The Welsh NHS Confederation response to the Health and Social Care Committee’s scrutiny of the Legislative Consent Memorandum (“the LCM”) on the Mental Health Bill (“the Bill”)
Contact	Haleema Khan, Policy, and Public Affairs Officer, Welsh NHS Confederation Haleema.Khan@welshconfed.org
Date	24 January 2025

Introduction

The Welsh NHS Confederation welcomes the opportunity to respond to the Health and Social Care Committee’s scrutiny of the Legislative Consent Memorandum (“the LCM”) on the Mental Health Bill (“the Bill”).

The Welsh NHS Confederation represents the seven Local Health Boards, three NHS Trusts (Velindre University NHS Trust, Welsh Ambulance Services University NHS Trust, and Public Health Wales NHS Trust), and two Special Health Authorities (Digital Health and Care Wales and Health Education and Improvement Wales). The twelve organisations make up our membership. We also host NHS Wales Employers and are part of the NHS Confederation, which includes the Mental Health Network, who represent mental health providers from across the statutory, independent and third sectors.

Committee questions

Overall views

Your overall views on the policy objectives of the Bill to:

modernise mental health legislation to give patients greater choice, autonomy, enhanced rights and support; and ensure everyone is treated with dignity and respect throughout treatment; and

introduce measures to improve the care and support of people with a learning disability and autistic people, reducing reliance on hospital-based care.

Our members, NHS leaders in Wales, agree with the overall policy objectives of the Bill. Our members agree that the proposed Bill will modernises mental health legislation to give patients greater choice, autonomy, enhanced rights, and support; and ensure everyone is treated with dignity and respect throughout their treatment. Also, our members agree that the Bill will introduce measures to improve the care and support of people with a learning disability and with autism, reducing reliance on hospital-based care.

What barriers do you think currently exist in accessing mental health services in Wales, and does the Bill address these adequately?

Our members agree that there are barriers which currently exist in accessing mental health services in Wales, however, the Bill does not address these adequately.

Our members agree that the addition of measures to improve support and care for people with learning disabilities (LD) and neurodevelopmental disorders (ND) is imperative, however, a significant challenge arises from the difficulty in identifying the primary presenting need for these individuals. Furthermore, though there is capacity and resilience in community services to respond to the impact of this reform, there is concern that twenty-eight days may not always be long enough for thorough assessment to identify co-occurring mental disorder. Whilst understanding that this follows the timescales for Section 2 of the Bill, our members highlighted that from their experience, the need to seek specialism to create formulation creates challenges with timescales.

Moreover, our members have suggested the new criteria for detention will need to be clearly defined. ‘Serious harm may be caused’ could be open to interpretation and therefore result in inconsistency across Health Boards, if not clarified. This has been the similar experience with the definition of ‘crisis’ for many years. Our members also highlighted that the Bill does not implicitly address the changes needed in Children and Young People’s Mental Health Services agenda, specifically in relation to crisis care.

Our members have emphasised that the Bill misses an opportunity to address significant confusion and delay caused by the delay/abandoned liberty protection safeguards (Mental Capacity Amendment Act 2019). Interface between Mental Health Act (MHA) and Mental Capacity Act (MCA) needs to be much clearer to ensure that both practitioners and patients receive care and treatment under the best legislative framework to suit their needs. The Bill could develop clearer criteria for detention under MHA and MCA alike. Our members suggest that the Bill could be used to introduce reform under MCA in the same way that the MHA 2007 Act did.

Impact on areas of devolved competence

Do you support the principle of Westminster legislating in areas that are devolved to the Welsh Government?

Our members suggest that when Westminster legislates in areas that are devolved, engagement must be sought from Welsh Government and key stakeholders, such as the NHS, to gather their views around the impact that the legislation will have on the people of Wales.

As stated in our explainer briefing on the NHS structure in Wales, the wider health and care system in Wales is complex and the four health and care systems and structures across the UK are slightly different.

