Long-awaited legislation to overhaul the “outdated” Mental Health Act 1983 (MHA) has been introduced to Parliament.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

The adoption system is “institutionally racist”, sector leaders have warned, in a strategy designed to tackle ethnic inequalities facing children and prospective adopters and a lack of diversity in the workforce.

In its strategy for 2024-27, Adoption England, the national body supporting regional adoption agencies (RAAs), said it wanted to “end the racial disparity” that meant black children waited significantly longer than average to be adopted.

Key to this was increasing the number of black people approved to adopt and increasing the diversity of the adoption workforce, it added.

Adoption inequalities for black children

Black children are overrepresented in England’s care system, making up 7% of the total, compared with 5.5% of the child population.

However, they are significantly underrepresented in adoption, accounting for just 2% of those adopted in the year to March 2023 (source: Department for Education), while those placed for adoption wait significantly longer than average to be adopted.

Black children who had not been placed with a family had waited an average of 18 months since the grant of their placement order – 11 months longer than the average for white children – and 32 months since entering care, a full year longer than white children, according to the latest data, said Adoption England.

Need to recruit more black adopters

In a 2022 report, Ending Racial Disparity in Adoption, the now dissolved Adoption and Special Guardianship Leadership Board (ASGLB), said tackling the problem required RAAs and voluntary adoption agencies (VAAs) recruiting more black adopters, rebuilding trust with black communities and better resourcing interracial adoption.

According to a report last year published by the Black Adoption Project, there was a much smaller pool of potential adopters of the same ethnic background for black and mixed-race children across all regions than for Asian or white children, because of the former groups’ overrepresentation in the care system.

This meant agencies had to over-recruit black adopters to ensure there were sufficient potential matches for black children, said the project, which is a partnership between four London RAAs and equality, diversity and inclusion firm Laurelle Brown Training and Consultancy.

‘Multiple hurdles’ to adopting

However, people from black and mixed black ethnic groups accounted for just 2.7% of prospective adopters approved in England from 2018-19 to 2020-21, compared with the 6.4% of children placed for adoption from 2016-17 to 2020-21 who were from these backgrounds.

And while the number of black and ethnic minority approved adopters rose from 450 in 2019-20 to 698 in 2022-23, numbers had fallen back since, said Adoption England.

Its 2024-27 strategy said there were “multiple hurdles” facing black people considering adoption, with last year’s Black Adoption Project report saying black-only households were 5-6 times more likely than white-only households to leave the process without having adopted a child.

Financial barriers facing black households

Black people who contributed to the research cited “financial barriers and inequalities, a lengthy and challenging adoption process, a lack of post-adoption support (including culturally informed support), and the impact of racism and racial bias negatively affect their experiences and outcomes”.

For example, with 54% of black households reporting an income of less than £600 a week in 2020-21 – the highest of all ethnic groups – they were likely to be disproportionately affected by adopter assessments considering available space in the home and stability of income, said the report.

Focus group participants in the Black Adoption Project research also reported a lack of adoption promotion material specifically targeted at black communities.

Tackling discrimination in decision making

Among five outcomes in the Adoption England strategy are for adopters from diverse communities to be recruited, prepared and supported to meet children’s needs.

It said this should involve both RAAs and Adoption England’s national teams addressing bias and discrimination in processes and decision making to encourage recruitment of adopters that reflect the diversity of children needing adoption.

In an interview with Community Care, national adoption strategic lead Sarah Johal said Adoption England was funding the Black Adoption Project in testing approaches to improving the recruitment of black adopters.

Need to rebuild trust with black communities

“There’s a big thing on rebuilding that trust with black communities, looking at some of the barriers that people experience when they come forward to adopt and how they’re supported through the process as we know the drop-off rate is quite high.”

One issue highlighted in the ASGLB report was an apparent under-representation of black social workers in adoption teams.

This was in the context of research finding that black people open to, or in the process of adoption or fostering, are more likely to prefer to be assessed by a practitioner from the same ethnic background than white adults (60% v 46%).

In its strategy, Adoption England said it wanted RAAs to increase the diversity of both adoption panels and their workforces and that it would itself promote opportunities to develop greater diversity and
better cultural competence among adoption staff.

Adoption workforce ‘predominantly white’

Across local authority children’s services in England, 25% of social workers are from black, Asian and ethnic minority groups (excluding white minorities), compared with 18% representation in the general population of England and Wales.

However, an Adoption England spokesperson said: “From consultation with RAAs across the country, it’s clear that the workforce is predominantly white women.  We have been supporting leadership initiatives to support global majority leaders in the adoption workforce and to increase the diversity of adoption panels but more needs to be done.”

Separately, Adoption England has jointly funded the development of a practice framework for decision making on transracial adoptions, which was launched last week.

