By Tim Spencer-Lane

The Mental Health Bill, which would amend the Mental Health Act 1983 (MHA), has now passed through committee stage in the House of Lords after five days of debate.

This stage allows peers to scrutinise the detail of a bill, although by convention no votes are taken on tabled amendments.

Committee stage normally provides an important indicator of which issues peers are interested in and may revisit at third reading, where amendments are likely to be put to a vote. It is important to remember that the government does not have a majority in the Lords and could be defeated on particular votes.

Principles

The bill does not insert principles onto the face of the MHA. Instead, it sets out four principles (choice and autonomy, least restriction, therapeutic benefit, and the person as an individual) to be included in the MHA code of practice.

Baroness Tyler (Liberal Democrat) was concerned that “placing the guiding principles in the code leaves a loophole in which they can be deviated from”. She also proposed that “equity” should be added to the principles to “provide additional momentum towards the goal of addressing the racial disparities in the Mental Health Act”.

Lord Bradley (Labour) supported a principle based on identifying and supporting “the communication needs of the individual”.

In response, Baroness Merron (parliamentary under-secretary of state, Department of Health and Social Care), argued that, in respect of statutory principles “the real concern is about making very complex legislation even more complex”.

Unlike the Mental Capacity Act 2005 (MCA), the MHA “has not been designed or structured around statutory principles”. She also argued that “it feels unnecessary to include equity as a specific principle because it is already a requirement of the Equality Act 2010” and that the code of practice will give guidance for practitioners “on how to support individuals with communication needs to make sure that their voices are heard”.

Learning disability and autism exclusion

A topic that dominated debates in the Lords was the position of people with learning disability and autistic people. The bill would prohibit people being detained for treatment under the MHA solely on the basis of learning disability or autism.

Baroness Browning (Conservative) welcomed “the removal from the Mental Health Act of the presumption of mental illness in people with autism and learning difficulties”.

However, she was concerned that “once it is removed the Mental Capacity Act will be used more frequently” to deprive autistic people and people with learning disabilities of liberty. In relaition to this, she pointed to the widespread difficulties associated with the Deprivation of Liberty Safeguards.

Baroness Berridge (Conservative) argued “there is the other danger that – when there is no co-occurring mental health condition – you end up with people coming through the criminal justice system”.

In response, Baroness Merron stated that “the number of people with a learning disability and autistic people in mental health hospitals is indeed unacceptable”. She argued that the government did not want the MCA to “be a loophole, back door or anything of that nature”.

She also pointed to the bill’s duty on integrated care boards (ICBs) to establish and maintain a register of people with a learning disability and autistic people who are at risk of detention. ICBs and local authorities must have regard to the register and the needs of the local ‘at risk’ population, when carrying out their commissioning duties.

Baroness Merron said the intention of these provisions was that “people with a learning disability and autistic people are not detained but supported in the right way”.

Professional roles and responsibilities

Amendments were tabled by the former prime minister, Baroness May (Conservative), intended to “widen the definition of those who can attend a mental health incident and act to detain an individual in a variety of circumstances”.

These aimed at extending the powers given to police officers to remove a person suffering from a mental health crisis to a place of safety, to health and social care professionals (including social workers and paramedics). The proposals were supported by several peers, who argued it would lead to the reduction of police attendance at mental health incidents, in line with the Right Care, Right Person concordat.

However, Baroness Merron argued that “extending the ability to health and social care professionals to enter someone’s home without their permission would be a major shift in their roles” and “it would impact on relationships between patients and health and care staff”.

She committed to look at reducing police time in health settings and to update the code of practice to clarify the handover process between police and health, including in A&E.

Community treatment orders (CTOs)

The bill proposes to tighten the criteria for the use of CTOs and limit how often they are used. A range of views on CTOs were expressed in the debates. Baroness Fox (non-affiliated) referred to their “spiralling and increasing use”. She noted that “CTOs are necessary when community care is under huge strain, because the idea of voluntarily accessing a wide variety of support in the community is a myth in today’s circumstances”.

Baroness Berridge (Conservative) felt that CTOs should be “in the last chance saloon”. On the other hand, Baroness Parminter (Liberal Democrat) felt that CTOs “can be valuable for people with eating disorders – and for forensic patients”. Lord Kamall (Conservative) called for more data on why a disproportionate number of black people were subject to CTOs.

