In January 2021 the government published Reforming the Mental Health Act, a white paper issued in response to the Independent Review of the Mental Health Act’s final report, published in 2018. The white paper sets out the government’s proposals to update the Mental Health Act and wider reforms of policy and practice around it.
The government consulted on the white paper, and the Mental Health Network (MHN) engaged with both members and service-users to inform our consultation response. During the engagement we heard a wide variety of views on the proposals, which made finding a consensus on many of the consultation questions difficult.
We have tried to reflect the variety of views within our response. Many of the recommendations rely on additional resourcing and staffing capacity and without significant additional resource for the NHS, social care and the Tribunal Service, the proposals will not be successfully implemented. The 2021 spending review is an opportunity for the government to show its commitment to reforming the Mental Health Act and we are working with our colleagues in the Mental Health Policy Group to highlight the resources that are required.
New guiding principles
There are 4 new guiding principles that people working to provide care will need to consider while carrying out their duties. These principles are central to our plans to modernise and improve the Mental Health Act. They are:
- choice and autonomy – making sure people's views and choices are respected
- least restriction – making sure the act's powers are used in the least restrictive way
- therapeutic benefit – making sure patients are supported to get better, so they can be discharged from the act as quickly as possible
- the person as an individual – making sure patients are viewed and treated as rounded individuals
Consultation question 1
We propose embedding the principles in the MHA and the MHA code of practice. Where else would you like to see the principles applied to ensure that they have an impact and are embedded in everyday practice?
The Mental Health Network welcome the inclusion of the guiding principles in the legislation and code of practice. The principles will provide a strong foundation to improve the experience of people detained under the Act and to better support recovery.
It would be beneficial for commissioners and regulators of mental health and learning disability services to be guided by the principles. The principles could be included in the system oversight framework and form the basis of inspection frameworks.
Clearer, stronger detention criteria
Consultation question 2: agree
We want to change the detention criteria so that detention must provide a therapeutic benefit to the individual. Do you agree or disagree with this proposal?
We agree that detention should be for therapeutic benefit, as the purpose of detention should not be limited to containment, but to actively support recovery of the individual.
How “therapeutic” is defined and interpreted will be important. Therapeutic should not just mean access to medical treatment, it should also include compassionate and trauma-informed care, and access to holistic support such as art and music therapy, outside space, exercise equipment, and the internet so that patients can maintain relationships with their support networks.
The code of practice should outline, as fully as possible, how therapeutic is defined. For example, could therapeutic be interpreted to mean preventing a person’s condition from deteriorating?
Due to historic underfunding for mental health estates, many ward environments are not therapeutic, particularly for people with autism. Some estates, particularly older buildings can feel overly institutional. The lack of access to private bathrooms, comfortable communal areas and outside space can mean that patients do feel that their well-being is supported. The funding to support the eradication of dormitory wards is an important step in making inpatient wards more therapeutic, but this must be a down-payment on a long-term, significant capital funding settlement for mental health. If wards are not environments that patients feel comfortable in, then there is the risk that formal detentions will continue to increase, and principle that care must be therapeutic will not be achieved.
Consultation question 3: agree
We also want to change the detention criteria so that an individual is only detained if there is a substantial likelihood of significant harm to the health, safety or welfare of the person, or the safety of any other person. Do you agree or disagree with this change?
The Mental Health Network agree with these changes to the detention criteria. Detentions under the Act should only be used when absolutely necessary, and this proposal will help raise the bar for detention and help ensure fewer people are detained.
This change must be supported by improved and expanded community mental health services, to ensure that people who no longer fit the criteria for detention can still access services. Raising the bar for detention will mean that community mental health services will be supporting patients with a higher level of acuity. Smaller caseloads for clinicians and stronger links between secondary and community services will help staff working in the community to provide a higher level of support.
Accepting a higher level of risk will require a culture change in the system. Clinicians will be held accountable if a decision not to detain is made, and the service-user then sadly harms themselves or another. Clinicians must be confident that the right level of support is available out of hospital, otherwise they will continue to default to detention.
