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. 

A lack of staff and hospital beds, at a time of “overwhelming demand”, is leading to “harmful” gaps in mental healthcare, the Care Quality Commission (CQC) has said.

As a result, people were being discharged prematurely, often without adequate community support, leading to cycles of readmission to hospital, with increasing use of inappropriate out-of-area placements.

The warnings came in the regulator’s annual report on its monitoring of the Mental Health Act 1983, which covered 2023-24.

This was based on conversations with 4,634 patients and 1,435 carers from 823 monitoring visits to mental health services, interviews with other people with lived experience of detention and analyses of national data on mental health.

Spike in demand for care

Demand for mental healthcare has grown significantly in recent years, said the CQC, which reported that:

• There had been a 43% rise in the number of people in contact with secondary mental health services in the five years to March 2024, according to NHS England’s mental health services data set (MHSDS).
• There was an 18% increase in the number of adults with a serious mental illness who accessed community mental health services between March 2023 and March 2024 (source: MHSDS).
• The number of very urgent adult referrals to crisis teams more than doubled in 2023-24.

The latter figure suggested that people were becoming more unwell while waiting for help than was previously the case.

People ‘more unwell on admission than in the past’

This was reflected in services reporting that people admitted to hospital under the MHA now were more unwell than in the past, which the CQC said could increase recovery time and made it more difficult to admit new patients.

However, inpatient services lacked sufficient beds, which meant that occupancy levels in mental health wards continued to be much higher than the 85% maximum recommended by the Royal College of Psychiatrists. Since the start of 2023-24, the occupancy rate has ranged from 89.6%-90.6%, according to the college.

The pressure on beds meant people were placed on wards that were not suitable for them. For example, the CQC observed that people with dementia or cognitive impairments had been placed on wards for those with functional mental health conditions, meaning they were not cared for in dementia-friendly environments.

In another case, seclusion rooms – which are designed to segregate patients from others in times of crisis – were being used as bedrooms due to bed shortages, meaning people were being cared for in overly restrictive settings.

Rising numbers of out-of-area placements

The situation was also leading to people being placed in hospitals far from home, with official figures showing there were 5,500 new inappropriate out-of-area placements in 2023-24, up 25% on the previous year, the CQC said.

The regulator cited a report last year from the Health Services Safety Investigations Body (HSSIB), which found that people were being harmed by OAPs, due to the increased anxiety of not knowing new staff and being separated from support networks.

The CQC said it saw “multiple examples” of people being placed out of area, without clinical benefit, because of a lack of local beds.

‘Pressure to discharge least unwell patients’

The pressures on wards meant managers felt they had to discharge the “least unwell” patients, with carers also telling the CQC that loved-ones had left hospital too soon.

The regulator found examples of good practice in the provision of post-discharge support, however, this was affected by the pressures on community services, which increased the risks of readmission.

Though the MHA code of practice states that aftercare, provided under section 117 of the act, should encompass health, social care, employment support and supported accommodation, as required, the CQC said its provision was “often far less holistic” than this.

Lack of staffing

Service pressures were exacerbated by a lack of staffing, despite a 35% rise in the number of full-time equivalent mental health workers in the NHS from 2019-24.

Issues included wards not having a permanent responsible clinician, multiple wards not having occupational therapists available and others not having physiotherapists.

Staff shortages led to activities, such as group excursions, day trips and access to gyms, being delayed or cancelled, and patients being prevented from taking authorised leave, potentially delaying recovering and leading to distress.

The situation was leading services to use agency or bank staff, resulting in a lack of continuity of care for patients and, sometimes, poor interactions between staff and patients.

Also, shortages and a high turnover of care co-ordinators in the community led to challenges with the discharge process.

In addition, the CQC found that gaps in staff knowledge were affecting the quality of care for autistic people and those with a learning disability, with some staff having not completed mandatory learning disability and autism training.

People’s rights not explained to them

Other issues cited by the regulator included cases of people not understanding their rights under the MHA. This included:

• patients not being informed of their rights at admission or significant delays them being informed after admission;
• staff not providing updates to patients on their legal rights when the section of the act under which they were detained changed;
• patients not being referred to an independent mental health advocate (IMHA) when they did not understand their rights;
• legal rights information not given in a person’s preferred language.

