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. 

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.