Inpatient Mental Health Care for People with Learning Disabilities and Autism
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28/05/2024
Proposed Reforms: Inpatient Mental Health Care for People with Learning Disabilities and Autism.
Lauren Gardner explores the government’s stance on the key issues relating to inpatient mental health care for people with learning disabilities and autism.
According to NHS England, over 2,000 people with autism or learning disabilities are currently detained in psychiatric facilities in England. The NHS long-term plan, initiated in 2019, aimed to reduce the number of inpatients with learning disabilities and autism by 50%, to no more than 1,445 inpatients, by March 2024 as compared to 2015 levels. Not only has the government missed that target by 600 people – more than 40% – but the charity MENCAP has predicted that if the current rate continues, this target will not be reached until 2030.
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Often, inpatient psychiatric facilities are not the right environment for these vulnerable people. Many individuals end up in mental health hospitals due to inadequate community support systems. Then, once admitted, individuals can remain ‘sectioned’ for extended periods in settings that do not meet their needs, facing issues like excessive medication use, unsuitable restraint methods, and seclusion. This can lead to enduring psychological harm that could be avoided with appropriate community-based care options.
The government is aware of the problem. The draft Mental Health Bill, published in June 2022, aimed to modernise the Mental Health Act 1983 and included consideration of reform in relation to inpatient mental health care for people with learning disabilities and autism. A joint committee from both Houses of Parliament was formed to review the draft bill and the committee’s final report, which included 55 recommendations, was released in January 2023. On 21 March 2024, the government published its response to the committee’s findings. This article sets out a summary of that response as it relates to inpatient care for those with learning disabilities or autism, which can be broadly identified as:
- Exclusion of learning disabilities and autism from the power to detain under Section 3 of the Mental Health Act;
- Changing the time limits of detention;
- Strengthening the responsibilities and support provided by other professionals;
- Enhancements for diagnosis, care, and treatment for those in the prison system;
- Considerations to be paid to the reasonable adjustments flag.
1. Exclusion of learning disabilities and autism from the power to detain under Section 3 of the Mental Health Act (MHA)
At present, a diagnosed learning disability can only be relied on to justify detention if it is associated with abnormally aggressive or seriously irresponsible conduct. The draft bill removes learning disability and autism, unless there is a co-occurring mental disorder, as conditions for which an individual could be detained for treatment under Section 3. On this, a number of recommendations were made:
a) Implementing a staged approach to ensure proper investment in community services
Recommendation: The committee recommended that a “staged approach” was needed in order to test whether, with proper investment, community services can effectively deal with this group of people in the community. It felt that the changes are likely to improve outcomes in the long term but, if implemented too soon or without the appropriate alternatives in place, it could prove counterproductive.
Government response: The government agreed that there would need to be an appropriate level and range of community support before removing the power to detain people with a learning disability or autism under Section 3. It stated its intention to publish a delivery plan when the bill enters Parliament.
b) Review of the ‘Building the Right Support’ action plan to better support people with learning disabilities and autism.
Recommendation: The Joint Committee recommended that the government review the “Building the Right Support” action plan which would identify necessary milestones to support individuals with learning disabilities and autism in community settings generally, but particularly those who might have previously been detained under Section 3. This review should involve all relevant stakeholders, including service providers and users, and should be completed before removing learning disabilities and autism as conditions justifying detention under Section 3.
Government Response: The government agreed with the necessity of ensuring adequate community support systems are in place before implementing these parts of the bill. They committed to detailing the steps and milestones for these reforms alongside the legislative process of the draft bill. Insights from the “Building the Right Support” action plan and feedback from individuals using mental health services will guide the implementation of these reforms.
c) Monitoring outcomes for individuals with learning disabilities and autism who are no longer eligible for detention under Section 3
Recommendation: The committee raised concerns that this proposal would remove an important safeguard for those with learning disabilities and autism, leading to them being detained under the Mental Capacity Act or dealt with under criminal law. The committee therefore recommended that the government should monitor the outcomes for those with learning disabilities and autism who are no longer eligible for detention under Section 3, particularly those in long-term segregation.
