Richard Jones, 'Response to MHA Review (4): Bureaucratic burdens' (14/1/19)
Article This article argues that the MHA Review's recommendations would lead to an unnecessary increase in bureaucracy.
Modern mental health law requires professionals to either refer to or to complete a bewildering variety of documents. As an example, the Code of Practice stipulates that no less than 56 policy and procedural documents should be put in place. If the recommendations of the Review are given legislative force, the bureaucratic burden placed on professionals will be increased substantially. In this post, I will focus on how the recommendations of the Review will result in application forms for detention becoming both complex and unwieldy.
Firstly, the Review recommends that a set of principles should be enshrined in the Act which "would provide the statutory basis for all actions taken under the Act". The Review states that in exercising any powers under this Act, a person must have regard to the following principles:
"(a) Choice and Autonomy: all practicable steps must be taken to:
i. support a person subject to this Act to express their will and preferences; ii. have particular regard to the person's will and preferences, even where an intervention in the absence of consent is expressly authorised by this Act; iii. promote the person's dignity, and accord them due respect, including respecting their social and caring relationships; and iv. take steps to ensure that the person understands their rights and entitlements whilst they are subject to the Act
(b) Least Restriction: The exercise of any power under this Act shall be done in the least restrictive and least invasive manner consistent with the purpose and principles of this Act.
(c) Therapeutic Benefit: care and treatment must be designed to meet the person's needs in a timely manner within a supportive, healing environment with a view to ending the need to be subject to coercive powers under this Act.
(d) The person as an Individual: care and treatment must be provided and commissioned in a manner that: i. respects and acknowledges the person's qualities, strengths, abilities, knowledge and past experience; and
ii. In particular, respects and acknowledges person's individual diversity including any protected characteristics under the Equality Act ".
The Review goes on to recommend that "all forms completed as part the MHA process (including assessments for detention and reports for tribunals) should require clinicians to demonstrate how they have considered the principles".
A requirement that forms used for the detention of patients should require clinicians to demonstrate how they have considered the principles is problematic in that:
- It is not clear whether this requirement would apply to AMHPs or to the recommending doctors or to both.
- Will patients be protected by the requirement? When professionals come to complete the forms a decision will have been taken to detain the patient and the principles will, in general terms, have been considered. It is highly unlikely that a requirement placed on the professionals to demonstrate on the forms how they have considered the principles would lead to a decision not to detain the patient.
- In most cases, demonstrating how the principles have been considered would be a time consuming and onerous task.
- The requirement will inevitably give rise to litigation with patients claiming that professionals did not adequately demonstrate that they considered the principles when reaching a decision to detain.
Secondly, the Review also recommends that:
"A patient's capacity to consent to their admission must always be assessed and recorded, including on the application form."
Given that the criteria for detention under the Act are not capacity based, it is difficult to determine the rationale for this recommendation. Who would have the responsibility for undertaking this assessment is not specified.
Finally, the Review proposes "that, when making an application for detention under the MHA, the AMHP must clearly state on the application form what specific harm they have identified, and how detention will reduce this, including why alternatives are not available or suitable".
When making these recommendations, the Review appears to have totally ignored the considerable pressure that is placed on professionals, often in very difficult circumstances, when undertaking MHA assessments, a pressure has been acknowledged by the High Court in a number of cases. For example, in one Court of Appeal case the court described a MHA assessment as a "situation which is fraught with emotion and difficulty". The requirement for mental health professionals to complete increasingly complex forms appears to be an inexorable trend which should be resisted. The maxim "if it is not written down it didn't happen" is beloved by regulators and now, it appears, also by the Review.