Baroness Merron restated the government’s position that “CTOs can be valuable for certain patients” but “reform is needed so that they are used only when appropriate and for the shortest possible time”.

She also confirmed that “officials are working with NHS England and others to understand what additional data should be collected to understand the impact of the reform”, adding that the government was “committed to ongoing monitoring of CTOs as we implement the changes”.

Children and young people

Many of the safeguards in the bill are linked to a determination of capacity (for those aged 16 and over) and competence (for those aged under 16); for example, the rights for a child to appoint a nominated person or make an advance choice document depend on their competence to make this decision.

However, Baroness Tyler (Liberal Democrat) raised concerns that “there is also no clear and consistent approach for determining whether a child is competent. Although the concept of competence is generally understood, how to assess a child’s competence is not.”

Consequently, she argued, children may not benefit from the reforms in the bill that depend on competency.

Several peers called for a statutory test of competency to be inserted onto the face of the MHA. Lord Meston (crossbench) tabled an amendment which adopted the MCA’s functional test but without the need to consider if the inability to make the decision is caused by an impairment of or disturbance in the mind/brain.

Peers were concerned about how the nominated person role, which replaces the nearest relative, would work for children and young people. Baroness Berridge (Conservative) called for a prescribed list of people that an approved mental health professional could appoint as the nominated person for children and Baroness Butler-Sloss (crossbench) called for greater rights for parents to be consulted and challenge appointments in the court.

The bill does not provide any reforms aimed at addressing the position of children placed on adult mental health wards and those placed in hospitals out of area. Earl Howe (Conservative), therefore, called for procedural safeguards for children placed on adult wards and Baroness Berridge (Conservative) wanted a new notification process for out-of-area placements.

For the government, Baroness Merron rejected the amendment for a statutory test of competency, pointing out that the courts had rejected the proposed definition.

She added: “To introduce a statutory test for under-16s only under the Mental Health Act is likely to risk undermining Gillick, which remains the accepted competence test for under-16s across all settings, including reproductive health and children’s social care, and the wider legislative framework on matters related to children.”

The minister also said detailed guidance would be provided in the code on how the nominated person role would work for children and young people, and confirmed that people who were a risk to a child could not be the nominated person.

Baroness Merron said that additional guidance would be provided “on the process to determine, and review throughout a child’s detention and treatment, that the environment in which they are accommodated continues to be in their interests”.

Racial disparities

The bill does not include any reforms expressly aimed at reducing racial and ethnic inequalities in the use of the MHA. However, there was depth of feeling amongst peers when debating this area.

Baroness Whitaker (Labour) highlighted the discrimination faced by the Gypsy, Roma and Traveller communities and their lack of access to services. Baroness Tyler (Liberal Democrat) felt that the bill “still does not go far enough to address that deeply entrenched inequity”. Lord Kamall (Conservative) probed the government “to understand what they know and what research they are aware of, so we can understand the reasons for these racial disparities and put in place measures to tackle them”.

Some peers called for the creation of a “responsible person” in each hospital who would be responsible for driving change

Baroness Merron acknowledged the need for better data and argued that the patient and carer race equality framework (PCREF) “will improve data collection on racial disparities over the coming year, and the [Care Quality Commission (CQC)] has existing duties to monitor and report on inequalities under the Mental Health Act”.

She also said the department “will continue to monitor racial disparities in the use of CTOs”. But the minister rejected the creation of a responsible person role as “it would duplicate existing roles and duties”, including the public sector equality duty under the Equality Act 2010 and the monitoring role of the CQC.

Implementation of the reforms

Many peers called for greater clarity and specific guarantees over when the bill would be implemented.

Lord Scriven (Liberal Democrat) tabled an amendment to “create an obligation for the government to lay a costed plan for sufficient services before Parliament within four months of the passage of the bill”. Baroness Tyler (Liberal Democrat) called for a costed plan for community care to support the reforms in the bill and Lord Stevens (crossbench) advocated for a statutory backstop for implementing the bill.

Baroness Merron set out an indicative plan for implementing the bill. The first priority would be the code of practice (which would take a year) and the secondary legislation. There would be training of the existing workforce in 2026-27 and commencement of the “first major phase of reforms in 2027”. It would take up to 10 years to fully implement the bill.