Government Response: The government acknowledged the importance of monitoring the effects of changing detention criteria. They highlighted ongoing data collection efforts and announced plans to commission research to evaluate the early impacts of the reforms. Additionally, integrated care boards (ICBs) will be required to maintain registers of individuals at risk of detention, aiding in the monitoring and management of outcomes for these groups.
d) Implementing safeguards for those who are detained under part III
Recommendation: In light of the proposed changes to Section 3, the committee stressed the need for safeguards to prevent the inappropriate use of part III of the MHA for detaining individuals with learning disabilities or autism, particularly if these conditions are removed as grounds for detention under part II but remain under part III.
Government Response: The government committed to improving support and reducing the need for inpatient care for this group, not only within the general community but also in the context of the criminal justice system. This involves national funding for community infrastructure and establishing risk registers to manage and reduce crisis situations that might lead to detention under part II. The potential need for additional non-legislative safeguards to prevent inappropriate detentions under part III was also acknowledged.
2. Changing the time limits of detention
Currently, Section 2 of the MHA allows patients to be kept in hospital for up to 28 days to allow for medical assessment and/or treatment. The draft bill does not change this time limit.
Recommendation: The committee recommended allowing the extension of detention beyond the 28-day limit set by section 2 of the MHA in exceptional cases, with authorisation from a specialist tribunal knowledgeable about learning disabilities or autism. Conditions constituting ‘exceptional circumstances’ should be defined in the code of practice.
Government Response: The government expressed concerns that this recommendation might create an alternative route to longer detentions, which could be detrimental to patients. Instead, they proposed focusing on timely assessments and improving training for clinicians to avoid prolonged detentions, alongside enhancing community support to better understand and meet individuals’ needs before detention becomes necessary.
3. Strengthening the responsibilities and support provided by other professionals
The draft bill implements a number of changes to the responsibilities placed on other professional bodies which are involved in caring for or being accountable for the detention of a person. The recommendations considered were:
a) Giving greater weight to the recommendations in care (education) and treatment review reports and reducing the time between them
Recommendation: The committee considered that the government should strengthen the wording of the duty for ICBs and local authorities, which currently only requires that they ‘have regard to’ recommendations in the care (education) and treatment review (CETR) reports, to ensure that the outcome of each review is actioned effectively. This could be done either by requiring that ICBs and local authorities to follow the recommendations in the reports, or by placing an additional requirement that they must provide a ‘good reason’ for not following recommendations in the reports.
The committee further felt that the maximum time period between CETRs is too long, especially when recognising the detrimental effects that inpatient environments can have on people with learning disabilities and autistic people, particularly those who are under 18. The maximum time period between reviews should be shortened from 12 to 6 months.
Government response: The government welcomed the committee’s recommendation and agreed that it is important that recommendations from CETR’s are followed unless there is a good reason not to. Further, the government recognised the committee’s concern that some ICBs do not currently fully engage with the CETR process and stated that their reforms will mean ICBs, as a responsible commissioner, are under a statutory duty to make arrangements to ensure that a CETR takes places, and to have regard to recommendations from a review. However, the government disagreed that the duty to implement CETR recommendations needed to be amended, arguing that the “have regard to” duty is commonplace in law and still requires serious consideration to be given to the recommendations made.
