A report of the Joint Committee on the Mental Health Bill 2022 was published this week. MPs and members of the Lords have jointly considered the draft Bill ahead of its parliamentary procedure and published a 164-page report. As you can imagine, it’s thorough, although I did look for comment on a few things which I didn’t find.
You may remember the background, but just in case: in 2018, an independent review in to the Mental Health Act 1983 was published after a process chaired by Professor Sir Simon Wessely. In turn, this led to a Government response and, subsequently, the draft Bill in 2021. We now have a report from a Joint Committee of both Houses of Parliament, so it’s exploring the Bill itself, in the format it was tabled in Parliament and it will now need to work its way through both Houses to become law. Depending on your view, there could be argue to be a few issues with the Bill and the report of the joint committee has certainly picked up on a few that I’m concerned about.
This post will be necessarily partial and summary: I’m not going to comment on the whole thing page by page, merely on those parts which highlight issues for the police and criminal justice system and which I might have to hope are raised in Parliament during the discussion phases which will follow in each place.
A PLACE OF SAFETY
As was recommend by Professor Wessely, the draft Bill proposes to remove the word ‘police station’ from the s135 definition of a Place of Safety (PoS), so that no-one detained under a s135 warrant or an emergency s136 detention can then be removed to or kept a custody setting for assessment. I was glad to find repeated endorsement of this proposal by the joint committee – indeed, having said they support the proposal, I found they kept adding words like “welcome” to subsequent mention about removal of the police station as an option. Specifically, I was also pleased to see they spotted that there is more than one kind of ‘Place of Safety’ under the MHA and that the draft Bill will also remove prison and police station from the other definition. Where a judge intends to sentence or remand a criminal defendant to hospital as part of the sentencing process, one option available is to remand them to prison or a police station until a psychiatric bed can be found – and this option lasts for fourteen days!!
I was once contacted by a custody sergeant in the north of England and his frank question was, put simply, “What the HELL is section 55 of the Mental Health Act?!” That’s the less-well known statute which specifies prisons and police stations as possible places of safety for those criminal defendants in court. He actually had a judge issue an order to hold the man in police custody for fourteen days or until a bed was found. I’ve also know it happen in prisons as well and that decisions is as tragic as it is ironic: the whole point about allowing criminal defendants who are seriously ill to be admitted to hospital is to keep them out of prison. To put them there as a holding area until the bed is found to keep them away from where we’ve had to put them until the bed is found, is just mind-bending to comprehend.
All reference to prison and police stations as a PoS under the Act look on course to be repealed but the report does well to note: this will require considerable investment in health-based Places of Safety and I would argue, consideration of ensuring Emergency Departments are better prepared for those detainees who unavoidable must be removed there, instead of any mental health based PoS. In some areas, half of all s136 detainees go to ED and whilst some have the additional ‘medical’ factors which necessitate this, many don’t and they are only there at all because of incapacity in the mental health system.
CRIMINAL JUSTICE PROCESSES
In keeping with the removal of criminal justice options as part of mental health pathways, there was support for other Government proposals. As things stand, anyone charged with a criminal offence and appears before a magistrate, the question arises for the court as to whether the defendant should be granted bail pending trial or remanded in custody. There are various grounds for remanding a defendant, for example that they may abscond or commit further offences, but it also includes that someone may be remanded because of concerns about their mental health. The draft Bill proposes to remove this and the report welcomes it. Fair enough so far.
So what happens when a defendant, who may have struggled to access services earlier, ends up entangled in the criminal justice system and is charged with something that places them before a magistrate
One thing missing from the Joint Committee report on criminal justice issues: reform of s35/s36 MHA. Where a defendant appears at their first appearance after being charged, the Magistrates cannot remand that person to hospital for psychiatric reports (s35) or treatment (s36) unless they’ve already pleaded guilty. No sensible defence solicitor is going to encourage a mentally ill defendant to plead guilty at the first appearance. It is in this context that remanding someone to prison because of mental health concerns can occur. The original proposal was to allow a Magistrate to remand someone for psychiatric reports without the guilty plea, at least in part to prevent people being otherwise remanded to prison.
Clause 42(7) of the Bill now allows this, but only where the subject consents to it. I’ll have to keep thinking this one through, against the obvious question of “what if they don’t consent” when they also cannot be remanded to prison purely because of concerns around mental health?
BEDS AND ADMISSION
The report alludes in passing to national problems with beds – and this isn’t really news to anyone involved in the system. There are countless examples of patients who need to be ‘sectioned’ who are not able to be admitted in a timely way because of difficulties securing available beds. Several who gave evidence to the Joint Committee obviously raised this and this is another area where the report highlights that resources are crucial to the success of legislative reform and resources is just one issue I’ll group with others under the banner of ‘admission’ —
- Learning Disabilities (LD) / Autism – the draft Bill proposes various revisions to the scope of the MHA to affect those of us with LD or autism. There are various reasons for this you can read in the report itself, but the concern raised is about whether it may unintentionally lead to police or c criminal justice responses instead, and potential use of Part III of the MHA to institutionalise pople who were no longer able to be institutionalised by Part II (the traditional route to being ‘sectioned’).
