By Tim Spencer-Lane

The Mental Health Bill, which would amend the Mental Health Act 1983 (MHA), has now passed through committee stage in the House of Lords after five days of debate.

This stage allows peers to scrutinise the detail of a bill, although by convention no votes are taken on tabled amendments.

Committee stage normally provides an important indicator of which issues peers are interested in and may revisit at third reading, where amendments are likely to be put to a vote. It is important to remember that the government does not have a majority in the Lords and could be defeated on particular votes.

Principles

The bill does not insert principles onto the face of the MHA. Instead, it sets out four principles (choice and autonomy, least restriction, therapeutic benefit, and the person as an individual) to be included in the MHA code of practice.

Baroness Tyler (Liberal Democrat) was concerned that “placing the guiding principles in the code leaves a loophole in which they can be deviated from”. She also proposed that “equity” should be added to the principles to “provide additional momentum towards the goal of addressing the racial disparities in the Mental Health Act”.

Lord Bradley (Labour) supported a principle based on identifying and supporting “the communication needs of the individual”.

In response, Baroness Merron (parliamentary under-secretary of state, Department of Health and Social Care), argued that, in respect of statutory principles “the real concern is about making very complex legislation even more complex”.

Unlike the Mental Capacity Act 2005 (MCA), the MHA “has not been designed or structured around statutory principles”. She also argued that “it feels unnecessary to include equity as a specific principle because it is already a requirement of the Equality Act 2010” and that the code of practice will give guidance for practitioners “on how to support individuals with communication needs to make sure that their voices are heard”.

Learning disability and autism exclusion

A topic that dominated debates in the Lords was the position of people with learning disability and autistic people. The bill would prohibit people being detained for treatment under the MHA solely on the basis of learning disability or autism.

Baroness Browning (Conservative) welcomed “the removal from the Mental Health Act of the presumption of mental illness in people with autism and learning difficulties”.

However, she was concerned that “once it is removed the Mental Capacity Act will be used more frequently” to deprive autistic people and people with learning disabilities of liberty. In relaition to this, she pointed to the widespread difficulties associated with the Deprivation of Liberty Safeguards.

Baroness Berridge (Conservative) argued “there is the other danger that – when there is no co-occurring mental health condition – you end up with people coming through the criminal justice system”.

In response, Baroness Merron stated that “the number of people with a learning disability and autistic people in mental health hospitals is indeed unacceptable”. She argued that the government did not want the MCA to “be a loophole, back door or anything of that nature”.

She also pointed to the bill’s duty on integrated care boards (ICBs) to establish and maintain a register of people with a learning disability and autistic people who are at risk of detention. ICBs and local authorities must have regard to the register and the needs of the local ‘at risk’ population, when carrying out their commissioning duties.

Baroness Merron said the intention of these provisions was that “people with a learning disability and autistic people are not detained but supported in the right way”.

Professional roles and responsibilities

Amendments were tabled by the former prime minister, Baroness May (Conservative), intended to “widen the definition of those who can attend a mental health incident and act to detain an individual in a variety of circumstances”.

These aimed at extending the powers given to police officers to remove a person suffering from a mental health crisis to a place of safety, to health and social care professionals (including social workers and paramedics). The proposals were supported by several peers, who argued it would lead to the reduction of police attendance at mental health incidents, in line with the Right Care, Right Person concordat.

However, Baroness Merron argued that “extending the ability to health and social care professionals to enter someone’s home without their permission would be a major shift in their roles” and “it would impact on relationships between patients and health and care staff”.

She committed to look at reducing police time in health settings and to update the code of practice to clarify the handover process between police and health, including in A&E.

Community treatment orders (CTOs)

The bill proposes to tighten the criteria for the use of CTOs and limit how often they are used. A range of views on CTOs were expressed in the debates. Baroness Fox (non-affiliated) referred to their “spiralling and increasing use”. She noted that “CTOs are necessary when community care is under huge strain, because the idea of voluntarily accessing a wide variety of support in the community is a myth in today’s circumstances”.

Baroness Berridge (Conservative) felt that CTOs should be “in the last chance saloon”. On the other hand, Baroness Parminter (Liberal Democrat) felt that CTOs “can be valuable for people with eating disorders – and for forensic patients”. Lord Kamall (Conservative) called for more data on why a disproportionate number of black people were subject to CTOs.

Baroness Merron restated the government’s position that “CTOs can be valuable for certain patients” but “reform is needed so that they are used only when appropriate and for the shortest possible time”.

She also confirmed that “officials are working with NHS England and others to understand what additional data should be collected to understand the impact of the reform”, adding that the government was “committed to ongoing monitoring of CTOs as we implement the changes”.

Children and young people

Many of the safeguards in the bill are linked to a determination of capacity (for those aged 16 and over) and competence (for those aged under 16); for example, the rights for a child to appoint a nominated person or make an advance choice document depend on their competence to make this decision.

However, Baroness Tyler (Liberal Democrat) raised concerns that “there is also no clear and consistent approach for determining whether a child is competent. Although the concept of competence is generally understood, how to assess a child’s competence is not.”

Consequently, she argued, children may not benefit from the reforms in the bill that depend on competency.

Several peers called for a statutory test of competency to be inserted onto the face of the MHA. Lord Meston (crossbench) tabled an amendment which adopted the MCA’s functional test but without the need to consider if the inability to make the decision is caused by an impairment of or disturbance in the mind/brain.

Peers were concerned about how the nominated person role, which replaces the nearest relative, would work for children and young people. Baroness Berridge (Conservative) called for a prescribed list of people that an approved mental health professional could appoint as the nominated person for children and Baroness Butler-Sloss (crossbench) called for greater rights for parents to be consulted and challenge appointments in the court.

The bill does not provide any reforms aimed at addressing the position of children placed on adult mental health wards and those placed in hospitals out of area. Earl Howe (Conservative), therefore, called for procedural safeguards for children placed on adult wards and Baroness Berridge (Conservative) wanted a new notification process for out-of-area placements.

For the government, Baroness Merron rejected the amendment for a statutory test of competency, pointing out that the courts had rejected the proposed definition.

She added: “To introduce a statutory test for under-16s only under the Mental Health Act is likely to risk undermining Gillick, which remains the accepted competence test for under-16s across all settings, including reproductive health and children’s social care, and the wider legislative framework on matters related to children.”

The minister also said detailed guidance would be provided in the code on how the nominated person role would work for children and young people, and confirmed that people who were a risk to a child could not be the nominated person.

Baroness Merron said that additional guidance would be provided “on the process to determine, and review throughout a child’s detention and treatment, that the environment in which they are accommodated continues to be in their interests”.

Racial disparities

The bill does not include any reforms expressly aimed at reducing racial and ethnic inequalities in the use of the MHA. However, there was depth of feeling amongst peers when debating this area.

Baroness Whitaker (Labour) highlighted the discrimination faced by the Gypsy, Roma and Traveller communities and their lack of access to services. Baroness Tyler (Liberal Democrat) felt that the bill “still does not go far enough to address that deeply entrenched inequity”. Lord Kamall (Conservative) probed the government “to understand what they know and what research they are aware of, so we can understand the reasons for these racial disparities and put in place measures to tackle them”.

Some peers called for the creation of a “responsible person” in each hospital who would be responsible for driving change

Baroness Merron acknowledged the need for better data and argued that the patient and carer race equality framework (PCREF) “will improve data collection on racial disparities over the coming year, and the [Care Quality Commission (CQC)] has existing duties to monitor and report on inequalities under the Mental Health Act”.

She also said the department “will continue to monitor racial disparities in the use of CTOs”. But the minister rejected the creation of a responsible person role as “it would duplicate existing roles and duties”, including the public sector equality duty under the Equality Act 2010 and the monitoring role of the CQC.

Implementation of the reforms

Many peers called for greater clarity and specific guarantees over when the bill would be implemented.

Lord Scriven (Liberal Democrat) tabled an amendment to “create an obligation for the government to lay a costed plan for sufficient services before Parliament within four months of the passage of the bill”. Baroness Tyler (Liberal Democrat) called for a costed plan for community care to support the reforms in the bill and Lord Stevens (crossbench) advocated for a statutory backstop for implementing the bill.

Baroness Merron set out an indicative plan for implementing the bill. The first priority would be the code of practice (which would take a year) and the secondary legislation. There would be training of the existing workforce in 2026-27 and commencement of the “first major phase of reforms in 2027”. It would take up to 10 years to fully implement the bill.

Mental health commissioner

The joint committee on the draft bill had recommended the post of a statutory mental health commissioner should be created to provide an independent voice advocating for mental health service users and act as a watchdog to oversee the implementation of the reforms. This was not included in the bill.

Baroness Tyler (Liberal Democrat) called for the creation of a statutory commissioner to provide “sustained leadership for mental health”, transform mental health services and drive forward the reforms.

Lord Bradley (Labour) disagreed with claims that the commissioner would duplicate the functions of the CQC, pointing to the example of the Children’s Commissioner for England, which functions alongside Ofsted. Lord Kamall (Conservative), however, expressed some concern about the creation of a new bureaucracy.

