Written evidence submitted by the Sussex Partnership NHS Foundation Trust (MHB0073)

Question 1

How the changes made by the draft Bill will work in practice, particularly alongside other pieces of legislation including the Mental Capacity Act? Might there be unintended consequences and, if so, how should those risks be mitigated?

Changes in Clause 17 to amend the phrase "is capable of understanding " to "has capacity to understand" will bring the wording into line with MCA.  This is positive as it is language already familiar to clinicians.

Changes that are currently pending for MCA/DoLS legislation mean that there is lack of clarity around the interface between MHA Draft Bill and MCA /DoLS/LPS.

Clause 30 providing clarification on conditional discharge and DoLS provisions is helpful.  However as it is currently drafted, there are potentially complex requirements that must be met before a patient subject to a conditional discharge can appeal, taking into account any deprivation of liberty arrangements.  We suggest this may be challenging for patients to understand and exercise their rights and also for clinical teams to be able to understand and effectively implement.

Question 2

To what extent is the approach of amending the existing Mental Health Act the right one? What are the advantages and disadvantages of approaches taken elsewhere in the UK?

We recognise that the complexity of the process can create unintended barriers to engagement in the process resulting in greater participation from those experienced in working professionally with the Mental Health Act, thus creating a bias against those potentially most affected by its use.

Question 3

Does the draft Bill strike the right balance between increasing patient autonomy and ensuring the safety of patients and others? How is that balance likely to be applied in practice?

We welcome the increase to patient autonomy, but recognise that prioritising patient autonomy whilst delivering mental health care requires a balance between patient autonomy and the safety of the patient and/or others.

Successful implementation in practice will require enhanced focus on Advance Choice Documents including proactive conversation between the clinical team and patient/family to identify if an ACD has already been completed.  ACD's must be incorporated into care planning and linked directly with a documented capacity assessment.

We recognise there needs to be audit, monitoring and feedback, whilst delivering training to ensure successful implementation.

Question 4

How far does the draft Bill deliver on the principles set out in the 2018 Independent Review? Does it reflect developments since? Is the Government right not to include the principles in the draft Bill?

Whilst we recognise that the changes seek to prioritise autonomy, the extent to which that will be achievable within the confines of the draft Bill and available resource, both financial and personnel, is questionable.

Question 5

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?

Our view is this is currently difficult to predict, and will require further research.  It is unclear as to the evidence base used.

Updated legislation may not automatically lead to equality in rates of MHA use for different ethnic groups. There may be different rates of mental illness in various minority groups for reasons unrelated to law, eg genetic susceptibilities, other physical illnesses, social experiences,. Some ethnic minorities may respond differently (for cultural reasons) to people with mental illness, and this may affect whether detention under the MHA is required.

Question 6

What more could the draft Bill do to reduce the impact of financial inequalities in people's experiences of the Mental Health Act?

Research is needed as it is unclear as to the evidence base used to inform the changes.

We recognise that people's experiences of the MHA are deeply impacted by availability of support services, such as s.117 after-care services, in particular the allocation of appropriate placements in a timely way.

Question 7

What are your views on the changes to how the Act applies to autistic people and those with learning disabilities?

We consider the changes within the draft Bill to be positive, with some exceptions (see further comments below).  Many people with learning disabilities or autism also have other mental disorders; not all their symptoms or behaviour should be automatically attributed to their learning disability or autism, to do so may risk them not being provided with access to appropriate care for other conditions.

We would seek clarification on how it is intended for the requirements of s.125D to be implemented.

125D - Registers of people at risk of detention

(1) Each integrated care board must, in accordance with this section, establish and maintain a register of people usually resident in its area who—

(a) the integrated care board considers—

(i) to have autism or a learning disability, and

(ii) to have risk factors for detention under Part 2 of this Act which are specified by the Secretary of State in regulations,

and

(b) consent to the inclusion in the register and the use, in accordance with this section, of information about them.

Any blanket registration of those with a specific diagnosis requires careful consideration of benefit against the risk of marginalisation and inadvertent disregard of protected characteristics.

Further the requirement for consent gives rise to the question of decision-specific capacity.  If only those who can consent are on the register, the purposefulness of the register itself becomes diluted.

Question 8

To what extent will the draft Bill achieve its aims of reducing detention, avoiding detention in inappropriate settings and reducing the number of Community Treatment Orders?

