Briefing 231

May 2018

The Independent Review of the Mental Health Act Interim Report

 

An independent review of the Mental Health Act 1983 (MHA) was commissioned by the government in October 2017.

The government has tasked the review to make recommendations for improvement in the following specific areas:

  • Rising detention rates;
  • Racial disparities in detention; and
  • Concerns that the Act is out of step with a modern mental health system.

The interim report was published on the 1st of May. It summarises the work so far, some of the findings and the key topics that have emerged as priorities for further examination. The final report and recommendations is expected at the end of 2018.

This briefing paper is not a duplication of the interim report, but a shorter summary written under the following headings:

  • What the review hopes to achieve;
  • The work so far;
  • Findings and next steps;
  • Interim decisions made;
  • Getting involved.

Practitioners working in the mental health arena are encouraged to read the full report by clicking here.

What the Review Hopes to Achieve

The overarching aim of the review is to ‘make the Mental Health Act work better for everyone’. To do this the review hopes to achieve the following goals:

  • Service users and carers being treated with dignity and respect;
  • Greater autonomy for people subject to mental health legislation;
  • Greater access to services for those that need them;
  • Making the least restrictive option appropriate to a person’s circumstances the default option;
  • Improved service user and carer wellbeing;
  • Service users and carers supported to be fully involved in treatment as possible;
  • Reduced disparities between groups with protected characteristics;
  • Greater focus on rights-based approaches;
  • Reduced harm and improved safety for all; and
  • Professionals better able to deliver their expertise.

The Work So Far

Stakeholder Engagement

The first priority of the review has been to hear directly from people affected by the current Mental Health Act. This has been achieved through a dedicated service user and carer survey, workshops, focus groups, meetings and events.

Those people consulted include:

  • Service users and carers;
  • Organisations representing service user views nationally; and
  • People and organisations that use the Act in the course of their work (health and social care, legal services, voluntary and community sector organisations).

A rolling programme of engagement will continue throughout the review, which will include targeted focus groups to address gaps in evidence and testing of emerging thinking and recommendations.

Academic Literature Reviews

In addition to stakeholder engagement the review has commissioned academic literature reviews on a range of themes, including:

  • Legal frameworks and rates of detentions in Europe;
  • Clinical and social predictors of compulsory admission;
  • Service users and carer’s experience of compulsory admission;
  • Interventions to reduce compulsory admissions;
  • Use of nearest relative provisions in compulsory detention and on-going care;
  • Advance care planning; and
  • Clinical effectiveness of Community Treatment Orders (CTO’s).

Data Analysis

The review has also commissioned detailed analysis to explore:

  • Issues of variation in detention rates and re-detention;
  • Comparisons of informal and formal admission;
  • Success rates of tribunal appeals; and
  • The impact of characteristics including ethnicity, age, gender and protected characteristics on the above.

Findings So Far and Next Steps

The following tables explain some of the findings of the review thus far, and some of the priority topics identified for further consideration over the coming months.

Before Detention

Findings  Further considerations 
Rising number of detentions
Literature reviews found that detention rates in England are about average, but are rising faster than other European countries.

Stakeholders reported:

  • people are not receiving the care they need in the community to prevent crisis
  • risk aversion amongst professionals has increased
What interventions could reduce the use of the Act and compulsory admissions?

Learning from whole system approaches that have already been used to try and reduce compulsory admissions.

Legislative and non-legislative ways to mandate closer inter-agency working.

Opportunities to improve risk and safety assessment.
Decisions to detain
Stakeholders reported:

  • decisions emphasise risk over other factors
  • there are variances in risk thresholds applied
  • an imbalance between independence, the least restrictive option and available resources
  • concerns about the person’s ability to challenge detention decisions
  • the process of detention can be distressing
Whether current risk thresholds are the right ones and, if not, what they should be.

How the Act can support positive risk taking and standardised risk assessment when making decisions for detention or renewal.

Whether the ‘appropriate treatment’ requirement is adequate to ensure a person really does receives clinically effective help.

Whether sections 2 and 3 of the Act should be combined, with an initial shorter period for assessment and treatment.
Interfaces with the Mental Capacity Act 2005
Stakeholders reported:

  • difficulties and confusion about whether the Mental Health Act or the Mental Capacity Act should be applied
  • increased use of the Mental Health Act due to DoLS issues
Whether and how legislation could enable the return of informality to care and treatment in hospital.

Whether recommendations can be made to solve the urgent problems identified to date.

Whether the Liberty Protection Safeguards should be able to authorise a deprivation for somebody at risk of harming others.
Police Role
Data analysis showed that there has been a reduction in the use of police cells under section 136.

Stakeholders report that people who are arrested stay in police cells for too long after an AHMP has decided they should be detained.
How recent legislative changes to sections 135 and 136 of the Act are changing approaches and whether or not it is right to bring an end to police cells as designated places of safety.

Why people are remaining so long in police cells after an AHMP has decided they need hospital admission.