Baroness Merron repeated that a commissioner would duplicate existing functions of the CQC and Healthcare Inspectorate Wales, as well as NHS England. She also claimed that the Children’s Commissioner was operating in a much broader landscape than that proposed for the mental health commissioner and was therefore less duplicative.

The ‘human rights protection gap’

In the months leading up to the publication of the bill, the High Court handed down its judgment in Sammut v Next Steps Mental Healthcare Ltd [2024] EWHC 2265 (KB). This decision confirmed that private care providers commissioned by local authorities and NHS to deliver services under section 117 of the MHA were not public authorities for the purposes of the Human Rights Act 1998, so were not bound by its provisions.

Consequently, Baroness Keeley (Labour) raised concerns about the ongoing gap in protection for those receiving care from the private sector and tabled an amendment to extend the protection of the Human Rights Act to include all section 117 service users, informal patients and those being deprived of their liberty in any setting. The amendment was strongly supported by ‘legal’ members of the Lords – Lord Pannick (crossbench), Baroness Chakrabarti (Labour) and Baroness Butler-Sloss (crossbench).

In response, Baroness Merron confirmed the government was “actively considering” this matter.

What was not debated at committee stage

It is noteworthy that several important areas of the bill received little mention in the debates.

These include the new powers to enable restricted patients, who have capacity to consent to their arrangements, to be discharged from hospital with conditions amounting to a deprivation of liberty. Stakeholders have raised concerns that the reform crosses the Rubicon by allowing the detention of people with capacity in the community and argued that greater safeguards are needed.

The part 4 reforms concerning consent to treatment also provoked little debate, no doubt in part because of their complexity. But there was little discussion of matters such as the  increased right for mental health patients to refuse medication and urgent electroconvulsive therapy, as well as the new clinical checklist to guide decision makers.

There was also no mention of the reforms to the meaning of ordinary residence for the purposes of section 117 aftercare services, including the introduction of new ‘deeming rules’. These will have a significant impact on local authority funding of section 117 services.

What happens next?

The next stage for the bill will be the report stage, which is an opportunity for the whole House of Lords to consider what has been done during the committee stage. This will be followed by the third reading which is the final opportunity for peers to consider the whole bill. Amendments will be tabled, debated and voted on during these stages.

The bill will then be considered by the House of Commons.

Tim Spencer-Lane is a lawyer specialising in adult social care, mental capacity and mental health and legal editor of Community Care Inform. 

The government will legislate to create a new type of accommodation for children with complex needs in England who are at risk of being deprived of their liberty.

The placement type will be for children who may need to be deprived of their liberty at times, but will provide for restrictions to be increased and decreased according to need.

It will be distinct from secure children’s homes and not suitable for those who need to be placed in SCHs, which are specifically designed to restrict children’s liberty.

The pledge, announced in this week’s social care policy paper, is in response to the huge rise in the number of children made subject to deprivation of liberty (DoL) orders under the inherent jurisdiction of the High Court – its backstop power to protect vulnerable people.

The orders have been used in relation to children with needs including severe mental health issues, significant trauma, autism, learning disabilities or being subject to, or at risk of, criminal or sexual exploitation.

For many children, they have involved moving into unregistered placements, without Ofsted’s regulatory oversight, severe restrictions on their movement and access to technology and contact, constant supervision, often by multiple staff members, and experiences of restraint.

The rise in DoL numbers has been driven by a lack of appropriate placements to meet their needs, whether in open or secure children’s homes or specialist tier 4 child and adolescent mental health services (CAMHS), and a reported reluctance from registered providers to admit them.

A new placement type

The Department for Education (DfE) said there was a need for “new forms of provision” to address the “gap” in supply for  children currently subject to DoL orders.

Photo: IQoncept/Adobe Stock

It said it would amend legislation to enable councils to place children in a new type of accommodation, which could “respond more flexibly to their changing and fluctuating needs”, reducing restrictions when safe to do so, as well as providing “crucial therapeutic care”.

The legislation would set “clear criteria for when children may need to be deprived of liberty and mandatory review points to ensure that no child is deprived of liberty for longer than is required to keep them safe”.

Secure accommodation orders

The statutory framework for the new placement type will be distinct from secure accommodation orders, which provide the legal basis for councils to place looked-after children in SCHs.

Section 25 of the Children Act 1989 provides that children may only be so placed if:

1. They have a history of absconding, would abscond from non-secure accommodation and, if they absconded, would be likely to suffer significant harm, or
2. They would likely injure themselves or others if placed in non-secure accommodation.

Not a solution to shortages of secure home placements

The DfE said its proposed new accommodation type would be for children whose needs cannot be met in an SCH, which means it would not provide a solution to the severe shortages of secure home places.

Ofsted has previously said that 50 children are waiting for an SCH place at any one time, while research last year by the Nuffield Family Justice Observatory found that, in 10% of DoL applications, it was explicitly stated that a secure home placement would have been preferable, but was not available.

England currently has 13 SCHs, with new or replacement provision due to be developed in London and Lincolnshire.

Experiences of children subject to DoL orders

The proposal responds to a key recommendation from a DfE-commissioned report from the Children’s Commissioner for England, Rachel De Souza, which examined the experiences of 15 children with experience of DoL orders.

Children’s Commissioner for England Rachel de Souza (credit: Office of the Children’s Commissioner)

The report, also published this week, found that the children had experienced significant instability in the support they received, before being made subject to a DoL.

This included frequent changes of placement and social workers, with the lack of consistent relationships being to the detriment of their mental health.

They experienced further trauma from the experience of separation from family and friends, changes in caregivers, isolation, restrictions and restraints while under the DoL orders.

Also, most of the children reported having limited opportunities to have their voices heard and be involved in decisions while under the order.

Commissioner’s recommendation for new placement type

The commissioner recommended the the government establish a new statutory framework for deprivation of liberty in an Ofsted-registered home that was not an SCH. This should make clear that:

• Deprivation of liberty should only be authorised when it is necessary for children’s safety and welfare and not because of a shortage of appropriate accommodation.
• There should be judicial oversight for any deprivation of liberty and any authorisation must be reviewed every three months.
• The child should automatically be a party to any deprivation of liberty proceedings, meaning they are represented by a Cafcass guardian.
• Children should have the opportunity to share their views with the judge as part of the deprivation of liberty process and should be supported to do so in a way that is comfortable for them.
• The education secretary and Ofsted must be notified of any deprivation of liberty application where the child is not in a registered home.
• Children deprived of their liberty should have access to advocacy, including non-instructed advocacy as needed.

‘Far fewer should be deprived of liberty’

However, the commissioner also called for action to ensure far fewer children were deprived of their liberty. This should involve “radical investment in creating new and safe places for children to live in registered children’s homes which can provide safe accommodation and therapeutic support for children living with trauma and at risk of harm”.

On this point, the DfE said that, in partnership with NHS England, it would pilot a new, community-based approach to delivering “specialist care and accommodation for children who have complex needs”, with input from social care, health, education and justice professionals.

This will be tested by the South East Regional Care Co-operative, one of two areas piloting the regionalised commissioning of care placements.

The DfE said the approach “has the potential to reduce both local authority reliance on costly unregistered placements and immediate and lifetime costs to the health and justice systems”.

Ofsted gives backing in principle

Ofsted’s national director for social care, Yvette Stanley, said the regulator backed the plan for a new placement type “in principle”, but warned that “how it is implemented will be critical to its success”.

Yvette Stanley, Ofsted’s national director for social care

“Any deprivation must be the least restrictive option possible and support children’s transitions to their next stage,” she added.

Stanley also said that Ofsted was looking to make changes to its social care common inspection framework, which governs its regulation of sector providers.

This was with a view to “[removing] any barriers that Ofsted may create, perceived or otherwise, to providers working with children with multiple and complex needs”.

By Tim Spencer-Lane

On 6 November 2024, the Mental Health Bill was introduced in Parliament. The bill contains measures to amend the Mental Health Act 1983 (MHA) in order to strengthen the voice of the patient and ensure that that detention is only used when, and for as long as, necessary.

The bill is largely the same as the draft Mental Health Bill published by the previous government, itself largely based on the recommendations of the Independent Review of the Mental Health Act in 2018.

However, the bill also takes forward a number of recommendations from the 2023 report of a joint committee of both Houses of Parliament that scrutinised the draft bill.

The key changes since the draft bill include the following:

• The removal of “how soon” harm may occur from the detention criteria.
• The removal of the requirement for the approved mental health professional (AMHP) to see the nominated person – the role that will replace the nearest relative – in person.
• A new duty on NHS commissioners to make arrangements to inform people about advance choice documents and provide appropriate help to create one.
• Including the wording of the principles identified by the independent review within the MHA’s requirements for a code of practice.
• A new duty on the patient’s responsible clinician to consult with a professional involved in the patient’s treatment when taking the decision to discharge.

What happens next?

