Written evidence submitted by Hywel dda University Health Board (MHB0043)

How changes by draft will work in practice alongside other pieces of legislation including MCA.   Consequences and risks.

The MHA is a well-established piece of law providing for the care and treatment of those suffering from a mental disorder.  There have been significant changes in care and treatment provision since it was introduced in 1983 as well as changes generally in society, demographics and lifestyles, for example.   As a result parts of the MHA83 are outdated and no longer reflect the needs of patients or services. However there areas of the MHA83 that continue to be fit for purpose.

MHA was updated in 2007 to reflect some changes – introduction of Community Treatment Orders recognising increased levels in community care and changes to the nearest relative provisions, recognising same sex relationships, as had not been the case previously. 

It was recognised that there were gaps in law, most notably those who lacked mental capacity to accept treatment and this resulted in introduction of a new Act (MCA) and soon after supporting detaining legal authority of “DoLS” built into MCA. 

More recently the Policing and Crime Act 2017 which further altered Sections 135 & 136 of the MHA83 bringing it more in line with updated expectations to care and treatment.

In Wales as devolved nation in health matters the creation of the Mental Health (Wales) Measure 2010, initiated change designed to put service users at the heart of decision making via Care and Treatment Planning process and ensuring patients being treated for mental disorders generally had access to and were offered advocacy support.

Much of the proposals set out in the new Bill relate only to England but is already in place in Wales under the umbrella of the Measure. With the introduction of the new MHA a more consistent approach across England and Wales will prevail. 

MCA and MHA interface has often proved challenging and complex for practitioners.  With the pending introduction of Liberty Protection Safeguards and updated MCA it is difficult to predict whether the interface will become clearer or not.  There are always risks of legal challenge where legislation is unclear and complex and it is anticipated further guidance is provided when these two new pieces of legislation are introduced to provide practitioners guidance and support in every day practices.

Supporting notes:

Overall Consequences – more legal challenges if gaps. 

Risks new law overload – lack of training and support to practitioners. Over bureaucratic processes e.g. paperwork. 

Consequence the introduction of new law and processes may allow a more digital platform so less bureaucratic than the current MHA e.g. allowing digital signatures (not currently acceptable in Wales), use of video technology.

Risk – not enough resources to implement. Community service provision, staffing levels in various professional fields.

What extent is approach of amending existing MHA the right one? Advantages, disadvantages of approaches taken elsewhere in UK.

There have been several amendments to the MHA83 acknowledging that this original piece of legislation in part remains fit for purpose.  By amending practitioners can continue to work to a piece of legislation established and familiar.

However the amendments are significant but ultimately a new Act will not be written in entirety.

Benefits of amending existing MHA83 –established and tried law meets needs and which practitioners know and understand already.  Will only have to consider amendments as opposed to whole new piece of law. 

Despite much of the Bill relating to England only its implementation actually results in a more consistent approach in practice between the two countries.   Beneficial to service users and practitioners giving equal opportunity for a patient led care and treatment plan an example.

Different approaches causes a number of challenges for patients, particularly those that transfer cross border.  If Wales does not implement areas set out in the Bill inconsistencies in processes will prove challenging for practitioners as well service users.  For example additional safeguards for English patients through more MHRT reviews.  For professionals they will be required to be accustomed to the different approaches for their own development and training purposes.

Separate approaches presents operational issues as demonstrated with England MH Regulations which were updated in 2020 allowing digital signatures on statutory papers.  In Wales no amendments were introduced as a result a number of breaches have ensued locally. A cross country agreement in the event of such operational issues would prove beneficial to practitioners, patients and in administration of the Act.

Does Bill strike right balance between increasing patient autonomy and ensuring safety of patients, others? How is balance likely to be applied?

Since MHA83 changes to service provision has resulted in patients being given more opportunities for choices about their own care and treatment.  This will be formalised within the new Act.  Within Wales this was introduced via the MHMeasure

There has always been and needs to continue to be avenues to challenge decisions where necessary.  Patients under the umbrella of the MHA will be unwell and not always have the capacity to make clear decisions consistent with their own natural feelings. The Bill addresses this through the implementation of advanced care documents (ACDs) and support through advocacy specialists. ACDs will offer care providers opportunities to gain meaningful insight into the patient and be better placed to provide package of care that puts patient at forefront.

In practice there will need to be additional resources implemented in order to obtain, store and source ACDs.  They may expire or become irrelevant by the time they are implemented.  ACDs could be on file for people that will never require them and in practice it will be challenging to process and be administered successfully.

Changes to consent to treatment provisions ensures whereby a patient refuses medical treatment for a mental disorder it becomes more difficult for clinicians to override these choices without compelling reasons and approval from a Second Opinion Appointed Doctor (SOAD).  These additional safeguards ensure patients are given maximised potential to provide their own choices regarding treatment. 

