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Amending the Mental Health Act: Part 6 – The Voluntary Patient

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

In the recent Queen’s speech, the government confirmed its 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

The Voluntary Patient

The review of the Mental Health Act chaired by Sir Simon Wessely, which was reported in December 2018, commented as follows on the position of the voluntary patient:

“We are concerned about the near demise of the “voluntary” or “informal” admission.  Over the last few decades, the proportion of those in inpatient beds that are informal admissions has fallen relentlessly, due to two factors.  First, as is well known, and a cause for celebration, the overall number of beds has reduced by over 90% since the start of the deinstitutionalisation in the 1960s.  So inevitably those who now occupy beds are more likely to be severely ill and hence detained.  Second, however, has been the change brought about by the 2007 amendments to the Mental Capacity Act and then the decision of the Supreme Court in “Cheshire West” in 2014.  It is now necessary to provide a lawful justification for a deprivation of liberty in any person who lacks capacity and is today de facto “detained” in hospital, even if seemingly consenting to this situation.  Almost unremarked upon has been the steady decline of informality in mental health settings despite the provisions of Section 131, which explicitly protects the status of informal patients.

It seems to us that the aspiration towards voluntary admission, as is the norm, is worth asserting.  First, we think that voluntary admission should be the first to be dealt with in the Act before coming to compulsory powers.  Second, we discuss issues of advance consent to admission itself, whether expressed by way of Advance Choice Documents or through the appointment of a health and welfare attorney under the Mental Capacity Act.  We have not made firm recommendations here, recognising that there are genuine disagreements that mandate wider consultation.”

One might therefore assume that this issue will be covered by the proposed amendment of the Mental Health Act, both to retain a provision such as S.131 to confirm the existence of voluntary admissions, and possibly to elevate it to a mandatory consideration before detention on a compulsory basis.  That chimes with the current principle of “least restriction”, although it might also be said that it is no more than a consideration of whether the patient meets the criteria for detention i.e do they need to be detained.

A wider use of advance consent may increase the use of voluntary admissions, although one may suspect that the two key issues that determine the use of voluntary admission are:

  • The focus on treating in hospital only the most unwell patients because of the rise of community care and a decrease in beds
  • The interaction with the Mental Capacity Act,2 and the deprivation of liberty arrangements (via a Court Order, a Deprivation of Liberty (“Dols”) Authorisation, or the Liberty Protection Safeguards3).

1 The full series of briefings is available here

2 See Briefing here

3 Due to come into force in October 2020


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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