Mental Health Act reform: where the government stands

By Tim Spencer-Lane

The draft Mental Health Bill, published in June 2022, contained proposals to update the Mental Health Act 1983 (MHA). A joint committee of both Houses of Parliament was then appointed to scrutinise the draft bill.

The joint committee’s final report, which made 55 recommendations, was published in January 2023.

On 21 March 2024, the government published its long-awaited response to the joint committee’s report. The following is a summary of the response.

When will the bill be introduced?

The government said it would seek to introduce a revised bill “when Parliamentary time allows”.

However, the bill was not included in the 2023 King’s Speech, making it all but certain that it will not be introduced before the next general election, due by January 2025.

Principles for the MHA

The draft bill would not place statutory principles on the face of the MHA, contrary to the recommendations of the Independent Review of the Mental Health Act, on which it was based.

The review had identified four such principles: choice and autonomy; least restriction; therapeutic benefit, and the person as an individual.

The committee recommended that the new MHA require the secretary of state to draw up the code of practice having regard to and including the principles set out by the independent review. This would replace section 118 of the MHA, which requires the secretary of state to produce, and periodically revise, the code.

The government confirmed that it was “firmly supportive” of the four principles. However, it disagreed that replacing section 118 was the most effective means of driving cultural change and ensuring the principles were central in all MHA decisions.

Instead, the new principles would be embedded substantively in “targeted, specific and practical measures” and “clearly set out up front” in the revised code.

Community treatment orders (CTOs)

The draft bill would tighten criteria for CTOs; however, the committee went further and recommended they be abolished for part 2 (civil) patients.

This was on the grounds that CTOs were used more than intended, offered insufficient benefits and were used disproportionately for black and minority ethic patients.

In respect of part 3 (forensic) patients, the committee felt the evidence on the benefits of CTOs was inconclusive. It recommended that the bill should require a review of CTOs within three years of it becoming law.

The government did not accept these recommendations. It argued that, for some patients, CTOs provided the least restrictive option. It added that the abolition of CTOs would lead to an increase in delayed discharges and over-reliance on other areas of the MHA that were not designed for longer-term cases, such as section 17 leave.

The government also argued that the reforms set out in the the draft bill, including higher thresholds for the use of CTOs, would improve practice around these orders.

Detention criteria

The draft bill would amend the detention criteria under part 2 of the MHA by requiring that “serious harm” may be caused to the health and safety of the patient or others without detention, and that detention was necessary given the nature, degree and likelihood of the harm, and how soon it would occur.

In relation to detention for treatment under section 3, “appropriate treatment” would need to be available, meaning there would need to be a reasonable prospect of therapeutic benefit.

The committee recommended that the revised code address the definition of “serious” harm and “appropriate treatment” and give guidance on how the “likelihood” of harm should be assessed.

It also recommended that consideration of “how soon” harm might occur should not be included in the bill because it might dissuade potentially beneficial and shorter interventions at an earlier stage.

The government agreed to review the wording on “how soon” harm may occur and work to address any potential unintended consequences. It also agreed that it would be important to clarify the new detention criteria in revised code.

Part 3 detention criteria

The committee felt that, because the draft bill would not extend the tightened detention criteria to part 3 patients, it may be easier to be detained under part 3. It therefore recommended that the changes in detention criteria should be consistent across parts 2 and 3.

The government did not accept this recommendation, arguing this would make it more difficult to divert patients in the criminal justice system to hospital, where they were more likely to receive more therapeutic and specialist support.

Learning disabilities and autism exclusion

The committee felt that a “staged approach” was needed to the provisions of the draft bill which  would remove learning disability and autism as conditions for which an individual could be detained for treatment under section 3.

It argued this would allow time for investment in community services and noted concerns that the reform may increase the risk of people with learning disabilities and autistic people being detained under the Mental Capacity Act.

The government agreed there would need to be an appropriate level and range of community support to commence these provisions and committed to publish a delivery plan when the bill enters Parliament.

It also agreed to monitor the outcomes of the reforms for people with learning disabilities and autistic people and confirmed it was seeking to commission an evaluation for this purpose.

