Response to Call for Evidence – Draft Mental Health Bill 2022


The draft Mental Health Bill has been released for consultation. Rethink Menal Illness submitted the below written evidence to the Mental Health Bill Committee who are undertaking pre-legislative scrutiny.

About Rethink Mental Illness.

1. Rethink Mental Illness is the charity for people severely affected by mental illness. We provide services that support and empower people to live and thrive independently in their communities. Every day, we help thousands of people to learn about specific mental illnesses and treatments, understand their rights and access support that focuses on their wider physical health, finances, housing, work, and volunteering needs. We provide local peer support groups across England to help people living with mental illness be listened to, treated fairly, and have easy access to the health and social care services they need. We work with a wide range of organisations, including charities, businesses, NHS and local authorities, to create communities that genuinely care for the wide range of people we support.

2. We welcome the publishing of the Draft Mental Health Bill 2022. The Mental Health Act (MHA) is a critical piece of legislation that has a significant impact on people’s lives, sometimes positive but unfortunately, in many cases, negative.

3. To produce this response, we have drawn on previous work, including our substantial involvement in the 2018 Independent Review of the MHA, for which we campaigned, participated in the steering group, multiple topic groups and facilitated participation of people with lived experience. We have recently conducted engagement sessions with people with lived experience of the MHA, including people with severe mental illness, family members and carers.

4. A key issue emerging from the 2018 Independent Review and our engagement with people with lived experience, is that patients often are not treated with kindness and respect. This undignified treatment often worsens their mental illness, increases fear and distrust, and risks further admissions and/or disengagement with care.

5. It is both vital and realistic to expect the Bill to provide people severely affected by mental illness with greater control over their care and treatment, and that this will support their sense of respect and dignity during challenging and confusing times in their lives.

How far does the Draft Bill deliver on the principles set out in the 2018 Independent Review? Does it reflect developments? Is the Government right not to include the principles in the Draft Bill?

6. The draft Bill delivers on some of the principles set out in the Independent Review, but needs to go much further for example on addressing racial inequalities, Advance Choice Documents, Community Treatment Orders and appealing treatment decisions.

7. We strongly recommend the principles be included on the front of the act. In engagement sessions, people with lived experience (including families and carers) said seeing these principles will make the act more accessible. The language is simple, straightforward and can be easily understood. Knowing staff in related services should work to the principles would make them feel safer, ultimately having therapeutic benefits.

8. Guidance should set out the requirement for patients and carers to routinely be informed of the principles.

9. Staff training will be necessary in implementing reforms. Learning from training in the Mental Capacity Act implementation in 2005 can be drawn on. Funded training must be made available to ensure the principles form a common basis for future practice and working culture. This should be set out in statutory guidance.

10. The fourth principle should be extended to explicitly acknowledge the experiences of people from racially diverse groups in the need for individualised treatment. We explain this further below.

To what extent will the Draft Bill reduce inequalities in people’s experiences of the Mental Health Act, especially those experienced by ethnic minority communities and in particular of black African and Caribbean heritage? What more could it do? (Racially and Ethnically Diverse people)

11. The Bill does not go far enough in addressing racial inequalities. We recommend the following key areas where the Bill can go further.

12. The principles must be included on the face of the Act with the fourth principle extended to: “Treat the person as an individual – ensuring patients are viewed and treated as individuals, including taking into account the patient’s race and other protected characteristics to ensure prejudice or racism do not feature in the approach.”

13. This extended principle will enable clinicians, police and others involved in detention, treatment, and discharge of racially and ethnically diverse people to consciously consider their approach with the principle being a reference point for accountability. It should also ensure much needed training for staff will be commissioned as a priority.

14. No matter how good the Act is, it will struggle to attain the confidence of ethnic minorities if it is not understood well or perceived to be in peoples’ interests. Guidance should set out requirements for raising awareness within different communities, and especially for racialised minorities.

15. Advance Choice Documents (ACDs) have been piloted and proven to reduce detention rates for racially and ethnically diverse people. Statutory guidance must set out that:

a. clinical teams must offer ACDs to all people subjected to the MHA.

b. the responsible authority must report on numbers of people;

i. subjected to the MHA.

ii. offered an ACD.

iii. who have taken up or declined an ACD.

16. Clear guidance must be set out on who is responsible for ensuring all people have been offered ACDs. Responsible authorities are currently best placed to show whether ACDs have been offered and whether people have taken up the offer.

17. Learnings from the Culturally Appropriate Advocacy Pilots (CAAP) which were commissioned by DHSC must be made public. Where culturally appropriate advocacy has been proven effective in improving the experience of ethnic minorities, The Act or statutory guidance should ensure that culturally appropriate advocacy is available and accessible where needed.

