By Tim Spencer-Lane
The government has published its much-anticipated draft Mental Health Bill to amend the Mental Health Act 1983 (MHA).
According to the government, the draft bill includes “a range of changes to shift the balance of power from the system to the patient, putting service users at the centre of decisions about their own care”. The following is a general summary of the key provisions in the draft bill.
Get up to speed on the MHA
Tim Spencer-Lane will be providing detailed guidance on how practice in relation to the Mental Health Act would change under the government’s proposed reforms, at this year’s Community Care Live, in one of our eight legal learning sessions at the event on 11-12 October. Up until 22 July, you can take advantage of our early bird rate of £30 + VAT per session. To secure your place, register now for the event and then book your preferred legal sessions.
Tighter detention criteria
The draft bill would tighten the criteria for detention under the MHA to address the rising and disproportionate rates of detention, and to end the inappropriate admission of people with learning disabilities and autism to mental health hospitals.
Firstly, section 2 would be amended to insert the following tests for detention:
- That serious harm may be caused to the health or the safety of another person, unless the person is detained, and
- It is necessary, given the nature, degree and likelihood of the harm, and how soon it would occur, for the patient to be detained.
Secondly, the section 3 detention criteria would be amended to insert the following new tests:
- That serious harm may be caused to the health or the safety of another person, unless the patient receives medical treatment;
- It is necessary, given the nature, degree and likelihood of the harm, and how soon it would occur, for the patient to receive medical treatment;
- That medical treatment cannot be provided unless the patient is detained, and
- Appropriate treatment is available (which is defined as meaning there must be a reasonable prospect that the outcome of the treatment would have a therapeutic benefit for the patient).
Thirdly, learning disability and autism would be excluded from the definition of mental disorder for the purposes of section 3. This means a patient could not be detained under section 3 for treatment, solely on the basis of learning disability or autism. The learning disability exclusion does not apply to part 3 patients (those in the criminal justice system).
Replacing the nearest relative
The draft bill would replace the nearest relative with a new statutory role, the nominated person (NP). The NP could be selected by the patient at any time when they had capacity or competence to do so. The nomination would have to be witnessed by a health or care professional, who must confirm a number of matters, including that there was no reason to think that the patient lacked the relevant capacity or competence or that undue influence had been used.
The NP would continue to represent the patient even if that patient subsequently became unwell and no longer had the relevant capacity or competence. If the patient lacked capacity or competence to nominate, and had not made a nomination, an approved mental health professional (AMHP) would be able to appoint a NP for the patient.
The NP would have the same rights and powers as nearest relatives have now. In addition, the NP would have new rights to be consulted about statutory care and treatment plans and transfers between hospitals, and to object to the use of a community treatment order.
The road to the draft bill
The draft bill seeks to take forward recommendations made by the Independent Review of the MHA, which was chaired by Professor Sir Simon Wessely. The final report of the review was published in December 2018 and made 154 recommendations covering both legislative reforms and changes to policy and practice. The government published its response in a white paper, which accepted the vast majority of the review’s recommendations. The subsequent consultation on the white paper reported in July 2021 and showed broad support for the proposed reforms.
Currently, when a nearest relative exercises their powers inappropriately, the only means of overruling them is to remove or displace them as nearest relative. The draft bill would change this to enable the NP to be temporarily overruled when they exercise certain powers (such as the right to object to a section 3 admission). This is intended to ensure that, where appropriate, the NP would continue to have a role in the patient’s care and treatment. The county court would retain the power to terminate the appointment of an NP either permanently or for a specified time.
Requirements for compulsory medical treatment
The draft bill makes several reforms to part 4 of the MHA, which regulates when treatment can be imposed on detained patients.
It would introduce a ‘clinical checklist’, which would apply to clinicians making treatment decisions. There would be a duty on the treating clinician to consider certain matters and take a number of steps when deciding whether to administer medical treatment to a patient. These include considering the patient’s wishes and feelings, assisting patients to participate in treatment decisions and consulting those close to the patient. This is intended to ensure that, as far as possible, decisions would be based around the patient’s wishes, preferences and needs.
Currently, the MHA requires that in order to continue giving medication to a patient, after three months have passed, an approved clinician or second opinion approved doctor (SOAD) must certify certain matters, such as that the treatment is appropriate and the patient is, or is not, “capable of understanding the nature, purpose and likely effects” of the treatment. The draft bill would shorten the three-month period, to two months. It would also amend the language to refer to “capacity” and “competence” and require confirmation of therapeutic benefit.
New safeguards would be introduced for patients refusing medication, either with capacity or competence at the time, or in a valid and applicable advance decision, or where the treatment were in conflict with a decision made by a donee of a power of attorney or deputy or the Court of Protection. In these circumstances, the treatment could not be given unless there was a ‘compelling reason’ to give the treatment and a SOAD had provided certification. A compelling reason means that no other forms of treatment are available or that alternatives are available but the patient has not consented (or they would conflict with an advance decision or a decision by a donee or deputy or the Court of Protection).
