Legal update
twice. The White Paper is seeking views on what would be a suitable frequency for automatic referrals, which the government proposes should be at least every 12 months.
Advance Choice Documents The White Paper proposes to introduce what are called ‘Advance Choice Documents’ (ACD). An ACD would allow a resident to set out, in advance, the care and treatment they would prefer, and treatments they wish to refuse, should they become too unwell to make decisions for themselves. The ACD would also set out whether
or not the patient has appointed a Nominated Person (NP) either at the time they are detained, or in advance, in their ACD. If they cannot make this decision for themselves, an Approved Mental Health Professional (AMHP) will appoint one for them. The NP will have all of the powers of the
nearest relative, plus new powers and rights including the following: l The right to be consulted on statutory care and treatment plans to ensure the patient’s best interests are protected.
l The right to be consulted on transfers between hospitals as well as about renewals and extensions of detentions and Community Treatment Orders.
l The ability to appeal clinical treatment decisions on behalf of the patient when they are too unwell to do so themselves.
l The power to object to the use of a Community Treatment Order on behalf of the patient.
l The power to apply for a discharge to a tribunal on behalf of the patient.
The role of Independent Mental Health Advocates (IMHA) will be expanded so that they can: l Support patients to take part in care planning.
l Support individuals to prepare an ACD. l Challenge treatment decisions where they have cause to believe that they are not in the patient’s best interests.
l Appeal to the MHT when patients are too unwell.
Criteria for Community Treatment Orders will be reviewed so that fewer people will be placed on such orders and where they are used, the patients should benefit from continued engagement with mental health services. These reforms will be reviewed over an initial five-year period.
Liberty Protection Safeguards There is also an interesting section in the White Paper regarding the relationship between the Mental Health Act and the Mental Capacity Act, which will be of particular interest to care home operators. This is because, where a person
needs to be admitted to a hospital because of their mental disorder, their doctor may need to decide whether that person should be admitted under the Mental Health Act, or the Mental Capacity Act’s deprivation of liberty safeguards procedure (DoLS). This will soon be replaced by Liberty Protection
Advance Choice Documents would allow a resident to set out, in advance, the care and treatment they would prefer, and treatments they wish to refuse, should they become too unwell to make decisions for themselves
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Safeguards (LPS). The choice between which Act to use,
in terms of authorising a detention, will arise if the patient: l Is suffering from a mental illness that puts their own safety at risk and requires hospital admission for medical treatment.
l Lacks the relevant mental capacity to consent to detention and treatment, and does not object to detention or treatment.
Care home operators will already be familiar with the DoLs regime. Also, the new Mental Health Act would provide for individuals to give their consent, in advance, to admission to hospital for treatment for a mental illness. This would mean that if the resident
had given their prior consent, and they later became unwell and had lost capacity to consent to hospital admission, they could be admitted as informal or voluntary patients, as opposed to being sectioned under the Mental Health Act, or subject to the DoLS or LPS regime. The White Paper also proposes
an increase in powers to medical professionals in accident and emergency departments, so that individuals who urgently need mental health care would stay on site, awaiting a clinical assessment. This would avoid the use of police to hold individuals who are experiencing a mental health crisis and attempting to leave accident and emergency. One of the most interesting changes
with the White Paper is the law would be changed so that those who suffer from autism or a learning disability would not be considered to be suffering from a
www.thecarehomeenvironment.com • March 2021
©UK Parliament and Jessica Taylor
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