In this webinar Rebecca Fitzpatrick looked at the recently published interim report of the ongoing independent review of the Mental Health Act chaired by Sir Simon Wessely, former president of the Royal College of Psychiatrists (link to report here: https://www.gov.uk/government/publications/independent-review-of-the-mental-health-act-interim-report) In May 2017, Theresa May stated that, if elected, her government would replace the "flawed" Mental Health Act “in its entirety” with a new Mental Health Treatment Bill including: • revised thresholds for detentions • new Code of Practice • more safeguards for those with mental health problems who have capacity so that "they can never be treated against their will". The review is due to report in Autumn 2018 and on 1 May 2018 published its interim report identifying priorities for the review’s work giving a flavour of its initial thoughts.

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Independent review of the MHA
summary of interim report
May 2018

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Independent review of the MHA
summary of interim report
Thursday 31 May 2018

3. • May 2017, PM stated that if elected, her
government would replace the “flawed”
Mental Health Act “in its entirety”
• with new Mental Health Treatment Bill
incl:
- revised thresholds for detentions
- new Code of Practice
- more safeguards for those with mental
health problems who have capacity so
that “they can never be treated against
their will”
A new Mental Health Act?

4. • mental health professionals, charities and
patients to be consulted on the plans,
which come against a backdrop of a steep
rise in MHA detentions in recent years
• biggest change to mental health
treatment law in more than 30 years
• concern about disproportionate use of
MHA detention for minority groups
highlighted in her speech to the
Conservative Party Conference
A new Mental Health Act?

5. • review of the MHA chaired by former
president of the Royal College of
Psychiatrists Simon Wessely
• due to report in Autumn 2018 (with an
interim report identifying priorities for
the review’s work)
The review

6. • to involve past and present service users
and carers in all aspects of its work,
including through an advisory panel
• it is not clear whether the review will
reform or replace the current MHA
however recent indication from the Law
Commission suggests fairly discrete
changes
The review

7. “When considering the functioning of the
Mental Health Act 1983, the government
notes with concern:
• rising rates of detention under the act
• the disproportionate number of people
from black and minority ethnicities
detained under the act
• stakeholder concerns that some
processes relating to the act are out of
step with a modern mental health system
The Terms of Reference

8. Concerns include, but are not limited to,
the following:
• the balance of safeguards available to
patients, such as tribunals, second
opinions, and requirements for consent
The Terms of Reference

9. Concerns include, but are not limited to,
the following:
• the ability of the detained person to
determine which family or carers have a
say in their care, and of families to find
appropriate information about their
loved one
• that detention may in some cases be
used to detain rather than treat
The Terms of Reference

10. Concerns include, but are not limited to,
the following:
• questions about the effectiveness of
community treatment orders, and the
difficulties in getting discharged
• the time required to take decisions and
arrange transfers for patients subject to
criminal proceedings”
The Terms of Reference

11. MH Alliance document “A MHA Fit for
Tomorrow”:
• deep concern that people’s dignity,
autonomy and human rights are
overlooked when the MHA is applied
• 49% disagreed that people are treated
with dignity under the Mental Health Act
• 50% not confident their human rights
would be protected under MHA if they
were detained under it
Some of the concerns

12. CQC “State of Care in MH Report”:
• combines evidence from CQC inspections
and findings & from role monitoring use
of MHA, as well as analysis of data from
other sources
• concerns about “locked rehabilitation
wards”
Some of the concerns

13. CQC “State of Care in MH Report”:
• great variation between wards in how
frequently staff use restrictive practices
and physical restraint to deescalate
challenging behaviour
• the impact of staffing shortages
• poor quality clinical information systems
• commissioning of crisis care services
Some of the concerns

14. CQC “State of Care in MH Report”:
• restraint: data published by NHS Digital
showed that during 2013/14 more than
6,000 people who spent time in hospital
were subject to at least one incident of
restraint. Collectively these people
experienced more than 23,000 incidents
of restraint, with 960 people having been
restrained five or more times in the year
Some of the concerns