The bill will be debated and must be approved by both Houses of Parliament. It will no doubt be amended during its passage through Parliament. Once approved, it will be sent for Royal Assent and will then become an act (law).

It will not come into force immediately. It is estimated that full implementation may take 10 years, largely due to the lead-in time required to train additional clinical and judicial staff.

The following is a general summary of the key provisions of the Mental Health Bill.

Amending the detention criteria

The bill amends the criteria for detention under part 2 of the MHA and for renewals. The aims are to provide greater clarity as to the level of risk that a person must present in order to be detained and to reduce the use of the MHA for people with a learning disability and autistic people.

Firstly, section 2 (admission for assessment) is amended to insert the following new tests for detention:

• That serious harm may be caused to the health or the safety of the patient or another person, unless the patient is detained; and
• It is necessary, given the nature, degree and likelihood of the harm, for the patient to be detained.

Secondly, the section 3 (admission for treatment) detention criteria are amended to insert the following new tests:

• That serious harm may be caused to the health or the safety of the patient or another person, unless the patient receives medical treatment;
• It is necessary, given the nature, degree and likelihood of the harm, for the patient to receive medical treatment;
• That medical treatment cannot be provided unless the patient is detained under the MHA; and
• Appropriate treatment is available (which is defined as meaning there must be a reasonable prospect of alleviating or preventing the worsening of the disorder or one or more of its symptoms or manifestation).

Third, it will no longer be possible to detain a person with a learning disability or an autistic person under section 3 unless they have a co-occurring “psychiatric disorder” that warrants hospital treatment.

This exclusion does not apply to part 3 patients (those in the criminal justice system).

From nearest relative to nominated person

The bill replaces the nearest relative with a new statutory role, the nominated person (NP).

The NP can be selected by the patient at any time when they have capacity or competence to do so. The nomination must be witnessed by a health or care professional, who must confirm a number of matters, including that there is no reason to think that the patient lacks the relevant capacity or competence or that undue influence has been used.

The NP continues to represent the patient even if that patient subsequently becomes unwell and no longer has the relevant capacity or competence. If the patient lacks capacity or competence to nominate, and has not made a nomination, an AMHP may appoint an NP for the patient.

The NP has the same rights and powers as nearest relatives have now. In addition, the NP would have new rights to be consulted about statutory care and treatment plans (see below) and transfers between hospitals and to object to the use of a community treatment order (CTO).

Currently, when a nearest relative exercises their powers inappropriately or unreasonably, the only means of overruling them is to remove or displace them from their role.

The bill changes this to enable the NP to be temporarily overruled when they exercise certain powers (such as the right to object to a section 3 admission). This is intended to ensure that where appropriate, the NP can continue to have a role in the patient’s care and treatment.

The county court retains the power to terminate the appointment of an NP, either permanently or for a specified time.

Compulsory medical treatment safeguards

The bill makes several reforms to part 4 of the MHA, which regulates when treatment can be imposed on detained patients.

It introduces a new ‘clinical checklist’, which applies to clinicians making treatment decisions. There is a duty on the treating clinician to consider certain matters and take a number of steps when deciding whether to administer medical treatment to a patient.

These include considering the patient’s wishes and feelings, assisting patients to participate in treatment decisions and consulting those close to the patient. This is intended to enhance the role of the patient in decision making under the MHA.

New safeguards are introduced for patients refusing medication, either with capacity or competence at the time, or in a valid and applicable advance decision, or where the treatment is in conflict with a decision made by a donee of lasting power of attorney, deputy or the Court of Protection.

In these circumstances, the treatment cannot be given unless there is a “compelling reason” to give the treatment and a second opinion approved doctor (SOAD) has provided certification. A compelling reason means that no other forms of treatment are available or that alternatives are available, but the patient has not consented or they would conflict with an advance decision or a decision by a donee, deputy or the Court of Protection.

Where the patient is consenting to the medication, or lacks capacity or competence (and there is no conflict with any advance decision or decision by a donee, deputy or the Court of Protection), the bill provides that the treatment cannot continue beyond two months, unless an approved clinician or SOAD has certified certain matters. This is a reduction of the current three-month time-period.

The bill also gives additional safeguards to patients who have refused urgent electro-convulsive therapy, either with capacity or competence at the time, in a valid and applicable advance decision, or where the treatment is in conflict with a decision made by a donee, deputy or the Court of Protection. In order to give such treatment, a SOAD must first issue a certificate within a time period prescribed in regulations.

Also, the bill prohibits compulsory treatment on an urgent basis of those with the relevant capacity or competence, in order to alleviate serious suffering, as is currently permitted under section 62. It only permits treatment in the face of a capacitous refusal based on a SOAD certificate and “compelling reasons”.

Community treatment orders (CTOs)

The bill revises the criteria for the use of CTOs in line with changes to the detention criteria. CTOs can only be used if there is a risk of “serious harm” to the health and safety of the patient or others, and consideration has been given to the “nature, degree and likelihood of the harm, and how soon it would occur”. In addition, there must be a reasonable prospect that the CTO would have a therapeutic benefit for the patient.

The CTO must also be agreed in writing by the community clinician. The mental health tribunal is also given the power to recommend that the responsible clinician reconsiders whether a particular CTO condition is necessary.

Learning disability and autism

Under the bill, people with a learning disability and autistic people will not be able to be detained for treatment under section 3 unless they have a co-occurring “psychiatric disorder” that warrants hospital treatment. Also, they will not be able to be made subject to a CTO solely on the basis of their learning disability or autism.

The bill also places care (education) and treatment reviews (C(E)TRs) on a statutory footing. C(E)TRs are designed to ensure that people with a learning disability and autistic people are only admitted to hospital when necessary and for the minimum possible time.

The NHS commissioning body must ensure that C(E)TRs are held when a patient with a learning disability or an autistic patient is detained under the MHA. Certain bodies are required to have regard to the recommendations made by the C(E)TR.

There is a duty on integrated care boards (ICBs) to establish and maintain a register of people with a learning disability and autistic people who are at risk of detention. ICBs and local authorities must have regard to the register and the needs of the local ‘at risk’ population, when carrying out their commissioning duties. The aim is to help ensure that adequate community services are available for people with a learning disability and autistic people, so as to avoid unnecessary hospital admissions.

Statutory care and treatment plans

The bill introduces statutory care and treatment plans for detained patients and those subject to community treatment orders and guardianship, excluding those subject to short-term detention powers.

Responsible clinicians are placed under a duty to prepare and regularly review the plan, and regulations will be used to set out the contents of the plan.

Independent mental health advocates (IMHAs)

IMHAs are specially trained advocates who represent and support patients detained under the MHA. The bill extends the right to an IMHA to informal patients.

It also introduces an “opt-out” system, whereby hospital managers and others are required to notify advocacy services about qualifying patients and those services must then arrange for patients to be interviewed to find out if they want an IMHA. The aim is to increase the uptake of IMHAs.

These changes apply in England only.

Detention periods and their renewal

The bill shortens the period that a patient may be kept in detention for treatment. The initial detention period is reduced from six months to three months. This can be renewed for a further three months (reduced from six months) and then for a further six months (reduced from one year).

These changes mean the patient’s initial detention will expire sooner and if the detention is to continue, it must be reviewed and renewed more frequently.

Mental health tribunals

The bill provides that patients have greater access to the tribunal. Specifically:

• section 2 patients can apply to the tribunal within 21 days of detention (rather than 14 days currently);
• section 3 patients can apply within three months (rather than six months currently); and
• automatic referrals to the tribunal take place – in cases where the patient has not exercised their right to apply – three months from the date on which the patient was first detained and then every 12 months.

Discharge process

The bill provides that before a patient is discharged from detention, the responsible clinician must consult someone professionally concerned with the patient’s treatment.

This is intended to ensure that patients are not discharged inappropriately where they may be a risk to themselves or others. There are similar safeguards in respect of the decision to discharge guardianship.

Principles

The bill amends section 118 of the MHA, with the effect of imposing statutory requirements in relation to the content of the code of practice to include the wording of the principles formulated by the Independent Review of the MHA.

Those principles are: choice and autonomy, least restriction, therapeutic benefit and the person as an individual. This will apply to the codes of practice for both England and Wales.

Section 117 aftercare

The bill changes the ordinary residence rules that identify which local authority must provide or arrange section 117 aftercare services to an eligible person, by applying new ‘deeming provisions’.

In broad terms, these mean that when a person is placed out of area, they will remain ordinarily resident in the area of the placing authority.

So, for example, where a person living in local authority A is placed into a care home in the area of local authority B, local authority A will remain responsible for providing or arranging their aftercare.

The mental health tribunal is also given the power to recommend to the NHS bodies and local authority to provide aftercare services for a patient. The tribunal can reconvene to reconsider a case if any such recommendation is not complied with.

Advance choice documents

The bill places duties on health bodies to make information available about, and help people to create, advance choice documents.

These are written records of a person’s wishes, feelings and decisions about their care and treatment that are made when the person has the relevant capacity or competence.

Clinicians must have regard to these documents (but not necessarily follow them) when providing medical treatment under the MHA.

