I am posting this article on the Bill in case it is of interest to anyone:
7 posts were split to a new topic: The CQC’s MHA Reviewers
Is a PDF or DOC version available please?
Interesting read thank you for posting this, particularly your point about high profile homicide cases influencing changes to the bill. I had heard, purely through the grape vine, that the Valdo Calocane case caused a stir within the government and led to a serious watering down of potential changes. I wonder if the poster knows if there is any truth in this?
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The LinkedIn version is a pdf. Please let me have your email if you would like one sent to you direct. My email is medicolegal@email.com
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That’s right re Calocane. I had that from the horse’s mouth.
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I have no options for “Accessibility Mode.” (I have not signed in to LinkedIn.) The only option I have got is “Report this post”!
Many thanks. What an eye-opener. I have a keen interest in the MHA 2021 Bill and have been studying it along with the voluminous Hansard.
~The following is written with slight variations from the MLA convention, and created in Typora (free software) which is not AI.~
From the article (downloaded) and studied:
“Most damningly, the Department of Health and Social Care has either failed to see or to address the elephant in the room. When I started in practice, spending my time visiting the old asylums in the 1980s, the Mental Health Act 1983 was (with one tiny exception) the only mental health legislation under which an adult could be detained. Since 2009, it has been possible to detain people in hospitals and care homes under the Mental Capacity Act 2005 on the basis that this is in their ‘best interests’.“
The view that the Mental Capacity Act (MCA) 2005 is a significant matter, that the Mental Health Bill fails to address, is rooted in several key points:
- Shift in Detention Landscape: Highlighted is a dramatic shift in how individuals with mental health issues are detained. While the Mental Health Act (MHA) 1983 was once the primary legal basis for detention, the MCA 2005 has introduced a parallel system where individuals can be deprived of their liberty in hospitals and care homes based on their “best interests”. This has led to a situation where the number of detentions under the MCA far surpasses those under the MHA.
- Care Homes as the New Long-Stay Wards: The decreasing number of hospital beds and the corresponding increase in care home beds, suggests that care homes are now functioning as long-stay facilities for individuals with mental health issues, raising concerns about the appropriateness of such settings and the potential for extended detention outside of specialist psychiatric units.
- Interrelation and Complexity: The current system creates a complicated interplay between the MHA and MCA, leading to confusion and a lack of clarity regarding the legal basis for detention and the rights of individuals. They advocate for a single, fused statute to address this issue and streamline the legal framework for mental health detentions.
- Criticism of 2019 Legislation: This legislation has not been implemented, fails to address fundamental issues, and even “bakes in the illegality” of the current MCA scheme by allowing prolonged detention without a legal order.
Evaluation Based on Current Information about the MHA Bill 2021
Concerns about the MCA 2005 and its impact on mental health detentions remain largely relevant in the context of the MHA Bill 2021. The Bill, as it stands, focuses primarily on amending the MHA 1983 and does not directly address the issues related to the MCA.
- No MCA Reform: The MHA Bill 2021 does not include provisions to reform the MCA 2005 or address the author’s concerns about the increasing use of “best interests” detentions in care homes. This means that the complex interplay between the two acts and the potential for prolonged detention outside of psychiatric hospitals remain unaddressed.
- Missed Opportunity: In the article you call for a single, fused statute to streamline the legal framework for mental health detentions has not been heeded in the MHA Bill 2021. This represents a missed opportunity to clarify the legal basis for detention, simplify the system, and potentially reduce the number of detentions under the MCA.
- Continued Relevance of 2019 Criticism: Criticism of the 2019 legislation remains relevant as the MHA Bill 2021 does not address the issues raised. The 2019 legislation is still not in effect, and the concerns about its shortcomings and potential to perpetuate illegal detention practices remain valid. See more: Liberty Protection Safeguards: Implications of delay | Research in Practice
In conclusion, the your views on the MCA 2005 and the need for reform are well-founded and remain relevant in the context of the MHA Bill 2021. The Bill’s failure to address these issues represents a significant shortcoming and a missed opportunity to improve the legal framework for mental health detentions in the UK. The will and inertia of Parliament is supreme - in law.
My ‘war room’ is available and ready to assist - no charge or obligation.
Supplemental: Understanding Capacity under MHA 1983 vs MCA 2005 in the UK
It’s definitely possible to read the article on LinkedIn without an account there, but I’ve summarised it for MHLO:
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I read it! It’s a brilliant summary.
(2) The nearest relative’s removal is for essentially Kafkaesque equality reasons, and is is to be replaced by a ridiculously complicated and bureaucratic scheme which involves the citizen or a professional selecting a ‘nominated person’.
Drawing from the article, “The Bill removes the nearest relative provisions, for essentially Kafkaesque equality reasons. Because some people are unbefriended and have no nearest relative, therefore the system is discriminatory, therefore no one should benefit from this important protection.”
Love it to bits! 
Now we’re really talking! 
Everybody needs to get onboard now!
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