Written evidence submitted by Justin Leslie, Mental health lawyer and former parliamentary counsel (MHB0082)
Introductory
- I am a barrister working in healthcare law, with a particular focus on mental health law. My clients are primarily NHS bodies. Prior to this I worked as parliamentary counsel to the Government. In that role I drafted a range of legislation, including in the area of mental health law.
- This submission is written in a personal capacity. It does not represent the views of my employer, my clients or the Government. However, it does draw on my experience of producing legislation and working with the Mental Health Act 1983 (“the 1983 Act”). In the interests of brevity and focus, this submission deals only with what I consider to be the key points.
Overall impressions of the draft Bill
- Overall, the draft Bill is a well-intentioned piece of legislation. The Government has taken seriously the recommendations of the Wessley review. The draft Bill appears to be a genuine attempt to improve the autonomy and choice of patients detained under the 1983 Act.
- However, no legislation is beyond improvement. In what follows I make a number of comments about these Bill. In doing so, I make suggestions as to how the draft Bill could be changed before it is introduced into Parliament. None of these suggestions argue against the overall policy of the Bill. They are intended to be constructive.
A: Statutory principles
- The Wessley review recommended that a number of principles were included at the beginning of the 1983 Act. These were:
- Choice and autonomy;
- Least restriction;
- Therapeutic benefit;
- The person as an individual.
- The Government then agreed to include these principles in the 1983 Act. However, the draft Bill does not include such principles. The Explanatory Notes make it clear that these substance of the principles is delivered through the other changes proposed to the 1983 Act.
- This is probably the right outcome. Introducing a series of statutory principles to an Act that is almost 40 years old is not straightforward: it would involve a significant amount of surgery on the 1983 Act to ensure that the right effect is being achieved. This would be particularly difficult given how the civil and criminal provisions of the 1983 Act operate and inter-relate.
- As a general point about policymaking, it is usually inadvisable to start from the position that something should be ‘enshrined in legislation’. The better approach is to determine what policy changes are wanted and then consider how this might be achieved. Legislation is not the only option. In the context of the 1983 Act, the Code of Practice also plays a significant role. Such statutory guidance is often a better home for points about how to approach the application of legislation in different contexts.
- My suggestion here is that when amendments to the Code of Practice are considered the Wessley principles are set out there with explanations about how the 1983 Act (as amended by the draft Bill) gives effect to them.
B: Learning disability and autism
- The proposed removal of those with autism or a learning disability from some of the provisions of the 1983 Act is well intentioned. But it also raises a number of questions. I raise two points.
- First, there is an issue about complexity. Those with autism or a learning disability will still be able to be detained for assessment under section 2 but will not be capable of being detained for treatment under section 3 or a community treatment order (CTO) made under section 17A.
- Those with autism will be able to be received into guardianship under section 7 but this only applies to those with a learning disability which has serious behavioural consequences. This would also be the position for Part 3 patients (patients concerned in criminal proceedings or under sentence).
- Navigating how a person with autism or a learning disability fits into the 1983 Act will be complex in many cases. Particularly in relation to those with a learning disability, determining if this has “serious behavioural consequences” will be particularly difficult. This is notwithstanding the clarifying definition of this term provided by clause 1(4), which carries forward terminology inserted by the Mental Health Act 2007. I can see that this definition is drafted in a way so that the effect of that wording continues, but it creates awkwardness with the term “serious behavioural consequences”.
- This is because new section 1(2A) indicates that this means serious behavioural consequences for the person rather just those around the person. So this seems to include someone who may be abnormally aggressive but does not actually cause serious harm to anyone. But this is not what the idea of ‘serious behavioural consequences’ seems to be attempting to convey. Whilst I think the drafting may work technically, clinical users of the legislation may struggle to navigate points like this.
- Second, there is an issue about unintended consequences. There is a recognised cohort of people with autism or a learning disability who need active engagement to keep them safe and those around them safe. In a minority of those cases an admission under the 1983 Act can provide treatment that alleviate the symptoms or manifestations of those conditions.
- If the draft Bill’s approach is enacted the issues presented by this cohort will not disappear. So clinicians and other professionals will look for other routes. A possible alternative is clinicians using the power to detain for assessment under section 2 even more readily if this can still be used in relation to this cohort of patients. Clinicians may be influenced to try to ‘find’ psychiatric disorders that justify detention under section 3.
- A more likely alternative will be the increased use of the Mental Capacity Act 2005 and the powers to deprive someone of their liberty that this contains. However, the 2005 Act only applies to those who lack capacity (many patients with mental disorders have capacity). In addition, the 2005 Act contains fewer procedural protections than those provided under the 1983 Act. In particular, the 2005 Act provides no equivalent to the automatic referrals made under the 1983 Act to the First-tier Tribunal.
- The 2005 Act’s Deprivation of Liberty Safeguards, and their eventual successor the Liberty Protection Safeguards, are extremely complex pieces of legislation in how they are drafted. This reflects the complexity of the underlying policy. Clinicians will need to engage with these more readily if they are to authorise admissions to hospital using the 2005 Act as an alternative to the 1983 Act. These shadow admissions – using the 2005 Act to achieve the same outcome as the 1983 Act – are likely to be administratively more burdensome for clinicians and also put patients in a worse position overall.
