Long-awaited Mental Health Act overhaul bids to empower patients and tackle racial disparities

White Paper sets out plan to implement much of 2018 review of act including enabling people to nominate a person to help with care decisions and express advance preferences for treatment

mental health act
Photo: Gary Brigden

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The government today unveils its long-awaited plan to replace the Mental Health Act 1983 (MHA), which pledges to empower individuals to control their care and treatment and tackle racial disparities.

The MHA White Paper, published today, sets out proposals to implement much of Sir Simon Wessely’s Independent Review of the Mental Health Act, though comes more than two years after its publication.

The reforms are designed to enhance the autonomy of people subject to the act, giving them more rights to challenge and shape their treatment. It also aims to minimise detentions and the use of community treatment orders, by tightening the criteria for their use, also reducing their disproportionate impact on Black people and other ethnic minorities.

As the government committed to do at the time Wessely’s review was published, in 2018, today’s paper proposes:

  • to replace the nearest relative role, in which a patient is allocated a relative to be involved in decisions about their care, with that of a nominated person that they would choose;
  • to allow people to make statutory advance choice documents setting out their preferences for inpatient treatment, which clinicians would have to take into account.

Other proposed measures includes expanding the role of independent mental health advocates to offer greater support and representation to patients and limiting the circumstances in which people with autism or learning disabilities can be detained.

The government has also committed to ending the practice of using prisons as ‘places of safety’ for defendants with acute mental illness. Instead, judges will work with medical professionals to ensure defendants can always be taken directly to a healthcare setting from court.

Key measures in the MHA White Paper

  • Putting statutory principles (choice and autonomy, least restriction, therapeutic benefit and the person as an individual) on the face of the legislation to govern decisions.
  • Tightening criteria for detention under the act to reduce its use and disproportionate impact on certain groups.
  • Expanding the role of the Mental Health Tribunal to check whether detention is appropriate.
  • Introduciong advance choice documents to enable people to express preferences for treatment should they become subject to the act, which clinicians must take into account.
  • Putting care and treatment plans on a statutory footing, setting clear expectations for treatment.
  • Strengthening safeguards around consent to the use of invasive treatments.
  • Giving people the right to choose a nominated person to support them and challenge decisions rather than have a nearest relative selected for them.
  • Expanding the role of independent mental health advocates to include supporting people to take part in care planning, challenging particular treatments and applying to the tribunal on their behalf.
  • Tightening criteria for the use of community treatment orders.
  • Limiting the detention of people with autism or learning disabilities.

Read a full summary of the proposals from Community Care Inform legal editor Tim Spencer-Lane.

‘Decisive action’ on race

The paper also proposes “decisive action” to tackle the substantial racial disparities in the use of the act, under which Black people are four times as likely to be detained and ten times more likely to be subject to a community treatment order than white people.

This includes piloting culturally appropriate advocacy services, and the further development of the Patient and Carer Race Equality Framework, which is designed to improve mental health trusts’ response to Black Asian and minority ethnic communities.

Health and Social Care secretary Matt Hancock said the proposed changes would “give people more autonomy over their care and will tackle disparities for all who access services, in particular for people from minority ethnic backgrounds”.

Wessley, the psychiatrist who chaired the 2018 review, said “The Mental Health Act White Paper proposes changes which address amongst others rising rates of detention under the act, the disproportionate number of BAME individuals detained and allows the patient voice to be heard better than in the past.”


‘Need to redress power imbalance’

Sarah Hughes, chief executive of the Centre for Mental Health, said: “The need to modernise the Mental Health Act could not be clearer. Every year, the number of people who are sectioned grows. While we know this can save lives, the use of coercion can also cause lasting trauma and distress. And we have known for too long that Black people are subjected to much higher levels of coercion at every stage of the system.

“It is time for this to change. We need to redress the power imbalance between people subject to the Act and the state and to make the system fairer for all. We hope that today will bring us a step closer to mental health legislation that respects and protects people’s rights and dignity, that reduces inequality and that turns the tide on the growing use of coercion.”

Meanwhile, Sophie Corlett, director of external relations at Mind, pressed the importance of those who have been detained under the Mental Health Act, as well as their loved ones, feeding into the consultation and helping shape the reforms.