However, the government disagreed with the committee’s idea of creating a mechanism to extend section 2 detention for some people with learning disabilities and autistic people. It warned that this would risk creating an alternative route to longer-term detention, which was often inappropriate for people with learning disabilities and autistic people.

The government also rejected amending the Deprivation of Liberty Safeguards (DoLS) so that it could not be used as an alternative route to the MHA, arguing that in some cases this may be the most appropriate option.

Care (education) and treatment reviews (CETRs)

There draft bill would provide a statutory right to care (education) and treatment reviews (CETR), which are designed to ensure people with learning disabilities and autistic people are hospitalised for the minimum amount of time possible

The committee recommended that the proposed duty on local authorities and integrated care boards (ICBs) to have regard to the recommendations of a CETR should be strengthened to place a greater onus on them implementing the recommendations.

It also wanted to see the maximum time between reviews shortened from twelve to six months.

The government disagreed that the duty to implement CETR recommendations needed to be amended, arguing that the “have regard to” duty is commonplace in law and requires serious consideration to be given to the recommendations made

However, it recognised the committee’s concern that a 12-month review may be too long and agreed to consider further the best way of ensuring that individuals receive CETRs at the appropriate intervals.

Risk registers

The committee recommended that the proposed “risk register”, which ICBs would be required to establish for people with learning disabilities and autistic people at risk of detention, should be renamed “dynamic support register” to better reflect its purpose.

In addition, there should be a “firm duty” on commissioners to ensure the adequate supply of community services for people with learning disabilities and autistic people.

The government agreed to consider further the drafting suggestion but disagreed that a new “firm duty” was needed, arguing that the existing provisions in the draft bill were sufficient to ensure an adequate supply of community services.

Right to appeal a treatment decision

The committee recommended that the draft Bill be amended to provide a pilot scheme for patients to appeal treatment decisions at the mental health tribunal.

The government disagreed, arguing that it would not be appropriate for tribunals to be able to make determinations about whether an individual clinical judgement about treatment, made in good faith, is right or wrong in a particular case.

Nominated persons

The Joint Committee welcomed the proposed nominated person role, which would replace the nearest relative. It recommended that the Government work with approved mental health professionals (AMHPs) to address certain practical concerns.

It also recommended further consultation, and new proposals, on how the nominated person role should apply to under 18s.

The government confirmed that it has been working with AMHPs and would amend the draft bill to improve the practicalities around appointing a nominated person.

It did not agree that new proposals were needed for under 18s and confirmed it would be taking forward the provisions already included in the draft bill. The respective roles and decision-making powers of the nominated person and the body or person with parental responsibility would be set out in the revised code of practice.

Advocacy

The draft bill would extend the statutory right to an independent mental health advocate (IMHA) to all mental health inpatients, including voluntary patients. It would also introduce a form of ‘opt out’ advocacy to ensure all detained patients are offered a service.

The committee recommended that once capacity has been built up in the advocacy sector, the “opt out” scheme should be extended to voluntary patients. It also recommended a central advocacy service, to address shortages in specialist advocacy, and a statutory right to request “culturally appropriate advocacy”.

The government rejected these recommendations. It argued that the draft bill would already extend the right to an IMHA to informal patients and the new opt out scheme should be prioritised for formal patients who are potentially more vulnerable compared to informal patients.

It also felt that a national service risked creating confusion and potential gaps, including in relation to differing respective roles of local and any nationally commissioned service provision.

Finally, the government was not in favour of introducing a statutory right to access culturally appropriate advocacy in the bill at this stage.

But intends to consider the findings of its pilots of culturally appropriate advocacy, carried out from 2021-22,  before deciding if legislation would be the correct mechanism for implementation of such a policy.

Supervised discharge

The committee recommended that extra safeguards were necessary for the draft bill’s proposed “supervised discharge” power, which would enable the secretary of state for justice to discharge restricted patients subject to conditions amounting to a deprivation of liberty.

In particular, it proposed that the mental health tribunal must be involved in the decision to place someone on supervised discharge to ensure that therapeutic benefit is considered.

