Government proposals for reform of the Mental Health Act
Following an Independent Review of the Mental Health Act 1983 (the Act) – recommendations of which were published in December 2018 in a report, ‘Modernising the Mental Health Act: Increasing choice, reducing compulsion’ – the government, informed by those recommendations, has set out in a White Paper wide-ranging proposals “for a substantive programme of legislative reform”.
The foreword of the White Paper stating that the Independent Review:
"set out what needs to change in both law and practice in order to deliver a modern mental health service that respects the patient's voice and empowers individuals to shape their own care and treatment. It also made recommendations on how to address the disparities in how the act affects people from black, Asian and minority ethnic (BAME) backgrounds."
We consider the new guiding principles and some of the key aspects of the proposed amendments.
New guiding principles
Four underlying principles developed by the review will shape the approach to reform:
The White Paper also sets out proposals for applying new detention criteria in that those taking the decision to detain someone would “need to document the specific risks that justify detention and how detention will deliver therapeutic benefit in the new statutory care and treatment plan.” The intention is that it “will improve transparency, help tackle a culture of risk aversion which could impact on decisions, particularly in relation to people from a BAME background or people with a learning disability” or who have a diagnosis of autism.
Impressing the need to give patients more rights to challenge detention, the proposals provide for a more frequent review of the case for detention, with greater access to the mental health tribunal so detention could be scrutinised and automatic referral to the tribunal.
Patient’s right to choose and refuse treatment
The White Paper also calls for a strengthening of a patient’s rights to choose and refuse treatment. By way of a summary and with reference to section 4 of Part 1 of the White Paper, the proposals include:
- Advance choice documents (ACD): enabling people to set out in advance the care and treatment they would prefer and that which they would refuse, “in the event they are detained under the Act and lack the relevant capacity to express their views at the time.” Under the proposals, when developing a patient’s care and treatment plan, consideration of the ACD would be a legal requirement.
- Care and treatment plans: these will be a legal requirement and must also set out how the wishes and preferences of the patient have been taken into consideration, and “critically the rationale when a person’s wishes have not been followed.”
- A revised part 4: provision of a new legal framework in relation to consent to and refusal of medical treatment, again to ensure that a patient’s wishes and preferences are taken into consideration, and “limiting the circumstances where a patient’s views and treatment refusals, can be overruled.”
- Enhanced role of Mental Health Tribunal (MHT): in order to provide a new route for patients to challenge their treatment.
We welcome the proposals for reform of the Mental Health Act, to ensure it meets the requirements of modern times. There is a push towards autonomy of the patient, which is welcomed. However, it will continue to be necessary to maintain the sensitive balance between the autonomy of a patient, and the provision of care and the balance between the patient’s rights and society as a whole.
We look forward with interest to the provision of a draft Bill to amend the Act, to see what new steps will be taken in legislation, and what new time limits, documentation and requirements have been put in place.