Letter from Maria Caulfield MP, Parliamentary Under-Secretary of State, Department of Health and Social Care (MHB0095)

 

11 November 2022

 

Dear Baroness Buscombe,

Thank you for your letter of 3 November and for the work you and the members of the Joint Committee are undertaking to scrutinise the draft Mental Health Bill.  

The draft Bill contains a set of proposed reforms which, if enacted, would improve the lives and experiences of many people, with a modernised Mental Health Act   that empowers people to have a far greater say in their own care. 

I appreciate that these matters are complex, and that your letter included a number of questions intended to provide an opportunity for the Government to set out its position and understanding about a number of issues. To these questions, I provide the Government’s responses in the attached Annex. 

Kind regards,

MARIA CAULFIELD MP

 

ANNEX

 

Policy questions:  

1. What is the Government’s rationale for not introducing statutory advance choice documents (ACDs) as envisaged by the Independent Review in this draft Bill, despite a White Paper commitment to do so?  

ACDs 

When we sought to translate the White Paper commitment into draft legislation, we decided that it would be simpler and more effective to develop a legislative framework that gave greater weight to people’s advance wishes and decisions, rather than creating a system that was contingent on a person having a statutory ‘Advance Choice Document’ (ACD).  

Our approach aims to adapt the approach taken to existing rights under the Mental Capacity Act 2005, where the concept of advance choice making is already well established. It also aims to afford service users more flexibility around how they express their wishes and decisions in advance.  

It is important that a person is able to make an advance decision in a way that best meets their needs and allows for this to be made in ways other than in a written document. For example, some patients’ preference may be to communicate their decisions orally, and this should have the same validity as a written statement. This is particularly important for service users who do not have an established relationship with community mental health services and therefore may not be given the opportunity to complete an ACD.    

In our view, placing ACDs on to a statutory footing risks creating a hierarchal system of how advance choices are made or inadvertently signalling that advance choices made in other ways are not valid. This would be contrary to our aims of improving patient choice and autonomy.   

However, we do recognise that a standardised ACD form or template will be a helpful way of guiding and encouraging people to set out their decisions in advance. These decisions might include the care and treatment they would like to receive, any treatment they do not want to receive, who they want their Nominated Person to be, and who else they want to be consulted on and involved in decisions about their care.  To achieve this, we are working closely with NHS England to develop a standard ACD template to support individuals to make these important decisions. 

We intend to provide guidance in the Code of Practice for mental health professionals on informing service users of their options and supporting them to record their advance wishes and decision, especially where they are considered to be at risk of admission to hospital or detention under the Act.  

Other draft Bill provisions supporting advance decision making 

As mentioned above, although the draft Bill does not include provision for statutory ACDs, it does create a legal framework for giving weight to people’s advance wishes and decisions. For example, clinicians will be under a duty to give full consideration to the preferences of patients expressed in advance as part of the new statutory ‘clinical checklist’ (clause 9). The draft Bill also provides patients (who are 18 or over) a significant and important new right to make advance decisions to refuse medications which are regulated under Part 4 of the MHA. This means that, so long as their advance decision is valid and applicable (as defined under the MCA), the treatment cannot be given in most cases (clause 11) and clinicians will need to give a “compelling reason”, and secure certification from an independent second opinion appointed doctor, in order to override the patient’s refusal. The draft Bill will also give service users the ability to appoint their Nominated Person in advance, at a point when they are well enough to do so.  

1a. What is the Government’s reasoning for effectively prohibiting under-18s from making advance decisions by relying on advance decisions under the Mental Capacity Act, for which under-18s are not eligible?  

As mentioned above, we believe that building on existing rights under the MCA is the most effective way of affording patients the ability to make advance choices and to have these considered and followed by clinicians. We recognise that this excludes under 18s from the ability to make an advance decision under the MHA because the MCA applies to those aged 16 and over but advance decisions under the MCA only apply to those aged 18 and above. We are not currently inclined to diverge from the MCA in order to make under 18s eligible to create an advance decision that applies only to medication regulated under Part 4 of the MHA. To do this might create confusion and have untoward consequences. The codification of this position in the MCA reflects what has been a longstanding legal principle established by common law over the years – in that the MCA does not recognise advance decisions to refuse treatment for those under 18 because in some cases parents and the courts can override them. Furthermore, we think that the safeguards provided to under 18-year-olds in the draft Bill are in accordance with the Independent Review, which did not expressly recommend that under 18s should have the ability to refuse treatment as part of the proposed ACD.  

