Reforming the Mental Health Act: The King’s Fund’s response

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Over the past year we have all experienced restrictions to our liberty and freedom as a result of the government’s response to Covid-19. However, as the Independent Review of the Mental Health Act highlights, the restrictions that people with mental illness face as a consequence of being detained under the MHA are often excessive and contribute to people experiencing fear and discrimination.

Eighteen months and a pandemic later, the Department of Health and Social Care has published its response to that review and a White Paper and consultation on its planned reforms to the Mental Health Act. Some of the most notable changes to the Act include the introduction of a set of guiding principles aimed at redressing the balance of power between patients and professionals; changes in detention criteria including a limit to the scope for detention of people with learning disability or autism; and increased access to support and advocacy for those detained under the Act.

'The restrictions that people with mental illness face as a consequence of being detained under the MHA are often excessive and contribute to people experiencing fear and discrimination. '

Alongside these are many individual changes that pertain to specific aspects of the legislation. The King’s Fund’s own contribution has been a piece of research on clinical decision-making at the interface of the MHA and the Mental Capacity Act commissioned by the Department of Health and Social Care to inform the consultation response.

The scale of the proposed changes is significant and as the White Paper reflects – success is dependent on addressing a number of system-wide enablers as much as it is on the individual changes to legislation.

The first of those enablers is data. It may surprise many that in the context of a White Paper that aims to reduce detention rates, the government is unable to confirm how many people are subject to detention under the Mental Health Act. As the Fund has previously highlighted, this situation is longstanding and the result of both incomplete data and issues with data quality. Previous efforts have failed to identify a satisfactory solution, and it is hoped that the White Paper’s commitment to addressing this as part of a programme to develop a national baseline on use of the Act will make this a priority.

The second enabler is funding. There is an inherent risk that all conversations in mental health end up focusing on the money, but there is no hiding from the fact that implementation of the White Paper’s reforms comes with a hefty price-tag. As the associated impact assessment demonstrates, many of the reforms with defined resource requirements have already been costed, but for others those costs are yet to be established and in areas such as support for quality improvement, proposals are ‘subject to funding’. The NHS Long Term Plan commits to significant investment in mental health, but in the context of an economic recession, any pressure to scale back recommendations based on cost risks compromising on the ambition and delivery of the plans outlined in the White Paper.

'While mental health providers have made significant progress in reversing the decline in nursing staff, vacancy rates remain disproportionately high for mental health trusts'

The final and most notable enabler is workforce. Quality of care is itself a function of the people that deliver that care. While mental health providers have made significant progress in reversing the decline in nursing staff, vacancy rates remain disproportionately high for mental health trusts. Some of the proposed changes to legislation, such as addressing the availability of section 12 approved doctors and approved mental health professionals, have clear implications for staffing. However, many more of the proposed changes have indirect impacts, including increased workload and training requirements, which extend to the wider workforce. Existing commitments to expand the mental health workforce to support national plans are behind target and future commitments risk stretching this scarce resource even further. It is vital, therefore, that plans for implementation of the MHA reforms are supported by a realistic and deliverable workforce plan.

As we reflect on the impact Covid-19 has had on our lives, many of us will agree that the restrictions we have faced have often been difficult, but for the most part we have trusted that they are proportionate to the risks and benefits involved. Now, more so than ever, we owe it to people who find themselves detained under the MHA, to ensure that the restrictions they face are proportionate and applied with the dignity and respect that people deserve.

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