Practice framework on transracial adoption

Produced by University of Sussex academics, led by Tam Cane, the anti-racist framework for decision-making and transitioning children from minoritised racial and ethnic groups into transracial adoptive families is based on nine principles, including:

• Recognising that transracial adoption can lead to trauma, with a lack of support to help the child develop a cohesive and positive sense of identity potentially contributing to confusion and identity struggles.
• Taking an anti-racist approach to practice, which involves “actively opposing discrimination, bias and stereotypes, and striving to eliminate systemic barriers that perpetuate racial inequalities”.
• Being culturally responsive, by prioritising “the preservation of a child’s cultural heritage and the need to embrace, celebrate and engage with the child’s cultural links over time”.
• Collaborating with and including birth parents in sourcing information about the child’s racial and ethnic identity and understanding the potential challenges and benefits of transracial adoption.
• Providing culturally sensitive pre- and post-adoption support.

Launching the report, Adoption England said the framework was seen as “a ground-breaking publication that underscores the unwavering commitment to improving positive identity outcomes for children in transracial adoption”.

By Beverley Barnett-Jones

Addressing ethnic inequalities in children’s social care requires an understanding of the disparities that families face, as well as the factors that shape them.

The Nuffield Family Justice Observatory recently added to the evidence base by publishing a briefing paper on the ethnicity of children in care and supervision proceedings in England.

This was based on research carried out in collaboration with the Centre for Child and Family Justice Research at Lancaster University.

It used population-level data from Cafcass relating to 105,334 children from different ethnic groups who appeared in care proceedings for the first time between 2016-17 and 2021-22, and included an analysis of their demographic characteristics and legal outcomes.

Ethnic differences in age at start of proceedings

One of the key findings was that black and Asian children were, on average, older than white and mixed or multiple ethnicity children at the start of proceedings.

On average, white and mixed or multiple ethnicity children were five years old when they entered care proceedings, whereas black and Asian children were seven years old.

The proportion of children aged 10 or over was also highest for those who were black, Asian or from other ethnic groups. Furthermore, 27% of children from white and mixed or multiple ethnic groups came into court proceedings before they were a year old, compared with 19% of black children and 16% of Asian children.

This could indicate that local authorities are intervening in some families’ lives either too late or too early – but reliable evidence to establish this is not yet available.

Are children being supported at the right time?

There is a pressing need to examine whether children and their families are being supported at the right time.

Delayed intervention can mean that the measures eventually put in place are less likely to be effective – or might not make any positive difference at all – because the child and family might have already reached crisis point.

It would be pertinent to analyse the ethnicity of children who are already being safeguarded through child protection or child in need plans by the time they appear in care proceedings.

Order or no order

The research also paints a complex picture of how ‘interventionist’ final orders were.

At the end of proceedings, black and Asian children were more likely to not receive an order than children who were white or from mixed or multiple ethnic groups. In these cases, safeguarding action wasn’t deemed necessary at the end of proceedings – so could there potentially have been a level of overcautiousness or over-intervention from the local authority?

Or, conversely, had these families been helped to take measures or access support services to avert the need for an order? Research that investigates this issue would be welcomed, especially as care proceedings are likely to be stressful, traumatic and lengthy.

A case file analysis that assesses the reasons why the local authority believed a child was at risk of significant harm, and which order was originally applied for, would prove particularly beneficial.

Degrees of intervention

Furthermore, when black and Asian children did receive an order, they were, on average, ‘less interventionist’ than those received by their white counterparts.

For example, black and Asian children are most likely to be on supervision orders, which are at the lower end of the intervention ‘scale’. An exception to this finding was that black and Asian children had the highest proportion of secure accommodation or deprivation of liberty (DoL) orders, which are extremely interventionist. Again, it’s vital to ascertain why.

Black and Asian children were less likely to be on an adoption/placement order – the most intrusive form of state intervention in family life – than children from white and mixed or multiple ethnic groups. This happened to 6% of black and 5% of Asian children compared with 17% of white and 16% of mixed or multiple ethnicity children.

It is also important to note that mixed heritage children were significantly over-represented in adoption. As well as trying to unravel the reasons behind this, we should be considering how well their identity and cultural needs are being met.

Change in law on adoption and ethnicity

This is especially so as in 2014, the government removed the requirement for adoption agencies to give due consideration to the child’s religious persuasion, racial origin and cultural and linguistic background when making decisions about them.

We know there were many complex reasons for this legislative change, some driven by ideological positions, including the opinion that black children might have potentially been missing out because they were waiting to be placed with the right family based on racial and cultural characteristics.

But, nearly 10 years later, we can see that this change did not have the intended impact.

Fall in number of black children adopted

According to government figures, the number of black children adopted fell from 120 (2.2% of the adopted population) in 2014-15 to 60 (1.7%) in 2019-20. Over the same period, the number of black children who were no longer being looked after because they had been adopted went down from 4% in 2015 to 2% in 2020.

Furthermore, the Ending Racial Disparity In Adoption report (Adoption and Special Guardianship leadership Board, 2022) found that black children waited longer for adoption than white children.

It concluded that the strategies required to find families for black children in need of adoption were to recruit black adopters and match black children; rebuild trust with marginalised and minoritised families; and to properly resource interracial adoption.

Recruiting black adopters

Significant work is being undertaken by Adoption England – the umbrella body for regional adoption agencies – to address the complexity around recruitment and system barriers that prevent willing black families coming through to successful approval.

