Written evidence submitted by the General Medical Council (GMC) (MHB0009)

Our role

1        The General Medical Council (GMC) is the independent statutory regulator that helps to protect patients and improve medical education and practice across the UK. 

 

a           We decide which doctors are qualified to work here and we oversee UK medical education and training. There are approximately 337,000 doctors on the UK medical register. Of these, approximately 299,000 have a licence to practise.

b          We set the standards that doctors need to follow, and make sure that they continue to meet these standards throughout their careers.

c           We take action to prevent a doctor from putting the safety of patients, or the public’s confidence in doctors at risk.

2        We are not responsible for planning or delivering mental health and related support services. However, we have an important role in ensuring patient safety and standards of care in this area, through the professional standards we set for doctors’ practice, and our quality assurance of medical education and training.

 

3        Our professional standards - set out in published guidance - are consistent with UK law in all four jurisdictions and any specific legal duties that the law requires of doctors. The standards most directly relevant to doctors’ practice in treating and caring for people with mental health conditions include:

 

       Good medical practice (2013)

       Decision making and consent (2022)

       Confidentiality (2018)

4        We are currently reviewing Good medical practice, our core guidance for doctors practising in the UK. The new edition will have a strong focus on patients’ rights, multi-disciplinary team working, and professional responsibilities in addressing health inequalities. The review, and work on the draft Bill, presents an opportunity for us to achieve alignment between doctors’ legal duties and our updated standards of practice.

Our general position

5        In response to the white paper ‘Reforming the Mental Health Act’ we welcomed the proposal to update the legal framework to make sure decisions about mental health interventions take greater account of patients’ rights, experiences, and preferences.

 

6        We strongly support the government’s intention to make sure that the reforms help to address systemic disparities in mental health services, in relation to patients’ access to treatment and care, and the outcomes for patients with learning disabilities or autism and those who are from ethnic minority backgrounds.

 

7        There are some aspects of the government’s proposals where we believe more clarity is needed, about the impact of new and strengthened duties on doctors’ practice (and other health professionals). This is especially in relation to changes where detail is lacking and the intention is to set this out in a future Order, or the revised Code of Practice, or in new professional guidance drafts of which have not yet been shared. 

 

8        We are also aware of the staffing and resource challenges currently facing mental health services, and the likelihood that the reformed Act will need to be supported by changes to medical education and training as well as action to support workforce delivery. We can play a role in identifying and responding to the workforce and training needs in this area, using the data we hold about our registrants and collaborating with other stakeholder organisations. 

 

9        Our concerns are set out as responses to some of the Committee’s questions below.

Response to Committee’s questions

 

1) How far will the draft Bill allow patients to have a greater say in their care, with access to appropriate support and avenues for appeal?

 

10    It is difficult to judge this. There are many new or strengthened provisions that should enhance patient involvement in and influence over their care and make it easier to exercise their right to challenge decisions.  We comment on most of these in our responses to other Committee questions.

 

11    We highlight here the proposal to replace the role of the ‘nearest relative’ with a person nominated by the patient to participate in and support decisions about their care. And the decision to make independent patient advocacy more widely available. We understand that Independent Mental Health Advocates (IMHAs) will be available to all patients who are admitted to hospital for treatment whether detained or voluntary. Voluntary patients will be asked to opt-in to the advocacy arrangements on admission, whereas detained patients will be asked if they want to opt out. IMHAs will support people across the board and not just when ‘serious medical interventions’ such as ECT or neurosurgery are being considered.

 

12    As we flagged in our response to the White Paper, there will be a significant number of people in addition to the ‘nominated person’ and IMHA who have some power to influence decisions about the treatment and care of a patient (see Section 9(2) para 56A (1)(e) of the draft Bill). It will be important to make clear in the Code of Practice how professionals should work with the different people representing or supporting a patient, and what weight they should attach to different views about what course of action may be best for the patient. 

 

13    We have a particular concern that, the Bill is not clear about the extent to which a patient’s present choices or previously expressed preferences about treatment options can be overridden.

 

In our analysis:

       There is a legal requirement to work through a specific ‘clinical checklist’ with a patient, in deciding what treatment they should receive. Helpfully the checklist aligns with our Decision making and consent guidance (informed by the Montgomery judgement).

       If a patient has capacity to decide and refuses a treatment, that must be respected.

       A patient’s advance decision to refuse a treatment must be respected if it was made when they had capacity to decide.

       If a patient lacks capacity to decide, but they have a court appointed Deputy or someone with relevant power of attorney who refuses a treatment (in line with their wishes), that refusal must be respected.

       The exception in these cases is where there are ‘compelling reasons’ for overriding the patient’s wishes.

       A decision to override a person’s refusal of treatment must be certified by a Second Opinion Appointed Doctor (SOAD) before proceeding. The SOAD must consult two other professionals involved in the patient’s care.

 

14    It would be helpful to understand whether ‘compelling reasons’ might go wider than situations where there is no alternative treatment (the example given in the Explanatory memorandum).

