Doing the Detail – Part 1

My break from blogging was deliberate decision to step back from it all but the publication of the Government’s White Paper on Reforming the Mental Health Act 1983 motivated me to think some things did need saying and summarising, for whatever that’s worth.  I was involved in this review which leads to the White Paper and I cant deny my interest in how it develops towards potential legal reform.  My first post of 2021 covered in brief some of the more-obvious police-related implications of the White Paper, written after a fairly brief read.  Having now made a more concerted effort, there are other points worth making and which are not linked (directly) to policing but are for general awareness of what may be coming.  It gives a context about the broader system in which the police will always play a limited role.

Of course, this is still just a White Paper, it changes nothing in law (yet) and the various proposals may or may not make it to the statute book.  At the first meeting of Professor Sir Simon Wessely’s Advisory Group for his review, he invited Professor Genevra Richardson to talk to us all.  She had chaired the previous independent review of the MHA commissioned by the Labour government in 1998 and her report led to the introduction of an entirely new Mental Health Bill in 2004 which would completely replace the MHA 1983 – but it failed to make it through parliament!  We ended up with a much-reduced Mental Health Act 2007 which comparatively tinkered with the existing legal framework and some the issues left unresolved where there to be grappled by Professor Wessely when he picked up the review baton over ten years later, in 2017.  In other words, whatever we think of the independent review or the White Paper just published, it remains true that amending the law on such sensitive matters as mental health care where it affects politics, risk and public perceptions around safety is never going to be an easy, uncontroversial ride – there are things within this White Paper will no doubt generate debate (again) about whether Sir Simon and the Government got this right and this recent publication makes it clear that they do not agree on everything.

This post is the first of two which will look at some of the proposed amendments which, of course, may or may not come to fruition in law and nothing below means the law has changed – AT ALL! This is what might happen in a few years.

DETENTION IN HOSPITAL

One background to the MHA review being launched in 2017 was concern about rising rate of detention under the Act.  Between 2006 and 2016, the use of the MHA rose by 40% leading to concerns it was being over-used. The White Paper proposes new statutory grounds for detention under (section 2 or section 3 of) which are worth thinking about.  We currently have “mental disorder of a nature or degree which warrant the detention of the patient in hospital … in the interests of his [sic] own health and safety or with a view to the protection of other persons.”  The White Paper argues this is too vague and is amongst the reasons why the Act is now over-used.  The proposal instead is to ensure the AMHP making the application is focused on a “substantial risk of significant harm being caused to themselves or others” (p24).

Furthermore, the White Paper indicates amendments will be make to the scope of the MHA’s application to those of us who have an autistic spectrum condition or a learning disability.  There are various reasons why this suggestion comes about (see the White Paper itself for more) but the government proposes to “make reforms which would ensure that mental illness is the reason for detention and that neither autism nor a learning disability are grounds for detention under the Act in and of themselves.” (p11).  It’s worth understanding this summary a little more because it’s not a question of autism and LD being cut completely from the scope of the Act in every circumstances: they are proposing to amend section 3 MHA (admission to hospital for treatment) but NOT to amend s2 MHA or the ability, for example, of the police to use sections 135/136 where there are more imminent risks of behaviour which could cause harm.

In other words, where the background and contributory reasons to someone’s presentation are not well known or properly understood, where they could be related to a mental health condition and / or an autistic spectrum condition or a learning disability, the police could still act under s135/136 and an AMHP could still make an application for detention under s2, to manage the risks pending fuller assessment. However, once s2 assessment in hospital allows clinicians 28 days to understand what has contributed to the admission, they would not be able to further detain someone in hospital for treatment where this only related to autism or LD (p13).  Might be worth remembering, vulnerable with autism or a learning disability are also more likely than the population as a whole to experience mental health problems that would fall within scope of the Act.  Complex stuff!

SAFEGUARDS AND REVIEWS

Central to the Review and the White Paper was about improving autonomy and improving rights whilst subject ot restriction.  We see a lot of detail in the document (p47) about patient’s rights to seek review of compulsory admisison through the Mental Health Tribunal process.

For those who are unfamiliar, MH Tribunals are a part of Her Majesty’s Court Service, they are a legal forum where patients can currently appeal against compulsory detention under s2 or s3.  We are potentially going to see a number of changes – greater scope and opportunity to appeal and the introduction of appeals against certain types of compulsory treatment.  Patients detained at the moment cannot easily appeal aginst treatment decisions, except by bringing a Judicial Review.

In summary –

  • Section 2 patients can seek a Tribunal within the first 14 days of admission – this will be extended to the first 21days of admission.
  • Section 3 patients can seek a Tribunal twice a year – this will be increased to three times a year.
  • Detained patients can seek a Tribunal to review compulsory treatment – this is subject to a few caveats, but it will exist in a way that presently, it doesn’t.
  • CTO patients can also seek a Tribunal to review the CTO conditions or it’s very existence, against the “substantial risk” criteria required for its imposition.
  • There will also be changes to the point where Tribunal is automatically triggered, for those patients who do not seek review – this is to improve independent oversight of the Act’s operation in particular cases.

There is a second part to this post, which covers further detail on the proposed “Nominated Person” role, various issues around capacity, consent and the “right to suffer”.  Sensitive and difficult stuff, no doubt.

I’ll leave this post here with one thought, from p105 of the White Paper, “For too long, mental health crisis interventions have had to rely on the police, ambulance or A&E being the only 24/7 services that the public can access in the first instance.”  Let’s hope the system can prepare itself for the legal changes which look likely, so we can no longer insist that vulnerable people have to have “one foot off the bridge” before they can access help and that when they do, it comes amidst a system which better ensure safety, dignity and rights.

If you want to give your view to the Government on the proposals in this White Paper, you can so until 21st April 2021.


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 OBE, 2021


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 – www.legislation.gov.uk