The government did not agree. It argued it would be inconsistent for the tribunal to have more powers than the secretary of state over supervised discharge, given these patients will present a higher public protection risk than those suitable for ordinary conditional discharge.

But the government agreed to publish operational guidance, to make clear that the secretary of state should have regard to the principle of therapeutic benefit and only use supervised discharge when the evidence indicated it was in the best interests of the patient.

Transfer from prison to hospital

The committee recommended a new statutory role to oversee the proposed 28-day time limit within which relevant bodies must “seek to ensure” patients are transferred from prison to hospital.

It also said the duty to transfer should be strengthened by removing the words “seek to”.

The government confirmed that it intended to develop a new non-statutory role to oversee the transfer process, but stated that it felt that the current wording of the draft bill was sufficiently robust.

A&E services

The committee raised concerns about a “gap” in mental health care when individuals experiencing a crisis arrived in A&E departments, yet there was no power to formally hold them.

It recommended that the government consult further on a short-term emergency detention power.

The government accepted that there may be a need to provide greater legal clarity to clinicians in A&E and said it would continue to engage with stakeholders to understand how the current legal framework was being applied and what, if any, legislative changes may be required.

MHA and Mental Capacity Act interface

The committee raised a number of concerns about the complex interface between the MHA and Mental Capacity Act, particularly for people with learning disabilities and autistic people.

It also raised specific issues to be resolved under the Liberty Protection Safeguards (LPS), the government’s proposed replacement for the DoLS.

The government confirmed it would review the impact of the reforms for those with learning disabilities or autism, including to ensure there was not simply a displacement from the MHA to the DoLS.

It also confirmed that, since the implementation of the LPS had been delayed beyond the lifetime of this Parliament, it would not be considering the specific issues raised by the committee at this point in time.

Advance choice documents (ACDs)

An ACD is a written document setting out a person’s wishes and preferences for how they would like to be treated when they experience a mental health crisis.

The committee recommended a statutory right for detained MHA patients to request an ACD be drawn up.

The government agreed with the aim of this recommendation but argued it was best achieved by placing a duty on services to carry out activity in relation to ACDs, rather than the onus being on the patient to make a request.

It confirmed it was exploring how best to take this forward.

Children’s capacity

The committee recommended that there should be a consultation on the introduction of a statutory test for “competency, or ‘child capacity’” in the bill for children under 16.

The government did not accept this recommendation, arguing that a separate statutory test in the MHA would create a complicated position for under 16s and Gillick competence should remain the accepted competence test for under 16s across all settings.

Reasonable adjustment flag

The committee recommended that all people known to mental health service with learning disabilities or autism should have a “reasonable adjustment flag” attached to their record, with an option for individualised adjustments of preferred communication and the name of their advocate.

The government accepted this recommendation and confirmed that NHS England was working to implement a reasonable adjustments digital flag within patient records.

Mental health commissioner

The committee recommended that the post of a statutory mental health commissioner be created to provide an independent voice advocating for mental health service users and act as a watchdog to oversee the implementation of the reforms.

The government did not agree that a statutory mental health commissioner would add significant value within the framework currently provided by existing bodies, such as the Care Quality Commission. Therefore, it does not intend to take this recommendation forward.

The responsible person

The committee recommended that there should be a “responsible person” for each health organisation, whose role should include data collection and analysis on ethnicity and the use of the MHA and overseeing workforce training and policies to address bias and discrimination.

The government envisaged this as an additional duty on existing staff, rather than a new role, and agreed to consider this proposal further ahead of the introduction of the bill.

Ongoing mental health law reform

The committee recommended that the draft bill, once implemented, should not be the end of the law reform process and there must be an ongoing process of mental health legislation reform, leading in the direction of more “fused” and rights-based legislation.

In response, the government said it would commission an independent evaluation of the reforms and keep mental health legislation under review, including the matter of fusion and a rights-based approach.

Tim Spencer-Lane is a lawyer who specialises in mental capacity, mental health and social care law and legal editor of Community Care Inform