New Part 8A in the Act contains provisions specific to people with a learning disability and autistic people.
	People with a learning disability and autistic people can be subject to unnecessarily lengthy detentions, which may not meet their needs and provide little or no therapeutic benefit. NHS England issued guidance regarding the holding of reviews – known as Care (Education) and Treatment Reviews – to focus on reducing unnecessarily long stays in hospital and reducing health inequalities.
	Care (Education) and Treatment Reviews currently focus on whether a patient with a learning disability or an autistic patient is safe and receiving the right care and treatment. They also assess if individuals have any specific needs for social care, special educational provision, or medical treatment. The Care (Education) and Treatment Review panel makes recommendations to overcome barriers related to these key lines of enquiry.
	Care (Education) and Treatment Reviews have been part of NHS England policy since 2015; however, it has been found that their recommendations are not always being acted upon and there is often no process of follow-up, contributing to the perpetuated detention of people with a learning disability and autistic people, often without therapeutic benefit.
	New section 125A (as introduced by section 4 of the Act) provides for the making of arrangements for ensuring care, education and treatment review meetings take place for children (i.e. those under 18) and adults with an education, health and care plan under the Children and Families Act 2014 detained under certain sections of the 1983 Act. Thus the provision seeks to ensure that the care, treatment and differing support needs of people with a learning disability and autistic people are identified. The provision provides that recommendations as to how to meet these are to be made so that barriers to progress are challenged and overcome. This measure supports the principle of the person as an individual.
	Subsection (1) places a duty on the responsible commissioner to make arrangements for ensuring care, education and treatment review meetings in respect of children and adults with an education, health and care plan detained under the 1983 Act (subject to the exceptions set out in this section) take place. This duty applies to patients who the responsible commissioner considers to be autistic or have a learning disability and who give their consent or, where they lack capacity or competence to consent, the responsible commissioner considers that’s in their best interests. This includes certain patients detained under Part 3 of the 1983 Act. The Secretary of State is to issue guidance to help support the responsible commissioner in exercising their functions, and it is intended that this guidance will include further information on the factors to consider when determining whether a Care (Education) and Treatment Review may be in a patient’s best interests.
	Subsection (2) explains the purpose of a ‘care, education and treatment review meeting’. This makes clear a meeting is to consider whether a patient has certain needs and is also to make certain recommendations. The needs and recommendations set out in this section are designed to ensure that a holistic view is taken of that person’s needs and that the most appropriate care and treatment can be provided.
	Subsections (3) and (4) give further detail on the arrangements referred to under subsection (1). Subsection (3) sets out that the responsible commissioner must make arrangements for a report to be produced following a care, education and treatment review meeting, setting out the needs identified, and recommendations made, and distributed within 14 days to the responsible commissioner, the patient’s responsible clinician, the ICB that has a duty to provide or arrange aftercare under Section 117 of the 1983 Act, and the local authority in which the patient is ordinarily resident. These bodies, identified in new section 125A(3)(b), play a vital role in the individual’s care and treatment and this provision will mean they will receive important information to assist them in this function. The commissioner may also make arrangements requiring or authorising a copy of the report to be sent to other people in addition to those listed in section 125A(3)(b). For example, those who have been involved in the review process or who have an interest in the review recommendations, such as an Independent Mental Health Advocate, Nominated Person, or a professional involved in the patient’s care and treatment, subject to the patient’s consent. Any processing of personal data under this section is subject to the main data protection legislation, (see s183A of the Data Protection Act 2018 (the "DPA 2018")).
	Subsection (4) sets out that the arrangements must ensure that care, education and treatment review meetings take place within certain periods. The initial care, education and treatment review meeting must take place within 14 days, starting with the applicable day. Further care, education and treatment review meetings must take place at least once every 12 months (from the date of that first review), during which time the patient continues to be detained. These are maximum timings, meaning that care, education and treatment review meetings can take place sooner, and at shorter intervals, than set out in the legislation. It is expected that the Secretary of State issued guidance will suggest factors to consider as to whether reviews should happen more frequently in different circumstances.
