Written evidence submitted by Dr Judy Laing, Professor of Mental Health Law & Policy at the University of Bristol Law School, and Dr Jeremy Dixon, Senior Lecturer in Social Work at the University of Bath School for Social and Policy Sciences[1] (MHB0080)
Our submission focuses on the following areas identified in the call for evidence:
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What do you think of the proposed replacement of “nearest relative” with “nominated persons”?
We welcome the government’s commitment to reform the outdated Nearest Relative (NR) provision in the current Mental Health Act (MHA) and replace it with a Nominated Person (NP) with extended powers. The provisions in the Draft Bill to amend the appointment process and expand the powers and duties of the NP (Clauses 21-23; Schedule A1) will go some way towards improving and strengthening the role. There is considerable evidence, as noted by the Independent Review on Modernising the MHA, that the current NR role is ineffective, ‘outdated, variable and insufficient’. [2] We conducted research with Approved Mental Health Professionals (AMHPs) and NRs in 2017-19 which confirmed these concerns. Our research also confirmed the need for additional information and support for persons tasked with performing the NP role and appropriate training for professionals involved in the appointment process.
Do the proposals provide appropriate support for patients, families and nominated people?
The Bill is silent on information and support for the NP - providing appropriate information and targeted support to NPs will be essential if it is to result in any meaningful improvements for patients. This should be included as an explicit duty in the Bill, supported by clear and detailed guidance in a revised Code of Practice.
NRs are often seen as a brake on medical power and are viewed as essential in protecting the rights of people who are assessed under the MHA.[3] A great deal of attention within AMHP courses is given to correctly identifying the NR, which is often a complex task. However, far less attention is given to thinking of ways to support the NRs who undertake the role.
Views of AMHPs on the NR role
Our research with AMHPs in England examined how they interpret their duties towards NRs.[4] We adopted a two-stage design, which involved an online questionnaire with 55 AMHPs and focus group discussions with 33 AMHPs. Our questionnaire found that a high proportion of AMHPs reported they had spoken to NRs for background information when assessing patients under the MHA. However, AMHPs were less likely to ask patients about their views of involving the NR prior to assessment. Provisions in the draft Bill to allow patients with capacity to choose a NP are therefore welcome in this regard. However, consideration should also be given to the allowing those who may lack capacity at some stage in the future to plan and appoint a NP of their choice through an advance choice document, which would form an important part of care planning.
Focus group findings showed that AMHPs saw the NR role as offering an important ‘safeguard’ on the basis that NRs could provide information about the patient and advocate on their behalf. However, AMHPs identified practical difficulties in balancing their legal obligation towards NRs and patients; particularly where issues of potential abuse were raised or where patients had identified that they did not want NR involvement. Our findings identified that current practice could be improved using advanced choice documents for patients to embrace their preferences about the NP. It is therefore unfortunate that advance choice documents as set out by the Independent Review[5] are not reflected in the Draft Bill to include inter alia, patient preferences about the NP.
Views and experiences of NR of the role
In addition to speaking to AMHPs, we conducted face-to-face interviews with 19 NRs on their experiences of the role.[6] Many of our questions focused on their views of their legal duties, however most of the people we spoke to described negative emotional impacts from carrying out the role.
These impacts manifested in several ways. First, half of the participants in the study told us the MHA assessment was a distressing and chaotic experience. Many NRs in the study attributed feelings of distress to uncertainty about the NR role or because they felt it had impacted negatively on their relationship with the service user. Some NRs reported conflicted emotions, primarily linked to their powers to act as NR, specifically, the tensions between having the right to request an assessment, the power to object to an admission and the power to discharge the patient from hospital. Another dominant theme was feelings of frustration with mental health services. This was either because NRs felt that staff had ignored or minimised their concerns, or due to lack of information sharing by professionals about the progress of their relative’s compulsory admission and subsequent care or discharge arrangements. Some participants also reported frustration due to the lack of support offered to them by professionals during the assessment process.
