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PEL Response to the MHA White Paper

Questions with our response

1

We propose embedding the principles in the MHA and the MHA code of practice. Where else would you like to see the principles applied to ensure that they have an impact and are embedded in everyday practice?

One of the biggest issues is getting local authorities involved when patients are out of area/in secure care.  There is often little if any discharge planning and knowledge of community provisions when the patient is in private care and the detaining authority are not going to be the responsible authority.  Duties should be reflected clearly in the MHAA and the Care Act.

There is also very little mechanism (and no funding) to try and remedy breaches in the code, and no to minimal compensation (for example the difference between an unlawful detention under MHA to unlawful deprivation of liberty under the MCA).  There needs to be accountability and penalty to enforce such breaches.

2

We want to change the detention criteria so that detention must provide a therapeutic benefit to the individual. Do you agree or disagree with this proposal?

Not sure

2a

This would be positive for a great number of patients who are being detained for a lengthy period, and emphasis the need for the detention to progress.  Also for patients who are inappropriately placed and need more specialised treatment.

The potential issue is that if there is no alternative and treatment is not therapeutic where does that leave vulnerable patients?  The fall back would be that being on the ward in itself is treatment and has therapeutic benefit, and then it makes the whole argument pointless.

We are also not sure that separating Part II and Part III patients is beneficial (if there were to be any differential determination then surely it should be between an acute care pathway and a secure care pathway), and could result in the criminalisation of a lot of civil patients detained.  For example there are a number of Part II patients in MSU’s and even HSU’s who are long-term patients, and if there were a difference between Part II and Part II then this group in particular are more likely to then be criminalised, by being prosecuted for something they did when detained, unwell and distressed, to enable them to be treated under Part III as opposed to Part II because of the difference in the criteria.  Also a lot of patients feel that they are being punished rather than treated (in fact both Part II and Part III patients can feels this), and by having a distinction is potentially quite discriminatory. 

3

We also want to change the detention criteria so that an individual is only detained if there is a substantial likelihood of significant harm to the health, safety or welfare of the person, or the safety of any other person. Do you agree or disagree with this change?

Not sure

3a

The notion of ‘substantial likelihood’ and ‘significant harm’ are objective.  There would need to be clear guidance as to what these amount to.

We do agree that detention should be the last resort and there should be a high threshold for this.

4 & 4a

Do you agree or disagree with the proposed timetable for automatic referrals to the Mental Health Tribunal?

a) Patients on a section 3 

Strongly agree

In relation to the change to 4 months, 4 months, 4 months, then annually, with a referral after the first 4 months, we this is an important safeguard, particularly for patients who lack capacity and cannot apply for a Tribunal.  Additionally, for acute patients there can be quite drastic changes in presentation in a short space of time, and for someone will be very unwell at the time of the first Tribunal having to wait for 6 months for another appeal is a lengthy period of time, and it would be beneficial for them to have this sooner.

Also an annual review, particularly for patients lacking in capacity, or who are more vulnerable and are not able to bring about their own appeal.

The only reservation is that for some patients Tribunals can be extremely destabilising, and can cause deterioration, and having them more regularly could be distressing, particularly those in secure long-term care.

b) Patients on a CTO 

Not sure

This perhaps needs to be thought through in terms of aligning it with the date of detention.  For example if a patient is detained on a Section 3, does not have an appeal, and as such no independent review, and is discharged on a CTO after 5 months, then they have to wait for 3 years for a review, then this is too long and a referral after 6 months should be undertaken.

If there is also no referral for a revocation, then in theory patients could be put on a CTO, revoked, put back on a CTO, and then revoked again, each time starting with a new date and a new period, and never actually hitting 6 months and having a referral.

It also needs to be practical, for patients living in the community a Tribunal every year could be quite intrusive.

c) Patients subject to Part III 

Agree

As we have alluded to we would not support the distinction of Part II and Part III patients, and feel that all patients should be afforded the same rights.

d) Patients on a Conditional Discharge 

Strongly Agree

There is not current automatic referral for CD patients, this group often end up subject to conditions, often inappropriate or irrelevant conditions much lnger than in necessary, and it would be an important safeguard for them to have independent reviews.