However, there are many provisions in the draft Bill which aim to strengthen the autonomy of patients who are under 18. For example, it will place requirements on responsible clinicians to take into account any past and current wishes and feelings expressed by the patient when making treatment decisions, as part of the new ‘clinical checklist’ (clause 9). It will also require a clinician to apply more stringent criteria if they want to overrule the patient’s competent or capacitous refusal to treatment (clause 11), a decision which must in turn be scrutinised by a Second Opinion Appointed Doctor. The draft Bill also requires that the patient and those close to them (among others) are consulted by the clinician in the preparation and review of their care and treatment plan (clause 18), and it gives under 18s the ability to appoint a Nominated Person of their choosing (clause 21).  

2. What is the Government’s reasoning for disagreeing with the recommendation of the Independent Review that its Principles should be included in the Bill?  

The Government is entirely supportive of the values underpinning the principles proposed by the Independent Review - of choice and autonomy, least restriction, therapeutic benefit and the person as an individual.   

But we believe that strongest and most effective approach to deliver the impacts envisaged by the Independent Review within the draft Bill and the Act is to embody the principles in targeted and practical measures, rather than requiring the general application of abstract principles. That is why the Independent Review’s principles have informed every decision we have made when developing new measures in the draft Mental Health Bill, for example:   

Embedding the Independent Review’s principles into the clauses in this way provides clarity to those administrating the Act and those detained under it.  

In our view, applying a new set of broad principles to an existing legal framework, rather than building a new legal framework around a set of targeted principles from the outset as was the case with the Mental Capacity Act, risks a lack of legal clarity for practitioners. This is because there are parts of the Act where it would not be clear how the new duty to apply the new principles interacts with existing rights and obligations, particularly in relation to those provisions which the draft Bill does not amend. 

 To set out the principles in the legislation and apply them to the Act as a whole is a rigid requirement which does not leave discretion for the principles to be applied as is most appropriate in specific circumstances.  We believe that together, specific duties in the draft Bill deliver the impact that the Review’s principles were intended to have in a more effective way than if the principles were set out on the face of the Act.  

We will update the current set of principles contained in the Code of Practice with those recommended by the Independent Review. In the case of the Mental Health Act, the benefit of having the principles in the Code of Practice rather than statute is to allow practitioners the flexibility to apply them as is most appropriate in specific circumstances. Practitioners will still be under a statutory duty to have regard to the principles when making decisions under the Act and all practitioners will be required to adhere to them unless there are cogent reasons not to. Finally, putting the principles in the Code of Practice means that they can be adapted more easily over time in response to future changes, which is an issue that is important for the MHA.    

2a. What is the Government’s view of the Mental Capacity Act 2005 or the Armed Forces Act 2021 as precedents for how this could be done?  

Whilst we acknowledge that there is precedent for applying a set of principles to a whole Act in a health context, we do not think these approaches are replicable here. For example, the Mental Capacity Act (2005) (MCA) has five principles that should guide everyone working with people who may lack capacity. The key difference between the MCA and the MHA however, is that the MCA was drafted with principles included from the beginning so the Act was built around the principles whereas applying a new set of principles to the existing legal framework of the MHA 1983 would require a different approach. It would be necessary to ensure that it was clear to those exercising functions under the Act how the existing legal provisions interacted with the new principles to avoid any uncertainty as to what the legislation required. The principles in the MCA are also much more targeted and detailed, and it is clear how they should be applied. The Review’s principles in comparison describe concepts so broad that they would not in our view lend themselves well to future legal interpretation.  

3. What is the Government’s rationale for not giving Mental Health Tribunals the power to hear treatment challenges, as recommended by the Independent Review?  

