Written evidence submitted by the South London and Maudsley NHS Foundation Trust (SLaM) (MHB0062)
South London and Maudsley NHS Foundation Trust (SLaM) welcomed the long-awaited proposals on the Reform the Mental Health Act and through our 2021 Consultation response we advocated that the scale of these legislative reforms must be substantial to have material impact on addressing the growing use of detention and persistent racial inequalities that exists within the mental health system, particularly for black people.
As a large health provider of, and a leader in mental health care, the need for change could not be clearer. We also welcome in general some of the proposed changes to the detention criteria, but are concerned that without adequate resourcing of these, the MHA Reforms will not have the desired impact. We fully support the vital enabler of investment in integrated community mental health services to prevent and reduce compulsory admission through a range of person-centred and least restrictive community and grass roots neighbourhood alternatives to support and prevention.
Where the use of the Act is required, we agree that it must be to the benefit of the patient and whilst, during our consultation with range of professionals and service users/ carers, there was significant debate on the use of a legislative term, ‘therapeutic benefit’ being potentially legally problematic, we agree that detention under the Mental Health Act should be therapeutic and beneficial, and practiced with dignity and respect, with the ‘whole person’ in mind. Applying this alongside core legislation such as Article 3 ECHR and existing MHA caselaw where there must be a therapeutic justification for any restraint imposed on a patient. Our response also support that people subject to part III of the Act should not be excluded from this criterion.
Key themes that emerged includes concerns regarding above mentioned funding and resource. Whilst the NHS Long Term Plan and Mental Health transformation investment and spending review provide for significant new funding, it must be matched with an adequate financial settlement for Social Care; our local authority partners are key to the provision of housing, community alternatives, strengths-based support and approved mental health professionals.
However, having reviewed the Draft Mental Health Bill SLaM would like to highlight continuing concerns since the publication of the draft bill:
Cultural Impact:
We welcome the inclusion of a range of actions within the Reforms that demonstrate the government’s commitment to tackling racial inequality. As a Trust we are one of the development sites for PCREF as well as for culturally appropriate advocacy and welcome the opportunity to work with our local communities and system stakeholders on developing practical frameworks and tools.
As PCREF is a new development, the evidence that it will work on reducing race disparity is lacking, and it is our hope that work undertaken within the sites will assist with growing some evidence.
Whilst this shift to an organisational and structural framework is welcomed and important, it is recognised that on its own it will not reduce racial disparities or sustain the initiatives developed through the Reforms. It must be met with policy and action to increase funding for mental health services, particularly in the community to address the mental health inequalities. We are concerned about the inadequate availability of community alternatives to detention, in particular to address needs of diverse and ethnic minority communities and restore trust.
Impact on the Workforce:
Many of the proposed changes are very likely to affect not just the Mental Health Law Team workforce but also the wider clinical and non-clinical staffing groups. Affects will be both procedurally, shifting and changing workflows. Staffing numbers are likely to require attention as needed to cope with the increase in demand.
- The proposed duration of section 3 to three months, whilst aims to reduce detention and length of stays are likely to increase the number of times a section is renewed.
- Increases in renewals will increase review hearings and create further time constraints for clinical staff as well as MHAO staff.
- Giving additional powers to the Mental Health Tribunal will significantly increase the communications between the MHAO, the MHT and the clinical teams, requiring a higher level of case management case.
- Changes to part IV provisions, reducing need for s58 provisions to 2 months will require a tighter monitoring of consent to treatment.
Significant resources, both financial and additional staffing, are needed to ensure compliance with the Act. Proposed digital development of MHA practices, whilst welcomed, will have little impact on practices outside of London in other Healthcare settings.
The increase in demand and workloads can only be met with increased resources, funds and staffing to ensure governance of the proposed changes in the Act, take place effectively to reduce risks of flawed detention, compliance with treatment provisions and patients access to speedy hearings.
Learning Disability and Autism:
As an organisation SLaM did not support the reforms of the MHA for people with Learning Disabilities and Autism for the following key reasons we outlined in our Consultation response:
- We made a strong objection to the disparity between the use of the MHA and the MCA aim relation to the predicted impact on individuals with no other mental disorder other than a diagnosis of Learning Disability and/or Autism. If s2 is used and then because s3 cannot be used our concerns remain for these individuals who may then continue to be detained in hospitals under the MCA DOLS and in the future LPS:
- “We suggest the approach is therefore clearly communicated to the public in terms of the additional human rights protections the MHA affords compared to DOS/LPS (e.g. access to a tribunal, etc) and that non-psychiatric hospitals are given appropriate resources for the use of the Mental Health Act.
