This is a second post looking at the January 2021 UK Government White Paper on Reforming the Mental Health Act 1983 — the first post covered proposed criteria for developments on detention in hospital, this will look at various issues to do with rights and risk.
We’re going to have to get used to spotting the difference between a “substantial likelihood” and a “substantial risk”. My best guess is that “likelihood” would mean something approaching probable, whereas “risk” may end something closer to possible (p25). Introduction of both terms is suggested in the paper amidst the criteria for various things – substantial likelihood for initial detention or re-detention under the Act (ie, admission) but substantial risk to authorise or review the use of Community Treatment Orders (CTOs), “a substantial risk of significant harm [without using a CTO. It is argued, CTOs are over-used and the White Paper suggests that consideration was given to removing them from the legislation. Significantly, given the intention of the White Paper to reduce disproportionatlity and inequality in the use of MHA powers, there is a radical disparity in the use of CTOs when examined by ethnicity; and esp with regard to the key demographics of concern, black patients, esp Afro-Caribbean men (p56).
CTOs will need greater scrutiny in the future, both at the point of authorisation and of review. Currently, a patient’s Responsible Clinician (RC) and an Approved Mental Health Professionals (AMHP) must authorise a CTO. (You keeping up with all this alphabet?! … there might be a test at the end!) In future, this may also require the community clinician who will supervise the patient’s care in the community. When it comes to extending a CTOs, instead of the hospital clinician authorising it when, you may have spotted, they are no longer the key clinician in that patient’s care in the community, all three professionals will need to agree on extension. That’s the RC (hospital) and the community psychiatrist and an AMHP – all against an ambition that no CTO will last for more than two years. The Government will review the effectiveness of the new arrangements five or so years down the line.
Whilst dealing with some issues of timescales, we will see revision to how long admission under s3 can last in the first instance, bearing in mind CTOs are a route out of hospital for many. Currently admission under s3 MHA is for 6 months, the initial extension lasts another 6 months and any second or subsequent extensions last for one year. In future, initial admission will be for 3 months, the initial extension for a further 3 months, then a second extension for 6 months and annual thereafter: 6/6/12 now to 3/3/6/12 in future, if that makes sense?! – just means greater review, helping achieve some of the objectives set out in the White Paper but given the emphasis on reducing the use of hospital and of detention AND an intention to reduce the use of CTOs, it will be interesting to see how that plays out, given CTOs could be one way of discharging patients from hospital earlier than they otherwise might be, if no CTO regime existed. We should also bear in mind, before CTOs existed, we found less obvious arrangements to achieve something similar using s17 leave an on extended basis and that requires fewer authorisations than a current CTO – we should remember the law of unintended consequences!
It has always been interesting to see AMHPs wrestling with the legal entanglements created by the need to identify a ‘Nearest Relative’ – this is someone likely to a family member of the patient, to whom the MHA looks for various inputs in to the person’s case and who has certain legal rights on behalf of the patient, including to make applications under the Act or object to admission. The White Paper proposes abolition of the NR concept, replacing it with a Nominated Person, mainly because the NR legislation (s26 MHA) gives no role to the patient to choose an appropriate person. We’ve seen examples of Nearest Relatives who are quite unacceptable to the person gaining the legal rights which come with that role.
The MHA more-or-less tells you who your Nearest Relative must be – mine is my wife, whether or not I like the fact. But the new Nominated Person idea would allow me to specify someone else, if I preferred. Where a person lacks capacity to choose someone, the proposals would allow the AMHP to appoint someone interim Nominated Person until such time as someone regains capacity to make their own choice (p49). This all strikes me as very sensible, for what that’s worth, and it would put to an end confounding considerations some AMHPs are required to make where someone is a married but separated person who lives alone and has three living siblings, two of whom are half siblings where the eldest one lives abroad and the third oldest one assist in provision of some occasional care on a reluctant basis … that sound you just heard was me hitting my head on a wall.