Much can also be learnt from the work of the Black Adoption Project led by Adopt London, which aims to create better futures for black adopted children in London and ensure that every black child who needs an adoptive family can have one

As I have indicated above, this research leaves many unanswered questions. We strongly encourage researchers to consider carrying out in-depth, quantitative or qualitative studies in relation to children’s and families’ journeys before and through family justice and afterwards, to analyse the disparities and complexities uncovered.

The quality and completeness of ethnicity data has been improving in recent years and we urge professionals working in and around the family court to ensure that children’s ethnicity is recorded where possible to enable this kind of research.

Taking an intersectional approach

I would also encourage social workers to consistently analyse care proceedings through an intersectional lens that looks at ethnicity along with other social categories such as class and gender.

This involves asking whether under- or over-intervention could be occurring in particular groups with differing ethnic identities and reflecting on what factors might be driving the measures being taken and the orders being applied for and granted.

Is there any evidence that individual or institutional biases could be influencing decision-making?

Or could adultification bias – when notions of innocence and vulnerability are displaced by notions of responsibility and culpability -be playing a part? Research suggests that black children are most likely to experience adultification bias, resulting in their rights being diminished or ignored and hindering child protection responses.

And, finally, I would call on social workers to implement anti-racist practice in their everyday work; to be informed about the disparities that children from different ethnic groups can face; and no matter how challenging or difficult it might be, to have open conversations about ethnicity and inequalities within the systems (including multi-agency) that they work within.

Beverley Barnett-Jones is associate director for practice and impact at the Nuffield Family Justice Observatory and a registered social worker

The number of detentions under the Mental Health Act 1983 in England has fallen for a second consecutive year, but significant racial disparities persist, official figures have shown.

MHA detention numbers fell by 7.7% on a like-for-like basis from 2021-22 to 2022-23, following a 5.7% drop the year before, showed data released yesterday by NHS England (formerly NHS Digital).

The reductions followed increases in detentions over the previous three years. However charities said use of the act remained high, demonstrating both the lack of investment in prevention and the urgent need to reform the MHA.

Though the government has pledged to overhaul the act, it has, effectively, ruled out doing so before the next election.

Reducing detention rates was among the key aims of MHA reform, along with cutting the significant racial disparities in use of the act.

However, the data showed these remained high, with detention rates for black or black British people 3.5 times those for white people.

Fall in detention numbers

NHS England recorded 51,312 detentions under the MHA in 2022-23, with most of these involving people being detained on admission to hospital for assessment under section 2 of the act (30,442).

This was down 3.8% from the 53,337 recorded in 2021-22. However, in neither year did NHS trusts and independent providers submit complete data, so NHS England published separate figures from 24 organisations for which it had reliable data going back to 2017-18.

They reported 21,411 detentions in 2022-23, down from 23,211 in 2021-22 and 24,604 in 2020-21, and their lowest recorded total in the six-year period.

The statistics also indicated a decline in the number of community treatment orders (CTOs), under which people discharged after detention have conditions placed on their treatment in the community, with the risk of recall to hospital if certain criteria are met.

The number of CTOs recorded fell to 5,157 in 2022-23, from 5,552 in 2021-22 and 6,070 in 2020-21, however these figures are based on incomplete data so are not comparable.

Racial disparities remain high

As in previous years, the detention rate was highest among black or black British people in 2022-23 at 227.9 per 100,000 population, 3.5 times the rate for white people (64.1). The rates were 74.7 for Asian people, 157.9 for those from a mixed background and 107.2 for those from the ‘other’ ethnic group.

The recorded detention rate for black people was 4.5 times that for white people in 2021-22, however, this does not represent a narrowing of the racial gap because of differences in the two datasets.

This year’s figures were based on the 2021 census, for which the population of black people was higher than for the previous 2011 census, which was used for the 2021-22 statistics. The white population remained stable from 2011-21.

So while similar numbers of detentions were recorded for black people in the two years (5,674 in 2021-22 and 5,348 in 2022-23), the rate per 100,000 population was significantly lower this year.

The number of detentions of white people fell from 33,311 2021-22 to 29,769 in 2022-23.

Black people were also eight times more likely to be placed on a CTO than white people, compared with 11 times in 2021-22, with this change also explained substantially by the shift to using the 2021 census.

Charities’ criticisms

The figures drew a critical response from mental health charities.

“Many of the tens of thousands of people who were detained under the Mental Health Act tried to seek help earlier, but the lack of options for accessing care in communities and long waiting lists meant they became more unwell,” said Mind chief executive Sarah Hughes.

She said the data illustrated the urgency of MHA reform, a point echoed by her counterparts at the Centre for Mental Health and the Race Equality Foundation, Andy Bell and Jabeer Butt.

“The disparities in use of the act remain stark, with Black people still nearly four times as likely to be detained than white people,” said Bell.

“It’s imperative that reforms to the Mental Health Act, now long overdue, are introduced early in the next Parliament, so that people receive fairer, safer and more compassionate care when they’re struggling with their mental health.”

Butt added: “The current Mental Health Act is 40 years old and reinforces mental health inequalities with its disproportionate use on racialised communities. We need to fix this law and put better protections in place as soon as possible.”