Reforming the Mental Health Act – all change on the treatment front

In this our fourth blog on Reforming the Mental Health Act White Paper, here we look at some of the proposals around treatment.

Radical changes to the Act’s provisions are set out.

Proposals relate to:

  • Advance Choice Documents
  • Statutory Care and Treatment Plans
  • A Revised Part IV

Advance Choice Documents

We summarised Advance Choice Documents in our earlier blog.

Other interesting points to note about the proposed ACDs are:

  • They will follow a standard format.
  • There are 10 suggested sets of information that should be covered (see page 37). The consultation asks if there are other suggestions as to what should be included.
  • Where possible they are to be written with support and guidance from an individual’s clinical and other trusted healthcare professionals. 
  • They must be made when the individual has capacity.
  • They will be available via a secure digital database.
  • The White Paper described ACDs as having “real power and influence”.
  • Whilst the review had recommended that service users seek to have their document authenticated the White Paper states that whilst it would be beneficial in ensuring the patient is fully informed of the decisions they are making (thus giving the Responsible Clinician (RC) confidence in the document’s contents) they do not think that formal authentication is necessary for an ACD to be valid.
  • However, a patient will not be allowed to refuse treatment altogether as detention without any medical treatment risks contradicting the principle that detention should provide therapeutic benefit.

Statutory Care and Treatment Plans

  • Following on from concerns raised by CQC that care plans are not always discussed with a patient and often fail to reflect a patient’s views about their care and treatment it is proposed that, for the first time, the Act will require that all patients subject to detention must have a Care and Treatment Plan.
  • It will be for the RC to complete and maintain the CTP.
  • If decisions depart from the patient’s wishes and preferences the justification must be explained and recorded.
  • If treatment refusals have been overruled the CTP should document how procedures have been followed.
  • If a patient has a learning disability or is autistic then the RC will also be required to take into account the findings and recommendations made as part of a Care and Treatment Review or Care Education and Treatment Review.
  • Again if the RC has not followed all the findings and recommendations of the C(E)TR they will again have to explain their rationale in the Care and Treatment Plan.
  • There are 10 sets of information that should be included (see page 40).  The consultation asks if there are other suggestions for what should be included.
  • These should be made within 7 days of their detention for both section 2 and section 3 detentions.
  • Then it should be subject to internal scrutiny and approval by the Medical Director or Clinical Director within 14 days of detention.
  • After approval they should be a living document being amended and adapted, as required following dialogue with the patient,
  • There should be an ongoing and increasing focus on preparation for discharge and the aftercare that should be in place.

Revised Part IV

  • The White Paper states that this is a “fundamental issue” at the heart of plans for modernising the Act. It sets out in bold that “ we seek to reform the Act to give patients greater control over their care and treatment and the right to refuse specific medical treatments at a much earlier point in detention”.
  • Different requirements and safeguards are proposed depending on the nature / invasiveness of treatment
    • Category 1: The most invasive treatment
    • Category 2: Invasive treatment e.g. ECT
    • Category 3: All other medical treatment
  • Which treatment falls within which category will be set out in Regulations and that will be subject to further engagement.
  • Annex A to the White Paper (pages 114 – 118) sets out more detail in respect of these proposed changes and how they compare to the current position.
  • With regard to Category 2, a big change would be the proposal that where, urgent criteria are met and the RC wants to override a patient’s refusal of treatment then they will be required to seek approval from court before doing so. Two medical opinions would be needed to support that application.
  • The proposals in respect of Category 3 signify “the most significant advance from the current legislation”. For example, where a patient refuses treatment and the RC wishes to overrule that refusal, the proposals would bring forward the point at which a second opinion appointed doctor must certify the treatment – from the current three months to 14 days.
  • One of the consultation questions relates to the “right to suffer”: do you agree or disagree that patients with capacity who are refusing treatment should have the right to have their wishes respected even if the treatment is considered immediately necessary to alleviate serious suffering?
  • This blog touches on proposed changes to Tribunals, including the new right to challenge a treatment decision at the Tribunal. Currently the only way to challenge treatment under the Act is via Judicial Review. A faster, cheaper and more accessible alternative is proposed. Before a case would proceed to a full Tribunal hearing a single judge would carry out a preliminary review and consider whether to grant “permission” for  full hearing. There is the suggestion that a Tribunal could order that a specific treatment is not given if it disproportionately interferes with a patient’s rights.

Don’t forget you have until 21 April 2021 to respond to this consultation.

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