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 part we are considering the remaining key changes that will impact from an inpatient perspective (having already considered assessment and admission criteria, the impact of the Nominated Person and treatment issues).

Summary of key changes

The further key changes from an inpatient perspective include changes to the role of the Responsible Clinician, Tribunal changes, help and information for patients including IMHAs and complaints information, and advance choice documents. We outline the key changes, and our thoughts on their potential impact, in more detail below.

The Responsible Clinician (RC)

What changes is the Bill proposing?

The changes proposed by the Bill will substantially impact the role of the RC. Whilst some of these have been/will be covered in separate briefings, for ease of reference we have summarised key areas below:

• Nomination of the RC by the Hospital Managers
• Impact of the changes to the Part 4 treatment provisions on the RC
• Requirement on the RC to consult with another professional before discharging a patient from section
• Requirement for the RC to consult the Nominated Person (NP):
  • prior to renewal of section
  • prior to discharge onto a CTO (subject to reasonable practicability/unreasonable delay)
  • prior to transfer (where responsible for any transfer decision, subject to reasonable practicability/unreasonable delay)
• The RC will also have responsibility for overriding any NP objection to a CTO on the basis of the 'dangerousness criteria'
• For CTOs, responsibility for consulting the community consultant (if different to the RC)

Nomination - Currently the RC is simply defined (in s.34) as the Approved Clinician (AC) 'with overall responsibility' for the patient. This is amended, so that the RC becomes the AC nominated by the Trust/ Hospital Manager to have overall responsibility for the patient. The Explanatory Memorandum describes that this 'seeks simply to clarify the current position in relation to how a responsible clinician is assigned overall responsibility for a patient’s care and makes no practical change to the role of a responsible clinician or how they are appointed'. It is also intended to distinguish the RC from the new 'community clinician' for CTO purposes.

Discharge - Currently, under s.23, discharge from section can be carried out by the RC unilaterally. The newly introduced s.23(2A) requires the RC to consult with a person who has been professionally concerned with the patient's treatment, and who belongs to a different profession, before discharge. This applies to s.2, s.3 and non-restricted hospital orders. The Explanatory Memorandum states that '[t]his amendment seeks to formalise best practice and is one in a number of other measures that should be taken before an individual can be safely discharged from a hospital bed (as set out in guidance)'.

Our thoughts

Whilst the nomination of the RC is apparently not intended to make any 'practical changes' it will be important that all hospitals have clear nomination processes in place, which will also need to cover CTOs and psychiatric liaison arrangements, in order to avoid any, possibly unforeseen, complications arising.

The responsibility to consult, particularly in light of the independent investigation into the care and treatment provided to VC, will be key in addressing the concerns that decisions to discharge may be taken by the inpatient RC without full consideration of issues, in particular those raised by the community team. In practice, however, it is likely that the impact of this will very much depend on the guidance provided to RCs in the revised Code, such as when the consultee should be community-based.

Tribunal applications/referrals

What changes is the Bill proposing?

The Bill introduces changes to the Tribunal application and referral processes, with the aim of ensuring that patients have 'greater access to the Tribunal and those patients who lack the ability or initiative to make an application to the Tribunal can benefit from the safeguard of increased independent judicial scrutiny of their detention by the Tribunal on a more regular basis' (Explanatory Memorandum).

The changes include:

• Section 2 patients can make an application within the first 21 days (rather than 14 days) of the detention

• A referral must be made after 3 months where s.2 is extended due to a displacement application being made

• Section 3 application and referral periods are amended to reflect the new detention periods, with referrals at 3 months then 12 months

• There will be referrals for (Part 2) CTO patients at 6 months, 12 months and yearly thereafter. The automatic referral on revocation is removed, though a fresh period for calculation of referrals is triggered on revocation. Different periods will apply for some Part 3 CTO patients.

• New periods for applications for those who are conditionally discharged, with different provisions for those who are conditionally discharged with conditions that amount to a deprivation of their liberty (DoL)

• Referrals after 12 months for those conditionally discharged with DoL conditions

• Restricted patients must be referred after 12 months (reduced from 3 years)

• Changes are made to the Tribunal's powers when reviewing conditional discharges

Our thoughts

These are important changes in strengthening patient safeguards, which will clearly have substantial resource implications for Tribunals, patient representatives and the relevant detaining hospitals and clinical teams.

Help and information for patients

What changes is the Bill proposing?

• IMHAs

The right to an IMHA will be extended (England) to informal (voluntary) patients, with an 'opt out' system applying for qualifying detained patients, for whom there will be automatic IMHA referrals.

• Complaints

The s.132 responsibility on hospitals to provide information to detained patients is amended to include information on complaints.

• Conditionally discharged patients

S.132B sets out a duty on hospital managers to provide statutory information to conditionally discharged patients.

Our thoughts

These changes will hopefully increase access to IMHA services and ensure information about complaints is provided.

Advance Choice Documents

What changes is the Bill proposing?

Newly created sections 130M and 130N place responsibility on commissioners (ICBs, NHSE and LHBs in Wales) to take steps to facilitate the creation of Advance Choice Documents. This will enable those with capacity (or competence) to set out their wishes in relation to treatment, which may include advance refusals of treatment.

Our thoughts

Clearly this will be a useful way of ensuring that the individual's choices, wishes and feelings are set out to inform future care/treatment decisions. Care will need to be taken, however, to ensure that the effect and legal impact of these is properly understood, in particular in relation to any legally binding advance refusals of treatment.

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 some of these changes will not be implemented for some time (in particular the Tribunal provisions) due to resource constraints. 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.