There is a risk that patients from some BAME backgrounds will still be regarded as high risk and that detention is necessary, and the disproportional use of the Act on some groups will remain or be exacerbated. Unconscious bias training and increasing the diversity of the mental health workforce will help mitigate this risk.
NHS Long Term Plan funding to support the implementation of the new community mental health framework (CMHF) will play an important role in ensuring this proposal is beneficial for service-users. Local authorities play a vital role in the CMHF. Local authorities must be given the funding they need to play an active role in supporting people in the community.
Follow-up care must also be improved as patients will be discharged with a higher level of acuity. High quality aftercare will reduce the risk of a service-user experiencing a mental health crisis and requiring detention. Access to Section 117 aftercare is often onerous for both the service-users and the services involved, with multiple assessments. Adequate funding and a streamlined approach to assessment would be beneficial.
It is important there are clear definitions of what “significant”, “substantial” and “welfare” mean in practice, to ensure that there is consistency on how the Act is used and that the new detention criteria does raise the bar for detention.
There is particular concern from service-users around the term “welfare”. There is a risk that this definition could be interpreted very broadly, and increase, rather than decrease the risk of detention.
While we acknowledge that the definitions will be impacted by future case law, it will be beneficial to have as much detail in how the terms are expected to be interpreted in the code of practice as possible.
It would also be useful if the same definitions that have been agreed in other pieces of legislation, for example the term “significant harm” which was defined in the Children’s Act, are used, to avoid unnecessary complexity and inconsistency for service-users and clinicians.
Giving patients more rights to challenge detention
Consultation question 4: not sure
Do you agree or disagree with the proposed timetable for automatic referrals to the Mental Health Tribunal (see table 1 for details)?
Tribunals are a useful safeguard for service-users and increasing access to them will allow service-users more opportunities to challenge decisions about their care and treatment, which the Mental Health Network welcomes.
Increased access to tribunals must be balanced with the capacity of the Tribunal System and mental health providers to ensure that hearings can be timely, and that staff have capacity to sufficiently prepare for the hearings. While consulting with Mental Health Network members and service-users we heard that preparing for tribunals can already take up a significant proportion of some clinician’s time, and while tribunals are an important part of supporting patients, it is important to acknowledge that increased access to tribunals will impact on the capacity of staff to provide care. Additional resources for the NHS and the Tribunal Service will be required to successfully implement additional tribunal hearing, and better use of technology and digitalisation may help to make the process more efficient.
Consultation question 6: not sure
We want to give the Mental Health Tribunal more power to grant leave, transfers and community services.
We propose that health and local authorities should be given 5 weeks to deliver on directions made by the Mental Health Tribunal. Do you agree or disagree that this is an appropriate amount of time?
Service-users should be given access to appropriate mental health support in a timely manner, but any time limit can only be achieved if there are sufficient resources to fund the services that are needed. There is a risk that out-of-area placements (OAPs) may rise if appropriate services are not available locally within that time frame, and we know that OAPs are linked to longer inpatient stays, closed cultures and higher risks of self-harm and suicide.
As services will be assessed on their ability to meet the five-week target, there is a risk that resources will be prioritised to patients who have had a tribunal judgement, to the detriment of patients who have not. Ensuring that services have the resources they need will help mitigate this risk.
Clinicians have some concerns around giving the tribunal powers to grant leave. They feel that the decision to grant leave is a one based on multi-disciplinary, clinical opinions made by staff who know the patient. If the tribunal grants leave, the risk remains with the clinicians. A service-user’s level of risk can also fluctuate, so there are questions around how long a judgement would last, and what changes in risk need to have been recognised in order for clinicians to be able to override the judgement.
Hospital managers’ hearings
Consultation question 7: not sure
Do you agree or disagree with the proposal to remove the role of the managers’ panel in reviewing a patient's case for discharge from detention or a community treatment order?
We heard differences of opinion on the issue of removing the power to discharge from the hospital managers panel. Some staff working in trusts and service-users felt that the hearings are not meaningful interventions and rarely result in discharge. Some service-users also felt that the hearings were not independent from the trust and reported that obtaining legal representation for the hearings can be difficult.
