What does the Mental Health Act Review Actually Recommend?
8th December 2018
NSUN has read the final report of the Independent Review of the Mental Health Act, published this week, so you don’t have to.
The Independent Review of the Mental Health Act was set in motion by the Conservative government in October 2017 and reported its final recommendations on December 6th 2018. The 306 page document covers a lot of ground and is a major event for mental health in England and Wales. The authors hope that it will shift the dial towards discussion of the more severe experiences of mental health difficulty and change the balance of power between people in need and services.
The final report of the Review, Modernising the Mental Health Act: Increasing choice, reducing compulsion , is a large document that discusses law and practice around what happens to people when their mental health is presenting them serious challenges. It does not suggest scrapping the 1983 Mental Health Act. It is very much about the institutions that deliver mental health care such as the NHS.
People who are members or supporters of NSUN are far more likely to be involved with things like being held under section; being in hospital because of their mental health, or living with mental distress and difficulty over long periods. What’s important for us is to try to understand what practical effect upon these experiences the recommendations of the Review will have.
It has been reported that mental health charities are overwhelmingly supportive of the recommendations. NSUN feels our members need us to remain independent and to explore the implications of the Review and its recommendations more deeply.
The press release that accompanied the launch of the Review defines the main focus of the recommendations as:
People’s wishes and preferences should carry far more legal weight.
Action is needed for people from ethnic minority communities, children and young people, people in the criminal justice system, and those with a learning disability, autism, or both.
The use of compulsion should be targeted and justifications should be transparent.
We should modernise our services as we modernise our laws.
The review suggests four principles that should be written into any new revision of the Mental Health Act:
Choice and Autonomy;
Least Restriction;
Therapeutic benefit; and
The person as individual
The Review makes 154 recommendations for ways that these principles should be put into action.
The way that the Mental Health Act and the Code of Practice for its use works in the real world has a significant impact for many people who are supporters or members of NSUN.
The final report of the Review is clear that the Mental Health Act is not a substitute for good care, and that the recommendations are part of piece with the forthcoming NHS long term plan and the Social Care Green Paper, both of which will be considering the very sticky issue of money, budgets and resources.
It’s our collective job to unpick the recommendations and their implications over the coming weeks and months to see what they really would mean for people and their lives if they were implemented. While it’s true that the devil is in the detail; the actual effect of the Review will be in the doing and what that doing means for people when they are unwell or in need.
When initially announcing her intentions to reform the Mental Health Act in May 2017, during the General Election Campaign of that year, Prime Minister Theresa May said:
On my first day in Downing Street last July, I described shortfalls in mental health services as one of the burning injustices in our country. It is abundantly clear to me that the discriminatory use of a law passed more than three decades ago is a key part of the reason for this. So today I am pledging to rip up the 1983 Act and introduce in its place a new law which finally confronts the discrimination and unnecessary detention that takes place too often.
According to the press release which accompanied the publication of the Review, it is the result of over 50 focus groups with service users and carers; over 1,500 survey responses from service users and carers; seven regional workshops with a total of over 550 attendees; over 150 responses from professionals and organisations; 18 expert groups looking at specific topics; and over 15 bespoke research and data commissions.
Any one of the problems the Review raises could, in isolation, generate a shelf of reports, research, books, data and analysis. Everyone will have a different view of where they think the specific focus should be and a view of whether the recommendations made meet their expectations for change. Not everyone who has been subject to the Mental Health Act has the same experiences and not everyone will have the same wishes for how things should be different.
Principles
When people who have been subject to the Mental Health Act share their experiences they often share a story with a beginning, middle and end; detailing what happened to them as they moved through various services and interactions which fall under the Act.
The first challenge in looking at the recommendations of the Review is that they are structured around the four principles, rather than mapping specifically onto the stages of someone’s involvement at the receiving end of the Mental Health Act.
The principles set out by the Review are:
Choice and autonomy – “the need to enable and support the person to express their will and preferences and to ensure that their will and preferences are given proper weight in decision-making”
Least restriction – “ the Mental Health Act enables people to be detained and treated against their will but we want to see these powers used as little as necessary… [This] requires that the Act’s powers are used in the least restrictive way, and that less restrictive alternatives must always be considered. It is vital in our view that such powers can only be deployed proportionately.”