Places of safety

The bill removes police cells from the definition of “places of safety” for the purposes of sections 135 and 136. This change is in response to evidence that police cells are not suitable environments for people with severe mental health needs awaiting assessment and treatment.

The bill also ends the use of prison as a place of safety for people in contact with the criminal justice system.

Patients in the criminal justice system

The bill aims to speed up the transfer of prisoners with a mental disorder to hospitals by introducing a statutory time limit. The relevant health and justice agencies are required to seek to ensure that a transfer takes place within 28 days.

The bill creates a power that allows the mental health tribunal or the secretary of state for justice to place conditions that amount to a deprivation of liberty on a patient as part of a conditional discharge.

This will apply in a small number of high-risk cases where the patient is no longer benefiting from hospital detention, but the conditions are necessary to protect the public from serious harm.

This is a response to the Supreme Court decision in MM v Secretary of State for Justice [2018] UKSC 60, which held that a patient with the relevant capacity cannot be discharged in this manner under the existing provisions of the MHA.

Tim Spencer-Lane is a lawyer specialising in adult social care, mental capacity and mental health and legal editor of Community Care Inform. 

Long-awaited legislation to overhaul the “outdated” Mental Health Act 1983 (MHA) has been introduced to Parliament.

The government said the Mental Health Bill would tackle racial discrimination in care, end the inappropriate detention of people with a learning disability and autistic people and give patients a greater say in decisions over their care.

The bill’s publication fulfils a commitment in Labour’s 2024 election manifesto and is the culmination of a seven-year process that started with Theresa May’s commissioning of an independent review of the act, led by psychiatrist Simon Wessely, in 2017.

Wessely’s report, published the following year, shaped the previous government’s draft Mental Health Bill, issued in 2022. However, the Conservatives failed to issue legislation to reform the MHA before losing power in July this year.

Labour’s bill is similar to the Conservatives’ 2022 draft bill but with changes, including the acceptance of some recommendations made by a parliamentary committee that scrutinised the draft legislation.

Raising thresholds for detention and CTOs

A key plank of the bill is to raise the threshold for detention in hospital – both for assessment (section 2) and for treatment (section 3).

Section 3 of the MHA currently permits detention when a person is suffering from a mental disorder of a nature or degree that makes medical treatment in hospital appropriate, such treatment is necessary for the health or safety of the patient or the protection of others and cannot be provided without detention, and “appropriate medical treatment” is available for them. This is defined as treatment that is appropriate “taking into account the nature and degree of the mental disorder and all other circumstances” of the person’s case.

Under the bill, a person could only be detained where serious harm may be caused to the health or the safety of the patient or another person without treatment, treatment is necessary given the nature, degree and likelihood of the harm, it cannot be provided without detention and appropriate treatment is available.

For treatment to be appropriate, there would need to be a reasonable prospect of alleviating or preventing the worsening of the disorder or its symptoms.

Reducing use of detention and racial inequalities

The reform is designed to reduce the number of detentions, of which there were 52,458 in England in 2023-24, up by an estimated 2.2% on the year before, according to NHS England figures.

It is also intended, along with other measures in the bill, to reduce persistent racial inequalities in the use of the act, with black people more than three and a half times as likely to be detained as white people in 2023-24.

Similar rationales lie behind provisions in the bill to tighten criteria for community treatment orders (CTOs).

They allow responsible clinicians to discharge detained patients with the power to recall them, based on the risks of their condition deteriorating if they do not receive appropriate treatment in the community. Clinicians also place conditions on the person, designed to mitigate risks and promote treatment, with non-compliance with these taken into account in determining whether the person should be recalled.

Tightening criteria for CTOs

However, there are longstanding concerns that CTOs are used to frequently, for too long and disproportionately on black people, who were subject to the orders more than seven times as frequently as white people in 2023-24.

Under the bill, CTOs could only be used if there was a risk of “serious harm” to the health and safety of the patient or others, and consideration had been given to the “nature, degree and likelihood of the harm, and how soon it would occur”.

There would also need to be a reasonable prospect that the CTO would have a therapeutic benefit for the patient.

Limiting MHA use in relation to autism and learning disabilities

Another core reform objective is significantly reducing the number of compulsory admissions for autistic people and people with a learning disability, to combat the persistent issue of at least 2,000 being detained at any one time in England, often for long periods and without adequate care.

Under the bill, people with a learning disability and autistic people could not be detained for treatment under section 3 unless they had a co-occurring mental health condition that warrants hospital treatment.

Also, they would not be able to be made subject to a CTO solely on the basis of their learning disability or autism.

Other bill measures

Other measures in the bill include:

• Replacing the nearest relative (NR) role with that of nominated person (NP). Like the NR, the NP would provide a safeguard for the rights of the detained person, including by objecting to them being admitted or ordering their discharge. However, unlike the NR, the person would be able to appoint their NP whenever they had the capacity or competence to do so.
• Ending the use of police cells and prison as “places of safety” to which people in crisis can be removed pending assessment under the act under sections 135 and 136. This is in response to longstanding concerns that these are not suitable places for people with severe mental illness to be taken.
• Making it a legal requirement for each patient to have a care and treatment plan, which the government said would be tailored to individuals’ needs and make clear what was needed for them to progress to being discharged.
• Providing access to independent mental health advocates (IMHAs) to voluntary patients.
• Increasing safeguards for people subjected to compulsory treatment following detention in hospital.
• Shortening detention periods and making renewals more frequent.
• Changing the way that ordinary residence is determined for people receiving aftercare under section 117 of the act so that when a person is placed out of area, they will remain ordinarily resident in the area of the placing authority.

Charities welcome bill but urge investment 

Charities welcomed the Mental Health Bill but said it needed to be accompanied by investment in improving the quality of care and in providing community-based alternatives to detention.

Mind said that the introduction of statutory care and treatment plans and the removal of police and prison cells as ‘places of safety’ would help create “a step change in how people are supported at times of crisis and as they live with enduring mental illness”.

Chief executive Sarah Hughes said the bill also needed to address “the systemic racism enabled by the Mental Health Act”.

‘Mental health emergency needs more than reformed MHA’

“The announcement today marks a significant moment, but we know there is more to do and questions to ask about whether this will go far enough to fix the broken system as we know it,” she added.

“The mental health emergency we are facing will need much more than a reformed act. It will demand radical and brave action from government alongside proper funding.”

The Centre for Mental Health issued a similar message, with chief executive Andy Bell saying: “The bill is an essential step towards modernising mental health services. But it must be accompanied by investment in mental health services and buildings so that people get the care and support they need when they need it in environments that are safe and therapeutic.”

The Mental Health Foundation, meanwhile, echoed Mind in highlighting the importance of tackling racial inequalities in mental healthcare.

Act has ‘driven racial disparities and made crises worse

“The original version of the act has driven racial disparities, stripped those who are sectioned of their humanity in a wholly unnecessary way, and all too often made crises worse,” said chief executive Mark Rowland.

“We particularly welcome reforms to give greater say to patients, such as granting people with severe mental health problems more control over who makes decisions for them during a crisis, banning the use of police cells as ‘places of safety’ for people experiencing a crisis, and addressing the inappropriate use of community treatment orders, which Black people were 11 times more likely to receive.”

Reform ‘must be properly resourced’

For the British Association of Social Workers, chief executive Ruth Allen said: “The Mental Health Act needs reform, and we welcome that this government has decided to make it a priority in the first parliamentary session. But as we said when the draft Mental Health Bill was published, any reform needs to be properly resourced and must be implemented in ways that promote human and social rights.

“BASW thoroughly supports the move towards an approach based upon principles relating to least restrictive intervention and therapeutic benefit, but we remain concerned that the approach taken in the bill still risks over-medicalising issues where societal factors are the dominant factors contributing to mental health distress. This bill cannot stand in place of action on public, preventive and community mental health measures for a healthier society overall.”

The Voluntary Organisations Disability Group, which represents charities providing care to disabled people, said it hoped the reform would reduce the numbers of autistic people and people with a learning disability detained in hospitals, often referred to as assessment and treatment units (ATUs).

‘A human rights scandal’

“Currently there are over 2,000 autistic people and people with a learning disability detained in ATUs against their will, long distances from home and families are unaware of what is happening to their loved ones,” said chief executive Rhidian Hughes. “It is a human rights scandal that must be urgently addressed, and this bill represents a long-awaited step in the right direction.”

He said that, alongside the bill, the government needed to invest in community alternatives to long-stay hospitals.

This message was echoed by the National Autistic Society, which said autistic people detained in hospital faced long stays and “being subjected to unnecessary restraint, overmedication, and solitary confinement”.

It said the bill must “protect autistic people’s human rights”, though added: “Changing the law is just part of what’s needed. Without investing in making sure the right support is available everywhere, autistic people will still face this inequality.”

However, concerns about the bill itself were raised by Free Our People Now, a campaign led by autistic people and people with learning disabilities, to end the use of psychiatric hospitals for them.

