Written evidence submitted by the British Psychological Society (MHB0039)
This paper sets out the British Psychological Society’s (BPS) submission to the Joint Committee on the Draft Mental Health Bill’s call for evidence. The BPS is the representative body for psychology and psychologists in the UK, and is responsible for the promotion of excellence and ethical practice in the science, education and application of the discipline.
As a society we support and enhance the development and application of psychology for the greater public good, setting high standards for research, education, training and knowledge and disseminating our knowledge to increase public awareness.
What are your views on the changes to how the Act applies to autistic people and those with learning disabilities?
The BPS believes that without the necessary investment in community-based services and amendments to the face of the Bill, the proposed changes to remove autism and learning disability from section 3 of the Mental Health Act will have substantial and potentially harmful unintended consequences for the individuals these changes are intended to support. These include: a lack of appropriate care and treatment in the community, increased offending behaviour, increased use of the criminal justice system, a loss of specialist professional skills and knowledge, the need for duplicate legislation, and a weakening of the rights and protections for people with these conditions[1]. It is significant that the Independent Review of the Mental Health Act report[2] did not recommend removing people with these conditions from auspices of the Act – and explicitly advised against it - as “the issues arising from taking learning disabilities and autism spectrum conditions out of the Act are significant and could cause further harm”.
A lack of appropriate care and treatment in the community
The transfer of responsibility for these individuals from in-patient hospitals to local authorities may create a postcode lottery of care due to the wide regional disparities in provision of community-based services[3]. There is a need for high quality, safe and consistent psychologically-informed support using evidence based interventions within a coherent risk-needs-management framework.
The addition of a duty on commissioners to provide community-based services in the Bill is a welcome step. However, it is vital that the Government commit to a significant increase in ring-fenced funding to support local authorities fund the resources needed for this transition.
A report commissioned by DHSC has estimated that the average cost of a home with care and support is close to the cost of inpatient beds, and that there are examples of people for whom a home with care and support is significantly more expensive than indicative inpatient settings[4]. This report suggests that the average cost of a home with care and support would be £175,984 per annum[5]. Furthermore, data provided by NHS Digital in its Assuring Transformation and Mental Health Data Sets (based on returns from commissioners and service providers respectively) suggests that at the end of March 2022 there were between 2,005 and 3,575 people with autism and learning difficulties in inpatient mental health hospitals in England[6]. Therefore, BPS estimates that it would cost local authorities a further £350 to £630 million a year to support these individuals in their communities.
Support services are already struggling without these additional responsibilities. In 2021, the Health and Social Care Committee reported that “… the current system of community support [for people with autism and learning disabilities] in England is ‘broken’, ‘systematically failing’ or otherwise inadequate”[7].
We also wish to note that we do not believe that the Government’s proposed reforms can be reliant on the Transforming Care programme to deliver effective community services for people with learning disabilities and complex needs due to the evidence which indicates that this programme has failed to deliver on its targets over the last seven years.[8],[9]
Therefore, there must be significant additional investment to support these proposed legislative changes.
In addition to budgetary commitments to support local authorities, the BPS would strongly recommend an amendment to the Bill which places a duty on the Secretary of State for Health and Social Care to evaluate the adequacy of national Government funding to local authorities for community-based services every three years.
An increase in use of the criminal justice system
The removal of autism and learning difficulties from Section 3 means that if a local authority cannot provide adequate community based services, individuals with autism and learning difficulties risk being known to the criminal justice system which is unable to and is not intended to meet their needs[10]. We understand that Part 3 of the Bill, relating to patients concerned in criminal proceeds or under sentence, will remain unchanged and not exclude autism and learning difficulties. The BPS believes this is an inadequate solution as individuals would need to be prosecuted in order to access in-patient care. Many individuals who require this support may not be prosecuted for a number of reasons (such as the Crown Prosecution Service public interest test; fitness to plead; mens rea). We believe that the Bill in its current form will leave many vulnerable individuals without any care or support at all. It also risks individuals attracting spurious additional diagnostic labels to enable them to be detained under section and receive treatment under the Act, albeit in inappropriate acute mental health settings that will not be able to meet their needs adequately and in which they will be extremely vulnerable. In New Zealand, the only other common-law jurisdiction to have gone down this path, duplicate legislation has had to be developed for people with these conditions[11].We are concerned this may need to be repeated in the UK due to the legislative gap created by these proposals, with all the attendant problems this can create.
For the reasons stated above, the BPS recommends that the Bill be amended to allow for individuals with autism or learning difficulties, whose disability has “serious behavioural consequences” (associated with abnormally aggressive or seriously irresponsible conduct by the person) to be included in Section 3.
Are there any additions you would like to see to the draft Bill?