- Whatever the consequences of changing the position of those with autism or a learning disability in the 1983 Act, it will be vital to understand those consequences. My suggestion would be to insert a statutory duty to report to Parliament on the operation of the provisions of the draft Bill that make these changes. This duty would apply annually and would require the Secretary of State to lay before Parliament a report that describes whether the provisions are having their intended effect. I would expect the Department of Health and Social Care would be undertaking this monitoring in any event, so the additional burden to the Government would be minimal.
C: Grounds for detention
- The draft Bill proposes that the grounds for detention are amended so that detention (see clause 3). This would make it more difficult to detain someone for assessment under section 2 as those making the application would need to show that—
“(b) serious harm may be caused to the health or safety of the patient or of another person unless the patient is so detained; and
(c) given the nature, degree and likelihood of the harm, and how soon it would occur, the patient ought to be so detained.”[1]
- It is clear that this change is seeking to focus clinicians’ minds on the serious harm that might actually occur if a person is not detained. However, in doing so it creates the risk that an admission for assessment under section 2 is only used in cases where there is a likelihood of serious harm: in other words, patients may need to be at a crisis point before an admission is lawful. The clinical consensus is that early interventions are more effective than later interventions. This is because the presentation of a patient may be less acute and more readily treatable at an earlier stage. Whilst most clinicians consider any admission under the 1983 Act a last resort, it would be to patients’ detriment if they are unable to access the treatment that would benefit them until they are at a point of crisis.
- The Government is also taking a calculated risk here, prompted by the Wessley review. The ‘risk’ is that those patients who merely pose a risk of harm, rather than serious harm, to others should remain in the community. I also practice in coroners’ courts and I see inquests regularly where those with mental disorders acted in an unpredictable way and caused harm to themselves or others as a result. I do not suggest that the Government is wrong to take this risk, and I see the force in Sir Simon Wessley’s overall point that increased liberty and autonomy does not come without its risks. We do not live in a risk-free world and nor should we want to. However, the inherent challenge of any mental health legislation is striking the right balance. It remains to be seen if the balance proposed by the draft Bill will be long lasting.
D: Treatment
- The draft Bill makes provision about treatment under the 1983 Act.
- Clause 6 also makes provision about a new concept of “appropriate medical treatment” which is in terms of the treatment having a “reasonable prospect” of providing a benefit rather than treatment having the “purpose” of providing such a benefit. This is an interesting change because this shifts what can count as treatment from being focused on the intention behind the treatment towards its consequences. There are certainly cases where the treatment being explored by clinicians is experimental to see whether it is effective for a patient. It may be difficult to say in practice whether a particular treatment has a reasonable prospect of providing a benefit, whereas now it is more straightforward to conclude that a treatment is provided for the purpose of providing a benefit.
- An area where this may have a particular impact is in relation to treatment under section 63 (treatment not requiring consent). This is the provision that is relied upon as a basis for providing physical treatment to a patient for a condition that is considered to be a manifestation of an underlying mental disorder. For example, where a patient was refusing dialysis this could be provided without consent under section 63 because his refusal was a manifestation of his mental disorder, and the treatment had the purpose of alleviating this manifestation (see A Healthcare, B NHS Trust v CC [2020] EWHC 574 (Fam)). It will remain to be seen whether this consequences-focused approach to treatment will narrow in practice the operation of section 63. If it does, alternative routes will be needed, such as treatment under the Mental Capacity Act 2005 (but only if the person lacks capacity to decide about their treatment).
- There does seem to be a theme underlying the Bill, which is most obvious in relation to its treatment provisions. This theme is about the relationship between the 1983 Act and the Mental Capacity Act 2005. As noted above, a potential consequence of the Bill is that those with autism or a learning disability are treated under the 2005 Act rather than the 1983 Act. That may also be the case for some patients who would otherwise have been treated under section 63.
- Part of this theme extends to importing language from the 2005 Act into the 1983 Act. Clause 9 introduces a clinical checklist which an approved clinician must go through when deciding whether to provide treatment. This refers to concepts that appear to be lifted directly from section 4 of the 2005 Act, which deals with best interests. Similarly, clause 17 introduces the concept of “capacity to consent” which is defined by reference to the 2005 Act. It seems to me noteworthy that there may be an effort to tilt the operation of the 1983 Act towards the approach found in the 2005 Act.
- This hints at whether a more fundamental reform of the 1983 Act would have benefits. It does seem to be an Act that is a good candidate for a Law Commission or consolidation project. Both kinds of projects are time and resource intensive, and I think as practitioners we need to be grateful that this area is getting any legislative attention at all.
- On the clinical checklist itself, most clinicians will already consider the wishes and feelings of patients as well as the other matters listed in clause 9. It is to be hoped that the checklist does not create an additional administrative burden for clinicians who are already busy and in many cases overworked. A possible solution to this would be to relocate this provision into a revised version of the Code of Practice. This must be followed unless there is good reason not to do so. This would create more flexibility for clinicians that might avoid any unnecessary burdens arising from the new checklist.
