By Andy Bell

The Mental Health Act is the legal framework through which people in England and Wales who have a mental illness can be detained in hospital and given treatment without their consent. It governs what circumstances this can happen in, how compulsory powers should be exercised (and by whom) and what safeguards are in place to protect us while we're under its powers.

The Act has recently come back into focus following Theresa May’s pledge to change the Act if the Conservatives are re-elected on 8 June. That announcement has brought about a flurry of debate about the rights and wrongs of the Act and the wisdom or otherwise of changing it.

The current Mental Health Act dates back to 1983 (and its predecessor from 1959) but was substantially rewritten in 2007 and has since been amended on several occasions, most recently earlier this year to prevent children being detained in police stations as ‘places of safety’ under Section 136.

The Mental Health Act was used 63,622 times in 2015/16. Over the last decade, use of the Mental Health Act has increased by 47% according to official statistics (Uses of the Mental Health Act Statistics 2015/16, 2016, NHS Digital 2016). The largest year-on-year increase in use of the Act was 10% between 2013/14 – 14/15; last year the increase was slightly less at 9%. Over this same period, the number of detained people in independent service provider hospitals has increased from 17% in 2006 to 30% in 2016.

The Care Quality Commission have expressed concerns about this significant rise in the use of the Act on several occasions. They suggest that the reason for this will be unique to individual areas but also note that one reason for this could be due to lack of community alternatives to inpatient care (Monitoring the Mental Health Act 2015/16, 2016).

Over the last decade, use of the Mental Health Act has increased by 47%

What does the evidence to hand tell us about the Act, its strengths and weaknesses, and the potential risks and benefits of changing it?

First, we know that it's being used more and more often every year. Since the 2007 revisions, use of the Mental Health Act to detain people has risen. Whether this is a result of the broader scope of the 2007 Act or of reductions in the number of hospital beds, community crisis services and other support for people with mental health problems during that time is not possible to tell, but it is likely to reflect all of these factors to some extent. It is therefore likely that changing the Act to limit the use of compulsion may help to stop the seemingly inexorable rise, but not without significant investment in community support, social care and housing, for example.

The most controversial element of the 2007 Act was the introduction of community treatment orders, extending the use of the Act beyond hospital discharge. These orders are used with about 4,000 people at a time, more than was estimated when the Act was passed but now relatively stable in number after a steep initial rise. The official evaluation of CTOs, carried out at the University of Oxford, found that they did not appear to confer any benefits (for example in terms of quality of life or treatment outcomes) but that they did curtail people’s liberties and on that basis were hard to justify.

Changing the Act to limit the use of compulsion may help to stop the seemingly inexorable rise, but not without significant investment in community support, social care and housing

There are other elements of the Act that have been identified as requiring reform. A Coalition Government green paper in 2014 identified particular shortcomings in relation to the treatment of people with learning disabilities and autism. Provisions in relation to the Mental Capacity Act, the so-called Deprivation of Liberty Safeguards, have also been widely cited as requiring revision.

Inequalities in the application of the Mental Health Act are also a major cause for concern. The disproportionate use of compulsory powers on people from some BME communities is widely recognised, and while the reasons are much disputed (and it is not clear what changing the Mental Health Act could do to address them), the need to address race inequality in mental health remains pressing.

Successive reports from the Care Quality Commission have also pointed to other issues in relation to the Mental Health Act, from restrictive practices in some wards to the very long stays in hospital some people face. And concerns have been expressed about the placement of children on adult wards (despite the 2007 Act outlawing this practice in most cases) and the long delays prisoners face in getting transferred to hospital when they need urgent care.

The disproportionate use of compulsory powers on people from some BME communities is widely recognised... the need to address race inequality in mental health remains pressing.

The last major review of the Mental Health Act was carried out in 1999, through an independent commission led by Genevra Richardson. Much has changed since then. Some 97% of people using mental health services are receiving support outside hospital. Many services now regard personal recovery as their primary goal, rather than focusing on symptom management and containment. There is a growing understanding of the importance of early intervention and the traumatic nature of being detained on top of any traumas people may have previously experienced.

All of this points to a strong case for a thorough review of the 1983 Act and its implementation, as recommended in the Mental Health Five Year Forward View.