On a more practical level there are some concerns how these changes will operate with shortages in both SOAD services and section 12 doctors nationally.  There are occasions where SOAD waiting times are significant.  These matters should be considered to ensure changes are implemented successfully.  

Overall there are clear advantages to these proposals in ensuring patient autonomy and choice.  It will help to shape a future mental health service more patient focussed, less dictatorial and helps change misconception and attitudes to mental health.

How far does the draft deliver on the principles set out in review? Does it reflect developments? Is it right not to include principles?

The Independent Review set out the four guiding principles of choice and autonomy, least restriction, therapeutic benefit and the person as individual.

These principles have not been specifically included within the draft Bill however have been applied throughout processes involved in the application.

Choice and autonomy already addressed and least restricted practice is one well established and familiar to practitioners working within the mental health sector both through implementation of MH83 but also within associated legislations e.g MCA.

It is highly likely these principles will be incorporated within the Code of Practices which supports practitioners in applying the Act to everyday processes and become a prevalent part of the implementation and application of the new Act. 

Grounds for detention and community treatment orders ensures detention can only be considered if they pose a risk of serious harm to themselves or others.  This change supports the principle of least restriction.  However the changes do not affect patients who will be detained under Part 3 of the MHA. This will create a separation as previously patients via the civil arrangements met the same legal criteria as Part III patients. 

To what extent will Bill reduce inequalities of peoples experiences of the MHA especially ethnic minority communities – what more could it do?

Statistics used to inform proposals are based upon England data.  Within Wales demographic differences are less prevalent and evidence has not been supplied to demonstrate the levels of inequalities of experiences.

Introduction of the new MHA alone will not address the inequalities of experiences of those by ethnic minority communities.  Service providers should consider additional steps, for example, reflecting the cultural minorities in workforce and leadership and gain an understanding amongst ethnic minorities to get to the root of the disparities.

What more could the draft bill do to reduce the impact of financial inequalities in people’s experiences of the MHA.

Introduction of a new MHA alone will not address impact of financial inequalities of experiences.

The care and treatment planning will allow patients to identify training and employment opportunities.

Social factors play a large part in terms of health of a person and the current financial climate gives rise to alarm in terms of pressures that will be faced by many and the impact this will place upon patients.

View on changes how the Act applies to autistic people and learning disabilities.

Proposals amends definition of mental disorder by excluding autistic and learning disabilities and providing a separate definition for these.  As a result an accompanying mental disorder would be needed to utilise detention powers.

This change will prevent autistic people being detained to mental health hospitals.  Despite this fact data suggests that the number of autistic people in inpatients facilities continues to increase (based on England data).  Reform of the MHA alone will not be able to resolve this issue there will be an overarching requirement to ensure that those suffering from autism do not get to the point to warrant a hospital admission therefore needing adequate social care and community care.

The need to register people at risk of detention with autism or learning disability is a responsibility for managing and coordinating and a consideration for resourcing by managers. 

Part III patients can continue to be detained via the original MHA83 criteria and will allow for autistic and learning disability to be applied in situations of serious behavioural consequences. This would be an additional definition for consideration for practitioners.

To what extent will the Bill achieve it aims of reducing detention, avoiding detention in inappropriate settings / reducing CTOs?

The new criteria is more stringent for detentions and community treatment orders.  There is an overwhelming likelihood numbers of detentions will reduce as only those posing most risk of serious harm to themselves or others and risk is likely and documented as to how soon would occur.  This makes it more difficult to justify detention, furthermore to justify continued detention, at MHTs at renewal points when the criteria comes under further level of scrutiny.

The result will be that only the most unwell patients will be admitted to hospital under MHA.  Those who no longer meet new level of criteria but require specialist intensive mental health care not wishing to attend hospital will need to be supported through arrangements of community care provision. 

There is a requirement for community RCs to be consulted when implementing new CTOs.  This ensures that all those involved in patient care has access to up to date information and is involved when the MHA is considered. CTO criteria as well as the inability to use CTOs for learning disability patients will also result in reduced usage.

Changes to remove prison and police cells as places of safety ensures that these environments not suitable for individuals with a severe mental health needs can no longer be used.

Impact proposals on workforce within community services and multidisciplinary working practices inpatient and community services.

Statistics within the IA are based upon activity in England.  Many of the proposals made within the Bill are not applicable to Wales. 

There will be a requirement to increase capacity of approved clinicians, nurses in order to support increased MHT activity.  There is potential for changes to section 12 doctors work with decreased numbers of detentions however this would be counteracted by increased SOAD work and MHRTs.

