Conservatives pledge to scrap ‘flawed’ Mental Health Act

Mental Health Treatment bill would include revised thresholds for detention and new safeguards for people with capacity

Photo: Time to Change

Theresa May has pledged to scrap the Mental Health Act 1983 if the Conservatives are re-elected.

The prime minister promised to replace the Act with a new Mental Health Treatment bill that would introduce:

  • Revised thresholds for detentions in a bid to stop the powers being “over used”.
  • A new code of practice aimed at reducing the disproportionate use of mental health detention for minority groups.
  • A new set of safeguards for people with mental health problems who have capacity to refuse or consent to treatment, so that “they can never be treated against their will”.

Mental health professionals, charities and patients would be consulted on the plans, which come against the backdrop of a steep rise in Mental Health Act detentions in recent years.

The Tories described the proposals as the biggest change to mental health treatment law in more than 30 years.

May said: “On my first day in Downing Street last July, I described shortfalls in mental health services as one of the burining injustices in our country. It is abundantly clear to me that the discriminatory use of a law passed more than three decades ago is a key part of the reason for this.

“So today I am pledging to rip up the 1983 Act and introduce in its place a new law which finally confronts the discrimination and unnecessary detention that takes place too often.”

The Conservative leader also pledged to reform the Equality Act to protect people with mental health conditions from being discriminated against at work, and vowed to hire 10,000 more staff for NHS mental health services by 2020.

Labour accused the Conservatives of failing to adequately fund mental health services during their time in government.

Research by Community Care, published in March 2015, found funding for NHS mental health trusts dropped 8% in real-terms over the course of the coalition government.

Barbara Keeley, Labour’s shadow mental health minister, said: “The Tories have not delivered on their promise to give mental health the same priority as physical health. They appear to be offering no extra funding and have consistently raided mental health budgets over the last seven years.

“Warm words from the Tories will not help to tackle the injustice of unequal treatment in mental health.”

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29 Responses to Conservatives pledge to scrap ‘flawed’ Mental Health Act

  1. Strong & Stable Egoship May 8, 2017 at 12:07 pm #

    I simply wouldnt trust them to look at my nanas Wart.

  2. maharg May 8, 2017 at 12:26 pm #

    Filibustering, not a vote winning for me. Surely it should be changed because it’s the right thing to do not because it may get a greater vote. This is not yet more promise of jam tomorrow.

    Revised thresholds for detentions in a bid to stop the powers being “over used”.

    With the limitation of legislation, and it’s used appropriately (whatever appropriately means) within the law, how can it be overused, or did they mean used in a manner which puts a demand on poorly funded service’s.

    •A new code of practice aimed at reducing the disproportionate use of mental health detention for minority groups.

    Surely this is about appropriate use, I am aware of research which highlights that there is a disproportionate percentage so of individuals from ethnic backgrounds who are being subjected to mental health intervention, but having worked in range of care settings, it is clear that there is a limited level of services respective to ones ethnic background. The services may have a national standard, framework, but invariably they are locally specific. Back to resource availability in funding.

    •A new set of safeguards for people with mental health problems who have capacity to refuse or consent to treatment, so that “they can never be treated against their will”.

    Bearing in mind the Care Act 2014, adult safeguarding six principles,Mental Capacity Act 2005,Mental Health Act 1983,Human Rights Act 1998. Relevant criminal charges and sanctions,Deprivation of Liberty ( Dols), potentially there is enough legal interventions available to be argued and ultimately inherited jurisdiction already exists.

    One guesses any argument, legal battle as it already is under existing legislation, irrespective of what rabbit can be bought out from the election hat.

    Review of existing legislation should be an ongoings, which is generated in case law. So if the listing government argue that it will make the changes say half voted in, why are they being so negligent, making the changes now.

    Oh, this is just another election story rather than a real newsworthy story

    • David Bronn May 8, 2017 at 8:04 pm #

      Maharg can i respond to ure points
      1-detention can be overused if one concedes the threshold for detention is relatively low (if)
      2-i agree. But if the issue is backed by legislation it would have good impact. I agree with you regarding resources.
      3-the argument that there is enough protection for those with capacity is in my view wrong-the MHA can over ride a capacitous refusal.

      I would add that, in my view, more weight should be given to the social model. Medical treatment, as prioritised by the MHA is not always the best approach. Sometimes a good therapeutic relationship with their worker (or what ever) is better than meds. Further, the medical model does little to consider the social causative reasons for distress. I am not rubbishing psychiatry but feel the social model should be given further weight in any new legislation.