‘Legislation alone won’t fix issues’

The report comes with the government legislating to reform the MHA in order to reduce the use of detention, improve patients’ rights over their care and prevent autistic people and those with learning disabilities from being detained without a co-occurring mental health condition.

While acknowledging the aims of the Mental Health Bill, the CQC said the sector’s problems could not be fixed by legislation alone, in the absence of additional resource.

“It is essential that the government addresses these significant gaps now to protect people for the future,” said the regulator’s interim director of mental health, Jenny Wilkes. “With the right funding, a sustainable and well-trained workforce and enough beds to meet demand, we can break this damaging cycle.”

‘The very opposite of dignified, humane care’

In response to the report, the chief executive of the charity Mind, Sarah Hughes, echoed the CQC’s calls for greater investment in community care, the workforce and mental health facilities.

“Fundamental problems with the very basics of safe care, like adequate staffing levels, bed capacity and run-down hospitals, are severely impacting people’s ability to properly recover,” she added.

“Being sent hundreds of miles away from your family and loved ones, and not even being able to contact them due to facility issues, would be difficult enough at the best of times, let alone when you’re experiencing a mental health crisis. Isolating people in this way, and holding them in crumbling, outdated facilities, is the very opposite of dignified, humane care.”

Social work opinion is divided on the police withdrawing from attending mental health incidents, a poll has found.

This follows approved mental health professionals (AMHP) raising safety concerns over the lack of police involvement since the introduction of the right care, right person (RCRP) policy in 2023.

Under RCRP, police should only attend mental health callouts to investigate a crime or when there is a real and immediate risk to life or of serious harm.

The policy was based on an analysis that found 45% of police attendances involved no crime or immediate threat of serious injury.

Yet, a Community Care poll with 1760 votes revealed a divide in social work opinion on whether the police should be attending most mental health incidents.

While just 13% agreed with the RCRP policy outright, a further 46% said they supported it in principle, but stressed that health and social care would need to be resourced to deal with the added workload. 

However, 41% believed police absence would put practitioners at increased risk.

Overreliance on the police force

Some social workers took to the comments section of the related article to speak out about social care’s overreliance on the police to “plug the gaps”.

“Taking police for granted that they will plug the gaps in our services and be an alternative safe space was always going to bite us eventually,” said one practitioner.

“I had this discussion practically every opportunity I got in the past four years with our AMHP lead but, as ever, it went nowhere.”

Gill S agreed that police involvement had helped mask social care’s lack of resources.

However, she warned that while officers should step back “from a responsibility which is beyond their remit”, the pace at which this was happening was worrying. 

“The impact on services and individuals could be catastrophic.”

“We as AMHPs, as mental health workers and social workers, need to own our responsibility in our overreliance on the use of police as a default,” added Tahin.

“There we are telling the public that people with mental illness are no more violent than them but seek police assistance as routine. Why? We too are culpable for why the police have decided to narrow their reasons for responding.”

Safety concerns

However, others voiced safety concerns over practitioners attending mental health assessments alone.

“Police should be involved where necessary as they have more safety equipment where doctors and AMHPs have a pen and a piece of paper,” said one practitioner.

“They are crucial in some cases in the [presence] of harm to the individual concerned and the other people involved, including family members. I speak from a 40-year career in social care.”

Sheena, who quit social work after being attacked while completing an assessment alone, stressed the danger of practitioners working at early hours on their own.

“The attack ended my social work career. They stated that the local authority could not foresee that I would have been attacked. My concern [is] aimed at the lone working policy out of hours and how this places AMHPs at unacceptable risk.”

Another practitioner, Neil, spoke out about the danger police absence posed to both citizens and AMHPs.

“After 14 years of disastrous austerity cuts, including over £40 billion from local authorities, and over 3,000 inpatient beds cut, there is no money in the NHS or councils to fund practical support for AMHPs or other mental health staff to do their riskiest work, such as mental health assessments. 

“The police knew this but withdrew anyway.”

What are your thoughts on reduced police presence during mental health incidents?

Celebrate those who’ve inspired you

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We’re expanding our My Brilliant Colleague series to include anyone who has inspired you in your career – whether current or former colleagues, managers, students, lecturers, mentors or prominent past or present sector figures whom you have admired from afar.