The draft bill would also give additional safeguards to patients who had refused urgent ECT, either with capacity or competence at the time, or in a valid and applicable advance decision, or where the treatment was in conflict with a decision made by a donee or deputy or the Court of Protection. In order to give such treatment, a SOAD must first issue a certificate within a prescribed time period. Regulations could also specify circumstances in which the approved clinician could give the certificate, rather than the SOAD.
Also, a patient with the relevant capacity or competence would be able to refuse urgent treatment which was considered necessary to alleviate serious suffering. This is based on the policy rationale that patients with the relevant capacity or competence should be able to make their own judgments on the degree of suffering they are willing to accept.
Right to statutory care and treatment plans
The draft bill would create a right to statutory care and treatment plans for certain detained patients. In general terms, this right would extend to all such patients except those subject to ‘short-term’ detention. Responsible clinicians would be placed under a duty to prepare and regularly review the plan, and regulations would be used to set out the contents of the plan.
Access to independent mental health advocates (IMHAs)
IMHAs are specially trained advocates who represent and support patients detained under the MHA. The draft bill would extend the right of an IMHA to informal patients, impose duties on hospital managers and others to notify advocacy services about qualifying patients and impose duties on advocacy services to arrange for qualifying patients to be interviewed to find out if they wanted to use those services. These changes would apply in England only.
Shortened detention periods
The draft bill would shorten the period that a patient may be kept in detention for treatment. The initial detention period would be reduced from six months to three months. This could be renewed for a further three months (reduced from six months) and then for six months (reduced from one year). These changes would mean the patient’s initial detention would expire sooner and if the detention were to continue, it would have to be reviewed and renewed more frequently.
Mental health tribunal access
The draft bill seeks to ensure that patients have greater access to the tribunal. Specifically:
- section 2 patients would be able to apply to the tribunal within 21 days of detention (rather than 14 days currently);
- section 3 patients would be able to apply within three months (rather than six months currently), and
- automatic referrals to the tribunal would take place – in cases where the patient had not exercised their right to apply – three months from the date on which the patient was first detained and then every 12 months.
Tightened criteria for community treatment orders (CTOs)
In response to concerns that CTOs are used too often, patients stay subject to them for far too long, and they are used disproportionately on black people, the draft bill would tighten the criteria for their use. CTOs could only be used if there was a risk of “serious harm” to the health and safety of the patient or others, and consideration had been given to the “nature, degree and likelihood of the harm, and how soon it would occur”.
In addition, there would have to be a reasonable prospect that the CTO would have a therapeutic benefit for the patient. The CTO would also have to be agreed in writing by the community clinician. The mental health tribunal would also be given the power to recommend that the responsible clinician reconsidered whether a particular CTO condition was necessary.
People with a learning disability and autistic people
As well as the exclusion from section 3 detention (see above), the draft bill also includes other reforms aimed at improving the position of those with learning disability or autism. Care (education) and treatment reviews (C(E)TRs) would be placed on a statutory footing. There would be a duty on responsible commissioners to make arrangements for C(E)TRs for detained patients with a leaning disability and autism. Decision makers would be required to have regard to the recommendations made by the C(E)TR.
There would be a duty on integrated care boards (ICBs) – which now commission NHS care – to establish and maintain a risk register in their area of individuals with a learning disability and autism who were at risk of hospital admission, and to monitor their care and treatment requirements. Individuals could only be included in the register with their consent. ICBs and local authorities would have to have regard to the information contained in the register when exercising their commissioning and market functions.
Section 117 services
The draft bill would make reforms to the identification of which NHS bodies and local authorities were responsible for arranging section 117 after-care services to individual patients, by applying ‘deeming rules’ to the determination of ordinary residence. In broad terms, this means that when patients were placed out of area, they would remain ordinarily resident in the area of the placing authority for the purposes of section 117 services. In order to discharge section 117, services would be required to put this to the patient in writing. These proposals are, in part, a response to the ‘Worcestershire case’.
The mental health tribunal would also be given the power to recommend to NHS bodies and local authorities that after-care services be provided for a patient. The tribunal could reconvene to reconsider a case if any such recommendation were not complied with.
Patients in the criminal justice system
Other reforms would speed up the transfer from prison to mental health inpatient settings, by introducing a 28-day time limit, amending the detention criteria and a setting out a process to facilitate the process. This is intended to ensure that transfers take place more swiftly to an appropriate hospital.
A new power of ‘supervised discharge’ would be introduced that allowed the mental health tribunal or the secretary of state for justice to place conditions that amounted to a deprivation of liberty on a patient as part of a conditional discharge. This would apply in a small number of high-risk cases where the patient was no longer benefiting from hospital detention, but the conditions were necessary to protect the public from serious harm. This is a response to the Supreme Court decision in MM v Secretary of State for Justice  UKSC 60, which held that a patient with capacity could not be discharged in this manner under the existing provisions of the MHA.
Places of safety restricted
The draft bill would remove police cells and prisons from the definition of a place of safety, including for the purposes of sections 135 and 136. This provision has been made in response to evidence which suggested they were not suitable environments for people with a severe mental health need awaiting assessment and treatment.
Tim Spencer-Lane is a lawyer who specialises in mental capacity, mental health and social care law and legal editor of Community Care Inform.