Section 12 approval
One addition we would like to see in the draft Bill is the expansion of section 12 approval eligibility to include psychologists. The BPS welcomed the 2007 amendments to the Mental Health Act[12] which introduced the role of the approved clinician (AC) and responsible clinician (RC), enabling prescribed mental health professionals such as psychologists and nurses to carry out duties previously reserved to psychiatrists. These duties include renewing a patient’s detention, placing a patient on a Community Treatment Order (CTO), and discharging a patient from detention or a CTO. Health Education England states that the widespread adoption of these extended roles “will allow patients to benefit from the unique perspectives of nurses, social workers, occupational therapists and psychologists”[13].
The BPS continues to support the extension of these important roles to psychologists who meet the criteria to be an AC and act the RC for detained patients and those subject to CTOs and Guardian Orders. However, given that psychologists, nurses, social Workers and Occupational Therapists have successfully and safely exercised legal powers associated with AC and RC roles (including the renewal and discharge of detention) over the last 12 years[14], the addition of multi-professionals for eligibility for section 12 approval seems appropriate given the same criteria are used when making recommendations for initial detention as are used when making decisions about renewal and discharge from detention.
The BPS, therefore, recommends that the legislation is amended so that multi-professional ACs are eligible for section 12 approval. Patients – particularly those with complex psychological problems- would benefit psychologists being able to make recommendations about initial detention. Further, this change would enable more timely access to section 12 approved clinicians to carry out Mental Health Act assessments for initial detention and thus benefit patients who often spend too long in places of safety awaiting these assessments.
Appropriate treatment test
Another point we wish to see included in the draft Bill is additional requirements for the appropriate medical treatment test (ATT). The BPS welcomes the Government’s proposal to change the definition of “appropriate medical treatment” to require treatment to have a reasonable prospect of alleviating, or preventing the worsening of, the patient’s mental disorder[15]. It is right that the ATT must be applied to ensure that no one is detained (or remains detained) for treatment, or is on a CTO, unless medical treatment for their mental disorder is both appropriate and available[16].
However, we believe that the ATT could be greater improved to ensure patients receive sufficient care and support to facilitate better mental health outcomes. The existing threshold for “appropriate treatment” in a tribunal has a broad scope which in some cases has allowed for minimal provision of care, which has significantly impacted outcomes. In some cases, tribunals have accepted “appropriate treatment” to be anything that can focus on alleviating one of the “symptoms and manifestations” of a disorder without having any great impact on an individual’s’ overall risk[17]. This can lead to an individual receiving only medical treatments such as drugs and not getting access to psychological therapies. The BPS therefore recommends that the ATT be changed to require the provider to outline a comprehensive treatment plan which offers the maximum range and breadth of treatments that have an evidential basis or clinical rationale to facilitate a better health outcome. Further, the Bill should require the provider to keep the effectiveness of treatments under review.
What are your views on the changes to CTOs in the Act?
The BPS has significant concerns about the introduction of a new role of “community clinician” in the Bill. It is proposed that the community clinician will be an AC who ‘will be responsible for the patient’s care in the community after discharge’, but the inpatient RC will continue to have ‘overall responsibility for them’, including for the extension or discharge of the patient’s CTO, and their potential recall to hospital and revocation of the CTO.
The view of the BPS is that this proposal is impractical and will have unintended consequences that will cause potential harm to patients and risk the safety of others. It is not feasible for a patient subject to the provisions of the Act to have two people with overall legal responsibility for their care and treatment. Those currently undertaking the role of community RC for patients on CTOs will be very reluctant, in our view, to take responsibility for managing patients with complex needs who carry significant risks to themselves and others, without the authority to order their recall if those risks were escalating rapidly and the patient required treatment in hospital urgently. Assuming the inpatient RC could be located, in the event that the inpatient RC refused to agree to a patient’s recall (perhaps due to inpatient bed pressures) then the community clinician – and the patient – would be stranded with a rapidly deteriorating and unmanageable situation without the required resources to meet the patient’s needs.
Should this proposal be included in the revised Act, the effect could be that community clinicians refuse to agree to the CTO being made in the first place and thus patients who could otherwise be treated safely in the community (if liable to timely recall) would be stuck in hospital indeterminately. Consequently, the numbers of delayed discharges will increase rapidly and even more pressure will be applied on already stretched inpatient services.
Whilst the BPS supports the proposal that the suggested community RC is involved in the initial discussions and decision regarding a detained patient being placed on a CTO, it recommends that that the proposal to create the role of community clinician is removed, with the community RC retaining their existing powers with regard to the extension, discharge and recall or revocation of CTOs.
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?
The BPS believes that the Bill could be strengthened to allow for greater inclusion of patients in the assessment process. The Bill should require patients accessing care for assessment and treatment to have a case formulation included in that process where possible, with agreed treatment options and routes leading to recovery. Formulation and case conceptualisation is an evidence informed approach which involves a joint exploration of a person’s life, through which practitioner and patient arrive at an understanding of the factors that cause, worsen, maintain and lessen the issues that are causing someone distress, or harm to themselves or others. This approach is proven to improve patient engagement and treatment outcomes[18]. We believe that patients are experts in their own experiences and their opinion about their experiences should therefore be sought and included in assessment and treatment planning.