Furthermore, each nation faces differing challenges that should be considered. Wales faces specific health challenges such as an ageing population, health inequalities, rurality and higher rates of certain diseases compared to the rest of the UK. Devolved powers allow the Welsh Government to tailor healthcare policies to address the needs of the people of Wales. Therefore, it is vital that any legislative action taken by Westminster in areas that are devolved to the Welsh Government is transparent and enables joint ways of working with Welsh Government, the NHS and key stakeholders in Wales.

Alignment with policy priorities

Do you think the provisions of the Mental Health Bill align with the Welsh Government’s Mental Health strategy and broader policy priorities?

Our members have suggested that the provision of the Mental Health Bill does align with the Welsh Government’s Mental Health strategy and broader policy priorities.

Our members responded to the Welsh Government’s Mental Health Strategy and emphasised that support and retention of the mental health workforce is critical, which is also relevant to the implementation of the Mental Health Bill. Also, our members suggested the need for further information on how we are ‘futureproofing’ mental health services to ensure that there is an adequately trained workforce with the capacity to respond to changing population needs and demand.

Similarly, the successful implementation of this Bill would depend on ensuring that sufficient workforce and resources are in place. The importance of a workforce that feels supported and has the capacity, competence, and confidence to meet the diverse needs of the people of Wales cannot be underestimated.

Are there specific Welsh priorities or policies that should be better reflected in the Bill?

Our members agree that there are specific Welsh priorities and policies that should be better reflected in the Bill.

The Bill should consider the mental health and wellbeing needs of people diagnosed with long-term physical health conditions. Wales’s ageing population brings with it rising prevalence of multi-morbidities. Looking to the future, all services need to plan and ensure people’s mental wellbeing is supported at the time of, diagnosis of, and whilst living with, physical health conditions.

Furthermore, in updating and reviewing existing health legislation, it is important to consider existing health inequalities, which should be seen as a continuous variable, influencing all sectors of society. Deprivation and inequalities have a broad adverse effect on societal wellbeing, as has been demonstrated across a range of measures, including health, life expectancy, crime, and mental health.

As highlighted in the Welsh NHS Confederation Health and Wellbeing Alliance briefing, Reducing mental health inequalities, there are many determinants in our lives which influence our mental health: from positive parenting and a safe place to live, to experiencing domestic abuse and neglect, oppression, discrimination, or growing up in poverty. Determinants of mental health interact with inequalities in society, putting some people at a far higher risk of poor mental health than others.

The NHS alone does not have all the levers to reduce health inequalities, which is why we need to shift the focus from public health initiatives delivered through the NHS and local authorities to addressing holistic factors such as poor housing, green spaces, transport, and food quality.

Furthermore, there are many systemic factors which impact mental health services, and it is vital to look through this holistic lens when planning mental health services that are fit for the future. In doing so, this preventative way of working can encompass support for people to not to deteriorate further as well as ensuring they do not become unwell in the first instance.

Additionally, meaningful progress will require coherent efforts across all sectors to close the inequality gap and our members are calling for cross-sector and cross-government action to tackle mental health inequalities, including addressing the social determinants of mental health.

Ultimately, performance measures should be developed and should be focused on reducing inequalities. Prevention programmes and services should be prioritised to support people in primary and community care to prevent escalation of needs.

Cross-border considerations

How will the Bill address the movement of patients across the Wales-England border, ensuring smooth collaboration between services?

Having alignment when appropriate between Wales and England is important to ensure smooth collaboration between services.

The Welsh NHS Confederation responded to James Evans MS Private Members Bill, the Mental Health Standards of Care (Wales) Bill, highlighting that there are already differences between NHS services in England and Wales which can sometimes cause confusion and complications in cross-border transfers and for patients. Therefore, it is important that there is alignment between England and Wales because the divergence in policy and legislation between the two nations could cause confusion and problems.

It is key that any changes to legislation is done to improve people’s experience and ensure increased consistency of services. It is also key that through the introduction of new legislation, there is increased parity between mental and physical health services.

