1 Mental Health Act 1983 Dr Nicola Guy, Head of Mental Health Act Code Review .

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Mental Health Act 1983

Dr Nicola Guy, Head of Mental Health

Act Code Review

https://www.gov.uk/government/publications/code-of-practice-mental-health-act-1983

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Purpose Of the Presentation

• Background

• Why we have revised the Code of Practice

• What did people say

• Key changes

Review of the Mental Health Act 1983 Code of Practice

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Background


4 Review of the Mental Health Act 1983 Code of Practice

Background and context • New Code comes into effect in England from 1 April 2015. It does not alter

existing legislation.

• The Code of Practice was last published in 2008. Needed to ensure that the Code is up to date and relevant in today’s current health and care system, ensuring appropriate advice is given on the Act and that appropriate safeguards are in place for patients.

• Health Select Committee report on the post-legislative scrutiny of the 2007 Mental Health Act.

• Commitments in Transforming Care: a national response to Winterbourne View Hospital (2012) and Closing the Gap: priorities for essential change in mental health (2014)

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What we wanted to achieve • Patients, their families and carers are:

- clear about their rights and involved in decisions about care and treatment;

- treated with dignity and respect;

- can expect the best care and appropriate support; and

- know how to challenge if they don’t receive it

• Professionals are supported to improve their practice

• Improvements to care, treatment and outcomes and helping to achieve ‘parity’ with physical healthcare

• To reflect changes in legislation, case law, policy and professional practice


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View from a Service User – Jan Rogers

https://www.youtube.com/embed/cpsVJ1mhkyE


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Key challenges


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Key challenges in the review

• Improving care, treatment and outcomes• How can professionals be supported to improve the way

they provide care and support • Making the system work as effectively and efficiently as

possible • How best to ensure patients, their families and carers:

- are clear about their rights and involved in decisions about care and treatment- are treated with dignity and respect - can expect the best care and appropriate support; and - know how to challenge if they don’t receive it


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Engagement


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Engagement activity• Engagement with patients, their families & carers and

professionals seeking views on changes

• 10 week public consultation on the proposed changes, including events on inpatient wards and community settings

• Established a Steering Group and Expert Reference Group

• Specific engagements e.g. Yorkshire and London AMHPs conference, Royal College of Psychiatrists and College of Social Work event


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Engagement activity

• We received over 344 responses to the consultation, – 142 responses from organisations or groups– 162 from individuals predominantly from patients,

former patients, NHS managers and health professionals.

– Of the 162 responses from individuals, 141 provided information about their gender. Of these, 49% were men and 51% were women


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What did people say?• Need for clarity on what roles and responsibilities are, what

good looks like and what you can do if things go wrong

• There was broad agreement that the proposed guiding principles of the Code provided a sound framework, but some queries about status and specific wording

• Guidance about children, young people and other vulnerable groups was clearer than previously

• Need for stronger guidance in relationship to review and discharge and to support individuals with a learning disability


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What did people say?

• Emphasise the roles of family members, carers and advocates in processes and decisions

• Place more emphasis on the need for staff awareness and training

• Place more emphasis on the duty of commissioners and providers to ensure an appropriate number of beds and resources in order to implement the Code, and on the role of organisations such as CQC, scrutiny committees and Health and Wellbeing Boards in monitoring


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The Revised Code


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Aims

• To provide stronger protection for patients and clarify roles, rights and responsibilities. This includes:

• Involving the patient and where appropriate, their families and carers in discussions about the patient’s care at every stage

• Providing personalised care

• Minimizing the use of inappropriate blanket restrictions, restrictive interventions and the use of police cells as places of safety.


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The main changes include: • 5 new guiding principles

• New chapters on care planning, human rights, equality and health inequalities

• Consideration of when to use the Mental Health Act and when to use the Mental Capacity Act 2005 and Deprivation of Liberty Safeguards

• New section on if things go wrong - provides information on resources when there is poor quality of care or when safeguards of the Act are not applied


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Continued:

• New sections on physical health care, blanket restrictions, duties to support patients with dementia and immigration detainees

• Significantly updated chapters on the appropriate use of restrictive interventions, particularly seclusion and long-term segregation, police powers and places of safety

• Further guidance on how to support children and young

people, and those with a learning disability or autism


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Changes to the Code


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Global Changes to the Code

• Easier to read and navigate

• Plainer English

• Restructuring that the Code so that it follows an individual’s journey of care

• More cross -references

• We updated the Reference Guide and made materials available in alternative formats e.g. easy read