      • Mohammed May 9, 2017 at 6:41 pm #

        I agree…
        It is so easy for the MHA to be over-used when other Least Restrictive options have yet to be exhausted. Even some AMHPs shy away from ‘positive risk taking’ and protecting the right to liberty of the individual.

        Sooner the MHA is replaced the better. We need legislation that empowers capacitous individuals to fully participate in their treatment and take responsibilty for their own recovery.

        I also hope any new legislation will insist the AMHP is more independent similar to the BIA. Currently there is always a risk of ‘collusion’ with AMHPs coming from the same team as the doctor.

    • Garfield May 11, 2017 at 12:49 pm #

      It both amuses and frustrates me when black and Asian people are described as “from ethnic backgrounds”. Do you even know what ethnicity means? Strangely enough, it’s something we ALL have and is not some some kind of exotic, physical or cultural entity which ‘non ethnics’ can never acquire!

      • David May 12, 2017 at 1:43 pm #

        Of course u are right. But. Problems arise if the assessor does not share the culture or ethnicity of the person being assessed. At this point what is required i think is an open and reflective stance. Not everyone is equipped in this way.

      • Graham May 12, 2017 at 1:55 pm #

        There seems to be an assumption that the over-representation of BME people in MHA detention is down to racism (personal and institutional) within services. However there is ample evidence to show that poverty and disadvantage create a higher likelihood of mental ill health and BME people are over-represented in this group. Consequently over-representation of BME people in MHA detention could be expected and a change in the law will make no difference.

        • David May 12, 2017 at 5:48 pm #

          That is a reasonable point. But it does evidence the importance of the social perspective

          • Graham May 18, 2017 at 9:22 am #

            Agreed, but it is important to take account of the importance of structural inequalities in causing and perpetuating mental and emotional distress. So although cultural bias may affect the decision of an AMHP or assessor that is not the whole picture.

  3. Laura May 8, 2017 at 3:01 pm #

    She wants fewer people to be detained so that she has to fund fewer beds.That’s the core of it. She can dress it up any way she likes, but her true priorities are clear.

    • emef May 9, 2017 at 5:12 pm #

      I agree wholeheartedly. Blame the Mental Health Act for what is actually a chronic lack of resources. Overall the Act has stood the test of time and the safeguards that exist have proved to work. Yes the Act has seemingly sanctioned the over representation of minority ethnic groups especially young African Caribbean mean but this could be addressed through constructive anti-discriminatory changes (and again, increased community resources). What we will probably get is the pre-cursor to the wholesale privatisation of mental health services. Nothing is outside the scope of ‘market forces’ even if the rhetoric says otherwise.

      • Canuk May 11, 2017 at 2:07 pm #

        I am with Emef on this. Don’t let the wolf into the sheep field just because she’s dressed up in woolly clothes!

  4. londonboy May 8, 2017 at 3:43 pm #

    Public Accounts Committee (2017) Local support for people with a learning disability

    A lot of the same issues apply?

    …more needs to be done to address known barriers: money is not moving with the patient to pay for support in the community, too many people are not having care and treatment reviews and the uncertainty caused by the proposed changes to local housing allowance risks hampering the provision of accommodation in the community.

    We are also concerned that support for people with a learning disability who live in the community is patchy; there are significant local variations but, on average, fewer than 6% of people with a learning disability are in employment and only 23% of people with a learning disability are registered as such with their GPs. There needs to be a greater focus on measuring outcomes and improvements to the quality of life from the £8 billion central and local government spend each year on this support.”

  5. Seymour May 8, 2017 at 6:37 pm #

    No one should EVER be treated against their will especially if it’s known while they had capacity it’s something they were dead against… There are ALWAYS other ways than drugs

    • Graham May 12, 2017 at 1:45 pm #

      That is an admirable principle to have, unfortunately for some people the alternative to compulsory treatment would be a return to the pre-medication solution of locking people up in mental hospitals long term for their own safety and that of others …. or prison.

  6. Stuart May 8, 2017 at 6:58 pm #

    She forgot to say ”law passed more than three decades ago by Margaret Thatcher’s government”

    Starting with Cameron’s ‘Big Society” I’ve lost count of how many thatcherisms big ideas have been shown the red card by subsequent Tory governments… maybe there is still hope for the miners..

