A chance to think again – can we do better than this?
Surprisingly I am not talking about Brexit and the postponed “meaningful vote” on the Withdrawal Agreement but another piece of legislation scheduled for its 3rd reading in the House of Lords today: the Mental Capacity (Amendment) Bill (MCAB).
Stakeholders have lobbied hard to persuade government to address serious concerns with this legislation as originally drafted; the marginalisation of the cared for person, the use of outdated and stigmatising language, inadequate safeguards and a lack of independence when decisions are made that can change the course of a person’s life.
The government has listened. Some improvements have been made and further revisions are promised. But there is still work to do.
The Mental Health Act review intervenes:
On December 6th, the long-awaited review of the Mental Health Act (MHA) was published. Already government has committed to introduce a new Mental Health Bill and has confirmed acceptance of two of the review’s recommendations to modernise the MHA, with the aim of giving patients greater autonomy and control.
For a significant number of people, the chance to live in their own community, rather than in hospitals or other far flung “placements” may depend on the interplay between mental health and mental capacity legislation.
Individuals with learning disability and autism
The MHA review acknowledged the confusion around which legal framework should apply when a person is in crisis. Their conclusion? That the MHA should only be used if a person is objecting to their detention. If a person lacks capacity and does not object, as a consequence of a learning disability, or autism, their care and treatment should be delivered via mental capacity legislation. This is then expected to reduce the number of MHA detentions, and lengthy stays in hospital.
For those who do find themselves subject to the MHA, there are welcome improvements proposed, notably:
- For those who lack capacity to challenge their own detention, an automatic referral to the tribunal four months after the detention started, then 12 months, then annually. This addresses the current injustice which sees referrals to a tribunal only every three years;
- Opt out advocacy – to ensure those who are not able to ask for support, nevertheless receive it; and
- A new duty on health and social care commissioners to collaborate to ensure availability of community-based services.
Regrettably such forward thinking measures have not been included in the MCAB. A person deprived of their liberty under the proposed liberty protection safeguards (LPS) can wait up to 3 years for a review. Access to advocacy is rationed. And most alarmingly, for those deprived of their liberty in a private hospital (the most vulnerable of patients), the managers of that hospital have the power to authorise the LPS and act as gatekeeper to access to an independent advocate. Government has promised to remedy this as the MCAB continues its passage – we must ensure it does.
Joined up thinking:
The byline for the MHA review is “Increasing choice, reducing compulsion”. If we move to a landscape where more people who lack capacity to consent to arrangements for their care and treatment are treated under mental capacity legislation, rather than under the MHA, numbers detained will reduce.
However, we need to ensure there are genuine gains for these individuals outside of the MHA. They are a sizeable cohort. The economics cannot be ignored. However the procedures that govern their care and treatment must not drift into a landscape of watered-down protections and cut-price safeguards. They must be robust, respectful of the person’s wishes and feelings, and minimally restrictive.
There is work to be done.