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Executive Summary and Introduction• New section introduced to summarise what is in each chapter

• Each cluster of chapters has a mini introduction to set in context and guide the reader

• Refreshed and /or introduced new annexes, cross references and index

• Clarified who Code applies to

• Clarified use of terms ‘must’, ‘should’ and ‘may/could/can’

• Information in relation to complaints, safeguarding and whistleblowing


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Chapter 1 - Guiding Principles

5 new Guiding Principles:

1.Least restrictive option and Maximising Independence

2.Empowerment and Involvement

3.Respect and Dignity

4.Purpose and Effectiveness

5.Efficiency and Equity

1.These principles focus on an individual patient’s recovery, better reflect the health and care system, and clarify the roles of all professionals in ensuring high quality and safe care for individuals subject to the Act.


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Chapter 2 - Mental disorder definition

• Additional guidance for professionals conducting mental health assessments of those with learning disabilities and/or autistic spectrum disorders

We ask them to:

• Record their reasons for concluding the individual’s conduct is abnormally aggressive or seriously irresponsible

• Why it relates to the person’s learning disability and is not attributable to other factors such as an unmet physical health, social or emotional need.


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Human rights, equality and health inequalities

• New chapter (3) and guidance throughout the Code

• Supports the new, overarching principles and equality and human rights issues throughout the Code.

• CCGs and providers should have Human Rights and Equality Policy

• New guidance on promoting good physical healthcare (see also chapter 24) and reducing health inequalities


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View from a Carer – Jeremy Coke-Smyth

https://www.youtube.com/embed/IFe0Aa4Ub64


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Chapter 4- Information for patients, nearest

relatives, carers and others• Throughout the Code we have strengthened the empowerment and involvement principle, to reflect feedback and policy in the Care Act 2014 on carers

We have included guidance:

• that patients are informed they may seek legal advice on their detention and CTO, and that they should be provided with assistance if required.

• additional guidance on early discussion with patients about what

information they are happy to share and what they would like kept private, and how to complain.


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Chapter 5 - The nearest relative• Throughout the Code, we make it clearer that families, carers

and ‘nearest relatives’ should be involved in decisions about care and treatment.

• We have strengthened the Code to reflect that professionals should involve the main carer if they are not the patient’s nearest relative.

• Clarified the particular decision in relation to which a person may lack capacity, i.e. the decision to make an application to displace their nearest relative

• Guidance on what to do if there is no nearest relative


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Chapter 6 - Independent Mental Health

Advocates• New guidance reminding local authorities of their statutory duty to commission IMHA services, including having due regard to diversity and equality issues as required by regulations under the Act and under the Equality Act 2010.

• New guidance on ensuring IMHAs have appropriate knowledge/skills to support with additional requirements (e.g. learning disability, sensory impairment, or do not speak English)

• New guidance making opt out for qualifying patients lacking capacity


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Chapter 7 - Attorneys and deputies

• No significant changes.

• Gives guidance on the effect of the Act on the powers of donees of lasting power of attorney (attorneys) and court appointed deputies under the Mental Capacity Act 2005 (MCA).

• Attorney and deputies can take decisions in relation to the welfare, property or affairs of a person subject to the Act that they are otherwise authorised to take, with two exceptions


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Chapter 8 - Privacy, safety and dignity

New guidance on:

•blanket restrictions, including locked door policies

Further guidance on:

•patient access to and use of internet


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Chapter 9 - Wishes expressed in advance

• No significant changes but more reference to this chapter in other chapters

• Wishes expressed in advance will be promoted via the accessibility and awareness project as a key way of involving patients in discussions about care and treatment when they are well


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Chapter 10 - Confidentiality and information

sharing• New guidance about consulting with organisation’s Caldicott

Guardian

• It is good practice for independent sector providers to have a Caldicott Guardian


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Chapter 11 - Visiting patients in hospital

• The revised Code emphasises the need for privacy for visits and phone calls

• Further guidance to support and enable families, carers and friends to visit

• Additional guidance advising professionals to consider implications for families and carers of placing patients long distances from home

• Chapter balances requirements of helping people visit patients with findings of Saville Review and need to protect patients


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Chapter 12 - The Tribunal

• No significant changes.

• Guidance on the role of the Tribunal and related duties on hospital managers and others.

• Hospital managers and the local authority have a duty to ensure that patients understand their rights to apply for a Tribunal hearing.