Nominate your colleague or social work inspiration by filling in our nominations form with a letter or a few paragraphs (100-250 words) explaining how and why the person has inspired you.

If you have any questions, email our community journalist, Anastasia Koutsounia, at anastasia.koutsounia@markallengroup.com

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Approved mental health professionals (AMHPs) have voiced concerns about the impact on their safety of a national police policy of not attending most mental health incidents.

In some areas, AMHPs are attending mental health callouts in pairs because of a lack of police involvement, in the light of the introduction of the right care, right person (RCRP) policy, but this is not always possible due to staffing constraints.

More broadly, health and social care services are struggling to manage the increased demands placed on them from RCRP, introduced last year under an agreement signed by the government and health and policing leaders.

Those were among the findings of an evaluation of RCRP published by the Home Office and Department of Health and Social Care (DHSC) this week.

The study was based on an analysis of the policy’s impact in a sample of police areas, alongside surveys of NHS integrated care boards (ICB) and local authorities and research with health and social care staff, carried out by the University of  York and the King’s Fund.

Health and social care struggling to meet additional demand

A Home Office analysis of the impact of RCRP on five police forces from 2022-24 found monthly savings in officer time of between 1,030 hours in the Northamptonshire force to 18,910 hours in the Metropolitan Police, due to reduced attendance at mental health incidents.

However, health and social care services were struggling to deal with the resulting increase in demand, found a DHSC survey of 34 of the 42 NHS integrated care boards (ICBs) and 35 of the 153 councils in England.

Sixty two per cent of ICBs and 40% of councils said they had faced barriers to implementation. For NHS respondents, the most significant barrier by far was cost and funding pressures, which was cited by 21 of the 34 ICBs. Meanwhile, for councils, the most significant obstacle was a lack of infrastructure to implement RCRP, which was cited by 10 of the 35 authorities.

The Home Office and DHSC found that health and social care services were struggling to take on tasks previously carried out by the police, in the context of rising demand for mental healthcare. Referrals for adults increased by 3.3% a year, and those for children by 11.7% a year, from 2016-24, according to the recent Darzi review of the NHS in England.

Demand set to rise

No additional funding was provided to the NHS or councils to implement RCRP, which the DHSC/Home Office report said “will make it difficult for health and social care services to meet the demand that was being dealt with by the police, prior to RCRP”.

Looking to the future, most ICBs and councils expected to see greater demand on their services as a result of RCRP.

Eighty seven per cent of councils expected to see moderately or significantly increased demand for AMHP services, with 74% saying the same of other adult social care services and 80% of community mental health teams (CMHTs).

Most ICBs (85%) also expected to see increased demand for CMHTs, with all of them anticipating growth in the requirements on mental health crisis teams.

Lack of workforce capacity and capability

Similar themes were reported in the King’s Fund and University of York report, which was based on interviews with 29 staff from across mental health, social care, ambulance, acute trust and voluntary sector services.

Participants said a lack of staff was a particular constraint on being able to respond to mental health incidents, including because of high vacancy levels.

Having staff with the right capabilities was also an issue for some services. This was particularly true of ambulance services, who were being increasingly called upon to deal with welfare issues, despite lacking the police’s legal powers to gain entry to premises or detain people should this prove necessary.

Ambulance staff raised concerns about police not staying with patients when they transported them to a place of safety, since they did not have training in restraint or appropriate safety protection.

Reduced use of police powers to detain

Use of the police’s power to remove a person to, or keep them at, a place of safety under section 136 of the MHA fell by 10% in 2023-24, which police chiefs linked to the implementation of RCRP.

AMHPs interviewed by the King’s Fund and University of York said the implementation of RCRP was reducing police attendance for the purpose of using section 136 powers in their areas.

In some cases, AMHPs had resorted to making increased use of section 135 of the MHA in order to guarantee police attendance. This empowers a magistrate to issue a warrant, on the application of an AMHP, enabling a police officer to remove a person with a mental disorder from a private place to a place of safety for assessment.

Some interviewees said it was easier to organise a section 135 than risking a need for a section 136, because the requirement to attend at a defined time gave services an opportunity to plan and ensured the attendance of all required professionals.

