Following the independent review of the Mental Health Act 1983 (MHA) led by Sir Simon Wessley, the Government’s whitepaper was published on 13 January 2021. The vast majority of Sir Wessley’s recommendations have been accepted. 

The public consultation is now open until 21 April 2021. Following this consultation the Government will draft a revised Mental Health Bill, which will then be considered by parliament. 

The whitepaper describes the significant changes proposed to the current system as “the most ambitious programme to transform mental health care that England has ever know”.  They include:

Changes to the principles underpinning the MHA:

Guiding principles

Four guiding principles will shape the approach to reforming legislation, policy and practice:

1. choice and autonomy;
2. least restriction;
3. therapeutic benefit; and
4. the person as an individual.

Clearer, stronger detention criteria

Clearer, stronger detention criteria meaning that in order for a person to be detained, it will need to be demonstrated that:

• The purpose is to bring about a therapeutic benefit
• Care and treatment cannot be delivered to that person without their detention; and
• Appropriate care and treatment is available.

Detentions under s2 and s3 will require there has to be a “substantial likelihood of significant harm” to the health, safety or welfare of the person, or the safety of any other person. 

Changes to the treatment of patients with autism or learning disability

Changes to the treatment of patients with autism or learning disability meaning that to be detained under s2 there must be a probable mental health cause to their behaviour which warrants assessment in hospital.  Autism and learning disabilities will not be qualifying mental disorders for the purpose of s3.  There will be new commissioning duties on CCGs and Local Authorities to ensure an adequate supply of community services for these groups and to monitor the risk of crisis at an individual level, and an increased focus on pooled budgets.

Improving support for children and young people 

Improving support for children and young people with the NHS introducing a full crisis care service for them by 2023 to 2024 combining crisis assessment, brief response and intensive home treatment functions all available nationally on a 24/7 basis. 

Changes to the treatment of patients from ethnic minorities

Changes to the treatment of patients from ethnic minorities and in particular Black African-Caribbean people to recognise and tackle the profound inequalities in treatment and outcomes experienced.  The Patient and Carer Race Equality Framework (PCREF) will support healthcare and providers to improve access and engagement with the communities they serve and to invite service user and carer feedback to understand how to improve access, experience and outcomes. Provision of culturally appropriate advocacy will also be developed, with pilots to begin next year. 

Increased involvement of the patient and a focus on capacity

• The introduction of Advance Choice Documents (ACDs) where a person has capacity, to record preferences about their future treatment if they later lose capacity to make decisions about their care and treatment (with a legal requirements they are considered when the patient’s care and treatment plan is developed).
• Statutory care and treatment plans so all detained patients have a care and treatment plan (developed in consultation with them) within 7 days of their detention, approved by the clinical director of the hospital within 14 days and maintained by the responsible commissioner
• A new legal framework for consent to and refusal of medical treatment setting out the process to be followed to ensure wishes and preferences are considered, limiting the circumstances where patient’s views and treatments refusals can be overruled. 
• IMHAs’ roles to be expanded to support patients to be involved in care planning, preparing ACDs, challenging particular treatments and applying to the tribunal.  Potentially IMHA support for informal patients (subject to future funding decisions). 
• Additional safeguards where certain treatments are provided without consent, for example Court approval will be required for ECT provided against someone’s wishes (unless it is considered “urgent”, i.e. necessary to save the patient’s life or prevent a serious deterioration of their condition.  Patients would also be able to challenge specific treatments in a tribunal, which could find the responsible clinician should reconsider their treatment decision. There would also be a greater role for SOADs in confirming treatment proposals. 
• “The right to choose to suffer” and refuse urgent treatment if the patient has capacity (with certain limits).  
• MCA interface will be considered further once the impact of the implementation of LPS has been assessed.  Concerns have been raised that the proposed changes to the MHA will mean many are detained under the MCA instead and will not have significantly fewer opportunities to challenge their detention under that regime.  The concerns raised in relation to the LPS and the removal of safeguards within that would make this situation additionally concerning. 
• More opportunities for patients to challenge detention and an expanded role for Tribunals – increasing the number of opportunities patients have to bring their cases to Tribunal and the powers of the tribunal would also be expanded to grant leave, transfer patients and direct services in the community.  Health and local authorities would need to take “all reasonable steps” to follow the tribunal’s decision.  They are consulting on whether to remove the role of hospital managers in requests for discharge.  

Changes to the “nuts and bolts”

• Replacement of Nearest Relative with Nominated Person (NP) – their rights would be the same.  A child under 16 could choose their NP if they are “Gillick competent”.  NP’s objections to admission could temporarily be overruled if the AMHP believes it is unreasonable (removing the requirement to remove / displace them first), and the right to displace NP might be given to the Tribunal rather than the County Court. 
• CTOs to be used only where there is a strong justification, to be reviewed more frequently and by more professionals, time limited to 2 years unless the patient relapses or deteriorates and there needs to be genuine therapeutic benefit.
• Increased powers to ED staff to hold patients requiring urgent mental health care pending a clinical assessment.  The proposal is an extension to s5 powers to hold a person temporarily while they are assessed (query how this will work in practice and whether security staff will be willing to step in where required).  Police cells will no longer be “Places of Safety” by 2023/24. 
• Changes for those in the criminal justice system including a 28 day time limit for the move from prison to inpatient setting (with a role specifically to manage the transfer process which could be given to AMHPs) and a new power of “supervised discharge” to enable the discharge of a restricted patient with conditions amounting to a deprivation of liberty to manage the risk they pose. Magistrates would also be able to remand to hospital. 

With such wide-ranging changes proposed, contributions from all of those working with the MHA are encouraged.  Please do speak to us if there is anything it would be useful to talk through, if you would like support in responding to the consultation or if you have any questions about what is being proposed. 

It will be some time before changes are made to the legislation and code of practice, but it is already clear that assessments of capacity will be significantly more important in the new system. 

How Capsticks can help

Our specialist healthcare advisory team of over 20 lawyers advises clients across the country on mental health and mental capacity legislation as well as the complex interaction of the two relating to consent, capacity and medical treatment, whether for children, young people or adults. To discuss the consultation or any issues relating to the commissioning or provision of mental health services please speak to Ashley Irons, Fiona Easton Lawrence, Francis Lyons or Tracey Lucas.