Mental health commissioner

The joint committee on the draft bill had recommended the post of a statutory mental health commissioner should be created to provide an independent voice advocating for mental health service users and act as a watchdog to oversee the implementation of the reforms. This was not included in the bill.

Baroness Tyler (Liberal Democrat) called for the creation of a statutory commissioner to provide “sustained leadership for mental health”, transform mental health services and drive forward the reforms.

Lord Bradley (Labour) disagreed with claims that the commissioner would duplicate the functions of the CQC, pointing to the example of the Children’s Commissioner for England, which functions alongside Ofsted. Lord Kamall (Conservative), however, expressed some concern about the creation of a new bureaucracy.

Baroness Merron repeated that a commissioner would duplicate existing functions of the CQC and Healthcare Inspectorate Wales, as well as NHS England. She also claimed that the Children’s Commissioner was operating in a much broader landscape than that proposed for the mental health commissioner and was therefore less duplicative.

The ‘human rights protection gap’

In the months leading up to the publication of the bill, the High Court handed down its judgment in Sammut v Next Steps Mental Healthcare Ltd [2024] EWHC 2265 (KB). This decision confirmed that private care providers commissioned by local authorities and NHS to deliver services under section 117 of the MHA were not public authorities for the purposes of the Human Rights Act 1998, so were not bound by its provisions.

Consequently, Baroness Keeley (Labour) raised concerns about the ongoing gap in protection for those receiving care from the private sector and tabled an amendment to extend the protection of the Human Rights Act to include all section 117 service users, informal patients and those being deprived of their liberty in any setting. The amendment was strongly supported by ‘legal’ members of the Lords – Lord Pannick (crossbench), Baroness Chakrabarti (Labour) and Baroness Butler-Sloss (crossbench).

In response, Baroness Merron confirmed the government was “actively considering” this matter.

What was not debated at committee stage

It is noteworthy that several important areas of the bill received little mention in the debates.

These include the new powers to enable restricted patients, who have capacity to consent to their arrangements, to be discharged from hospital with conditions amounting to a deprivation of liberty. Stakeholders have raised concerns that the reform crosses the Rubicon by allowing the detention of people with capacity in the community and argued that greater safeguards are needed.

The part 4 reforms concerning consent to treatment also provoked little debate, no doubt in part because of their complexity. But there was little discussion of matters such as the  increased right for mental health patients to refuse medication and urgent electroconvulsive therapy, as well as the new clinical checklist to guide decision makers.

There was also no mention of the reforms to the meaning of ordinary residence for the purposes of section 117 aftercare services, including the introduction of new ‘deeming rules’. These will have a significant impact on local authority funding of section 117 services.

What happens next?

The next stage for the bill will be the report stage, which is an opportunity for the whole House of Lords to consider what has been done during the committee stage. This will be followed by the third reading which is the final opportunity for peers to consider the whole bill. Amendments will be tabled, debated and voted on during these stages.

The bill will then be considered by the House of Commons.

Tim Spencer-Lane is a lawyer specialising in adult social care, mental capacity and mental health and legal editor of Community Care Inform. 

Community treatment orders (CTOs) should be scrapped in most cases because they are overused, overly restrictive and used starkly disproportionately for black and ethnic minority people.

That was the headline recommendation from the parliamentary committee scrutinising the government’s plans to reform the Mental Health Act 1983 (MHA), in its report today.

The joint committee on the draft Mental Health Bill said it welcomed the legislation, with broad support for it in the evidence it received, but argued changes were needed to strengthen it, in particular to tackle “unacceptable and inexusable” racial inequalities in the operation of the MHA.

This should include abolishing CTOs – used 11 times more frequently for black than white people – other than for criminal justice patients, it said. The committee also said ‘respect for racial equality’ should be among the governing principles of the reformed MHA and each health body should have a ‘responsible person’ for identifying and addressing racial disparities.

Committee’s key recommendations

Other recommendations from the committee included:

• Placing a duty on the government to draw up the MHA code of practice having regard to the principles of choice and autonomy, least restriction, therapeutic benefit, the person as an individual, as well as respect for racial equality.
• Creating a post of mental health commissioner to act as an independent voice for people who use mental health services.
• Placing duties on councils and NHS integrated care boards to ensure an adequate supply of community services for people with learning disabilities and autistic people to prevent their long-term detention.
• Applying the same criteria for detention for “part 3 patients” – those involved in the criminal justice system – as “part 2 patients” (those who are not so involved). Under the bill as planned, a higher bar for detention would be applied than at present for part 2 patients, but not part 3 patients.
• Strengthening protections against children being placed in inappropriate settings, such as adult wards or out of area.
• Giving patients the right to draw up statutory advance choice documents, setting out preferences for how they should be treated should they be detained in future, in order to increase patient choice.

