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Draft Mental Health Bill now published

Following a commitment given in the Queen’s Speech in May 2022, a draft Mental Health Bill has been brought forward this week (27 June 2022). Alex Ruck Keene sets out the main elements and highlights some key points.

The draft Bill contains 49 clauses and 3 schedules, accompanied by explanatory notes and an Impact Assessment.

Its main elements are:

  • Amending the definition of mental disorder (for civil detentions only) so that people can no longer be detained solely because they have a learning disability or because they are autistic. The draft Bill also includes the proposal to require integrated care boards in England to establish a (consent-based) register of autistic people and those with learning disability who have ‘risk factors’ for detention under the civil parts of the Mental Health Act 1983 (‘MHA 1983’), and for this register to be taken into account in commissioning and market function decisions;
  • Changing and tightening the criteria needed to detain people under the civil sections of the MHA 1983 (and to place patients on CTOs), as well as tightening the definition of ‘appropriate medical treatment’ to seek to reinforce the requirement that such treatment has a reasonable prospect of alleviating or preventing the worsening of the disorder or manifestation of the disorder – i.e. (implicitly) addressing the concept of therapeutic benefit;
  • Shortening s.3 to 3 (from the current 6) months at the first instance, then 6 months, then 1 year at a time);
  • Introducing a statutory care and treatment plan for all patients in detention (other than on very short term emergency provisions) as well as subject to guardianship, to be produced – where possible – with the patient. This brings England into line with Wales; the operation of such plans is to be monitored by the hospital managers;
  • Changing the approach to treatment under Part 4, by creating an approach that functionally mirrors the approach to decision-making under the MCA 2005, including provision for consideration of advance decisions to refuse treatment. The approach mirrors, but does not entirely replicate, the MCA approach, as there are still ‘let outs’ for treatment against a person’s will, framed by reference to the nudge theory of making it more burdensome for a clinician to do so. There is no statutory provision for advance choice documents, but their principles are incorporated into the provisions of new clauses 56A and 57A. The period during which it is possible to treat on the basis of one clinical opinion alone is also being reduced from 3 months to 2.  It will also no longer be possible to administer treatment under the ‘urgent’ provisions of s.62 to a patient who is capacitously/competently refusing it. The explanatory notes contain a helpful table of the implications of the change.
  • Giving patients better support, including offering informal patients the option of an independent mental health advocate (already the position in Wales); and allowing patients to choose their own ‘nominated person’, rather than have a ‘nearest relative’ assigned for them. Where no nominated person has been appointed, and the patient currently lacks capacity (or for a child, competence), there are provisions to enable the AMHP to appoint one;
  • Tightening the rules around CTOs, including the requirement for the appointment of a community clinician and liaison between the community and the responsible clinician, and enabling the Tribunal to make recommendations that the responsible clinician reconsiders conditions;
  • Introducing a 28-day time-limit for transfers from prison to hospital for acutely ill prisoners (subject to an ‘exceptional circumstances’ let-out) and ending the temporary use of prison for those awaiting assessment or treatment.
  • Introducing a new form of supervised community discharge. This will allow the discharge of restricted patients into the community, with the necessary care and supervision to adequately and appropriately manage their risk.
  • Increasing the frequency with which patients can make appeals to Tribunals on their detention and provide Tribunals with a power to recommend that aftercare services are put in place;
  • Tidying up the perennial problems in relation to determination of ordinary residence for purposes of s.117 MHA aftercare.

More will be forthcoming here as I have the chance to dig further into its detail, but a number of key points merit immediate emphasis.

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First, this is draft legislation which amends the MHA 1983. This is in line with the approach of the independent Review chaired by Sir Simon Wessely, which deliberately took an approach of modernising the MHA 1983, rather than attempting to start again from a blank sheet of paper as has happened (for instance) in Northern Ireland in the form of the Mental Capacity Act (Northern Ireland) 2016. Some might say that the amending approach is underwhelming; others might say that it represents realism. As the former legal adviser to the Review, I need:

  • to declare an interest;
  • to say that it seems to me that there some frequently underestimated merits to proceeding with due caution in respect of legislative reform in this area; [1] and
  • to express regret that the Northern Ireland legislation (‘fusing’ mental health and mental capacity legislation) is moving sufficiently slowly towards implementation that, contrary to the hopes of many, it has not been possible to learn lessons from it within this reform cycle.

Second, and crucially, the draft legislation is going to be subject to pre-legislative scrutiny by a joint Parliamentary committee, anticipated to review the Bill and report in late autumn. The Government intends then to make such amendments as are required to respond to the recommendations of the committee with a view to introducing the Bill in 2023. The timeframe thereafter starts to sound long, with full implementation to be achieved by 2030-2031. We might anticipate that the pre-legislative scrutiny committee will want to examine the timeframe for implementation carefully, to see whether it is striking the right balance between ensuring implementation is effective and allowing too much more water to go under what is roundly recognised to be a bridge in need of some considerable upgrading.