Legal literacy (i.e., knowledge of legal duties and expectations of the NR role) in our sample was generally very low. They reported not being given sufficient information at any stage about the role requirements, a general lack of awareness of their specific powers and duties and uncertainty about where to turn to for support. Those with prior experience of exercising the NR role reported improved levels of knowledge and confidence, but generally felt that this was self-taught or directed, or acquired over time through prior experience of a MHA admission, rather than being the result of guidance or information from professionals or other sources. In general, NRs in our study felt ill-equipped to perform the role and there are clearly deficits in the current level of information and support for them.
NRs in our study suggested that being provided with more information about the role would be useful, coupled with the offer of emotional support, both prior to and following the compulsory admission. AMHPs and social workers will need to recognise the challenges that NPs will face, particularly if the role is expanded to a wider range of individuals (beyond the family setting) with extended powers, as in the Draft MH Bill. Careful thought should be given as to whether it is appropriate for 16/17-year-olds to be appointed as a NP (as proposed in the Draft Bill), given the nature and demands of the role, and in light of the concerns we have identified above about current deficits in knowledge, information and support.
We believe there are a number of practical steps that can be taken to address these deficits:
The proposals in the Draft Bill should be welcomed as, in principle, they can provide service users with improved representation and support. However, our research indicates that they are only likely to be effective on the ground if the steps listed above are taken to support NPs to effectively fulfil the role. There may also be scope for third sector organisations to support relatives and carers in this way, but it will require significant investment.
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 Draft Bill is designed to give patients a stronger voice in decision making affecting their care, for example, through closer involvement in care planning. Again, we welcome the government’s commitment to this, but it will not be realised without the provision of well-resourced and effective support to help strengthen patient voices and redress the balance of power in the compulsory admission, treatment and discharge process. Including explicit guiding principles on the face of the Draft Bill (as recommended by the Independent Review[7]), which focus on autonomy and choice and the person as individual, would help ensure that the views of the patient are foregrounded in all decision making under the Act and embedded in practice. It is regrettable that this recommendation (as proposed also in the White Paper[8]) has not been taken forward in the Draft Bill, as it would promote awareness, understanding and consistency of decision making under the legislation. Its omission from the Draft Bill is also surprising given that there was substantially more support for embedding principles in the Act and Code of Practice by respondents to the White Paper consultation.
Expanding the powers of NPs may go some way to redressing the imbalance of power, provided NPs are well informed, supported and aware of the requirements of their role (see above). Patients should also be provided with effective advocacy support throughout the entire process of compulsory admission and discharge. The proposal for an opt out system and extending independent mental health advocacy to all patients, including informal patients (Clause 34) is positive in this regard, but must also be accompanied by robust and comprehensive training and resources for professionals, advocates and patients.
Our paper on the use of advocacy for people with dementia demonstrates that education is needed to promote the benefits of advocacy in protecting the rights of patients. [9] Our research also found that different legislative schemes (notably the MHA, Mental Capacity Act 2005 and Care Act 2014) have given rise to some confusion about the various advocacy provisions, as well as potential for overlap and discrepancies between different regimes. Interviews with professionals have highlighted a lack of awareness amongst some about advocacy rights and revealed that others are confused about the difference between different forms of statutory advocacy.[10] Professional attitudes towards advocacy services remain mixed. Several studies highlighting enthusiasm for advocacy on the basis that referrals protect rights and autonomy.[11] Other professionals remain cautious of making referrals due to fears that advocates might instigate complaints against them,[12] or because they believe that advocates lacked the necessary skills to represent patients.[13] Research focusing on user views of statutory advocacy indicates that service users value the process of advocacy (experiencing advocates as supportive or empowering) and tend not to focus on statutory outcomes (such as a reduction in detention time or an increase in legal knowledge).
