2018 The Law Society. All rights reserved. Mental Health Act 1983 Independent Review Call for Evidence Law Society response January 2018

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1 2018 The Law Society. All rights reserved. Mental Health Act 1983 Independent Review Call for Evidence Law Society response January 2018

2 Mental Health Act: Independent Review 2017/18 Law Society response to the Call for Evidence Introduction This paper has been produced by the Law Society s Mental Health & Disability Committee to assist the review s advisory panel in deciding which areas of the Mental Health Act 1983 (MHA) require reform. Our conclusions on these areas derive from our cumulative professional experiences as lawyers, particularly those representing clients before the Mental Health Tribunal (MHT) and those sitting as judicial members. Our proposals relate predominantly to legal reform rather than to service issues. However, in our work we witness first-hand the impact of chronic underfunding on services for those with mental health problems. The impact of this on both patients in the community and those who are detained cannot be overstated. Inevitably, we must comment on issues of service provision given the inextricable link they have to the central question posed by Government for the review, namely, why the number of detentions under the MHA have so markedly risen in recent years? Before we set out our specific proposals in relation to the MHA we would like to underline two issues of overarching importance which must be considered by the review team. We concede that they are complex and that there are no straightforward solutions to the questions they pose for legislative reform. The interface between the Mental Health Act 1983 and the Mental Capacity Act 2005 The conflicts and inconsistences that arise from having two separate pieces of legislation which cover detention and treatment for mental disorder (MHA) and mental capacity (MCA 2005) requires consideration by the review team. Compatability with the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) The provisions of the MHA detention and treatment regime are fundamentally incompatible with key UNCRPD rights, particularly Article 14. The CRPD Committee has also raised concerns about the compatibility of the MCA 2005 with the UNCRPD 1. The review should include consideration of the compatibility of any future UK mental health legislation with the UNCRPD. Our recommendations for Mental Health Act 1983 legislative reform To assist the review we have grouped our suggestions for legislative reform under appropriate headings as follows: A - ADMISSION (i) Giving informal admission statutory force Section 131 of the MHA should be amended to require informal admission to be formally considered as an alternative precursor to detention under the MHA. Although the MHA Code of Practice 2015 makes clear that detention under the MHA is a last resort, we recommend that this principle should be incorporated into the legislation as well. 1 oryid=7

3 (ii) Period of detention under Section 3 The first period of detention under section 3 should be reduced from six months to three months. The current timescale which jumps from twenty-eight days for detention under section 2 to six months for detention under section 3 is unduly long. This causes significant distress to patients and arguably conflicts with the MHA Code of Practice s principle of the least restrictive option and contravenes human rights considerations. There has been a substantial move in recent years towards a culture of treating people in the least restrictive environment within a community setting. This has been significantly underpinned by medication for patients which enables them to manage, often chronic, conditions with the support of community based services, inadequate as they are. Moreover, it is now rare for many patients to be detained under section 3 for as long as six months. In the experience of our members the average period of detention time is often well under three months. A change, to a three-month section 3 detention period would reflect modern day practice, and that is what we recommend. B Care and Treatment in Hospital (i) Treatment without consent under the MHA 1983 Part IV of the MHA 1983 requires amendment. In the light of X v Finland, section 63 is incompatible with Article 8 of the European Convention on Human Rights (the ECHR). The absence of any meaningful safeguards against arbitrariness and disregard for patients wishes regarding their treatment in the first three months of detention is unacceptable. Moreover, as the review team will be aware, the compulsory treatment provisions under the MHA are in conflict with the provisions of the CRPD. We recommend that the provision that a patient can be treated without their consent in the first three months of detention should be abolished. Currently, section 63 of the MHA 1983 applies to the medical treatment of patients in the first three months of their detention under the Act, thereby permitting such patients to be treated without their consent and with no safeguards. The Act should be amended so that the safeguards under section 58 of the MHA 1983 apply at any time that medical treatment for mental disorder is proposed, so that treatment without consent can only be given if authorised by a SOAD (second opinion appointed doctor). We recognise that there will need to be some provision for the use of urgent treatment in the very early stages of admission for those lacking capacity. This could be met by a limited exception that emergency treatment decisions should be reviewed by a SOAD within seven days. We also recommend that where the patient has capacity and is refusing treatment, more stringent safeguards than currently set out in section 58 should apply. One option would be to provide that where the patient has capacity, the SOAD can only authorise treatment without that person s consent if the criteria set out in section 62 are met (see paragraphs (a) (d) of that section). C (i) Discharge Automatic referrals to the tribunal We recommend greater safeguards for an individual s rights under Article 5 of the ECHR, particularly where a patient lacks capacity. Consideration must be given to implementing automatic referrals to the Tribunal during or at the end of every period of detention for all