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?
The BPS believes that the imposition of a statutory 28 day transfer period between prison and hospital is, in principle, a good thing, as it will reduce long waiting times in which distressed people are held in prison conditions inappropriate to their care and harmful to their health. However, this statutory duty needs to be backed up by the practical availability of resources to the healthcare system. Currently this is an unachievable target far below the average waiting time for transfer, which is 82 days[19].
Failure to provide adequate resources risks an increase in people being transferred, but not receiving the quality of care that they need.
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?
The BPS believes that there needs to be a clear action plan around recording, reporting and measuring the impact of the reforms on reducing racial disparities; and a clear target to end racial disparity in mental health settings within a specified time period.
Furthermore, there is a need for culturally and spiritually informed practice catering for the full span of diversity in the population[20]. Culturally sensitive therapy embeds an understanding of a patient’s background, ethnicity, and belief system into their treatment.
We therefore recommend that the Government commit to developing a comprehensive strategy to end racial disparity in mental health settings, which includes a plan to improve reporting on these issues.
16 September 2022
[1] Taylor, John “Removing people with intellectual disabilities and autism from the England and Wales Mental Health Act” Lancet Psychiatry 2022
https://pubmed.ncbi.nlm.nih.gov/34762844/
[2] Department of Health and Social Care (2018). Modernising the Mental Health Act. Increasing choice, reducing compulsion. Final report of the Independent Review of the Mental Health Act 1983.
Modernising the Mental Health Act – final report from the independent review - GOV.UK (www.gov.uk)
[3]“Care in Places: Inequalities in local authority adult social care spending power” The Salvation Army 2019
https://ilcuk.org.uk/wp-content/uploads/2019/07/ILC-Care-in-Places.pdf
[4] “Building the Right Support: An analysis of funding flows: Department for Health and Social Care” Report by RedQuadrant
[5] “Building the Right Support: An analysis of funding flows: Department for Health and Social Care” Report by RedQuadrant
[6] NHS Digital. Learning disability services statistics. https://digital.nhs.uk/data-and-information/publications/statistical/learning-disability-services-statistics
[7] House of Commons Health and Social Care Committee (2021, July). The treatment of autistic people and people with learning disabilities. Fifth report of session 2021-22. https://committees.parliament.uk/publications/6669/documents/71689/default/ (accessed July 12, 2021).
[8] Taylor, J.L. (2021). Transforming care for people with intellectual disabilities and autism in England. Lancet Psychiatry. https://www.thelancet.com/pdfs/journals/lanpsy/PIIS2215-0366(21)00349-7.pdf
[9] UK National Audit Office. Local support for people with a learning disability. March 2, 2017. https://www.nao.org.uk/wp-content/uploads/2017/03/ Local-support-for-people-with-a-learning-disability.pdf (accessed Jan 14, 2021).
[10] Taylor, John “Removing people with intellectual disabilities and autism from the England and Wales Mental Health Act” Lancet Psychiatry 2022
https://pubmed.ncbi.nlm.nih.gov/34762844/
[11] Taylor, John “Removing people with intellectual disabilities and autism from the England and Wales Mental Health Act” Lancet Psychiatry 2022
https://pubmed.ncbi.nlm.nih.gov/34762844/
[12] Mental Health Act 2007 https://www.legislation.gov.uk/ukpga/2007/12/contents
[13] “Multi-Professional Approved/Responsible Clinician: Implementation Guide” Health Education England
[14] Ebrahim, S. (2018). Multi-professional approved clinicians’ contribution to clinical leadership. The Journal of Mental Health Training, Education and Practice, 13(2), 65-76.
[15] Laing & Garratt “Reforming the Mental Health Act” House of Commons Library 2022
https://commonslibrary.parliament.uk/research-briefings/cbp-9132/
[16] Mental Health Act Code of Practice 2015
[17] MD v Nottinghamshire Health Care NHS Trust [2010] UKUT 59, [2010] MHLR 93
https://www.mentalhealthlaw.co.uk/MD_v_Nottinghamshire_Health_Care_NHS_Trust_(2010)_UKUT_59_(AAC)
[18] Sturmey, P., McMurran, M. and Daffern, M. (2019). Case Formulation and Treatment Planning. In The Wiley International Handbook of Correctional Psychology (eds D.L.L. Polaschek, A. Day and C.R. Hollin). https://doi.org/10.1002/9781119139980.ch29
[19] NHS Benchmarking Network (2019) Waiting times for Prison mental health hospital transfer and remission. Presentation
[20] Tamatea, A. J. (2017). Culture is our business: Issues and challenges for forensic and correctional psychologists. Australian Journal of Forensic Sciences, 49(5), 564-578. https://doi.org/10.1080/00450618.2016.1237549