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Ripping up the Mental Health Act - the journey continues

The Government has published a white paper on reforming the Mental Health Act 1983, promising that its proposed changes would provide patients with greater choice and autonomy in a mental health crisis. Sophy Miles sets out the key points.

“Reforming the Mental Health Act” was presented to Parliament on 13 January 2021, and is the latest step in the process of mental health law reform. It began on 7 May 2017 when Theresa May announced she was “pledging to rip up the 1983 Act”.

On 4 October 2017, terms of reference announced, and Sir Simon Wessely was asked to chair the Independent Review of the Mental Health Act. In May 2018 the interim report published. Over the Intervening period the Review received papers from “topic groups” which included a wide range of stakeholders.

The final report of the Independent Mental Health Act Review (“Modernising the Mental Health Act: Increasing choice, reducing compulsion”) was released on 6 December 2018. It contained a frank recognition of the role of the combination of “unconscious bias, structural and institutional racism” which contributes to the over-representation those from a BAME heritage in the use of compulsory powers. There was also a recognition of the role of the culture of risk-aversion, especially leading up to the amendments in the 2007 Act. The report contained stark descriptions of conditions by some of some inpatient settings where “the way they are treated by staff, the levels of threat and violence, the physical environment and the sound levels make hospital sound little different to prisons”.  

The aim was to “shift the dial” in favour of the patient rather than the professionals.

You can read the White Paper here: it proposes to follow the majority of the recommendations of the Review. If these do get onto the statute book, it will represent a real change of emphasis.  

The “guiding principles” recommended by the Review were:

  • Choice and autonomy – ensuring service users’ views and choices are respected
  • Least restriction – ensuring the Act’s powers are used in the least restrictive way
  • Therapeutic benefit – ensuring patients are supported to get better, so they can be discharged from the Act
  • The person as an individual – ensuring patients are viewed and treated as individuals

The Government proposes that these would be written into the new Act - at present the MHA’s guiding principles are found in the Code of Practice.

Key changes to detention, treatment and the powers of the Tribunal include:

  • Changes to the detention criteria are proposed such that detention under section 2 or 3 will only take place where there is a there is "a substantial likelihood of significant harm to the health, safety or welfare of the person, or the safety of any other person." This will not apply to forensic patients where the criteria in section 37 will remain unchanged.
  • Learning disability and autism will no longer be classed as mental disorders for the purpose of detention under section 3. Detention under section 2 would be permitted when a person’s behaviour is behaviour is so distressed that there is a substantial risk of significant harm to self or others (as for all detentions) and a probable mental health cause to that behaviour that warrants assessment in hospital. Views are sought about “unintended consequences” which would of course include the loss of section 117 aftercare for this cohort.
  • The “nearest relative” would be replaced by a “nominated person” with similar powers, with a fall-back “interim nominated person” appointed by an AMHP on applying for admission if the patient lacks capacity to nominate. The nominated person would also be consulted on care plans where the patient has agreed. This would apply to Part 3 patients as well as those detained under civil sections although with limited powers. Under 16s who are “Gillick competent” will be able to choose their nominated person but this will be without prejudice to the rights of those with parental responsibility. The White Paper seeks views on whether the power of the County Court to displace a nearest relative should be exercised by the Tribunal, and whether funding should be non-means tested. (Given the need on occasions to seek urgent displacements, sometimes out of hours, this would require careful thought).
  • A right to give “advance consent” to admission.  This was an issue considered by the Review (taken from the provisions recommended by the Law Commission as a reform to the Mental Capacity Act, but subsequently not included in the Mental Capacity Amendment Act 2019) but the Review was not able to secure consensus.
  • Introduction of an Advance Choice Document which will “in most cases” be equivalent to decisions made in “real time” by a patient with capacity.
  • Introduction of a statutory “Care and Treatment Plan” which in the case of a patient with learning disability or autism will take into account the findings and recommendations of a care and treatment review.  Where the plan over-rides the patient’s wishes or the recommendations of a care and treatment review, reasons must be given.
  • A patient who lacks capacity but has refused treatments such as ECT in a valid Advance Choice Document will be in the same position as a patient with capacity who refuses the treatment - it can only be given under the emergency provisions when it is necessary to save life or prevent a serious deterioration, and then only following an application to the Court.
  • The “three month rule” in which medication can be given without consent will be reduced to 14 days before a SOAD must be involved. Views are sought on whether to remove the power to impose treatment against the wishes of a capacitous patient in order to alleviate “serious suffering”.

The proposals would see an increase in the involvement, and powers of, the Tribunal:

  • Patients detained under section 2 will be able apply to the Tribunal within 21 (rather than 14) days.
  • Patients detained under section 3 will be able to apply to the Tribunal three times in the first year of detention, and independent mental health advocates (IMHAs) and “nominated persons” (replacing nearest relatives) will have a statutory power to apply on the patient’s behalf to the Tribunal;
  • The Tribunal will take into account the responsible clinician’s “care and treatment plan”, which will become a statutory document and which must set out the justification for detention. In civil cases the Tribunal’s powers will be expanded to allow it to grant leave or transfer and direct services in the community. There will be an obligation in legislation for statutory bodies to take “all reasonable steps” to follow the Tribunal’s decision, failing which the statutory body must explain why it was not possible. The intention is for this to align the powers of the Tribunal with those of the SEND Tribunal.
  • Tribunals in CTO cases will be able to comment on, but not alter, conditions.
  • Tribunals in restricted cases will have the power to discharge patients on conditions which deprive the patient of his or her liberty, to be reviewed annually by the Tribunal.
  • A single Tribunal judge will hear appeals against some treatment decisions.

The Government commits to tackling the “profound inequalities” in the system faced by those from BAME communities. It intends to create a Patient and Carer Race Equality Framework which is to:

  • Identify areas for improvement in the experience of patients from ethnic minority backgrounds, especially for people of black African and Caribbean descent - the areas for improvement (‘competencies’) will apply across all mental health services, including inpatient wards, community mental health services, and IAPT talking therapies.
  • Work with communities to identify which competencies should be strengthened, and put in place strategies, interventions and actions to improve them in an iterative manner.
  • Provide a recurring feedback loop to the Board, Trustees, stakeholders and the public to keep them informed of progress.

There will also be a Pilot on culturally appropriate advocacy and an attempt to increase the diversity of the workforce.  The White Paper contains plans to extend the right to advocacy to all inpatients, and to improve the quality of advocacy through enhanced training.

At a launch chaired by a cheerful Sir Simon Wessely, the Health Secretary Matt Hancock stated that the proposals had been well received on all sides of the House of Commons, and evinced an intention to move forward “at pace but with sensitivity” and promised a process of "active listening".

Anyone with an interest in how society treats those battling with mental health difficulties is urged to take part in the consultation, which will run for three months.

Sophy Miles is a barrister at Doughty Street Chambers. She can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..