No loss of safeguards for people with autism or learning disability taken ‘out’ of the Mental Health Act

No loss of safeguards

Whilst we wait for the draft mental health bill, I have a suggestion.

There are too many people with learning disabilities and/or autism detained in ‘assessment and treatment units’ (mental health hospitals), and they are there for far too long – some people are there for years (or even decades).

There is not enough support for an absolute ban on detention of people with learning disabilities and/or autism in mental health settings. However, the government looks set to ‘remove’ people with learning disabilities and autism from the scope of the Mental Health Act 1983, meaning that this law could not (usually) be used to detain them in hospital.

Lots of people hope that taking people with learning disabilities and/or autism ‘out’ of the Mental Health Act 1983 means that fewer will be detained in assessment and treatment units.

Unfortunately, this might not be true. Some people (including me) are worried about possible unintended consequences of this.

This is because if people are not ‘in scope’ of the Mental Health Act 1983, they can be deprived of their liberty under the Mental Capacity Act 2005 instead, under its ‘Deprivation of Liberty Safeguards’ or – in the future – the ‘Liberty Protection Safeguards’. This is because of complicated rules at the ‘interface’ between the two laws, which I explain here.

If people are deprived of their liberty under the Mental Capacity Act then it is much less likely that a court or tribunal will review their detention. Their ‘nearest relatives’ also lose powers to object to admission or seek their discharge.

This could even accidentally make it easier to deprive people of their liberty.

People will also lose independent reviews of medical treatment, rights to complain to the CQC, rights to after-care and other new safeguards and rights proposed by the government.

We need to campaign for equivalent rights and safeguards

If the government takes people with learning disabilities and/or autism out of the Mental Health Act 1983, we need to ensure there is no loss of rights or safeguards under the Mental Capacity Act’s deprivation of liberty frameworks.

What does this mean should be in the mental health bill?

For anyone who is deprived of their liberty in a ‘mental health establishment’ under the Mental Capacity Act’s provisions the new mental health bill should include:

• A legal duty to make a Care and Treatment Plan, including discharge planning.
• The hospital managers must automatically refer people to the Court of Protection after 6 months (or perhaps even sooner*) to review the basis for the detention and progress towards discharge at regular intervals. This should be under s21A/s21ZA to ensure legal aid is available. Earlier rights of review should also be available.
• The Court of Protection should also be given explicit powers to review mental health treatments under s21A/s21ZA (in line with plans to give the tribunal powers to review treatment, and to avoid loss of legal aid for this).
• The Court of Protection should be given equivalent powers to the tribunal to ‘direct services in the community’, if the tribunal is given such powers.
• People who are deprived of their liberty in mental health establishments under any legal framework should be able to complain to the CQC.
• People who are deprived of their liberty in mental health establishments under either legal framework should have rights to free aftercare.

In addition:

• People who are deprived of their liberty under the Mental Capacity Act 2005 should have an automatic referral to an Independent Mental Capacity Advocate and a review by a Best Interests Assessor (or an Approved Mental Capacity Professional).

There may well be other rights and safeguard I have forgotten to include (I’m sure you’ll let me know on Twitter or in the comments). I think our goal should be reducing mental health detention itself, but since this is the way we are headed, let’s campaign for no loss of safeguards.

*There was a curious report on the Queen’s Speech in the Independent that suggested that the government was considering requiring ‘a court order’ for any detention of people with learning disabilities and/or autism for mental health detention, implying the Court of Protection should be involved even prior to admission, which could – I think – be a potentially powerful safeguard, dependent on how muscular the judges proved to be on this and how effectively they were able to leverage alternative care plans in the community.

Update: 28 June 2022

The government has published the Draft Mental Health Bill including explanatory notes and impact assessment. You can read a summary of its main changes by Alex Ruck Keene here.

I will spare you the details here, but basically people with learning disabilities and autism can still be detained for assessment, for up to 28 days, under s2 MHA but no longer for longer periods for treatment, under s3 MHA, unless ‘they are suffering from a co-occurring mental disorder which is not learning disability or autism’ (explanatory notes). The Part III provisions which are about people who have ended up in hospital by way of the criminal justice system will still apply to people with learning disabilities and autism, on grounds that this is better than prison.

As I have explained in this post, this change does not mean that people with learning disabilities and autism cannot be detained in ‘psychiatric’ settings, often called Assessment and Treatment Units, it simply means that the MHA can no longer be used to authorise for many situations. Instead, people with autism and learning disabilities who are ‘removed’ from s3 MHA become eligible for detention under the Mental Capacity Act instead.

Importantly, the draft Bill includes no changes to the Mental Capacity Act to strengthen the safeguards for people detained in assessment and treatment units. This means, that unless amended to strengthen safeguards under the Mental Capacity Act, the Bill could substantially weaken systems of independent scrutiny and for challenging detention in psychiatric settings for people with learning disabilities and autism.

You can submit your thoughts on the draft Bill to the Joint Committee on Human Rights for its pre-legislative scrutiny here.