Written evidence submitted by Powys Teaching Health Board (MHB0040)

Executive Summary

The government published a draft Mental Health Bill on 27th June 2022 to “modernise the Mental Health Act for the 21st century”.   The draft legislation is intended to give effect to the policy approaches outlined in Sir Simon Wessely’s Independent Review in 2018 that were subsequently taken forward in the Reforming the Mental Health Act white paper in 2021.

The draft Mental Health Bill appears to be in line with the focus of the Health Board and the ethos of the current use of the Act.

The amendments appear to give people greater control over their treatment and help ensure they receive the dignity and respect they deserve and include “a range of changes to shift the balance of power from the system to the patient, putting service users at the centre of decisions about their own care”.   It also aims to improve the way that people with a learning disability and autistic people are treated in law.

The changes have been informed by four principles developed by the Independent Review and in partnership with people with lived experience. They are:

•        Choice and autonomy – ensuring service users’ views and choices are respected.

•        Least restriction – ensuring the MHA powers are used in the least restrictive way.

•        Therapeutic benefit – ensuring patients are supported to get better, so they can be discharged from the MHA.

•        The person as an individual – ensuring patients are viewed and treated as individuals.

Background

Proposed changes to the Mental Health Act 1983 (Amended 2007) contained within the draft consultation:

Application of the Act

Appropriate medical treatment

Addition of reasonable prospect of effectiveness of treatment:

1A... (a) references to appropriate medical treatment, in relation to a person suffering from mental disorder, are references to medical treatment which, considering the nature and degree of the disorder and all other circumstances—

(i)                  has a reasonable prospect of alleviating, or preventing the worsening of, the disorder or one or more of its symptoms or manifestations, and

(ii)                is appropriate in the person’s case;

(b)              references to medical treatment, in relation to mental disorder, are references to medical treatment the purpose of which is to alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or manifestations.

Clarity required around what constitutes treatment.

Conditions covered by the MHA

Introduction of autism and change to the definition of learning disability

“autism” means a lifelong developmental disorder of the mind that affects how people perceive, communicate, and interact with others.

“learning disability” means a state of arrested or incomplete development of the mind which includes significant impairment of intelligence;

“Psychiatric disorder” means mental disorder other than autism or learning disability;

(2A)  For the purposes of this Act, a person’s learning disability has “serious behavioural consequences” if it is associated with abnormally aggressive or seriously irresponsible conduct by the person.

Makes a distinction between the identified groups. However, greater explanation around Autism, accepting that peoples experience is on a scale.

Detention criteria

The draft bill tightens the criteria for detention under the MHA ie:

Section 2 detention criteria:

2(2)(a)he is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and

(b)              serious harm may be caused to the health or safety of the patient or of another person unless the patient is so detained; and

(c)              given the nature, degree and likelihood of the harm, and how soon it would occur, the patient ought to be so detained.

Section 3 detention criteria:

3(2)(a)  the patient is suffering from psychiatric disorder of a nature or degree which makes it appropriate for the patient to receive medical treatment in a hospital,

(b)  serious harm may be caused to the health or safety of the patient or of another person unless the patient receives medical treatment,

(c)               it is necessary, given the nature, degree and likelihood of the harm, and how soon it would occur, for the patient to receive medical treatment,

(d) the necessary treatment cannot be provided unless the patient is detained under this Act, and

(e) appropriate medical treatment is available for the patient.

Learning disability and autism are excluded from the definition of mental disorder for the purposes of section 3. Does this mean that compulsory treatment for these groups is not detainable under the act for treatment, unless they meet the criteria noted further above?  The learning disability exclusion does not apply to part 3 patients. Does this contradict the view of the amendments not to be able not treat an individual under Section 3 of the act unless displaying serious behavioural issue?

Detention periods

The draft bill shortens the period that patients may be kept in detention for treatment. The initial detention period is reduced from six to three months.  This may be renewed for a further three months, and then for six months.  Further renewals are for a period of twelve months.

Holding powers

Section 5(2) remains unchanged however section 5(4) requires that serious harm may be caused to the health or safety of the patient or of another person unless the patient is immediately restrained from leaving the hospital.

Implications for training future and current nurses

Community Treatment Orders (CTOs)

CTOs will only be able to be used if there is a risk of “serious harm” to the health and safety of the patient or others, and consideration had been given to the “nature, degree and likelihood of the harm, and how soon it would occur”.  There will also have to be a reasonable prospect that the CTO will have a therapeutic benefit for the patient.

The CTO will have to be agreed in writing by the community clinician.

Where the responsible clinician is not the community clinician, they must consult the community clinician before recalling a patient to hospital (and revoking), unless consultation would involve unreasonable delay.

This change will support greater collaboration between Inpatient and Community AC/RC’s and would enhance the management of individuals in the community under a CTO.

Compulsory medical treatment

The introduction of a ‘clinical checklist’ that applies to clinicians making treatment decisions, ensuring that, as far as possible, decisions are based around patients’ wishes, preferences and needs. Does this support the duty on the treating clinician to consider certain matters such as duty to protect the service user to and from harm to society by placing several steps when deciding whether to administer medical treatment to a patient, including considering patients’ wishes and feelings, assisting them to participate in treatment decisions and consulting those close to the patient.

The current three month period  after which, in order to continue giving medication to a patient, an approved clinician or second opinion approved doctor (SOAD) must certify that treatment is appropriate and the patient is, or is not, “capable of understanding the nature, purpose and likely effects” of the treatment, will be shortened to two months.  It also amends terminology used to refer to “capacity” and “competence” and requires confirmation of “therapeutic benefit”. Does the shortened time frames allow for full efficacy to be reached with some treatments? With risk that SOAD could alter what might be an efficacious treatment given greater exposure of the individual to the treatment?