However, we also heard that some trusts value the hearings, and that the hospital managers’ scrutiny of papers and decisions is useful. It was also felt by some that removing this safeguard would go against the spirit of the review.
Strengthening the patient's right to choose and refuse treatment
Consultation question 8
Do you have any other suggestions for what should be included in a person's advance choice document?
There should be flexibility to allow the service-user to include what they determine to be important. We heard an example of including that self-harm should not be a reason for detention, as the self-harm would continue while the individual is detained, and this was agreed with the relevant clinician in the current equivalent of an advance choice document (ACD). It would also be useful if service-users could identify more than one person who they would choose as their nominated person (NP), in case of any difficulty in appointing the NP.
ACDs will also needs to be an iterative document, which can be updated as the individual’s circumstance changes.
It is vital that the ACDs are created in genuine partnership with the service-user, and their NP where appropriate. We heard concerns from service-users that current care planning is not always co-produced and can seem like a tick-box exercise, rather than a meaningful conversation with a final document that represents the wishes of the service-user. Guidance around what good practice looks like for completing a high-quality ACD would be useful for staff and service-users.
For ACDs to be of high-quality, staff must have the capacity to hold the conversations with service-users. Additional staff, so that caseloads are smaller, will be necessary for advanced care planning to be effective. It would also be beneficial for primary care to have access to the ACDs, so they are aware of the service-users preferences and can support where appropriate.
We heard that the process to create Care and Treatment Reviews (CTRs) could be a good model to replicate for ACDs. CTRs are created in genuine partnership with service-users and their carers, and have had demonstrable impact on hospital admissions and length of stays.
The proposals state it will be a legal requirement for clinicians to “consider” an individual’s ACD. How this will work in practice is important. Service-users had concerns that this does not give enough weight to the document, and that clinicians may be able to easily overrule the preferences. The risk of this is increased if clinicians do not have the capacity to properly consider the service-user’s wishes and discuss their concerns.
It would be useful for clinicians, service-users and their carers if there was consistent language to define advanced care documents. NICE guidance refers to Advance Care Planning, and under the MHA it is known as an Advanced Statement.
Making care and treatment plans statutory
Consultation question 10:
Do you have any other suggestions for what should be included in a person's care and treatment plans?
The proposed list of items that could be included in a care and treatment plan (CTP) looks comprehensive, and we agree that CTPs have the potential to strengthen the patient voice and re-calibrate the relationship between service-users and clinicians.
However, the issue of staffing capacity – like our concerns around ACDs - could be a risk to ensuring that these are created in a meaningful and co-produced manner. Additional staff and smaller caseloads would help clinicians create high-quality and co-produced CTPs.
Clinicians raised concerns particularly around capacity to complete “internal scrutiny” of ACDs within fourteen days. Some trusts with hundreds of inpatient beds will find this incredibly challenging, and there is a risk that the internal scrutiny becomes no more than a tick box exercise, due to the lack of capacity within the trust to complete this in a meaningful way. Effective digitalisation could help mitigate these risks, but scrutinising CTPs within fourteen days will be a significant challenge.
A new framework for patient consent and refusal of medical treatment
Consultation question 11: agree
Do you agree or disagree that patients with capacity who are refusing treatment should have the right to have their wishes respected even if the treatment is considered immediately necessary to alleviate serious suffering?
We agree with this proposal, as it is right for an individual with capacity to have as much right to determine their own lives as possible, and it is the service-user who will Improving support for people who are detained.
Consultation question 13: agree
Do you agree or disagree with the proposed additional powers of the nominated person?
We agree that giving the nominated person (NP) more power will be a positive change to the legislation, as those who know the needs of the service-user will be more involved in decisions made about their care.
Giving the service-user the right to choose their NP is also welcome, as the current system is outdated and does not reflect modern family and support network structures.
Some clinicians and service-users had questions around who will be deemed as an appropriate person to identify as a NP. Some service-users may want to choose a healthcare professional or a peer support worker, and there are questions over whether this would be appropriate for both the proposed NP and the service-user.
