appeal to a tribunal in the first six months, the patient has two. In addition, the report recommends that the Code of Practice be changed to suggest that admission to hospital should occur more frequently under s3 MHA, especially where the patient has been detained under s2 within the previous 12 months. The idea is that s3 is more appropriate because, amongst other arguments, patients detained under s3 have greater rights on discharge, than those under s2 and it was felt that s2 was being used too often, at the expense of those.
- Community Treatment Orders
- Section 17A (community treatment orders) – currently RC and an AMHP authorises a CTO and person is discharged. Proposal is to require the community consultant to be a second DR authorisation: so a CTO will require an AMHP and two doctors, just like a section of the Act. This time, AMHP, inpatient Doctor and outpatient doctor. In addition, the CTO will last for 6-6-12, but up to a maximum of 2yrs. If it is to continue beyond 2yrs, it must be fully authorised afresh, by an AMHP and two Doctors.
- Nearest Relatives Rights
- Section 26 (nearest relatives) – the proposal is that the current Nearest Relative scheme be replaced by a nominated person (NP) scheme in advance of detention or at the point of it. Patients would have the right to nominate the person they wish to exercise those functions under the Act, as long as they are well enough to have capacity to make that choice. In the absence of capacity or amidst other difficulties, the AMHP undertaking the assessment would be able to nominate an interim NP (INP), probably based on something similar to the current NR hierarchy. So the AMHPs may still get to do their, “Who is Harry Potters interim nominated person?” quizzes at their CPD events and Christmas parties.
- The Criminal Justice System
- Section 35 – this would be amended to allow Magistrates to remand defendants to hospital for psychiatric reports on their first appearance at court; and after a ‘finding of fact’, etc.. This is significant because in police custody we often have the situation where someone is so unwell they need hospital admission, but they have offended in a non-trivial way whilst unwell and there is a reluctance to admit patients to acute adult psychiatric units because of the risk presented. This amendment would allow Part III of the Act to get going with psychiatric reports ahead of criminal justice processes.
- Section 36 – similar amendment as per s35 MHA, above; but this power is for Magistrates to remand someone for treatment after their first appearance, etc..
- Section 131 (voluntary admission) – the report suggests that this provision of the Act be moved to the top of the new or amended Act so it sits just about the provisions for s2 and s3. (So whether we end up with a new Act renumbered, or whether a s1A MHA is inserted containing the new version of s131, the excitement of numbering sections is almost too much to bear!) but the serious point is that provisions around voluntary admission will be emphasised and made more prominent, with an emphasis on ensuring voluntary admission wherever possible.
- Section 132 (rights in hospital) – where patients are admitted to hospital (or to a Place of Safety) rights whilst there should be explained and the report suggests in the future that this includes improved and clearer complaints procedures which need to be made known to both the patient and their NP (or INP).
- Section 135 – proposal is an end to the use of police stations as a Place of Safety be removing that from the definition of s135(6). It is also suggested that instead of just saying ‘hospital’, the definition contains something more precise, like “health based place of safety” or “s136 suite”. See below for discussion on the detail of things relating to the police.
- Section 136 – no mention in the report of whether or not this provision should be extended to private premises, which is something I raised during the year; but there is suggestion that the power should be able to be brought to an end if a health professional or senior police officer (inspector?) believes a MHA assessment is not necessary. This would address my long-standing concern, for example, about de facto detention ahead of street triage advice or intervention. It is also suggested there should be a nationally mandated ‘handover’ process for s136 detentions. Again, see below discussion section.
- Section 140 – there should be a new emphasis on the importance of s140 to ensure urgent admissions processes, including a timescale by which to do it. The ‘no bed’ situation should be catered for in joint policies about MHA assessments and admission. Again, see discussions section, below.
- Care and Treatment Plans – an amended Act would introduce statutory CTPs, which must be formulated within 7 days of admission and then reviewed and signed-off by 14 days. This should detail the treatment a patient can received and they would have a right of objection via a tribunal. To give just one example, if a doctor recommended treatment A and the patient prefers treatment B which is not thought to be as effective, they would have a right to treatment B in certain circumstances.
- Improved Tribunal Rights – for various reasons under an amended Act, patients would have increased rights to take any objection to detention or treatment to the Mental Health Tribunal, which is part of Her Majesty’s Courts Service. This tribunal would have the right to determine resolutions to conflicts between patients and clinicians and the Act would ensure fewer failed tribunals by insisting that clinicians confirm the need for ongoing detention 10 days ahead of any tribunal.