  7. Reallyquiteannoyed May 8, 2017 at 11:08 pm #

    Right, so you’re telling me the “shortfalls in mental health services… and unnecessary detentions” are due to a rubbish law. It’s nothing to do with chronic underfunding services for a number of years…budgets for mental health trusts shrunk by £150 million in 4 years* and nearly 7000 fewer specialist doctors and nurses since 2010**. I assume the increased detentions under The Mental Health Act over recent years are because Social Workers and Doctors have nothing better to do, not the fact community mental health services are on their knees.

    As someone who works in this area of social work, I find this attempt to win votes appalling. It negates all the hard work of professionals in social work, police, NHS, voluntary sector who are trying their best at a difficult time and it’s downright offensive to people with mental health needs to pretend mostof the current issues in services are not directly linked to government policy over the last decade.



    • Tiredcpn June 2, 2017 at 9:19 pm #

      I agree whole heartedly, if there were sufficiently funded community services many people would never come to the point of being assessed under the mental health act.

  8. Roger Hargreaves May 9, 2017 at 8:08 am #

    The Mental Health Act has been in need of complete replacement for many years so this is welcome news in principle, but I wonder whether Mrs May realises what she would be taking on, and whether it will be quietly dropped when the scale of the task becomes apparent. The review of the 1959 Mental Health Act which started in 1975 took 8 years to produce a modest improvement in the form of the 1983 Act; the attempt to produce a completely new Act which started in 1998 was abandoned, together with two draft Bills, after an 8 year impasse between the government and the professional bodies and user/carer groups, with limited changes to the 1983 Act then being forced through in 2007 against strong opposition. And that was when the governments had vastly more in-house resources to deal with major legislative reform than does the present one, after big cutbacks in staff numbers and with Brexit now drawing away most of the remaining experienced civil servants. I think the Department of Health will now struggle to find the capacity even to deal with the replacement for DoLS, which will require only a tiny fraction of the resources needed to replace the MHA.

    And if they think that a new Act will reduce the proportion of patients detained, they’re kidding themselves – the opposite is likely to be the case. Historically, the threshold for detention under the MHA has been much higher than the threshold for Article 5 deprivation of liberty set in 2014 by the Supreme Court in the Cheshire West case – the so-called “acid test” – and although the Article 5 caselaw applies to the MHA too, and not just to DoLS, MHA practice has largely failed to catch up (or psychiatrists have shunted patients into DoLS rather than detain them under the MHA). Any new law, however, would need to be fully Article 5 compliant, meaning that very few if any patients without capacity could be admitted informally to acute wards.

    • Phillip Briggs May 10, 2017 at 7:20 pm #

      I agree with every word Roger says, and like Roger I too suspect that once the scale of the task becomes clear to Mrs May then the temptation to quietly drop it will be too great to ignore. In addition though, when I read of Mrs May’s stated plans I couldn’t help wondering if one of the reasons behind it would be a perceived opportunity to ‘rip up’ the Act and with it S.117 Aftercare costs, though it may just be that I’ve become too cynical after all of these years of seeing our Mental Health Services decimated.

      • Pamal May 29, 2017 at 11:16 am #

        I totaly agree with Philipp and Roger. May be I am being sceptical, but conservative will be have own agenda to get rid of sec117 aftercare, they have paostponed to implement second part of the Care Act as local authorities have no resourses. And now home owner would have to foot the bill for care in theer on homes!!

  9. Terry McClatchey May 9, 2017 at 8:16 am #

    This has all the hallmarks of a “smoke and mirrors” exercise. MHA83 is a fundamentally good piece of legislation that has stood the test of time across varying governments. There is nothing in it that requires children to be kept in police cells and it explicitly offers strong protections against inappropriate detentions. There are certainly problems with access to appropriate and local places of safety and timely assessment under S136 but ministers could redress those issues without new primary legislation. Talking about new law seems to be a distraction from rather than a route to effective service improvement.

  10. John Plimsoll May 9, 2017 at 10:21 pm #

    I agree that a thorough review of mental legislation is needed, but am not comfortable with Theresa May, “ripping up the 1983 Act”, without very thorough and cardful consideration.

    Practice can not easily be changed through legislative change. The greater need is probably for better training and supervision of staff at all levels involved in mental care, including training for all such staff in the legal framework. I suspect that many practitioners do not have a good understanding of the legal framework.

    I am also mindful of Theresa May’s opposition to the European Commission on Human Rights and our own Human Rights Act. This makes me nervous about a government led by Theresa May (which I still hope we will not have after the election in June) producing a new mental health Act. If the 1983 Act is to be replaced, the new law must be better.