	Subsection (5) explains what is meant by ‘applicable day’, which is the day from when the time for holding a review meeting starts to run. This is determined by when the patient was detained under the 1983 Act (not including any emergency period under section 4 of the 1983 Act), or when the responsible commissioner forms the view that the patient is autistic or has a learning disability if that is later.
	Subsection (6) makes clear that a patient may withdraw consent to the review meeting and to the disclosure of information in accordance with the arrangements under subsection (1). Subsection (7) provides that the ‘arrangements’ the responsible commissioner is under a duty to make under subsection (1) must include provision about how consent may be withdrawn and what is to happen when consent is withdrawn.
	New section 125B of the 1983 Act (as introduced by section 4 of the Act) covers the arrangement of care and treatment review meetings for adults, (including adults without an education, health and care plan under the Children and Families Act 2014), detained under the 1983 Act (subject to the exceptions set out in this section). This makes similar provisions to that in respect of children and adults with an education, health and care plan set out in new section 125A, though there are key differences. Subsection (4) sets out that arrangements must ensure that care and treatment review meetings take place within certain periods. The initial care and treatment review meeting must take place within 28 days, starting with the applicable day. As with children, and adults with an education, health and care plan, further care and treatment reviews must take place at least once every 12 months (from the date of the first review), during which the patient continues to be detained. As in new section 125A(4), these are maximum timings, meaning that in practice, care and treatment review meetings can take place sooner, and at shorter intervals, than set out in the legislation. Again, the provisions also apply to some patients detained under Part 3 of the 1983 Act.
	New section 125C requires that the patient’s responsible clinician, the responsible commissioner, integrated care board (ICB) and local authority that receive the report produced following the review must have regard to the recommendations in the report. This provision is designed to ensure that recommendations made as part of the review process are given proper weight when making decisions over the individual’s care and treatment. This will help to provide the individual with the most appropriate support based on their needs.
	As part of NHS England’s current Dynamic Support Register and Care (Education) and Treatment Review policy and guidance, local health commissioners are required to work with their local partners, including social care and education, to develop and maintain a register of people with a learning disability and autistic people who are at risk of admission to a mental health hospital. This is known as the Dynamic Support Register. The register supports local systems to identify people at risk of admission, review their needs, and mobilise the right support to prevent the person being admitted to a mental health hospital.
	New section 125D provides a duty on ICBs to establish and maintain a register of people with a learning disability and autistic people, for whom the ICB is responsible, who are at risk of hospital admission under Part 2 of the 1983 Act.
	This section is designed to help ensure that ICBs can monitor individuals at risk of detention and put in place the necessary preventative services in the community to help keep people out of hospitals. It also creates a duty on the Secretary of State to set out in regulations the factors which the Secretary of State considers increase the risk of an individual being detained under the 1983 Act. This will ensure consistency in how ICBs make decisions as to which individuals are eligible for placement on the register.
	Subsection (1)(c) provides that a person must consent to being included in the register (and to the use of their information under the section) or where they lack capacity or competence to do so, the ICB considers that this is in their best interests. As described above, any processing of personal data under these provisions is subject to the main data protection legislation (see section 183A) of the DPA 2018.
	Subsection (2) provides that the local authority in which each person included in the register is ordinarily resident must be specified on the register.
	Subsections (3)(a) and (b) provide a power for the Secretary of State to make regulations specifying the information that an ICB is to include for each individual’s entry in a register and regarding the establishment and maintenance of registers. Subsections (3)(c) and (d) also provide a power for the Secretary of State to make regulations regarding the obtaining of information by the ICB for the purposes of determining if an individual is eligible for inclusion on the register and information to be included in the register as well as provisions regarding onward disclosure of this information. This power is designed to ensure the register is maintained in a consistent manner across ICBs and to enable information to be collected and shared appropriately. Subsection (3)(e) provides that regulations may make provision about the withdrawal of consent by a person to their inclusion in the register.
	Subsection (4) places a duty on the Secretary of State to, by regulations, specify the description of people for which each ICB is ‘responsible’ for the purposes of 125D. This must be people in relation to which the board has commissioning functions.
