Five big changes to the Mental Health Act

You will be aware that on 14 January 2021 the Government published the White Paper Reforming the Mental Health Act. They also published a helpful summary document here as did NHS Providers.

Part 1 of the White Paper sets out the proposals for reform of the Mental Health Act (MHA) under 11 headings:

  1. New guiding principles
  2. Clearer, stronger detention criteria
  3. Giving patients more rights to challenge detention
  4. Strengthening the patient’s right to choose and refuse treatment
  5. Improving the support for people who are detained
  6. Community Treatment Orders (CTOs)
  7. The interface between the Mental Health Act and the Mental Capacity Act
  8. Caring for patients in the Criminal Justice System
  9. People with a learning disability and autistic people
  10. Children and Young people
  11. The experiences of people from BAME backgrounds

I have set out below what stands out to me as five of the biggest changes:

1. Raising the threshold to detain someone under the MHA

  • Detaining someone under the MHA removes a person’s liberty and allows them to be treated without their consent. Concerns that the rate of compulsory detention has more than doubled since the MHA was introduced in 1983 have led to proposals to tighten the detention criteria in two ways:
    • a requirement that the patient should benefit from the treatment allowed for by the detention; and
    • a requirement that the patient poses a substantial likelihood of significant harm.
  • The aim is to make it harder to detain someone under the MHA, with the hope that people are only detained as an absolute last resort.
  • The specific risk and how the detention will deliver therapeutic benefit will need to be documented in the new statutory Care and Treatment Plan.
  • The aim is to improve transparency and encourage a positive approach to clinical risk management.

2. Choosing a Nominated Person

  • It is proposed that the Nearest Relative (NR) will be replaced by the “Nominated Person” (NP). Instead of relying on a prescribed list to determine who a patient’s NR will be, the patient will now be able to choose their NP. Forensic patients, previously denied a NR, will also be able to choose a NP. They will also be able to do this before detention in their Advance Choice document (see below).
  • The NP will be granted additional powers compared to the NR e.g being able to appeal clinical treatment decisions at the Tribunal
  • The usual power to displace a NP will continue, but consideration is being given to whether this power should be given to the Mental Health Tribunal (MHT) rather than the County Court.

3. Advance choice documents

  • The introduction of advance choice documents (ACDs) will enable people to set out in advance the care and treatment they would prefer, and any treatments they wish to refuse, in the event they are detained under the MHA and lack the relevant capacity to express their views at that time.
  • It will be a legal requirement that ACDs are considered when a patient’s care and treatment plan is developed. This will mean that patients can have a greater role in informing their own treatment.
  • There will be a requirement that ACDs will be offered to all people who have previously been detained 

4. Allowing people to challenge decisions about their treatment before the Mental Health Tribunal

  • Currently, if a patient with capacity wishes to challenge a treatment decision they can only do so by way of judicial view.
  • It is proposed that patients, or their IMHA or NP if they lack capacity, should now be able to challenge a specific treatment through the MHT. This would be faster, cheaper and more accessible than judicial review.
  • The MHT judge would not make a clinical decision or authorise a specific treatment. Instead, they would be able to make a finding that the responsible clinician reconsiders their treatment decision or order that a specific treatment is not given if it is found to disproportionately interfere with a patient’s rights.

5. Supervised discharges instead of conditional discharge

  • I am currently advising on a conditional discharge matter where, after the case of MM, the patient was placed on long-term section 17 leave. This provided a temporary operational solution to avoid such patients having to return to hospital: the case of MM having decided that those with capacity could not be subject to conditions that deprived them of their liberty.
  • I was pleased to read about the proposed “supervised discharge” power which would allow all restricted patients, irrespective of capacity, to have the opportunity to move to the community even if their level of risk means they require conditions with deprive them of their liberty.

What do you think about these, and the other proposals?

Now is the time to have your say about these proposals, the consultation closes closes on 21 April 2021.

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