The situation could also arise that another service-user is chosen, and the NP then became too unwell to effectively act as a NP. There will need to be a process to manage this situation within the code of practice, potentially involving the AMHP.
While it is right that the service-user can decide who their NP will be, we heard concerns from both clinicians and service-users around how families may feel if they are not chosen as an NP. They may feel frustrated at not being involved in their loved-one’s care, or that the chosen NP is inappropriate.
We agree that the process for an AMHP to identify a NP if a service-user does not have capacity should be set out in the code of practice. The knowledge of a service- user’s care coordinator would be useful to help determine the most appropriate person.
The proposal to allow the AMHP to overrule the NP's objection to admission, as opposed to the NP being removed or displaced, is a positive shift, as current rules mean that someone who is best placed to promote the patient’s interests may be prevented from doing so. However, concerns were raised by service-users that this change may mean that the AMHP is more likely to overrule the NP, as the process is less burdensome. If an AMHP does want to overrule the NP temporarily, it is important that they are required to explain in detail why they believe overruling the NP is in the best interests of the service-user.
Consultation question 14: not sure
Do you agree or disagree that someone under the age of 16 should be able to choose a nominated person (including someone who does not have parental responsibility for them), where they have the ability to understand the decision (known as ‘Gillick competence’)?
The experience of people who are under 16 who are detained is too often negative and allowing young people to have more say will help them feel more ownership and agency over the care. However, clinicians are concerned that there are potential safeguarding issues in allowing someone under the age of 16 to choose their nominated person, even if they are Gillick competent, and there may be strong push-back from families if they are not chosen as the NP.
The interface between the Mental Health Act and the Mental Capacity Act
Consultation question 17
How should the legal framework define the dividing line between the Mental Health Act and the Mental Capacity Act so that patients may be made subject to the powers which most appropriately meet their circumstances?
There was the opinion from clinicians that the review has missed an opportunity to fuse the two pieces of legislation into one Act, as this would provide a less complex legislative landscape for both clinicians and service-users. There was acknowledgement that the implementation of LPS should improve the current system, but it will have significant resource implications for trusts.
Consultation question 18: not sure
Do you agree or disagree that the right to give advance consent to informal admission to a mental health hospital should be set out in the Mental Health Act (MHA) and the MHA code of practice to make clear the availability of this right to individuals?
The majority of service-users we spoke to were against this proposal, however some felt that it may be beneficial for some service-users.
While in theory this would be a less restrictive option than detention, concerns were raised around the lack of access to safeguards that formally detained patients are entitled to.
There was also nervousness around the process if a service-user wants to withdraw their consent once they had been admitted. There were concerns that service-users may not feel comfortable objecting, and therefore would continue to be an informal patient, rather than a formal patient with access to relevant safeguards.
Consultation question 18b
If agree, are there any safeguards that should be put in place to ensure that an individual's advance consent to admission is appropriately followed?
The proposal to expand access to IMHAs for informal patients would act as a safeguard for those who had been admitted with prior consent.
Hospital managers panels may be able to play a role in scrutinising and overseeing admissions where the patient consented in advance.
Consultation question 19
We want to ensure that health professionals are able to temporarily hold individuals in A&E when they are in crisis and need a mental health assessment, but are trying to leave A&E.
Do you think that the amendments to section 4B of the Mental Capacity Act achieve this objective, or should we also extend section 5 of the Mental Health Act (MHA)?
- rely on section 4B of the Mental Capacity Act only
- extend section 5 of the MHA so that it also applies A&E, accepting that section 4B is still available and can be used where appropriate
Consultation question 19a
MHN heard a variety of views on this proposal. The extension of Section 5 would potentially reduce the reliance on police to hold people in A&E. This is seen as positive, as it is more appropriate for people experiencing a mental health crisis to be held by health professionals, rather than police officers. Availability of a safe and therapeutic space in A&E departments where some-one experiencing crisis could be held would be necessary to alleviate distress.
It would be particularly beneficial for those from Black ethnic groups, as there is widespread distrust of the police in this community and the involvement of police can further distress individuals, rather than de-escalating the individual’s crisis.