“Our proposed changes are designed to strengthen the draft bill, to provide a voice speaking up for patients and driving ongoing reform and to mitigate potential unintended consequences,” the committee said in a summary of its report.

It called on the Department of Health and Social Care (DHSC) to introduce full legislation to reform the MHA in this parliamentary session, which ends in autumn this year.

CTO numbers far higher than expected

CTOs are designed to prevent readmissions to hospital by placing conditions on patients’ treatment in the community.

They allow responsible clinicians to discharge detained patients with the power to recall them, based on the risks of their condition deteriorating if they did not receive appropriate treatment in the community. Clinicians also place conditions on the person, designed to mitigate risks and promote treatment, with non-compliance with these taken into account in determining whether the person should be recalled.

At the time of their introduction, under the Mental Health Act 2007, the government estimated that about 10% of those detained for treatment under section 3 of the act would be subject to a CTO.

However, the committee pointed out that the numbers of people currently on a CTO – about 5,000 – was about the same as the number detained under section 3 in 2021-22 (4,553).

Also, they were used eleven times as frequently on black or black British patients as those from any white background in 2021-22, with this disproportionality increasing from eight times in 2018.

CTO reform proposals ‘insufficient’

The draft bill would tighten criteria for a CTO by ensuring they could only be used if there was a risk of “serious harm” to the health and safety of the patient or others, and consideration had been given to the “nature, degree and likelihood of the harm, and how soon it would occur”. There would also have to be a reasonable prospect that the CTO would have a therapeutic benefit for the patient.

However, the committee heard “several concerns” that these changes would not reduce the number of black people subject to a CTO and there was “significant research” that they did not reduce the number of readmissions.

It said there was not enough evidence to justify their continued use for part 2 patients and they should be scrapped for this group, who account for the vast majority of orders. But there was some evidence that they constituted a less restrictive alternative to detention for forensic patients, who make up a small minority of those on a CTO.

For this group, it said the bill should require a review of their ongoing use within three years of it becoming law and provide for CTOs’ abolition six months after this deadline, with the government able to reverse this should the review conclude they were worth retaining.

Mixed response to CTO abolition proposal

The National Survivor User Network, which represents people with lived experience of mental ill-health and user-led organisations, said the proposed abolition of CTOs under part 2 was “most welcome”.

However, it said that their retention under part 3 “does raise the issue of the widening gap between civil and forensic sections and unintended consequences these may have”.

Mental health charity Mind also backed the committee’s proposal but said it would “carry on pushing for this to also apply for the criminal justice system”.

The Royal College of Psychiatrists was more circumspect in its response to the idea, saying that it marked “a substantial change” from what was in the draft bill and the 2018 report of the Independent Review of the Mental Health Act, on which the legislation is based.

“RCPsych will have to consider the implications of this change and how their retention for Part III patients will work in practice,” said college president Dr Adrian James.

Backing for tougher action on racial inequalities

However, both the college and Mind welcomed the report’s call for tougher action on racial inequalities in the mental health system.

James said the college particularly welcomed the proposal to include respect for racial equality as a principle that the government would have to address through the code of practice.

He added: “The recommendation that statutory advance choice documents be included in the bill is very positive and will expand patient choice and autonomy and give patients from Black, Asian and other minoritised ethnic groups greater ability to input on how the care they receive works for them and their family.”

For Mind, chief executive Sarah Hughes said: “In its current form, the Mental Health Act has enabled shameful, racist treatment of people from minority ethnic backgrounds, particularly Black people, who are nearly five times more likely to be sectioned. The committee’s report proposes many positive interventions aimed at eradicating racism in mental health services, including the introduction of a responsible person to collect and monitor data on ethnicity.”

Commissioner ‘could help address systemic failings’

The charity also welcomed the idea of creating a mental health commissioner, particularly in the context of a recent “wave of whistleblowing stories raising the alarm on alleged abuse and neglect of people living on mental health wards around the country”.

