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?

Response:

HPFT welcome the review of the Mental Health Act (MHA) and agree that amending the definition of mental disorder (for civil detentions) so that people can no longer be detained solely because they have a learning disability or autism is a positive step forward.

There is a concern that the Mental Capacity Act (MCA) and the Liberty Protection Safeguards (LPS) may be used to fill the gaps that are left and the safeguards of the MHA will not apply to those impacted.  In particular, if deprived of their liberty using the LPS, there may be ongoing detentions that are not subject to the safeguards of the MHA such as review by a Tribunal or the Mental Health Act Managers and no statutory care and treatment plan.  The draft bill remains silent on how the Tribunal service will work.

This could be mitigated by strengthening the safeguards within the review of the MCA Code of Practice and LPS.

2. To what extent is the approach of amending the existing MHA the right one?

What are the advantages and disadvantages of approaches taken elsewhere in the UK?

Response:

HPFT agree that in order to implement the changes review is the right approach compared to completely re-writing the Act as this would take a substantial amount of time.  The Act needs amending as soon as possible to ensure that patients have greater control over their treatment and receive the dignity, respect, and legal safeguards that they deserve.

If time was not a factor then the fusion of the MCA and MHA may provide more clarity and streamlining treatment.  Northern Ireland are working towards this and at this stage it is too early to see if it will work more efficiently or if there is anything that can be learnt from this.

3. Does the draft Bill strike the right balance between increasing patient autonomy and ensuring the safety of patients and others? How is that balance likely to be applied in practice?

Response:

We agree that it appears to strike the right balance as outlined in the Bill.  To operationalise this there will be a requirement for intensive training for all staff.

4. 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?

Response:

The draft Bill appears to adopt most of the recommendations of the independent review.  It pushes practice towards greater respect for rights and preferences of those subject to the Act.  For clarity it would be helpful if the principles were included in the draft Bill to allow for comments.

5.To what extent will the draft Bill reduce inequalities in people’s experiences of the Mental Health Act, especially those experienced by ethnic minority communities and in particular of black African and Caribbean heritage? What more could it do?

Response:

The training for staff must involve other agencies including the police, ambulance, AMHP services, general hospitals and mental health Trusts to ensure that all agencies are striving to ensure that inequalities in experience can be removed.  Monitoring peoples experience will be key and national statistics that cover both NHS and private sector detentions should help to evaluate how this is working.

6. What more could the draft Bill do to reduce the impact of financial inequalities in people’s experience of the Mental Health Act?

Response:

Please clarify what the draft Bill is doing to reduce the financial impact as there is nothing obvious within the draft Bill.

7. What are your views on the changes to how the Act applies to autistic people and those with a learning disability?

Response:

HPFT agree that those with autism or a learning disability should not be detained purely on this diagnosis.  The additional safeguard of the CTR for those that have been detained is welcomed.  Additional resources will be required for enabling CTR outcomes to be actioned. We are also in agreement that people with a diagnosis of Learning Disability or autism should be subject to the MHA if they fall within the realms of part 3 of the MHA (forensic sections).

8. 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?

Response:

Although the criteria is strengthened by stating detention/CTOs cannot be used unless there is a risk of “serious” harm, “serious” is not adequately defined therefore may not achieve the intended results.  We support the premise that appropriate treatment must have some therapeutic benefit.  The draft Bill may reduce the number of detentions and CTOs however additional resources will be required for community teams.

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?

Response:

The workload will increase for those in community teams as they try to support the needs of more people in the community.  Due to the change in criteria, it is likely that there will be impacts around staff training, increased use of management of violence and aggression techniques. Environmental changes may be required due to potential increased risks on ward. Vulnerable inpatients may become more vulnerable due to the patient mix.

10. What changes and additional support do you think will be needed to help professionals and the third sector implement proposals effectively?

Will additional staffing and resources be required?

Response:

Additional staffing and resources will be needed due to increased risks associated with inpatient stays, increased access to tribunals and increased requirement for patient and carer involvement.  All professionals will require additional training to fully embrace the need for patients to have their say about their care.

11. 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?

Response:

Although it appears to support patients to have a greater say in their care there needs to be a culture change within some services to allow this to happen fully.  There are appropriate support and avenues for appeal within the Bill.

12. What do you think of the proposed replacement of the ‘nearest relative’ with ‘nominated person’ ? Do the proposals provide appropriate support for patients, families and nominated people?

Response:

We believe this provides more safeguards for the service user and supports choice and autonomy. However we would need to be satisfied there is no coercion on behalf of the service user to nominate this person. How will this be monitored? Will there be a standardised form? In circumstances where someone hasn’t declared a NP how will organisations identify in times of crisis who this person is? How many times can they change NP, does the other person have to sign to agree to take on the role of NP? Will there be process of removal of NP due to unreasonable behaviour or safeguarding issues? How will capacity to appoint a NP be assessed and reviewed? Will the capacity of the NP to undertake the role be assessed?

The NP will have new rights to be consulted about statutory care and treatment plans, transfers between hospitals, renewals, and extensions of detention or a CTO. The NP will have the power to object to detention and to the use of a CTO. Will there be statutory forms to record the consultation and NP’s views? Can the Responsible Clinician override these views?

13. To what extent is the Government right in the way it has approached people taking advance decisions about their care?

Response:

The proposed contents of the Advanced Choice document appear to be comprehensive and covers a much wider scope than the current Advance Decision process. We welcome the fact it gives people the opportunity to say what treatment they would prefer as well as treatment they would like to refuse and gives service users more autonomy and choice over their care.  Will this be a standard national document for all trusts to follow? Will a database be developed for this to enable smooth transfer between services with the document moving with the person (albeit electronically)? Will this document form part of the bundle of MHA legal documents? How will the legal timeframes be monitored?

14. What impact will the draft Bill have on children, young people and their families? Does it take sufficient account of the existing legal framework covering children and young people?

Response:

The proposals appear to support choice and autonomy for young people especially as there will be a statutory requirement that all children and young people have  a CTP regardless of whether they are detained under the MHA. More frequent review of detention will be beneficial. Will the test for Gillick Competency be formalised for under 16’s with a clear competency assessment? Beneficial that 16/17 years olds can’t be admitted to hospital on basis of parental consent.

15. To what extent are the proposals to allow for conditional discharge that amounts to a deprivation of liberty workable and lawful?

Response:

Currently with case of MM and PJ it has proven difficult for Conditionally Discharged patients to be discharged as any deprivation will render it unlawful. Impact is that service users are sent on extended s17 leave where a bed has to remain open should they need to be recalled. This is having a negative impact from a financial point of view for services as in most cases, a bed will need to remain open for the patient as well as a placement. We will need to see when the Act comes into force how workable it is in terms of conditions amounting to a deprivation of liberty imposed by tribunal or secretary of state.

16. 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?

Response:

It would be beneficial that vulnerable offenders and those awaiting trial can access necessary treatment at an earlier stage. 28 day time limit for transfers from prison to hospital will tackle delays and speed up access to mental health treatment but is it practical and how will it be monitored/ enforced?

Proposed new independent prison transfers/remissions coordinator role. Does this fit within the NHS or prison services or neither? Who will oversee this?

17. Are there any additions you would like to see to the draft Bill?

Response:

No.