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This briefing outlines the background to the reforms to the Mental Health Act 1983, including the main proposals in the white paper, the consultation and Government response, the draft Mental Health Bill and pre-legislative scrutiny.

The Mental Health Act applies in England and Wales only There are separate statutory provisions covering Scotland and Northern Ireland.

Independent Review of the Mental Health Act

In December 2018, the final report of the Independent Review of the Mental Health Act was published, entitled Modernising the Mental Health Act. 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 a subsequent white paper.

White Paper on Reforming the Mental Health Act

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

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 overall aim of the reforms to bring the law in line with modern mental health care and ensure patients are involved more closely in decisions about their care and treatment.

Proposals in the white paper included tightening admission criteria and raising the threshold for compulsory detention. There were also proposals designed to reduce the use of the Act for persons with a learning disability and/or autistic people, 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 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.

Draft Mental Health Bill

The Queen’s Speech in May 2022 included an announcement on draft legislation to reform the Mental Health Act.

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

On 28th June 2022, Lord Kamall, the Parliamentary Under-Secretary of State for the Department of Health and Social Care (DHSC) said pre-legislative scrutiny would “commence at the earliest opportunity” and the Government’s ambition was “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 changes such as:

  • redefining “mental disorder” so autistic people and people with a learning disability could not be treated under section 3 without a coexisting psychiatric disorder;
  • raising the threshold for detention and reviewing the need for detention more frequently;
  • replacing the Nearest Relative with a Nominated Person, chosen by the patient;
  • expanding access to advocacy services;
  • removing prisons and police cells as places of safety; and
  • for patients in the criminal justice system, introducing a ‘supervised discharge’ and a statutory 28-day time limit for transfer from prison to hospital.

The draft Bill was 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 called for pre-legislative scrutiny to improve safeguards for children and young people and take further steps to address racial inequalities.

Pre-legislative scrutiny

The draft Bill was subject to pre-legislative scrutiny by a Joint Committee from July to December 2022. The Committee published its report on 19 January 2023. It said the Committee supported reform, but the Government must strengthen the Bill to address rising detention rates and racial inequalities.

Recommendations by the Committee included introducing a new statutory Mental Health Commissioner role, abolishing CTOs for most patients and introducing statutory advance choice documents.

The Committee’s report has been welcomed by mental health, learning disability and autism charities. The Government has two months to respond to the report.

Further reading

Further information on wider mental health policy in England can be found in the Library briefing on Mental Health Policy in England.

Documents to download

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