- Sections 13 / 140 – these are not mentioned in the report or the Bill and it’s hardly surprising because the Bill does not propose legal reform. But as regular readers of the blog will know, the efficient operation of these provisions does rely on adequate beds being available for those who do require admission.
- Raised threshold – the wording of criteria to be ‘sectioned’ is changing. Instead of a mental disorder “of a nature or degree” there will be a requirement for “serious harm”. Concern is expressed in this report of increased criminal justified responses to those of us whose mental health has led to concerning behaviours but which fall short of the threshold for “serious harm”.
Unintended consequences is a theme throughout the report – it may be certain reforms are predicated on noble instincts and good ideas, but what happens once you outlaw certain practices which were previously taken as a normal part of the legal landscape? One idea raised by the Joint Committee is unintended consequences could lead to increased criminalisation. This is a particular theme flagged in respect of LD and autism. The Bill proposes to remove LD and autism from the scope of ‘Part II’ of the MHA (civil admission) – this means that someone with a learning disability or autistic spectrum condition could not be ‘sectioned’ in the same way someone with schizophrenia or dementia could be. The report flags that this will require improved or increased community services of various types to support people or risk unintended consequences. One of them could be that criminal justice investigations or processes are considered for people whose behaviour have impacted significantly on others – that could lead to prosecution in some cases and consideration by the criminal courts of admission to hospital under ‘Part III’ of the Mental Health Act (patients concerned in criminal proceedings). Nothing in the Bill removes LD or autism from consideration, where MHA orders are being considered by a criminal court as part of sentencing. Those orders are significantly more restrictive than civil admission under Part II and one can imagine a situation where support was not available for someone, for whatever reason, and it led to prosecution and a more stigmatising Part III order.
There is also the question of the MHA raising the threshold for admission – after the introduction of the amendments, some patients who currently reach the threshold for admission will no longer do so. This obviously raises a similar question: will there be sufficient, timely access to community support services (bearing in mind difficulties we know exist at the moment with access to crisis care)?
The report highlights unresolved debate about legal powers in Emergency Departments that may well be aired in parliament during the stages of Bill’s passage. Sir Simon’s independent review made no recommendation about any new power for clinicians, but the Government response to the review did. It proposed examining whether or not s5 of the Mental Health Act (current restricted to hospital inpatients) should be extended to Emergency Departments so that patients who turn up to ED and are in need of intervention because they lack capacity or are attempting to leave when there are risk, cannot currently be detained by clinical staff (except in some very narrow circumstances about imminent, almost immediate risk – and even then, only held for a brief period).
In short, the draft Bill ended up containing reference to no such power and today’s report then highlights the problems that result from that decision. In the absence of a new power, there is a risk of patients being allowed to leave when at high risk, or police being called to Emergency Departments to consider powers under s136 MHA or indeed, of patients being unlawfully detained in ED because of safety fears. Complex stuff no decision here is perfect.
(The excellent) Dr Chloe Beale gave evidence to the Joint Committee and she highlighted something that I do think is rather important on p105. Referring to the need to call police officers to ED to use legal powers which are fundamentally about clinical care decisions —
“How does that make sense? A police officer has more power in that situation than I do. How can I excuse calling the police to my department to assist in mental health care? Even if I had lots of nurses trained in restraint, we have no legal power to exercise that, but a police officer does. We want to reduce the involvement of police in mental health care, not invite it.”
Spot on as far as I’m concerned: readers of the blog will recall that I’ve been saying for years: the problem is not the police, it’s over-reliance on the police (and criminal justice and emergency systems) as de facto mental health and crisis care providers.
There is a long road ahead. The Draft Bill needs to make its way through both Houses of Parliament and there is ample time for debate about all of the above, if MPs and Peers choose to raise it. And once the Bill becomes an Act, in whatever form it finally takes, there will then be a period to prepare for implementation. As we learned above, resources may well be key to the success of many recommended reforms. Some may be nervous about whether such resources will emerge, given how mental health care has lost ground in the allocation of funding for many years – we once spent 13% of the NHS budget on mental health (bearing in mind it represents 23% of the so-called ‘disease burden’). That shrunk to 9% during the last decade and was followed by a commitment to raise in back in to double figures.
Parliamentary process to follow and some of the proposed reforms may yet be removed, amended or replaced – I’ll try to keep this site updated as we learn more.
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, 2023
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