• Hospital managers have various duties to refer patients to the Tribunal.


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Chapter 13 - Mental capacity and

deprivation of liberty• New chapter to explain interface between MHA and Mental Capacity Act 2005 (MCA) at point of admission

• Guidance on use of when the Mental Health Act and the MCA can be used, including when they may be used concurrently

• Who is ineligible for a deprivation of liberty authorisation under the MCA

• Case studies and flowcharts to aid decision-making


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Chapter 14 - Applications for detention in

hospital •Additional guidance has been added, in particular

a) commissioning services under the Act, and reference to the s140 duty on CCGs to notify local authorities of arrangements for urgent admissions and admissions of children and young people

b) where to locate a patient

c) Support for immigration detainees and people with dementia


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Chapter 15 - Emergency applications for

detention• New guidance that, if an AMHP makes an application for

detention, the nearest relative should be informed at the same time, or within a reasonable time afterwards, unless the patient requests otherwise

• We have included factors which should be considered in deciding whether to inform the nearest relative against the patient’s wishes.


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Chapter 16 - Police powers and places of safety

• Findings of the review of the s135 and s136 legislation.

• Numerous clarifications for police officers including the relevance of PACE Code of Practice C

• Clarification of the roles of the AMHP and doctor who accompanies a police constable executing a warrant issued under s135 (1).

• Clarifications for the arrangements AMHPs should have in place when patients are detained far from home


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Chapter 16 continued

• Provides a greater focus on identifying a place of safety before executing a warrant; ensuring an AMHP contributes to the assessment, and reducing the use of police stations as a place of safety

• Detention in a police station under section 136 should not exceed a maximum period of 24 hours.

• Police stations should not to be used for u18s, 136 suites attached to an adult ward: may be used for an under 18

• Local policies on use of police powers and places of safety


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Chapter 17 - Transport of patients

• New footnote referring to the national protocol under the Crisis Care Concordat, ambulance trusts in England agreed that where people are detained under section 136, they would aim to respond within 30 minutes.

• Give good practice guidance that patients should be informed as soon as possible of the reasons for any planned transfers, and supported to discuss a planned transfer with family, friends or carers

• Provide that commissioners should consider what assistance can be given as part of the care package to support family or friends to visit patients in out of area placements, particularly for patients under 18


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Chapter 18 - Holding powers• There are no significant changes to this chapter

• Paragraph 18.2 to add that decision makers should always consider whether a less restrictive alternative to detention is available. This aligns with the least restrictive option and maximising independence guiding principle.

• In the Transfer to other hospitals section, we have clarified the wording regarding a patient’s capacity (or lack of capacity) to consent to a transfer to another hospital.


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Chapter 19 - Children and young people

under the age of 18• We have changed the term ‘zone of parental control’ to ‘scope of parental responsibility’.

• Interface with the Children Acts, MCA and DoLS (for young people), and assessing competence and capacity.

• Police cells should not be used as a place of safety for under 18s unless there are exceptional circumstances which make this course of action absolutely necessary and this should be reflected clearly in the local policy for section 136

• Updated guidance on consent of a person with parental responsibility as it relates to deprivation of liberty.


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Chapter 20 - People with learning disabilities or autistic spectrum

conditions• This chapter has been updated to reflect current terminology and

practice, and address some major concerns raised by practices at Winterbourne View.

• Strengthening the code to recognise that ‘hospitals are not homes’ that the least restrictive way of achieving the proposed assessment or treatment must be identified

• New requirements that professionals record on the relevant forms their reasons for coming to the conclusion that the individual’s conduct is abnormally aggressive or seriously irresponsible


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Chapter 20 continued:

• Placing greater emphasis on the helpful role that can be played by families and friends

• Clarifying which parts of the chapter referred to learning disability only, to autism only, and to both learning disability and autism.


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Chapter 21 - People with personality disorders

• We have not made any significant changes

• This chapter has been updated to reflect the development of services which can provide appropriate treatment for these disorders.


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Chapter 22 - Patients concerned with criminal proceedings

• Additional guidance in relation to transporting part 3 patients, including to and from court and urgent hospital transfers, and in relation to sections 47/49 and 48/49, including supporting immigration detainees .

• Further guidance on conditional discharge of restricted part 3 patients, including those convicted of very serious crimes.

• New section on multi-agency protection arrangements (MAPPA) to clarify the role of health services in assessing and managing the risk of MAPPA eligible part 3 patients.