Therapeutic benefit – “the nature of detention can in itself be traumatic… services need to be delivered in a way that minimises the need for MHA powers to be used, and so that, where they are, patients are supported to recover so that they can be discharged from the Act.”
The person as an individual – “patients are viewed and treated as rounded individuals in line with the NHS Constitution statement to ‘value each person as an individual, respect their aspirations and commitments in life and seek to understand their priorities, needs, abilities and limits’.”
The review proposes that any new Mental Health Act, or any revision to it, make explicit that these principles should govern all uses of the Act and that these should appear explicitly in the Act itself, not only in the code of practice or hidden away in an appendix. It would be intended that everything done under the power of The Act would follow these principles. The Care Act has a similar set of principles already.
The recommendations of the Review are about things that could be changed within the existing law and practice around the Mental Health Act to put these principles into action. “In exercising any powers under [the] Act,” the Review says “all practicable steps must be taken to:
- support a person subject to this Act to express their will and preferences;
- have particular regard to the person’s will and preferences, even where an intervention in the absence of consent is expressly authorised by this Act;
- promote the person’s dignity, and accord them due respect, including respecting their social and caring relationships; and
- take steps to ensure that the person understands their rights and entitlements whilst they are subject to the Act”
All things that happen under the Mental Health Act should be done in “timely” fashion; “in the least restrictive and least invasive manner”; “ within a “supportive, healing environment with a view to ending the need to be subject to coercive powers” and in a way that “respects and acknowledges the person’s qualities, strengths, abilities, knowledge and past experience; and in particular, respects and acknowledges person’s individual diversity including any protected characteristics under the Equality Act.”
The rest of the recommendations of the Review are suggested ways that these principles might be put into action within services that have legal powers and legal responsibilities defined under the current or any future Mental Health Act.
The Review recommends that “MHA regulations and forms should be amended to require professionals to record how the principles have been taken into consideration, and to enable local auditing and monitoring and CQC (Care Quality Commission) should consider this as part of their monitoring and inspection role.”
What should we make of these principles?
The good thing about principles is that they are statements you can measure something else against: is what is happening to me closer or further away from meeting this principle? The bad thing about principles such as these is they are ideas which are translated into what people do or how things run, rather than being things that are definitely happening or not. They aren’t the same as absolute rights to something happening. A way to look at them would be the difference between saying ‘we see everyone as quickly as we can’ and ‘we see everyone within three hours’.
If these principles are adopted and written into a future revision of the Mental Health Act they make explicit in the Act itself ideas that have previously featured in the Code of Practice. The principles would tell anyone using the Mental Health Act how they were supposed to be doing something; not just what they can and cannot do under the law. The Review also recommends that the ‘how’ services are doing things should be recorded and that the Care Quality Commission should monitor and inspect based on these principles.
In action, though, principles can end up like mission statements or goals, getting more distant from the actual day-to-day of how things really work. Rules, regulations and guidance get lost in practice without the culture and the resources to make them happen. The recommendations of the Review are intended to make happen the things that would mean that all of the elements involved in detaining, holding, treating and discharging people under the Mental Health Act would meet with these principles.
Taken together, these principles accept that sometimes people will need to be detained against their will but that even when this happens people should have as much choice as possible; should be detained under the Act for the least time possible; should be treated as respectfully as possible and that people should know what’s happening to them at all times.
Whether you consider these principles to be a massive step forward will depend on your previous experiences of the Mental Health Act and the extent to which you feel that it is sometimes necessary to detain and treat or medicate people without their consent in the moment; or the extent to which you feel that such principles will be put into practice directly, consistently and for everyone at all times.
What difference would the recommendations of the Review make day-to-day if accepted?
Below we have tried to separate the recommendations of the review into a set of sections that resemble the stages by which most people would experience the Mental Health Act, moving from seeking help, through sectioning or voluntary admission through to discharge and life afterwards. We feel that this makes it easier to see what is being proposed and recommended, as well as seeing what the Review has chosen not to make recommendations about. We’ve used ‘patient’ throughout this section because that’s the language the recommendations use.
We haven’t included the background thinking or evidence from the Review, but have tried to give a far less lengthy version of what would be different if the recommendations of the Review are accepted. We’d advise reading the bits that you think are most important first.
