Amending the Mental Health Act: Part 5 – Amendments to affect people with learning disabilities and/or autism?
This is the fifth part of our series of briefings on Amending the Mental Health Act. In this series of briefings we look at what amendments might be forthcoming.
In the recent Queen’s speech, the government confirmed its intention to amend the Mental Health Act (“MHA”). 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.
One of the topics for reform is the application of the Mental Health Act (‘MHA’) in respect of those with learning disabilities and/or autism. The review of the MHA chaired by Professor Sir Simon Wesseley that was reported in December 2018 considered this issue and concluded as follows:
“We have been told that the Mental Health Act isn’t providing the right type of support and care for people with learning disabilities, autism or both. The MHA is being used in a way that is not in line with its intended purpose, and is too often being used to compensate for the lack of adequate and meaningful support within the community.
The overall effect of the changes that we are recommending should be to help tackle the long-term warehousing of patients and ensure that being detained has a therapeutic benefit for the person. This includes, for example, the statutory care and treatment plan, the tightening of the detention criteria and what can be considered “treatment”, nominated person and requirement to make reasonable adjustments.
There is a clear consensus that what is most important is sustained long term investment in alternatives to detention, a view we endorse. That is why we are recommending a new duty on health and social care commissioners to collaborate to provide sufficient community based alternatives to detention for those with learning difficulties, autism or both, and to facilitate timely discharge.
We have considered whether learning disabilities and autism spectrum disorder should remain within the MHA. We heard moving testimony concerning the adverse consequences that have arisen following detention, and agree that the status quo is not an option. But is the solution to redefine these conditions as outside the MHA? There seems no clear consensus on this, and we have heard also about the many negative consequences that could arise from being outside this framework. It is a fine balance. There are cases when the MHA has been the only option at a point of crisis. Not only has it been the only option, it’s been the only option that worked for the patient. We have ultimately been persuaded that the risk of completely removing learning disabilities and autism from the Act is too high, although we think this should be kept under review.
The Review concluded that despite changes having an impact, it was not established to consider the best approach in law to be taken in relation to the care and support of people with learning disabilities or autism as ‘that would be a much wider task’. The review made the following recommendations:
- Health and social care commissioners should have a duty to collaborate to ensure provision of community based support and treatment for people with a learning disability, autism, or both, to avoid admission into hospital and support a timely discharge back into the community
- Amend the MHA Code of Practice to clarify best practice when the MHA is used for people with autism, learning disability or both
- Care and Treatment Reviews should be given statutory force in the MHA
- The Mental Health Services Dataset should include specific data to monitor the number of detentions and circumstances surrounding the detention of people with autism, learning disabilities or both.
Review of law in Scotland
The Review has asked the government to take into account the findings of the review of the law in Scotland. The final report of the Independent Review of Learning and Disability and Autism in the Mental Health (Care and Treatment) (Scotland) Act 2003 was published in December 2019 and contains a number of proposals for law reform, most of which gained strong support from those who were consulted. Key recommendations included:
- The removal of autism and learning disability from the definition of mental disorder
- Creation of a new law to support access to positive rights, including the right to independent living.
Removal from definition of mental disorder
Providers may be interested to read the discussion in Hansard concerning the exclusion of autism and learning disabilities from the definition of mental disorder, comments as follows:
- Baroness Hollins: …in detaining somebody in hospital under the Act, the excuse of doing so to improve—or with the intention to improve—their behaviour, even though their behaviour may be a reaction to inadequate social care, is an inadequate reason for detention under legislation?
- Baroness Browning: The real problem is that we do not have sufficient psychiatrists who understand and can differentiate between autistic behaviour and what they believe to be psychotic behaviour. Once patients start the spiral of medication for psychosis, the autism disappears and the person disappears altogether.
- Baroness Blackwood: ‘The Government accept completely that autism and learning disability are not mental disorders. The question is whether being excluded from the legislation would cause challenges or difficulties for those who may have autism and mental disorders’.
- Lord Addington: ‘The treatment of many people with autism [have] undergone is probably the best way to induce poor mental health in many of them. Can we please do something to stop that?
