A guide to Mental Health Act reform proposals
Published by PSW Online - 9 May 2019
In October 2017 Theresa May commissioned an independent review of the Mental Health Act (MHA) in England and Wales. The Prime Minister said the aim was to combat the injustice and stigma associated with mental health.
The review's final report was published in December 2018 and the government is now planning to introduce a Mental Health Bill to transform care. Ahead of any proposed new legislation being revealed, this article will summarise some of the key points from the Mental Health Act review's final report.
Four guiding principles
The MHA review recommends the opening section of the MHA should articulate the purpose and principles of the Act in order to provide an overarching framework and standards to practice.
All the recommendations in the review are based on four principles:
1) Choices and autonomy – The need to ensure respect to service users’ views and choices and increasing an individual’s ability to make decisions regarding her or his care and treatment.
2) The use of least restriction – The need to consider less restrictive alternatives all the time. Basically it calls to use the Act’s power in a least restrictive manner.
3) Therapeutic benefit – A desire to see mental health services in developed and delivered such a way that reduces hospital admissions, facilitates prompt discharges safely and makes the path to recovery in the least restrictive and most supportive way. Basically the aim is to support individuals to recover and be discharged from the Act.
4) The person as an individual – The need to ensure individuals should be viewed and treated as rounded individuals.
These principles should not be alien to us. As social workers, this is what we do or should do. They are part and parcel of our jobs and those of other professionals in mental health who work with people to help them recover and carry on with their life.
How will these principles influence the MHA? I will highlight the main recommendations and how they could influence current practice under each principle.
Influencing practice
Principle 1 Choices and Autonomy
Making decision about care and treatment - One theme explicit in the review is that the voices of individuals under the remit of the MHA should be respected and heard. They should carry more weight than they currently do in the existing MHA. When individuals are deprived of their liberty they should have greater say in decision making about their care and treatment. Hence, the proposal is for shared-decision making in all aspects of the MHA assessment, care planning and treatment.
The review calls for a need to take individuals’ expertise and knowledge into account and that of the professionals in relation to their care and treatment. It proposes to strengthen the challenging process if people refuse to certain treatment.
Advance choice documents – This proposed document will enable a person to detail their views about their future inpatient care in advance. The government has accepted this proposal because individuals will be able to express their preferences for care and treatment and record their choices in statutory ‘advance choice’ documents.
Nominated person – A nominated person is proposed to replace ‘nearest relative’ under section 26 of the current MHA. A nominated person should have the right to be consulted about care plans and will be able to challenge treatment decisions. An individual under the remit of the MHA should be able to choose a nominated person. If they cannot nominate for whatever reasons, a selection mechanism should be created. The government has already indicated that it will accept this proposal.
Advocacy – The review recommends the extension of the statutory right to have an independent mental health advocate (IMHA) for informal patients in mental health hospitals. It should also include patients who are waiting to transfer from prison, immigration detention centres and those preparing their advance choice documents. A right to IMHA services should be ‘opt out’ for all, the review says, but the Care Quality Commission (CQC) should monitor access to MHA.
Principle 2 The use of least restriction
Supporting people in crisis – The review proposes greater provision for crisis and community mental health services. These services should be geared to improve the care and outcomes for individual who are mentally distressed, and should provide alternative services to detention.
Right to challenge – The review expects that the tribunal should have the power during an application for discharge to grant leave from hospitals and direct transfer to a different hospital. Also, the tribunal should have limited power for the provision of services in the community. Tribunals should also inform the CQC if they believe the condition of a patient’s detention breaches the HRA 1998. Also, there should be an automatic referral to the tribunal four months after the detention started, then after 12 months; after that annually.
The interface with the Mental Capacity Act (MCA) – Both the MHA and MCA deprive individuals’ liberty by detaining them, but the MCA should only be applied when individuals do not have the capacity to make a specific decision. The MHA can only be used for individuals who are objecting to treatment.
Coercion and restrictive practices – The review does not want the wards to seek compliance from individuals to use coercive behavioural systems and restrictions. Rather they should use alternative mechanisms. Also, the review called for a halt to unjustifiable blanket restrictions for all patients.
Principle 3 Therapeutic benefit
After care – The review proposes to level the playing field for long-term support to everyone, to support individuals to recover, promote health and well-being and prevent hospital admission. Also, the review proposes to create a new high quality statutory care plan (SCP) which will encompass existing rights under the Care Act 2014, NHS continuing health care and personalised budgets and section 117 entitlements.
Inpatients environments – The review recommends that the CQC should develop criteria to monitor the social environment of wards. It also recommends that an individual should have one-to-one session with permanent staff in line with the NICE guidelines.
The review expects the physical environment of wards to be improved through co-design and co-production. The aim is to make the physical environment homely and minimise institutionalisation. Also, the definition of single sex accommodation needs to be tightened up.
Principle 4 the people as individuals
Person-centred care – Not only individuals’ functional and cognitive needs, but also, cultural needs and their strengths should be taken into consideration to provide care and treatment. The review calls for the CQC to inspect and monitor this to ensure individuals’ care is tailored according to their cultural needs.
Reasonable adjustment should be made to enable people to participate in the decision of their care and treatment, this should include support with communication needs. Support for physical illness and conditions, such as diabetes and asthma, is needed too.
Experiences of people from Black Asian and Minority Ethnic (BAME) communities – To combat racial discrimination the review recommends the development and implementation of the organisational competence framework (OCF) and a patient and carer experience tool. The review highlights several core areas of competence: awareness, staff capability, behavioural changes, data and monitoring and service development. This review further recommends that the CQC use their powers to ensure equality in mental health hospitals. Furthermore, it also expects culturally appropriate advocacy services for all minority ethnic groups, and behavioural interventions against implicit bias in decision making.
Children and young people – Children may move ‘out of area’ or be placed in an adult unit, so, it is recommended that the CQC should be notified of these placements within 24 hours and they should record both the reason for a placement and its proposed length. Every inpatient child and young person should have access to an IMHA who is trained to work with children and young people. They also should have personalised treatment plans where their views and wishes should be recorded.
The review recommends that legislation and guidance should make clear that to determine ability to make decision in relation to admission and treatment, the MCA needs to be followed. Competence should be determined similar to the functional test under the MCA for young people under 16 years of age but presumption of capacity should only apply to young people over 16. It is recommended that 16 or 17 years olds should not be admitted or treated without parental consent.
Policing – According to the review police cells should not be considered as places of safety. Also, it is recommended that ambulance commissioners should commission bespoke mental health vehicles for conveyances.
Criminal Justice system – The review recommends that individuals with serious mental distress should not be made to wait and transfer to hospital from prison should happen easily and beds need to be available.
If you are interested to learn more about the proposed changes please read the modernising the Mental Health Act document that can be downloaded at: https://www.gov.uk/government/publications/modernising-the-mental-health-act-final-report-from-the-independent-review
Dr Sharif Haider is a lecturer of social work at The Open University
This article is published by Professional Social work magazine which provides a platform for a range of perspectives across the social work sector. It does not necessarily reflect the views of the British Association of Social Workers.