Seeking help
For all of us, the best outcome would be to avoid being subject to the powers of the Mental Health Act if possible while still receiving support or treatment. That will take a very different mental health system and a very different political will to fund the things we might need in our communities for that to happen. Recommendation 74 of the Independent Review of the Mental Health Act is “there should be better access to long-term support for everyone to keep them well and prevent admission.” So few words for such a massive problem.
The Review recommends that there should be “more accessible and responsive mental health crisis services and community-based mental health services that respond to people’s needs and keep them well, and that “the Government should resource policy development looking into alternatives to detention, and prevention of crisis.”
If more people seeking help could receive the support and care they needed, the number of detentions rather than voluntary admissions would be reduced. When Theresa May launched the idea of reviewing the Mental Health Act she spoke about reducing admissions. The Review has a slightly different position based more on reducing detentions under the Act. The Review discusses the way that different organisations and services understand the idea of risk and the ways that can lead to people being detained unnecessarily.
How, and how quickly, any of the discussion about the Review might actually turn into more services and support is anyone’s guess in the current political climate. Whether any such spending might translate into the kinds of user-led supports and services that many NSUN members might like, such as crisis houses or alternatives to Crisis Teams, is even less clear.
Being sectioned
When a lot of people talk about being sectioned, they are referring to the experience of first being held by police and then assessed and admitted to hospital under the Mental Health Act. The Review of the Mental Health Act is, in contrast, talking about all of the time someone is detained and when that detention is extended via Community Treatment Orders and all of the elements of the system this involves.
Within the document of 306 pages there are only 17 specific references to section 136, the power of police to detain people and hold them in a place of safety until assessment of whether they should be detained for treatment is carried out. This is an area where the lived experience of the powers of the Mental Health Act may differ in emphasis from the priorities of a system-wide focus.
The Review recommends that police cells should be removed altogether as a place of safety in the Act by 2023/24 and that “the majority of people detained under police powers should be conveyed to places of safety by ambulance.” It recommends that NHS England take over responsibility for providing and commissioning places of safety. It also recommends that ambulance services should “establish formal standards for responses to section 136 conveyances and all other mental health crisis calls and ambulance commissioners and ambulance trusts should improve the ambulance fleet,” including “commissioning bespoke mental health vehicles.”
The Review recommends that, wherever possible “People should be treated as an inpatient with consent”, and recommends moving section 131 of the current Mental Health Act (Informal admission of patients) so that it sits about Section 2 (Assessment) and Section 3 (Treatment) in the full text of the Act.
The Review recommends that to be detained under the Mental Health Act “the patient must be objecting to admission or treatment,” and that “detention criteria concerning treatment and risk should be strengthened to require that: a) treatment is available which would benefit the patient, and not just serve public protection, which cannot be delivered without detention; and b) there is a substantial likelihood of significant harm to the health, safety or welfare of the person, or the safety of any other person without treatment.”
The review also mentions possible future ways in which police involvement might be minimised and ways that police may or may not be less involved in the process of sectioning, but does not make any recommendations about section 136. Were these recommendations to be accepted and implemented in full tomorrow; police would still be part of many people’s stories of being detained under the Mental Health Act, something that will please neither the police nor people who experience distress and mental health difficulties.
It is Approved Mental Health Professionals that make applications for detention. The Review suggests there aren’t enough (3,250 according to The 2017 NHS England Benchmarking and ADASS mental health social care national report) and the ones that are in place often can’t find doctors approved under Section 12 of the Mental Health Act to make the assessment required. The review recommends examining both the state of the AMHP workforce and how to make more doctors available to make assessments. It also recommends that someone’s capacity to consent to be admitted must always be assessed and recorded, including on the application form for that admission. The Review also suggests, rather than recommends, the government introduce a waiting time standard for Mental Health Act Assessments. The intended effect of this would be to reduce the time people spent held in ‘places of safety’ unclear of what is going to happen to them next.
The review also recommends that NHS commissioners need to be more consistent and effective so that emergency mental health beds are always available and recommends a time limit by which a bed must be found following an order for detention.
The recommendations, then, suggest ways that the system logjams of sectioning might be approached. That will take a lot of money. No rides in police cars would be great, but the role of police is not significantly reduced.
