The Mental Health Act Review

I think I quite like the Mental Health Act review – I never expected the UK to rip it up and adopt a fully UN-CRPD type legal framework and I think the review chair, Professor Sir Simon Wessely, was right to have in mind throughout that whatever he recommended, it’s pretty much pointless unless it makes is way from review report to Act of Parliament and changes the world. To get through Parliament at all will be difficult – it took 8yrs from the last review reporting to achieve Royal Assent for the 2007 Mental Health Act. So being pragmatic was in the hope of making some positive differences was the right way to go, in my view. Remember, the first attempt to legislate after the 1999 Richardson Review turned in to the Mental Health Bill 2004 which failed in Parliament – the 2007 Act came from a compromise Bill, the second attempt to ‘do something’.

So given the state of the real world, I can say that I like this report after having read all 307 of its pages. This post is not going to be a summary of its contexts, extended or otherwise, because I think the one important thing to bear in mind is sufficient to make a post and I’ll probably get around to some specific comment on its contents if I write more on this over the Christmas period when I have fewer work commitments. I want to just remind everyone that the MHA review publication comes little more than a week after Her Majesty’s Inspectorate of Constabulary published a thematic inspection of policing and mental health, provocatively for some entitled “Picking Up the Pieces“. The review itself is about much more than policing, but let’s remember that policing was considered a major theme in the second phase of the review; whereas the HMIC report focusses purely on policing, for obvious reasons.

The content of these reports overlapping, they chose to emphasise roughly similar things: delays in hospital admissions connected to bed availability for those requiring inpatient care; over-reliance upon the police to convey patients in police vehicles, which must be reduced; and police waiting in s136 suites for hours, if not days, after use of their main power under the Act. Of course, these two documents could be piled on top of many others: the Home Affairs Committee report on Policing and Mental Health (2015); the Angiolini Report (2017); the Adebowale Report (2013); and the Bradley Review (2009) to name just a few. We also need to name the Crisis Care Concordat (2014) which attempted almost five years ago to bring together all those agencies at national and local level who bring something to bear on crisis care and prevention, to understand the overlaps and plug the gaps that exist in every area of the country, to one extent or another.

TAKING THE REVIEW FORWARD

The Government have indicated they will provide a more detailed response to the Wessely Review in early 2019, roughly coinciding with the 5th anniversary of the Crisis Care Concordat and leading up to 10th Anniversary of the Bradley Review. Can you see where I’m going with this?! … we’ve been trying to address problems with service provision for (let’s just say) a decade and we’re still not there yet. There is another 10year long-term plan under construction for the NHS as a whole. Sir Simon Wessely himself said at yesterday’s launch event in London that the Review cannot be taken in isolation and that he’s hopeful the forthcoming 10yr will lead to greater funding of mental health services to provide for the alternatives to hospital admission which will be required if the implications of his legal reforms are to succeed.

Sir Mark Hadley, retired High Court judge and vice-chair of the MHA Review pointed out “No Mental Health Act ever helped any one who was ill – skilled care and support did that. The law sets the culture within which that care is given”. In other words, legal reform, of itself, won’t achieve anything – service reform is also going to be required, but that’s been true for a number of years. So my concern rests not with the review – I really quite like it and the report’s recommendations were never going to give everyone all the things on their MHA Christmas List. I want to make sure that the way in which the legal reform is done, takes care of some concerns about the impact on police resources and the broader role of the police; whilst I may have a few questions about some of the particulars not fleshed out in the review, I think Sir Simon has done really well here to come up with something that gives most people something that they want; which provides a better balance between autonomy and restriction.

But my concern is whether or not the necessary non-legal issues will be taken care of by the NHS, the police and the other relevant agencies before any new Act of Parliament amends our existing laws. This review is not going to see a brand new Mental Health Act: it’s going to see an amending Act, like the MHA 2007, which changes existing legislation. But the effect of the recommendations is going to require more ambulances to convey more patients than is currently the case; it will require more place of safety services and unless we want police resources decimated, they will probably need more AMHPs, easier access to mental health beds for those requiring admission; and crucially, this will all be necessary if we are to avoid unintended displacement of demand to #Team999 and Emergency Departments. That’s the big risk of not doing this properly, in my view and it’s been the consequence of most reforms of the last 15yrs so I feel entitled to be a touch nervous.