“Given Black people are four times more likely to be sectioned than white people, it’s crucial the government hears from people from different Black, Asian and minority ethnic groups.

“We want to see steps taken to identify, address and tackle underlying and systemic racism that results in disproportionate detentions and use of force.”

Impact on people with learning disabilities and autism

The paper also aims to reduce the detention of people with learning disabilities or autism, following longstanding concerns over the stubbornly high numbers of them in mental health hospitals.

It said the requirement that care and treatment should always have the purpose of therapeutic benefit would prevent the “warehousing” of people – often those with learning disabilities or autism – in hospitals without benefit.

The government also proposes ending the detention of people with learning disabilities or autism under section 3 (detention for treatment) unless they have a co-occuring mental health condition. They could still be detained under section 2 (for assessment, for up to 28 days) but only if there is substantial risk of significant harm to self or others and a probably mental health cause to the behaviour.

Councils and NHS commissioners would also be under a duty to provide sufficient community services for people with learning disabilities or autism.

The proposals were welcomed by Mencap and the National Autistic Society but both stressed that the community services duty needed to be backed by investment, particularly in social care.

‘Reform needs funding’

Local government and NHS leaders also welcomed the reform plans but said they needed to be backed by investment.

Ian Hudspeth, chairman of the Local Government Association’s community wellbeing board, said the White Paper provided “an excellent opportunity to update the law and improve support for everyone who needs it”, adding: “The challenges with the current act are also indicative of a system that is under strain because of increased demand and reduced funding. Any reform of the Mental Health Act needs to include ongoing funding for councils’ mental health services, so they can continue to invest in effective support to meet existing, new and unmet demand.”

NHS Providers deputy chief executive Saffron Cordery said: “Reform of the Mental Health Act alone will not be enough. We need to address the underlying issues driving the pressures on services and the rising severity and complexity of people’s needs. We must fully and promptly fund, on a sustainable basis, the rapid expansion of services required to meet extra demand, and adequately invest in the mental health workforce.

“Alongside this, there must be increased support for public health and social care given the crucial role these services play in providing people with the care they need at an early stage, before they reach a crisis. Community-based specialist mental health care capacity must increase if the need to detain under the act is to decrease.”

Backing from BASW

The paper also garnered support from the British Association of Social Workers (BASW).

Maris Stratulis, national director at BASW England, and Allison Hulmes, national director at BASW Cymru, said: “Human rights, choice and safety must be upheld and scrutinised, especially when people are admitted to hospital on a compulsory basis without their consent.

“Any reform that creates more freedoms, equality and investment in mental health community resources is welcome.

“Too many people from Black and Minority Ethnic communities, adults with learning disability and autistic adults are detained under the Mental Health Act. This disproportionate over-representation cannot continue and we need to invest and create more preventative, community and family-based services.

“BASW England and BASW Cymru look forward to being key stakeholders in the consultation response.”

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9 Responses to Long-awaited Mental Health Act overhaul bids to empower patients and tackle racial disparities

  1. Phil Belcher January 13, 2021 at 10:27 am #

    Do you have a link to it?

    • Mithran Samuel January 13, 2021 at 11:52 am #

      Hi Phil, we’ve added in a link to the press release but the paper itself doesn’t appear to be available at the moment. When it is, we’ll add it in.

      • Mark Trewin January 13, 2021 at 1:51 pm #

        it should be out later after it is laid before parliament

  2. David Glover January 13, 2021 at 6:08 pm #

    I hope the proposed changes usher in a change not just in legislation but in the practice of our MH services. For too long our services have been under funded and relied too heavily on medicalised approaches which often fail to validate gender, culture and inclusivity. Service user involvement/ increased advocacy, restorative practice and an openness to change must be the way forward together with a willingness to look beyond conventional approaches to mental health.

  3. Sandra January 14, 2021 at 3:39 pm #

    Restricting the power of AMHP’s will be crucial if we are to make services more therapeutic. I am concerned at the suggestion that under certain conditions AMPH’s will be able to choose the nominated person. I am afraid it’s too easy for social workers to not honestly own their responsibilities for current service shortcomings. AMPH’s have to stop excusing their complicity by claiming a supposed helplessness within the “medical model”.

  4. Marie January 17, 2021 at 5:18 pm #

    The therapeutic nature needs to be embedded. This is absent currently


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