We consider this to be unpredictable and will need to be audited and monitored.  It seems likely that it would not reduce the number of people who are given a CTO, but (given the maximum total period of detention for a CTO will be 2 years) it is expected the average duration of CTO will fall dramatically - consequently at any one time fewer people will be subject to a CTO.   We suggest it would be helpful to include guidance on when a further CTO may be applied.  For example, if a patient reached the maximum time period of 2 years, the CTO was ended, and the patient's mental health deteriorated requiring further admission under a Section 3, could the RC complete arrangements to place the patient onto a new CTO?

We welcome the step to remove police cells being used as places of safety under s.135.

We consider the introduction of requirement in Clause 19 - para 116 for the agreement of the community clinician to be obtained before a CTO is in place to be positive as this will support smooth transition of care between inpatient and community services.  It would be helpful if the statutory document to record CTO implementation enabled the agreement to be documented.

We consider the requirement in Clause 19, para 116(7) for the Hospital Managers to consult the community clinician before discharging the patient from the CTO may benefit from further clarification. 

Clause 19 Para 116. Subsection (7)

In section 23 (discharge of patients), after subsection (2) insert

— “(2A) Before making an order for discharge by virtue of subsection (2)(c)—

(a) the responsible clinician must, if they are not the community clinician, consult the community clinician;

(b) the hospital managers must consult the community clinician.”

Where an (Associate) Hospital Managers panel following an appeal or review hearing are of the view that a CTO discharge is appropriate, would they then have to "consult" with the RC?  Would the presence of the RC at the hearing constitute the "consultation"?  How might that work in practice where another doctor was attending a hearing on behalf of the RC? 

We would also seek clarification on Clause 28(4)(e):

Clause 28(4)(e)References to Tribunal -

(c) in the case of a community patient—

(i) the period of six months beginning with the applicable day;

(ii) the period between the expiry of six months and the expiry of 12 months beginning with the applicable day;

(iii) each subsequent period of 12 months.”;

Clarification on the language used in Clause 28(4)(e) as it refers to "subsequent" 12 months, when there would only be one period of 12 month detention ending at 2 years from the start date of the CTO.

Question 9

What do you think the impact of the proposals will be on the workforce within community mental health services and multidisciplinary working practices both in inpatient and community services?

Clause 26 - The change in first detention period from 6 months to 3 months will increase the number of renewal hearings and referrals to Tribunal.  This will require additional clinical, social work, health and social care administration and Tribunal judiciary/administration resource to support effectively.

Question 10

What changes and additional support do you think will be needed to help professionals and the third sector implement the proposals effectively? Will additional staffing and resources be required?

Further to our response in Question 9 above, there will be increased load on Tribunals which will require additional resource. 

An option for consideration would be to utilise Associate Hospital Managers to undertake reviews for s.3/37 renewal and CTO extension when the patient has decision-specific capacity and is not contesting the renewal or extension.

The AHM resource fulfil a very important function by giving a completely independent assessment of detention by a panel of individuals with significant life experiencing and training.

As outlined in our earlier responsible to Question 9 the increase in hearing activity will require additional staffing resource in a variety of specialties.

Additional IMHA resource will be required to ensure patients have access to independent support.

Clause 18 includes a requirement for statutory care plans to be completed and then reviewed within timeframes.  This will require a governance framework in place to provide assurance that sufficient, appropriately trained and qualified persons are available, and for sufficiently robust monitoring and escalation routes to be in place.   There will need to be systems in place to ensure clear information is given to nominated persons to advise them of their right to request review, and to have systems in place to respond to requests in a timely way.

For all the new processes outlined within the draft Bill there will be a need for a variety of training to many professional groups - this will require time for staff to be released to attend training and for training resource to plan and facilitate the training programme.

Question 11

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 challenge is how to prioritise patient autonomy in the context of risk to the patient and/or others.  We recognise that the specificity of an advance decision in the context of mental health is more challenging than in physical health.

Clause 15 - the removal of the power to give urgent treatment to detained patients with capacity who are refusing treatment.  This again reinforces the need for best practice in terms of MCA compliance to ensure capacity assessments are sufficiently thorough and supported decision making practice is applied.

Clause 17 - The increased involvement of ADRTs and LPA's requires clinical teams to be clear when these are in place and ensuring they are clearly highlighted on the clinical record.

Question 12

What do you think of the proposed replacement of “nearest relative” with “nominated persons”? Do the proposals provide appropriate support for patients, families and nominated people?

We welcome the introduction of the "nominated person" provision as this will further enhance patient autonomy.

We recognise there may be complications for children and young people as there may be several different persons with overlapping rights and responsibilities, eg a child in case who has both the local authority and parent with shared parental responsibility, who may also then choose a third person as their "nominated person".