AMHP safety concerns

However, AMHPs also voiced concerns for their safety when undertaking Mental Health Act assessments in the community without police involvement.

In some areas, AMHPs were attending callouts in pairs, but this was not always possible due to capacity constraints.

Areas were also struggling to reduce handover times from the police to healthcare staff when a person had been removed to a place of safety under section 136.

According to the DHSC and Home Office report, ICBs said this was down to factors including a lack of health-based places of safety to remove people to and insufficient trained staff to manage people in a crisis.

A ‘police-led initiative’

The King’s Fund and University of York researchers said they heard “several examples of good practice, with strong multi-sector partnership working and communication, enhanced by open and, if necessary, robust feedback”.

Practitioners also welcomed the intent of RCRP to enable a more health and social care-focused response to mental health issues, said their report.

However, it added: “Our interviewees generally felt that there has been insufficient focus on the impact of RCRP on health and social care service users, staff and systems, with a perception that it is a police-led initiative, and reports of its impact focusing on efficiency gains for the police.”

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.

A 10% drop in the police’s use of powers to remove people to a place of safety has been linked to a policy restricting forces’ response to mental health incidents.

There were 31,213 detentions under section 136 of the Mental Health Act 1983 in England and Wales in the year to 31 March 2024, down from 34,685 in 2022-23, according to Home Office data from 43 of the 44 police forces, published last week.

The fall follows a fall in the number of section 136 detentions in 2022-23. That came in the wake of a series of year-on-year increases from 2016-17 to 2021-22, interrupted by a slight decrease in 2020-21, during the height of the Covid-19 pandemic.

Section 136 gives police officers the power to remove a person – generally from a public place – to a place of safety, for a mental health assessment, if they appear to have a mental disorder, are in “immediate need of care or control” and detention appears necessary to protect them or others. The detention lasts up to 24 hours, extendable for a further 12 to complete the assessment.

Right care right person policy

In response to the Home Office figures, the National Police Chiefs’ Council (NPCC) said the drop in the use of section 136 was partially attributable to the introduction of the right care, right person (RCRP) policy by forces across England and Wales.

The approach, pioneered by Humberside Constabulary from 2021 and made national policy last year, involves police only attending mental health-related incidents:

• to investigate a crime that has occurred or is occurring; or
• to protect people, when there is a real and immediate risk to the life of a person, or of a person being subject to or at risk of serious harm.

After having attended, officers would be able to exercise their powers under section 136.

New approach ‘partially explains reduced use of section 136’

The policy is designed to be implemented in partnership with local authorities and NHS leaders, with the twin objectives of ensuring people in mental health distress are responded to by practitioners who can meet their needs, and of improving use of police resources.

“As a result of RCRP, lower calls for welfare for medical related matters are being attended by police if there is no threat to life,” said an NPCC spokesperson.

“The fact that police have adopted this new approach partially explains the decline in the number of reported incidents of section 136 of the Mental Health Act being used, however, it is important to note that these are complex issues, and there are likely to be many other factors at play as well.”

The spokesperson added that, under RCRP, every police call was assessed to identify the best agency to respond and ensure that forces were working with partner agencies to establish “processes which ensure vulnerable people receive the support they need”.

Place of safety detentions down by a quarter in London

Use of section 136 declined in 29 of the 44 police forces, though there were rises of up to 32% in others.

While the Metropolitan Police had the highest number of section 136 cases, there was a particularly sharp drop, of 27%, in its use of the power, from 6,093 cases in 2022-23 to 4,475 in 2023-24. The Met introduced RCRP in November 2023.

In their response to the data, the chairs of the Approved Mental Health Professional (AMHP) Leads Network said that, “though the decrease in s136 usage may be related to the RCRP, drawing definitive conclusions—beyond anecdotal evidence—is challenging”.

They pointed to the fact that in some areas usage had declined, while in others it had risen or remained stable.

‘Lack of data on work of AMHPs’

The chairs – Kirsten Bingham, Jill Hemmington, Darrell Johnson and Dominic Marley – said: “A lack of comprehensive data on the work AMHPs, crisis services, and the experiences of individuals with mental health needs in A&E hampers efforts to assess the full impact of these policies on health and social care services.

