A number of the reform proposals that were set out in the White Paper have not been taken forward in the draft Bill, which looks much more ‘modest’ in its proposals.

Here we summarise what the proposed changes look like, with our thoughts as to likely impact.

What’s in?

• The draft Bill pushes ahead the plans to remove learning disabilities and autism from longer term (Part 2) detention and introduces obligations on the newly created ICBs in terms of service commissioning and maintaining ‘at risk registers’.
• Some amendments are introduced to the detention criteria although, again, these changes are initially limited to the civil (Part 2) provisions. These changes also apply to CTOs, which are subject to broader changes, including introducing a new ‘community clinician’ role.
• There are amendments to the Part 4 treatment provisions, including the necessary ‘tidying up’ to bring them in line with the MCA and requirements for care and treatment plans to be drawn up in accordance with regulations.
• The nearest relative seems finally to be on its way out, being replaced by the nominated person provisions with some additional changes to the role.
• From a forensic perspective, amendments include a 28 day time limit for transfer from prison and a ‘fix’ to the conundrum of the conditional discharge of service users who need to be deprived of their liberty to protect others.
• There are, perhaps surprisingly minor, amendments to s.117 aftercare provisions.
• IMHAs are extended to informal inpatients.

What’s not?

Key aspects which do not appear in the draft Bill include the proposal to have principles embedded within the Act and more modest changes than proposed in the White Paper in relation to the Tribunal role.

The proposals to extend the use of s.5(2) ‘holding powers’ to Emergency Departments also do not feature and one of the most commonly discussed issues, that of the future of Associate Hospital Managers, is also absent.

Some thoughts…

Learning disability and autism

Whilst the aim of keeping those with learning disabilities and autism out of hospital, particularly where there is a concern about service users being ‘stuck’ in hospital, is of course laudable, there are concerns as to whether the removal of learning disability and autism from s.3 is the right direction of travel. In reality, it seems likely that, until resource issues in relation to specialist community placements are resolved, this may result in some service users still remaining in hospital, since there is nowhere for them to be discharged to, but - since they will be excluded from the MHA - authorised under the MCA and the new LPS provisions instead. Given that the LPS is considerably ‘lighter touch’ in terms of safeguards, this could well be problematic. It seems likely that the Court of Protection will need to be frequently involved and court approval required for complex care plans. Whilst some may welcome this, in practical terms, this is likely to have a significant impact. There is also a concern that the different application of the Part 2 and Part 3 provisions will further complicate matters and may well give rise to unintended consequences. It is difficult to predict what practical effect the new obligations on ICBs and commissioners will have.

Tightened detention criteria

More broadly, the application of the tightened detention criteria may also have a relatively limited impact on the rate of detentions, particularly if current issues with bed availability remain. Again, the different criteria for Part 2 and Part 3 provisions (for initial detentions) may cause confusion in practice.

Treatment provisions

Whilst the amendments to the treatment provisions should ensure a more service user focused approach and restrict treatment against the service user’s capable wishes, they are likely to have considerable resource implications. In particular, the requirements for SOAD involvement will substantially increase (being required for medication at any time for any capable objecting service users, or service user who has previously made a valid advance refusal/LPA/Deputy refusal) and after 2 months (rather than 3) otherwise. ECT will also require a SOAD for s.62 urgent treatment applications where the service user is/has validly refused it. There will be a requirement for statutory care and treatment plans - though the content of these will be detailed in regulations.

Nearest relative/nominated person

The repeal of the nearest relative (NR) provisions has been long overdue. Finally these will be replaced by the new nominated person provisions, providing the service user with the right to nominate who they wish to carry out this important function and hopefully resolving some of the difficult legal and practical issues that the current NR provisions give rise to. Whilst the role of the nominated person also includes greater ‘rights’ than those enjoyed by the NR, it is interesting to note that arguably one of the key ‘powers’ enjoyed by the NR, the right to object and stop a s.3 application, has been removed. The right to be consulted and to object remains, but can be overridden by the AMHP on grounds of dangerousness (akin to the barring order). Whilst the removal of the necessity of the displacement application is a positive development, the White Paper proposed that the overriding of the nominated person's objection would be carried out by the Tribunal, which would have involved an independent review of the criteria and whether the application should proceed.

Conditional discharge

One of the other welcome ‘fixes’ is that provided to address the issue of conditional discharge where the service user needs to be deprived of their liberty in the community in order to protect others. There will be a new ‘supervised discharge’ provision which will enable the Tribunal to conditionally discharge with powers to order conditions that amount to a deprivation, provided this is necessary to protect others and is no less beneficial for the service user than remaining in hospital. There will thereafter be reviews by the Tribunal. Presumably this will be available for service users who lack capacity as well as those who have capacity (and so the MCA could not be used). This will apply retrospectively.

Other safeguards

Service user safeguards are tightened, with the introduction of IMHAs for informal patients and the provision of information about the complaints process being included in the s.132 information requirements. The use of the police station as a place of safety is removed.

What next?

The next step will be for the draft Bill to undergo detailed scrutiny by a pre-legislative parliamentary committee, which is due to start ‘at the earliest opportunity’.  After that, the government will draw up a final version of the Bill to be introduced to Parliament, which the government hopes can happen in the new year.  The Bill will then make its way through various readings/stages of amendment in the House of Commons and House of Lords, before finally becoming law.  There is no specific timeline yet for when that is likely to happen.

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:

• Advice on all aspects of the Mental Health Act, including the impact of legislative changes;
• Advice on drafting and implementing policies that are compliant with legislative change and will withstand regulatory scrutiny; 
• Representation at First Tier Tribunals;
• Advice on the interface between the Mental Capacity Act and Mental Health Act;
• Advice and representation in Court of Protection proceedings.

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.