Right to a second opinion for detained psychiatric patients

The Queen’s speech last December 2019 said work will continue to modernise and reform the Mental Health Act (MHA). This includes giving detained patients “better support to challenge detention” and a much greater say in their care.

I have been critical of the MHA independent review (eg. see previous post) for insufficiently promoting patients‘ rights under the Mental Health Act. We need to get back to the reforming spirit of the 1983 Act, which was lost with the 2007 amendments.

One reform introduced by the 1983 Act was the need for a Second Opinion Approved Doctor (SOAD) to review certain treatment decisions. In practice, SOADs now tend to “rubber stamp” the treatment plans of the Responsible Clinician, although I think when the Mental Health Act Commission (MHAC) first started this was not necessarily the case. The function of MHAC has now been taken over by the Care Quality Commission (CQC), which I think unfortunately means that a specific emphasis on the rights of detained patients has been lost, as CQC has the more general role of regulating health and social care.

Another problem is that SOADs are appointed by the CQC, so that the patient has no choice over which doctor provides the second opinion. Furthermore, it is uncommon for solicitors to obtain an independent medical report before a hearing to consider appeal against detention.

There is therefore much scope for increasing the independence of clinical opinion in the processes of detention appeal and enforced treatment. A patient ought to be able to have a second clinical opinion both about detention, and this can be given as evidence to the Mental Health Tribunal (MHT) and hospital managers, and about treatment, which should, as far as possible include any enforced treatment right from the start of detention. The Tribunal could be extended to make judgements about treatment as well as detention, but if not, or maybe if accepted by the patient, a decision can be made by the SOAD to approve any enforced treatment based not only on the evidence from the Responsible Clinician but also from the independent clinician. I think these improved safeguards at least need consideration by the government in its MHA reforms.