Hughes added: “If properly funded and truly independent, the commissioner could act as a powerful advocate for patients’ rights. Mind has been calling for a national statutory inquiry into systemic failings of inpatient mental health services since September, and a dedicated commissioner should steer any future inquiry to make sure the voices of people with lived experience are amplified.”

The Association of Directors of Adult Social Services was also supportive of the commissioner idea.

President Sarah McClinton said: “We recognise the increase in mental ill health in our communities and welcome the committee’s report highlighting the need for a mental health commissioner and for increased transparency and support to prevent the need for compulsory admission (‘detention’) to hospitals and particularly to address the racial inequalities in the process.

“This is the case for everyone who is mentally unwell, including children and young people, and for people with learning disabilities and/or autism. This will require investment in both health and social care following a proper impact assessment.”

Government ‘taking action on unequal treatment’

In response to the report, a DHSC spokesperson said: “We welcome the committee’s support for the aims of the government’s draft Mental Health Bill to bring about long overdue mental health reform.

“We are taking action to address the unequal treatment of people from Black and other ethnic minority backgrounds with mental illness – including by tightening the criteria under which people can be detained and subject to community treatment orders.

“The government will now review the committee’s recommendations and respond in due course.”

By Tim Spencer-Lane

The joint committee on the draft Mental Health Bill was appointed in July 2022 to consider the government’s draft bill to reform the Mental Health Act 1983 (MHA), which is summarised here.

The joint committee received 114 submissions of written evidence and over 100 responses to its online survey. Its final report, which includes over 50 recommendations, was published today (19 January 2023). This article provides an overview of its key recommendations.

Fundamental reform versus amending legislation

Some witnesses told the joint committee that more fundamental reform of the MHA was required than was provided for by the draft bill. This should include “fusing” the MHA and Mental Capacity Act 2005 into a single piece of legislation and a new MHA that starts from the rights of service users.

However, the joint committee also recognised a “clear sense” from witnesses that key reforms in the draft bill could not afford to wait for a more radical change. It recommended that the draft bill should not be the end of the process of law reform. There must be an ongoing process of mental health legislation reform, leading in the direction of more “fused” and rights-based legislation, it concluded.

An independent voice for mental health service users

The joint committee noted there was no independent voice advocating for mental health service users set out in statute. This contrasts with the way that, for example, the Children’s Commissioner for England advocates for the interests of children, or the Victims’ Commissioner for England and Wales for victims of crime.

The joint committee recommended that the post of a statutory mental health commissioner should be created, with the support of an office. The role would primarily act as a watchdog to oversee the direction of travel for the key reforms and monitor the outcomes and cultural changes that result.

Principles for the MHA

The draft bill does not include statutory principles. The Independent Review of the Mental Health Act, on which the draft bill is based, had identified four principles to be placed on the face of the reformed MHA: choice and autonomy; least restriction; therapeutic benefit, and the person as an individual.

The joint committee noted that the inclusion of these principles was supported by virtually every group of stakeholders. However, rather than statutory principles, it recommended a new provision, placed at the beginning of the MHA, requiring the government to draw up the revised MHA code of practice having regard to and including the principles set out in the independent review.

Tackling racial inequalities

The joint committee received evidence confirming racial and ethnic inequalities in the application of the MHA. It concluded that the draft bill must be stronger in how it tackles racial disparity, making the following recommendations:

• The principles should be amended to include “respect for racial equality”.
• There should be a ‘responsible person’ for each health organisation whose role would include data collection and analysis on ethnicity and the use of the MHA, and overseeing workforce training and policies to address bias and discrimination.
• The proposed mental health commissioner should promote the work of ‘responsible persons’, and produce proposals on reducing inequalities and improving data.
• The government and NHS England should produce an implementation plan for the NHS’s non-legislative programmes to address inequalities in mental healthcare.

Reforming community treatment orders (CTOs)

The draft bill would tighten criteria for the use of CTOs.

The joint committee was provided with evidence that CTOs were used more than intended and as a more restrictive alternative to discharge.

It concluded there was insufficient evidence to demonstrate benefit for the use of CTOs for part 2 (civil) patients to justify their continued use, especially as the orders were used disproportionately for black and ethnic minority patients.

It therefore recommended that CTOs are abolished for such patients. In respect of part 3 (forensic) patients, the joint committee felt the evidence was inconclusive and recommended the reformed MHA should be reviewed within three years of becoming law.