“A broader evaluation of the RCRP, considering the entire system, would provide much deeper insights than relying solely on police data.”

In this context, they reiterated the network’s support for a project to develop a dataset capturing the work done by AMHPs.

In the 90% of cases where place of safety was recorded, people detained under section 136 were taken to a health-based place in 52% of cases, an accident and emergency department in a further 46% and a police station in 1%.

Why police stations were used places of safety

Regulations under the MHA prohibit use of a police station unless a senior officer is satisfied that the person’s behaviour poses an imminent threat of serious injury or death to them or others and, as a result, no other place of safety could be reasonably expected to detain them.

In about 12% of cases where a police station was used and the reason was recorded, the conditions in the regulations were not met and a station used because no health-based place of safety was available.

Under the MHA code of practice, police vehicles should only be used “exceptionally” to transport people to a place of safety, “such as in
cases of extreme urgency or where there is an immediate risk of violence”.

Police vehicles used to convey people in most cases

However, excluding 6% of cases where the data was not recorded, police vehicles were used to convey the person in 55% of the instances in which section 136 was used in 2023-24, with ambulances used in 40% of cases.

Where the reason for using a police vehicle was recorded, in 40% of cases it was because an ambulance was not available within the agreed timeframe.

In a further 30%, a risk assessment determined that the person should be transported in a police vehicle due to their behaviour, while in 27% an ambulance was not requested, for example, because the person was close to the place of safety.

‘Incomplete’ data on section 135

The Home Office also provided data on the use of section 135 of the MHA, which empowers a magistrate to issue a warrant, on the application of an AMHP, enabling a police officer to remove a person with a mental disorder from a private place to a place of safety for assessment.

The power was used 3,086 times in 2023-24, up 5% on the year before, according to data from 34 of the 43 relevant police forces. However, the Home Office said that, because of the incompleteness of the dataset, the figures should be treated with caution.

A project to help evidence the value of approved mental health professionals’ (AMHPs) role has started work.

Local government leaders have commissioned a team of practitioners to explore the feasibility of developing a national dataset for the role, encompassing the wide range of work that AMHPs do.

Such a dataset has long been sought by AMHP leaders as a way of identifying the value AMHPs bring to the mental health system, in particular in preventing admissions under the Mental Health Act 1983 and promoting the least restrictive option, as required by the MHA code of practice.

The project has been commissioned by Partners in Care and Health, a partnership of the Association of the Directors of Adult Social Services (ADASS) and the Local Government Association (LGA) designed to support improvement in council adults’ services.

The appointed team, from social work consultancy DCC-i, includes five AMHPs and an expert on working with people with lived experience.

Existing AMHP data and what it misses

Currently, Skills for Care publishes annual data on the AMHP workforce and NHS England produces yearly statistics on the use of the Mental Health Act 1983, the latest of which showed  a 7.7% drop in the number of people detained under the MHA, which followed a 5.7% fall the previous year.

Most such detentions will have been based on an application from an AMHP following an assessment by the practitioner, agreed with two doctors, that the criteria for detaining the person under the relevant section are met and detention is the most appropriate way of providing care and treatment to the person.

However, despite the decline in the number of detained people, the AMHP Leads Network has argued that demand for AMHP work is increasing year on year, with a rise in the number of requests under section 13 of the MHA for a practitioner to consider a person’s case where it is deemed detention may be required.

In many such cases, AMHPs do not make an application under the MHA but find less restrictive alternatives to detention for the person; however, this work is not captured in existing datasets.

‘A lot of hidden stuff in the AMHP role’

Discussing the potential outcomes from the project, DCC-i chief executive and chief social worker Daisy Long said: “There’s lots of hidden stuff in the AMHP role which, if that wasn’t there, what would then be the pressures on systems that are already pressurised? You don’t just sign section papers. The prevention role of the AMHP is more social work than care management.”

Specialist associate Steve Chamberlain, the former chair of the AMHP Leads Network, added: “No one has ever captured the work that AMHPs do to prevent admissions. [The project will be looking to capture] the breadth of AMHP activity that’s not about imposing the MHA on people but preventing it.”

Diversity of existing data

There has been a bigger than expected response from AMHP services to an invitation to take part in the project, with 44 local authority areas signed up to take part and provide the team with details of what data they currently collect and how.

