Adult Social Care Systems – A Changing Landscape (2)

Article 2 – The Mental Health Act Independent Review and the case of MM

Please find the previous articles in this ongoing series here.

There have been two significant developments in the last month that will shape the future of mental health law. Importantly, these changes will have a direct effect on patients and access to treatment.

The case of MM

We will start with the most immediate change which is the first of two key expected mental health judgments from the Supreme Court.

The case of Secretary of State for Justice v MM [2018] considered how patients detained under the criminal provisions of the Mental Health Act 1983 can be released from that detention and specifically, what the powers are of the First Tier Tribunal of the Secretary of State for Justice to set conditions on any discharge.

This issue is important because many of these patients will have been detained in hospital for considerably longer than they would have spent in prison for their criminal offence. In all likelihood, they will have reached the limit of the benefit they could receive from further treatment for their mental disorder in a hospital unit. The question has always been how they can be safely (both for them and for the community) be discharged. The gravity of the offences and risk of reoffending cannot be ignored, crimes include sexual abuse of minors and arson. It also cannot be discounted that the amount of time – we have seen cases of patients detained for over 20 years - can mean that it is very difficult for them to readjust to society.

The court found that there was no power to impose conditions that would amount to a deprivation of liberty. This is because parliament did not include these powers in the Mental Health Act 1983. In practice, this means conditions that restrict where a patient may live and their access to the community are not likely to be valid. Conditions such as these have been a valued tool of the system because it allows a temporary ‘halfway house’ between detention in hospital and complete freedom. Importantly, it allowed a balance to be struck between liberty and minimising risk.

This will have an immediate effect on patients awaiting release and on those already in the community with these restrictions. It will be a set back to the Transforming Care programme which seeks to encourage the discharge of those in long term detention in mental health units.  

The most likely consequence, as identified by the Independent Review of the Mental Health Act 1983 (pages 194 & 195), is that patients will simply not be discharged because the tools to do this safely are not available. This will, of course, mean that not only will patients remain in hospital past the point it is clinically required, but fewer specialist beds will be available to those who do require them. One of the recommendations of the Review is that the government swiftly amends the Act to allow these conditions.   

On that note, we turn to the recently released Final Report of the Independent Review of the Mental Health Act 1983.

Modernising the Mental Health Act: Increasing choice, reducing compulsion

This Review comprises 307 pages and has 154 recommendations. This brief article does not seek to cover all of these but we will highlight some key areas. We will also return to the Review in future articles.

The Review creates principles which underpin the recommendations and, it is suggested, be incorporated into a new Mental Health Act in a similar way as in the Mental Capacity Act. These principles are:

• Choice and autonomy – respecting and giving weight to the will and preferences of the service user.
• Least restriction – aim to use the powers of the Act as little as possible and when they are used, they must be used proportionately.
• Therapeutic benefit – services to be provided to minimise use of the powers in the Act and if those powers are used, they must be used to help people recover.
• People as individuals – to apply the NHS constitution and treat service users as rounded people rather than as a diagnosis.

One of the most eye catching recommendations is to abolish the concept of Nearest Relative. A Nearest Relative is the person who has the power to refuse detention for treatment under s3 of the Act and take action on behalf of the service user at the Tribunal. However, as the Review identifies, the process for determining who is Nearest Relative is very arbitrary and takes no account of what the service user actually wants. We have advised on cases where the Nearest Relative is the parent the service user accuses of sexual abuse. At a time of already intense distress these rules can pile even more pressure on a vulnerable adult.

The Review recommends a Nominated Person to take over this role, with the service user nominating who that person should be. Linked to this is a recommendation for Statutory Advance Choice Documents which allows a service user to make decisions when they are well for what treatment they have if they become unwell. This is expressly linked to how advance decisions are dealt with under the Mental Capacity Act 2005.    

The government has endorsed the Review and has already agreed to implement the two recommendations we have looked at above. They will publish a full response next year but the timescales for new legislation are unclear at this early stage.

It will be interesting to see how the government approaches the recommendations to extend non means tested legal aid and other recommendations that will increase expenditure.

What does this mean for other areas?

Part of the focus of the Review is to look at possible ‘unification’ between mental health and mental capacity. It concludes that this would be a step too far at the moment but should be considered in time. Many of the recommendations seek to push the two Acts closer in practical ways and perhaps most importantly, seek to apply the same values and principles to both.

Reforms to the Care Act have been delayed and are expected at some point next year and it will have to take account of the Review. Reforms to the Mental Capacity Act continue and some amendments have been agreed. The Review recommends further amendments and we shall consider the progress of the new legislation in a future article. 

It is unfortunate that the two key Supreme Court judgments and the publication of the Review have coincided so closely. The judgments have an immediate effect and should be considered by the Review – it was lucky that the MM judgment came out a few days before the Review was published so a paragraph could be hastily included but this is not an appropriate way of addressing the serious issues.

The next judgment covers Community Treatment Orders (CTOs) and how they can be used. The Review carefully looks at the same issue and makes recommendations, it is a shame that the judgment could not have been considered in the Review.

Next Article

In our next article, we will look at CTOs, how they can be used currently and what will change. We will also consider what affect this will have on other linked areas. The Supreme Court judgment examining this area has just been given as this article is being published. 

How we can help

Here at ELS we advise a variety of public bodies and have experience in assisting those organisations to anticipate risk, avoid it where possible and minimise it where it is unavoidable.

Please feel free to give our team a ring or send us an email if you would like to discuss or have any questions.  

Carolyn Whaymand, Legal Service Manager / Health and Social Care and Deputyship
T: 03330 139613  / M: 07557 081539 / E: carolyn.whaymand@essex.gov.uk

Jennifer Mellani, Legal Service Manager / Health and Social Care and Deputyship
T: 0333 0133 277 / M: 07747463390 / E: jennifer.mellani@essex.gov.uk