E: Detention periods and periods for tribunal applications
- Clause 27 reduces the amount of time that a patient detained for treatment under section 3 needs to wait before applying to the Tribunal from six months to three months. This is consistent with the initial detention period also being reduced to three months (see clause 26). In principle, the idea that patients will be able to more readily access the Tribunal is attractive. Independent oversight of any deprivation of liberty is to be welcomed.
- However, in practice there will be an issue about the Tribunal’s capacity. It will need increased funding to support an increase in judicial resources to accommodate this change. It is also worth remembering that most Tribunal hearings are dealt with by the Responsible Clinician without additional legal representation. So an increase in the number of hearings that needed to be prepared for and attended will have an impact on their ability to attend other patients. This is recognised in the Impact Assessment to the draft Bill.
- This speaks to the need for the Department of Health and Social Care to secure a funding agreement from the Treasury about the implementation of the Bill’s measures. Otherwise key elements of the Bill will go unimplemented. In addition, an implementation plan will be important to address these issues
- To the extent that this is a concern, I would suggest that the Health and Social Care Select Committee make it a standing item for when Ministers to attend to discuss their work. The implementation of Bills is an often overlooked part of the wider legislative process and there is a concern that this draft Bill may be enacted but then not implemented in full.
F: Conditional discharge subject to deprivation of liberty conditions
- Clause 30 is a provision of the Bill is may not be a focus of the Committee given the other key elements of the Bill. However, it is worth highlighting this provision because of the difficulties it is trying to solve. The Supreme Court in Secretary of State for Justice v MM [2018] UKSC 60 decided that there was no power to conditionally discharge a patient into circumstances that amounted to a deprivation of liberty. For a particular cohort of patients, there is a significant benefit of no longer being in a hospital environment but also being subject to restrictions to prevent harm to the patient or to others.
- The Ministry of Justice’s solution to this has been to rely heavily on the power to grant extended custodial leave under section 17(3) of the 1983 Act to achieve the same ends. But because such patients are not discharged they may be liable to being discharged by the Tribunal if there is no longer treatment available to them. This would put them beyond the reach of the 1983 Act. The only other alternative is using the Mental Capacity Act 2005; but this only applies to those without capacity. So the current arrangements are fragile, particularly for patients with capacity.
- Clause 30 tries to solve this issue. This gives powers to the Secretary of State and the Tribunal to conditionally discharge a patient subject to deprivation of liberty conditions. However, these are in terms of whether it is necessary to do so for the protection of the public from serious harm. There are recognised cases where the issue is whether such conditions would protect the patients themselves from harm (see Cumbria, Northumberland Tyne & Wear NHS Foundation Trust v EG [2021] EWHC 2990 (Fam)). So it remains to be see whether clause 30 is sufficient to adequately resolve the tensions and complexities that have followed MM.
G: After-care services
- Section 117 of the 1983 Act is a well-known area of complexity in the 1983 Act. The primary issue is not whether a person is entitled to after-care services, but rather on what basis those services should be provided. The statutory duty falls on Integrated Care Boards and local social services authorities together. The particular ICB or local authority that has the duty to provide after-care services is typically defined by reference to the area where the person was “ordinarily resident” before they were detained.
- The issue of where someone is ordinarily resident is in some cases complex and disputed by the public bodies involved. At the moment, practitioners are waiting to see whether Supreme Court will give permission to appeal the decision in R (Worcestershire County Council) v Secretary of State for Health and Social Care [2021] EWCA Civ 1957. This decided that the duty to provide after-care services did not end because a patient was re-detained and then discharged elsewhere (in this case in Swindon).
- Clause 39 deals with two points.
- First, clause 39(2) introduces a provision which means that the provision of after-care services will continue until joint notice if given by the ICB and local authority that they are satisfied that the person no longer needs the service. An issue raised in the Worcestershire case was about the need for clarity about when after-care services would end and a joint notice would provide this clarity.
- Second, clause 39(3) is about identifying where a person was ordinarily resident when they were under 18 in order to identify correct local social services authority. To do this, a new subsection (3A) is inserted into section 117. This applies the approach in section 105(6) of the Children Act 1989, which requires any time spent living in a school or under a supervision order etc. to be disregarded. New subsection (3A) then applies a kind of backwards gloss on section 105(6) so that it is to be read in a particular way in the context of section 117, so that time spent as a child being provided accommodation under section 117 is to be disregarded when determining where someone is ordinarily resident.
- To anyone other than a specialist mental health lawyer, the manner of achieving this legal effect is bewildering and requires entirely unnecessary mental gymnastics to determine the right result. In the context of a provision that is already extremely complex to apply in practice, the presentation of clause 39(3) is positively unhelpful. My suggestion is that the intended legal effect is written out into section 117 positively rather than relying on a gloss (technically known as a ‘non-textual modification’).
Justin Leslie
Barrister
23 September 2022