	Subsection (5) provides that ‘risk factors for detention under Part 2 of this Act’ mean factors which the Secretary of State considers increase the probability of a person being detained under the Part 2 of the 1983 Act and which are specified in regulations made by the Secretary of State. An ICB will consider such risk factors when deciding whether an individual is eligible for inclusion on the register.
	New section 125E provides that ICBs and local authorities must have regard to certain information and the needs of the local ‘at risk’ population when carrying out certain commissioning duties (as set out in the section). These provisions aim to ensure the right community provisions are in place for people with a learning disability and autistic people to avoid unnecessary admissions to inpatient settings.
	Subsection (1) provides that when an ICB is exercising its commissioning functions it must have regard to the information included in its register and any other information it obtains under the section. Further, an ICB must seek to ensure that the needs of people with a learning disability and autistic people can be met without detaining them under Part 2 of the 1983 Act. This section is meant to ensure that an ICB has a particular focus on the needs of people with a learning disability and autistic people who are at risk of detention under Part 2 of the 1983 Act when undertaking its commissioning functions.
	Subsection (2) places a similar duty on a local authority to have regard to certain information and the above needs when exercising its market function. The intention of this section is to help ensure that the necessary adult social care services are available for people with a learning disability and autistic people who are or may be at risk of admission.
	Subsection (3) provides that ‘market function’ has the same meaning as in section 5(1) of the Care Act 2014.
	New section 125F provides that the Secretary of State must publish guidance about the exercise of functions under new Part 8A.
	New section 125G is to be used when interpreting the meaning of the following terms of Part 8A of the 1983 Act: ‘commissioning functions’, ‘local authority’, ‘NHS commissioning body’, ‘responsible clinician’, ‘responsible commissioner’, ‘social care provision’ and ‘special educational provision’.
	Subsection (2) provides that references to a patient who lacks capacity in this Part has the same meaning as in the Mental Capacity Act 2005. Subsections (3) and (4) explain how ordinary residence is determined for the purpose of this Part.
	Subsections (3) to (5) ensure that, for the purposes of Part 8A, references to ordinary residence, broadly speaking, reflect the new rules for determining ordinary residence of the purposes of section 117 after-care (see section 46). When it comes to Care (Education) and Treatment Reviews ordinary residence will need to be identified from the point at which the person was admitted to hospital. For the risk register, ordinary residence will need to be determined from the point at which the person was entered on the register and then kept under review.
	The sections ensure that the following ‘deeming rules’ under social care legislation should be applied to the determination of ordinary residence:
In relation to those aged under 18, section 105(6) of the Children Act 1989 (as modified), which means that, broadly, any periods should be disregarded when the person was living in certain forms of accommodation, including residential schools, accommodation provided by a local authority and section 117 accommodation.
In respect of adults, section 29(1)-(3) of the Care Act 2014, which provide that where a person has needs that can only be met through care home, supported living or shared lives accommodation, and are living in that accommodation, they are treated as ordinarily resident in the area they lived immediately before they moved into this accommodation.
In respect of adults, section 39(5) of the Care Act 2014, which provides that a person being provided with accommodation under section 117 of the Mental Health Act 1983 is treated as ordinarily resident in the area of the local authority on which the duty under section 117 is imposed.
	Some examples of how the ordinary rules would apply are provided below:
Where local authority A provides an adult with care home accommodation in another local authority area (local authority B), the person will remain ordinarily resident in the area of local authority A. This means that for the purposes of the Care (Education) and Treatment Reviews and the dynamic support register their ordinary residence will remain in local authority A.
Where a child is living at home with their family in the area of local authority A and is moved to a secure children’s home in local authority B, their ordinary residence will remain with local authority A for the purposes of the Care (Education) and Treatment Reviews and dynamic support register. Ordinary residence would remain with local authority A even if the child was detained in hospital and discharged into accommodation provided under section 117 of the MHA, in the area of local authority C.
Autism and learning disability Section 4: People with autism or learning disability