Third, the draft legislation adopts many, but not all, of the recommendations of the independent Review. Even where it does not adopt those recommendations expressly (as with the recommendation to place principles on the face of the Act), it can be seen in many cases to have ‘internalised’ those recommendations through the measures that it introduces to push practice towards greater respect for the rights, will and preferences [2] of those subject to the Act. Nonetheless, we might anticipate that the starting point for the pre-legislative scrutiny committee will be to examine why measures recommended by the Review have not found their way into the draft Bill, and to stress-test the reasoning for this. In this regard, and again declaring an interest from my role on the Review, I am bound to say that I hope that particular attention is paid to the position in relation to the role of the Tribunal in relation to treatment challenges, as this is notably absent from the draft Bill, but featured significantly in the Review’s thinking as a safeguard which, by its very existence, would help guide clinicians to proceeding in line with their patient’s will and preferences. [3]

Fourth, in one crucial respect, the draft Bill introduces a measure that was specifically not recommended by the Review, namely the removal of those with learning disability and autism from the scope of detention under s.3 MHA 1983. Whilst coming from an entirely legitimate and understandable desire to try to stop the inappropriate detention of people with these conditions, for my part I have grave doubts that, in isolation, this change would achieve this as opposed to leading to the use of an alternative framework (the Mental Capacity Act) to authorise detention of those in crisis. The Bill includes some measures which might potentially alleviate this in the form of a ‘register’ for those autistic people or people with learning disability at risk of civil detention. [4] However, a serious discussion is needed, and I would hope can take place during pre-legislative scrutiny, as to whether such would actually achieve the goal being sought – and what further measures (for instance amendments to the MCA 2005) might be required to stop Rumsfeld-ian known unknowns from coming to pass.

Fifth, it is impossible to escape the irony of this draft Bill being published within a week of the Bill of Rights Bill, reflecting as it does a serious policy commitment towards greater promotion of the human rights of those within its scope. It might be said that the Bill is doing ‘the right thing’ in terms of making the promotion of those rights a matter for Parliament, but in many ways, this Bill is enabling Parliament to play ‘catch-up’ to understandings of rights in this area developed, in significant part, by the courts. [5] It may also be appropriate here to set out again how the Review identified how human rights operate in this area:

Knowing an individual’s rights in specific circumstances should be straightforward. The difficulty comes when there is more than one right involved (e.g. the right to liberty versus the right to life) or when rights of others may conflict with the rights of the patient. Here we are required to strike fair balances, using the recognised concept of proportionality. Any government, or other body, must respect the rights of those in whose lives it sanctions intervention. At the same time, it may have other duties. It may be required to protect the lives of those contemplating serious self-harm or suicide. It must have regard to the safety of any others where there is a reasonably probable consequence of what a patient might do. These sorts of issues are the justification for the compulsive powers the state authorises and uses in this field. Our position is those interventions must be the least invasive or restrictive required to enable the state to fulfil its duties. An approach which focuses solely on the rights of one specific group can never be sufficient for a state concerned for the rights and safety of all. [6]

Put another way, it might be said that human rights arguments assist everyone – including clinicians – to navigate the ethical dilemmas that are involved in respecting rights, will and preferences in the presence of mental disorder. [7]

Sixth, the changes proposed in the draft Bill, for instance in relation to the detention criteria, as well as learning disability and autism, will increasingly cement a distinction between ‘civil’ and ‘forensic’ patients. It might be thought that this is a reflection of the different purposes that the MHA 1983 is playing in these two contexts, but this is likely (and rightly) to be something that is a focus of scrutiny at the pre-legislative stage.

Seventh and finally, all the law reform in the world can only go so far towards securing actual respect for rights, will and preferences – it is, ultimately, impossible to legislate for actual respect, which reflects the qualities of those charged with discharging duties and power under the Act. And without commitments to change, including financial commitments, legislative change will fall upon very stony ground. This was a central theme of the Review, and it is incumbent upon all those concerned with securing meaningful change in this area to keep banging this drum.

Alex Ruck Keene QC (Hon) is a barrister at 39 Essex Chambers. This article first appeared on his Mental Capacity Law and Policy blog.

[1] See also in this regard the Review’s approach to the question of whether non-consensual treatment or admission is ever compliant with international human rights norms at Appendix B of its report, an approach I would say remains valid despite the passage of nearly three further years since the report was published.

[2] A term that I am deliberately drawing from Article 12 (4) of the Convention on the Rights of Persons with Disabilities, given the direct implications of the MHA 1983 for the legal capacity (i.e. the extent to which their decisions are viewed as determinative) of those falling within its scope.[3] Slightly curiously, the Impact Assessment notes (at para 81) that “[t]he Government proposes to allow the MHT to review the patient’s CTP where concerns have been expressed.”[4] Although, being consent based, it is not immediately obvious how this would benefit those whose conditions have a profound impact upon their decision-making abilities.

[5] Amongst other examples are the decisions in X v Finland, making the clear the importance of procedural safeguards in relation to involuntary treatment and Rooman v Belgium, emphasising the requirement of the link between detention and the availability of treatment with a therapeutic benefit.

[6]  See also the section in the Review report on “How we are meeting our human rights obligations”

[7] For very practical examples of this, see the work of the British Institute of Human Rights, in particular their toolkit for embedding human rights in Mental Health Services.

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