Reforms to the Mental Health Act (MHA) must not hamper people’s liberty, must respect patient autonomy and ensure detention has a therapeutic benefit, solicitors’ leaders have warned ministers.
Law Society of England and Wales president I. Stephanie Boyce said: “We welcome efforts made by the government to tackle such a complicated area of the law. However, it must ensure the system works for those it is trying to help.
“Therapeutic treatment should facilitate the shortest possible detention and early discharge home for those detained under the MHA, whether they pose a risk to themselves or to others.
“However, the White Paper proposes arbitrary distinctions between patients who have capacity and those who lack capacity and those who are and are not in the criminal justice system. This sets a dangerous precedent for different ‘classes’ of people within the same system of mental health services.”
Access to justice and the rule of law
It is vitally important that people who are deprived of their liberty under the MHA can access the courts to challenge the lawfulness of a decision to detain them.
I. Stephanie Boyce added: “A person who lacks capacity to make key decisions for themselves deserves greater safeguards to ensure their autonomy is respected, and they are supported to participate in and challenge decisions, and access justice on an equal basis to the wider population. However, the proposals could result in fewer safeguards for people with impaired mental capacity.
“As people who lack capacity to apply to the Mental Health Tribunal can currently wait up to three years for any judicial oversight, we recommend that the proposal for more frequent automatic referrals to the tribunals is prioritised for such patients as a matter of urgency and ahead of any change in the law.
“There should be no difference between the right of a person with capacity and a patient who lacks capacity to access justice, nor should anyone detained under the MHA within the criminal justice system be denied access to justice on the same grounds as others detained under the MHA.
“Meanwhile, the proposal to change how the legislation applies to people with learning disabilities and autistic people may have limited practical impact by itself.
“What is vital is that people with learning disabilities and autism do not simply find themselves detained in hospital under different, and potentially inappropriate, legal frameworks. Rather, sufficient community-based alternatives, designed to meet people’s needs will need to be commissioned to ensure the much-needed reforms are successful.
“When the state intervenes in a person’s freedom, for reasons related to their mental health, fundamental safeguards are essential to ensure that such interference is necessary and proportionate.
“Whilst many of the White Paper’s proposals are welcome, these must be carefully thought through and sufficiently backed up by resources to be effective in practice.”