Sir Simon Wessley’s review of the Mental Health Act (MHA) has published its first substantive report.  As Sir Simon points out, the independent review was set up “not just to look at our mental health laws but also how they interact with services, good practice and the wider care system.  

The review has reached “a few provisional decisions” but most matters remain “up for discussion”.The over-arching aim is “to make the Mental Health Act work better for everyone” and the terms of reference of the review were: to make recommendations for improvement in relation to rising detention rates, racial disparities in detention and concerns that the act is out of step with a modern mental health system.The report notes that some rights are enforceable under the HRA but that those under “other conventions” remain aspirational.  The report distinguishes rights from “broader issues of human dignity” (p6) stating that it has frequently been told of practices which fall short of this.  The fact that inpatient wards are not always the most therapeutic environment is seen as less to do with the powers that exist and more to do with how they are exercised.  

The report is clear that change is needed in CTOs and the nearest relative provisions: p7; and that the “whole area of the overlap between the criminal justice system and mental health needs an overhaul”: however improvements cannot be achieved by legislation alone and changes” must be underpinned by improvements to mental health services”- p12.  

The evidence the review heard from people of Afro-Caribbean heritage who are detained more than any other group is of particularly poor experiences.The review has identified the following “key topics” which require particular consideration (chapter 7)

1.The reasons behind the increase in detentions under the MHA (despite the reductions in beds)- the review wishes to rescue the concept of the informal patient (p12)

2.Decision-making on admission and renewals;  whether a single section should replace sections 2 and 3; whether the current risk thresholds are the right ones and – importantly- whether the appropriate treatment requirement is adequate to ensure that detained people actually receive clinically effective treatment;

3.Interface with the MCA- the review supports the need for reform of DOLS and will consider “fusion” law in the longer term and in the shorter term the possibility of fusion of appeals (echoing, to some extent, the Law Commission’s view that fusion law represents the potential future direction of mental health law in England and Wales.

4.The role of the police who should not have to make up for the gaps in service provision; the effectiveness of changes to s135 and s136, and whether NHS England could take over commissioning health services in police custody;

5.Dignity during detention and the role of under-staffing, bed reduction, reliance on agency staff and lack of supervision (p27).  The possibility of including guiding principles on the face of the MHA is considered (as with the MCA and the Care Act)

6.Autonomy and consent to treatment- once again fusion is to be “considered seriously” in future.   There is a reference to advance planning or advance consent which is also provided for in the Law Commission’s Draft Mental Capacity Amendment Bill.  The review will also consider whether Tribunals should be able to hear appeals against compulsory treatment decisions.

7.Tribunals; their frequency; and whether there is duplication with hospital managers’ hearings;

8.Advocacy and the low awareness about how to access it; the role of culturally appropriate advocacy; and whether the role of advocates should be extended and protected;

9.Nearest relatives: whether the statutory provisions should be reformed to allow individuals to nominate a person of their choice;

10.Non-legislative approaches to improve decisions about confidentiality;

11.Restraint – the review quotes evidence from NHS Digital that people from BAME communities are more likely to experience this and notes a rise in the use of restraint in high secure settings for those with learning disabilities, high-dependency rehabilitation services, medium and high secure services and young people’s non-forensic services.

12.CTOS-the review is “not persuaded that CTOs should remain in their current form” and ensuring that future provisions do not reproduce the over-representation of some BAME groups.

13.A reform of the “aftercare” provisions of s117 (recently amended by the Care Act 2014) and an exploration of “the interface between section 117 and the Care Act” with a view to improving equity of access.  The review will also consider reforming the “complex arrangements over funding and ordinary residence”.   An attempt was made to bring order to this complex landscape through the introduction of a statutory dispute resolution process via the Care Act 2014, but the waste of time and money in ascertaining responsibilities of which the review complains will be recognised by many.  There is no reference to the issue of charging for aftercare.

14.“Care planning” and whether there should be a cohesive framework for care planning across the CPA, Care Act, Children Act and section 117. 

15.The key issue of the experience of people from BAME communities and why some groups have worse outcomes- the report describes “few clues” so far as to how the MHA should change and plans further research, including into culturally appropriate alternatives to detention.   Its focus groups have “overwhelmingly” spoken of the lack of cultural awareness in staff and decision-making.  

16.Children and young people and how the various legal regimes (MHA, Children Act, MCA) interweave and affect decision-making.  There is a reference to the problems arising from of out of area placements.

17.Learning disabilities and autism: The review has been struck by the significant lack of agreement on the appropriateness of people with learning disabilities and autism being included in the MHA and noted that this had prevented the Government from implementing its recommendations in 2015, “No Voice Unheard, no right Ignored”.  The review will consider this further.   The Law Commission had recommended that those with learning disabilities which are not associated with seriously irresponsible or abnormally aggressive behaviour could be admitted to hospital for treatment of mental disorder (if this was needed) under its new scheme to replace DOLS- the “Liberty Protection Safeguards”

18.Part 3 of the MHA: the review recognises the impact of delay in transferring mentally disordered prisoners and immigration detainees to hospital and the negative effect of the prison environment, and research is promised as to how to streamline the process.  The impasse for many restricted patients as a result of the judgment in SSJ v MM [2017] EWCA Civ 194 is not touched on explicitly in this part of the report although there is a reference to the need to consider whether decision-making under the MHA strikes the right balance between the protection of the public and the care of the patient (page 45).  The report also promises consideration of sentencing options and section 45A orders.

19.Convention rights: the report acknowledges the need to ensure that the MHA complies with the ECHR, including the rights of appeal for those lacking capacity (alluding perhaps to the judgment in MH v UK [2013] ECHR 1008, on the lack of an automatic referral for those detained under section 2).  Whilst the report notes that compliance with the recommendations of the CRPD Committee would require the wholesale recasting of the MHA and the MCA, which the review does not recommend, the review will consider the impact of international instruments including the UNCRPD and the UNCRC.The review is almost completely silent as to the possible impact on people’s experience of  mental health services of policies of austerity, beyond a reference to the need for improvement to the legislation to be accompanied by an improvement in services.

The review’s work will continue over the following months.   The interim report suggests that CTOs and the nearest relative provisions are very much within the review’s sights as is the tantalising comment about the need to “rescue” the concept of the informal patient (also recommended by the Law Commission), and the intention to consider “what should and should not amount to a deprivation of liberty”.  Given the scope of its remit it is perhaps unsurprising that so many of the key topics remain “up for discussion”.