Written evidence submitted by NHS England (MHB0051)

PLS consultation response

NHS England (NHSE) is fully supportive of the proposals to reform the Mental Health Act (MHA), as set out in the draft Mental Health Bill and the Government’s White Paper, Reforming the Mental Health Act, with the overarching aim of:

• Detaining fewer people under the MHA  
• Making sure people have more choice and autonomy over their treatment  
• Ensuring treatment is purposeful and therapeutic  
• Reducing the stark inequalities in outcome and experience under the MHA (in particular the inequalities experienced by people from racialised communities, autistic people and people with a learning disability).   

These aims align with and build on the NHS Long Term Plan (LTP) deliverables for mental health in terms of increasing access to timely, effective and proportionate mental health care in the least restrictive setting for someone’s needs. While NHSE is supportive of the draft Mental Health Bill, it is important to note that legislation alone will not deliver its aims as also recognised by both the Independent Review and subsequent Government response.

NHS Context

The NHS Long Term Plan set out an ambitious programme of transformation to expand and transform NHS mental health services, which is a critical foundation to delivering many of the proposed reforms to the MHA. The following transformations, which have started to be delivered through the NHS LTP, are particularly critical in relation to creating the desired shift to a mental health system that is more responsive and proportionate to people’s needs, prevents avoidable deterioration in people’s mental health and ensures people are always able to access the least restrictive care for their needs:

• Delivering integrated models of mental health care across primary, community and secondary care services to help people stay well outside of hospital 
• Increasing complementary and alternative services to hospital for people in mental health crisis and to trial the introduction of appropriate access and waiting time standards for urgent and emergency mental health care 
• Improving the quality of inpatient mental health care, to improve patient experience and ensure everyone is treated with dignity and respect  
• Improving children and young people’s mental health services

While the NHS LTP for mental health will ensure that an additional 2 million people receive mental health care by the end of 2023/24 (supported by £2.3bn per year ring-fenced funding), it will not be able to eradicate the historic treatment gap between mental and physical health. The COVID-19 pandemic has exacerbated this treatment gap as the prevalence and complexity of mental illness has increased. The impact of the pandemic on mental health includes:

• Rising population need, demand and complexity of presentations:
• Rates of probable mental disorders among children and young people aged 6–16 years old increased from 12% in 2017 to 17% in 2021
• The proportion of adults experiencing some form of depression almost doubled during the pandemic and WHO estimates predict a sustained increase of 25 %
• Mental health backlog
• Around 1.1 million people waiting for their first contact from a mental health service
• Referrals to community-based crisis services are now typically over 40% higher than in 201

While the ongoing system transformation resulting from the NHS LTP commitments and investment provides an important foundation for the legislative reforms, meeting the challenge of closing the treatment gap, addressing the impact of COVID on mental health and delivering the changes set out in the draft Mental Health Bill will have a significant impact on the mental health system. We will work with DHSC, the Royal Colleges, LGA, CQC, ADASS, HEE and other key stakeholders, to develop a plan to deliver the substantial changes to practice which will be required to achieve these aims. This will need sustained effort from all of us for years to come.

The section that follows, outlines the areas of the draft Bill and its implementation that NHSE believes need further consideration.

The application of the reforms to people with a learning disability and autistic people

