Independent review of the Mental Health Act—changes are needed

This article was first published on Lexis®PSL Local Government on 22 May 2018. Click for a free trial of Lexis®PSL.

Local Government analysis: Karen Jackson, associate at Enable Law, and Laurence Vick, legal director, consider the recently published interim report on the review of the Mental Health Act 1983 (MeHA 1983), which makes clear that changes are needed but that legislation alone is not sufficient, and hints that some radical recommendations are likely in the final report.

Original news

Mental Health Act review shows ‘things need to change’, LNB News 01/05/2018 102

The government has released a report covering the independent review of MeHA 1983, commissioned in 2017. Professor Sir Simon Wessely, chair of the review, was asked to provide recommendations for improvement in relation to rising detention rates, racial disparities in detention, and concerns that the act is out of step with a modern mental health system. His findings conclude that while many people understand being detained under MeHA 1983 as necessary, they also found that ‘all too frequently we have heard about practices and procedures which fell short of respecting their dignity’.

What is the purpose and remit of the review?

The review was commissioned specifically to look at and understand the reasons behind the rising rates of detention under MeHA 1983, the reasons for the disproportionate numbers of people from black and minority ethnic (BAME) groups who are detained under the Act, and processes which are out of step with a modern mental health care system.

The remit is very broad and encompasses most of the issues which are all too well known to practitioners. It is extremely sympathetic and patient focussed, making reference throughout to the extensive powers of MeHA 1983, with an awareness of the fact that the powers are exercised when people are at their most vulnerable. Reference is made to welcoming the increased emphasis on the rights of patients as service users rather than a predominant focus being solely on health and safety. Interestingly, the report suggests revisiting the concept of ‘risk’.

This is an interim report with some provisional decisions, giving a good indication of the focus for the remaining report. It is expected that there will be some very clear recommendations.

Who is conducting the review?

The chair of the review is Professor Simon Wessely, Regius Professor of psychiatry at King’s College, London and president of the Royal Society of Medicine. Vice chairs are Steven Gilbert (service user and serious mental health living consultant), Sir Mark Hedley (retired high court judge) and Rabbi Baroness Neuberger (former CEO of the King’s Fund and chair of Liverpool Care Pathway).

It is made clear that the review will continue to actively seek the views of service users, carers, relevant professionals and organisations introducing recommendations.

When is the review likely to be completed?

The final report with recommendations is expected in the autumn of 2018.

What are the review’s initial views?

As this is only an interim report, there are no final recommendations—however, the report ranges across a broad number of highly relevant topics and hint at some radical recommendations. It is made clear that changes are needed but that concentrating on legislation alone is not sufficient. It concludes that aspirational aims and outcomes are insufficient, however, so we can expect some concrete recommendations.

One indicator is that the review will be considering whether they can enshrine core principles in statute, with such principles sufficiently clear and precise to be legally enforceable. These principles are not articulated, but presumably would have similar focus to the core principles set out in recent legislation such as the Care Act 2014.

It is made clear that the interface between MeHA 1983 and the Mental Capacity Act 2005 (MCA 2005) is a critical issue for consideration. Allied to this is the role of advocates, and standardising the legal oversight in these areas with an exploration of how there could be a more joined-up approach.

Other areas of change are community treatment orders (CTOs), nearest relative provisions, the overlap with the criminal justice system, MeHA 1983 s 117 aftercare, children and young people, autism and learning disability.

In such a wide remit, what are the likely priorities?

The review set a number of familiar goals to underpin the work—namely, service users and carers being treated with dignity and respect, greater autonomy for people who are subject to mental health legislation, greater access for services for those who need them and making the least restrictive option appropriate to the person’s circumstances the default position.

The focus is also to be upon improved service user and carer wellbeing, support to service users and carers to be fully involved in treatment as possible, reduced disparities between groups with protected characteristics and a rights-based approach.

These may well form the core principles discussed above.

What are the key topics?

The review divides topics into subject areas:

• before detention
• during detention
• leaving hospital
• issues for particular groups

In relation to MeHA 1983 and MCA 2005 interface, there was considerable criticism in respect of the use of deprivation of liberty safeguards and those patients who are retained on a voluntary basis but do not have capacity to consent.

The report indicates its further priorities as:

• the interface of the criminal justice system, including the practicalities and benefits of NHS England taking over the commissioning of health services in police custody
• treatment safeguards following detention and whether or not there can be a reconfigured version of MeHA 1983, ss 2 and 3 • the role of hospital managers and the interface between tribunals and other parts of the judicial system
• CTOs and aftercare provisions under MeHA 1983, s 117 LexisNexis
• children and young people
• autism and learning disability

How does the review address of the issues of the voice of the patient?

The indication is that advocacy and extending the role and protecting the role that advocates can play, as well as informing the nearest relative provision to allow individuals to have more role in nominating a person of their choice, will be addressed.

With reference to issues of particular groups, what were the report’s conclusions?

The experiences of BAME people within the mental health services will be a thread running through the review, with particular consideration as to why some BAME groups have worse outcomes and what specific changes to MeHA 1983 or code of practice can be implemented.

Are there likely to be any changes to legislation, in particular to fuse mental health and mental capacity legislation?

While agreeing that fusion of legislation in the future would be a possible option, the review took a realistic approach that it was unlikely to happen in the short term. It appears, however, that there may well be clear recommendations that will require primary and secondary legislation.

If I want to contribute towards the review, how do I do so?

The review panel has made it clear that they are very keen to hear from as wide a range of participants as possible, and anyone with specific experiences relevant to the wide-ranging topics and issues set out in the review should get in touch via MHActreview@dh.gsi.gov.uk

Interviewed by Alex Heshmaty.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.