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Amending the Mental Health Act: Part 2 – Statutory Care Plans

This is the second part of our series of briefings on Amending the Mental Health Act.

In the recent Queen’s speech, the government confirmed their intention to amend the Mental Health Act.  A White Paper will be published to address the following:

  • A greater control for patients over their treatment
  • Making sure patients have a greater say in that care
  • Greater choice and autonomy including the ability to set out preferences for care and treatment in advance
  • Ensuring dignity and respect
  • Reforming the process for detention and providing greater support for patients to challenge detention
  • Making it easier for individuals with learning disabilities and autism to be discharged from hospital and improve how they are treated in law.

In this series of briefings we look at what amendments might be forthcoming.1

Statutory Care Plans

The areas for reform highlighted in the Queen’s speech include giving patients greater control over their treatment and ensuring that they have a greater say in their care.  In particular, it was said that patients should have greater choice and autonomy, and be able to set out their preferences for care and treatment in advance.

The review of the Mental Health Act chaired by Sir Simon Wessely, which was reported in December 2018, made several recommendations that reflect similar themes:

  • Giving patients the right to make an advanced choice document in relation to their mental health care and treatment.
  • Requiring Responsible Clinicians to formulate a statutory care plan that should take account of these views.
  • Ensuring that these statutory care and treatment plans include leave and discharge plans.
  • Giving the First Tier Tribunal the jurisdiction to scrutinise care plans and review treatment, and for patients also to request a SOAD review.
  • Making it hard to override treatment refusals.

The review summarised its views as follows:

We have heard time and again from people, that they did not fully understand what was happening nor were their views sought, let alone considered during detention.  We consider that there should be a duty on the Responsible Clinician to formulate a detailed care and treatment plan for each individual as soon as reasonably practicable (and reviewed within 14 days).  That plan should govern everything up to and including leave and discharge.  A key component of that plan should be the wishes and preferences of the patient, which should be considered and, if not followed, a record made of the reason why not.

Giving patients the right to express their views about future care and treatment seems to follow the broad ethos behind advance decisions in the Mental Capacity Act.2  Previously the compulsory treatment sections of the Mental Health Act have overridden these, so it remains to be seen whether this will continue to be the case.

A specific requirement for a statutory care plan to be in place within 7 days of admission, and then reviewed after 14 days is new.  However, it is intellectually an extension of the current requirement for a SOAD Certificate where medication is to be provided for more than three months.  The medication regime has previously been authorised by a SOAD and it may be that the proposals simply replace that requirement with the ability for the patient to refer the matter to the Tribunal if they are unhappy with the care being provided.  This may therefore be little more than a broad rehash of the existing statutory scheme although, as we have noted in previous briefings, it remains to be seen whether the Tribunal system will have sufficient capacity to deal with an increased number of applications of this sort.

1 The full series of briefings is available here.

2 See Section 24 Mental Capacity Act 2005


Disclaimer

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.

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