Right to aftercare following section 2 detention urged

It pointed to the fact that, while autistic people and people with learning disabilities would still be detainable under section 2 of the MHA, for assessment, this would not entitle them to free aftercare following discharge.

“Without the right to aftercare support and services, we are concerned that many autistic people and people with learning difficulties will continue to be on the merry-go-around of being in and out of hospital”, said Simone Aspis, campaign manager for Free Our People Now, which is supported by user-led organisation Inclusion London.

Sara Galvin’s tenacity in supporting and advocating for vulnerable people is admirable.

It is an ethos she has put into practice in running Coventry and Warwickshire Partnership NHS Trust’s (CWPT) mental health homeless pathway service, helping anyone who is homeless or at risk of eviction due to mental illness to access accommodation and therapy.

In 2021, she took on managing the service single-handedly and, last year, her work was recognised with a silver award at the Social Worker of the Year Awards, in the mental health social worker category.

Speaking to Community Care, Galvin talked about her triumphs and struggles leading the pathway, working in the sector as an autistic practitioner and what needs to be done to make the workplace more supportive for neurodivergent people.

What led you to pursue a career in social work?

I wanted to work in the social sector after my bachelor’s degree, but life took a different turn for me. I married at 21 and, at 23, became a stay-at-home mother at to my two children, until they went to primary school.

In 2011, shortly before getting divorced, I became a support worker at People in Action, a charity for people with a learning disability, I helped service users meet their personal care needs and achieve independence as much as possible by assisting them with laundry, preparing meals and taking prescribed medicines.

However, I wanted to do more impactful work.

I pursued a master’s degree in social work at Warwick University from 2012-14 and was fortunate, as the university funded half of the degree.

During my time as a social worker in the child protection service at Warwickshire County Council, I became drawn to aspects of mental health, when I had to work with parents with mental health complications or teenagers with similar issues.

It was a few years later, in 2019, that I made the big move to join the mental health team in the Coventry and Warwickshire Partnership NHS Trust.

It was a major decision, but the right move for me.

Can you tell me a bit about the homelessness pathway?

Photo provided by Sara Galvin

At the pathway, we accept referrals directly from homeless people, charity organisations, the council, community mental health teams, access hubs and other housing providers.

We support anyone who is homeless or at risk of eviction because of serious mental illness.

Once we get involved, our goal is to sort out accommodation and link people to the correct mental health service. We have helped people who have been sleeping rough get housing assessments and then get access to temporary accommodation.

Our clients were invisible until the pathway came into being. They are often ignored by society and do not have anyone, including family, to advocate for them.

What are the challenges you have faced while running the pathway?

A huge challenge has been managing the workload by myself when the pathway was launched, as I was the only post in the service at the time. I started the role in December 2021, and in July 2022, a support worker joined the team.

I manage multiple tasks in the pathway. For example, mental health teams email me asking about someone who has been moved around and whose location is not known.

I have links with the council, so am able to find out information about the person, but it takes time to contact the right people and sift through the information.

Staff from hostel accommodations may also contact me about someone needing a mental health assessment, but they may not know how to go about it because the clients are difficult to communicate with or sometimes hard to reach.

Because people who are homeless are difficult to reach and may take time to trust our services, I have to think of out-of-the-box measures to support people in distress.

What are some of the out-of-the-box measures you have taken?

I do not like saying no to problems or giving up.

When a challenge comes up, I need to find out more about it and figure out a solution.

I work very closely with our approved mental health professional hub to support homeless people.

As it is unrealistic to expect our clients to come to us, I am willing to go wherever they are. I have gone to ditches and the top of a hill to see if there are people there in need of mental health assessments and housing.

It is never easy, but I like the challenge, it makes my job interesting and keeps me on my toes.

How has the service benefited the people you work with?

There are a few stories that reflect how the service has helped people.

One is Wayne’s story. In September 2023, he was evicted from his house by his father and stayed on the streets for a few days. He then found temporary accommodation in a hostel at the Salvation Army.

On one of my visits there, I met Wayne downstairs, and he was very distressed and in a state of panic. He thought I was a staff member and started talking to me.

I helped him get admission into CWPT’s Caludon Centre, where he received treatment for psychosis for two months. He was eventually discharged and went back to the Salvation Army where they gave him a room to stay.

I was involved with Wayne throughout. I used to have conversations with him, when he was at Cauldon, about his treatment and stayed in touch with his psychiatrists to monitor his progress.

Another case was of a lady who was floridly psychotic and regularly begging in town. I helped her get admission to a mental health centre and now I am working towards getting her into supported accommodation.

What was your experience of working in social work with undiagnosed autism?

It was not a great experience, especially in children’s services.

I always hold onto things that I feel are right and fight for people who need support. Many people considered me as argumentative and strong willed as a result.

I used to have meltdowns because I was overstimulated and misunderstood.

So, working when I was undiagnosed was quite hard because there nothing for me to explain why I acted and felt the way I did.

How did the diagnosis change your experience in the workplace?

I can now mention it at work and people will be more understanding. This has lifted a bit of the pressure on me to wear a mask and always explain myself, which I did when I was undiagnosed.

It has helped build connections with clients who are neurodivergent. I do not always self-disclose, but where appropriate, it helps build rapport and enables us to understand each other better.

Raising a child with autism has also helped me be more compassionate and empathetic as a social worker.

The diagnosis made me want to raise awareness about it in the workplace. I feel I need to talk about my experiences so that others going through the same do not feel alone.

Now I can see that my autistic traits make me wholeheartedly fight for homeless people and ensure they are supported and not invisible.

What do you think could be done to make the workplace more supportive for neurodivergent people?

There needs to be better management, that’s key.

It’s not rocket science, but more needs to be done about treating people equitably and respecting that we all work in different ways.

Simply because I work in a way that is different from most people does not mean that is wrong. Understanding that takes time, but it is important to empathise with differences.

I am a new manager myself. That’s been a massive challenge to me. We work very well together, but my co-worker does not work in the same way as I do.

Being a manager has shown me that neurodivergent people can work in an amazing way. It needs to be embraced more in the workspace and our work styles should be understood and accepted.

But since social work is stressful, managers often forget to take time out for neurodivergent people to understand where they come from.

I hope we can create a more inclusive space for neurodivergent staff [in the pathway] and honour our differences.

Bolstering approved mental health professionals’ (AMHP) role in preventing detention in hospital can “vastly reduce” use of the Mental Health Act within the existing law, say service heads.

The AMHP Leads Network made the claim as charities urged the new Labour government to bring forward a bill to replace the MHA in its first legislative programme, which will be set out in next Tuesday’s King’s Speech.

MHA reform is long overdue with the Conservatives having pledged to enact the change in their 2019 manifesto and brought forward a draft bill in 2022 but then failed to legislate before they left office this month.

In November last year, then shadow health and social care secretary Wes Streeting – who is now responsible for the two services in government – said Labour would bring forward legislation to replace the MHA in its first King’s Speech.

Manifesto pledge to overhaul legislation

In its election manifesto, Labour said the current act was “woefully out of date”, its operation discriminated against black people and that the treatment of detained autistic people and those with learning disabilities was a “disgrace”.

It pledged to modernise the law “to give patients greater choice, autonomy, enhanced rights and support, and ensure everyone is treated with dignity and respect throughout treatment”, a similar prospectus to the Conservatives’ draft bill.

However, the manifesto did not repeat the promise to legislate in its first year in office.

Draft bill ‘flawed’

The draft bill’s broad aims were to reduce use of – and racial disparities in the use of – the MHA, end its inappropriate use in relation to autistic people, people with learning disabilities and empower patients and their loved-ones.

The AMHP Leads Network, while supportive of MHA reform and its objectives, has previously described the Conservatives’ draft bill as flawed, including on the grounds that it would have “little or no impact” on tackling racial disparities and enhancing the rights of patients and families.

In a statement this week, network co-chair Christina Cheney said there were “many ways in which the desired outcomes for change may be achieved without the need for legislative reform”.

“We believe that attention on key practice challenges, with the support of current legislation and codes of practice, has the potential to vastly reduce compulsion, including for those groups overrepresented or poorly served by mental health environments,” said Cheney.

Call to strengthen AMHPs’ preventive role

In particular, this should “strengthen the emphasis on and support to” AMHPs’ role under section 13 of the MHA in considering a person’s case if a local authority has reason to believe that an application may need to be made to detain them in hospital or take them into guardianship.

In many such cases, AMHPs do not carry out an assessment to determine whether to make an application – which generally must be agreed by two doctors – to detain a person in hospital under the MHA. Instead, they find less restrictive care alternatives for the person.

Cheney said this AMHPs’ role under section 13 needed to be backed by a commitment from partner agencies to remain “proactively involved” in a person’s care throughout any period of consideration, assessment and admission.

She also said the network also wanted to see greater provision of social support for people, alongside medical care.

Cheney said taking these steps now would “achieve rapid change”, allowing the new government time to “take a braver and more radical approach to mental health legislative reform that can be informed by this and other developing work in mental health, AMHP and social care networks”.