“Some are collecting in really advanced ways with some beautiful dashboards and some are on manual spreadsheets or nothing at all,” said Long. “We’re in the process of receiving what’s being collected at the moment.”

Chamberlain added: “One of the big debates we really need early on is to clarify definitions. It’s easy to define when someone is sectioned. When does a referral become a referral? When does it become an MHA assessment? We need to work out definitions because no one’s done it before. Data quality is a crucial part of the project.”

Based on this, the team will develop a dataset, which the test sites will trial and report on for 10-12 weeks, with DCC-i then analysing this to inform the finalised proof of concept for the minimum dataset.

The project, which will run until next March, will also draw upon the views of people with lived experience of receiving AMHP services in developing its recommendations.

The project team also includes Jo Sutherland, David McGill and Surj Sall-Dullat, who are all AMHPs, and Gavin Rogers, who will lead on getting feedback from people with lived experience.

The new Labour government has pledged to legislate to strengthen the child protection system in its first King’s Speech.

The long-awaited reform of the Mental Health Act 1983 and action to deliver “fair pay” for staff in adult social care are also included in its first legislative programme since taking office.

Strengthening child protection

A Children’s Wellbeing Bill would keep children “safe, happy and rooted in their communities and schools by strengthening multi-agency child protection and safeguarding arrangements”, the government said.

It added that the legislation would deliver on Labour’s manifesto commitment on children’s social care “to ensure that all children can thrive in safe, loving homes”.

Labour offered little detail on its children’s social care plans in its manifesto and its King’s Speech background document is similarly unclear on what these reforms will involve.

The government has also not confirmed how much it will retain of its predecessor’s Stable Homes, Built on Love agenda. That aimed to reform children’s social care by, among other things, investing more in family support and kinship care to reduce the need for statutory interventions.

Registers of children not in school to be introduced

Labour also said that the bill would place a duty on councils to have and maintain registers of children not in school, something its predecessor had planned to do but did not achieve.

Councils would also need to provide support to home-educating parents. The bill follows a rise in the number of home-educated children in England, from 80,900 to 92,000, in the year to autumn 2023.

A Child Safeguarding Practice Review Panel analysis of reviews of serious cases involving home-educated children, published in May, found there were “potential risks of harm for some children when they are not visible to public agencies and cannot access the potential benefits of school as a protective factor”.

The panel said the evidence it had seen “[reinforced] the need for a statutory register so that relevant statutory organisations know which children are being home educated” and to enable safeguarding agencies to have better knowledge of them.

‘Fewer children will slip under radar’

The government said its bill would “ensure fewer children slip under the radar when they are not in school and more children reach their full potential through suitable education”.

It was welcomed by the Association of Directors of Children’s Services (ADCS), whose president, Andy Smith, said: For too long we have had no way of assuring ourselves of whether a growing number of children are receiving a suitable education or that they are safe.

“While a register in and of itself will not keep children safe it will help to establish how many children are being educated other than in school and to identify children who may be vulnerable to harm.”

‘Fair pay’ for adult social care staff

As trailed in the manifesto, the King’s Speech also included provisions to introduce a fair pay agreement for adult social care staff, which will form part of an Employment Rights Bill.

The Labour manifesto said this would set fair pay, terms and conditions, along with training standards, for care staff, and would be based on consultation with trade unions and providers.

However, the party did not set out any funding plans for the agreement, despite any policy that raises pay in social care requiring a significant funding boost to councils to enable providers to meet the increased costs.

UNISON welcomed the plan, with general secretary Christina McAnea saying: “After years of government neglect, the fair pay agreement is the first sign things are set to change [for social care]…Once the new pay agreement is in place, wages in care will rise across England, easing the sector’s staffing nightmare and relieving pressure on the NHS.”

The move was also welcomed by think-tank the King’s Fund but its chief executive, Sarah Woolnough, stressed the importance of the agreement being funded.

“The government’s plan to increase adult social care pay is good news for care workers, and we hope it will come with a commensurate rise in local government budgets to avoid the pay boost being funded by cuts elsewhere,” she said.