5

We want to remove the automatic referral to a Tribunal received by service users when their Community Treatment Order is revoked. Do you agree or disagree with this proposal? 

Disagree

5a

As in question 4b, if there is no referral when CTO is revoked patients might never make it to a referral hearing and have an independent review, and therefore lose that safeguard.  CTO patients can be extremely vulnerable and often do not appeal because they are scared of being brought back into hospital, so this is an extremely important safeguard for them.

6

We want to give the Mental Health Tribunal more power to grant leave, transfers and community services. We propose that Health and Local Authorities should be given five weeks to deliver on directions made by the Mental Health Tribunal. Do you agree or disagree that this is an appropriate amount of time? 

Strongly agree

6a

We strongly agree that the Tribunal should have more power in relation to leave, transfers and community services (assuming this includes CTO’s and Guardianship Orders).

If this is a power the Tribunal hold, however, then patients should be allowed to apply to the Tribunal to ask them to exercise this power, not just in relation to an application for discharge.  This makes no sense – if the panel can order these things why can a patient not ask them to do that.  For many patients an application for discharge would be unrealistic, whereas an application for leave would not, and it makes no sense that they would have to make that application to try and progress, and in fact could be held against them for making an unrealistic application.  If it is going to be a power of the Tribunal then patients should be entitled to ask them to use that power on its own merit.

These need to be thought of separately.  Leave can easily be arranged and granted within 5 weeks, and that timescale seems reasonable.

In terms of transfer, the issue with the recommendation is that there has to be a unit agreeing to receive the patient, and the responsible authority have to agree to fund the placement.  In our experience this can take a lot longer than 5 weeks.

With CTO’s and GO’s identifying a suitable community placement, and securing funding, can also take a significant amount of time.

It would be good to set a definite time within which this has to take place so it cannot drag out, but depending on the level of speciality or care 5 weeks may not be realistic.

This sounds like it is trying to giving more weight to recommendations, but more would need to be done so that the Tribunal could enforce this, otherwise it is still just a recommendation.

We feel the Tribunal should be able to vary conditions of a CTO, similarly to the power they have to do that for a CD.

7

Do you agree or disagree with the proposal to remove the role of the managers’ panel in reviewing a patient’s case for discharge from detention or CTO?

Agree

7a

Agreement is on the assumption that the changes to the timescales/referrals are made as set out.

We do feel there should still be a renewal over-view by the hospital managers, but this does not need to be done by way of a hearing.

That being said, the Managers do play a slightly different role to the Tribunal, and are often more flexible in terms of patients being allowed to ask questions, or speak to the panel alone/with their representative, which potentially should be considered, and patients should perhaps be able to ask for the renewal to be a meeting rather than a review if they wished, rather than this being a default position.  It would mean they have one opportunity within the detention period if they required it.

8

Do you have any other suggestions for what should be included in a person’s advance choice document?

The suggestions as set out seem to cover everything, but this should be set out in an easy to complete form, so that patients can easily understand and express themselves.

9

Do you agree or disagree that the validity of an advance choice document should depend on whether the statements made in the document were made with capacity and apply to the treatment in question, as is the case under the Mental Capacity Act?

Not sure

9a

The requirement is that these are to be considered, which means that they could be overridden.  Patients with or without capacity can be treated against their will under the MHA, this is given them the option for their preferences to be considered, so why discriminate against someone who may not have capacity when they write it.  Under the MCA if someone lacks capacity then their wishes and feelings should still be taken into account, regardless of what they may be, so this should not be any different.

It may be that someone whether they lack capacity or may be so against so form of treatment that it would be detriment to them, and this information would assist in decisions being made.

It should probably be recorded that they did not have capacity at the time they completed it, and should be regularly reviewed with them, particularly at times they may have capacity, and can be amended as necessary.

10  & 10a

Do you have any other suggestions for what should be included in a person’s care and treatment plans?

The most important thing for people to know is what they have to achieve to move on.  There needs to be goals/targets, and an understanding of what is expected for each stage.