15. CQC “State of Care in MH Report”:
• safety: poor physical environment of
many mental health wards, including
fixtures & fittings - patients at risk
Some of the concerns

16. • what interventions could reduce the use
of MHA and compulsory admissions (joint
crisis plans/models of street triage/high
fidelity home treatment and crisis
resolution teams?)
• ways of encouraging/mandating closer
interagency working
• improving risk & safety assessments
Tackling rising detention rates

17. • considering possible higher threshold for
detention (reflecting concern re rising
detention rates) and also whether
capacity should play a role in
detention/treatment under the Act (some
comment about appropriate treatment
test possibly being too wide)
Thresholds for detention

18. • supporting positive risk taking &
standardised risk assessment
• change/remove appropriate treatment
test?
• combine or reconfigure s.2 and s.3?
Thresholds for detention

19. • want to look at existing confusion about
interface between MHA & MCA and how
those problems could be resolved
• enable the return of the informal patient
• definition of deprivation of liberty
• solving problem of rising detention rates
• see also Richard Jones recent evidence to
the JCHR
MHA/MCA Interface

20. • should there be an end to the use of
police custody under s.135/6?
• why police rather than ambulances still
transport the majority of patients under
s.135/6 & what can be done to address
this
• practicalities and benefits of NHSE taking
over commissioning of health services in
police custody
Police role

21. • consider opportunities to improve
systems for identifying and addressing
poor or abusive care + changing
regulatory systems and safeguards
• consider opportunities to improve redress
for service users and carers
Dignity & respect

22. • considering stronger safeguards for
treatment without consent
Consent to treatment provisions

23. • whether service users have enough say &
how safeguards could be improved
• whether capacity should play a role
• how could strengthen advance planning
under Part 4
• comment about the possible fusion of s.2
& 3
• possible revision of emergency treatment
provisions
Assessment & treatment

24. • considering possible wider jurisdiction for
tribunal to look at treatment decisions
• whether the patient should be entitled to
additional tribunal where there has been
a change in circumstances
• how to ensure the Tribunal provides an
effective & proportionate safeguard (see
also ongoing Tribunals Service review)
Jurisdiction of tribunal

25. • considering amending nearest relative
provisions so that patients can nominate
a chosen individual to be consulted, to
replace the current rather arbitrary list
(likely to be will be widely supported)
• possibility of granting NR statutory role in
decisions about treatment
Nearest relative

26. • worried about over use of seclusion &
restraint – looking at options to
strengthen least restrictive principle
Restrictive interventions

27. • disparity of views re effectiveness of
CTOs
• concern that people from BAEM
communities more likely to be on a CTO
• state that the evidence seems to suggest
CTOs may not be that effective, so want
to consider this more closely to see if
they need to be amended or replaced
with something else
Community treatment orders

28. • considering reform of eligibility for s.117
services
• the need to identify what aftercare
means so that it supports independence
and recovery
• will attempt to resolve some of complex
funding arrangements across health and
social care (e.g. OR)
• need to modernise s.117 in relation to
Care Act
s.117 aftercare

29. • supporting patients with challenging
behaviour without the need for detention
• the arguments for and against continued
inclusion of LD and autism within scope
of MHA
• involvement of family members in
decisions about admission and treatment
of children under MHA
LD, autism and children

30. • whether specific changes to the
MHA/Code could improve disparities in
detention rates and experiences of
compulsion
Black, Asian & minority
ethnicities

31. Considering introducing set of guiding
principles to the Act (reflecting concern
about lack of dignity & respect + worries re
higher rates of detention for BAEM patients)
Set of guiding principles

32. • considering provisions to somehow speed
up mechanisms for transfer from prison
to hospital under MHA & decision making
for restricted patients
• which individuals/organisation should
best hold the decision making
responsibility for restricted patients
Criminal provisions of the Act

33. Appear to be considering abolition of
hospital managers reviews
Managers reviews

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any questions…
Please get in touch if you have any questions
or wish to discuss the topics we’ve covered
further…
Rebecca.fitzpatrick@brownejacobson.com
0330045 2131