We consulted on the Independent Review’s recommendation, and more than half of the consultees who responded cited significant concerns around how this would work in practice and the potential adverse implications it might have. The main concerns raised were to do with the new and significant power sitting with a single judge of the Mental Health Tribunal (MHT) acting alone, rather than with the full multidisciplinary panel, and concerning the MHT judge intervening in clinical decision making without having the necessary expertise to do so - possibly posing a risk to patient safety; and the potentially significant burdens it could create on tribunal and clinical resources. While we support the objectives of the Review’s recommendation – to uphold the patient’s right to self-determination and to ensure that compulsory treatment is only used when it is absolutely appropriate – we think that these are met more than adequately by other measures we have proposed in the draft Bill.  

These include, but are not limited to:  

 

We anticipate that these new safeguards will result in patient choice and autonomy playing a much more central role, thereby improving patient experience and reducing the use of compulsory treatment. We therefore expect that fewer patients will wish to challenge their treatment, however where this is the case, patients can rely upon their Nominated Person or Independent Mental Health Advocate to help make sure their voice is heard by their clinical team and that concerns can be raised.  

4. The Government said in the White Paper that it would run a pilot of culturally appropriate advocacy before deciding if such a system should be included in legislation. As this pilot has concluded, what is the Government’s position on this matter?  

The Department commissioned a first phase of culturally appropriate advocacy pilots last year, which completed in June 2022. We are currently planning a second longer-term phase of pilots, to further strengthen our understanding of how culturally appropriate advocacy can be delivered at a local level. Our aim is to test different models of culturally appropriate advocacy over a longer period of time, and build evidence of what approaches work best, which will then form the basis of future guidance to commissioners.  

As we await the findings from this planned second phase of pilots, we have come to the conclusion that it would not be right at this stage to make any provision in primary legislation, especially before we have all the learnings from the pilots. Further, the roll-out of culturally appropriate advocacy services does not require further enabling provisions in the Bill – and we think the Code of Practice is a more appropriate vehicle to set out what culturally appropriate advocacy is, what works best, and how local systems should commission these services. This will be underpinned by legal duties that already exist under the Equality Act 2010 – which provides that a person must not be discriminated against on the basis of their race – and the Public Sector Equality Duty established by that Act. 

In our view, the best approach is to gather more evidence on the impact of culturally appropriate advocacy services before we mandate them in legislation.   

5. Could you provide an update on the consultation on whether to extend Section 5 powers to A&E settings mentioned in the White Paper?  

Since the government published its response to the White Paper consultation, we have engaged with stakeholders to seek their views on how to take this work forward. During this engagement, stakeholders challenged the need for new powers on the basis that they believe that other legislation, including the Mental Capacity Act, already provides adequate legal power to clinicians. Stakeholders also raised concerns regarding the risks and implications of introducing new powers under the MHA, their potential to lead a rise in detentions, particularly the disproportionate rate of detentions for black people, as an unintended consequence, and also concerns about the availability of appropriately trained clinicians and security personnel, which would be essential for effective implementation.   

In light of stakeholder feedback, we have decided not to include new holding powers for health professionals in A&E in the draft Bill in favour of exploring non-legislative activity to improve support for those with a mental health crisis in A&E.   

We are continuing to work closely with stakeholders to consider how we can increase access to a timely Mental Health Act assessment and support those experiencing a mental health crisis in A&E.  We will also consider how we can provide clarity on the existing legal framework for clinicians where possible, to ensure that health professionals in A&E and those involved in crisis care understand what powers are available to them in these circumstances.   

6. Why did the Government decide not to fully adopt the Independent Review’s recommendations on Community Treatment Orders?  

In our view, the Government did in fact adopt almost all of the Independent Review’s recommendations on Community Treatment Orders (CTOs). The draft Bill therefore contains provisions to revise the criteria for CTOs in line with the new detention criteria, so that the patient needs to be at risk of serious harm and will need to benefit therapeutically from the CTO. This will help to ensure that only those who need to be on a CTO will be placed on one. We are introducing further professional oversight, as the Independent Review recommended, through involvement of the clinician responsible for caring for the patient in the community in decisions around the use and operation of CTOs. This will help ensure better join up between inpatient and community clinical teams and make sure that people who will be cared for in the community really need the support of a CTO. We are also increasing scrutiny of decision making, both through increased professional oversight by the community clinician, and an enhanced role of the tribunal, which will be able to review the conditions applied to someone’s CTO, ensuring that these are not overly restrictive.  

