Mental Health Act: what next?

We now have the Government’s response to the consultation on Reforming the Mental Health Act.

In summary they note broad support. Sajid Javid, Secretary of State for Health and Social Care and Robert Buckland, Secretary of State for Justice explain in the foreword how these are once in a generation reforms and that they will continue to collaborate in developing and refining them. They say that their job now is to develop a new Bill to reform the MHA. However they do also refer to refining proposals “over the coming months and years”… In addition, the executive summary explains that the proposals that require additional funding continue to be subject to future funding decisions and that they intend to bring forward a Mental Health Bill “when parliamentary time allows”.

Given the response covers 131 pages we have prepared a handy table summarising the questions and next steps relating to each of the chapters. You can view the table here.

Those of you on the Department of Health and Social Care’s mailing list on Liberty Protection Safeguards will already have seen the summary there that the White Paper suggested a clearer dividing line be introduced in legislation between the MHA and Mental Capacity Act, based on whether or not a patient is clearly objecting to detention or treatment. The effect would have been that all patients without the relevant capacity, who do not object, would be subject to DoLS/LPS and not the MHA.

However, the public consultation (see chapter 14) demonstrated no significant support for the proposal set out in the White Paper nor overall agreement on what alternative changes to the interface would improve the application. In addition, the proposal to change the interface was a key concern for a number of stakeholders and organisations who responded. In light of this feedback, the Government does not intend to take forward reform of the interface, as set out in the White Paper, at this time. Instead, they will seek to build the evidence base on this issue through robust data collection, to better understand the application of the interface. In addition, they will continue to engage with stakeholders to understand what support and guidance could help improve application of the current interface. 

As readers will also know, the DHSC intend to shortly publish a consultation on a draft, updated, Code of Practice for the MCA, including the LPS, and the draft LPS regulations. These will set out how they think LPS will operate in detail. The draft Code will include guidance on the interface between the MHA and MCA/LPS, on the basis of the Government’s decision not to alter it in legislation, at this time. That consultation will invite feedback on this guidance, and any other aspect of LPS policy, guidance and implementation. There were nearly 1500 responses to this issue but over 1,000 were unsure or found it difficult to answer.

Other points to note in the Government’s response to the consultation include:

• 82% of responses agreed / strongly agreed with changes to the detention criteria.
• Approximately a third of respondees were not sure about proposed changes to the timetable for automatic tribunal referrals.
• The responses on removing Hospital Manager hearings were more mixed that the Government anticipated so they will consider the matter further.
• Two of the larger sections relate to Advance Choice Documents (pages 33-38) and duties on local commissioners in respect of learning disabilities and autistic patients (pages 94 – 100).
• There were quite split views around refusal of treatment for those with capacity (see chapter 9) and a new right to challenge a treatment decision at the Tribunal (chapter 10).  In terms of this latter chapter there were a higher percentage of organisations who disagreed than who agreed but a higher percentage of individuals who agreed than disagreed.
• Concerns were expressed in respect of advance consent to admission around the safeguards in the Act and section 117 aftercare.
• 78% of responses agreed or strongly agreed with the proposed powers for a Nominated Person.
• Over 85% of responses agreed or strongly agreed with additional powers for Independent Mental Health Advocates.
• The overall majority of 1,000 responses on accident and emergency departments holding powers were in favour of extending section 5 MHA.
• Based on consensus, post Devon Partnership, the presence of professionals in the room is required so the Government will not be seeking to amend the Act to allow for the use of remote assessments.
• Proposals are being developed in close liaison with Local Government and NHS England/Improvement to make it more straightforward to establish which area is responsible for section 117 aftercare, particularly in more complicated personal histories, which have included out of area placements.