Charities urge immediate MHA reform

However, charities said overhauling the MHA – to reduce the number of people detained, end the unnecessary detention of autistic people and those with learning disabilities and tackle racial disparities – was an urgent priority.

Mental health charity Mind pointed to figures showing almost 21,000 people were subject to the act, just over 15,000 of whom were detained in hospital, as of the end of April this year.

“Too many people are being sectioned under an outdated law which enables shameful, racist injustices; often in run-down, unsafe hospitals that aren’t fit for purpose,” said its policy and campaigns manager, Gemma Byrne.

“[The] statistics show why it’s essential the new government delivers on its promise to include reforms to the Mental Health Act in its first King’s Speech next week,” she added, saying this should “truly strengthen the rights of people when they are most unwell.”

For the Centre for Mental Health, chief executive Andy Bell said: “The new government can bring the Mental Health Act into the 21st century with a comprehensive new bill, including new conditions for the use of coercion, better safeguards for patients, and faster transfers from prison to hospital.”

Alongside legislative reform, Bell said there was an urgent need to modernise hospitals so “people aren’t detained in outdated buildings and facilities”.

Impact on autistic people and people with learning disabilities

MHA reform is seen as a key step in tackling the longstanding issue of autistic people and people with learning disabilities being detained in hospitals, often for long periods of time, rather than receiving more appropriate care and support closer to home.

For Mencap, head of policy and public affairs Dan Scorer said: “Many are locked away for years in these settings where they are at increased risk of abuse and neglect, often due to a lack of the right social care and suitable housing – not because they need inpatient mental health treatment.

“The government must deliver on their promise to introduce a new Mental Health Bill as a matter of urgency and bring an end to the scandal of inappropriate detention. Overhauling this outdated law, alongside investment in community support, will be a true test of their commitment for change.”

Ending ‘scandal’ of inappropriate detention

The National Autistic Society issued a similar message, saying that MHA reform was “an essential step in ending the human rights scandal of autistic people being inappropriately detained in mental health hospitals”.

“Autism is not a mental health condition, and should not be treated as such in law,” said its policy and parliamentary officer, Sam Forrester.

He said the draft bill put forward by the Conservatives needed to be strengthened, including by “guarding against alternative routes to detention, and [placing] greater emphasis on ensuring treatment is therapeutically beneficial”.

Forrester added that there also needed to be increased investment in “high-quality community support” for autistic people to prevent them going into crisis.

“The bill must now be brought before Parliament urgently, where it can be debated and strengthened – this crisis must end now,” he added.

By Tim Spencer-Lane

The draft Mental Health Bill, published in June 2022, contained proposals to update the Mental Health Act 1983 (MHA). A joint committee of both Houses of Parliament was then appointed to scrutinise the draft bill.

The joint committee’s final report, which made 55 recommendations, was published in January 2023.

On 21 March 2024, the government published its long-awaited response to the joint committee’s report. The following is a summary of the response.

When will the bill be introduced?

The government said it would seek to introduce a revised bill “when Parliamentary time allows”.

However, the bill was not included in the 2023 King’s Speech, making it all but certain that it will not be introduced before the next general election, due by January 2025.

Principles for the MHA

The draft bill would not place statutory principles on the face of the MHA, contrary to the recommendations of the Independent Review of the Mental Health Act, on which it was based.

The review had identified four such principles: choice and autonomy; least restriction; therapeutic benefit, and the person as an individual.

The committee recommended that the new MHA require the secretary of state to draw up the code of practice having regard to and including the principles set out by the independent review. This would replace section 118 of the MHA, which requires the secretary of state to produce, and periodically revise, the code.

The government confirmed that it was “firmly supportive” of the four principles. However, it disagreed that replacing section 118 was the most effective means of driving cultural change and ensuring the principles were central in all MHA decisions.

Instead, the new principles would be embedded substantively in “targeted, specific and practical measures” and “clearly set out up front” in the revised code.

Community treatment orders (CTOs)

The draft bill would tighten criteria for CTOs; however, the committee went further and recommended they be abolished for part 2 (civil) patients.

This was on the grounds that CTOs were used more than intended, offered insufficient benefits and were used disproportionately for black and minority ethic patients.

In respect of part 3 (forensic) patients, the committee felt the evidence on the benefits of CTOs was inconclusive. It recommended that the bill should require a review of CTOs within three years of it becoming law.

The government did not accept these recommendations. It argued that, for some patients, CTOs provided the least restrictive option. It added that the abolition of CTOs would lead to an increase in delayed discharges and over-reliance on other areas of the MHA that were not designed for longer-term cases, such as section 17 leave.

The government also argued that the reforms set out in the the draft bill, including higher thresholds for the use of CTOs, would improve practice around these orders.

Detention criteria

The draft bill would amend the detention criteria under part 2 of the MHA by requiring that “serious harm” may be caused to the health and safety of the patient or others without detention, and that detention was necessary given the nature, degree and likelihood of the harm, and how soon it would occur.

In relation to detention for treatment under section 3, “appropriate treatment” would need to be available, meaning there would need to be a reasonable prospect of therapeutic benefit.

The committee recommended that the revised code address the definition of “serious” harm and “appropriate treatment” and give guidance on how the “likelihood” of harm should be assessed.

It also recommended that consideration of “how soon” harm might occur should not be included in the bill because it might dissuade potentially beneficial and shorter interventions at an earlier stage.

The government agreed to review the wording on “how soon” harm may occur and work to address any potential unintended consequences. It also agreed that it would be important to clarify the new detention criteria in revised code.

Part 3 detention criteria

The committee felt that, because the draft bill would not extend the tightened detention criteria to part 3 patients, it may be easier to be detained under part 3. It therefore recommended that the changes in detention criteria should be consistent across parts 2 and 3.

The government did not accept this recommendation, arguing this would make it more difficult to divert patients in the criminal justice system to hospital, where they were more likely to receive more therapeutic and specialist support.

Learning disabilities and autism exclusion

The committee felt that a “staged approach” was needed to the provisions of the draft bill which  would remove learning disability and autism as conditions for which an individual could be detained for treatment under section 3.

It argued this would allow time for investment in community services and noted concerns that the reform may increase the risk of people with learning disabilities and autistic people being detained under the Mental Capacity Act.

The government agreed there would need to be an appropriate level and range of community support to commence these provisions and committed to publish a delivery plan when the bill enters Parliament.

It also agreed to monitor the outcomes of the reforms for people with learning disabilities and autistic people and confirmed it was seeking to commission an evaluation for this purpose.

However, the government disagreed with the committee’s idea of creating a mechanism to extend section 2 detention for some people with learning disabilities and autistic people. It warned that this would risk creating an alternative route to longer-term detention, which was often inappropriate for people with learning disabilities and autistic people.

The government also rejected amending the Deprivation of Liberty Safeguards (DoLS) so that it could not be used as an alternative route to the MHA, arguing that in some cases this may be the most appropriate option.

Care (education) and treatment reviews (CETRs)

There draft bill would provide a statutory right to care (education) and treatment reviews (CETR), which are designed to ensure people with learning disabilities and autistic people are hospitalised for the minimum amount of time possible

The committee recommended that the proposed duty on local authorities and integrated care boards (ICBs) to have regard to the recommendations of a CETR should be strengthened to place a greater onus on them implementing the recommendations.

It also wanted to see the maximum time between reviews shortened from twelve to six months.

The government disagreed that the duty to implement CETR recommendations needed to be amended, arguing that the “have regard to” duty is commonplace in law and requires serious consideration to be given to the recommendations made

However, it recognised the committee’s concern that a 12-month review may be too long and agreed to consider further the best way of ensuring that individuals receive CETRs at the appropriate intervals.

Risk registers

The committee recommended that the proposed “risk register”, which ICBs would be required to establish for people with learning disabilities and autistic people at risk of detention, should be renamed “dynamic support register” to better reflect its purpose.

In addition, there should be a “firm duty” on commissioners to ensure the adequate supply of community services for people with learning disabilities and autistic people.

The government agreed to consider further the drafting suggestion but disagreed that a new “firm duty” was needed, arguing that the existing provisions in the draft bill were sufficient to ensure an adequate supply of community services.

Right to appeal a treatment decision

The committee recommended that the draft Bill be amended to provide a pilot scheme for patients to appeal treatment decisions at the mental health tribunal.

The government disagreed, arguing that it would not be appropriate for tribunals to be able to make determinations about whether an individual clinical judgement about treatment, made in good faith, is right or wrong in a particular case.

Nominated persons

The Joint Committee welcomed the proposed nominated person role, which would replace the nearest relative. It recommended that the Government work with approved mental health professionals (AMHPs) to address certain practical concerns.

It also recommended further consultation, and new proposals, on how the nominated person role should apply to under 18s.

The government confirmed that it has been working with AMHPs and would amend the draft bill to improve the practicalities around appointing a nominated person.

It did not agree that new proposals were needed for under 18s and confirmed it would be taking forward the provisions already included in the draft bill. The respective roles and decision-making powers of the nominated person and the body or person with parental responsibility would be set out in the revised code of practice.

