If the admission criteria is changed and Service Users have more opportunities to challenge, will services find that there will be a huge number of inpatients that will have to be discharged and some of them requiring high levels of support and quite suddenly?
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I heard in a different context that culture eats strategy for breakfast, so maybe we could say that “culture eats criteria for breakfast”! You’ve probably seen yourself that the tribunal’s report forms all ask a badly-worded question based on the dangerousness criterion – “If the patient was discharged from hospital, would they be likely to act in a manner dangerous to themselves or others?” – even in cases where that is not one of the relevant statutory criteria. The instinct of some report writers is to tick “Yes” even for the most harmless of patients instead of more accurately ticking “No”. The proposed changes for the s3 criteria are effectively just an extra risk criterion – “serious harm may be caused to the health or safety of the patient or of another person unless the patient receives medical treatment” – and the explicit inclusion of the “likelihood of the harm, and how soon it would occur” in the necessity criterion. Maybe if the clinical team or the tribunal want you to be or remain detained, it will be as easy to tick the “serious harm” box as the “dangerous” box. On the other hand, there is no material change to the criteria for criminal patients so it would look odd if the stricter criteria for civil patients were to make no difference in practice.
I try not to spend time thinking about Mental Health Bills until they become Acts so haven’t thought through all the proposed amendments – which also include a definition of appropriate medical treatment (“…reasonable prospect of alleviating, or preventing the worsening of, the disorder or one or more of its symptoms or manifestations, and … is appropriate…”) and of course the massive changes in relation to autism and learning disability, which again only apply to civil patients.
Detail of changed s3 criteria...
| Current wording | Proposed wording | Amendment |
|---|---|---|
| An application for admission for treatment may be made in respect of a patient on the grounds that— | An application for admission for treatment may be made in respect of a patient on the grounds that— | Unchanged |
| (a) he is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and | (a) he is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and | Unchanged |
| (b) … | (b) serious harm may be caused to the health or safety of the patient or of another person unless the patient receives medical treatment, | New criterion |
| (c) it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section; and | (c) it is necessary, given the nature, degree and likelihood of the harm, and how soon it would occur, for the patient to receive medical treatment, (d) the necessary treatment cannot be provided unless the patient is detained under this Act, and |
Changed wording |
| (d) appropriate medical treatment is available for him. | (e) appropriate medical treatment is available for the patient. | Unchanged |
The official answer, from DHSC, ‘Mental Health Act Draft Bill: Impact Assessment’ (27/6/22), seems to be that “[t]hese changes are expected to result in fewer and shorter MHA detentions” but that “[i]t has not been possible to quantify these prospective reductions due to the absence of evidence”.
New MHA detention criteria. The Government is proposing to amend the detention criteria of Section 3 of the MHA and elsewhere so that detention for treatment is only undertaken when treatment is available, which would benefit the individual, and which cannot be delivered without detention. The Government is also proposing to amend the detention criteria for Sections 2 and 3 of the Act, and elsewhere, so that, for someone to be detained, it must be demonstrated that serious harm may be caused to the health or safety of the patient or another person.
These changes are expected to result in fewer and shorter MHA detentions, all other things being equal, as a stronger and clearer detention criteria will mean that people are only detained when there is a clear justification for doing so and that they are discharged as soon as that justification ceases to be relevant. It has not been possible to quantify these prospective reductions due to the absence of evidence on how much detentions could be reduced or shortened following changes in detention criteria, so we are unable to estimate potential benefits in this IA.
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- Learning Disabilities and Autism. The proposed reforms, in conjunction with the NHS Long Term Plan’s commitments, aim to reduce reliance on specialist inpatient services for people with a learning disability and autistic people through development of appropriate care and support in the community. Evidence heard by the Joint Committee on Human Rights enquiry and reports made by the CQC have highlighted that the inpatient setting can be inappropriate for people with a learning disability and autistic people and that it can fail to meet their specific needs, leading to protracted admissions with little therapeutic input. For example, the inpatient setting can be particularly challenging for autistic people as it can fail to meet their sensory and communication needs. This can lead to a deterioration in their condition. The CQC’s thematic review states that sensory overload can result in severe distress, which can be displayed as challenging behaviour. In other words, even if an individual meets the detention criteria, it is possible that detention does not meet their specific needs. Inappropriate and/or non-therapeutic detentions of people with a learning disability and autistic people risk excessive use of restrictive practices and poor quality care. The Government’s proposals aim to limit the scope for detention of individuals with a learning disability and autistic people under the Act unless they have a co-occurring, treatable mental health condition, and to mitigate against inappropriate detentions by improving community alternatives to avoid needs escalating and prevent crises,. Where an individual has a co-occurring mental disorder that warrants treatment under the MHA, the Government’s proposals will mean that detention should offer a demonstrable therapeutic benefit and that it is for the shortest time possible.
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- The Independent Review of the MHA heard that those with a learning disability or autism (LDA) were at particular risk of not having their specific needs understood or taken into account in detention and treatment decisions. It also identified that people with a learning disability and autistic people are more likely to be detained within inpatient settings without treatment that provides therapeutic benefit.
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3 posts were split to a new topic: “Dangerousness” in tribunal reports