The Review recommends that the Code of Practice for the Mental Health Act should be amended so that people who have been in hospital under Section 3 of the Act (for six months or longer) in the last twelve months can only be detained under Section 2 for assessment (up to 28 days) if there has been a “material change in the person’s circumstances” and should be detained under a section 3 detention if they have been detained under section 2 within the last twelve months. This, in theory, would make it easier to readmit someone who became unwell again.
The Review also recommends that where someone is not objecting to treatment but may be too unwell or otherwise unable to have capacity to agree to it, they should be held in hospital under the Mental Capacity Act for up to 72 hours while it is “determined whether they are objecting”; but also recommends that changes to other legislation and procedure is needed to clarify to whom this should apply.
Life inside
If you are on a mental health ward, it isn’t a medical bed; it’s where you’re living all day, every day. The Review recommends that the Care Quality Commission should develop new criteria for monitoring the social environments of wards and that poor assessment against this criteria should be reflected in ratings and enforcement decisions. It also recommends that all dormitory accommodation be updated “without delay” so everyone has a room of their own and that the definition of single sex accommodation should be “tightened up to ensure a genuinely single sex environment with separate access to any shared daytime space.”
If a person is in hospital for assessment (Section 2) the Review recommends a requirement for a second clinical opinion after 14 days and extending the right of appeal beyond the first 14 days. If you found yourself in hospital detained under a Section 3, the Review recommends that the maximum detention be reduced to three months, followed by another three months followed by six months, rather than the six months as it stands currently. This the review hopes will lead to discharge being considered sooner for people who are ready for it.
Regarding the day-to-day culture of wards, the Review recommends that “wards should not use coercive behavioural systems and restrictions to achieve behavioural compliance from patients, but should develop, implement and monitor alternatives,” and that providers should “take urgent action to end unjustified use of ‘blanket’ restrictions applied to all patients. “ Whether this will include blanket restrictions on smoking or electronic devices remains to be seen.
The Review recommends that the Government and the Care Quality Commission should “consider developing a new independent ‘Hospital Visitors’ role, the main purpose of which is to monitor day-to-day life in the hospital and ensure that patients are treated with dignity and respect.”
The Review recommends that NHS England and NHS Improvement should look at evidence of the way staff moral effects patient experience and ‘take action accordingly’.
The review wants the Care Quality Commission to update how they monitor individual treatment and care so that assurance can be given that wards meet the needs of different groups of people covered by the Equality Act. They recommend that your physical health should be properly monitored while you are on a ward and that reasonable adjustment should be made so that everyone can “fully participate in their care”, including around communication abilities or needs.
The review also recommends that “behavioural interventions” to combat implicit bias (i.e. racism or other prejudice) in decision making be piloted and evaluated with staff. It also recommends safeguards so that “patients are able to continue religious or spiritual practices while detained in hospital. These should prevent the use of restrictive practices that limit a person’s access to religious observance.”
The Review also has a number of recommendations that wards be improved, that standards for disease control should not be lifted from other healthcare settings – there might finally be carpets and nice furniture – and that any backlog of repairs should be addressed so all wards are up to standard. It recommends that the forthcoming 2019 Spending Review should commit to a multi-year capital investment to ‘modernise the NHS mental health estate’
There should also be a review of standards, the Review recommends, for the assessment of inpatient care in mental health with input from patients and carers and a coproduced set of physical requirements for future ward design to make sure wards are not physically off putting places to be.
Treatment
Feeling you are being treated against your will, with medications you do not want or in ways you do not think are correct is horrible. While the Review does not abolish the possibility that professional judgement might override people’s judgement, it does recommend steps to try to change the balance of power in favour of patients over professionals
One of the bigger headlines for the Review headlines is beefing up the role and status of Advance Directives, documents that you create in advance which set out how you would like to be treated when unwell. The Review recommends these shift to being Advance Choice Documents, which would give a statutory basis to people’s prior choices about treatment. The review also recommends that people should have access to an independent advocate when drawing up an Advance Choice Directive which covers inpatient care and treatment.
Within seven days of being detained in hospital, a comprehensive statutory Care and Treatment Plan should be in place for anyone detained under the Mental Health Act, developed with the patient. This plan should cover the full range of treatment and support available to the patient from health and care organisations; any care which could be delivered without compulsory treatment; why the compulsory elements are needed; what is the least restrictive way in which the care could be delivered; any areas of unmet need (medical and social); planning for discharge; how specifically the current and past wishes of the patient (and family carers, where appropriate) have informed the plan; and any known cultural needs. This should be reviewed after 14 days.
