Health October 25, 2018
Greater clarity required in Mental Health Act review

By Daniel Male - Accountable Care Journal

The Mental Health Act 1983 is not the shortest piece of legislation! Nor does it operate in a silo. As such, the overlap with the Mental Capacity Act 2005 must be considered in its evaluation and application. Added to this are the respective Codes of Practice for the legislation and the MHA Reference Guide, which between them, total over 1000 pages. This is an awful lot of information for healthcare professionals to get to grips with.

When we responded to Professor Sir Simon Wessely’s initial call for evidence earlier this year, there were many topics and issues we flagged up. These were taken from our experience advising mental health providers in both the public and private sector and advising commissioners in respect of s117 aftercare.


So what topics would benefit from clarification?

Admission

  • Clarity in relation to transferring a patient from s2 to s3
  • The need for s4
  • Validity of Form H5 for renewals
  • Rectification under s15 in terms of timeframes and for CTOs
  • The transfer of authority from one set of Hospital Managers to another

During Admission

  • Selection of Nearest Relative and sharing of information with them
  • The use of s63 to provide treatment
  • Are Hospital Managers still necessary?
  • S25 “dangerousness” criteria at time of discharge but not admission
  • Extra statutory recommendations made by Tribunals

Discharge

  • S117 liabilities of CCGs and Local Authorities
  • Are people admitted under s3 just to get s117 aftercare?
  • The approach to Care Programme Approach meetings

Miscellaneous

  • Interrelationship between MHA and the Criminal Justice system
  • Speed of updates to the Code
  • The need for a Reference Guide
  • The use of language and phrases such as “liable to be detained” within the MHA

Forms – sometimes it is the simplest thing that makes the biggest difference.

S2 and s3: Where a patient has already been admitted (initially detained under Section 2) we have found that, at times, professionals are confused as to how form A6 should be completed when someone has already been admitted under Part 2, under Section 2, because the form does not allow space to state the patient is already there.

When completing the H3, you can record the fact that the patient was already in hospital when completing the section 3 paperwork, but it is a record of the detention, rather than the detaining paperwork. So, should there be an amendment to the A6 to clarify that there has been a change from s2 to s3?

We suggested various ways of amending the forms. While only a minor change, this may assist professionals completing the forms to be clear as to what forms are required, as we have seen a combination of Section 2 and Section 3 paperwork combined for one application in the past.

Renewals: We regularly advise as to the validity of H5 renewal forms. This can cause issues as, at times, we will receive forms where Part 1 and 3 are completed on one date, but Part 2 is completed a day or two later. However, all three parts are completed and dated before Part 4.

While the Regulations do not state anything as to the need for Parts 1,2 and 3 to be in chronological date order, there is an inconsistency between hospitals as to whether they will accept the paperwork for a transferred patient.

We suggested establishing greater clarity within The Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008, particularly Regulation 13, as to whether Parts 1,2 and 3 need to be completed in date order or not.

Transfers: The Code requires the transferring hospital to agree that the receiving Hospital Managers will accept the patient, before they are able to provide authority to transfer the patient. However, there is nothing on the face of the H4 to confirm Hospital A has spoken to Hospital B, and crucially, that they have spoken to someone with authority to confirm that Hospital B can receive the patient. Instead, it is taken on trust that the agreement has been reached and a bed is available.

We suggested that this could be managed by amending H4 so that, prior to the current Part 1, the transferring hospital must set out who they have spoken to at the receiving hospital to confirm that the patient can be accepted, if a bed is available, and when the bed will be available.


Treatment – a more complicated area?

Treatment and Part IV seems to create a lot of confusion, especially when acute hospital teams become involved. Section 63 itself is clear. We suggested however that there needs to be more information in relation to this perhaps as part of the s12(2) approval training or by having greater guidance within the Act/Code etc.

Clinicians often appear very reluctant to use s63 because it imposes treatment, irrespective of capacity. This is particularly apparent for clinicians in acute environments who may not be familiar with the MHA.

We suggested that the Act/Code be amended to provide greater clarity surrounding the coordination and roles of mental health and acute services, and how treatment is managed. Clarification could be provided in respect of; the test, confirmation about the use of restraint, and that, even if indicated, it doesn’t have to be relied upon if there are reasons not to do so, such as relevant religious objections. While this is all currently embedded in case law, clinicians need s63 MHA to be clear, especially when treatment situations become urgent.

Professor Sir Simon Wessely’s review will be looking at a range of options for reforming the MHA, from large-scale changes to more specific amendments. We look forward to seeing the output of the review and working with our clients to better serve this vulnerable group of patients.


#ACJPartner #ACJInsight #millsandreeve #ACJCommunity