They need to be written in a precise and clear way that is easy for patients to understand, avoiding overly-medical terminology.

11

Do you agree or disagree that patients with capacity who are refusing treatment should have the right to have their wishes respected even if the treatment is considered immediately necessary to alleviate serious suffering?

Not sure.

11a

We feel that as much autonomy should be given to patients, and the least restrictive options followed at all times.  This is something that might be appropriate in some circumstances, but not in others.


12

Do you agree or disagree that in addition to the power to require the responsible clinician to reconsider treatment decisions, the Mental Health Tribunal judge (sitting alone) should also be able to order that a specific treatment is not given?

Strongly disagree

We do not feel that treatment decisions should be made by a single MHT Judge, it would be inappropriate to make decisions on treatment without a medical member (psychiatrist) on the panel to determine medical decisions.

By having a preliminary permission hearing it would be difficult at that state to get any independent expert evidence.  If you were granted permission then you may have time to do so. 

Having said that the power to ‘reconsider’ is not particularly clear.  It is not actually forbidding certain treatments, or ordering other treatments, so how effective is this going to be anyway.

It would potentially be helpful to have more details SOAD reports made available as standard practice, and potentially called as witnesses.  This might tighten up the SOAD role and provide more safeguards that way.

Also is this in the same case as with the suggested additional powers in relation to treatment and leave – and will the patient have to apply for discharge to have this considered.

13

Do you agree or disagree with the proposed additional powers of the Nominated Person?

Agree

13a

We agree that patients should be able to choose a Nominated Person, as opposed to the Act determining it for them. 

This gives patients more autonomy and allow them to pick the person they feel will support them best.  We do feel there would need to be some sort of guidelines as to how this would work, and how often the patient could nominate someone/change their Nominated Person.  Otherwise patients could change several times.  Also perhaps some sort of suitability threshold – it is important that patients have the choice to safeguard from someone unsuitable automatically bring nearest relative, but equally vulnerable patients may not always recognise when someone is not acting in their best interests.

There should be clear guidelines around displacement, and this should not just be because they are objecting, and it should be easily accessible to patients to partake in any proceedings, particularly where their choice is potentially going to be overridden.

There should be more guidelines in place for when a patients chose not to, or has no-one suitable to nominate/that would be willing to act.  Currently when the LA are appointed as Nearest Relative in our experience they have no involvement and we have never seen any evidence of the patient having any benefit from this.  Potentially if there is no NP this should be an independent person and not a nominee of the LA – maybe IMHA’s.

14

Do you agree or disagree that someone under the age of 16 should be able to choose a Nominated Person (including someone who does not have parental responsibility for them), where they have the ability to understand the decision (known as “Gillick competence”)?

Agree

14a

The NP would be a specific role and would not remove parental responsibility, it would be in addition.  This is particularly important if it is a child for whom the LA have parental responsibility, for them to be able to pick the person that they would want representing them, as duty of care for a LA could impact on them fulfilling this role.

15

Do you agree or disagree with the proposed additional powers of Independent Mental Health Advocates?

Not sure

15a

We feel it is vital that all patients are supported by IMHAs.

We feel that informal patients as well as detained patients should have access to IMHAs, and there should be a provision that when admitted any patient on a unit should have access to IMHA, and if they are objecting or under duress the IMHA should be able to support.

We feel that the role of the IMHA is to advocate for a patient, and their role is to support a patient in the event they wish to challenge something.  IMHAs should be acting on a client’s behalf at all times and not making decision themselves as to what they think is or is not appropriate, they are the voice for the patient rather than having their own voice.  This is of course supported by knowledge and experience, but nevertheless is to help the patient voice their own issues.

There should be guidelines for them to refer to a safeguarding process if they think that a case should be reviewed, and of course assist the patient in seeking legal advice if necessary, but to be asking IMHAs to make decisions themselves that are potentially not what the patient is asking them to do is not appropriate.

