Proposals to overhaul the Mental Health Act 1983 will be considered by Parliament over the next year, the government announced today in the Queen’s Speech.
It will produce a draft bill designed to reduce the number of detentions, tackle longstanding racial disparities in the use of compulsory powers and end the detention of people on the sole grounds of them being autistic or having learning disabilities.
The draft bill will likely be considered by a parliamentary committee, a process that will inform the production of full legislation to reform the act – though it is not clear when this will be published.
The reform plans are based on the government-commissioned Independent Review of the Mental Health Act, whose final report was published in December 2018, and a follow-up white paper produced in January 2021.
The government said the proposals were designed to provide greater control for people over their treatment and more dignity in care, and reduce the use of hospital care for autistic people and those with learning disabilities.
Specific proposals in the draft bill will include:
- Amending the definition of a mental disorder so that people can no longer be detained solely on the basis of being autistic or having a learning disability. They would have to have a co-occurring mental health condition. Currently, people with a learning disability can be subject to the act’s powers if this is “associated with abnormally aggressive or seriously irresponsible conduct”, while autism is classed as a “mental disorder” for the purposes of the act.
- Changing the criteria for detention so that the act’s powers can only be used if there is “genuine risk to [the person’s] own safety or that of others, and where there is a clear therapeutic benefit”. Currently, a person can be detained for assessment if necessary for the health and safety of the person or the protection of others, and for treatment if any of these conditions exist, appropriate treatment is available and it can only be provided under detention.
- Allowing people to choose a “nominated person” to support and represent them when under the act’s powers, rather than have a “nearest relative” assigned to them.
- Increasing the frequency with which people can make appeals to tribunals on their detention and providing tribunals with a power to recommend that aftercare services are put in place.
- Introducing a statutory care and treatment plan for all people in detention, written with them and setting out a clear pathway to discharge.
‘Outdated legislation continuing to fail people’
Learning disability charity Mencap welcomed the announcement, pointing to the 2,000 people with learning disabilities or autistic people currently in inpatient settings.
“Laws are supposed to protect people, yet this outdated legislation has continued to fail people with a learning disability and/or autism,” said chief executive Edel Harris.
“There are currently over 2,000 people locked away in institutions, the vast majority detained under the Mental Health Act. Many are subject to physical restraint, solitary confinement and overmedication. They face increased abuse and neglect, and are often forced to live many miles away from their families inside institutions.”
Legislation ‘not enough on its own’
The draft bill was welcomed by NHS Providers, which represents health trusts, but it said that accompanying action needed to be taken to increase funding for mental health services, improve the wellbeing of a workforce put under great strain by Covid and tackle racial inequalities in mental healthcare.
Director of policy and strategy Miriam Deakin said: “We support proposed changes to the act that will give people a greater say in planning their care and recovery. It will be important for the bill to reflect consideration of the practical implementation of a number of proposals.
“A new Mental Health Act on its own won’t be enough to guarantee high-quality mental health services or transform the way we deliver them for years to come. Mental health services are under severe strain from huge demand and limited resources.”
‘Missed opportunity to value carers’
Meanwhile, carers’ campaigners expressed disappointment that the government did not bring forward its long-awaited Employment Bill, in which it had pledged to legislate to give carers the right to take five days’ unpaid leave from work a year. This was a commitment from the 2019 Conservative manifesto.
“This is such a missed opportunity to value carers and to ensure that they had the support to continue to juggle work and care,” said Carers UK chief executive Helen Walker.
“With severe social care shortages and pressures on the NHS, families simply can’t do it all. Many are at breaking point. This is precisely the time when government really should be investing in carers and their families as well as employers by bringing in the right to up to one week’s unpaid Carer’s Leave and a day one right to request flexible working.”
The latter is a reference to another government pledge, to enable all workers to request flexible working from the point they start a job, not after 26 weeks’ continuous service, as presently.