Application of the Mental Health Act 1983: autism and learning disability

How will the Bill’s provisions integrate with Welsh Government’s efforts to reduce mental health-related hospital admissions? Specifically, your views on proposals to amend the Mental Health Act 1983 so that people with a learning disability and/or autism cannot be detained for compulsory treatment unless they have a “psychiatric disorder”.

Our members do have suggestions in relation to the proposal to amend the Mental Health Act 1983. The Bill makes a clear statement and proposals to amend the Mental Health Act 1983 so that people with a learning disability and/or autism cannot be detained for compulsory treatment unless they have a “psychiatric disorder”. However, in doing so, the Bill could be extended to make clear guidance on how people with autism and a learning disability who do not have a Psychiatric disorder can receive care in their best interests if they lack capacity. The Bill must clarify and mitigate the danger of a hole in care being created for vulnerable people who may require care and treatment but may not meet the threshold for detention under the Mental Health Act. Though our members acknowledge other legislative frameworks exist, without clear reference to how they should be utilised to protect vulnerable people there is the danger of creating an unintentional legal lacuna.

Nominated person

Your views on:

the proposed introduction of a “nominated person” role to replace the nearest relative in decision-making;

the extent to which this proposed reform is consistent with the Welsh Government's vision for a rights-based approach to mental health care?

For proposal ‘a’, our members suggested further clarification about the proposed introduction of a “nominated person” role to replace the nearest relative in decision-making. Firstly, our members question whether there will be additional funding for this role. Also, the role suggests it is a statutory role in the same way an Independent Mental Health Advocates (IMHA) and or Independent Mental Capacity Advocate (IMCA) supports a person or even a Relevant Person’s Representative (RPR) as is required for Deprivation of Liberty Safeguards (DoLS). Therefore, our members would like further clarity if this person would be required to be consulted prior to any decision to detain or as part of any decision to detain. If so, would this lead to delays in receiving treatment if such a person was not available.

For proposal ‘b’, our members agree that the proposed reform is consistent with the Welsh Government’s vision for a rights-based approach to mental health care. There already exists confusion around the legislative frameworks for MCA and MHA. This is present in both general and mental health settings. Therefore, the Bill could clarify criteria for detention under MHA and deprivation under MCA, utilising the evolving thinking under the now seemingly abandoned MCA Amendment Act 2019, and more importantly the qualifying requirements for assessment.

Further Comments

The pandemic and the subsequent cost-of-living crisis have undeniably taken a toll on the nation's mental health, leading to a surge in demand for mental health interventions and services. This increased need, however, is occurring against a backdrop of strained budgets and a shortage of mental health professionals, creating a perfect storm for an overwhelmed system. The effects of this overstretched system are far from equitable, with individuals from lower socioeconomic backgrounds, those already grappling with mental health issues, and people with disabilities bearing the brunt of the impact.

There is a clear need for reform of mental health legislation and the measures introduced in this Bill aims to increase patient choice and control, reduce inappropriate detention, and improve quality of care. Our members widely agree with the overarching principles outlined in the legislation, particularly those that emphasise dignity, respect, choice, and influence for patients. These principles are fundamental to providing person-centred care and improving the overall quality of mental health services. As such, we view this legislation as a positive step towards enhancing the mental health system and ensuring patients receive the dignity and respect they deserve.

Promoting excellence in mental health services is a key priority for the Confederation which is why our colleagues at the NHS Confederation in England have engaged extensively with the UK Parliament on this Bill. The Confederation also has a Mental Health Network that meets with politicians, policymakers, and opinion-formers to influence change in the policy, political and legislative environment on mental health.

Though we are in support of the Bill, much has been said by stakeholders and our members, about the success of the Bill’s reforms being dependent on the wider infrastructure to support them. There are opportunities in place to address the systems needed for how alternative provisions will be staffed and developed. Ultimately, the success of the reforms included in the legislation will be dependent on factors, including appropriate funding, resources and sufficient workforce to provide support being in place.