4 patients. If this recommendation was carried through, it would then also be necessary to consider whether capacitous patients should have the ability to opt out of a tribunal referral, or simply choose not to attend, (as we are aware that some patients may consider a tribunal referral unhelpful or an unnecessary stress). Legislative reform is also needed following the decision in MH v UK [2013] ECHR 1008 (22 October 2014) to remedy the absence of safeguards for those who lack capacity to apply to the tribunal. (ii) Statutory requirement to discharge where detention criteria are not met To reflect the requirements under Article 5 of the ECHR, we recommend that the responsible clinician (RC) is required to discharge the patient if the RC concludes that the conditions for detention are no longer met. Although this point is made in the MHA Code 2015, it is of such importance that it should be included in the legislation. (iii) Managers Hearings for patients who lack capacity Not all patients who lack capacity under the current legislation are able to challenge their detention whether in the tribunal or by way of a managers hearing. This appears prima facie discriminatory (on the basis that these patients lack capacity). Patients without capacity should be supported to apply for managers hearings and be provided with adequate representation, perhaps in a similar manner to those without capacity in the tribunal who are provided with solicitor representation under Rule 11(7) of the tribunal rules. We appreciate that there are issues of funding to consider here, along with the need to empower hospital managers to appoint a representative for the person, where appropriate. (iv) The need for an express requirement of tribunals to have regard to ECHR Rights The Court of Appeal in Welsh Ministers v PJ held that the tribunal s powers are limited to the statutory criteria set out in the MHA and that any Convention illegality (for example in relation to conditions attached to a CTO which deprive a patient of his or her liberty) should be challenged by judicial review. We consider that this is inconsistent with Sections 6 and 7 HRA 1998, and places an artificial limit on the ability of tribunals to provide practical and effective safeguards for the exercise of Article 5(4) rights. D Part III Mental Health Act 1983 (i) Transfer of Prisoners to Hospital Historically, prisoners have endured unjustifiably long delays in transferring from prisons to hospitals. The result for mentally disordered prisoners who cannot be treated in prison without their consent is often further deterioration in their mental state, which arguably leads to longer hospital admissions. The common occurrence of a gate detention once a prisoner has finished their sentence is highly objectionable. Moreover, the requirement that the necessary treatment should be urgent in the context of section 48 MHA (remand prisoners) should be disposed with (as irrelevant if speedy transfers to hospital cannot take place because of inadequate service provision). We see no reason why a prisoner who would normally be detained under section 3 (if in the community) should not be authorised by the Ministry of Justice for transfer without delay. Indeed, this was recommended by the Reed Committee 2 who concluded that this 2 In 1990 the Department of Health established the Review of Health and Social Services for Mentally Disordered Offenders, chaired by Dr John Reed

5 section should be applied where a doctor would recommend in-patient treatment if a person were seen as an out-patient in the community. This of course has to be supported by an increase in the number of secure beds available the current crisis in the availability of secure beds behind the inexcusable delay in transfers must be addressed. Put simply, we recommend that any prisoner who meets the criteria of section 3 MHA should be transferred to hospital within a reasonable period of time for treatment currently target transfer times 3 are regularly breached without consequence. We also question the level of involvement that the MOJ have, with their limited medical knowledge, in making what are clinical decisions for mental health patients who are, coincidentally, prisoners. (ii) Inadequacy of tribunal powers in respect of transferred patients It is essential that the powers of the tribunal be considered for reform. We suggest strongly that tribunals should be able to make statutory as well as non-statutory recommendations. Therefore, the statutory recommendations in section 72 should be imported into section 73. We also recommend that tribunals should be able to authorise leave (with the purpose of expediting transfer to a lower level of security and/or discharge) and transfer to a lower level of security in a manner that parallels the current role of the Ministry of Justice. E (ii) Aftercare Community Treatment Orders (CTOs) The rationale and justification for the significantly increased use of community treatment orders (CTOs) requires urgent review and the commissioning of further research. Our observations based on professional experience raise fundamental questions of the CTO regime and what it is in fact intended to achieve in practice, including: CTOs are supposed to enable patients to be released from detention earlier but are they in practice a crude mechanism for the chronic bed management issues in hospitals? Our judicial members note that many patients continue to present as unwell despite a high level of medical input while on a CTO. This raises the question of whether those patients should be receiving care in hospital rather than managed in the community where resources are so overstretched? Achieving discharge from a CTO is extremely difficult. Is this because they provide very broad powers and discretion to RCs who are understandably sensitive to the risks of an incorrect discharge? The CTO condition of most use and significance relates to the taking of medication which leads us to ask whether this is the primary practical purpose of the vast majority of CTOs, rather than the provision of holistic care in a community setting? Indeed, we are aware that London hospitals go so far as to offer financial rewards to patients who attend appointments for depot injections. We question why CTOs can only be accessed via MHA detention in hospital. In practice this can lead to longer periods of detention as clinicians can be reluctant to discharge patients which would then make them informal and thus prevent the later introduction of a CTO. 3 The Bradley Review (2009) made a recommendation that "the Department of Health should develop a new minimum target for the NHS of 14 days to transfer a prisoner with acute, severe mental illness to an appropriate healthcare setting". Additionally, it recommended the target should be included in the Central Mental Health Contract and the Operating Framework.