- It will be important to clarify how procedural safeguards and entitlements (SOADs, Tribunals, section 117 aftercare etc.) will apply to different categories of patients (MHA vs MCA/DoLS), as being under different legal frameworks may have a significant impact to the detriment of one group (e.g. section 117 aftercare only applying to MHA patients). We feel there must be equal safeguards available to those being treated for mental disorder whether this is under the Mental Health Act or Mental Capacity Act.”
- We identified if people with a diagnosis of Learning Disability and/or Autism left hospital too early without receiving the right treatment of therapeutic benefit under s3 MHA, there is a high risk that people will in the longer term end up back in the hospital system via the Criminal Justice System route with an increased level of need that if they had originally been treated in hospital under s3. To this end we strongly objected to the changes in the MHA differentiating between civil and CJS patients with a diagnosis of Learning Disability and/or Autism:
- “No discrimination should be made between patients who have civil or criminal sections detention based on their diagnosis of Learning Disability and or Autism.
- If the mental health needs and risks of people with ASD are not managed at an earlier stage due to exclusion from detention under section 3, they may enter the mental health system having presented with a much more severe level of risk to self and others than might have otherwise have been the case, leading to management under part 3 via the CJS which could have been avoided. Alternatively, the absence of detention under section 3 for ASD may lead to increased use of part 3 (‘forensic sections’) to manage risk behaviour that could presently be managed under section 3 in non-forensic pathways.”
- We remain deeply concerned as we originally highlighted that people with a diagnosis of Learning Disability and/or Autism being unable to access s117 aftercare, which is not applicable to detentions under s2, the MHA Bill has not outlined any alternatives such a Continuing Health Care (CHC) funding to meet these people needs:
- “It is disadvantageous and counterproductive for people who need inpatient care, and the proposed reform has the potential to be a lever to try and solve other problems in community care provision, rather than address the needs of people who really need hospital care.
- Removing aspects of hospital care there would need to be assurances that alternatives care options are fit for purpose.
- Consideration as to how needs beyond the Care Act will be met, including consideration to a higher level of specialist psychological therapy availability for people with Autism in generic community services.
- Continuing Health Care policies and procedures should be reviewed in line with this as it presents barriers for people getting funding for the care they need. This is because if patients are less likely to be detained under section 3 then they will have less access to s117 aftercare, so the main routes for meeting health needs will be CHC.”
We have considered the MH Bill and in summary in line with the forthcoming proposed changes in the revised MCA Code and the introduction of LPS we believe these are the potential further problematic issues for the LDA population placed under MCA in hospitals:
- Significant delays or absence of a CETR as the MHA detained patients will get priority as the pressure will be on services to meet the deadlines outline in the MHA.
- If there is a risk of delays once LPS becomes practice this could result in s4B being overused by hospitals, coupled with the lengthy review time frames for the LPS this risks people being ‘left’ in hospital under the MCA for long periods unless closely monitored by the CETR process.
- LPS monitoring Body, in the current metrics proposal does not have any measures to pick up on the longevity of hospital stay for the LDA cohort, and should also have a set of guidelines to ensure patients are not being unnecessarily detained in hospital.
- Implementing the LPS without the involvement of the Court of Protection is a huge risk for patient rights, with no legal process within the Responsible Body for determination of length of time for review unlike patients detained under the MHA. Patients with a diagnosis of Learning Disability and/or Autism detained under the MCA in hospital with a lower access to legal safeguards despite the proposed assurances provided in the revised MCA code
- CQC complaint process places people into categories to complain, the MHA is one area. Whist the person/representative can complain to the CQC about their MCA detention, concern exists that the complaint will get the same priority as a complaint being made in the MHA category. Currently there is no category under which an MCA complaint can be raised.
We are concerned about the following Human Rights being affected by the proposals in the Bill and we believe these HRA Articles may apply:
Article 14: ‘treated less favourably than another person’ or ‘indirect discrimination when a policy is supposedly applying to everyone equally works to the disadvantage of one group. This would cover the issues of:
- No free s117 aftercare despite a hospital admission of over 28 days (s2) were the person to remain in hospital informally or under MCA detention.
- No statutory discharge planning despite a hospital admission of over 28 days (s2) were the person to remain in hospital informally or under MCA detention.
- The CETR requirements are not stipulated as law for informal or MCA detained patients.
- Priority may not be given to MCA detained patient complaints about their detention compared to those detained under the MHA.
Article 5: risk of more patients being placed in the position of the Steven Neary case, and could potentially argue that the MH Bill may produce situations contrary to the case law LB Hillingdon v Steven Neary EWHC 1377 (COP).
16 September 2022