• NHSE very much welcomes the change in detention criteria for autistic people and people with a learning disability so that a learning disability and autism will not in themselves be a reason for detention under Section 3 of the MHA. NHSE also welcomes the increased legal force given to Care (Education) and Treatment Reviews when people with a learning disability and autistic people are admitted to a mental health hospital, and to the use of Dynamic Support Registers to identify people at risk of admission. These support NHS LTP commitments to reduce reliance on inpatient care and to develop alternative and effective support in the community. 
• For people with a learning disability and autistic people, it is important to ensure consistency across all parts of the MHA in how it is interpreted, applied and implemented i.e. no rationale for treating people with a learning disability and autistic people differently other than the particular, additional safeguards that the draft Bill is proposing. However, it is also essential that, throughout the MHA, significant consideration is given to ensuring that that equality duties are met and reasonable adjustments are considered at all points of care for autistic people and people with a learning disability. This should ensure they are able to access optimum assessment, care and treatment that is adjusted to meet any needs they may have arising from their learning disability or autism which may, without reasonable adjustment, lead to a greater likelihood of diagnostic overshadowing. This includes ensuring that all patient interactions for people with a learning disability and autistic people are face to face, as individuals may have communication impairments or alternative preferred communication methods, which may be limited or restricted by virtual appointments. NHS England and DHSC have already made a start on this work to ensure reasonable adjustments by investing £4m through the Mental Health Recovery Plan to start adapting mental health wards to the sensory needs of autistic people.
• NHSE hopes the committee will be able to explore the implications resulting from the change in criteria for detention under the MHA, and the difference in application between Parts 2 and 3 of the MHA, which may lead to inappropriate 'shunting' of use of legislation between the MHA and the Mental Capacity Act, or the use of forensic sections of the MHA in cases that would currently have been managed under the civil sections. These concerns require a commitment to better and comprehensive training in legislation across health and social care, and increased scrutiny by advocates, Approved Mental Health Professionals (AMHPs), hospital managers, tribunals, and the Care Quality Commission. The rights to challenge application of the MHA by those subject to it and / or their Nominated Person must be strengthened.
• Further, it is recommended that the committee explores the implications of the changes relating to people with a learning disability and autism who have an index offence and are currently being cared for within secure learning disability and autism wards, who do not have a mental health need. Under the new MHA, these people will be transferred to prison if there remains a risk to the public and this could have a significant impact on prisons. It is also recommended that the committee assess this direction of travel against previous government policy, namely recommendations from the Bradley report.

Creating cultural change

• In order to realise the overarching aims of the MHA reforms, there needs to be a broad cultural shift in services so that all people detained under the MHA are treated as individuals and given greater choice and decision-making in their care and treatment. While certain aspects of the new legislation will support this shift (eg increased safeguards around treatment without consent, increased authority of Advance Choice Documents, and statutory care and treatment plans), further interventions will be needed to drive meaningful changes in the way services are delivered and in particular to tackle the pervasive and significant inequalities that certain groups experience in relation to care under the MHA.
• Implementation of the new legislation will therefore need to be phased over time and will require a package of support mechanisms. NHSE will continue to work closely with DHSC and broader stakeholders to identify what further implementation support mechanisms are required and develop these ahead of the legislation commencing. Some of this work (set out below) is already underway:
• workforce wide training on MHA reforms (see next section for more detail)
• implementation of the Patient and Carer Race Equality Framework (PCREF)
• introduction of culturally appropriate advocacy – this needs to be adequately funded and build on the learning from the pilots that DHSC are currently running
• a national programme, which NHSE are funding over the next two years, to support improvements to care under the MHA through the development and sharing of locally co-designed solutions to persistent culture challenges – this will be underpinned by Quality Improvement methodology and follows from the commitment made by NHSE to develop and deliver this programme in the MHA Reform White Paper.
• It is important to reiterate that these interventions alone may not be sufficient to deliver the widespread cultural change that is required, and further support mechanisms may need to be identified if the reforms are to be implemented meaningfully.
• One new area of work that will be particularly important to driving long-term, sustainable culture change is the new NHSE-led programme focused on improving quality and localising care. The programme will span mental health, learning disability and autism services and will have a significant focus on addressing poor inpatient provision, including that delivered by the independent sector.

Growing the workforce

• In order to implement the aims of the MHA reforms it is important that the workforce implications are properly understood and accounted for. Higher education, NHS Trusts and HEE have worked together to deliver rapid growth in the mental health workforce to support the Long Term Plan, and the same cooperative effort can deliver the workforce needed to support the reforms in the draft Bill. These will particularly affect Responsible Clinicians, Approved Mental Health Professionals, Second Opinion Appointed Doctors, Independent Mental Health Advocates and the tribunal service.
• NHSE is committed to working closely with DHSC and Health Education England (HEE) to develop a realistic, costed and deliverable workforce expansion plan, taking into account current workforce growth rates and changing prevalence/need. This will reinforce the work we are doing with DHSC to understand and prepare to deliver the training and additional staff needed to deliver the quality of care aspired to in the Mental Health Act Reform White Paper.
• The Committee has asked specifically for views on impact of the proposals on the workforce within community mental health services, as the proposed changes to detention criteria could significantly increase the number of patients being treated by community teams. However, these reforms are being introduced at a time when NHSE is overseeing significant transformation and expansion of community mental health services, with almost £1 billion additional funding available a year for these services on a recurrent basis by the end of 2023/24. This will be key in preparing the sector to safely manage any increases to community mental health caseloads resulting from the changes in detention criteria.

16 September 2022