Monday, May 30, 2022

Pre-legislative scrutiny of Mental Health Act reform

I mentioned in my last post that there will be a draft Mental Health Act Reform Bill, probably this summer, which will be subject to pre-legislative scrutiny in the autumn with a Bill potentially next spring. I just wanted to make clear what I thought should be in the draft Bill (see eg. previous post), although it seems most of the proposals in the government response to the White paper will go through into the draft Bill (see my summary). My understanding is that two main proposals will be dropped from the White paper consultation response. Firstly, the proposal for the Tribunal to be able to require the Responsible Clinician to reconsider a specific treatment decision will be dropped, which I think is unfortunate. Secondly, the proposal to give powers to A&E professionals to require individuals in need of urgent mental health care to stay on site pending a clinical assessment will also be dropped, which I think is the right decision. It’s also unclear to me whether there will be proper funding for mental health advocacy, which in my view was never properly funded when introduced by the 2007 amendments to the Act. 

I’m not sure how much scope for amendment there will be in the parliamentary process. As I said in my last post, I'm hoping that pre-legislative scrutiny will allow an examination of whether the draft Bill complies with the UN Convention on the Rights of Persons with Disabilities (CRPD). I don't think the government is right that current legislation, let alone the draft Bill, does. The legal capacity of people with mental health problems needs to be protected even though they may not have mental capacity.

A CRPD compliant law would ensure that people with mental health problems are supported in their decision making. When they receive that support they must be protected against abuse. People should have access to support from people they trust in their social network and community. Formal identification of a nominated person as proposed by the government should be helpful in this respect, although the rights of the family also need to be protected. As I've been arguing, I think mental health advocacy can be improved by a more integrated service of IMHAs, mental health lawyers and independent experts (see eg. previous post). Such a service would be commissioned via integrated care system (ICS) arrangements. Mental health lawyers and independent experts would continue to be paid via legal aid.

A Mental Health Tribunal will only be needed if the new properly funded advocacy service cannot persuade the Responsible Clinician (RC) to go along with its suggestions. It would require reinstatement of the idea, which, as I said, will apparently be dropped in the draft Bill, of extending the role of the Tribunal to treatment as well as detention decisions. This arrangement should cut down dramatically on the number of Tribunals. Current proposals just seem to be accepting of the all too common number of Tribunals which are held. The number of tribunals needs to be reduced. My proposal will also mean that Second Opinion Approved Doctors (SOADs) from the Care Quality Commission (CQC) will not be needed and can be abolished, as the 'second opinion' if needed, will come from the advocacy service rather than needing a so-called approved doctor, who in practice too often merely 'rubber stamps' the RC decisions. It's far better that patients themselves can choose who provides the second opinion (see eg. another previous post).

These Tribunal changes and abolition of SOADs will be cost-saving. If further savings are needed, personally I have no objections to Tribunals being reduced to a single judge for all decisions. As far as treatment decisions are concerned, a single judge makes the decision if a case goes to judicial review. The current problem is that this does happen very often at all. What I'm suggesting is that such cases should be dealt with under the remit of legal aid. All savings in the arrangements I’m suggesting can be invested in mental health advocacy.

The introduction of a new form of supervised community discharge for criminal cases is controversial and I think probably should be abandoned. The need for it is not clear to me and the history of introducing such enforced community arrangements should encourage caution. It also doesn't seem to fit with the thrust of the reform changes to reduce coercion.

As I have also mentioned before (see eg.  previous post), one of the purposes of the draft bill is to make it easier for people with learning disabilities to be discharged from hospital. Personally, I think the same aim should apply to people with serious mental illness (SMI) as well. Too many people with learning disability and SMI are ending up in inappropriate secure care. I think all civil detentions to secure hospitals should just be prohibited. As far as I am concerned, secure provision should just be reserved for criminal cases to provide its function of alternative to prison. My proposal would encourage a focus on more appropriate open and informal care care for civil cases, which will improve community care.

I look forward to seeing all these issues debated by parliamentarians.

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