• References to restricted patients grouped together and cross-referencing improved


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Chapter 23 - The appropriate medical

treatment test• In response to comments from the CQC, we have further clarified guidance on appropriate medical treatment and availability

• This chapter provides guidance on the application of the appropriate medical treatment test and the criteria for detention or a community treatment order (CTO) under the Act.

• It includes guidance on appropriate treatment for people with dementia.


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Chapter 24 - Medical treatment

• Amended to refer to part 4A consent certificates (Form CTO 12), introduced by regulations since the Code was published.

• Further guidance about initial three month period during which medication for mental disorder can be given without consent/certification.

• New Guidance on promoting good physical healthcare, diet, nutrition and physical activity and reducing impact of co-morbidities


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Chapter 25 - Treatments subject to special

rules and procedures• Amended to refer to part 4A consent certificates (Form CTO

12) in response to comments from the CQC and Law Society and to reflect changes in regulations.

• Further guidance about statutory consultees (the people whom a SOAD must consult before issuing certificates approving treatment).

• Clarification of the circumstances in which a certificate authorising treatment issued by an approved clinician under section 58 or section 58A will cease to authorise treatment


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View from Maggie Atkinson – Service

User


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Chapter 26 - Safe and therapeutic responses

to disturbed behaviour• This chapter reinforces and complements the new DH

guidance Positive and Proactive Care: reducing the need for restrictive interventions (published April 2014).

• It provides additional information on the use of restrictive interventions for patients receiving treatment for a mental disorder in a hospital and who are liable to present with behavioural disturbances, regardless of their age and whether or not they are detained under the Act

• Additional guidance on the appropriate environment for long term segregation, and guidance on when the procedure for seclusion should commence within long term seclusion.


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• Additional paragraphs introduced on security measures in response to stakeholder comments regarding security needs and security measures.

• Amendments have been made to ensure the greater involvement of IMHAs in developing positive behaviour support plans including consultation prior to the planned use of mechanical restraint, involvement in seclusion and long term segregation reviews.

• Further clarity is given on the nature of restrictive intervention reduction programmes. It is complemented by the fuller guidance in Positive and Proactive Care.

• Revisions of terminology and phraseology to improve clarity.


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Chapter 27 - Leave of absence

•Clarification that s17 leave should normally be of short duration

•Further guidance on leave for Part 3 restricted patients, escorted leave to Northern Ireland and the inclusion of a photograph in a patient’s notes to help identify the patient if necessary.

•Guidance on differences when considering leave of absence for restricted patients have been developed and agreed with MoJ.


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Chapter 28 - Absence without leave

• No significant changes

• Provides guidance on action to be taken when patients are absent without leave (AWOL) or have otherwise absconded from legal custody under the Act, including on when patients are to be considered to be AWOL.

• Hospital managers should have policies in place outlining actions necessary in this eventuality and guidance is provided about the matters that should be covered by such policies.


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Chapter 29 - Community Treatment Orders

• Clarification inserted to underline that the conditions of a CTO must not deprive the patient of their liberty.

• Reiterates point made in chapter 4 that written reasons for revocation of CTO should be given to patient and (where appropriate) their nearest relative

• Hospital managers should notify the patient and (where appropriate) their nearest relative when they have referred the patient’s case to the Tribunal


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Chapter 30 – Guardianship


• This chapter provides guidance on:

- purpose of guardianship,

- assessing a patient for guardianship, - - responsibilities of local authorities, and

- components of effective guardianship.


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Chapter 31 - Guardianship, leave of absence or CTO


• Reflect accurate terminology - ‘DoL order’ changed to ‘Court of Protection order’.

• Clarified guidance on whether a CTO or leave of absence should be used, including to make decisions more accountable and transparent and to discourage inappropriate use of long-term section 17 leave


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Chapter 32 - Detention and CTO, renewal,

extension and discharge• Clarifies that the responsible clinician (RC) must make the

decision on renewal on the basis of clinical factors only.

• Make it clearer that reviews must take place and ‘de facto’ detention not occur

• New guidance on documenting decisions and sharing with patients and as appropriate carers and nearest relative


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New guidance: •Responsible clinicians should ensure that before renewing the patient’s detention the second professional is given enough notice to be able to interview or examine the patient if appropriate.

•Wider multidisciplinary team should be included when making decisions about discharge, extending the period of a CTO or extending s17 leave.