6 Relatively recent research such as the OCTET study raised serious questions about the therapeutic benefits of CTOs and tends to justify their being viewed as simply a method to deliver coercive treatment in the community when what should really be encouraged is consensual therapeutic treatment in the community provided by services that are resourced properly to do so. A fundamental review of the CTO regime is therefore required. (iii) Lack of access to aftercare for patients detained under section 2 and informal patients Section 117 of the MHA does not apply to patients admitted to hospital and treated informally or those detained under section 2. Nor will all such patients be eligible for the Care Programme Approach (CPA). As such, we strongly suggest that any person who has received inpatient care for mental disorder (whether for assessment or treatment and whether detained or otherwise) shall be entitled to an assessment of need under the relevant applicable legislation, namely the Care Act 2014; or section 17 Children Act if under 18; and in all cases to a care plan under the Care Programme Approach. F (i) Specific Groups Learning Disabilities (LDs) & Autism We continue to hold concerns which have been previously communicated to the Department of Health as to proposals that the LD community should be removed from the protection and safeguards of the MHA. This is not to say that we do not fully support an emphasis on ensuring that people with learning disabilities and people with autism are provided with the support that they need to live in the community, thereby avoiding the need for admission to hospital. The inappropriate use of the MHA is of course unacceptable. However, we question whether the misuse of the MHA justifies a proposal to remove the protection that the MHA provides to these groups. In cases where hospital admission is considered necessary for an individual, the MHA provides a legal framework that protects an individual s rights. By removing people with autism or learning disability from the scope of the MHA, this excludes those groups from what the law has to offer in terms of ensuring access to services, providing appropriate safeguards against inappropriate detention and/or treatment, and guaranteed rights to after care services. Specifically, for LD patients, and other patients who may need assistance to access IMHA support, we propose that the default position is that an IMHA will be allocated to such patients, with the opportunity for the patient to decline that support, or where the patient lacks capacity, for that support to be withdrawn if withdrawal is assessed to be in the best interests of the person. Too often patients with impaired capacity to instruct an IMHA go without this important safeguard. (ii) Under 18s Current safeguards for under 18s who are admitted to hospital and treated informally are inadequate. Figures obtained by the CQC show that in October 2017 only a third of under 18s receiving in-patient psychiatric care were detained under the MHA. The legal basis for the care and treatment of the remaining two thirds of under 18s was not given. However, in the light of recent Court of Appeal decision in Re D (A Child) [2017] EWCA Civ 1695 the numbers of under 18s admitted on the basis of parental consent may well increase. This is of concern given that there are limited safeguards for informal patients, even if they are