Resourcing and implementation

The joint committee noted that witnesses were overwhelmingly of the view that successful implementation of the draft bill required adequate funding and workforce provision.

It recommended that the final bill be accompanied by a revised impact assessment to take account of changes in the workforce and the economy since the original was published. It also recommended the government should publish a comprehensive implementation and workforce plan and be required to report annually to Parliament on progress.

Detention criteria

The draft bill would amend the detention criteria under part 2 of the MHA by requiring that “serious harm” may be caused to the health and safety of the patient or others without detention, and that detention was necessary given the nature, degree and likelihood of the harm, and how soon it would occur.

In relation to detention for treatment under section 3, “appropriate treatment” would need to be available, meaning there would need to be a reasonable prospect of therapeutic benefit.

The joint committee recommended that consideration of “how soon” harm might occur should not be included in the bill. This was because it might dissuade potentially beneficial and shorter interventions at an earlier stage. It also recommended the meaning of “serious harm” and “appropriate treatment” should be included in the code of practice.

The draft bill would not introduce the new ‘harm-based’ detention criteria for forensic patients, under part 3 of the MHA. The joint committee heard widespread concerns that it consequently may be easier to be detained under part 3, compared to part 2. It therefore recommended that the changes in detention criteria should be consistent across parts 2 and 3.

Learning disabilities and autism

The draft bill aims to strengthen safeguards for those with learning disabilities and autistic people. There would be a statutory right to care (education) and treatment reviews – designed to ensure people are hospitalised for the minimum amount of time possible – and a requirement on integrated care boards to maintain a register of people with learning disabilities and autistic people at risk of detention.

The draft bill would also remove learning disabilities and autism as conditions for which an individual could be detained for treatment under section 3 of the MHA.

The joint committee recommended that the proposed duty on local authorities and integrated care boards to implement the recommendations of a care (education) and treatment review should be strengthened and that the maximum time period between reviews should be shortened from twelve to six months.

Also, the ‘risk register’ should be renamed ‘dynamic support register’, to better reflect its purpose, and there should be a “firm duty” on commissioners to ensure the adequate supply of community services for people with learning disabilities and autistic people

The joint committee also felt that a “staged approach” to the reforms to section 3 was necessary to allow time for investment in community services. Additionally, some witnesses argued that the section 3 reforms might increase the risk of people with learning disabilities and autistic people being detained under the Mental Capacity Act or through the criminal justice system. In response, the joint committee made the following recommendations:

• The government should review the Building the Right Support action plan, designed to reduce the number of people with learning disabilities and autistic people in hospital, in light of the proposals in the draft bill.
• The government should monitor outcomes for people with learning disabilities and autistic people who are no longer eligible for detention under section 3.
• The bill should allow section 2 detentions to continue beyond 28 days for people with learning disabilities and autistic people in “tightly defined exceptional circumstances”, pre-authorised by a specialist tribunal comprising individuals with an understanding of the conditions.
• Section 117 aftercare should be extended to patients who were admitted under the “exceptional circumstances” route.
• The government should consider amending the Deprivation of Liberty Safeguards (DoLS) so they cannot be used as an alternative route to the MHA for those with learning disabilities or autistic people.
• The government should re-examine the inclusion of other specific disorders, such as dementia, under the Liberty Protection Safeguards (LPS) in this context in future, after its implementation to replace DoLS..

Children

The joint committee heard evidence that there was a need for greater clarity and consistency when it came to assessing “child capacity”, especially because the provisions in the draft bill rely heavily on consent, capacity and competence to make decisions. It recommended that the government consult on the introduction of a statutory test for competency, or child capacity, for children under 16.

The joint committee also recommended that the government strengthen the protections against children being placed in inappropriate settings, such as adult wards or placements out of area.

Patient choice

The draft bill would introduce statutory care and treatment plans for detained patients. This was widely welcomed by witnesses. The joint committee felt these could be strengthened by including statutory advance choice documents. These would allow a patient to record a range of preferences when they were well, which they would like to be considered if they become unwell.

It recommended a statutory right for detained patients to request an advance choice document be drawn up. To ensure the patient was meaningfully involved, this should be done with the support of a trained person who was independent of the treatment team.

