White Paper on reform of mental health law
Back in October 2017 the then Prime Minister Theresa May announced a review of the Mental Health Act chaired by Prof Simon Wessely. That review reported in December 2018 and the Queen’s speech in 2020 reiterated the Government’s commitment to reform of the Act.
The coronavirus pandemic might have derailed this, but work has clearly continued as the Government published a White Paper on 13 January 2021 highlighting areas for consultation with a view to legislative amendment.
We previously published a series of briefings commenting on the areas that we thought might attract the attention of the legislators. The White Paper provides further clarity, and this briefing – which in no way seeks to cover all the issues – highlights some of the key areas on which the White Paper focuses.
The role of hospital managers in reviewing detention has been criticised and there continues to be the possibility that this role will be passed to the First-tier Tribunal. However, the White Paper acknowledges that there is a contrary view and continues to seek feedback on this topic through its consultation.
Statutory care plans
As part of a commitment to increased patient choice, we previously flagged these plans as a likely development. The White Paper continues to refer to this, together with provisions for advance choice documentation and an increase in patients’ powers to refuse treatment.
The nearest relative
The lack of choice of nearest relative has been widely criticised. We previously indicated that an increased level of choice was likely and the White Paper makes that very point and suggests the law is likely to be amended so that patients can nominate an individual of their choice to undertake this role. There is also a reference to an increased use of Independent Mental Health Advocates (IMHAs) and culturally appropriate advocates.
Community treatment orders
CTOs were introduced as part of what was said to be a modernising approach to mental health practice. They have been considerably more successful than was probably anticipated and there has been criticism that they may now be overused. The White Paper suggests that their use will be tightened on the basis that there has to be a strong justification for them and a therapeutic benefit.
Detention criteria/Learning Difficulty (“LD”)
We previously indicated that there were likely to be further amendments to the extent to which the Act applied to those with LD. The White Paper makes it plain that detention must be based upon mental illness and should not arise simply because of a learning difficulty or autism. In addition, care and treatment reviews for those with an LD are to be given statutory force.
Of more of a surprise was the reference to a review of the detention criteria generally. The White Paper suggests that the detention criteria for all mental illness will be amended to ensure that this is the least restrictive approach, that there is therapeutic benefit and, very much a new approach, that detention can only be used if there is a substantial likelihood of significant harm. This reflects the view in some quarters that the Act is overused.
The voluntary patient
Data suggests that around 90% of the mental health beds that were available in the 1960s no longer exist. This has probably meant that those in hospital have presented with more acute levels of illness although there remains a place for the voluntary patient. The White Paper reflects this and includes consideration of advance consent to be admitted to hospital.
Interface with the Mental Capacity Act
This is often seen as a difficult area. Whilst a “Fusion Act” might be logically sensible, this has always been felt to be difficult. The White Paper highlights consulting on having a clear dividing line between DoLs (and in due course LPS) and the Mental Health Act.
The White Paper makes it plain that the Mental Health Act will continue to apply to children and confirms that by 2024 there should be a crisis care service for children. In the meantime, it confirms that the already litigated issue of parental consent to admission for children aged 16 or over will be covered, to exclude parental consent to admission for that patient group.
The White Paper is still a consultation document and final changes to the Act will clearly depend on the details set out in draft, and then enacted, legislation. However, this White Paper does show a clear direction of travel in relation to these topics, much of which has been anticipated.
The consultation ends on 21 April 2021. If you would like to submit a response, the White Paper is available here.
Senior Partner, Head of Healthcare Providers
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.