16

Do you agree or disagree that advocacy services could be improved by:

-Enhanced standards

Disagree

-Regulation

Agree

-Enhanced accreditation

Not sure

-None of the above, but by other means

Strongly disagree

16a:

-Enhanced standards

It is difficult to comment on ‘enhanced standards’ without seeing exactly what is proposed.  There of course should be a level of competence and the appropriate training and guidance for IMHAs, but potentially increasing the levels in that will ultimately reduce accessibility and the number of IMHAs.

-Regulation

Agree

There should be a more independent regulation for IMHAs.  The fact that the Trust provides them is already bordering on conflict of interest, if an IMCA is good and challenging but then has to tender a bid to be funded by the body they are challenging this can be an uncomfortable position, and there should be a more independent way of regulating IMHAs and this process in general.

-Enhanced accreditation

Not sure

As with ‘enhanced standards’, there should be ongoing training and standards to reach, but whether this needs to be enhanced, or just monitored (and commissioned) more independently may suffice.  Accessibility is important.

-None of the above, but by other means

Agree

As above, there should be a more independent way of IMHAs being made available.

We agree with the comments in regards to “Culturally appropriate” IMHAs being available to patients.  Potentially there being a choice available for patients, often there is only 1 IMHA for hospital/trust allocated to a particular ward.

17

How should the legal framework define the dividing line between the Mental Health Act and the Mental Capacity Act so that patients may be made subject to the powers which most appropriately meet their circumstances?

We feel that the least restrictive option should always be used.  There is only a small group of hospital inpatients (non-objecting incapacitated patients) for whom there is possible choice.  It should be noted that the referral process to the Tribunal and the quick access to independent review comes under the MHA, so this should be the framework used.

We are not confident that those making the decision to detain can be trusted to arbitrate on whether a person is objecting or not. The recent research by the Kings Fund makes it very clear that there is massive confusion about this interface. Understanding clinical decision-making at the interface of the Mental Health Act (1983) and the Mental Capacity Act (2005)”. February 2021

The MHA is, in the main currently administered in a way that is well organised through the roles of the MHAAs and Mental Health Managers. Conversely, there is no clear pathway for managing requests for Standard Arborisations and no clear role for the Managers.

There is no way of arguing that the MCA is less restrictive than the MHA.

There are more difficult issues when it is community patients subject to both restriction under MHA (CTO, GO or CD) and DOL under the MCA.  Again the least restrictive principle should be followed and consideration of the necessity for both.  As the LPS framework is not fully up and running it is difficult to comment on this any further at this point.

18

Do you agree or disagree that the right to give advance consent to informal admission to a mental health hospital should be set out in the Mental Health Act (MHA) code of practice to make clear the availability of this right to individuals?

Strongly disagree

18a

This effectively removes the safeguards of the MHA for a patient.

The biggest issue with informal patients is that in our experiences patients are asked if they are going to voluntarily be admitted to hospital, the alternative being detained, they often pick the first, this is not really informal at all. 

What if they are admitted informally but do not consent to treatment, are they able to consent to future forcible treatment.

Or if they try to leave, have they consented to a future restraint.

They would have no right of appeal, or a referral to an independent review.

18b

Are there any safeguards that should be put in place to ensure that an individual’s advance consent to admission is appropriately followed?

As above, we do not think that giving advanced consent to admission is appropriate.

19

We want to ensure that health professionals are able to temporarily hold individuals in A&E when they are in crisis and need a mental health assessment, but are trying to leave A&E.

Do you think that the amendments to section 4B of the Mental Capacity Act achieve this objective, or should we also extend section 5 of the Mental Health Act (MHA)?

Rely on section 4B of the Mental Capacity Act only

Extend section 5 of the MHA so that it also applies A&E, accepting that section 4B is still available and can be used where appropriate.

We feel the latter approach.

4B is about life sustaining treatment.

If someone has attended and is in need of a MHA assessment it would not necessarily come under 4B.

There would need to be safeguards as to how this would be managed, A&Es may not have the facilities to safely ‘detain’ someone, particularly if restraint is being used.