Government action to delineate when people can receive advocacy under different statutes in England and Wales were primarily impeded by financial considerations. This has subsequently led to an emphasis on the role of family and friends in facilitating communication, with professional advocacy being used where family is unavailable, or where there are safeguarding concerns. Whilst family and friends may indeed be best placed to represent individuals in some cases, it must be acknowledged that relatives often lack necessary knowledge and skills to negotiate with professionals for care and treatment. For example, research by Emmett et al[14] has shown that some families of dementia patients struggled to safeguard their relatives’ interests, as envisaged by the Mental Capacity Act. This situation was due to their deference as lay-people to professionals, hospital procedures and, in some cases, other stronger-willed relatives. Our research with NRs (see above) found similar challenges for relatives involved in the MHA compulsory admission process. As noted above, the NP safeguard will be significantly weakened if they are not supported, empowered and enabled to discharge their functions effectively to advocate for patients and the same considerations apply to the extended IMHA role.
Education should be provided in order to promote advocacy services. Research in England and Wales has revealed that advocates, as well as health and social care professionals, were often uncertain about when advocacy might be appropriate.[15] It has been suggested that this lack of knowledge might be addressed through professional qualifications for advocates as well as through education campaigns by local and health authorities outlining the benefits of advocacy.[16] Whilst professional frameworks and public education campaigns about the law may go some way to addressing this, these would only partially address issues around the level of referrals. This is because professionals remain ambivalent about the value of advocacy, either because they prioritise ‘clinical’ perspectives or because they worry about the impact of complaints by advocates about their practice.[17] Education about advocacy therefore needs to have broader aims focused on promoting a rights-based model of disability, in line with international human rights frameworks such as the United Nations Convention on the Rights of Persons with Disabilities.
Again, we would recommend that there must be an explicit duty to provide information about advocacy to all patients which should be accessible and comprehensive, and routinely provided to all mental health patients and their relatives /carers from the initial point of assessment and/or admission. Training programmes for relevant mental health professionals should clarify professional duties, and delineate the eligibility and referral process, as well as emphasising the benefits of advocacy for all patients.
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?
Our recommendations above for additional information, training and support mechanisms for nominated persons, advocates and mental health professionals inevitably have workforce/staffing and resource implications and will require modifications to AMHP and advocacy training programmes, as well as to the guidance provided in a revised MHA Code of Practice and associated regulations. We would query whether the Impact Assessment costings are sufficient to account for the expansion needed to the AMHP and IMHA workforce and associated training needs, as well as for increased workloads, particularly when the extra need for NP support is factored in.
About the authors
Jeremy Dixon is a senior lecturer in social work at the University of Bath. He joined the University of Bath in 2012 having worked for three years as a senior lecturer in social work at the University of the West of England before that. Jeremy qualified as a social worker in 1998 and worked in a wide variety of mental health services in statutory and voluntary sectors. This included work in community mental health teams, drug and alcohol teams and work in forensic mental health settings. He has several research interests. These include:
Jeremy is currently the vice chair of the International Sociological Association’s Research Committee on the Sociology of Mental Health and Illness. He is also the co-director of the Centre for Death & Society, is a board member of the journal Health, Risk & Society and is vice chair of the Health Research Authority’s Social Care Ethics Committee.
Judy Laing is a Professor of Mental Health Law & Policy at the University of Bristol Law School. Judy’s expertise lies in mental health law and policy, with a particular focus on human rights. Recent projects include research into advocacy support for people with dementia, the role of family members under the Mental Health Act and the impact of Covid on the mental health and wellbeing of prison detainees. She has written extensively about reforming mental health legislation during the last 20 years and been invited to speak about her research at national and international conferences. She is a co-investigator on a large Wellcome Trust funded inter-disciplinary project on best interest decision making under the Mental Capacity Act. Judy was a parliamentary academic fellow in the House of Commons Library from January 2021- July 2022. She was invited to give oral evidence in February 2022 to the Joint Committee on Human Rights for the inquiry into Human Rights in Care Homes and advised the Health and Social Care Committee in 2021 on the Learning Disabilities and Autism inquiry. Judy is also a member of the Care Quality Commission’s Mental Health Act monitoring external advisory group.