The Review recommends that medication “should, wherever possible, be in line with the patient’s choice and patients should have a right to challenge treatments that do not reflect that choice.” The Review recommends that it should be harder to override treatment refusals and that any override should be “recorded, justified and subject to scrutiny”.
The Review recommends that Second Opinion Appointed Doctors (SOAD) should be available to people who are detained either once their care and treatment plan has been completed or within 14 days, whichever is sooner, and that once this second opinion has happened people should be able to appeal any treatment decisions at a Mental Health Tribunal. They also recommend that the Care Quality Commission and government should examine the likely increase in the demand for Second Opinion Appointed Doctors.
The Review also recommends that “Health and social care commissioners should have a duty to collaborate to ensure provision of community based support and treatment for people with a learning disability, autism, or both to avoid admission into hospital.” It also recommends amending the Mental Health Act Code of Practice to clarify when the Mental Health Act should be used for people with autism, learning disability or both.
Rights
In addition to the recommendations about treatment rights, the review recommends that people should be able to choose a Nominated Person under Section 26 of the Mental Health Act replacing the idea of a Nearest Relative. The only time this should be taken to court would be when the appointment of the Nominated Person was contested. The review recommends that people should have rights to disclose confidential information while detained to additional trusted friends and relatives, including during nominating a Nominated Person and through their Advance Choice Documents. The review recommends a new selection process for selecting an Interim Nominated Person for people who don’t have one, aren’t well enough to choose or haven’t specified anyone prior to detention.
The Review recommends that this Nominated Person should have the right to challenge treatment decisions before a Mental Health Tribunal if you aren’t considered to have capacity to do so yourself. They could, however be overruled or displaced by the Mental Health Tribunal. A Nominated Person, the Review recommends, would also have the right to be consulted on plans for your care. A Nominated Person “should be consulted about a renewal of a patient’s detention, extension of a community treatment order, transfer from one hospital to another, and discharge, rather than simply notified.” The review also recommends that Nominated Persons should be given improved support for that role in someone’s life “which could include courses provided by recovery colleges, support lines or online materials.”
Another big change recommended by the Review is that Independent Mental Health Advocates should be available to all mental health inpatients, including those waiting to be taken to hospital from prison or immigration detention.
The review recommends that access to Independent Mental Health Advocates become ‘opt out’; so advocates will have a duty to see and spend time with everyone, not just people who ask, unless they state they don’t want to see them. The role of advocates, the Review recommends, should be extended to include care planning and the writing of Advanced Choice Documents. The review recognises that local authorities will need to be better at commissioning advocates and that advocates will need to be better at helping people, especially those who belong to groups, like people of Black African and Caribbean descent, who may have specific needs and specific concerns.
The Review recommends that a statutory power should be introduced so that Independent Mental Health Act Advocates and Nominated Persons can apply to the Mental Health Tribunal for discharge on behalf of a patient.
Addressing the issues raised by people of black African and Caribbean descent and heritage, the review recommends that “culturally-appropriate advocacy should be provided consistently for people of all ethnic backgrounds and communities” and that “in line with the NHS Workforce Race Equality Standard programme, greater representation of people of black African and Caribbean heritage should be sought in all professions, in particular psychology and occupational therapy. People of black African and Caribbean heritage should be supported to rise to senior levels of all mental health professions, especially psychiatry and psychiatric research, psychiatric nursing and management.”
Data and research on ethnicity and use of the Mental Health Act should be improved, the review recommends, with all decisions being recorded and reviewed consistently by organisations involved in the process. Statistics should be collected by Tribunals around the characteristics protected by the Equality Act of those applying for hearings and their discharge rates. Training should be available for Tribunal panel members in specialisms such as older people, learning disability, autism and young people.
Mental Health Tribunal referrals, the Review recommends, should be automatic four months after the detention began; 12 months after it began and then annually after that.
Being discharged
Too often people leave hospital after being discharged to go back to the same situation they left when they were admitted to hospital. The Review recommends that discharge planning begin on day one of admission as part of the Care and Treatment Plan developed while someone is in hospital.