Why police vehicles are transporting majority of people to hospital rather than an ambulance.

The practicalities and benefits of NHS England taking over the commissioning of health services in police custody.

Equality issues, particularly police interactions with people from BAME communities.

During Detention

Findings  Further considerations  
Dignity and respect of the service user
Around two thirds of service users surveyed reported that they did not feel safe, treated with dignity and respect, or that their human rights were upheld during their detention.

Stakeholders reported:

  • concerns surrounding circumstances of medication use
  • ward environments that contribute to poor therapeutic care
  • concerns about current mechanisms to address concerns raised
The specific issues identified by service user engagement.

Learning from successful initiatives to improve care.

Opportunities to improve systems for identifying and addressing poor or abusive care.

Opportunities to improve redress for service users.

The possibility and impact of introducing guiding principles into the Act itself, as opposed to just the Code of Practice.
Autonomy of the service user
In the survey many service users said their views did not receive adequate attention. Whether service users have enough say in decisions, and if not, how this could be increased.

Whether a person’s mental capacity should play a role in detention and/or treatment under the Act, and at what points.

The potential for unintended consequences from different approaches to reform of the interface between the Mental Health and Mental Capacity Acts.

How the existing framework under Part 4 of the Act can be better implemented to strengthen advance planning.

Whether additional legislative reforms are needed around advance planning.
Analysis of CQC reports and engagement with stakeholders found:

  • concerns about the adequacy of safeguards against compulsory treatment in the first 3 months
  • concerns about measures in place to reduce distress associated with compulsory treatment
  • concerns around the use of emergency treatment powers
  • service users are not always aware of their rights to a Tribunal
  • opportunities to apply to a Tribunal are too limited
  • concerns about how effectively Tribunals and hospital managers are able to carry out their functions
The appropriate route to securing safeguards for patients in the initial period of detention, specifically whether a reconfigured version of sections 2 and 3 of the Act is needed.

The appropriate route to securing safeguards for patients after the initial period, and revising the current urgent or emergency treatment exemptions.
Whether service users should be able to appeal to the Tribunal against compulsory treatment decisions.

How to ensure the Tribunal provides an effective and proportionate safeguard for patients.

The role that hospital manager hearings should play.

How Tribunals sit amongst other safeguards inside and outside of the Mental Health Act.

Whether the Tribunal should provide the sole channel to challenge, and if so, whether service users should be allowed to apply more than once in the statutory period.
 Advocacy
Service users and carers reported:

  • advocacy is extremely important to them
  • there is variability of provision
  • there is a lack of service user awareness about access to and eligibility for advocacy, and the role of different advocates
  • Other stakeholders report
  • funding for advocacy is inadequate
  • training and professional support for advocates is limited
  • people from BAME communities and older people have greater difficulty accessing advocacy
How services can ensure advocacy is available and suitable for all.

Whether the right to advocacy should be extended to more people.

Whether the requirements around advocacy need to be better set out in law or guidance.

The current state of IMHA training and how to increase its quality.

How national standards, reporting requirements, monitoring and oversight, or other mechanisms might be used to facilitate better implementation and delivery of advocacy.
Family and carer involvement

Service users and carers repeatedly described the importance of choosing who is involved in discussions about their care.


All stakeholders reported:

  • identifying the correct nearest relative is too complex
  • the displacement process for unsuitable nearest relatives is too long
  • issues arise when family members, carers and friends live a long way from the hospital, or when the service user has suffered abuse at the hands of family members
  • carers cannot always access information about treatment
  • there are instances when information is inappropriately shared with relatives, against the person’s wishes
Whether the nearest relative provision should be reformed to allow service users to nominate a person of their choice.

Whether the nominated person should have a statutory role in treatment decisions.

The appropriate safeguards needed in relation to the appointment and discharge of nominated persons.

Other mechanisms for carers, families and friends can be involved in the care of the person.

Potential non-legislative approaches to ensure a better balance between protecting confidentiality and disclosure.

How any replacement of the nearest relative provision can improve access to and sharing of information.

The framework for the authorisation of sharing information and the resolution of disputes.
The use of restraint and seclusion
Data analysis confirmed:

  • the use of restrictive practices is a long standing concern, with numerous reports available to this effect
  • wide variation in the use of restraint between Mental Health Trusts
  • people from BAME communities are more likely to experience restraint
  • following guidance issued by the Department of Health in 2014 there was an increase in the use of restrictive interventions in a range of settings
The current practice of restraint and seclusion.

Options available to strengthen the principle of least restrictive practice.

The work underway and on-going in this area, including the Mental Health Units (Use of Force) Private Member’s Bill, currently going through parliament.

Leaving Hospital

 Findings  Further considerations 
Community Treatment Orders (CTO’s)  
Data analysis shows:

  • around 5000 people are subject to a CTO at any time
  • Black or Black British people are 9 times more likely to be given a CTO than white people
  • 3 controlled trials suggest that CTO’s do not reduce re-admissions, and that they are often experienced as coercive and restrictive
  • In workshops service users and carers were critical about CTO’s.
In a survey by The Mental Health Act Alliance there is however, broad support for conditions of some nature.
How CTO’s are experienced by individuals and families.