 

15    For example, in the case of an advance decision to refuse a mental health treatment, we are interested in the extent to which professionals making decisions about the patient’s care would be able to take account of subsequent actions or decisions by the patient that suggest their wishes may have changed. This would be the case if a patient had made an advance decision to refuse a treatment for a physical health condition (under the Mental Capacity Act). If this wouldn’t apply to advance decisions about mental health treatments, it will be important to provide clarity on this point, for the benefit of patients and their carers as well as the professionals who will be working within both legal frameworks.  

 

16    The Department should provide further clarification, either on the face of the Bill or in the revised Code of Practice.

 

2) Does the draft Bill strike the right balance between increasing patient autonomy and ensuring the safety of patients and others?

 

17    We think that the criteria which must be met, to be able to detain a patient for assessment and treatment, seem clear and should be relatively easy for patients to understand (section 3(3)). Detaining someone is justified only if they pose a risk of ‘serious harm’ to themselves or to others. Decision-makers must consider the nature and degree of the risk, the likelihood of it happening and how imminent that might be. And it must be the case that the necessary treatment cannot be provided unless the patient is detained under the Act.

 

18    Although not explicitly stated, this suggests that decisions must consider whether detention is a proportionate step and the least restrictive measure given other options (see also section 4 of the Bill on community treatment). This would be in line with the overarching decision-making principles in the 2018 review – see our comments on this at question 3.  


 

3) How far does the draft Bill deliver on the principles set out in the 2018 Independent Review? Does it reflect developments since? Is the Government right not to include the principles in the draft Bill?

 

19    We support the proposition that decision-making should be guided by overarching principles that ensure respect for patient choice, autonomy, and dignity; consideration of the least restrictive interventions; and provision of medical treatment that delivers therapeutic benefit. This approach is consistent with the principles in our guidance on Decision making and consent (2020), and our draft revised edition of Good medical practice (publication expected in 2023) which includes a stronger emphasis on patients’ rights.

 

20    We were supportive of the proposal to include the principles on the face of the Bill. But we note the intention is to include overarching principles, in the supporting statutory Code of Practice. As this will have important implications for how the new requirements in the Bill are acted on in practice, it would be helpful to know more, at an early stage, about the Department’s plans for updating the Code. 

 

4) What are your views on the changes to how the Act applies to autistic people and those with learning disabilities?

 

21    We can see that, the combination of measures in the draft Bill should help to reduce inappropriate detentions in unsuitable settings. This includes provisions in section 1(3) replacing the term ‘mental disorder’ with psychiatric disorder; adding definitions of autism and learning disability; and making clear the Act can only be applied to detain and treat a person with a learning disability where it has ‘serious behavioural consequences’.  We wonder if the terminology and definitions used are sufficiently clear, in terms of supporting public and professional understanding of the health conditions that combined with other factors may bring an individual’s care within the ambit of the Act.  We are aware of current concerns about inappropriately medicalising neuro-diversities and learning differences, and it seems important that government should try to future-proof the language of the Act with the professional and public user in mind.  

 

22    It also seems likely that the new measures (section 2) aimed at securing the delivery of local services for individuals with learning disabilities and autism, will prevent situations arising where they need to be detained for treatment. These focus on the Care (Education) and Treatment Reviews (CETRs) that local authorities must carry out for children, young people and adults with learning disabilities or autism, all of which involve doctors in their preparation and delivery.

 

       CETRs will be placed on a statutory footing and time limits will have to be met, for carrying out the first CETR and subsequent reviews. 

       An individual CETR outcome should be shared with and must be actioned by relevant local commissioning and service provider organisations.

       Integrated Care Boards must keep a register of people with learning disabilities and autism who are ‘at risk of detention’ under the Act, with their consent.

       Integrated Care Boards, Responsible Commissioners and Responsible Clinicians ‘must have regard to’ the Register, and any Order setting out the factors that determine whether an individual is ‘at risk of detention’, when deciding what services should be provided locally or to meet an individual’s needs.

23    Doctors will have a key role in the timely creation of CETRs and identifying individuals ‘at risk of detention’ for inclusion on a local register.  However, for us to comment in more detail, it would be helpful if the Department could provide more information about:

 

       The likely factors that would indicate an individual is ‘at risk of detention’. The Bill’s explanatory memorandum states that this will be set out by the Secretary of State in a future Order. It is difficult to assess the likely impact of the CETR provisions, on patients directly and the doctor/patient relationship in practice, without some knowledge of key criteria that may influence access to preventative support.

       Any government plans to support the delivery of related professional training, and provide additional resources to enable services to meet patients’ assessed needs.

       The likely timetable for preparing the statutory guidance documents referred to in section 2 (para 125F), for use by responsible clinicians, responsible commissioners, integrated care boards and local authorities. 

 

5) To what extent will the draft Bill reduce inequalities in people’s experiences of the Mental Health Act, especially people of black African and Caribbean communities? What more could it do?

 

24    The Department has expressed commitment to tackling the systemic disparities experienced by patients with learning disabilities, autism, and those from ethnic minority backgrounds (Chapters 9 and 11 of the White paper). Considering the scale of disparities, in terms of access to services and treatment, the quality of care provided and the treatment outcomes for patients, we believe there is a need for urgent action. 

