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Proposed Changes to Existing Law and Guidance

Document Cited authorities 12 Cited in Related
Vincent
AuthorMichael Butler
Pages337-343

Appendix 12


Proposed Changes to Existing Law and Guidance

Introduction

This Appendix summarises two significant developments in mental health law due in 2015. Firstly, proposed changes to the 1983 Code, and, secondly, the implementation of the Care Act 2014.

Code of Practice of the Mental Health Act 1983

In July 2014, the Department of Health produced the draft of a new 1983 Code (Draft Code), due for publication in April 2015. According to the Draft Code, the core of the existing 1983 Code will remain the same, but will have a number of significant updates and additions.

Factors creating the need for such updates and additions were identified in the Department of Health consultation document published on 7 July 2014 (Stronger Code: Better Care, consultation on the proposed changes to the Code of Practice: Mental Health Act 1983). These include:

• changes in general health and social care practice brought about in response to public inquiries, such as that conducted by Robert Francis QC into Mid Staffordshire NHS Foundation Trust (www.midstaffspublicinquiry.com/report);

• changes in practice and procedure arising from the Winterbourne View Hospital scandal (www.gov.uk/government/publications/winterbourne-view-hospital-department-of-health-review-and-response);

• the Care Act 2014 (see below);
• concerns regarding the treatment of detained patients highlighted by
annual Care Quality Commission reports;

• various other changes to law, policy and procedure that have occurred since the last 1983 Code was published in 2008.

338 A Practitioner’s Guide to Mental Health Law

It remains to be seen what the final version of the new 1983 Code will look like (consultations on the proposed changes having taken place in 2014), but the most significant aspects of the Draft Code are as follows.

Guiding principles

Chapter 1 of the Draft Code contains five new guiding principles for using the MHA 1983. These are:

• least restrictive option and maximising independence;
• empowerment and participation;
• respect and dignity;
• purpose and effectiveness;
• efficiency and equity.

Equality and human rights

The Draft Code contains a new chapter (Chapter 3) dealing with equality and human rights as a discrete topic.

Protecting patients’ rights and autonomy

Chapters 4–12 of the Draft Code are grouped together in a section entitled ‘Protecting patients’ rights and autonomy’. Of note within this section are the following points:

• The importance of the role played by carers is emphasised at various stages, but in Chapter 4 (Information for patients, nearest relatives, carers and others) at paras 4.40–4.43 in particular.

• Where a patient is deemed to lack the capacity to decide whether to appoint an IMHA, an IMHA should be introduced to the patient so that the IMHA...

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