93% of people living with learning disabilities or autism in assessment and treatment units are detained under the Mental Health Act 1983 (MHA). As of August 2022, NHS Digital's figures showed that 1,970 people living with learning disabilities or autistic people in England were in hospital. Shockingly, the average stay in hospital for a person with a learning disability is 5.4 years compared with the median length under the MHA, which in 2020-2021 was just 27 days. This is a clear human rights issue, with the MHA not being used for its intended purpose.

The Mental Health Bill seeks to address this by removing learning disabilities and autism as conditions by which an individual can be detained under MHA and improving community-led care. However, there are concerns that poor implementation of such reforms may only lead to a worsened outcome for these groups, with many simply being detained by other means with less safeguarding protections in place. The Joint Committee on the draft Mental Health Bill has made a number of recommendations to address this in its latest report.

The committee emphasised that the main barriers to long-term community placements for those living with a learning disability and autism, are the worryingly low levels of suitable alternatives to inpatient care and significant underfunding. This is an issue which has long been recognised, with the Transforming Care plan and Building the Right Support plan having outlined some of the very same concerns as the Joint Committee, presently to no avail. Although a review of the Building the Right Support plan is recommended, it leaves much unanswered in terms of what could be changed to ensure that people do not continue to be left in unsuitable long-term placements.

The report does however touch on the role of the regulator, noting concerns that some of the CQC’s functions in respect of the rights of mental health patients are being overlooked. It quotes the concerns of a care provider that the CQC will need to improve its relationship with providers to proactively support and enable the required improvements and stability of services. Our biggest concern is whether enough emphasis is placed on this point.

Whilst the solution to providing high-quality care for individuals with higher acuity needs is evidently multi-faceted, requiring additional funding, dynamic commissioning, increased training and further support to enable care to be given in the community safely, from our perspective a fundamental role in ensuring successful reform falls firmly with the regulator.

The CQC’s rigid approach to service registration is creating a harmful bottleneck where autistic people and those with learning disabilities are stuck in institutional settings, which at best does little to enhance the lives of the individuals concerned and in the worst cases exposes them to the risks associated with closed cultures. Care providers seeking to develop innovative, high quality and person-centred settings for those with the highest acuity needs often find their plans rejected because they do not meet the CQC’s preferred model. 

With no confidence that their plans will be approved and no right to challenge registration decisions until after completion, care providers are not prepared to invest in new developments for those with high acuity needs. Understandably, care providers want to know if they invest in creating a setting highly specialised for those living with a learning disability that they will be able to operate it as such also. The unfortunate corollary is that skilled, willing and able care providers are pushed into a position where they can only comfortably invest in facilities for those with low acuity needs, leaving a gap in provision for those most at risk of remaining in a long-term hospital placement.

To address that problem, a sharp increase in community placements is required. Until the CQC recognises the need to work flexibly with care providers to facilitate this crucial uptake, those individuals will continue to be deprived of their liberty for damaging lengths of time, circumventing the very purpose of the proposed reforms and the MHA in general.

What is clear is that for the bill’s reforms to be effective, a knock-on ripple of change will be required through the system and all facets of health and social care. It is essential that the intention of the bill can be reflected in practice and any barriers to this, or unforeseen consequences (such as the use of other means for detention) addressed. The committee’s suggestion to implement a staggered ongoing process of mental health legislation reform, so that the reforms and knock-on effect to the community and community-led services can be tested, appears sensible. With further guidance awaited in respect of Liberty Protection Safeguards, it is clear that the sector must work together to adapt and secure the rights of many of those it supports. It is clear from the report that care providers have an important voice in advocating for those they support and sharing their views as to what is needed to make sure the system is effective.

For more help and advice, please contact Tim Coolican or a member of the regulatory team.