The ability for the AMHP to nominate a person in cases where the patient is too unwell will be helpful.  We suggest a clear review timeline should be in place to ensure the patient is supported to identify their nominated person at the earliest opportunity.

If a patient is to be considered for a research study, and lacks decision-specific capacity, the nominated person should be approached as first choice for personal consultee to make a declaration about the patient's likely attitude towards enrolment in the study. This could be put into a new Code of Practice.

Question 13

To what extent is the Government right in the way it has approached people taking advance decisions about their care?

We welcome patient autonomy and the capturing of the patient's advanced decisions about their care.  Yet we recognise that for those who have not previously been under the care of mental health services their decision making may not be informed by personal experience.  There will be challenges in ensuring the advance decision is a fully informed one.

Whilst we welcome this positive step to enhance patient autonomy we would support a framework that ensures that where an ADRT refuses treatment that results in increased risk to the person and/or others, or where there are reasonable doubts about the person's capacity when the ADRT was completed, there is a mechanism to challenge the validity of the ADRT.    Successful implementation will require full training and refresher training to embed knowledge to ensure correct application of ADRTs. 

Question 14

What impact will the draft Bill have on children, young people and their families? Does it take sufficient account of the existing legal framework covering children and young people?

As outlined above, there may an impact on children and young people in relation to the "Nominated Person" provision as there may be several different people with overlapping rights & responsibilities, eg a child in care who has both the local authority and parent with shared parental responsibility, who chooses a third person as their "nominated person"

Question 15

To what extent are the proposals to allow for conditional discharge that amounts to a deprivation of liberty workable and lawful?

Clause 30 providing clarification on conditional discharge and DoLS provisions is helpful. 

However as it is currently drafted (see below), there are potentially complex requirements that must be met before a patient subject to a conditional discharge can appeal, taking into account any deprivation of liberty arrangements.  We suggest this may be challenging for patients to understand and exercise their rights and also for clinical teams to be able to understand and effectively implement.

Draft Mental Health Bill - Para 27 Periods for tribunal applications

“(2A) Where a restricted patient has been conditionally discharged, is subject to conditions amounting to a deprivation of liberty and has not been recalled to hospital, the patient may apply to the appropriate tribunal—

(a) in the period between the expiration of six months and the expiration of 12 months beginning with the date on which the patient most recently became subject to conditions amounting to a deprivation of liberty (whether or not that was the date on which the patient was conditionally discharged), and

(b) in any subsequent period of two years.”

Question 16

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?

In the preliminary documents, although not in the draft Bill, reference was made to patients in immigration removal centres who need transfer to hospital for serious mental illness.  Concerns are raised that Immigration Removal Centres are not equipped with clinical staff or mental health facilities to support persons with a mental disorder in need of treatment, and so persons in these facilities will be at greater risk.  For this reason we suggest consideration is given for a shorter transfer to hospital deadline to be implemented for people in Immigration Removal Centres.

We recognise the challenges, but consider that adequate safeguards need to be in place for those who are eligible to be detained under MHA and being considered for future deportation, including consideration of care being provided in the UK until they are well enough to be transferred to another country.

Question 17

Are there any additions you would like to see to the draft Bill?

We recognise the value of providing IMHA support for all patients, but recognise there are currently insufficient IMHA resources to provide this.  We encourage additional resource to be available to support the recruitment and training for IMHA services.

In this response we have included a representation of the range of views held around the role of the Associate Hospital Managers:

• The Associate Hospital Managers are a valued role and should be not abolished.  As outlined in earlier question responses, there are suggestions around what could be their role in reducing the workload for tribunals and as a more approachable and accessible option for patients who may find Tribunal hearings particularly daunting to attend.   They are also more economical than a Tribunal.
• In contrast, we recognise the value and independence that the AHMs provide, so their removal would need to be replaced with additional safeguards.  The amendment to detention periods/Tribunal references will potentially provide that safeguard and result in eligible patients being referred for Tribunal review more quickly than under current arrangements.  This will increase access to a professional panel, whose practice will be guided by their relevant professional bodies.  This provides a clear advantage to the patient as the Tribunal panel have the professional knowledge, training and expertise to ask questions/test evidence to ensure the need for continued detention is thoroughly tested with sufficiently detailed clinical questioning of the Responsible Clinician by a consultant psychiatrist.   The patient also has the benefit of access to legal representation to support them at a Tribunal hearing. 

An Associate Hospital Managers hearing has none of the above advantages and supports for the patient so recommend that further consideration is given as to whether the role should remain or be abolished.

September 2022