What more could the draft Bill do to reduce the impact of financial inequalities in people's experiences of the Mental Health Act?

18. The majority of people we asked said the MHA had a negative impact on their finances. This was especially the case where people were detained. Many said they received little support when hospitalised to address this and it worsened their experience of mental illness.

19. A person’s finances and how they will be supported must be considered early on by the care coordinator and others involved in support of all people under the MHA, including in statutory care, treatment plans and advanced choice documents.

20. The two major financial issues raised by people with lived experience were:

a. Personal Independence Payment (PIP) being stopped during a person’s hospital stay

b. Not receiving statutory sick pay due to the requirement of a GP letter.

21. The Social Security (Personal Independence Payment) Regulations 2013 result in PIP payments being stopped if someone is in hospital for 28 days. However, people – including carers – and especially young carers who are financially dependent on people subjected to the Act – report significant financial hardship as a result.

22. People subjected to the MHA should not have their PIP stopped because of being admitted to hospital for 28 days. This should be made explicit in the Act.

23. Financial wellbeing should be considered as part of treatment plans for all patients admitted. Colleagues working on the Mental Health Crisis Breathing Space scheme told us people tend not to disclose financial worries unless they are being asked the right questions and at present a lot of patients’ financial difficulties are going undetected. The Act should ensure clinicians are aware of the types of support people can receive with their finances when in hospital.

24. Access to Breathing Space should be considered as standard for every admission under the MHA and for carers who are nominated persons and especially for young carers who are nominated persons.

To what extent will the Draft Bill achieve its aims of reducing detention, avoiding detention in inappropriate settings and reducing the number of Community Treatment Orders?

25. We are supportive of the Bill’s aim to bring the Community Clinician to the forefront of CTO decision-making. We have heard from many experts by experience, that the lack of care in the community has often led them to be recalled to hospital often via physically forceful means, for example, via police officers.

26. CTOs in their current form must not continue. However, as a matter of principle and as recommended by the 2018 Independent Review, where implemented appropriately, they can be a good alternative to detention. It should be clearly set out in guidance that appropriate implementation must include:

a. Good liaison between clinicians in secure care, community NHS care and social care

b. Adequate funding to resource them

c. Mandating requirements on the service to be provided to the individual – rather than only mandating requirements on the individual

d. Ensuring any return to hospital would need community clinician approval

e. CTOs should end after 24 months, (although the Responsible Clinician should be able to make a new application)

f. As well as considering discharge, the Tribunal should, when refusing to discharge from the CTO, be able to order changes to the conditions of a CTO

27. If put in place, the effect of these changes to CTOs should be reviewed in no more than five years' time after their implementation to ensure outcomes improve.

How far will the Draft Bill allow patients to have greater say in their care, with access to appropriate support and avenues for appeal?

28. The 2018 Independent Review’s recommendation of the right to appeal to the Tribunal on treatment decisions has not been brought forward. The Act should include the Review’s recommendations as it provides a clear line of accountability for patients regarding treatment decisions when they may feel their wishes have been unfairly or wrongly overridden.

29. Additionally, the method proposed in the MHA White Paper (2021) has the added benefit of being swift and inexpensive to the system.

30. It would ensure clinical staff are more likely to engage with a patient on their wishes and preferences about treatment, and to engage in care planning conversations rather than allowing treatment decisions to escalate to the level of the tribunal. This has clear therapeutic benefits.

31. People with lived experience of being detained told us they support this change as it provides an additional process to express their views on their care.

32. This approach should be piloted, to evaluate how it works in practice. This could be with people who have a certified Advance Choice Document (ACD) for example.

33. Experts by experience have explicitly told us ACDs should be legally binding. (See paragraph 14.)

34. Rethink Mental Illness is keen to share learning and experience from various projects in which we have tested ACDs. We will be encouraging people to make authenticated ACDs, given the likelihood of authentication reducing clinical objection to their choices.

35. Care and Treatment Plans must be drafted in partnership between people, their doctors and any other appropriate person, as the current system allows for doctors to put in place restrictions that the person may not agree with. (For example, one client’s treatment plan included a ban on ‘junk food’.) Approach to Care and Treatment Plans could form a functional example in guidance on applying the principles of ‘Choice and Autonomy’ and ‘Person as an individual’.

36. We support the increased access to Independent Mental Health Advocates, including for involuntary patients and the move to opt-out advocacy.

37. We highlight the vital role advocates will play in this new Act, ensuring patients have greater say in their care and understand their rights. Ensuring funding this service should be a major focus before implementation.

What do you think of the proposed replacement of “nearest relative” with “nominated persons”? Do the proposals provide appropriate support for patients, families and nominated people?

38. We strongly support the replacement of “nearest relative” with “nominated person” which we have been calling for over many years. Experts by experience, carers and families told us they warmly welcome this.

