Written evidence submitted by the West London NHS Trust (MHB0007)
1.1 Our evidence follows virtual discussions with a wide range of clinicians, Approved Mental Health Professionals (AMHPs), managers and individuals who oversee and administer the Mental Health Act 1983 (‘the Act’) on behalf of our Trust Board. Where there is clear consensus, we have indicated this. We acknowledge that some comments are provided on the basis that they form a simple majority view among consultees within the Trust.
1.2 We are a very diverse organisation which runs Broadmoor High Secure Hospital, West London Forensic Services, one of the country’s largest medium and low secure providers, as well as local mental health services and other specialist services across three London Boroughs. In consequence, we appreciate that any legislative changes will impact on much of our core provision of care and treatment and not least, on many of our patients and service users.
2.1 How the changes made by the draft Bill will work in practice, particularly alongside other pieces of legislation including the Mental Capacity Act? Might there be unintended consequences and, if so, how should those risks be mitigated?
2.2 The draft Bill rightly attempts to update some of the Act’s terminology, reflecting both the language and approach of the Mental Capacity Act (MCA). Specifically, this is achieved by enhancing the right to choice and autonomy as much as is reasonably possible, via Clause 9 which reflects the ‘best interests’ approach of the MCA. Historically, where the Act does not explicitly require a similar approach, we have had to supplement this with local policies and procedures to ensure that those treated for mental disorder are afforded broadly similar safeguards to those whose treatment more clearly sits under the MCA umbrella. There has been widespread criticism of the ‘gold standard’ that the Act’s Code of Practice sets for capacity assessments and their documentation when there are frequently, less complex decisions which are unlikely to warrant the level of detail required by the Code. However, over the past 15 years since the MCA was implemented, it has become apparent that without being conversant
with both the Act and the MCA, there is a very real deficit in terms of treatment provision as the Act has rarely been amended to reflect the more considered approach to treatment decisions which the MCA requires.
2.3 To what extent is the approach of amending the existing Mental Health Act the right one? What are the advantages and disadvantages of approaches taken elsewhere in the UK?
2.4 There is a very clear consensus among our clinicians, particularly psychiatrists and nurses, that ideally, we would be completely overhauling the Act rather than simply amending for the second time in almost 30 years. There is a lot of support for similar legislation to the Mental Capacity Act (Northern Ireland) 2016, a means by which to ensure a capacity-based approach within a single piece of legislation. However, it has been noted that there is an unintended consequence, that persons suffering from personality disorders where they are deemed to have capacity, are potentially excluded from mental health services and are likely to be routed to prison instead. As a provider of secure services for many patients suffering from personality disorders, there is real disquiet about using the Northern Ireland model.
2.5 Although we lack some detailed knowledge of the Scottish Act, there is a perception that it is only workable in a country with a far smaller population than England as it appears to be more ‘hands-on’ in terms of scrutiny.
2.6 To what extent will the draft Bill achieve its aims of reducing detention, avoiding detention in inappropriate settings and reducing the number of Community Treatment Orders?
2.7 There is some strength of feeling that the draft Bill will particularly impact on and improve practice in relation to Community Treatment Orders (CTOs) as it will ensure a more rigorous approach to both the making of and extension of CTOs. However, a smaller group of clinicians feel that the additional requirements, in particular, both inpatient and community RC agreement and the need to consult with the nominated person, may well result in a small number of individuals veering towards becoming ‘revolving door’ patients, which potentially defeats their original purpose. It is also possible that there may be increased use of section 17 leave, previously described as the ‘long-leash’ approach. Perhaps the Code will assist in terms of making the decision to use, or not use a CTO more rigorous in future?
2.8 Again, there is significant strength of feeling concerning an inaccurate perception that General psychiatrists are erring on the side of caution when using the Act to detain in hospital. If anything, our clinicians feel that the threshold for detention has risen significantly over the past 10 years or so and they perceive their role, already, as doing everything humanly possible to avoid unnecessary use of the Act.
2.9 What do you think the impact of the proposals will be on the workforce within community mental health services and multidisciplinary working practices both in inpatient and community services?
