No voice unheard, no right ignored – government response to consultation

You may recall that in March 2015 the Government launched a consultation in respect of those with learning disabilities, autism and mental health conditions – we reported on this consultation in our April 2015 edition of our Health Legal Update (the predecessor to our new health and care blog).

The Government have now responded.

The response sets out a phased approach to implementation:

• Early actions to sustain momentum.
• Further changes (including legislative changes to the Mental Health Act 1983).
• Radical solutions to longer term issues. As a result of progress, the Government expects to see a significant change in the experience of care and in outcomes.

Further consultation will be needed and, of course, they are subject to this week’s comprehensive spending review.

We highlight some of the key steps under the phased approach.

Early actions – to take place during 2015/16 and 2016/17

• Amending MHA regulations to change the information required on admission so that an approved mental health professional has to consider and record whether assessment and treatment could be provided without detention in hospital.
• Work with NHS England and the Local Government Authority to develop guidance and tools to ensure information is shared legitimately and in accordance with professional standards and good practice. 
• Consider what further actions are required to embed solutions to generic data governance issues. 
• End the use of police cells as a place of safety for children and young people. 
• No one detained under section 135 or section 136 to be held in a place of safety for more than 24 hours.

Further changes – to be introduced as soon as Parliamentary time allows

• Make changes to the MHA to:
  • Enable patients and families to challenge whether their wishes and feelings were appropriately considered when making applications for detention. 
  • Amend provisions regarding nearest relatives. 
  • Make the MHA Code of Practice statutory guidance for NHS commissioners too. 
  • Clarify responsibility to ensure physical care needs are met. 
  • Make provisions about the discharge of patients to community placements amounting to a deprivation of liberty. 
• Review safeguards regarding renewals of detention. 
• Pilot access to named social worker who will provide professional advice and support and be main point of contact for service user and family/carer.

Radical solutions to longer term issues

• Consider the need for further legislative proposals once further monitoring has been undertaken of the new service model for commissioners. 
• Consider whether and how the MHA should apply to people with learning disabilities and/or autism.

The Government received mixed responses to their proposal to replace or combine existing sections 2 and 3 MHA so do not propose to purse this idea. Similarly there was a lukewarm response to supporting and extending section 135 and section 136 MHA powers to paramedics.

How we can help

So lots of key changes for those involved in this field. We have a dedicated team of lawyers familiar with the MHA and MCA who can answer any queries you might have.