Our series covers:

• Assessment and admission
• Nominated Person
• Inpatient issues Part I - treatment
• Inpatient issues Part II - RCs, IMHAs, complaints, discharge
• Community issues Part I - CTOs
• Community issues Part II - conditional discharge, guardianship and aftercare

In this briefing, we will be focusing on the changes the Bill is proposing in relation to treatment.

Treatment - summary of key changes

One of the main changes introduced by the Bill will be to the treatment provisions set out in Part 4 of the Act. This is likely to have significant resource implications, particularly for the Responsible Clinicians (RCs) and the second opinion appointed doctors (SOADs).

We outline the key changes, and our thoughts on their potential impact, in more detail below.

Application of Part 4

What changes is the Bill proposing?

Whilst currently the treatment provisions in Part 4 apply generally to the 'mental disorder from which [P] is suffering', a new s.56(6) defines the 'relevant disorder' that Part 4 applies to. Effectively, this means for those detained under s.3, the treatment under Part 4 must be for their 'psychiatric disorder', as opposed to learning disability and/or autism. The amended definition of 'appropriate medical treatment' will apply to treatment decisions by RCs and SOADs (treatment which 'has a reasonable prospect of alleviating or preventing the worsening' of the disorder and/or its symptoms or manifestations).

Our thoughts

Whilst consistent with the exclusion of learning disability and autism from s.3, this could well give rise to some practical issues and arguments, as in the days prior to the 2007 changes, when there were categories of mental disorder and the courts had to grapple with the application of Part 4 in that context.

Clinical checklist

What changes is the Bill proposing?

The Bill introduces a new s.56(A) which will apply to all treatment given under Part 4 and requires the approved clinician in charge of treatment (who will usually be the Responsible Clinician, so will be referred to as RC here) to take certain steps before treating P under Part 4. Reminiscent of the MCA provisions, the RC will have to:

• Identify and evaluate any alternative forms of treatment

• Take reasonably practicable steps to assist and encourage P to participate in the decision-making process

• Consider relevant past and present wishes, feelings and beliefs

• Consider relevant views of those involved in P's care, any nominated person, any IMHA, any MCA donee or deputy, and anyone identified by P

• Consider any other reasonably relevant circumstances

• For those who lack capacity, consider any relevant wishes, feelings, views and beliefs RC thinks P would have, but for the lack of capacity

Our thoughts

Whilst, clearly, much of this information should be considered by the RC in any event when making treatment decisions, these requirements are broad and are likely to give rise to a number of issues and challenges in practice.

Section 63 treatment

What changes is the Bill proposing?

S.63 provides the legal authority for treatment under Part 4, where the specific treatment provisions do not apply (currently s.57, s.58 and s.58A). Whilst this will remain the case, the Bill amends s.63 to differentiate between s.2 admissions and s.3 admissions, so that an 'appropriate treatment' requirement is added for s.3 and the reference to 'relevant disorder' replaces the generic 'mental disorder'.

Our thoughts

This creates a more complex provision than the current s.63, with a risk, in some circumstances, of confusion/argument arising as to the potential impact of specifying that treatment falling within this section must be for the 'relevant disorder'.

SOAD provisions

What changes is the Bill proposing?

A new s.56B places the responsibility for requesting a SOAD, where required, on the RC, with the obligation on the regulatory authority to provide one 'as soon as reasonably practicable'.

There are a number of changes introduced in relation to the SOAD role, including when one is required and what the SOAD is required to certify, which are considered in more detail below under the relevant sections.

Where a SOAD certificate is required, the SOAD will have to confirm whether the clinical checklist has been followed by the RC.

Our thoughts

Bearing in mind the commonly heard issues in relation to delays in providing SOADs under the current provisions, clearly these changes will have significant resource implications and will simply not work without adequate funding.

Specific treatment provisions

What changes is the Bill proposing?

Currently, Part 4 provides for safeguards for 'psycho surgery' (s.57), medication after 3 months (s.58 - often referred to as the 3 month rule) and ECT (s.58A), with s.62 setting out emergency situations when those safeguards can be disapplied.

The Bill makes changes to these provisions, including:

• Medication - Currently the 3 month rule applies to all patients. The Bill introduces changes so that, for those with capacity who are refusing medication or for those who lack capacity but where there is a valid applicable advance refusal or donee/deputy refusal, then the new s.57A will apply. This means the patient cannot be treated (unless the emergency provisions apply) without both 'a compelling reason' (essentially where there is no alternative that has not also been refused) and a SOAD certificate. Otherwise, a certificate will be required after 2 months. This is subject to the amended emergency provisions in s.62.

• ECT - The Bill introduces changes to the SOAD certification process. These changes require the SOAD to confirm the clinical checklist has been completed. However, the responsibility for confirming that ECT does not conflict with any advance refusal or decision made by a donee or deputy moves to the RC. The emergency provisions change, so that s.62 no longer applies to ECT but s.62Z applies instead. This requires a SOAD certification where the patient is making a capable refusal, or, where the patient lacks capacity, if s/he has made an advance refusal or a decision to refuse has been made by a donee or deputy. However, there is provision for regulations to be drawn up to set out exemptions to the SOAD certificate requirement.

• Emergency provisions s.62 - Section 62 currently disapplies the safeguards for medication and ECT. As above, the amended s.62 will not apply to ECT - the new s.62Z will apply instead. For medication, s.62 will still apply in emergency circumstances, so that medication can be administered without a certificate. However, it is amended, so that the 'serious suffering' category will only apply where the patient lacks capacity.

Our thoughts

In addition to the implications for the already struggling SOAD service, these provisions will also have considerable resource implications.

There have been longstanding concerns over the 3 month rule, which these changes address. There will be a greater focus on capacity and the role of the MCA donee and deputy.

Care and treatment plans

What changes is the Bill proposing?

Statutory care and treatment plans are introduced, with responsibility on the RC to draw up a care and treatment plan for relevant detained patients. According to the Explanatory Memorandum, this is to ensure that patients have 'a clear and personalised strategy in place describing what is needed to progress them towards recovery'.

• The requirement will apply (s.130Z) to detained patients (other than the short-term holding powers), patients on CTOs and those subject to guardianship

• There will be a requirement to review in certain circumstances

• Further details will be set out in regulations, including the information they will need to contain, review, any exemptions and disclosure

• There will be a duty of Trusts/Hospital Managers to make arrangements for monitoring compliance

Our thoughts

Again, whilst much of the detail here is left to the regulations to specify, there will inevitably be resource implications, particularly for the RC.

What next?

Changes may still, of course, be made, as the Bill proceeds through the parliamentary process, and we will have to wait for the practical detail in regulations and guidance.

It may well be that these changes will not be implemented for some time in any event, bearing in mind the resource implications. However, there will be lots of work to do preparing for these changes and services should begin their strategic planning now.

We will continue to keep you updated on developments and, as the Bill moves towards implementation, can assist by advising on drafting and implementing policies and processes that are compliant with legislative change and will withstand regulatory scrutiny. We can also provide training on all aspects of the Mental Health Act and the impact of the proposed changes to ensure that staff understand the scale and implications of what is being proposed.