On the time periods between CETRs, the government recognised that CETRs are important in helping to ensure that individual needs are identified and met and steps are taken to support detained individuals towards discharge. In their proposed reforms, they place CETRs on a statutory footing by providing a statutory right to CETRs. The government also agreed with the committee that some people with a learning disability and autistic people, particularly those under 18, should receive CETRs more frequently than every 12 months. However, it stated that draft bill’s 12-month interval is intended to be a maximum time limit between reviews, and that CETRs could happen more frequently than this. The government therefore suggested that the Secretary of State must publish statutory guidance which would be used to specify when CETRs should happen at shorter intervals than 12 months, depending on the individual circumstances. The government also acknowledged the risk that CETRs will be carried out to the 12 month maximum timing set out in the legislation, as opposed to those specified in guidance, and has therefore stated that it is “considering the best way of ensuring that individuals receive CETRs at the appropriate intervals”.
b) Renaming the risk register as the support register mechanism
Recommendation: NHS England has already undertaken work to build trust in risk registers and the draft bill introduces a mechanism for ICBs to establish and maintain a ‘risk register’ of those with learning disabilities or autistic people in their area who are at risk of psychiatric detention. The committee recommended that the proposed risk register should be renamed “dynamic support register” to better reflect its purpose by shifting away the focus from identifying risk to providing support. Moreover, the government should build trust in this dynamic support register mechanism through consulting with people with learning disabilities and autistic people.
Government response: The government welcomed the committee’s recommendation and stated it will consider the views of people with a learning disability and autistic people when developing statutory guidance on risk registers, with the aim of building trust in the way that ICBs are using these registers
c) Imposing a ‘firm duty’ to ensure the adequate supply of community services
Recommendation: The committee recommended that the government should strengthen the duties on ICBs and local authorities by imposing a ‘firm duty’ to ensure the adequate supply of community services. It was recommended that information gathered from the dynamic support register could be used to guide this.
Government response: Despite agreeing with the committee that community support will be vital, the government disagreed that a new ‘firm duty’ was needed. It argued that the existing provisions in the draft bill were sufficient to ensure an adequate supply of community services, in that the proposed section 125E puts a requirement on ICBs and local authorities to have regard to the information from the risk register, as well as placing a duty on commissioners to seek to ensure that the needs of people with a learning disability and autistic people are met in the community, so that they may avoid detention under part II of the Act.
4. Enhancements for diagnosis, care, and treatment for those in the prison system
There is consideration paid in the draft bill those with learning disabilities and autism in the prison system, which was also acknowledged by the committee.
Recommendation: It was recommended that the government continue with planned enhancements for diagnosis, care, and treatment for individuals with learning disabilities and autism within the prison system.
Government Response: Agreeing with the need for supportive environments in prisons, the government detailed initiatives under the neurodiversity action plan, including the rollout of autism accreditation and neurodiversity support managers in prisons, along with piloting digital interventions for neurodivergent individuals exiting the prison system. These efforts are aimed at improving identification and support for neurodivergent individuals within the justice system.
5. Considerations to be paid to the reasonable adjustments flag
Finally, a recent introduction by NHS England is a ‘reasonable adjustments digital flag’ within patient records, to ensure health and social care staff are made aware of a patient’s neurodiversities at the point of contact. This was a consideration raised by the committee.
Recommendation: The committee recommended that all people known to mental health service with learning disabilities or autism should have a reasonable adjustment flag attached to their record, with an option for individualised adjustments of preferred communication and the name of their advocate.
Government response: The government agreed with the committee’s recommendation, adding that the reasonable adjustments flag will need to take account of an individual’s needs and wishes.
Conclusion
These recommendations and the response from the government sets out the government’s approach to refining and implementing policies and legislation to improve the inpatient psychiatric care of individuals with neurodiversities, learning disabilities and autism. It is clear that this is on the government’s radar, but clearly figures show that there is significantly more work to be done. In particular, the date that the bill will be implemented is unknown as it was absent from the 2023 King’s Speech. It has not been included in the “wash up” legislation prior to the close of Parliamentary business before the General Election in July. Whether it finds its way back onto the agenda will largely depend on priorities post election, although both main parties have pledged to continue with the reforms.
For practitioners engaged in mental health and capacity law, understanding these developments is crucial. The evolving legislative landscape presents challenges and opportunities to advocate for better outcomes for individuals with learning disabilities and autism. Staying informed and proactive in understanding both the legal frameworks and practical realities of care will be essential in ensuring that the rights and well-being of this vulnerable population are effectively protected and promoted.