However, there were concerns that this proposal goes against the spirit of the review, as is it a further restriction on an individual’s liberty. It may also deter people from attending A&E for both mental health and physical health emergencies, as they would be concerned they would be detained. Rather than improving crisis care, this could be a barrier to people accessing support when experiencing a crisis.
People who need to attend A&E for self-harm already report that the experience is too often negative and stigmatising and this can be a barrier to them attending A&E. If they also had concerns that they would be detained by health professionals, this could further deter them from accessing the physical health care that they need.
Improving the environment in A&E departments for people experiencing a mental health crisis would help reduce the risk that an individual would want to leave. Ward environments in A&E departments are rarely therapeutic and there is paucity of safe spaces for people experiencing a crisis to wait in while they wait for treatment or an assessment.
Improvements and expansion in 24/7 specialised mental health crisis care for all ages will help reduce the reliance on A&E. Although improvements have been made in mental health crisis care, there is still some way to go to ensure people are able to access high-quality crisis care, particularly at night, in rural areas and for children and young people.
Caring for patients in the Criminal Justice System
Consultation question 20: not sure
To speed up the transfer from prison or immigration removal centres (IRCs) to mental health inpatient settings, we want to introduce a 28-day time limit.
Do any further safeguards need to be in place before we can implement a statutory time limit for secure transfers?
We know that current transfer times from prisons and immigration detention centres to mental health inpatient settings are often unacceptably long, and a commitment to speeding up the process of transfers is a positive step. However, the cause of long waits for transfers is often a lack of appropriate services for people to be transferred to, rather than a lack of urgency within the system. Significant additional resources would be needed in order for trusts to be able to meet this target, and there are risks that clinician would be more hesitant to recommend hospitalisation if they were not confident that this target would be met.
Consultation question 21
We want to establish a new designated role for a person to manage the process of transferring people from prison or an immigration removal centre (IRC) to hospital when they require inpatient treatment for their mental health.
Which of the following options do you think is the most effective approach to achieving this?
Consultation question 21a
This new designated role would not address the root cause of the problem with prison and immigration removal centre transfers, which is a lack of appropriate services for prisoners to be transferred to. Additional resources to expand inpatient services would be more effective in speeding up transfers.
Consultation question 23: not sure
For restricted patients who are no longer therapeutically benefiting from detention in hospital, but whose risk could only be managed safely in the community with continuous supervision, we think it should be possible to discharge these patients into the community with conditions that amount to a deprivation of liberty.
Do you agree or disagree that this is the best way of enabling these patients to move from hospital into the community?
We understand that this new “supervised discharge” has been proposed in response to a Supreme Court judgement, and that it could be the least restrictive option for this small numbers of people that it would apply to. However, clinicians have concerns that this would be a less regulated but more coercive structure and there are risks that this power would become similar to Community Treatment Orders, which are difficult to be discharged from and not always seen as effective. The use and impact of this new power will need to be closely monitored and reviewed if appropriate.
People with a learning disability and autistic people
Consultation question 26: not sure
Do you agree or disagree with the proposed reforms to the way the Mental Health Act applies to people with a learning disability and autistic people?
MHN agree that having a learning disability and/or autism should not be grounds for detention alone. Learning disabilities and autism are not conditions that can be treated and detention for these groups, especially for people with autism, is often not therapeutic and can be detrimental to their mental health, causing unnecessarily long inpatient stays, and distress for the individuals and their families.
However, this change will only be beneficial to people with a learning disability and/or autism and their families if they have access to high quality community support. Otherwise, there is a risk that people from these groups will end up in the criminal justice system, which would likely have an even more negative impact on the individual and their families then being detained under the MHA. The risk of ending up in the criminal justice system is even higher for those from Black ethnic groups, as the evidence shows that individuals from these groups are more likely to come into contact with the criminal justice system.
Clinicians raised concerns that this proposal may be “putting the cart before the horse” and that significant expansion of community services is needed, particularly for those with autism, before this legislative change is made.
There is a wider issue that inpatient mental health care does not always meet the needs of people with a learning disability and autistic people who do have a co-occurring mental health condition. Improved training for staff around learning disabilities and autism and working towards making mental health environments autism friendly will help improve the care these individuals receive.
