Newly revised Mental Health Act 1983 Code of Practice

Posted by Eve Piffaretti on
On 3 October 2016, a newly revised Mental Health Act 1983 Code of Practice (the Code) will come into force in Wales, providing updated guidance to mental health professionals. This follows the introduction of a similar updated code for England in January.  Like its predecessor, the Code will provide statutory guidance on how professionals can ensure that their roles and responsibilities under the Mental Health Act 1983 (the 1983 Act) are carried out in a manner that ensures the delivery of safe and high quality care to patients.  

In addition, the code will also provide non-statutory guidance to the police, ambulance service and others in the health and social services involved in the commissioning or providing services to people who are, or may become, subject to compulsory measures under the Act.

The new Code takes account of the changes to relevant legislation since the previous Code was written. In particular, the requirements in the Mental Health (Wales) Measure 2010, with regards to care and treatment planning, and also, the relationship between the 1983 Act, the Mental Capacity Act 2005 and the Deprivation of Liberty Safeguards.

The Code was prepared in collaboration with members of the Welsh Government’s Mental Health Act 1983 Code of Practice steering group. The group represented mental health stakeholders in Wales, and included service users, carers, third sector organisations and mental health professionals. A relatively modest 51 responses were received to the consultation which informed the latest version of the Code.

Within the Code there is strengthened emphasis on:

  • the involvement of patients and, where appropriate, their families and carers in all aspects of assessment and treatment
  • understanding the principles of the Mental Capacity Act 2005 and how these should apply to all care and treatment
  • the involvement of Independent Mental Health Advocates
  • the use of appropriate transport for patient subject to the 1983 Act to ensure their dignity and safety as far as is practicable.

 

The code also reiterates that the 1983 Act provides a limit of 72 hours for detention under section 136 and that assessments should only take place in a police station in exceptional circumstances.  In addition, the code proposes that, in any case, assessments should be undertaken within 3 hours and that detention in a police station should not exceed a maximum of 12 hours. 

In addition to this, in much the same way as the English code introduced a set of 5 overarching guiding principles, the Welsh Code used this as a blueprint to establish the following principles which should always be considered when making decisions about a course of action under the 1983 Act:

  • Dignity and respect
    • Emphasising that practitioners performing functions under the Act should respect the rights and dignity of patients and their families and carers, while also ensuring their safety and that of others.
  • Least restrictive option and maximising independence
    • This ensures that services should be provided in line with the presumption of capacity, be the least restrictive option, serve a person’s best interests and maximise independence.
  • Fairness, equality and equity
    • There must be no unlawful discrimination and reasonable adjustments must be made. Individuals’ protected characteristics should be taken into account and good practice followed in all aspects of care and treatment planning and implementation.
  • Empowerment and involvement
    • Where assessment under the Act is required, patients should be empowered to be as fully involved in the assessment process as possible.
  • Keeping people safe
    • Patient well-being and safety should be at the heart of all decision-making under the Act.

 

  • Effectiveness and efficiency
    • Anyone made subject to compulsion under the Act must be provided with appropriate assessment and/or treatment and care, the purpose of which should be: to establish the presence of; to alleviate; to minimise the harm caused by; or prevent a worsening of, their mental disorder, or any of its symptoms or manifestations.

The Code makes it clear that all guiding principles are of equal importance, and should inform any decision made under the Act. The weight given to each principle in reaching a particular decision will need to be balanced in different ways according to the circumstances and nature of each particular decision.

To ensure a seamless transition to the new Code for users, here is a useful table cross-referencing the chapters in the previous code to the corresponding updated chapters.  Most chapters are replicated in substance, however, some previous substantive chapters have been subsumed as segments of new chapter headings and some have no discernible specific destination in the new code: 

 Previous Code New Code
     
No. Previous Chapter Title    New Chapter
Title
New No.
         
1.      Guiding Principles   Guiding Principles 1
2.      Considering admission to hospital or guardianship   Leave of absence, a community treatment order or guardianship? 31
3.      Conflicts of Interest   Conflicts of Interest 39
4.      Appropriate Medical treatment   Appropriate Medical treatment 23
5.      Admissions to hospital under Part 2   No dedicated chapter – various references throughout  
6.      Guardianship   Guardianship 30
7.      Places of safety and police powers   Police powers and places of safety 16
8.      Holding-Powers   Holding-Powers 18
9.      Conveyance of Patients   Transport of Patients 17
10.  Receipt and Scrutiny of prescribed forms   Receipt and scrutiny of documents 35
11.  Duties of hospital managers   Duties of hospital managers 37
12.  Function of responsible clinician and approved clinicians   Allocation or changing a responsible clinician 36
13.  Interface between the Mental Health Act and the Mental Capacity Act 2005   Relationship between the Mental Health Act, the Mental Capacity Act and the Deprivation of Liberty Safeguards 13
14.  Care and treatment Planning   Care and treatment Planning 34
15.  Advance statements of wishes and feelings   Views expressed in advance 9
16.  Capacity, competence and consent   No dedicated chapter – various references throughout  
17.  Medical treatment under the Act   Medical treatment 24
  Second opinions   No dedicated chapter – appears under 'Treatments subject to special rules and procedures 25.6 – 25.18
19.  Managing behaviours that challenge   Safe and therapeutic responses to challenging behaviour 26
20.  Visiting patients in hospital   Visiting patients in hospital 11
  Personal Searches   No dedicated chapter – appears under 'Privacy, dignity and safety' 8.35 – 8.47
22 Information for patients and nearest relatives   Information for patients, nearest relatives, families, carers and others 4
23 The nearest relative   Nearest Relative 5
24.  Involvement of carers   No dedicated chapter – appears under 'Information for patients, nearest relatives, families, carers and others'  
25.  Independent mental health advocacy   Independent mental health advocacy 6
26.  The mental health tribunal for Wales   The mental health tribunal for Wales 12
27.  The hospital managers' power of discharge (section 23)   Hospital managers' discharge power 38
28.  Leave of absence from hospital   Leave of absence 27
29.  Absence Without Leave   Absence Without Leave 28
30.  Supervised Community-treatment   Community Treatment Orders 29
31.  After-care   After-care 33
32.  Assessment, admission and discharge   No dedicated chapter  
33.  Children and young people under   Children and young people under 19
the age of 18   the age of 18
34.  People with learning disabilities and   People with learning disabilities and 20
autistic spectrum disorder    autistic spectrum disorder 

For further information or advice on mental health issues, please contact Eve Piffaretti.

About the Author

Eve heads our Commercial team in Wales and the Public Law Group. She acts for public sector organisations across the UK advising on public law and regulatory issues.

Eve Piffaretti
Email Eve
029 2068 6143

View Profile