We have consulted on the recommendation to end CTOs automatically after 24 months and it was felt by stakeholders that this risked removing support for those patients who were benefiting from the CTO, in particular those with eating disorders and forensic patients. Stakeholders felt that CTOs can often be a valuable tool for patients with eating disorders, as it avoided  the far more restrictive intervention of inpatient admission. They  also felt that an time limit of two years for CTOs could contradict the principle of person-centred care. The Independent Review noted that people who had been moved from high security or medium security settings into supported housing often expressed a strong preference to be placed on a CTO, as without this option they might  end up  being recalled to high security or medium security inpatient services.  

While we think an arbitrary time limit in legislation is therefore not appropriate, we are committed to ensuring that CTOs are used for the minimum time possible. We will therefore set an expectation in the Code of Practice that CTOs should not continue beyond 24 months, but that this decision should be made on a case-by-case basis.  

We agree that CTOs should end as soon as the CTO ceases to be the best approach for the patient. This is supported by the new higher threshold for placing someone on a CTO and extending their section. To support this, we are making sure there is more regular scrutiny from the tribunal by introducing more frequent automatic tribunal reviews to ensure that people are not kept on CTOs if this is no longer needed. This means that under the reforms, following an initial tribunal referral at six months, another referral is required after a further 6 months, followed by a mandatory referral 12 months after that, if the patient has not made an appeal themselves. This means that under the new system, the CTO cannot be extended past the 12 month point without a referral to the tribunal. This improves considerably on the current system in which the patient can go for three years before a further referral is required. 

The Independent Review’s recommendation for the responsible clinician to demonstrate that a CTO is a reasonable and necessary requirement to maintain engagement with services has been considered and in our view this is already represented within the current legislation (at sections 17A(6) and 20A(7) which require the clinician to have regard to the patient's history of mental disorder and any other relevant factors, what risk there would be of a deterioration of the patient's condition if they were not detained in a hospital, as a result, for example, of their refusing or neglecting to receive the medical treatment they require for their mental disorder). We intend to strengthen current guidance to clinicians in the Code of Practice, to emphasise that a decision to place someone on a CTO should be based on robust evidence. We also believe that inclusion of additional professional oversight and increased frequency of tribunal scrutiny will play an important role in ensuring that the reasons for placing the individual on a CTO are sufficiently strong.  

We are not taking forwards the recommendation to revise the criteria for recall to hospital in legislation (as tightening the recall criteria would mean that patients could only be recalled when they already essentially meet the detention criteria, and therefore the criteria for revoking the CTO), and we are not legislating for alternative locations for recall as stakeholders felt that this would be potentially too high risk for the patient’s health and safety. Where a recommendation is not being legislated for, we will support this through the updated Code of Practice. For example, we will clarify the process for recall through the Code so that patients and professionals are clear on this, supported as required by training. 

We believe that the success of these reforms will be measured by a reduction in the number of CTOs, in particular in relation to the disparities in their use, particularly as this affects people from black African and African Caribbean backgrounds. We fully agree that the effect of the reforms on CTOs should be reviewed in five years’ time, with a view to updating Government policy on the use of CTOs in line with the emerging evidence.  

7. What, in detail, are the Government’s plans to develop community care provisions for people with learning disabilities or autism who will no longer be eligible for Section 3 detention under the MHA, beyond those already outlined in the NHS long term plan? How does the timetable for those plans relate to the timetable for implementation of the new detention criteria under the draft Bill?  

The Government is committed to supporting people with learning disabilities and autistic people to live fulfilling lives in their community. We have also acknowledged that there is more to do to achieve this.  

On 14 July, we published the Building the Right Support Action Plan which brings together commitments across Government and public services to strengthen community support for people with learning disabilities and autistic people, and to reduce reliance on specialist inpatient care. The measures set out in the Action Plan support our ambition to achieve the NHS Long Term Plan target to reduce the number of people with a learning disability and autistic people who are inpatients in mental health hospitals, by 50% by March 2024 (compared to 2015). 

The Action Plan includes a mix of short and long-term actions to keep people with learning disabilities and autistic people safe and to drive sustained improvements across health and care systems. This includes actions to make it easier for people to leave hospital when they are ready and prevent avoidable admissions; improve provision of suitable housing and preventative community support; strengthen the knowledge and skills of commissioners and the wider health and care workforce; and support people to have better experiences of education and employment.  