 

25    However, it’s not clear how the reformed Act or its application in practice might bring about improvement. There are no specific duties in the Bill to consider health inequalities, when making decisions about the care of individual patients or the services provided to local communities. It’s possible that decision-makers would be expected to take account of NHSE’s mental health equalities strategy (and in Wales the government’s mental health strategy delivery plan) which set out a broad range of actions that aim to reduce inequalities. But the strategy is limited in terms of specific actions targeted on the inequalities experienced by ethnic minorities.

26    The White Paper did suggest that NHSE’s Patient and Carer Race Equality Framework (being piloted at several NHS sites) could play a role in supporting and driving change (although it was not stated whether this might include Wales).  However, there is no further information about this in the Bill’s explanatory memorandum.

 

27    We are interested in how health professionals (and others) will be helped to understand how they can contribute to reducing mental health inequalities, while meeting the requirements of the reformed Act. We wonder whether it would be possible to agree some guiding principles, or good practice requirements, and set these out in the supporting Code of Practice. We would be interested in the Committee exploring this idea with the Department and other stakeholders. 

 

6) What do you think the impact of the proposals will be on multidisciplinary working practices both in in-patient and community services?

 

28    Many of the proposals seem highly likely to enhance and expand collaborative working within organisations and across service boundaries which we support.

 

29    We note, for example, the proposed requirements for healthcare, social care, other local authority staff and commissioners and providers of services to co-operate to create the care and treatment plan essential to supporting voluntary and detained patients in hospital and community settings (section18).

 

30    Some treatment decisions would always be team-based as they require the involvement of a patient’s Responsible Clinician, an Approved Doctor, a Second Opinion Appointed Doctor, and a healthcare professional and non-healthcare professional who know the patient but are independent of the patient’s care team.  (Section 11)

 

31    There is a stronger, clearer role for a patient’s primary care clinician who must be consulted by other decision-makers, at all stages of decisions about placing a patient on a community treatment order, the contents of the order, and renewal or discharge of the order (sections 19-20).  This positions GPs and community clinicians as part of the team around the patient while they are in a secondary care setting, which is in line with the approach we have promoted for many years (for example in our guidance on End- of- life care).

 

32    A patient’s Nominated Person would have a clearer role in supporting their decision-making, also as part of the team around the patient (sections 21-24), and in line with the approach that we promote in our guidance on Decision making and consent (2020).

 

33    The requirements in the Bill for cross-team and cross-service collaboration are consistent with the current standards in Good medical practice (GMP), the supporting guidance in our Leadership and management: guidance for all doctors, and our additional practical advice on working in multi-disciplinary mental health teams. However, all three documents are currently under review. So, to ensure alignment, we are keen to be involved in the Department’s work to develop related content for the revised Code of Practice. It would be helpful to know their plans for sharing draft updates to the Code with us and other stakeholders. 
 

7) What changes and additional support do you think will be needed to help professionals and the third sector implement the proposals effectively? Will additional staffing and resources be required?

 

34    We know that the RC Psychiatrists have carried out work to assess the possible staffing and other resource requirements, that may be needed to deliver services in line with the White Paper proposals for updating the Act. This was supported by the data we publish about the number of registered doctors and their areas of practice.

 

35    The RC Psychiatrist’s response to the White Paper paints a challenging picture in relation to current and future shortfalls in the supply of trained and experienced staff and the implications for delivering on the government’s ambitions.

 

36    The new requirements to carry out risk assessments at all key stages of decision-making from first assessment through to discharge decisions (for patients in hospital and on community treatment orders) would seem to impose significant extra burdens on doctors and others involved in the system. It will be helpful to see any proposed guidance for professionals to support risk assessment of patients, to help understanding of the impact in practice.

 

37    More broadly, it would be helpful to understand more about the Department’s impact assessment and their thinking about how best to deliver the staff, education and training, and other resources that might be necessary to meet the requirements set out in the draft Bill.

 

8) Are there any additions you would like to see to the draft Bill?

 

38    The explanatory memorandum does not provide details on how sharing of confidential patient information across service boundaries will be facilitated within the data protection legal framework and additional common law privacy rights applying to health information.

 

39    For example, in the case of people with autism or learning disabilities their Care (Education) and Treatment report (and their information on the local ‘at risk’ register) is expected to be shared widely to enable supportive, preventive services to be provided to them.  And providing mental health treatment and care for people within the criminal justice system may identify concerns about the safety of other patients or the wider public, where it would be important to understand how the reformed Act interacts with the information sharing provisions of the Police Crime Sentencing and Courts Act 2022.

 

40    We know from our work to develop and promote our guidance on Confidentiality (2019) that the legal landscape for sharing confidential patient information is complex and poorly understood within health and social care and policing. So, we are keen to know whether the Department is planning to provide guidance, and if so, how we might work together on this to ensure a clear, consistent approach.

 

41    If you would like more information, please contact parliament@gmc-uk.org

 

 

8 September 2022