There will be new safeguards introduced for patients refusing medication, either with capacity or competence at the time, or in a valid and applicable advance decision, or where the treatment conflicts with a decision made by a donee of a power of attorney or deputy or the Court of Protection.  Treatment in these circumstances may not be given unless there is a “compelling reason” (no other forms of treatment are available or that alternatives are available, but the patient has not consented (or they would conflict with an advance decision or a decision by a donee or deputy or the Court of Protection)) to give the treatment and a SOAD has provided certification. Is this amendment delaying the potential treatment being administered and reducing opportunities for recovery?

There are additional safeguards for patients who refuse urgent ECT, either with capacity or competence at the time, or in a valid and applicable advance decision, or where the treatment conflicted with a decision made by a donee or deputy or the Court of Protection.  To give such treatment, a SOAD must first issue a certificate within a prescribed time period.  Regulations will specify circumstances in which the approved clinician could give the certificate, rather than the SOAD. As above?

Statutory care and treatment plans

All detained patients, except those subject to ‘short-term’ detention, will have the right to a statutory care and treatment plan.  Responsible clinicians will have a duty to prepare and regularly review the plan.  Contents of the plan will be set out in Regulations. Already is place in Wales under the Mental Health Measure Wales 2020

Nearest Relative / Nominated Person

The draft bill replaces the nearest relative with a new statutory role, the nominated person (NP). The patient may select a NP at any time when they have capacity or competence to do so.  This must be witnessed by a health or care professional, who must confirm amongst other things, that there was no reason to think that the patient lacked the relevant capacity or competence to make the selection, or that undue influence had been used in doing so.

For patients who lack capacity or competence to nominate, and have not made a nomination, an approved mental health professional (AMHP) will be able to appoint a NP for the patient.

In addition to the rights and powers that existing nearest relatives have, the NP will have the right to be consulted about statutory care and treatment plans and transfers between hospitals, and to object to the use of a community treatment order.

The draft bill also introduces the power to temporarily over-rule the NP when they exercise certain powers (such as the right to object to a section 3 admission).  The county court retains the power to terminate the appointment of an NP either permanently or for a specified time.

This enhances and makes improvement in the current Act.

Independent Mental Health Advocates (IMHAs)

The right to access an IMHA will be extended to informal patients.  The IMHAs role is expanded to cover assistance for patients with decisions made about their care or treatment, complaints about care or treatment; and information about other services which are or may be available to the patient. This articulates what is already being seen in practice but legitimately so on implementation of the act.

Mental health tribunals

Patients will have greater rights of access to the tribunal:

Section 2 patients will be able to apply to the tribunal within 21 days of detention (rather than 14 days currently).

Section 3 patients will have an automatic referral to the tribunal (in cases where the patient has not exercised their right to apply), three months from the date on they were first detained.

Automatic referrals will take place every 12 months (rather than 3 years).

Supports service user’s voice and the there idea of least restrictive treatment option. Takes out POD for hospital managers who on the balance of probability agree with the MDT. Not in a strong enough position to provide argument to give the service users opinion.

Part 3 - Criminal justice system

The bill aims to speed up transfers from prison to appropriate mental health hospital settings, by introducing a 28-day time limit on the process. This may be a challenge give capacity issues with in our PICU and secure care settings. What penalties/sanctions will be introduced?

Conditions amounting to a deprivation of a patient’s liberty may be imposed as part of a conditional discharge if they are necessary for the protection of the public from serious harm.  This will apply in high-risk cases where patients are no longer benefiting from hospital detention, but the conditions are necessary to protect the public from serious harm. This is already being seen in practice and with case law supportive of this approach. Would aid AC/RC to consider wider restrictions by providing guidance.

Section 117 services

The draft bill reforms the identification of which NHS bodies and local authorities are responsible for arranging section 117 after-care services for individual patients and applies ‘deeming rules’ to the determination of ordinary residence.  Where patients are placed out of area, they remain ordinarily resident in the area of the placing authority for the purposes of section 117 services. This area is urgently required, I am hoping that the Act will provide clear guidance alongside a dispute process.

Places of safety

Police cells and prisons will be excluded from the definition of a place of safety for the purposes of sections 135 and 136.

Recommendations

Implications to Health Board that would need consideration:

There will be an expectation of additional training to be provided to be able to update staff members of the proposed changes to the Mental Health Act. This will incur a cost in relation to provision of the training and the back filling of some essential roles (inpatient setting/medical staff) to be able to facilitate training for those staff members within those essential settings. What support will be provided to ensure training will be delivered and will government provide the training materials?

Some amendments (frequency of Mental Health Review Tribunals) will impact on the clinical workload of Approved Clinicians Responsible Clinicians and or Care Co-ordinators (as defined by the Mental Health Measure Wales 2010). Can the amendments be considered against a back drop of staff shortages within NHS to be able to deliver on the new Act?

The proposed amendments also indicates that the use of Hospital Mangers and their power of discharge will no longer be required. There will be a requirement for a feedback mechanism to be developed outside of the Hospital Managers framework to ensure that Health Boards Boards are reassured around the use of the Act in relation to its residents.

The proposed changes will greatly impact on the role of mental Health Act Administrator. This is relation to additional workload, requirement for additional training and limited cover at times of annual leave.

It is noted that the timeline for implementation of the amended act is not known at this stage. With some timeframes suggested to be in the region of 10 to 14 years for it to be fully implemented. Further clarity required.

The following Impact Assessment must be completed for all reports requesting Approval, Ratification or Decision, in-line with the Health Board’s Equality Impact Assessment Policy (HR075):