Finally on this, if there are concerns or difficulties with how a Nearest Relative is acting within an MHA process, the only option available to an AMHP is to seek County Court authorisation to entirely ‘displace’ the person as NR. Under the new proposals, and bearing in mind the patient has probably chosen this person to be involved, there will be a process whereby an NP can be over-ruled on specific issues some of the time, without forcing them entirely from the process.
If the White Paper leads to an Act of Parliament, all patients admitted under the MHA will be subject to a statutory Care and Treatment Plan (p38) – whether this means a new three-letter-acronym of CTP, I don’t know! (Careful mixing up your CTOs and your CTPs!) The CTP will outline various things you can read about in the paper itself, but it is essentially a clear audit trail of the intentions and objectives to be achieved by admission to ensuring a therapeutic benefit during the removal of someone’s liberty. In turn, this links to how Tribunals undertake reviews of patients’ cases where Tribunal hearings are triggered.
With a reminder about the need to improve autonomy and more fully respect decisions taken by people with capacity to do so, something specific to consider is the “right to suffer” (p62) whilst detained. One of the earliest discussions Sir Simon’s review had to have was whether kind of mental law to recommend – in particular, should legislation in our future be entirely predicted on questions of capacity. Some argue that the state has no business forcing treatment on any adult who has capacity to make their own decision. This is, for example, how Northern Ireland decided to structure its future legislation when passing the Mental Capacity (NI) Act 2015 (which is yet to take effect, but it’s achieved Royal Assent). On balance, after discussion, the Wessely Review recommended an approach which does allow for some limited treatment without consent where patients retain capacity to make decisions, but this is tighter regulated than current law. It would seem the Government has accepted this.
We see this manifest in proposals around some areas of Part IV of the Act – amongst other examples, it does allow for clinicians to insist on treatment despite capacity. The White Paper proposes restricting to situations capacity is absent or where life is, pretty literally, at risk. In other words, patients who have legal capacity to make their own choices should be allowed to determine the extent and type of suffering they might prefer to endure (p62), where doctors are proposing treatment.
My own hope after reading all this and thinking as I wrote it: we’re potentially going to need a lot more AMHPs! – not least because we don’t have enough now. There are various extra expectations outlined for those who do this most under-celebrated (and in my opinion hardest) role in our mental health system. The report makes passing reference to the recruitment and retention problems for those who do a job I’d simply wouldn’t do. I’ve always thought they carry almost all of the responsibility for some utterly horrendous situations whilst having absolutely none of the authority to draw upon other agencies to do their bit around beds, conveyance or the execution of warrants and so on.
I also can’t help but wonder whether the ambition of reducing reliance upon the police service will be realised by these proposals. History has a nasty habit after plenty of good intentions of revealing the law of unintended consequences – for example, potential to expand s5 MHA so it can be used by NHS staff in Emergency Departments. If it isn’t being foreseen that in many cases NHS security won’t be prepared to go ‘hands on’ and that clinical staff quite rightly don’t see this as their job without then predicting we’ll see calls to the police, then I’m not sure we’ve taken in to account learning from history and elsewhere. Of course the difference between NHS staff ‘using’ s5 then ringing the police and the police being asked to use s136 MHA in A&E is it may create the expectation the police will do as they’re told. We have seen examples of the police quite rightly and quite wrongly declining to use s136 in an Emergency Department, but at least subsequent coercion or risk is then theirs to justify. As with use of s5 currently, it would need clear guidance (perhaps in the Code) that calls for the police to back up situations where healthcare professionals have used their own powers should be minimised and exceptional?
Chapeau, as ever, to all the AMHPs in particular – I’d love know what you lot think of all this stuff, because you folks are the legal officers of the MH system (AMHPs carry a warrant card, as police officers do). They are often the professionals ensuring the operational legal guidance to all those who come in to contact with the Act and it reminds me to wonder about the legal training that all professionals will need which, I think, goes unmentioned in the White Paper. I’ve spent years convinced that many (but not all) of the problems we see today arise from insufficient legal knowledge at the individual and organisational levels.
Winner of the President’s Medal, the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All opinions expressed are my own – they do not represent the views of any organisation. (c) Michael Brown OBE, 2021
I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current. Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.
Government legislation website – http://www.legislation.gov.uk