7 admitted without their consent, for example on the basis of parental consent. Accordingly, we propose that mental health legislation should include specific safeguards for under 18s receiving in-patient psychiatric care informally. It is important to consult children and young people, parents and others who work with this age group about what safeguards would be appropriate. A starting point would be those safeguards suggested in the government s Mental Health Bill 2004 (albeit they were intended for under 16s who objected to their treatment). Those safeguards included a care plan to be approved by an independent expert and reviewed on a regular basis (every three months) and a right to an independent mental health advocate. It will also be necessary to set out how concerns raised by the under 18-year old or the advocate should be addressed and the circumstances in which an application for detention under the MHA 1983 should be considered. G Additional Points Nearest Relative Rule It is clear to all that the nearest relative rule is outdated and not fit for purpose. We acknowledge that finding a replacement mechanism that can work in all scenarios, especially in emergencies, is not simple. Nevertheless, the role is a fundamental one and a significant safeguard for patients. One way forward is that legislation provides for patients to be informed about their right to nominate the person that they wish to be their nearest relative (or nominated person ) and supported in nominating such a person. This could fall under the duty to provide information under section 132 MHA. For those new to services or who, for whatever reason have not or are unable to nominate a nearest relative the default position would be the list currently set out in section 26 MHA which we refer to below. For patients with impaired capacity, the IMHA may be tasked with supporting the patient in this, or if the patient lacks capacity to make their own nomination, the list could be the initial default position. Rather than the patient being required to make an application to the court, which we consider a deterrent, a much simpler process could be devised. This could be a form signed by the patient, with the consent of the new nearest relative. Services should then be made aware of this decision. The current list of relatives under section 26 of the MHA 1983 could be used where no such nomination has been made, cannot be found, is unable to fulfil the role or, upon valid justification is considered unsuitable. That said, the current list should be reviewed and amended. In particular, the provision concerning unmarried fathers (see section 26(2)) requires amendment given its out of date language (referring as it does to illegitimate persons) and, in relation to adults, the confusion surrounding the application of the requirement that an unmarried father must have parental responsibility to be considered father for the purpose of section 26. The review team will be aware that the interpretation of this provision is controversial, which has a significant impact in practice given that it leaves the identification of the nearest relative unclear in such cases. Amendments to the provisions for the identification of the nearest relative will need to consider the implications for under 18s.

8 Our views on mental health service provision The inadequacy of services for those with mental health problems has been welldocumented and publicised 4. Whilst funding has been increased in this area, as legal professionals we are unable to say that this has had a noticeable impact on frontline services by closing the revolving door that many of our clients frequently pass through. The need for care and tailored services is largely unmet. Without frontloading services in the early stages of an individual s problems these problems grow and, all too often, lead to crisis and the looming or actual need for detention. Long waiting times for treatment and the lack of specialist staff (both doctors and nurses) leads to a delay in recognising, diagnosing and treating patients. The consequences are devastating for patients and their families. In our view the frequency in occurrences of mental health crisis will not fall away but will continue in line with the increasing pressures of modern life, alongside poverty and discrimination. Below we suggest areas of focus for the review which we hope will be considered carefully and make their way into recommendations for Government to adopt in resolving the current crisis. It is essential that a range of comprehensive community-based services, including crisis services are developed as alternatives to admission and to address the needs of those who may require admission The availability of beds in hospitals must be significantly increased to accommodate the rising number of patients who require urgent hospital treatment. We particularly highlight the acute crisis in the availability of beds for children who are often required to be separated from their family by long distances in order to receive care. The shortage of specialist nurses and doctors to treat the rising number of patients and which is even more acute in the prison system. The urgent need for suitable aftercare accommodation so that lengths of detention can be reduced and more appropriate and therapeutic surroundings provided to aid a patient s recovery. The opening of more 24-hour crisis sanctuaries or houses. This should be in addition to all major hospitals having 24-hour mental health crisis suites where patients can be assessed by on-call psychiatrists who may either admit a patient under the MHA or, where appropriate, divert the patient to a crisis sanctuary. Significant improvements must be made to the hospital environment which are not conducive to mental wellbeing or recovery. The end to mixed sex psychiatric wards as the frequent disturbed/disinhibited behaviour of some patients hinders the recovery of others, making them vulnerable and infringing personal dignity. The closure of Assertive Outreach Teams (AOTs) is highly regrettable and means patients are cared for by Community Mental Health Teams who cannot provide the intensive input necessary to prevent a slide into deeper crisis and detention. We strongly urge more research and education into the impacts of cannabis use (especially stronger strains known as skunk ) and legal highs (now illegal and 4

9 knows as novel psychoactive substances (NPS)) such as spice which are known to be harmful especially to those with existing mental health conditions. All transfers from prison to hospital require a warrant of transfer from the MOJ. This involves huge delays in progressing a prisoner s transfer, care and treatment. Sometimes it means the loss of an allocated bed. We recommend that consideration be given to delegating this power to the prison governor once the medical recommendation is in place and there is a bed at the receiving hospital.

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