- Death in detention – I was surprised and very pleased to see a section within the review on investigations in to unexplained or unexpected deaths in hospital whilst patients are detained under the MHA. This moves towards the process we have in prison or police custody where there is greater scrutiny of deaths. Of course, a number of patient deaths under the MHA (or DoLS, for that matter) involved elderly patients, for example with dementia, dying of natural causes. These new provisions would not relate to those and the report recommends the introduction of a Family Liaison role during investigations which do occur as well as legal aid funding for Coroner’s Hearings.
- Detention criteria – the report offers the view the detention criteria for hospital admission are quite vague. It is proposed this vagueness leads to risk aversion and admission even where treatment options may be limited. The proposal is that the threshold for admission should be either “significant” or “substantial” harm, revised in this way because of developing human rights standards in international law. One phrase used in the report which might cause concern around how this proceeds is the need to “give professionals the backing they need to take more risks with risk.“
- Emergency Departments – the report touches upon difficulties in Emergency Departments with suicidal patients leaving hospital and having considered whether or not s5 MHA should be extended to cover those areas of hospitals, the proposal in the end was to further amend s4B of the Mental Capacity Act 2005, to cover situations in which a suicidal person wants to leave. There is a Mental Capacity (Amendment) Bill moving through Parliament at the moment and the report recommends it should be further changed to allow for emergencies. See discussion, below.
- Policing Data – and finally, the report recommends that data published by the police or Home Office in use of s136 and use of police vehicles for conveyance should be done quarterly, and as near to real-time as possible. This would be to assist in driving progress in reducing cells as a Place of Safety and reduction in conveyance by police vehicle.
MY INITIAL REACTIONS
Just to pick out a few things from all of the above! – the handover process for s136 is something I was asked to do specific work on. It is important we get that right because two things are at risk: officers being retained in health-based places of safety for hours or days on end, purely because no-one commissioning the service worked out how to staff those facilities at all. Equally, there are examples around of police officers leaving vulnerable, sometimes challenging, patients in health-care settings when the NHS are not ready, willing or able to manage them and we know this has led to assaults on NHS which are undefendable. Striking the balance is vital because both things are intolerable and in fairness, striking this balance has always been required by the Royal College of Psychiatrists Standards on the use of Section 136 (2011; 2013) and I suggested to Professor Wessely that between now and the introduction of any new Act, the NHS and police will need to ensure that all s136 PoS provision gets to those 2011 standards to allow for the removal of police custody as a Place of Safety. By the time we learn the 2019 figures for the use of police custody, my guess is we will have just a double-digit number of detainees from custody so it’s nearly there anyway.
Many of the most frustrating problems in policing today relate to officers sitting for hours and hours, if not days, waiting for beds to be identified to which patients can be admitted. The welcome focus on s140 is a positive thing, not least because I’m going to a workshop in Manchester in eight days’ time about how we start to make this legal duty something which turns in to meaningful practice in the real world, impacting upon the (roughly) 4,500 unlawful detention in police custody pending beds being found. It should be borne in mind that this is the figure of delays following criminal arrest; there will be more following use of s136 MHA. (If the Cabinet Office estimates of one problem in every two admissions, that means another 2,500 unlawful detentions. This problem needs fixing, but as per my original post on this report, my worry is not about the certain necessity of the proposal, but on whether the services can be resourced or changed to ensure the non-legal matters are attended to in such a way as to mean this will work.
The Emergency Department proposal is interesting! – apart from the need for clarity in ED, one particular problem has always been the capacity of ED staff and / or their security contractors, to actually restrain people. The proposal in the report is expressly couching this new power as being something to allow ED to handle these situations without calling the police. This will need some careful understanding and defining as things go forward, because by amending the MCA 2005, they are amending legislation which does not direct its authority at particular professions or organisations. It will be perfectly possible after this proposal becomes law, for NHS staff to make the argument that the police should give effect to the compulsion they’ve decided to authorise. Keep an eye on this one as it could be an example of what I highlighted in the first blog – that unless we do this stuff carefully, even well-intentioned reform will increase reliance upon the police to administer the coercive side of the (mental) healthcare system.
Winner of the President’s Medal,
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All opinions expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2019
I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current. Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.
Government legislation website – http://www.legislation.gov.uk