Ban on ‘exploitative zero-hour contracts’

The employment bill would also ban “exploitative zero-hour contracts”. This would provide workers with a contract that “reflects the number of hours they regularly work” and ensure they get reasonable notice of shift changes and are compensated for cancelled or curtailed shifts.

This will have significant implications for the home care sector, with a recent Homecare Association survey finding that two-thirds of providers offer zero-hour contracts to their staff.

The association, which represents domiciliary care organisations, said zero-hour contracts were the result of council and NHS commissioning practices that did not guarantee providers a set number of hours.

“For employers to stop or reduce use of zero-hour contracts and improve pay, public bodies need to change how they commission and purchase home care,” it said in the report on its survey.

This should include commissioning based on outcomes – rather than time and task – and paying providers for planned hours in advance, the association added.

Risk of ‘unintended consequences’

Following the King’s Speech, the association’s chief executive, Jane Towson, said: “Care employers need higher fees and secure contracts from councils and the NHS to provide better pay and working conditions. This requires government investment.

“Focusing on employment practices without also improving funding and commissioning risks unintended consequences.”

There was a similar warning from think-tank the Nuffield Trust, whose director of policy, Natasha Curry, said: “The hard reality is that adult social care has become reliant on zero hours contracts and some workers value the flexibility, and so there needs to be a careful, cautious, approach here that seeks to improve terms and conditions without suddenly destabilising the sector.”

Long-awaited Mental Health Act reform

The King’s Speech also included long-awaited legislation to reform the Mental Health Act 1983. This was promised by the Conservatives in their 2019 election manifesto, but not delivered during their subsequent five years in power, despite the party producing draft legislation in 2022.

Labour said its planned legislation would ensure “patients have greater choice, autonomy, rights and support, and make sure all patients are treated with dignity and respect throughout their treatment”.

Specific measures set out in the King’s Speech background briefing appear very similar to the Conservatives’ planned reforms. These include:

• Revising the detention criteria to ensure that people can only be detained if they pose a risk of serious harm either to themselves or to others, and where there is a reasonable prospect that treatment would have a therapeutic benefit.
• Shortening the period that a patient may be kept in detention for treatment, which is currently an initial six months, and providing faster and more frequent reviews and appeals in relation to both detentions and treatment.
• Further limiting the extent to which people with a learning disability and/or autistic people can be detained and treated under the Mental Health Act and supporting such individuals to live fulfilling lives in their community, including by ensuring an adequate supply of community services to prevent inappropriate detentions.
• Replacing the role of nearest relative – a family member with key rights and responsibilities in relation to patients but whom the patient has no role in appointing – with that of nominated person, who would generally chosen by the patient.
• Extending access to independent mental health advocates to informal patients and introduc an opt-out system for formal patients.
• Removing police stations and prisons as places of safety under the MHA to ensure people experiencing a mental health crisis are supported in the most appropriate setting.
• Adding statutory weight to patients’ rights to be involved with planning for their care and to make choices and refusals regarding the treatment they receive.
• Supporting offenders with severe mental health problems to access the care they need as quickly and early as possible, and improving the management of those patients subject to a restriction order (for the purposes of public protection).

‘Once-in-a-generation opportunity’

“Reforming the Mental Health Act is a once-in-a-generation opportunity,” said Sarah Hughes, chief executive of mental health charity Mind.

“This bill is a chance to strengthen people’s rights, choice, and control when they’re being treated in a mental health hospital. It’s a chance that must be taken to address the shameful racial disparities the law currently enables, particularly for Black people who are nearly four times more likely to be detained.

“And it’s a chance to ditch community treatment orders, which are meant to give people supervised treatment in the community but are too often intrusive, restrictive and fail to reduce readmissions as they were intended.”

For the Centre for Mental Health, chief executive Andy Bell said: “We hope the bill that is delivered will be sufficiently comprehensive to update legislation that does not provide enough safeguards and that leaves people spending months in prison waiting for an urgent hospital bed.”

However, in outlining its plans for the bill, the government  said its impact would be years in the making.

“These reforms will take a number of years to implement, as we will need to recruit and train more clinical and judicial staff,” it said. “We plan to introduce these reforms in phases as resources allow, and we will not commence new powers unless we have sufficient staff in place that means it is safe to do so.”

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.