It appears that there was an appetite to remove learning disabilities from the definition in the Mental Health Act 2007 however as noted by Sheila Hollins et al, ‘the vague exception for abnormally aggressive or seriously irresponsible behaviour meant that it was not fully removed’ 1. The fact that only those with a learning disability can be detained for such behaviour is considered discriminatory and it is important to note that there is no definition within the MHA Code of Practice (the ‘Code’) which details what would constitute this. There is however commentary which confirms that unusual or bizarre behaviour would not. Hollins et al have further noted that the inclusion leads to lazy diagnosis as the underlying causes for the behaviour do not need to be investigated. Others are concerned regarding the disparity between how learning disabilities and autism are treated under the MHA, in that people with autism can be considered to have a mental disorder. One option which has been suggested is the addition of an autism qualification, this could perhaps mirror the learning disability qualification so that there must be some form of prescribed behaviour present in addition to the autism itself in order to be captured by the definition of mental disorder, so that the two are on an equal footing. Variations of this proposal were discussed as part of the Government Consultation, No voice unheard, no right ignored in 2015.
Concerns are routinely expressed in relation to the detention of those with autism. No Voice Unheard, No Right Ignored (p 42) identified it felt people with autism were detained due to autism associated behaviours even where no appropriate medical treatment was available, which is both inappropriate and illegal. For clarity, Chapter 20 of the Code (para 20 and 20.22) is clear that autism is not a mental illness and detaining a person with autism in hospital is rarely likely to be helpful, since it will inevitably involve changes in routine that will provoke anxiety. In contrast, it has been suggested that the exclusion of both from the MHA could result in a rise in self harm, suicide and harm to others if people are not supported effectively.
Hollins et al suggest that the Mental Capacity Act 2005 can provide frameworks for intervention where people with learning disabilities and/or autism have no co-existing mental illness and this is certainly something which requires further careful consideration 2. Clearly a consequence of the exclusion would be an increase in workload for the Court of Protection in dealing with deprivations of liberty and/or other court orders as required.
It is important to bear in mind that changes in this regard will also have associated repercussions as regards the criminal justice context, as the MHA allows the courts to divert people who are accused or have committed an offence to an impatient setting rather than remanding them to custody or imposing a custodial sentence. It will therefore be vital to consider what options will be available for those with learning disabilities and/or autism in this context. The case of R (Hall) v SSJ  EWHC 1905 (Admin) highlighted the varying levels of awareness and training received by prison staff regarding necessary reasonable adjustments for prisoners with autism and moreover the lack of accredited institutions more generally. As was suggested in 2015, learning disabilities and autism could be excluded from the civil but not the criminal sections of the MHA. Again, this would not be without difficulty.
Legal duties on CCGs and LAs
The Parliament’s Joint Committee for Human Rights (‘JCHR’) report also recommend narrowing of the MHA criteria to avoid inappropriate detention, which is noted to ‘cause suffering’ and ‘does long term damage’. The JCHR has identified that the right housing, social care and health services needed to prevent people being detained inappropriately are simply not being commissioned at local level. The Committee suggest that legal duties on clinical commissioning groups and local authorities should be created to ensure the right services are available in the community. This is commendable, however it fails to appreciate the stark reality, that changes in the law alone will not transform care. As was highlighted in a recently published Court of Protection judgment, Dorset Council v A (Residential Placement: Lack of Resources  EWFC 62 the lack of appropriate placements are at the forefront of issues faced by individuals and commissioners alike, particularly in relation to those with learning disabilities and/or autism. His Honour Judge Dancey emphasised that the problems are huge, noting that placements are seized upon when they do appear and sometimes it has taken so long to identify an alternative placement that trust has broken down. This only serves to compound the difficulty of moving young people on.
As has been commented, the better placements coveted cannot simply be conjured up and of course commissioners already have a duty to commission appropriate services pursuant to the National Health Service Act 2006. Equally local authorities are under Care Act 2014 duties to promote an efficient and effective market for adult social care and support as a whole in relation to both diversity and quality of services. Query whether both should have regard to the need for sufficiency of community treatment and support moving forwards No Voice Unheard (p.22 para 1.21), and whether this could appropriately be recorded in the new MHA.
1 Sheila Hollins, Keri-Michele Lodge and Paul Lomax, (2019) The case for removing intellectual disability and autism from the Mental Health Act, The British Journal of Psychiatry 215, pp. 633-635.
2 Hollins et al ibid. 633
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.