The Mental Health Bill is currently before Parliament. It contains measures to amend the Mental Health Act 1983 (MHA) with the aim of strengthening the voice of the patient and ensuring that detention is only used when, and as long as, necessary.
The Bill is based largely on the recommendations by the Independent Review of the MHA. This was followed by a White Paper, a public consultation, a draft Mental Health Bill, and pre-legislative scrutiny by a Joint Committee of both Houses of Parliament. The key changes in the Bill are summarised below.
Detention criteria
The Bill tightens the criteria for detention under Part 2 of the MHA. In future, clinicians will need to demonstrate “serious harm” to the health and safety of the person or others, before a person can be detained. When it comes to section 3 detentions, there must be a reasonable prospect of therapeutic benefit for the patient, and people with a learning disability and autistic people must have a co-occurring “psychiatric disorder” that warrants hospital treatment.
The Nominated person
The Bill replaces the Nearest Relative with a new statutory role, the Nominated Person (NP). The NP is chosen by the person when they are have capacity/competence and continues to represent the patient even if that patient subsequently become unwell. If the patient lacks capacity or competence to nominate, and has not made a nomination, an Approved Mental Health Professional may appoint a 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 and transfers between hospitals and to object to the use of a Community Treatment Order.
Consent to treatment
The Bill makes several reforms to the consent to treatment provisions in the MHA. It introduces a new ‘clinical checklist’ for clinicians making treatment decisions. Clinician would be required to consider certain matters and take a number of steps when deciding whether to administer medical treatment to a patient, such as considering the patient’s wishes and feelings, and consulting those close to the patient. There are restrictions on a clinician’s ability to administer medication to a patient who is refusing, either with capacity or competence at the time, or in a valid and applicable advance decision. Such treatment could not be given unless there is a “compelling reason” to do so. The Bill also provides for greater access to Second Opinion Appointed Doctors (SOADs).
Community Treatment Orders
The Bill revises the criteria for the use of Community Treatment Orders (CTOs) in line with changes to the detention criteria. CTOs can only be used if there is a risk of “serious harm” and there is a reasonable prospect of therapeutic benefit. People with a learning disability and autistic people will not be able to be made subject to a CTO solely on the basis of their learning disability or autism.
Learning disability and autism
There are specific reforms aimed at people with a learning disability and autistic people. Care (Education) and Treatment Reviews (C(E)TRs) would be placed on a statutory footing. C(E)TRs must be held when a patient with a learning disability or an autistic patient is detained under the MHA. Certain bodies would be required to have regard to the recommendations made by the C(E)TR.
There would be 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.
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
The Bill extends rights to Independent Mental Health Advocates (IMHAs) 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.
Section 117 after-care
The Bill changes the ordinary residence rules that identify which local authority must provide or arrange section 117 after-care 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.
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 and feelings, and decisions, about their care and treatment which 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 the ability of the police to use police cells as a “place of safety” for the purposes of sections 135 and 136. 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 mentally disordered prisoners to hospitals by introducing a statutory time limit of 28 days. The Bill also creates a power for the mental health tribunal or the Justice Secretary to place conditions that amount to a deprivation of liberty on a patient as part of a conditional discharge.
Next steps
The Bill will no doubt be amended during its passage through Parliament. It is likely to become law sometime in Spring 2025. Some reforms will be introduced immediately, whilst others will take longer and will depend on funding being available. The government estimates that full implementation may take 10 years.
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