Reforming the Mental Health Act

The Government’s white paper on Reforming the Mental Health Act, published on 13 January 2021, contains wide-ranging proposals to reform the Mental Health Act 1983 (as amended in 2007) in England and Wales.

This briefing outlines the background to the reforms, some of the main proposals in the white paper and initial reactions. It also outlines the Government’s response to a consultation on the white paper proposals details of the draft Mental Health Bill, published in June 2022 and initial reactions to the Bill. Further information on wider mental health policy in England can be found in the Library Briefing Mental Health Policy in England.

The white paper was preceded by an Independent Review which published its final report, Modernising the Mental Health Act, in December 2018. The purpose of the Independent Review was to understand:

• the rising rates of detention under the Mental Health Act;
• the disproportionate numbers of people from black, Asian and minority ethnic groups (BAME) in the detained population; and
• investigate concerns that some processes in the Act are out of step with a modern mental health system.

The Independent Review recommended changes to the law to make it easier for patients and service users to participate in decisions about their care, to restore their dignity and recognize the importance of human rights in mental health care. The Independent Review made over 150 recommendations and the Government accepted most and incorporated them in the white paper.

The white paper is divided into three sections – the first focuses on the legislative changes; the second outlines what policy and practice changes are required to support the new law and improve patient experiences; and the final section considers the Government’s response to the earlier Independent Review.

The white paper includes a range of proposals to reform the Act as well as to bring about improvements in policy, practice, and service delivery. The overall aim is to bring the law in line with modern mental health care and ensure that patients are involved more closely in decisions about their care and treatment.

Included in the proposals for legal change are plans to tighten the admission criteria and raise the threshold for compulsory detention; reduce the use of community treatment orders; strengthen some of the statutory safeguards by giving more frequent access to the tribunal to review detention; bolster support from family members and independent advocates; and enable patients to make advance choices about their future mental health care and treatment. There are also proposals designed to reduce the use of the Act for persons with a learning disability and/or on the autism spectrum, and a range of measures targeted at improving the experiences of persons from BAME groups.

The Government consulted on the white paper proposals from January to April 2021 and published its response to the consultation in August 2021. Respondents were broadly supportive of the proposals. The Government said it would continue to work with stakeholders to refine the proposals, to make final policy decisions and develop a draft Bill.

The Queen’s Speech in May 2022 included an announcement on draft legislation to reform the Mental Health Act. The draft Bill will be subject to pre-legislative scrutiny before it is introduced in Parliament.

Sajid Javid, the Secretary of State for Health and Social Care introduced the draft Mental Health Bill in parliament on Monday 27^th June 2022. He said the Bill will “modernise legislation” and “make sure that it is fit for the future”.

On 28^th June 2022, Lord Kamall, The Parliamentary Under-Secretary of State for the Department of Health and Social Care indicated that pre-legislative scrutiny would “commence at the earliest opportunity” and the government’s ambition is “to introduce the Bill in the new year.”

The draft Bill contains a number of amendments to the Mental Health Act 1983 which would bring in the following changes:

• Autism and learning disability would not be considered to be conditions for which a person could be subject to compulsory treatment under section 3.
• Changes to the criteria for detention by setting out two new tests with a higher risk threshold
• A new definition of “appropriate medical treatment” to require that the treatment must have a reasonable prospect of alleviating, or preventing the worsening of, the patient’s mental disorder.
• A new duty on the clinician in charge of the patient’s treatment to consider certain matters and take a number of steps when deciding whether to give treatment to a patient under Part IV of the Act.
• A requirement for the clinician responsible for overseeing the patient’s care as a community patient, to be involved in decisions regarding the use and operation of the CTO.
• A new power for Mental Health Tribunal to recommend that the Responsible Clinician reconsider whether a particular CTO condition is necessary, in cases where the Tribunal has decided not to discharge a person from a CTO.
• A new statutory role, the nominated person to replace the current Nearest Relative role in the Act.
• Quicker expiry of the initial detention period under the Act and more frequent review and renewal of the detention.
• Extend the amount of time patients can apply to the Mental Health Tribunal and make automatic referrals more frequent.
• A new power of ‘supervised discharge’ and a statutory 28-day time limit for the transfer of a person from prison to hospital for treatment under the Mental Health Act.
• Expand access to an Independent Mental Health Advocate (IMHA) from only those detained under the Act, to voluntary (or ‘informal’) patients and a statutory duty on hospital managers to supply information on complaints procedures to detained patients and their Nominated Person.
• Powers to allow Mental Health Tribunals to make recommendations to the “responsible after-care body” to make plans for the discharge of a patient at a future date.
• Reforms to the identification of which particular NHS body and local authority is responsible for arranging the after-care.
• Reversal of the burden of proof, so that the local authority responsible for the guardianship must prove that the patient continues to meet the guardianship criteria in Mental Health Tribunals.
• Removal of prisons and police cells from places of safety.
• Prevention of the remand of a person for their own protection when the concerns arise from their mental health needs.
• Transfer of patients from Crown Dependencies into England and Wales for reports and treatment.

The draft Bill has been broadly welcomed by stakeholders. However, there have been calls for investment in community social care and mental health services and the mental health workforce. Others have called for pre-legislative scrutiny to improve safeguards for children and young people and take further steps to address racial inequalities.