Why people from BAME communities are much more likely to be given CTO’s.

The disparity of views about the effectiveness of CTO’s.

Whether there are benefits to CTO’s for some groups of people in some circumstances.
The implications of reforming or replacing CTO’s.
Discharge and aftercare
Stakeholders reported:

  • section 117 aftercare is complex to set up and administer
  • concerns that section 117 is not available to those informally admitted or detained under section 2
  • it is not always clear which organisation is responsible for which costs
  • concerns about the number of care plans sometimes required at the same time to cover all legal and practice requirements
  • service users are not always being supported to make decisions about their care plan
  • concerns about collaboration and communication between different organisations when care planning
Analysis of CQC reports showed that care plans are of variable quality and not always shared with service users.
Clarify the meaning of aftercare, so that it supports independence and recovery.
The case for reforming eligibility.

How to resolve arrangements across health and social care, particularly regarding funding and ordinary residence.

The need to modernise section 117 aftercare in relation to the provisions of the Care Act 2014.

Opportunities to bring the requirements of the CPA, Care Act, Children Act, NHS Continuing Healthcare and section 117 care planning together in a co-ordinated way.

Opportunities to drive greater collaboration between bodies involved in preparing and delivering care plans.

How to incorporate advance planning into any proposed reforms.
  Issues for particular groups

Data analysis showed Black Caribbean people are more likely to come into contact with mental health services through the police, to be re-admitted, to be given a CTO, and to be admitted to a secure hospital.

Focus groups with BAME people reported:

  • a lack of cultural awareness among staff
  • a lack of culturally appropriate care
  • concerns about racism, stigma, stereotyping and over-medication

Focus groups for children and young people reported:

  • concerns about information sharing
  • differences between the information given to the child/young person and that given to parents
  • a lack of information for parents/carers at the point of assessment
  • a negative impact when placed in term time or some distance away from home

In relation to learning disability stakeholders said:

  • people are sometimes detained because there is a lack of community provision
    levels of understanding/awareness of learning disability/Autism amongst staff and Tribunal judges is concerning
  • families and carers do not feel involved in decision making
The experiences of BAME people of being detained, particularly those of black African and Caribbean descent.

Why some BAME groups have worse outcomes.

Whether specific changes to the Act or Code of Practice could improve disparities.
Whether or not to extend the approaches used by the NHS Workforce Race Equality Standard to service users and carers.

How poor understanding and/or implementation of existing legal frameworks contribute to current barriers to the delivery of care and treatment in children and young people.

The appropriate place for family members in decisions about the admission and treatment of children and young people.

How services in the community can support people with a learning disability or Autism to avoid the need for detention.

Whether learning disability and autism should continue to be included in the scope of the Act.

Opportunities to improve awareness among professionals of the needs of people with a learning disability or Autism.
The criminal justice system and part 3 of the Mental Health Act
Focus groups reported:

  • frustration in delays in transfers to hospital
  • concerns that the environment in a prison or detention centre can negatively impact the experience of people with acute mental illness
  • concerns about the willingness of clinicians to recommend remission back to prison from hospital
Other stakeholders report:

  • slow decision making for restricted patients can impeded recovery, block beds and create feelings of ‘being in limbo’
How to streamline and speed up the process of transfer to and from hospital for prisoners and immigration detainees.

How to streamline and speed up decisions on release for transferred prisoners serving life or other indeterminate sentences.

How to speed up decision making for restricted patients.

Whether specific decision making powers in the Act relating to restricted patients remain necessary and appropriate.

Which individual or organisation should hold the decision making powers for restricted patients.

The potential to reduce inappropriate use of custody.

How to make it easier for courts to use section 35.

Sentencing options for courts and when they are used.

Interim Decisions

Whilst most matters raised are still very much open for discussion, the review has made a few provisional decisions at this interim stage:

  • In respect of the interface between The Mental Health Act and the Mental Capacity Act the review has confirmed that it is likely that it will not be recommending a ’fusion’ between the two Acts in the short term, but will be considering this as a longer-term option;
  • In respect of the police role, the review is clear that it sees the care of people in cells is as much an issue for health and social care as it is for police;
  • The review is clear that the role of the nearest relative, as defined in section 26 of the MHA, is no longer fit for purpose;
  • The review is clear that CTOs should not remain in their current form;
  • The review is clear that a general right to aftercare must continue;
  • In respect of advance planning, reform is required but this will not make advance planning completely binding; and
  • The review will look towards extending and protecting the role of advocates.

Get Involved

If you have specific evidence or experiences relevant to any of the issues and topics that the review will be considering over the coming months the review is keen to hear from you. You can get in touch directly via MHActreview@dh.gsi.gov.uk. Alternatively regular updates can be found on the webpage https://www.gov.uk/government/groups/independent-review-of-the-mental-health-act

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