In the Action Plan, we set out planned investment in community services which would prevent crises occurring and enable more people to be supported close to home and in their communities. This investment includes additional funding of more than £90 million in 2022/23 specifically to develop community support and support discharges for people with a learning disability and autistic people, including £70 million through the NHS Long Term Plan and £21 million for the Community Discharge Grant to Local Authorities.  

Our proposed reforms to the Mental Health Act will provide important legislative backing to the Government’s ongoing work to invest in community support and reduce inpatient numbers. The proposals are intended to ensure that improved community support is in place for those who are no longer able to be detained under the new detention criteria.  

As part of our proposed changes to the Mental Health act, we are introducing duties on Integrated Care Boards and Local Authorities (when commissioning Adult Social Care services) to provide an adequate level of community support for people with a learning disability and autistic people at risk of detention under the Act. We intend for these duties to commence at the same time as the new detention criteria, to help ensure that community provisions are in place for people who have been discharged or for individuals who can no longer be detained under the Act as they do not meet the new section 3 detention criteria. 

7a. Does the Government have any further measures planned to prevent any increase in the use of the Mental Capacity Act and Part III of the Mental Health Act, to detain patients with learning disabilities or autism who would previously have been eligible for detention under Part II, Section 3? 

Our proposed Mental Health Act reforms will introduce duties on commissioners to understand the risk of crisis at an individual level in their local area and ensure an adequate supply of community services for people with a learning disability and autistic people at risk of admission under Part II of the Mental Health Act. These duties will help to ensure that people with a learning disability and autistic people can be supported in their community and needs are prevented from escalating, avoiding the need for hospital admission as far as possible.  

Increased community services are also likely to benefit those who may have otherwise been admitted to hospital via the Mental Capacity Act or Criminal Justice System.  

We also recognise the importance of clinicians having a clear understanding of when it is appropriate to detain individuals under either the Mental Capacity Act or the Mental Health Act. The Government has consulted on the proposed changes to Mental Capacity Act Code of Practice and received feedback on Chapter 22, which explains the relationship between the Mental Capacity Act and the Mental Health Act 1983. We will consider making further changes to this chapter in light of the proposed changes to the Mental Health Act. 

8. Could you provide an update on the consultation on using Approved Mental Health Professionals to manage prison and immigration removal centre transfers mentioned in the White Paper?  

In March 2021, the Government consulted stakeholders following the publication of the White Paper on Reforming the Mental Health Act. The consultation asked for views on the most effective approach to establishing a new designated role to manage the process of transferring people from prison or an immigration removal centre (IRC) to hospital when they require inpatient treatment for their mental health. One of the options listed in the consultation question was “expanding the existing approved mental health professional (AMHP) role in the community so that they are also responsible for managing prison or IRC transfers”. The majority of stakeholders who replied were opposed to expanding the AMHP role, due to their limited capacity to take on additional work and the requirement for additional training unless they were already working in a forensic setting.    

Although the recommendation to establish a new statutory role to manage transfers was not taken forward in the draft Bill, we agree with the findings of the Independent Review that independent oversight would be valuable to protect patients’ interests in the criminal justice system and monitor timeliness against the new statutory 28-day time limit for transfers from prison and IRCs to hospital.  

A cross-agency working group has been established by Ministry of Justice with officials from His Majesty’s Prison and Probation Service, the Department for Health and Social Care, NHS England and the Home Office. The working group is exploring the options for a non-statutory independent monitoring role to provide oversight, monitor transfer delivery and ensure the best interests of the patient are being considered throughout the transfer process.    

 

Legal questions on the draft Mental Health Bill:   

1. Page 1, Clause 1(3) – definition of “learning disability”: We note that this definition is different from the definition in the existing Mental Health Act (section 1(4)), in that “social functioning” is omitted.  

  Would you please explain what the reason was for this?  