    Rather than rushing to new legislation, the government needs to understand why, without any change in legislation, there has been a rise in the numbers being detained under the 1983 Act.

    I believe that the government should ask the law commission to carry out a thorough review of mental health legislation.

    In the meantime the next government, whoever it is led by should give a high priority to making the changes to the Mental Capacity Act 2005 recommended by the law commission, to repealing the Deprivation of Liberty Safeguards (DOLS) and replacing them with them with the proposed scheme of Liberty Protection Safeguards. The law commission have it clear that the need for this is urgent because DOLS are not working and many people are being illegally detained in hospitals and care homes without any proper procedures being followed.

  11. Ruth Cartwright May 10, 2017 at 12:28 pm #

    I agree with those who see this as a bit of a ‘smoke and mirrors’ exercise re chronic under-resourcing of mental health services. The 1983 Act marked huge progress as far as the human rights of those with mental health issues was concerned. The 2007 amendment act arguably restricted freedoms not to consent to treatment. There have always been issues with those implementing the Act – for example, as an ASW (pre AMHP) it was uncomfortable to be challenging the views of medical colleagues who thought admission to hospital was the only solution, but I and many of my colleagues did this. And of course there are many misconceptions about mental health issues throughout our society – debate around the legislation may help correct some of these so could be positive. Of course legislation from over 30 years ago needs re-examining and updating, but human rights should remain at the centre.

  12. frank cliffe May 10, 2017 at 1:01 pm #

    The government and promises must never be taken with anything but a big pinch of salt.

  13. Justathought May 10, 2017 at 9:56 pm #

    The article refers to a rise in detentions under MHA83. Could this be linked to the lack of in patient beds? From what I know, there is so few beds that to be an in patient a person would need to be under s.2 or s.3. There appears to be no, or very little, access to beds for voluntary patients, meaning they would need to be detained in order to receive in patient treatment if this was necessary. Properly funded services at all levels might help in less need for in patient treatment, but where this is necessary, if the option to be admitted voluntarily and have a bed was available, would this in itself have an impact in the number of detentions under the act?

  14. Martin Porter May 11, 2017 at 8:54 am #

    In my experience people aren’t banging on the doors of mental health wards to get out, they’re banging on the doors to get in as there are no services and no beds.

  15. Graham May 12, 2017 at 2:25 pm #

    In my 8 years as a mental health social worker I have seen 2 out of the 3 local acute admission wards close in my area along with an older adult unit. As an AMHP I see people who are becoming unwell unable to obtain an informal admission. We would never consider using MHA detention as pressure to obtain a bed if informal admission is agreed, but what happens is the person becomes more and more unwell and in the end they do fit the criteria for detention and are no longer in a capacitous state to agree informal admission. I also see patients discharged too early because of the pressure on beds and then being re-admitted under section after a few weeks or a couple of months owing to lack of real recovery and adequate follow up. No change in the law will improve this situation.
    The 1983 Act does need revision as it is clumsy and difficult to operate, particularly around compulsory admissions. For instance I can obtain a s135(1) warrant to enter someone’s property, using force if necessary, for the purpose of assessing in situ or removing to a place of safety for assessment. This can involve a minimum of an AMHP, a police officer, 2 doctors, a locksmith, and an ambulance crew, with a bed on hold in a local hospital. If the person is out I can do nothing except arrange the whole expensive circus again for the following day (if the bed is still available). I can ask the police to look out for the person in a public place but unless an officer considers they appear to be ‘suffering from a mental disorder and to be in immediate need of care and control’ (s136) nothing can be done. It is ridiculous that someone in urgent need of medical treatment can be detained by warrant in their own home but not anywhere else! This can lead to a very ill and distressed person being chased around the area with us hoping they will settle somewhere long enough for us to assess or that they will fit the quite narrow criteria of s136.
    The law needs updating to make it less cumbersome as this will benefit both clients and professionals, but only increased resources will lessen the need to compulsory admissions under the MHA 83.

  16. Hari May 29, 2017 at 5:14 pm #

    I agree with many of the comments above.

    I can see it can only be healthy to review the effectiveness of law in situ. But, I cannot see the effectiveness of ripping up an entire structure and starting again.

    I cannot see the effectiveness of revising thresholds for admission without a simultaneous investment in preventative care.

    I feel this proposal places the blame for current failures in this system on the practitioners who work within this complex matrix of care provision and ignores the pressures created by stretched community resources.