A step towards modernising the Mental Health Act

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Andy Bell
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30 June 2022

By Andy Bell

This week, the UK Government published a draft bill to amend the 1983 Mental Health Act. The bill has been published as a draft so that it can be scrutinised by a Joint Committee of MPs and Peers before it starts its passage through Parliament.

The bill is based to a very large extent on the recommendations made by the Independent Review of the Mental Health Act, published in 2018. While it will only amend parts of the 1983 Act (rather than completely replacing it), the draft bill will bring with it some significant changes to the law.

First, the bill tightens the conditions needed for someone to be subject to the Mental Health Act and to be ‘sectioned’. This means that the use of compulsion must be a last resort and any treatment given under coercion must have a prospect of having therapeutic benefit to the person. At present, treatment need only be ‘available’. This also applies to the use of Community Treatment Orders, for which the bill makes some additional changes to ensure these are used less often and people get better protection of their rights.

the use of compulsion must be a last resort and any treatment given under coercion must have a prospect of having therapeutic benefit to the person. At present, treatment need only be ‘available’.

The bill also makes a change to the definition of who can be sectioned. If this is enacted, it will mean that an autistic person or a person with a learning disability who doesn’t also have a mental illness won’t be able to be sectioned long-term for treatment, unless they are in the criminal justice system. To ensure this does not mean people are left without help, the bill also requires health services and local councils to ensure they have sufficient support for neurodiverse people in their communities.

The draft bill also creates some new and extended rights for people being treated for their mental health. These include a right to choose a ‘nominated person’ as a replacement for the current ‘nearest relative’ who has a role in helping make decisions about care and treatment while someone is in hospital. At present, this role is determined by a fixed list and people have no choice about who supports them. There’s also a statutory role for ‘advance choice documents’ that people can use to state their preferences for how they will be treated when they are unwell and don’t have capacity to make decisions. For the first time, there will be a requirement on services to consult these documents when making decisions about treatment. People’s rights to Independent Mental Health Advocacy will be expanded, including for people in hospital as ‘voluntary patients’. And anyone who is sectioned in hospital will get a statutory Care and Treatment Plan which should set out what treatment they will get and how services plan to support them.

These and many other elements of the draft bill should help to rebalance (at least in part) a system that is still predicated on the use of coercion and compulsion to keep people safe

The draft bill also for the first time proposes a 28-day statutory time limit for someone to be transferred from prison to hospital under the Mental Health Act. This should ensure that people are not made to wait for many weeks and sometimes months in prison to get care and treatment in hospital. To achieve that, systemic change will be needed to ensure no one is made to wait too long for a hospital bed in a crisis. The draft bill also finally amends the 1976 Bail Act so that prison cannot be used as a ‘place of safety’ by the courts.

These and many other elements of the draft bill should help to rebalance (at least in part) a system that is still predicated on the use of coercion and compulsion to keep people safe. Through extra safeguards and mitigations, it has the potential to turn the corner on the ever-rising use of coercion in mental health services in England and Wales, and to ensure people’s rights and dignity are secured while they are subject to it (an ambition made considerably more difficult by the Government’s plans to change human rights legislation).

While the bill does not directly address racial discrimination, it is hoped that tightening up the use of coercion and strengthening safeguards will narrow the scope for the disproportionate use of compulsion.

One of the main reasons for reviewing the Mental Health Act was the disproportionate use of coercion on people from racialised communities, especially in the use of Community Treatment Orders. A litmus test of the changes set out in the draft bill will be how they will contribute to closing the gap. While the bill does not directly address racial discrimination, it is hoped that tightening up the use of coercion and strengthening safeguards will narrow the scope for the disproportionate use of compulsion. This will only be possible if it is combined with concerted and sustained work to address structural and systemic racism within mental health services as a whole.

The draft bill will now be scrutinised in detail. While that process has its benefits, not least to ensure that the bill that’s finally produced is as far-reaching as it should be, it could also delay some vital changes to legislation that is already badly out of date. Ensuring that necessary changes are made as soon as possible, with as much ambition as is required, is essential to offer people the protection of a better legal framework without delay.

Updating the Mental Health Act is essential to create a modern foundation for better services. But it also needs investment in expanding and improving community support, in advocacy services that will protect people’s rights, and in building better facilities for people to be treated in. These changes need to go together so that people get the right help for their mental health with the least use of coercion.

A detailed analysis of the draft bill and its implications has been published by mental health law expert Alex Ruck Keene.

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