39. The nominated person (NP) role is an important one and we have heard from carers that given this responsibility, the Bill should allow for more than one NP. This is particularly important for young carers, who need an extra person to support their loved one while they are trying to manage other parts of their lives likes school and university, and older carers, particularly parents, who often share responsibility of care for their loved one.

40. To be effective and sustain good wellbeing, NPs require support to undertake their role. Statutory guidance should mandate the providing of training, information and support to NPs

41. The 2018 Independent Review recommended offering the option to patients to choose which powers (between the new proposed powers and the old system) were given to their NP, on the grounds that some would not want their NP knowing the details of their care and treatment. We support this enhanced choice.

42. The option of permitting patients to choose what information about their care is disclosed to their carers, families, and NPs is reinstated, as recommended by the 2018 Independent Review. This could sit separately from the NP/INP system.

To what extent are the proposals to allow for conditional discharge that amounts to a deprivation of liberty workable and lawful?

43. With some remaining concerns, the proposals related to supervised discharge have been supported by some people with lived experience. What has been expressed is the need to spend less time in hospital. Such a change will allow people who have spent far too long in secure care to live in the community. We would like to highlight that for such a proposal to be successful, a new social care supervisor role would need to be developed. This role would allow for a specially trained person to oversee the person’s care in the community.

44. We would like ‘supervised discharge orders’ to be subjected to tribunal reviews every six months. The criteria for Supervised Discharge must be specific in order that it is only used for a limited group of people for whom it is appropriate.

What are your views on the proposed changes in the Draft Bill concerning those who encounter the Mental Health Act through the criminal justice system? Will they see a change in the number of people being treated in those settings?

45. The Bill presents a widening gap between the civil section and forensic section. The new detention criteria proposed for the civil section of the Bill must be applied to patients held under Part 3 to ensure that detention and treatment is necessary, of therapeutic benefit and there are more frequent reviews and appeals.

46. Many people with lived experience of Part 3, spoke about the lack of therapeutic benefit in their care. There should be alignment between grounds for discharge with the revised detention criteria and patients must be discharged (via Tribunal) where they no longer meet the revised criteria relevant to their detention.

47. The proposal for a 28-day limit for transfers between prisons and immigration centres and hospitals is welcomed. Although, we stress that prison is never appropriate for a person with severe mental illness and therefore must happen earlier. We acknowledge and welcome that a limit is being enshrined into legislation to prevent significant delays in transfers.

48. The remand process, court processes, and prison environment can all impact on mental health and often means conditions change rapidly, resulting in people with mental illnesses not being diverted earlier, or not having their mental illness identified.

49. The recommendation by the 2018 Independent Review for the creation of a new statutory and independent role to manage transfers from prisons and immigration removal centres must be adopted. Without this role, we believe prison services will continue to struggle to transfer people with severe mental illness within appropriate timeframes.

50. It is appropriate and welcome that the act ends prisons and police cells as ‘places of safety’. The 2018 Independent Review rightly recognised challenges due to a lack of beds. Commissioners need to urgently address bed shortages to ensure prisons and police cells are not used by default.

How the changes made by the Draft Bill will work in practice, particularly alongside other pieces of legislation including the Mental Capacity Act? Might there be unintended consequences and, if so, how should those risks be mitigated?

51. There will never be a neat line between the MCA and MHA short of fusion law itself. While Rethink Mental Illness does not hold a formal position on fusion as a desirable destination, we feel the ‘tests’ outlined by the 2018 Independent Review merit further work, engagement, and discussion.

52. The current interface between the MHA and MCA should remain, with clinical choice between the two frameworks as appropriate, and a formal requirement to base decision-making on the least restrictive option. We urge the DHSC and CQC to commit further resources to enhancing and embedding understanding of capacity at a clinical level, and to training clinicians on which legal framework may be more appropriate in specific circumstances.

53. Currently, understanding and implementation of the Mental Capacity Act in mental health settings is poor. The addition of mechanisms related to capacity into the MHA are a positive step, and the addition of ACDs, should help to enhance clinical understanding of capacity in a mental health context.

Are there any additions you would like to see to the Draft Bill?

54. Commissioned by Department for Health and Social Care (DHSC), we completed engagement sessions with people with lived experience on Remote Assessments. This enabled DHSC to develop a proposal for the appropriate use of video or phone by mental health professionals to examine or assess in relation to the MHA.

55. We understand the proposal sets out specific, limited circumstances in which Remote Assessments may be used and with safeguards, such as making clear remote assessments where deprivation of liberty is at risk (such as CTOs) would not be permitted where their use could risk missing potentially critical details such as body language.

56. We would encourage the committee to give serious consideration to DHSC’s proposal and to be aware it is based on appropriate engagement with people with lived experience.

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