Right to appeal a treatment decision

The independent review recommended that patients should be able to appeal treatment decisions at the Mental Health Tribunal. This was not included in the draft bill. The government explained this was because of concerns about the power of a single judge, rather than a multidisciplinary panel, to intervene in clinical decision making without the necessary expertise to do so, resulting in possible risk to patient safety.

The joint committee felt that a right to appeal would strengthen the patient’s voice but recognised concerns about the potential conflict between clinicians and tribunal judges and increase in workload for medical professionals. It therefore recommended the draft bill be amended to allow for pilots in the first instance.

Nominated persons

The new nominated person (NP) role, which would replace the nearest relative, was broadly welcomed by witnesses. The joint committee recommended that the government work with approved mental health professionals to address certain practical concerns and that the choice of NP is included in advance choice documents.

The joint committee also recognised concerns around the potential for legal conflict if a child chose an NP who did not have parental responsibility. It noted that the government had agreed to look at this issue again and recommended a consultation on how NP provisions are applied to under 18s, regarding potential conflicts with other legislation affecting children, such as the Children Act 1989.

Rights to advocacy

The draft bill would extend the statutory right to an independent mental health advocate (IMHA) to all mental health inpatients, including voluntary patients. It would also introduce a form of ‘opt out’ advocacy to ensure all detained patients are offered a service.

The joint committee recommended that once capacity has been built up in the advocacy sector, the ‘opt out’ scheme should be extended to voluntary patients. It also recognised the shortages of advocates with specialist knowledge of learning disabilities and autism, relevant language skills or cultural knowledge and recommended that the government  examine the case for a central advocacy service to address this. The joint committee further recommended a statutory right to request ‘culturally appropriate advocacy’.

Supervised discharge

The draft bill would introduce a new category of conditional discharge for restricted patients, which would enable discharge with conditions amounting to a deprivation of that person’s liberty, known as ‘supervised discharge’. The joint committee was concerned that this new power might be used more than envisaged and disproportionately against black and ethnic minority patients.

It recommended a duty to collect and publish data on the new power and a statutory review after three years. In addition, the tribunal must be involved in the decision to place someone on supervised discharge to ensure that therapeutic benefit is considered.

Transfer to hospital

The draft bill would introduce a 28-day time limit within which relevant bodies must “seek to ensure” patients are transferred from prison to hospital under the MHA. The joint committee recommended that independent oversight was needed to protect patients’ interests and monitor compliance. Also, the duty should be strengthened by removing the words “seek to”.

Short-term detention in emergency departments

The joint committee heard concerns about a ‘gap’ in mental healthcare when individuals experiencing a crisis arrive in A&E departments, yet there is no power to formally hold them. It recommended the government should consult on a short-term emergency detention power, and whether this would provide greater legal clarity to clinicians and accountability for what is happening in A&E services.

Interaction of the MHA and the Mental Capacity Act

Many witnesses pointed to the complex and sometimes problematic interface between the MHA and Mental Capacity Act. The joint committee highlighted three issues that the government should resolve under the LPS when it comes into force:

• The new power to deprive a person of liberty in an emergency, under section 4B of the Mental Capacity Act, will not cover any period in which a person is being referred for assessment under the MHA. The committee warned that if someone needed to be detained during the referral period, this could result in the police using their detention powers under section 136 of the MHA, or other options that may be “inappropriate, impracticable, or unlawful”.
• The LPS cannot be used to authorise to authorise the additional deprivation of liberty of MHA patients for physical health treatment, requiring the hospital to go apply to the Court of Protection for such treatment to take place. The committee argued that the government has not justified the additional time and expense this would entail.
• In determining whether a patient falls within the MHA or Mental Capacity Act, there is a subjective test of whether the patient “objects”, rather than an objective test. The committee questioned this, saying there were difficulties in determining whether a person who lacked capacity to make relevant decisions was objecting.

Places of safety

The draft bill would remove prisons and police cells as “places of safety”. This was welcomed by the joint committee. Due to concerns that the police lack the relevant expertise, the joint committee recommended that people with learning disabilities and autistic people should have the reasonable adjustment flag attached to their record, which should includes their preferred means of communication and the name of their advocate.

It also recommended that the government increase the provision of appropriate health-based places of safety, and include plans for this within the implementation plan.

Tim Spencer-Lane is a lawyer who specialises in mental capacity, mental health and social care law and legal editor of Community Care Inform.