Legal update
Making sense of the Mental Health Bill
Tom Lumsden, a partner at solicitors CooperBurnett LLP in Tunbridge Wells in Kent, looks at the likely plans for a new draft Mental Health Bill and what this would mean for care providers
On 13 January, the government published its response via a White Paper to the 2018 review by Sir Simon Wessely of the 1983 Mental Health Act. The White Paper is followed by a 12-week consultation period, following which it is proposed that a new draft Mental Health Bill will be shared, most likely in 2022. The new proposals will overhaul many aspects of mental health law. There are several aspects of the Bill that
will be of importance to care providers. In particular, changes are proposed in relation to service users who suffer from learning difficulties or autism and there is, of course, a large number of care residents who suffer from mental health issues, or issues of capacity arising from dementia. The official press release stated that
Health Secretary Matt Hancock feels the need to bring mental health laws into the 21st century, as the existing Mental Health Act is now 40 years old. In addition, the government has a manifesto commitment to reform the law in this area. There will be four new guiding principles
that those working to provide care will need to consider when they carry out their duties. These are as follows: l Choice and autonomy – making sure people’s views and choices are respected.
l Least restriction – making sure that powers under the Act are used in the least restrictive way.
l Therapeutic benefit – making sure that patients are supported to get better, so they can be discharged from the Act as quickly as possible.
l The person as an individual – making sure patients are viewed and treated as individuals.
Grounds for detention changes One of the key areas of change will be in resetting the parameters for detention of
individuals, i.e. the grounds for detention under the Mental Health Act. There is a clear social policy
background to the proposed changes, since the White Paper notes compulsory detention in mental health hospitals has more than doubled since 1983, and is discriminately higher among certain ethnic minority groups. Black people four times more likely than white people to be detained under the Act and ten times more likely to be put on a Community Treatment Order. There are also concerning cases of people being subjected to unsuitably long stays in wards, which may worsen their problems, this being most common among autistic people, those with a learning disability, and those living with schizophrenia. The proposal is that the core principle of ‘therapeutic benefit’ can be achieved by amending the detention criteria in section 3 of the Act, to make it clear that for someone to be detained one must show the following: l The purpose of care and treatment is to bring about a therapeutic benefit.
l Care and treatment cannot be delivered without their detention.
l Appropriate care and treatment is available.
The presence of a risk to self or others will remain a justification for detention. The wording within the existing Act is seen by the White Paper as being too ambiguous because it states ‘detention is lawful for the interests of the patient’s own health or safety or with a view to the protection of other persons’. This is particularly the case with regard to those with a learning disability or autism.
March 2021 •
www.thecarehomeenvironment.com
Health Secretary Matt Hancock
The White Paper proposes amending the detention criteria for sections 2 and 3 of the Act so that it must be shown there exists a substantial likelihood of significant harm to the health, safety or welfare of the person, or the safety of any other person. The requirement that potential harm is significant will mean detention will only be allowed in the most serious of cases.
If the threshold is no longer met,
detention under the Act should no longer be permitted. The new criteria will need to be applied every time a decision is made about a patient’s continued detention. These changes are likely to make it more difficult to justify longer term detentions once the resident is no longer considered to pose a significant risk. Greater rights will be given to patients to challenge detention so that their detention is assessed at least three times in the first year as opposed to twice, which is the current practice. Review times are to be shortened so that in the first year of detention reviews will occur at month three, month six and month 12. At each review, the patient’s case would be subject to scrutiny by a responsible medical practitioner and other decision makers. Access to the First Tier Tribunal (Mental Health) will be increased. Those detained under section 2 for assessment currently have a 14 day time limit to make an application for discharge. This would be increased to 21 days. For those residents detained under section 3, the patient would have the opportunity to appeal to the Mental Health Tribunal (MHT) three times in the first 12 months of their detention - under current law they may do so only
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