By Andy Bell
The 1983 Mental Health Act is 40 years old this year. As many people have said, it is in urgent need of modernisation. Last week, a Joint Committee of both Houses of Parliament published its report on the Government’s plans to update the Mental Health Act, highlighting ways it could be improved to protect people’s rights and safety.
The Committee’s report welcomes the Government’s commitment to “introduce more choice, accountability, and oversight” into the way the Mental Health Act operates in England and Wales, but it says that the proposed changes should go further. The Committee’s report also throws doubt on whether the changes will be resourced sufficiently to be effective – a major concern at a time of significant pressure on mental health services.
A major recommendation of the Committee is that the bill should begin with a set of principles to help people to interpret how the Act is used: for example, to minimise restriction and support choice and autonomy. This was also recommended in Sir Simon Wessely’s Independent Review of the Act in 2018. The Government’s draft bill did not take this approach. Making this change would demonstrate a genuine commitment to make the new Act different to the current one.
The report is critical of some of the proposals in the Government’s draft bill. They include the decision to update the criteria for detention in Part 2 of the Act (for civil sections) but not Part 3 (in the criminal justice system). They argue that this inconsistency could see more people getting sectioned under the criminal justice provisions of the Act because the bar for the use of coercion would be lower than in the reformed civil sections.
The Committee also calls on the Government to abolish, rather than tighten the use of, community treatment orders (CTOs). Here it takes a different approach to the Independent Review, arguing that the extremely disproportionate use of CTOs on Black people and the lack of evidence of benefits of this coercive power mean that it should be removed from the statute book. (The one exception they make to their recommendation to abolish CTOs is for people detained under the criminal justice sections of the Act – opening up a new divide between the two parts.)
The report welcomes much of the draft bill but urges government to take more steps to ensure it is implemented as intended. For example, it wants clearer powers for people to make advance choice documents and protections for children and young people about how they can make choices for themselves. It also wants to strengthen provisions for autistic people and people with learning disabilities so that changes to the treatment sections of the Act (to prevent long-term sectioning of people who do not have a mental health condition) do not push them into the criminal justice system or other forms of detention. This includes delaying such changes until sufficient resources are available in community services.
Finally, the report argues that the proposed changes in the draft bill should be seen not as a once-in-a-generation chance to change the Mental Health Act, but as the start of a process of continuous reform that goes beyond updating outdated legislation. It calls for the appointment of a ‘Mental Health Commissioner’ whose role would be to advocate both for individual patients and families and for systemic changes to the law and its implementation. Such a role exists in many other countries, and there is a compelling case for it to happen in England and Wales now, too.
Perhaps the biggest challenge facing the Government and Parliament now, though, with regard to this legislation is the balance between changing the law and investing in the necessary services and facilities to make it work. The Committee’s call on the Government to “publish a detailed plan for resourcing and implementation” may help to identify the necessary steps to ensure that promises of a modernised Mental Health Act do not ring hollow in practice. But if this does not bring adequate investment to vital community services, to safeguards such as advocacy, and to better inpatient facilities, it could be many years before even the most basic changes to the Act ever see the light of day.
The Government’s 2019 manifesto pledged to reform the Mental Health Act. With two years of this Parliament remaining, time is running out to make good on that promise. We now need to see a strengthened Mental Health Bill backed up by adequate resources and a clear plan of action to implement those changes without delay.