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Published 26 July 2021
The government has now published its response to the consultation it ran earlier this year on its White Paper proposals for reform of the Mental Health Act.
Which of the reform proposals are being taken forward to the next stage - i.e. possible inclusion in draft legislation - and which have fallen by the wayside?
We know that the government is dropping proposals aimed at clarifying the dividing line between the Mental Health Act and the Mental Capacity Act based on whether or not the person is objecting and that it definitely plans to take forward proposals such as tightening the statutory criteria for detention, introducing ‘advance choice’ documents and replacing the ‘nearest relative’ with a nominated person. However, the position is less clear for a number of other proposals which the government says it will “continue to consider”.
We look at the some of the headlines and what to expect next.
What’s being dropped from the reform plans?
There is only one element of the proposed MHA reforms that the government says it is definitely not taking forward (for the time being, anyway), but it is an important one. It relates to the interface between the Mental Health Act and the Mental Capacity Act and, specifically, the question of the appropriate legal framework (either MHA detention or Deprivation of Liberty Safeguards/DOLS) for someone who has a mental disorder, lacks the relevant capacity and is not objecting to detention or treatment. The White Paper set out plans for a clearer dividing line between the two frameworks, based on whether or not the patient is objecting to detention or treatment - i.e. MHA if they are objecting, and DOLS (or Liberty Protection Safeguards, as they will become) if they are not.
We are told that the consultation responses showed “no significant support” for this proposal, with concerns focusing on the difficulties in practice of assessing whether or not someone is objecting. Accordingly, “In the light of feedback received, we do not intend to take forward reform of the interface…at this time”. The government says it plans to review this once the forthcoming Liberty Protection Safeguards are embedded.
What’s being taken forward?
The reform proposals that appear to have ‘made the cut’ for moving forward to the Bill stage include:
Jury still out?
There were also a number of proposals which received more of a mixed response from those who responded to the consultation. Whilst the government says it is still committed to taking many of these proposals forward, it plans to further consider the detail and practicalities of them ahead of the Bill stage.
The government will now continue work on the development of draft legislation to bring about the proposed reforms.
In terms of timing, we are told that a Mental Health Bill will be brought forward ‘when parliamentary time allows’. The Bill will then start on its legislative journey through Parliament, during which it is likely to undergo further changes.
We are therefore likely to be some considerable way off these proposals becoming a reality, but at least we are now another step closer.
How we can help
Our national team of mental health and mental capacity specialists have extensive experience in advising health and social care providers - both in the NHS and the independent sector - in relation to all aspects of the law in this area, including:
We also provide training on all aspects of the Mental Health Act and Mental Capacity Act, including induction and refresher courses for s.12 Approved Clinicians.
+44 (0)191 404 4045
+44 (0)191 404 4046
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