23 September 2022
[1] We acknowledge the contribution of Dr Kevin Stone, University of Plymouth and Dr Megan Wilkinson-Tough, Avon and Wiltshire Mental Health Partnership, to the research included in our submission.
[2] Modernising the Mental Health Act: increasing choice, reducing compulsion (December 2018) pp. 85-90.
[3] J Laing et al, The nearest relative in the Mental Health Act 2007: Still an illusory and inconsistent safeguard? (2018) 40(1) Journal of Social Welfare and Family Law 37-56.
[4] J Dixon et al, Treading a tightrope: Professional perspectives on balancing the rights of patients and relatives under the Mental Health Act in England (2019) 28(1) Health and Social Care in the Community 300-308.
[5] Modernising the Mental Health Act: increasing choice, reducing compulsion (December 2018) pp.
[6] J Dixon et al, Beyond the call of duty: A Qualitative study into the experiences of family members acting as a Nearest Relative in Mental Health Act assessments (2022) British Journal of Social Work, online access, January 2022; J Dixon and J Laing, Distress, uncertainty and frustration: Nearest relatives’ experience of Mental Health Act assessments. Community Care, 3 May 2022.
[7] Modernising the Mental Health Act: increasing choice, reducing compulsion (December 2018) pp. 65 et seq.
[8] Reforming the Mental Health Act 1983 (January 2021) p. 20.
[9] J Dixon et al, A human rights approach to advocacy for people with dementia: A review of current provision in England and Wales (2021) 19(2) Dementia 221-236. We acknowledge the input of Dr Christine Valentine, formerly of the University of Bath, on this paper.
[10] D A Chatfield et al., Is there a broader role for independent mental capacity advocates in critical care? An exploratory study (2017) Nursing in Critical Care Early Access 1-6; K Newbigging et al, ‘When you haven’t got much of a voice’: an evaluation of the quality of Independent Mental Health Advocate (IMHA) services in England (2015) 23(3) Health and Social Care in the Community 313-324.
[11] Ibid., M McKeown et al., Conflict of roles: A conflict of ideas? The unsettled relations between care team staff and independent mental capacity advocate (2014) 5 International Journal of Mental Health Nursing 398-408; M Redley, et al., Mental Capacity Act (England and Wales) 2005: The emergent Independent Mental Capacity Advocate (IMCA) Service (2010) 40(6) British Journal of Social Work 1812-1828.
[12] M McKeown, et al., Conflict of roles? A conflict of ideas: The unsettled relations between care team staff and independent mental capacity advocate (2014) 5 International Journal of Mental Health Nursing 398-408.
[13] M Redley, et al., Mental Capacity Act (England and Wales) 2005: The emergent Independent Mental Capacity Advocate (IMCA) Service (2010) 40(6) British Journal of Social Work 1812-1828.
[14] C Emmett et al, A relative safeguard? The informal roles that families and carers play when patients with dementia are discharged from hospital into care in England and Wales (2014) 28(3) International Journal of Law, Policy and the Family 302-320.
[15] K Newbigging et al., ‘When you haven’t got much of a voice’: an evaluation of the quality of Independent Mental Health Advocate (IMHA) services in England (2015) 23(3) Health and Social Care in the Community 313-324; M Redley, et al., Mental Capacity Act (England and Wales) 2005: The emergent Independent Mental Capacity Advocate (IMCA) Service (2010) 40(6) British Journal of Social Work 1812-1828.
[16] House of Lords, 2014
[17] M Redley, et al., Mental Capacity Act (England and Wales) 2005: The emergent Independent Mental Capacity Advocate (IMCA) Service (2010) 40(6) British Journal of Social Work 1812-1828; McKeown, et al, 2014