Bond Solon trainer Max Duddles explores the prospect of meaningful progress on mental health policy over the course of the next parliament
In health and social care circles, King Charles III’s first Kings Speech at the state opening of Parliament in November 2023, was something of a damp squib.
Many were hoping for an announcement that much needed reforms to mental health legislation were in the pipeline, perhaps as a precursor to the Liberty Protection Safeguards (LPS) being introduced early during the lifetime of the next parliament.
As we now know, the speech avoided any real discussion of health and social care reform, once again disappointing and evoking considerable criticism from those pressing for urgent reform in the legislation
However, King Charles’ second Kings Speech suggests that some reform might be back on the cards, albeit, perhaps not as much as some had hoped.
The speech itself set out around 40 bills and lasted a matter of minutes, so nothing was covered in detail by the King himself. There is, however a 102-page background briefing which goes into considerably more detail.
According to the briefing, “the Mental Health Bill takes forward the vast majority of Professor Sir Simon Wessley’s 2017 recommendations for legislative reform and includes a wide range of changes to shift the balance of power from the system to the patient, putting service users at the centre of decisions about their own care”.
The plan, essentially, is to give patients greater choice and autonomy and ensure they are treated with dignity throughout their detention by:
- Ensuring that detention and treatment only takes place when necessary – This is likely to be achieved by changing the criteria for detention so that someone can only be “sectioned” if they pose a risk of serious harm to themselves or others and where there is a reasonable prospect that treatment will be of therapeutic benefit. The change from the current position is that the risk will have to be “serious” and it would appear that the definition of “appropriate treatment” will include a requirement for it to be of therapeutic benefit to the patient. There will also be shorter “section” periods and access to more frequent reviews and Mental Health Tribunal hearings. All of the above is likely to drive up a need for community care provisions and panel members for Mental Health Tribunals.
- Further limiting the extent to which people with a learning disability and/or autistic people can be detained and treated under the Mental Health Act – This is likely to be achieved, by recognising that people who come into either group are not mentally disordered or mentally unwell unless or until they display abnormally aggressive behaviour or seriously irresponsible conduct. The Mental Health Act currently treats autistic people and those with learning disability as a single group, all of whom are mentally disordered, but who cannot be deprived of their liberty until they display abnormally aggressive behaviour or seriously irresponsible conduct.
- The changes will introduce duties on commissioners to provide an adequate supply of community services in their area so as to prevent inappropriate detentions. This will require an improvement in the understanding of professional as the risk of crisis among autistic people and those with a learning disability.
- Strengthening the voice of patients – This includes adding the weight of statute to the patient’s right to be involved in the planning of their care and their right to choose, and refuse, the treatment they receive. This will pose some considerable challenge to professionals seeking to treat patients who do not want to take psychiatric medication, as they do not believe they are mentally unwell.
- Strengthing and improving statutory roles – The replacement of the Nearest Relative by a Nominated Person chosen by the detained patient is something which many feel to be long overdue. It appears that there will also be a requirement for “informal” patients to have a Nominated Person and that Independent Mental Capacity Advocates can fill that role.
- Removing police stations and prisons as places of safety – This is, of course, long overdue and not likely to be a particularly contentious measure.
- Supporting offenders with severe mental health problems to access the care they need as quickly and early as possible – In principle, this is an excellent idea. The more help offenders with mental health problems get, the less they are likely to reoffend. This is likely to be a resource-heavy measure requiring rapid, yet measured, responses among patients who are often reluctant to engage.
As the briefing note observes, these reforms will take a number of years to fully implement, as more clinical and judicial staff will need to be recruited. The note does not say where these people will be recruited from, but it does say that the reforms will be introduced in phases, as resources allow, and that the new powers will not commence until there are sufficient staff in place to make it safe to do so.
The message here is to expect the low-hanging, cheaper, fruit to be picked first. Changing the status of those who are autistic or have learning disabilities, removing police stations and prisons as places of safety and introducing the role of the Nominated Person can all be done relatively easily. Everything else is going to require money, people and other resources. Only time will tell if any of these are available.
This, by degrees, brings us to the reform of the Deprivation of Liberty Safeguards (DoLS), or rather the question of whether DoLS will ever be reformed and, if so how.
Addressing the DoLS backlog
You may recall that in 2014 a House of Lords Select Committee on the Mental Capacity Act was asked to perform post-legislative scrutiny on the act overall. Chapter 7 of its report focuses on DoLS. It was the damning analysis of the how DoLS was getting on five years after its introduction which led to the Law Commission being asked to come up with something better.
This, in 2019, resulted in the Liberty Protection Safeguards being inserted into the Mental Capacity Act 2005. They still, of course, remain switched off and the big question is will they ever be switched on?
To do so would require the passing of a piece of secondary legislation. Now, hundreds of pieces of secondary legislation are passed every year and are rarely mentioned in speeches given by monarchs, so an absence of any discussion of this by the King would not be surprising even if the secondary legislation was to be introduced next week, not that it will be.
The difficulties experienced when trying to introduce LPS in the life of the previous parliament have not gone away and only two Labour MPs voted in favour of LPS when it was introduced. A lot of the personnel in healthcare and local authorities who were charged with introducing LPS have, at the very best, been moved to different jobs and, at the very worst, been made redundant. The momentum for LPS has been well and truly lost.
Call it what you like, though, some reform is needed, and needed urgently. The DoLS backlog is still growing, despite the best efforts of supervisory bodies, best interests assessors and mental health assessors everywhere.
Only 19% of all requests for standard authorisations are assessed within 21 days and 56% of all requests for standard authorisations have notifications of the grant of urgent authorisations attached. When DoLS was introduced, it was envisaged that urgent authorisations would be rare, as in most cases it would be possible to plan for the admission of people potentially eligible for DoLS well in advance of their actual deprivation of liberty.
The combined effects of a lack of foresight, an overly complex system and a redefining of what a deprivation of liberty is have all put paid to that. This means that 65% of all requests for standard authorisations are not actually assessed. The patient has either moved on, recovered or died. The average length of time, across England, for a request for a standard authorisation to be assessed is 156 days. The statutory maximum should, at most, be 21 days.
Where we are now is in a mess and it’s getting progressively worse, last year the average length of time was 153 days. Bold and decisive action is required and we can only hope that the new parliament will take it, and take it soon.