The Review also recommends that there should be a “Statutory Care Plan (SCP) for people in contact with Community Mental Health Teams, inpatient care and/or social care services” and that it should be the statutory duty for Clinical Commissioning Groups and Local Authorities to work together to deliver upon them and the duty of the Care Quality Commission to monitor them. The review states that this SCP should “encompass existing rights under the Care Act, NHS Continuing Healthcare and personalised budgets (and section 117 entitlements if someone has been detained on an eligible section).”
One change worth noting is the access to Section 117 aftercare after leaving hospital. This is ‘free’ social care which relates to your needs after you are discharged from a section 3 detention <https://www.mind.org.uk/information-support/legal-rights/leaving-hospital/section-117-aftercare/>. It does not apply to people who are admitted to hospital voluntarily. It would be good to have clarity whether more voluntary admissions to hospital will mean fewer people qualifying for the help and support that section 117 aftercare can provide. The review recommends that “there should be national guidance on how budgets and responsibilities should be shared to pay for section 117 aftercare.”
There is a large section discussing various issues around section 117 aftercare in the Introduction and Executive Summary of the Review, and a stated belief that more and better services for all is the answer, rather than a messy, inconsistent set of ad hoc and case law around section 117 about which bodies should pay, and for what, and for whom. NSUN will update when this issue has been clarified.
The review recommends that Community Treatment Orders, which impose conditions upon people discharged from hospital which can lead to them being readmitted if they are not followed, should be brought in line with the other recommendations of the review.
The Review recommends that in five years at the latest, if their recommendations are implemented and reviewed and CTOs have not improved outcomes, CTOs should be abolished.
Additionally, the Review recommends that the evidence threshold should be raised for CTO applications; the process for recall to hospital should be simplified and that recall to alternative locations be considered. It also recommends new rules for the length of CTOs and their renewal. Nominated Persons should have the power to object to applications and renewals of CTOs, and Independent Mental Health Advocates should be commissioned for people on CTOs and “proactively approach the patient and offer their services.”
Recourse to justice
The Review recommends that the Government with the Care Quality Commission should improve systems that handle complaints from mental health patients and their carers and Nominated People, including complaints to health care providers, commissioners, police and local authorities. It also recommends that when complaints are put to hospital boards, they should be into separated into complaints made by informal patients and those detained under the Mental Health Act.
The Review recommends that providing information on making complaints should be a duty of hospital managers, who should supply it both to patients and their Nominated Person. The review recommends that complaints staff should have an understanding of the Mental Health Act so they understand the impact of detention.
The review also recommends that effective safeguarding arrangements are in place to identify, investigate and take action on safeguarding issues.
Where hospital managers find fundamental errors in either the admission or renewal paperwork of a patient; the Review recommends they should retain the power to discharge that patient.
In the horrific situation where someone dies while detained the Review recommends that their families should receive non-means tested legal aid and guidance. In the wake of cases such as the tragic death of Connor Sparrowhawk, death under Denial of Liberty Safeguards/Liberty Protection Safeguards should be considered to be a death in state detention “for purposes of triggering the duty for an investigation by a coroner and an inquest with a jury should be held.”
Where next?
The Review also makes recommendations around children and young people; patients in the criminal justice system; immigration detention; and a number of recommendations around what it calls ‘system wide enablers’ to make the recommendations happen.
Laying out the recommendations against the way people might experience them makes it easier to see how big the change might feel were the recommendations actually put into practice. Many of them represent changes to the way thing work now; rather than complete revisions. A lot of them will depend upon first being accepted by Government, then other bodies like NHS England or the Care Quality Commission, then being turned into actual plans of action.
This is just a first pass through a huge document. More analysis and more exploration will take time. NSUN will try to share views, opinions, explorations and responses where we find them; and where they are helpful in exploring the implications of the Review’s recommendations.
The job NSUN has, with other organisations and groups, is to both explore what might happen because of these recommendations and to also point out where our members feel they fall short. Our members manifesto demands it.
There will be many opportunities to influence and shape what happens as a result of this review. There is much work for us all to do in evaluating for ourselves, and the people we care about, whether we feel these recommendations push things in the right direction or take us further away from where we want the lives of people who live with distress and mental health difficulty to be.
The issues that the Review addresses are ones that have often played a part in our lives or the lives of people we care about. What changes happen around these issues matters to us. The publication of the Review is the beginning for us, not the end.