20

To speed up the transfer from prison or immigration removal centres (IRCs) to mental health inpatient settings, we want to introduce a 28 day time limit. Do any further safeguards need to be in place before we can implement the statutory time limit for secure transfers?

Not sure

The issue will be bed availability, there would have to be somewhere available to more someone.

21

We want to establish a new designated role for a person to manage the process of transferring people from prison or an Immigration Removal Centre to hospital when they require inpatient treatment for their mental health. Which of the following options do you think is the most effective approach to achieving this?

  • expanding the existing approved mental health professional (AMHP) role in the community so that they are also responsible for managing prison/IRC transfers
  • creating a new role within NHS England and Improvement (NHSEI) or across NHSEI and Her Majesty’s Prison and Probation Service to manage the prison/ IRC transfer process
  • an alternative approach (please specify)

We would say the second.

There can already be delays in getting AMHPs to community patients in crisis, it would be difficult to see how they would manage to take on the transfer role as well.

Additionally, patients transferring from custody are likely to go into secure care, and bed availability will be a significant issue, so it would seem sensible to have a team specifically responsible for this.

Additionally, there may be other issues if it is from an IRC so it would be beneficial to have someone with knowledge of that process as well as the prison (MOJ) process, and of course MH services, to coordinate the process.

In terms of immigration there should be scope for these matters to be addressed whilst someone is an inpatient.  We have had a number of circumstances where patients are potentially going to be taken to an immigration centre on discharge because they cannot address their immigration status whilst in hospital, this should be made possible, without that discharge cannot be planned for.

22

Conditionally discharged patients are generally supervised in the community by a psychiatrist and a social supervisor. How do you think that the role of Social Supervisor could be strengthened?

Formal guidance as to what they are expected to provide and feedback, with ongoing training to support.

23

For restricted patients who are no longer therapeutically benefiting from detention in hospital, but whose risk could only be managed safely in the community with continuous supervision, we think it should be possible to discharge these patients into the community with conditions that amount to a deprivation of liberty. Do you agree or disagree that this is the best way of enabling these patients to move from hospital into the community?

Strongly agree

23a.

Patients with capacity should be able to agree to a condition that amounts to a DOL.

There are a number of patients remaining in hospital who could have a less restrictive option in the community if they were able to do so.

24

We propose that a “supervised discharge” order for this group of patients would be subject to annual tribunal review. Do you agree or disagree with the proposed safeguard?

Agreed

24b

The referral to the Tribunal proposed for CD also gives safeguard that conditions can regularly be reviewed.

25

Beyond this, what further safeguards do you think required?

This point should specifically be addressed when the MOJ feedback is sent, and regularly reviewed.

26

Do you agree or disagree with the proposed reforms to the way the Mental Health Act applies to people with a learning disability and autistic people:

Agree and disagree

26a

Agree – The problem is there has to be enhanced provisions in the community to care for people with a learning disability and autistic people.  Many of this group are detained only because there is no suitable provision – the problem is not so much with the Act itself as lack of services.  Having said that ruling out the Act as a means of keeping people with a learning disability and autistic people in hospital would hopefully limit this.

Disagree – We however see a this proposal simply shifting the LD and Autistic population currently detained under the MHA, to still being detained, potentially in the same ward, but having the significantly less protection from Liberty Protection Safeguards,

Bearing in mind that this proposal is driven by the very laudable attempt to move those with LD and autism out of hospital, it is ironic that this potentially benevolent proposal could leave them still locked up but with significantly few rights.

27

Do you agree or disagree that the proposed reforms provide adequate safeguards for people with a learning disability and autistic people when they do not have a co-occurring mental health condition?

Not sure

27a

As above, the proposal is positive, but if there are not suitable community services then this could leave people vulnerable.

Also with the distinction of those who do not have a co-occurring mental health condition it perhaps needs to be noted that the detention would only relate to the MI.  It can be difficult to distinguish between co-occurring disorders. 

One would hope this would not lead to lots of autistic people having co-occurring MI diagnosed.

28

Do you expect that there would be unintended consequences (negative or positive) of the proposals to reform the way the Mental Health Act Applies to people with a learning disability and autistic people?

