Sir Simon Wessely has chaired a review of the Mental Health Act, along with his vice chairs Steven Gilbert, Sir Mark Hedley, and Rabbi Baroness Julia Neuberger. Their Review was published on 6 December 2018, along with an easy-read version.
Aim of the review
Following the Prime Minister’s pledge to scrap the Mental Health Act 1983 as “unfit for purpose”, the review focused on the criticisms aimed at the current Act, and made recommendations to make it fit for purpose.
Summary of recommendations
The recommendations are based around the 4 guiding principles, which the Review suggest should be part of the new Act and any regulations and forms. Below are the 4 principles with a few of the more significant recommendations.
1. Choice and autonomy – prioritising the expressed views and choices of service users.
- A system of “advance choice documents” where service users with capacity can make certified advanced decisions on treatment choices and other relevant matters.
- A right to advocacy for all patients, informal, detained and CTO, based on an ‘opt-out’ approach.
- Patients with capacity can choose their own “nominated person” (instead of a nearest relative); nominated persons who object to detention under s3 can be ‘temporarily displaced’ by court order and do not have to be permanently displaced.
2. Least restriction – avoiding detention in hospital where possible.
- Develop access to services in the community so that people receive support before they reach crisis point.
- Duty to make statutory “care and treatment plans” as soon as patients are admitted which record the patient’s wishes and feelings and include plans for leave and discharge.
- Powers of the tribunal to scrutinise care and treatment plans.
- Stricter criteria for detention that require there to be a “substantial likelihood of significant harm to health, safety or welfare of the person, or the safety of any other person without treatment”.
- Guidance to restrict the use of section 2 detentions.
- Section 3 detentions lasting 3 months, then another 3 months, then 6 months, then annually (which will increase the number of tribunal applications people can make).
- Clarifying that compliant patients who lack capacity should be treated under the Mental Capacity Act 2005, with the Mental Health Act only used for objecting patients.
- Measures to restrict the use to Community Treatment Orders, requiring a much higher evidential threshold.
- Earlier access to second opinion doctors (‘SOAD’) and the right to challenge treatment decisions confirmed by the responsible clinician and SOAD.
3.Therapeutic benefit – use of the Mental Health Act should be minimal, and patients should be supported to improve and work towards discharge.
- New investment in NHS mental health inpatient settings to improve the physical and social environments.
- Patients in contact with community mental health teams to have a “Statutory Care Plan”.
- Improved discharge planning and review of the application of section 117 aftercare.
- No power for hospital managers to order discharge; used instead as “hospital visitors” to monitor day-to-day life of the hospital
4.The Person as an Individual – value each person as an individual, not just a diagnosis.
- Reasonable adjustments to enable people to fully participate in their care.
- Monitoring of mental health patients’ physical needs.
- Specialist training for advocates and panel members.
- “Organisational Competence Framework” and “Patient and Carer (Service User) Experience Tool” to hold organisations to account regarding the disparity faced by ethnic minorities in their experience of the Mental Health act.
- A functional capacity test for children and young people, with those over 16 being presumed to have capacity. Parents cannot consent to treatment on behalf of young people with capacity.
- By 2023/24 complete removal of police cells being used as places of safety, with ambulances (not police cars) being the standard response to mental health crises calls, including bespoke mental health vehicles.
- Give Magistrates’ courts the same powers as Crown Courts remand people to hospital.
- Allow responsible clinicians to take low risk decisions for restricted patients.
A full list of the recommendations made can be found on pages 282 – 299 of the Review.
Comment
This is a brief overview to give readers a feel for the approach of the Review. To understand the reasoning for these recommendations, we recommend reading the full report, or at least the summary on pages 16-33.
We welcome a lot of these recommendations and the prioritising of the 4 principles. We can only wait and see how much these recommendations are taken on board, especially given the resource implications for many of them.
If you require help with mental health legal issues please contact us on 01872 272457.