2.10 There was unanimous agreement across all our services, that there will be a huge impact on our multidisciplinary teams with the proposed, huge increase in tribunal activity. Concerns are two-fold: that without removing the requirement for MHA Managers’ (or Associate Hospital Managers as they are widely termed) hearings, this will simply be unworkable.
2.11 Tribunals place a great strain on our services even at their current rate. We would respectfully remind the Joint Committee of the scale of work that goes into tribunals, even before the hearing itself. Unless there are some circumstances where the Statutory Care & Treatment plan can be used as the basis of the Responsible Clinician’s report, the burden of report writing will be very significant. Even if the reduced time-limits for section 3 admissions result in shorter periods of detention, the overall throughput of admissions is unlikely to reduce so tribunals will become a much more common feature of life in acute wards.
2.12 Of particular concern to our Forensic psychiatrists, is the move from three- yearly to annual referrals for restricted patients. The degree of preparatory work for tribunals, particularly for psychiatrists and social workers or community psychiatric nurses is very significant in these often, complex cases.
2.13 To what extent are the proposals to allow for conditional discharge that amounts to a deprivation of liberty workable and lawful?
2.14 The majority view is that with appropriate oversight by the tribunal, these relatively rare cases can be managed successfully and lawfully. The current ‘remedy’ of using ‘administrative leave’ as an alternative to conditional discharge is far from ideal. We are mindful that for some patients with a history of sexual offending or arson, there is quite a stark choice between discharge subject to conditions amounting to a deprivation of liberty and actual deprivation of liberty by remaining as an inpatient. We acknowledge the tension between the wish to effect discharge, while ensuring that the judgment of the Supreme Court in the MM case is heeded. Equally, we feel it is important that staff involved in such cases have the protection of a judicial decision to ensure that their actions for the protection of the wider public are lawful and supported.
2.15 What are your views on the proposed changes in the draft Bill concerning those who encounter the Mental Health Act through the criminal justice system? Will they see a change in the number of people being treated in those settings?
2.16 Through the previous consultation, we have expressed a view that our forensic services are able to efficiently manage urgent and emergency transfers from prison or hospital. However, we acknowledge that there is increasing pressure on high, medium and low secure services which can cause delays and sometimes, protracted stays in a level of security which is no longer required.
2.17 As an organisation, we enjoy an excellent working relationship with our police colleagues but there is still a tension at times when police seek to divert an alleged offender from custody to a mental health setting based on their immediate presenting needs. In the most serious cases, the usual route continues to be via remand into custody and transfer to hospital under sections 48/49 of the Act via the Ministry of Justice but in concerning but less serious cases of assault or similar, the route is often via a civil section of the Act, to a psychiatric intensive care unit (PICU). The pressure on PICU beds is well-known and they are increasingly used for transfers of remanded prisoners who historically, would have gone to medium secure services. There is increased scrutiny of decisions made within police custody suites but NHS staff employed there through liaison and diversion schemes, are sometimes faced with a dilemma, whether to attempt to route someone in clear need of urgent mental health care, via a PICU or even acute ward, or to risk delay by going down the charging and remand route. While the primary legislation providing these routes is broadly unchanged by the draft Bill, we wonder whether the Code of Practice might address the issue of transfer from custody to hospital ahead of any remand to prison as this is a relatively new approach which does not sit comfortably within the usual scheme of Part III of the Act.
2.18 Additional Comments:
2.19 While we fully appreciate the attempt to maximise participation by consulting the nominated person at junctures other than when considering making an application under the Act: renewal of detention, making of and extension of a CTO and on transfer between hospitals, the ability to waive this due to non-practicability, needs to be clearer. In particular, when revoking or assuming the role of a nominated person, we do feel that the direct involvement of an AMHP will at times place unnecessary strain on their resources. Perhaps such matters could be dealt with via a delegated representative of the Managers, with an obligation to update the local authority on any material change in the patient’s circumstances?
As ever, we would be more than happy to assist should the Joint Committee require oral evidence from representatives of West London NHS Trust.
5 September 2022