Yes

28a

As above, concerns would be around more people being diagnosed with a co-occurring MI.

The biggest issue is there not being the support in the community to care for people, and there not being the alternative for admission.  Although hopefully the provision of more support would be a benefit.

There should still be specialist units for people with LD or ASD in the event they are detained, with autism friendly environments available for people if necessary, and that these are not lost because less people are being detained.

One would also hope if this is only changes to part II and not part III it would not lead to more prosecutions for people with LD and ASD.

29

We think that the proposal to change the way that the Mental Health Act applies to people with a learning disability and autistic people should only affect civil patients and not those in the criminal justice system. Do you agree or disagree?

Strongly disagree

29a

There should not be discrimination against groups of people.

As above, this could lead to more prosecutions for people with LD and ASD and criminalisation of vulnerable patients.

30

Do you expect that there would be unintended consequences (negative or positive) on the criminal justice system as a result of our proposals to reform the way the Mental Health Act applies to people with a learning disability and autistic people?

The safeguards should apply equally to both groups.

The CJS is not likely to be the most appropriate way for people with LD or ASD to be managed, the worry would be if people cannot be detained under the MHA then are they going to end up in prison, which would be clearly inappropriate.

31

Do you agree or disagree that the proposal that recommendations of a Care and Treatment Review (CTR) for a detained adult or of a Care, Education and Treatment Review (CETR) for a detained child should be formally incorporated into a Care and Treatment Plan and Responsible Clinician required to explain if recommendations aren’t taken forward, will achieve the intended increase compliance with recommendations of a CETR?

Agree

31a

CTR/CETR are specialised and provide necessary safeguards, and as such should be complied with, and as such incorporated into plans and recommendations followed.  If they are not to be then reasons should be given, and potentially challenged (similar to deviations of the Code of Practice).  Perhaps this is something that the MHT would consider in line with the therapeutic benefit element proposed.

32

We propose to create a new duty on local commissioners (NHS and Local Government) to ensure adequacy of supply of community services for people with a learning disability and autistic people. Do you agree or disagree with this?

Strongly agree

32a

There will have to be strict guidelines and there will have to be some sort of remedy if this is not happening.

They should also ensure adequacy of supply of community services for all MH service users.

33

We propose to supplement this with a further duty on commissioners that every local area should understand and monitor the risk of crisis at an individual-level for people with a learning disability and autistic people in the local population through the creation of a local “at risk” or “support” register. Do you agree or disagree with this?

Not sure

33a

It may be helpful to have vulnerable people identified, but surely this should be done on an individual basis through there care team.

34

What can be done to overcome any challenges around the use of pooled budgets and reporting on spend on services for people with a learning disability and autistic people?

They are provided with more funding.

I think that where there are disputes there needs to be a quick and independent way to seek resolution.

35

How could the Care Quality Commission support the quality (including safety) of care by extending its monitoring powers?

Regular and thorough reviews.

Better remedy when breaches occur.  Until there is more accountability and penalty it is hard to say how things will change – e.g. if section papers are not completed there is no consequence to the hospital/trust, patient is not entitled to compensation, so there is no deterrent.

36

In the impact assessment we have estimated likely costs and benefits of implementing the proposed changes to the act. We would be grateful for any further data or evidence that you think would assist the departments in improving the methods used and the resulting estimates.

We are interested in receiving numerical data, national and local analysis, case studies or qualitative accounts, etc that might inform what effect the proposals would have on the following:

different professional groups, in particular:

how the proposals may affect the current workloads for clinical and non-clinical staff, independent mental health advocates, approved mental health professionals, Mental Health Tribunals, SOADs etc

whether the proposals are likely to have any other effects on specific interested groups that have not currently been considered

service users, their families and friends, in particular:

how the proposal may affect health outcomes

ability to return to work or effects on any other daily activity

whether the proposals are likely to have any other effects on specific interested groups that have not currently been considered

any other impacts on the health and social care system and the justice system more broadly

Have no data to answer this.

Jenny Oxton

Head of MHT Department

On behalf of Peter Edwards Law

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