•Hospital managers should ensure that they have systems in place or notices and discharge orders served on the hospital to be considered without delay by hospital managers or their authorised officers


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Chapter 33 - After-care

• This new chapter updates the Code to reflect the changes in the Care Act 2014 and stakeholder views about better care planning and after-care. It brings together information about care planning previously in separate chapters.

• References to Care Act guidance included.

• New guidance that after-care services may be reinstated if it becomes obvious that they have been withdrawn prematurely, e.g., where a patient’s mental condition begins to deteriorate immediately after services are withdrawn.


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Chapter 33 - continued

• New definition of mental health after-care

• Choice of accommodation and top-up payments

• After-care remains free of charge

• People wanted much more detailed info about how MHA aftercare under S117 of MHA and S75 Care Act work together


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Chapter 33 - continued

This includes:

•Under the Care Act every mental health patient and carer has a right to a needs assessment and a care and support or support plan (though qualifying patients may then get services under section 117)

•There is nothing in the Care Act that excludes mentally ill people from any of its provisions which is good news for those who have not been detained under a section that qualifies them for section 117

•No one has to accept section 117 services, a few people who qualify see them as discriminatory and may prefer to opt for services provided under the Care Act)


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Chapter 34 - Care Programme Approach

• This new chapter updates the Code to reflect the changes in the Care Act 2014 and stakeholder views about better care planning and after-care

• Additional guidance that professionals with specialist expertise should be involved in planning for people with autistic spectrum disorder or learning disabilities.

• CPA chapter highlights importance of multi-agency care planning and delivery in keeping patients out of hospital

• The Welsh Government expects to revise the Welsh Mental Health Act Code of Practice in 2015.


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Chapter 35 - Receipt and scrutiny of documents


• New guidance that the patient should be informed of their discharge by hospital managers under section 23 both orally and in writing, and in an accessible format for the patient


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Chapter 36 - Allocating or changing a

responsible clinician• No significant changes

• New point that, if the patient requests a change in RC, their reasons should be established to inform an appropriate response


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Chapter 37 Functions of Hospital Managers• Revised guidance advising on communication of information

relating to part 3 patients who have committed sexual or violent crimes.

• New guidance that hospital mangers should obtain a copy of the AMHP report.

• Further information about giving patients notice of decisions to withhold their post and their right to ask the CQC to review such decisions.


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Chapter 38 - Hospital Managers’ power of discharge• Changes seek to increase transparency, accountability and scrutiny

and, as appropriate, involvement of carers

• Further guidance about involving the patient in the hospital managers’ hearing, sharing the formal record of the decision and reasons with the patient, and offering patients an opportunity to discuss the hearing.

• Additional guidance on supporting individuals with communication difficulties or limited capacity and the skills/experience of hospital managers’ panel members

• Further guidance on process for contested or uncontested cases

• Guidance on what to do if ‘de facto’ detention occurs


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Chapter 39 - Conflicts of interest

• New guidance that it is good practice for recommendations to be from doctors from a different organisation/ trust site

• New guidance stating that providers in close proximity may create and maintain shared list of second recommendation doctors.

• By working together providers should ensure that safeguards at admission are enhanced and also that there is no untimely delay or impact on the patient.


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Chapter 40 - Support for Victims

• Clarification of the operation of the Victim Contact Scheme, especially in relation to non-statutory victims

• Clarification on support for victims of unrestricted patients

• Additional guidance to support victims who are also family, carers or friends


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Code of Practice 2015 is available at:

https://www.gov.uk/government/publications/code-of-practice-mental-health-act-1983

Hard copies available to order from the Government Stationary Office:

http://www.tsoshop.co.uk/bookstore.asp?FO=1160007&DI=642031

Reference Guide is available at: www.gov.uk/government/publications/reference-guide-to-the-mental-health-act-1983

Supporting documentation, is available at:

https://www.gov.uk/government/consultations/changes-to-mental-health-act-1983-code-of-practice


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No voice unheard, no right ignoredPlease also see the link below for the consultation No voice unheard, no right ignored

The document seeks to explores views on a number of issues related to supporting people with learning disability, autism and mental health conditions.

This includes some relating to the Mental Health Act which were raised during the recent consultation on the revised Mental Health Act Code of Practice. The consultation started on 6 March and ends on the 29 May 2015:

https://www.gov.uk/government/consultations/strengthening-rights-for-people-with-learning-disabilities


1 Mental Health Act 1983 Dr Nicola Guy, Head of Mental Health Act Code Review .

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