DISPLACING DEMAND

You’ll notice over the last 10yrs, when concerns are raised about demand being displaced or deflected to the police, one of the generic reactions is to implore everyone to get out of their silos and ‘work together in partnership’ or some similar words. The problem with this almost unobjectionable sentiment is that some things require us to be firmly in our silos for some of the issues. Giving medication is never going to be the role of the police – that must sit with clinicians in their clinical silos! There are plenty of examples at the interface of policing and emergency mental health where the law, Codes of Practice or professional guidelines make particular functions the job of one kind of professional; or one of the organisations. There is always plenty of scope, of course, for improved collaboration and blurring of boundaries; but the Wessely review implicitly observes the need to re-dress the balance of some issues: reducing conveyance by the police and increasing conveyance by the ambulance service or others commissioned for the purpose, to give just one example.

Taken as a whole, the report implies – to me at least – that if we’re ‘raising the bar’ on thresholds for and admission and Community Treatment Orders; and if we’re trying to increase community care, we’ll need community assets and supports which don’t exist today. Provision of this will be complicated and history offers certain clues as to some of the potential obstacles. The money given by Government to NHS England for healthcare is partly retained by them to provide certain specific services like the commissioning of ‘tier 4’ beds for Child and Adolescent Mental Health services and secure (forensic) mental health services. They then give a large amount of the remaining budget to the +200 Clinical Commissioning Groups who are, in turn, responsible for commissioning the various kinds of community and inpatient mental health services which provide day-to-day care alongside the police and others. This includes the main community mental health teams, acute adult admissions wards, psychiatric intensive care units and place of safety services, to name just a few examples.

Some CCGs spend as little as 6% of their budget on mental health; others nearer 20% – this is quite a difference! The decision about proportion of spend is initially with CCGs but NHS England have issued directives about increasing the amount of spending on mental health over the period of the Five Year Forward View. A few years ago, the overall spend in England on mental health services was 13% of the NHS budget; it was reduced to 10% or just under over the last time I checked. In the recent announcement by the Government of an additional £20bn, they suggested that at least £2bn would be spent on mental health services, or roughly 10% depending on what ‘at least’ means. But how certain can we be that additional spending will ensure that by the time any new Mental Health Bill becomes law and takes effect, that we will have sufficient alternatives to admission, places of safety and ambulance services to mean that the over-reliance upon the police identified by HMIC and now the Wessely Review can be addressed so that the law has the intended effect?

UNINTENDED CONSEQUENCES

As with everything, there could be considerable unintended consequences if we have more community care without improved community provision; the police who have used powers under s136 will not be able to avoid conveying patients by police vehicle unless there are alternatives available to them within a reasonable time and such a timescale is always going to have to be measured in minutes, not hours, if it is to be considered reasonable and realistic. Raising the bar for inpatient admissions and community treatment orders means, in my view, the greater potential for the police to be called to a higher number of situation involving high acuity patients who currently may be sectioned. Psychiatrists can be found on Twitter at the moment commenting on how they feel force to have patients in the community without adequate support, because of early discharge that is not always grounded in clinical decision-making, but driven by resources.

Over the last decade, we have seen very significant rise in the amount of mental health related demand being faced by the police, ambulance and emergency departments. The risk here is, if law reform is not accompanied by the service reform which has been implied or explicitly suggested by a raft of worthy initiates and earnest reports over the last few years, then we unintentionally increase demand yet further on our emergency services. The question you have to ask yourself, is not whether you think that service reform will happen by the introduction of any new amending Act, but whether it will be done in the way which ensures the solutions we come up with to the problems we’ve decided to fix are not, in the end, more resource intensive than the problems were!

It’s nothing at all to do with any difficulty I have with Professor Wessely’s report on reform of that Act that I wonder whether this will happen. There was enough reaction to HMIC’s report last week to suggest that some of the problems we know we have are still not fully understood – indeed, they’re actively denied by some. And given the tendency over the last 10yrs to draw on police resources to address problems we shouldn’t be trying to fix, there needs to be a lot of discussion to come before we even start on the specifics of a draft Bill.


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


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