Increased community care package would be required resulting from less patients coming into hospital despite those persons undergoing crisis mental health difficulties but not meeting the new tighter criteria.

Changes and additional support needed to help implement proposals effectively.  Additional staffing / resources?.

As identified throughout the IA there will be an emphasis on better support to patients to ensure that detentions under the MHA do not occur unless absolutely necessary.  When they do a number of additional safeguards have been incorporated.  These safeguards will place an additional burden on resources.

There are a number of new administrative components, for example obtaining and sourcing ACDs, recording and witnessing of the new nominated persons process. 

In the introduction and roll out of the new Act there will need to be a full package of training and support to professionals to deliver the changes appropriately and successfully.

Workforce planning teams will need to be involved in the early stages to manage the needs of services and care providers.

How far will draft allow patients a greater say in care with access to appropriate support for appeal?

The new provision of ACDs places a statutory requirement on service providers to ensure patients have a greater say in their care.  In addition enhanced advocacy provision. 

Avenues for appeal have been increased ensuring all patients have the right to appeal any detention.  Patients under Section 2 will have extended periods to apply.  When most patients are first detained they will be overwhelmed and too unwell to consider appealing and application periods have often expired by the time this group of patients are ready to ask for their right to challenge the detention. 

Additional MHRTs reviews however will place a great deal of pressure on services and teams removing clinical care time with patients. 

Nearest relative replacement with nominated persons.  Does provide support for patients, other persons?

The requirement to update the nearest relative provisions are long overdue and possibly the most outdated area of the MHA83. New processes in the identification of a nominated person do raise some possible challenges for practitioners. For example the patient is able to nominate their own person, a role with increased powers under the reforms, they may do so prior, during or after detention.  However the patient as well as the nominated person will be required to sign this authority and both these signatures will need to be witnessed by a professional.   The nominated person can also resign themselves from the role at any point. There are all sorts of operational impracticalities involved in this process.

The Bill provides that anyone named by the patient as someone to be consulted on the decision in question be ascertained before treatment be provided. This would result in a much greater family/carers liaison which will be a real benefit for carers associates. 

Is government right it way it has approached people taking advance decisions about their care?

N/A as operational within Wales.

Impact on children, young people and their families?

Not answered.

Extent proposals allow conditional discharge that amounts to a deprivation of liberty workable and lawful?

Prior to a court judgement this had occurred in a number of instances and provided for a safe and continued environment for this group of patients outside of hospital albeit at the same time protecting the public. These persons will have the right to challenge such decisions therefore making it appropriate and justified.

Proposed changes accounting the MHA through the criminal justice system – changes in numbers treated in those settings?

With the proposed changes legal criteria for those under Part III, MHA, including learning disabilities patients, can be detained under the original criteria for detention.  This differentiates between Part II and Part III patients not seen previously. This is to ensure that those people requiring hospital admission will be diverted from the criminal justice system.  All those involved in the continued detentions including professionals, Hospital Managers and MHRTs will need to mindful when reviewing.

Teams will have to be more familiar and respondent to conditions associated with conditionally discharged patients under Part III of the Act given that the MHRT rights to appeal /review will be from periods when conditions are removed as opposed to when the conditional discharge occurred. This will result in two streams of conditionally discharged patients – one with deprived conditions and the other with conditions not amounting to deprivation.

Additions you would like to see?

The draft provides an approach to support more current approaches to care and treatment for mental health.  Allows choice of nominated person rather than patient having no say to who represents them. Identification of nominated person may not be apparent and would therefore suggest inclusion that proposed nominations are formally received on behalf of hospital managers.

The Bill has retained some parts of the original Act which helps to make the overall transition easier for services. 

The 2007 amendments created the terms Approved (Responsible) Clinicians and Approved Mental Health Professionals.  It was envisaged that a range of professionals could become an AC or AMHP however in practice this has not materialised.  This would resolve some practical issues not least the lack of AC availability.  If this could be revisited or alternatively opening up some areas of the new Act processes to other roles, e.g senior nurse professionals/care coordinators, hospital managers authority to grant section 17 leave.  In addition the Bill proposes the Responsible Clinician (RC) should be responsible for the patient in developing their care plan.  In practice the RC will most often be the consultant psychiatrist and it is in fact the care coordinator (in Wales) that tends to carry this duty in practice.  Could this be a further consideration in changing the responsibility from one professional to another.

The Bill has remained silent so far on the role of Hospital Managers.  The current requirement to review all Section20/20a cases over and above the increased MHT activity will place a burden on resources when the hospital managers will be unlikely to use power of discharge. 

In terms of Section 117 clearer guidance and alignment of England and Wales for cross border patients would be appreciated.

16 September 2022