Read on Twitter
Missive from the dismal depths of maternity leave combined with lockdown, home-schooling and other mischief on the MH White Paper's proposals to amend the MCA/MHA interface. cc @Autism @mencap_charity @neilmcrowther @KeeleyMP @BnsJaneCampbell @LizBarkerLords @InclusionLondon
MASSIVE HEADLINE HEALTH WARNING: Taking people with learning disabilities or autism 'out of scope' of the MHA does not prevent them being detained in ATUs. They can still be detained under the MCA with far weaker safeguards, making it harder to get them out again.
I agree that people with learning disabilities or autism should not be detained in hospital. However amending the MHA to exclude these groups is not the best way to achieve it, and may be counter-productive.
This is because, to summarise a horribly complicated area of law, the MCA operates like an overflow for the MHA - groups who have been *deliberately* excluded from the MHA can be detained under the DoLS/LPS instead.
This includes:
1. people with learning disabilities (or autism if the proposal is accepted) who are exempted from the MHA (even if they ARE objecting);
2. (in the view of Jones) people who have been discharged by a mental health tribunal;
1. people with learning disabilities (or autism if the proposal is accepted) who are exempted from the MHA (even if they ARE objecting);
2. (in the view of Jones) people who have been discharged by a mental health tribunal;
3. (in the view of Fanning) people who do not meet the risk thresholds of the MHA (even if objecting)
4. People who are 'within scope' of the MHA but who aren't regarded by clinicians as objecting (although their families might be... as per Bournewood)
4. People who are 'within scope' of the MHA but who aren't regarded by clinicians as objecting (although their families might be... as per Bournewood)
Those detained under the MCA instead of the MHA lose the following: right of nearest relative to block admission or discharge the patient; automatic tribunal appeals; SOAD review of treatment; specialist CQC monitoring; free after-care.
You would also lose the new proposed safeguards under the white paper, including statutory discharge planning duties and powers of tribunal to direct treatment in the community.
To put it simply, if a family member wanted to stop their relative being banged up in an ATU, they'd have far more levers to pull under the MHA than the MCA. For the these populations, the MCA can do almost everything the MHA does, only wearing cuddlier looking outer-garments.
A person detained under the LPS (instead of the MHA) might not even have a specialist dependent professional (an AMCP) review their detention. The likelihood of an appeal is 0.5%. They could potentially go three years without a statutory review.
More generally, if we are worried about the stigma and coercive potential of the MHA and the conditions of detention (which I am), then we should be tackling this for *everyone* not splitting groups who might make common cause.
Furthermore, one way the white paper proposes to achieve its aim of reducing detentions under the MHA is to *expand* detentions under the MCA to include people deemed to pose a risk to others. This is a MASSIVE policy change that needs proper thinking through.
This potentially clashes with the 'best interests' principle, and needs urgent clarification. It would also - bizarrely - grant public interest powers of detention to local authorities and hospitals that aren't even granted to judges in the Court of Protection.
This 'public interest' power of detention under the MCA wouldn't only apply in hospital - it could affect new populations in the community. It risks becoming an alternative CTO-type mechanism without the safeguards.
(I will post a more detailed commentary and my consultation response when babies/homeschooling/lockdowns/life permits)