There are too often significant delays and barriers to people being given a diagnosis of autism or a learning disability, both in adults and in children. If an individual has a learning disability and/or autism but has not been diagnosed and is presenting with challenging behaviour, it may be mistaken as a mental health condition and detained unnecessarily. Improvements in diagnosis would help ensure that people with a learning disability and/or autism are given the support they need.
Consultation question 27: not sure
Do you agree or disagree that the proposed reforms provide adequate safeguards for people with a learning disability and autistic people when they do not have a co-occurring mental health condition?
The proposed reforms will only provide adequate safeguards for people with a learning disability and/or autism if there is the funding, workforce and capacity of organisations to expand community learning disability and autism services.
Some clinicians have concerns that the 28 day limit to assess whether an individual has a co-occurring mental illness may not be a sufficient amount of time to correctly determine this in all cases, as some service-users may not engage with clinicians for some time.
Consultation question 28
Do you expect that there would be unintended consequences (negative or positive) of the proposals to reform the way the Mental Health Act applies to people with a learning disability and autistic people?
There is risk that if people with a learning disability and/or autism do not receive support they need from services that their carers, who already often face difficulties in supporting their family members, will need to do more to ensure that their loved one is able to lead their life as independently as possible. This could impact on carers’ mental health, their ability to care for other members of their families, their employment and finances. Increased and improved respite care for families would help mitigate this risk but is reliant on adequate resources.
People with a learning disability face some of the starkest health inequalities, with life expectancy around 15-20 years shorter than average. If people with a learning disability are not able to access the care they need, then there is a risk that physical health issues are less likely to be identified, and the unacceptable inequalities will be exacerbated.
Consultation question 30
Do you expect that there would be unintended consequences (negative or positive) on the criminal justice system as a result of our proposals to reform the way the Mental Health Act applies to people with a learning disability and to autistic people?
People with a learning disability and/or autism are already significantly over-represented in the criminal justice system. If people are not able to access support in the community their behaviour may become more challenging, and this could be interpreted by the police as criminal behaviour. As we stated previously, there is also a higher risk for individuals from some Black ethnic groups, as they are already more likely to come into contact with the criminal justice system.
Improved liaison and diversion services within the criminal justice could help mitigate this risk. Improved custodial environments for people with a learning disability and/or autism would also help reduce the negative impact of people in these groups who do come into contact with the criminal justice system.
Consultation question 32: not sure
We propose to create a new duty on local commissioners (NHS and local government) to ensure adequacy of supply of community services for people with a learning disability and autistic people. Do you agree or disagree with this?
Learning disability and autism services have been historically underfunded, and too many people do not get the care they need. The commitment to ensuring that there are adequate learning disability and autism services for all is welcome, and will help reverse the historic inequalities in accessing care that these groups have faced.
However, significant additional resources will be needed to achieve this, and they will need time to be built up. Commissioners are concerned that the resources will not be made available to commission and oversee the services.
The number of learning disability nurses has reduced by around 40 percent between 2010 and 2020 (NHS Digital). While the financial incentives to encourage people to train as learning disability nurses, and the introduction of nursing associates will help booster the workforce, it will still take some time before we have an adequate number of nurses to support people in the community.
As we move towards Integrated Care Systems (ICS), taking more control over funding allocations, it will be vital that there is an acceptance and understanding at ICS level of the need to increase funding for learning disability and autism services.
As commissioning moves into Integrated Care Systems, there is a risk that the specialist knowledge, skills and capacity of learning disabilities commissioners is diluted or reduced as commissioning organisations merge and transform. Commissioning of learning disability and autism services is not always given the profile and attention that it requires, and this would need to be rectified for services to be successfully expanded and improved.
Learning disability spend is not currently included in the Mental Health Investment Standard (MHIS), which has been effective in increasing funding for mental health services. As learning disability spend is not included, it means it can be more difficult for commissioners to target investment into these services. Including learning disability spend into the MHIS or creating a ring-fenced pot of funding may help divert more funding into these services.