Advocacy

The draft bill would extend the statutory right to an independent mental health advocate (IMHA) to all mental health inpatients, including voluntary patients. It would also introduce a form of ‘opt out’ advocacy to ensure all detained patients are offered a service.

The committee recommended that once capacity has been built up in the advocacy sector, the “opt out” scheme should be extended to voluntary patients. It also recommended a central advocacy service, to address shortages in specialist advocacy, and a statutory right to request “culturally appropriate advocacy”.

The government rejected these recommendations. It argued that the draft bill would already extend the right to an IMHA to informal patients and the new opt out scheme should be prioritised for formal patients who are potentially more vulnerable compared to informal patients.

It also felt that a national service risked creating confusion and potential gaps, including in relation to differing respective roles of local and any nationally commissioned service provision.

Finally, the government was not in favour of introducing a statutory right to access culturally appropriate advocacy in the bill at this stage.

But intends to consider the findings of its pilots of culturally appropriate advocacy, carried out from 2021-22,  before deciding if legislation would be the correct mechanism for implementation of such a policy.

Supervised discharge

The committee recommended that extra safeguards were necessary for the draft bill’s proposed “supervised discharge” power, which would enable the secretary of state for justice to discharge restricted patients subject to conditions amounting to a deprivation of liberty.

In particular, it proposed that the mental health tribunal must be involved in the decision to place someone on supervised discharge to ensure that therapeutic benefit is considered.

The government did not agree. It argued it would be inconsistent for the tribunal to have more powers than the secretary of state over supervised discharge, given these patients will present a higher public protection risk than those suitable for ordinary conditional discharge.

But the government agreed to publish operational guidance, to make clear that the secretary of state should have regard to the principle of therapeutic benefit and only use supervised discharge when the evidence indicated it was in the best interests of the patient.

Transfer from prison to hospital

The committee recommended a new statutory role to oversee the proposed 28-day time limit within which relevant bodies must “seek to ensure” patients are transferred from prison to hospital.

It also said the duty to transfer should be strengthened by removing the words “seek to”.

The government confirmed that it intended to develop a new non-statutory role to oversee the transfer process, but stated that it felt that the current wording of the draft bill was sufficiently robust.

A&E services

The committee raised concerns about a “gap” in mental health care when individuals experiencing a crisis arrived in A&E departments, yet there was no power to formally hold them.

It recommended that the government consult further on a short-term emergency detention power.

The government accepted that there may be a need to provide greater legal clarity to clinicians in A&E and said it would continue to engage with stakeholders to understand how the current legal framework was being applied and what, if any, legislative changes may be required.

MHA and Mental Capacity Act interface

The committee raised a number of concerns about the complex interface between the MHA and Mental Capacity Act, particularly for people with learning disabilities and autistic people.

It also raised specific issues to be resolved under the Liberty Protection Safeguards (LPS), the government’s proposed replacement for the DoLS.

The government confirmed it would review the impact of the reforms for those with learning disabilities or autism, including to ensure there was not simply a displacement from the MHA to the DoLS.

It also confirmed that, since the implementation of the LPS had been delayed beyond the lifetime of this Parliament, it would not be considering the specific issues raised by the committee at this point in time.

Advance choice documents (ACDs)

An ACD is a written document setting out a person’s wishes and preferences for how they would like to be treated when they experience a mental health crisis.

The committee recommended a statutory right for detained MHA patients to request an ACD be drawn up.

The government agreed with the aim of this recommendation but argued it was best achieved by placing a duty on services to carry out activity in relation to ACDs, rather than the onus being on the patient to make a request.

It confirmed it was exploring how best to take this forward.

Children’s capacity

The committee recommended that there should be a consultation on the introduction of a statutory test for “competency, or ‘child capacity’” in the bill for children under 16.

The government did not accept this recommendation, arguing that a separate statutory test in the MHA would create a complicated position for under 16s and Gillick competence should remain the accepted competence test for under 16s across all settings.

Reasonable adjustment flag

The committee recommended that all people known to mental health service with learning disabilities or autism should have a “reasonable adjustment flag” attached to their record, with an option for individualised adjustments of preferred communication and the name of their advocate.

The government accepted this recommendation and confirmed that NHS England was working to implement a reasonable adjustments digital flag within patient records.

Mental health commissioner

The committee recommended that the post of a statutory mental health commissioner be created to provide an independent voice advocating for mental health service users and act as a watchdog to oversee the implementation of the reforms.

The government did not agree that a statutory mental health commissioner would add significant value within the framework currently provided by existing bodies, such as the Care Quality Commission. Therefore, it does not intend to take this recommendation forward.

The responsible person

The committee recommended that there should be a “responsible person” for each health organisation, whose role should include data collection and analysis on ethnicity and the use of the MHA and overseeing workforce training and policies to address bias and discrimination.

The government envisaged this as an additional duty on existing staff, rather than a new role, and agreed to consider this proposal further ahead of the introduction of the bill.

Ongoing mental health law reform

The committee recommended that the draft bill, once implemented, should not be the end of the law reform process and there must be an ongoing process of mental health legislation reform, leading in the direction of more “fused” and rights-based legislation.

In response, the government said it would commission an independent evaluation of the reforms and keep mental health legislation under review, including the matter of fusion and a rights-based approach.

Tim Spencer-Lane is a lawyer who specialises in mental capacity, mental health and social care law and legal editor of Community Care Inform

In the latest episode of the Workforce Insights podcast, we speak to Dan Wilkins and Juliana Ameh about their work at Wiltshire Council in adult social care.

Dan is the head of transformation and quality assurance for adults and has over 20 years’ experience working with adults with learning disabilities and autistic people. Juliana is a social worker in the learning disability and autism team. Prior to qualifying as a social worker, she was a support worker for people with learning disabilities.

They talk about how things have changed for them and the adults they support since the Covid-19 pandemic began in 2020. They talk about differences in services offered, how there is more demand for services and the increase in awareness around neurodivergence.

How can practitioners support adults with autism better? And how can local authorities support neurodivergent staff?

In the podcast, Dan recommends the book Made Possible by Saba Salman.

You can read about how Wiltshire Council is embedding co-production with disabled people in social care here.

Listen to “Supporting adults with learning disabilities and autism post-pandemic” on Spreaker.

You can listen to the podcast using the player above, or on Apple Podcasts, Spotify, Google, Spreaker or wherever you normally listen to podcasts.

Here is the transcript of supporting adults with learning disabilities and autistic people post-pandemic.

Did you know podcasts can count towards your CPD for renewing your registration?

Learn more about Wiltshire Council and see what opportunities are available.

More podcasts from Wiltshire Council:

Podcast: working with parents – breaking down barriers to engagement

Podcast: child-focused case recording – what social workers should know

The government has rejected an expert panel’s proposal to “severely curtail” the “inhumane” solitary confinement of people with learning disabilities and autistic people in mental health hospitals.

In a damning report published last week, psychiatrist and learning disability expert Baroness Sheila Hollins said there was “no therapeutic benefit” to the long-term segregation of people detained under the Mental Health Act 1983 in hospital.

Hollins and a panel of experts called for the introduction of rules to radically reduce and time limit its use for autistic adults and those with learning disabilities and ban it for children, in a review commissioned by the Department of Health and Social Care (DHSC).

Key proposal rejected by DHSC

However, despite accepting the need to significantly reduce the use of long-term segregation, the DHSC rejected the panel’s key proposal on the grounds that it was undeliverable under the current MHA code of practice, which permitted the practice.

And while it did not rule out amending the code along the panel’s proposed lines when it was next reviewed, it made no commitment to any such review.

The response, which was described as “insulting” and “disheartening” by campaign groups, came a day after the DHSC was also heavily criticised for ditching its planned reform of the MHA.

MHA reform ditched by Tories, but pledged by Labour

This would have likely reduced the number of detained autistic people and people with learning disabilities – who currently number about 2,000 – by preventing people from being sectioned for treatment on the basis of those conditions alone.

Labour, which is widely tipped to win the next election, due by January 2025, pledged this week to introduce legislation to reform the MHA in its first year in power.

The DHSC appointed Hollins in 2019 to chair a panel to oversee independent care (education) and treatment reviews (IC(E)TRs) of detained autistic people and people with learning disabilities in long-term segregation.

IC(E)TRs, which are independently chaired and include experts by experience, are designed to examine the safety and quality of people’s care, and how they can be moved to less restrictive settings or discharged. The panel’s work covered the 191 reviews carried out, in two phases, from November 2019 to March 2023.

‘No therapeutic benefit’ to segregation

In her reports, Hollins said the panel drew five conclusions from reviewing the IC(E)TRs:

1. There was no therapeutic benefit to long-term segregation and other forms of enforced isolation, such as shorter-term seclusion. This was a ” a restrictive practice used for containment”, which was “invariably harmful, leading to far-reaching difficulties in any rehabilitation from the confinement.
2. Patients were suffering further harm from the use of psychotropic medication without therapeutic intention and the inappropriate use of other restrictive practices, such as physical interventions.
3. Contributing to the lack of therapeutic benefit was the fact that autism or learning disability were seen as sufficient reasons for detention without staff interrogating why the person was in crisis.
4. Trauma was usually the root cause of admission to hospital and subsequent confinement, but people were then being further traumatised by inappropriate hospital environments that did not provide for their sensory and communication needs.
5. Families and friends were too often denied access to their loved-one and excluded from treatment and care decisions.

