Mental Health Act – the latest

The Government has launched a White Paper proposing reforms to the Mental Health Act in England and Wales, and a court has made a ruling on virtual Mental Health Act assessments.

Mental Health Act White Paper

The Department of Health and Social Care has launched a White Paper detailing proposals to reform the Mental Health Act in England and Wales.

The White Paper builds on the recommendations made by Professor Sir Simon Wessely’s Independent Review of the Mental Health Act in 2018, which set out what needed to change in both law and practice to deliver a modern mental health service respecting the patient’s voice and empowering individuals to shape their own care and treatment.

The Government’s proposed reforms aim to:

  • tackle the racial disparities in mental health services
  • better meet the needs of people with learning disabilities and autism
  • ensure appropriate care for people with serious mental illness within the criminal justice system.

The government will consult on a number of proposed changes, including:

  • introducing statutory ‘advance choice documents’ to enable people to express their wishes and preferences on their care when they are well
  • implementing the right for an individual to choose a nominated person who is best placed to look after their interests under the act if they aren’t able to do so themselves
  • expanding the role of independent mental health advocates to offer a greater level of support and representation to every patient detained under the act
  • piloting culturally appropriate advocates so patients from all ethnic backgrounds can be better supported to voice their individual needs
  • ensuring mental illness is the reason for detention under the act, and that neither autism nor a learning disability are grounds for detention for treatment of themselves
  • improving access to community-based mental health support, including crisis care, to prevent avoidable detentions under the act.

We’re working to respond to the proposals in the White Paper, to reflect the views of clinicians and patients.

We’ll be consulting across the College to reflect members’ perspectives and to continue to push for adequate funding and workforce provision to allow the Government’s proposals to be implemented successfully.

Court ruling on virtual mental health act assessments 

In other Mental Health Act news, a Court judgement last week has immediate implications for the way that assessments under the MHA are conducted. The case relates to the potential use of "virtual" mechanisms to carry out assessments during the current pandemic. 

 The court has ruled that, with immediate effect, to meet the legal threshold for the section of the Act which refers to "personally examined", it requires in all cases the physical presence of the doctor(s) when carrying out the assessment. As well as MHA assessments for medical and AMHP purposes, the ruling also applies to assessments for detention in relation to guardianship.  

This contradicts the Legal guidance for mental health, disability and autism, and specialised commissioning services supporting people of all ages during the coronavirus pandemic issued by NHS England/Improvement in 2020. 

The relevant section of the NHS E/I guidance document, which pertained to the use of remote or video assessments in certain limited contexts, is being redacted for the time being whilst NHSE/I seek legal advice and they will be further updated in due course. 

 Although it is possible that the ruling may be appealed, you should make sure that you comply with this ruling from now on, rather than the guidance issued in 2020.

We’re seeking further clarification and advice on new guidance to reflect this judgement and will of course keep you updated on any further relevant developments.

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