The definition was amended to account for the fact that the draft Bill includes a new definition of “autism” as “a lifelong developmental disorder of the mind that affects how people perceive, communicate and interact with others”.  The term “social functioning” is extremely wide and would encompass the “perceive, communicate and interact with others" aspect of the autism definition. Further, learning disability is a UK specific term for what is internationally often described as “intellectual impairment”. Therefore, the term “social functioning” was omitted from the definition of “learning disability” to avoid overlap between the concepts of "autism" and "learning disability" and to reflect the fact that a learning impairment is the key characteristic of an intellectual disability (whereas being autistic does not give an indication about that person’s intelligence). 

 

We removed the “social functioning” aspect of the learning disability definition to avoid an unhelpful overlap with the autism definition, and to reflect that a learning impairment is the key characteristic of a learning disability (see above).  

We acknowledge there may be a risk of confusion by the omission of “social functioning” but have sought to balance competing concerns of clarity and ensuring that there are no unintended consequences of this definitional change. We continue to be in discussions with clinicians to work through the implications of this change and will fully consider any feedback received on these definitions and their application in advance of the Bill’s introduction. 

2. Page 5, Clause 2, new section 125D(1) - registers of people at risk of detention: We understand that the duty on Integrated Care Boards to “establish and maintain” a register does not include a duty to actively find out which people should be registered, but rather just to record those who are brought to the Boards’ attention. However, we also understand that guidance will encourage these Boards to take proactive steps.  

Yes, this understanding is correct.  There will be an expectation that:  

 

We are working with NHSE to ensure that any relevant information on the practical steps can be included in guidance. 

3. Page 6, Clause 2, new section 125E(1)(a) - registers:  

 

The minimum data set under s 125D(3) which ICBs will be required to include on the register have been provided by NHSE. These are to be set out in regulations and include the following:  

 

We are working with NHSE to determine the full details of what additional information will be prescribed by regulations.  

Please also let us know why it is necessary for Boards to keep information on the register (referred to in section 125D(3)(b)) separate from information produced for the purpose of determining whether section 125D(1) or (2) applies (referred to in section 125D(3)(c)) – both of which the Boards must have regard to under section 125E(1)?  In other words, why not just include all this information on the register? 

We have adopted this approach to ensure that information which is not included on the Dynamic Support Register (DSR), but is known to the ICB, can still be taken into account when commissioning community services under section 125E(2). This may be particularly useful where an individual(s) has not consented to being on the risk register but would still benefit from community support which is commissioned with their needs in mind. If we were to mandate that all information collected should be included on the DSR, this would remove the ICB’s ability to shape their risk register in a way that best works for them and the people for which they are responsible. It would also require the regulations to set out all of the information to be included on the DSR, moving away from the current minimum dataset approach (i.e. there is a minimum amount of information which must be included, and other information is at the ICB’s discretion), which risks meaning DSRs will not be able to remain flexible to reflect the needs of the specific population. 

Legal questions on the interaction of the Mental Health Act and the Mental Capacity Act (as amended in 2019)  

1. Mental Capacity Act 2005 Schedule AA1, paragraphs 46 and 47: There are circumstances where, on one interpretation of these provisions (depending on what precisely constitute “arrangements” in these paragraphs), someone who is already detained under the Mental Health Act 1983, but needs liberty-depriving arrangements for treatment for something else (such as a physical illness), and who lacks capacity, and refuses to consent, cannot be treated without recourse to the courts. For example: Someone is currently detained in hospital under section 3 of the Mental Health Act 1983 for psychosis. The patient has no capacity to make treatment decisions. They are diagnosed with a physical illness requiring long term intervention and refuse to undergo any treatment for it. 

Please confirm that the Government’s understanding (as will be reflected in its Code of Practice) is that the courts would be required to intervene in these circumstances, and if so, why this should be the case, and why legislation should not be introduced instead to allow clinicians to make these decisions as they would do otherwise under Schedule AA1. 

The Government’s view is that the Mental Capacity (Amendment) Act 2019 is clear on this matter. The use of Schedule AA1 would be prohibited when a patient is detained under the Mental Health Act. The Department also took the decision to remove the existing prohibition on the Court of Protection authorising deprivation of liberty for physical health treatment in such cases and amendments were made to the Mental Capacity Act by the 2019 Act to provide for this.  This was confirmed in the draft Mental Capacity Act Code of Practice which was published earlier this year for consultation (see para 22.82). The Department’s view is that such cases should no longer be left to the inherent jurisdiction of the High Court and – because of the unique and complex issues they raise involving MHA patients being additionally detained under different legislation – the Court of Protection would be the most appropriate decision maker. 