Panel members were unanimous that all types of enforced isolation should be renamed “solitary confinement”, a deliberately emotive term designed to challenge the “complacency” of current practice.

‘Confinement should end for children’

Members also agreed that its use should be “severely curtailed” for adults with autism or learning disabilities, and ended altogether with immediate effect for children and young people,

The panel’s key recommendation to bring this about was to make solitary confinement an NHS England “never event” for under-18s, and also for adults where it lasts more than 15 days or not in line with minimum standards put forward by the panel, said Hollins. Never events are wholly preventable serious incidents whose occurrence prompts an investigation.

The proposed minimum standards stipulate that people in solitary confinement should have access to social contact, activities and outdoor space, be placed in safe, dignified, well-maintained, calm and homely accommodation and receive trauma-informed care and treatment.

In her report, Hollins said the standards should be incorporated into an amended MHA code of practice as soon as possible.

No reduction in numbers segregated

She reported that, of 114 people who received an IC(E)TR in their second phase (2021-23), 48 had left long-term segregation, including seven who had been discharged from hospital.

However, in a letter to then health and social care secretary Steve Barclay in July, Hollins said that about 115 remained in segregation “as it appears that when someone is discharged, another person moves into their space in long-term segregation”.

In her main report, Hollins highlighted initiatives commissioned by NHS England that had improved practice and reduced restrictions on people, including:

• The senior intervenors pilot, in which a senior person was appointed for 17 people for whom progress was not being made in reducing restrictions, to work with services to facilitate discharge.
• The HOPE(S) model, which trains services in delivering trauma-informed and person-centred support designed to improve people’s experiences, reduce lengths of stay in hospital and support discharge.

However, she raised concerns about the time-limited nature of resourcing of them. The senior intervenors programme was funded up to March 2023 while funding for the HOPE(s) model is currently only guaranteed until 2024.

‘My heart breaks’ – panel chair

Baroness Sheila Hollins (photo: Roger Harris Photography)

“My heart breaks that after such a long period of work, the care and outcomes for people with a learning disability and autistic people are still so poor, and the very initiatives which are improving their situations are yet to secure the essential funding required to continue this important work,” she concluded.

In a letter to Hollins responding to her report, mental health minister Maria Caulfield said: “I am appalled by the poor and unacceptable outcomes that were found for a number of people. I agree with your finding that the IC(E)TR programme has highlighted that [long-term segregation] is being overused and we have seen that when people are discharged from [long-term segregation] all too often someone else takes their place.”

However, in response to the panel’s key recommendation, the DHSC said long-term segregation could not be classed as a “never event” because it was permissible under the MHA code of practice.

No commitment on reform

“Therefore, we do not feel this would be the best way of achieving a reduction in the use of long-term segregation in the short term under the current legislative framework,” it added.

The department said that, were changes to be made to minimum standards for long-term segregation under the MHA code of practice in future, it would “consider whether there are further actions we can take to include scenarios where long-term segregation is used that falls below the minimum standards as ‘never events’”.

However, it made no commitment on when the MHA code of practice would be reviewed – despite Hollins saying her proposed changes needed to happen urgently.

Following her report, Hollins asked junior work and pensions minister Viscount Younger in the House of Lords if the government would commit to revising the code of practice but did not receive a response.

CQC tasked with leading segregation reviews

In response to the panel’s call for further funding for interventions to reduce the use of segregation, the DHSC said it had asked the Care Quality Commission to deliver IC(E)TRs for the next two years.

It did not commit to further funding for the senior intervenor and HOPE(S) schemes, saying the former was being evaluated and the latter would be on expiry of its funding next year.

The DHSC’s position drew an angry response from campaign groups whose staff served on the panel.

‘Disheartening’ and ‘insulting’ response

“The Department for Health and Social Care’s response is disheartening, particularly the refusal to include solitary confinement of people with learning disabilities and autistic people within NHS England’s never event policy,” said the Restraint Reduction Network (RRN).

The RRN works to eliminate the use of unnecessary restrictive practices in health and social care and its manager, Alexis Quinn, who is also an expert by experience, served on the panel.

Calling for the DHSC to review its response, the RRN added: “We are in a position where the lack of robust, human-rights informed guidance on solitary confinement, combined with a lack of changes to the outdated Mental Health Act mean there will continue to be unacceptable inequalities in mental health provision and a continued lack of sufficient protection for the rights of people with disabilities.”

The response was described as “insulting” by autism and learning disability rights group Rightful Lives, three of whose administrators, Alicia Wood, Julie Newcombe and Quinn, served on the panel.

“Solitary confinement is toxic, inhuman and degrading and frequently in breach of international and domestic law and guidance,” it said. “There is little or no accountability when services fail people. Quite frankly, we are furious that, with more people than ever subject to enforced isolation, the government doesn’t appear to be in the least bit invested in doing what works.”

The SPELL framework

SPELL was created by the National Autistic Society to provide a reminder of best practice when working with autistic children and young people. It is also relevant when working with adults.

SPELL stands for:

• Structure
• Positive approach
• Empathy
• Low arousal
• Links

How to use SPELL in social work practice:

S: Structure 

Supporting autistic children to have routines and structure in place can help them with predicting events and understanding environments, organising tasks, and developing autonomy and independence. There are various tools to help, including visual stories, timetables and ‘now, next and then’ boards (see examples here and in the full guide). Not all tools will work for all children, so this needs to be carefully and individually planned and may take some trial and error.

Professionals also need to be structured in their own work. For example:

• Think carefully about how you introduce yourself and explain your role – use clear, straightforward language and avoid jargon, remembering that autistic young people may take things literally or not understand abstract concepts.
• Set clear appointment times for meetings, and stick to them. Turning up either early or late may be equally stressful for a young person.
• Consider using a timetable for the time you will spend together and sharing this with the young person beforehand. This can help reduce anxiety by lessening uncertainty about what to expect during, for example, the assessment or direct work.
• Provide a written summary of what was discussed in a clear format, including, for example, anything that was agreed, what they will do and what you will do.

P: Positive approach

Many autistic people have low self-esteem and mental health challenges (Gillott & Standen, 2007), often as a result of previous negative life experiences, so focusing on boosting wellbeing and helping young people to feel good about themselves is essential.

• Ensure that language used around autism is positive, including the benefits of receiving a diagnosis (such as the person understanding themselves better and others knowing how to best support them).
• Find out what is important to the young person, and highlight their strengths, skills and positive achievements. This can help build their resilience and confidence as they move through life.
• Listening to them talk about their interests can help a child feel comfortable. It also helps boost their self-esteem to know they have knowledge and skills in an area that others might not.
• Giving children time to talk – about both their interests and their worries – can also support positive relationships.

E: Empathy

To effectively support autistic young people and understand their needs, professionals need to try to see things from their perspective, rather than through a neurotypical lens. Remember that everyone will have their own unique experience of being autistic – information and training are guides but we always need to tailor our approach to the individual child.

• This may include ensuring the child knows they can bring something with them to fiddle with if they like, and having pens and paper available in case they would prefer writing or drawing over speaking.
• It may take longer to build a rapport with an autistic child – allow more time for visits and meetings and give children time to talk about their interests.
• Remember that some children may be very eloquent when they feel comfortable, but unable to use spoken language when overwhelmed.

L: Low arousal 

The environment and sensory stimulation can affect young autistic people’s ability to feel comfortable and engage with professionals.

• Ensure that the environment for your meeting suits their needs by consulting the young person and parent/carers beforehand.
• Think about keeping things calm and minimising distraction. Consider information you may be adding to the sensory environment such as perfume, jewellery, and patterns and bright colours on clothing.
• Be aware of the volume of your voice.
• Provide breaks for downtime.
• Eye contact should not be forced. Consider sitting side-by-side rather than opposite to reduce a young person feeling under pressure to look at you.

L: Links 

Ensure joined-up working around a young person to improve the knowledge and awareness of multi-disciplinary professionals. This starts with a person-centred approach – making sure that young autistic people, their family and carers are meaningful partners in the work.

• ‘Links’ are also about connections with other autistic people. It can be very empowering for young autistic people to hear others’ lived experiences. Identifying positively with others can have a strong positive effect on the mental wellbeing of autistic people (Cage et al 2018).
• Professionals can link with local organisations, perhaps finding social groups connected to the individual’s special interests, or youth groups for autistic teenagers.
• It can also be helpful to signpost parents to peer support networks.

The full guide to working with autistic children and young people includes signposting information to local groups and online communities for young people and parents, and voices of autistic people in different media.  If you have a Community Care Inform Children licence, log on to see the full guide, access these and read more detailed information on understanding autism and supporting children and families.