2. Mental Capacity Act 2005 section 4B: On one interpretation of this provision (new section 4B(9)), where a person, lacking capacity, has been referred for assessment under the Mental Health Act 1983 section 2 (before an application for hospital admission is made by an Approved Mental Health Professional), the patient cannot be detained in order to provide treatment under section 4B. Example: Someone is admitted to A&E having attempted suicide. They lack capacity. MHA detention is recommended, and steps are taken to make an application under s.2 MHA, but clinicians still wish to detain in A&E or elsewhere pending completion of the application, given the risk of a further suicide attempt. 

Please confirm whether it is the Government’s understanding is that there is no power to detain in these circumstances (as will be reflected in its Code of Practice). Does the Government consider that there may be any circumstances in which a patient could, in practice, be released as a result (and if not, please explain the reasons for this conclusion)? If anyone might be released as a result, please let us know why legislation should not be introduced to allow clinicians to detain in these circumstances. 

Again, the Government’s view is that the Mental Capacity (Amendment) Act 2019 is clear on this matter. The emergency power under s.4B is only intended to last for a very short period of time.  The power ends as soon as a referral for a Mental Health Act assessment has been made. This is confirmed in the draft Mental Capacity Act Code of Practice (see para 19.18). 

In the scenario described, the options available for clinicians might include, depending on the circumstances of the case, section 5 of the Mental Capacity Act, common law powers, and the proper use of s.136 of the Mental Health Act. In practice, however, most such cases are appropriately dealt with by an urgent Mental Health Act assessment – where the assessments are arranged at speed and take place at the same time - and including the consideration of whether section 4 should be used. (Please also note our above response to policy question 5). 

 

3. Mental Capacity Act 2005 Schedule AA1 paragraphs 24 and 51: There are circumstances where a patient has a mental disorder, and lacks capacity, where they could be deprived of liberty under either the MHA or MCA. Schedule AA1 paragraph 51 uses a test of whether the patient “objects” to accommodation or treatment under the MHA, whereas paragraph 24 of that Schedule adopts a different test of whether the person gets pre-authorisation review by an Approved Mental Capacity Professional or not: whether it is “reasonable to believe that the cared-for person does not wish to reside in that place/receive care and treatment at the place” and “reasonable to believe that the cared-for person does not wish to receive all or part of the proposed medical treatment for mental disorder.” One appears to be a subjective test, and the other appears to be an objective test.  There are two potential concerns here: 

a. “Objection” as a term has been criticised: we understand it was a term that the Law Commission wanted to move away from when recommending the draft version of what is now Schedule AA1, and has been subject of criticism by the Kings Fund. 

b. The fact that there is or may be a different test suggests there are circumstances where a person requires AMHP scrutiny of their deprivation of liberty for LPS purposes because it is reasonable to believe they do not want to receive care and treatment at a mental health hospital, but they are not actually objecting to their admission so as to mandate the use of the MHA. Some might say this causes confusion regarding the difficult issue of whether the MHA or MCA should apply, where both routes are potentially available: clinicians may be unsure exactly what factors need to be taken into account, given these differences. 

Accordingly, could you please explain why the Government has decided to retain the two different tests in paragraphs 51 (also 50 and 52) and paragraph 24? 

The Government’s view is that the two tests are essentially the same. The notion of an objection for the purposes of the Mental Capacity Act interface has always been interpreted as including subjective and objective elements (see for instance paragraph 14.20 of the Mental Health Act Code of Practice). The reason for the different wording is that the two tests are to be applied for the purposes of different decisions. The first is where AMCP oversight is required and second is where the use of the Liberty Protection Safeguards would be ruled out. But essentially, they are different ways of articulating the same concept. This is confirmed in the draft Mental Capacity Act Code of Practice, paragraph 18.38.   You may also wish to note that the wording of paragraph 51 simply replicates the existing wording under Schedule 1A of the Mental Capacity Act which is currently applied and widely understood in the context of the Deprivation of Liberty Safeguards. Further, an amendment to the Mental Capacity Act 2005 would be required to make any changes in this respect, and this is outside the scope of the draft Bill.