Reform of The Mental Health Act in England and Wales

The recommendations of the independent review formed a package, with many of them working together to “rebalance the system” towards patients’ rights, preferences, and choices – for example guiding principles, advance choices, enhanced treatment safeguards and greater access to advocacy. It is important to see the reforms as a whole, not as a collection of discrete amendments. The overall priority should be to complete the reform by passing legislation and agreeing a timetable for implementation.

However, there is still some work to do given the gaps in the draft Mental Health Bill and the recommendations made by the Joint Committee.

Mental Health Commissioner for England

The Joint Committee recommended the creation of a statutory Mental Health Commissioner to help drive the ongoing process of reform and ensure accountability for implementation. We support the creation of this role in England, which we consider would offer sustained leadership for mental health complementing existing roles and structures in government.

Race equity

Racial disparities were one of the main reasons for the independent review being commissioned. The Joint Committee called on the UK government to strengthen the draft bill in this respect, making recommendations for:

• all health organisations to be required to appoint a responsible person to collect and publish data on, and oversee policies to address, racial and ethnic inequalities
• a statutory right to culturally appropriate advocacy
• abolition of community treatment orders (CTOs) for patients under Part II of the Act

Advance Choice Documents

The Joint Committee recommended that all patients who have been detained under the Mental Health Act should have the statutory right to make advance choice documents, covering care and treatment, and have support in doing so. This is potentially one of the most impactful reforms as research shows that this type of measure reduces detentions and is most cost effective for Black people. ACDs resulted in black service users being more likely to have an increased sense of autonomy and including them was more likely to be cost-effective for this group compared to those of other ethnic backgrounds.

People with learning disabilities and autistic people

The UK Government took a different view from the Independent Review and the Draft Bill removed autism and learning disability as grounds for detention under Section 3 of the MHA. The Joint Committee broadly supported this but was concerned about the unintended consequences and made recommendations about proper implementation of community care improvement and stronger safeguards against inappropriate detention.

RCPsych retains concerns about the proposals in the Draft Bill: 

• We commend the emphasis on supporting people with learning disability and autism in the community but we have substantial concerns about potential negative impacts following the implementation of these reforms.
  

• There are times when community services cannot manage the level of risk that some patients with LD present with. 
• There is a real danger that people with LD presenting with such high-risk behaviours will be dealt with by the police and in the criminal justice system if they cannot be admitted to hospital under the MHA.

• We are conerned that differentiating the definitions of mental disorder in Part II and Part II of the MHA would be discriminatory and disadvantage the care people with LD would receive.
• There are considerable, unconsidered resource implications from the proposals. Though the Bill's impact assessment is based on assumption that removing LD/A from s3 of the MHA will reduce the use of hospital beds, there is  a considerable likelihood that the MCA will instead be used to authorise their detention.

Distinctions made between part 2 and 3 (civil and criminal)

The College retains a strong objection to the creation of a division between part II and III although we appreciate that government may view part II and part III as serving different public policy purposes. Any division will result in many of the principles that should apply to all people with mental disorder being watered down for this group. If people in prisons have a right to equivalent care then the Mental Health Act should reflect that value.

Children and young people

The Joint Committee called the anticipated legislation a crucial opportunity for the Government to strengthen the rights and protections for children and young people under the MHA. We strongly support this call. The Joint Committee’s recommendations include introducing stronger requirements to avoid the placement of children in adult or out of area wards, and consulting on a statutory test for ‘child capacity’ to ensure that children and young people have equal access to the safeguards in the draft Bill that rely on a patient’s ability to make their own choices.

Implementation

The reforms’ success depends on ensuring that the NHS, Ministry of Justice and local authorities have the workforce and resources they need to implement them. The White Paper estimates investment of £1.79bn is needed for the Health and Social Care system and the Tribunal Service to implement the reforms over a twelve-year period from 2021/22. However, research externally commissioned by RCPsych suggested this may be an underestimate. 

The primary driver of these increases will be the additional time required to prepare and attend Tribunal hearings given the additional obligations placed on psychiatrists as part of the reforms. Increases in the frequency of Tribunal hearings per detention, additional tasks relating to detained patients outside of Tribunal hearings and additional training have a more modest but nonetheless material impact on the numbers of additional psychiatrists required.

In 2023 the Rt Hon Professor Baroness Hollins published her final report on people with an intellectual disability, and autistic people, who are detained in mental health and specialist learning disability hospitals.

The report reviewed the care and treatment of 191 people who were detained in Long Term Segregation (LTS) between November 2019 and March 2023.

The Review was commissioned in December 2019 by the Secretary of State for Health and Social Care, and it has been overseen by Baroness Hollins.

Towards the end of 2023 the Department of Health and Social Care also published their response to the report, in which they say they will consider the report upon updating the Mental Health Act 1983: Code of Practice when it is next reviewed.

Read the College's detailed response to the ‘Independent Care (Education) and Treatment Reviews: final report, 2023’

This work applies to England. The College recognises that policy and practice vary across the respective nations of the UK.

As part of the Pre-Legislative Scrutiny, the Joint Committee on the Draft Mental Health Bill was established by the House of Lords and the House of Commons. The Joint Committee was appointed to consider the Government's draft Bill which aims to modernise the Mental Health Act.

The Final Report of the Joint Committee on the Draft Mental Health Bill was published in January 2023.

RCPsych Briefing on the Final Report of the Joint Committee.

The College engaged with the committee by submitting written evidence and giving oral evidence on learning disability and autism and also a general expression of the College view on the Draft Bill.

• RCPsych Submission to Joint Committee on the Draft Mental Health Bill Call for Evidence
• Oral Evidence Session on Learning Disability and Autism to which RCPsych contributed
• Oral Evidence Session on RCPsych's position on Draft Mental Health Bill

In 2022, the Government published its draft Mental Health Bill, after five years of review and consultation. 

The Draft Bill was mostly in line with the independent Review of the MHA, led by Professor Sir Simon Wessely, though there are some departures. Most notable was the amendment to take learning disability and autism out of the civil part of the Act.

Key policies

• Removing Learning Disability and Autism from the civil parts of the Act, retaining them in the criminal parts
• Placing Care (Education) and Treatment Reviews on a statutory footing and risk register to help manage this transition
• Detention criteria amended in the civil parts of the Act so people can only be detained if  “serious harm may be caused to the health or safety of the patient or of another person” and secondly that the decision maker must consider “the nature, degree and likelihood of the harm, and how soon it would occur”
• Detention criteria amended in both civil and criminal parts of the act so that treatment provides a therapeutic benefit.
• Additional safeguards around the administration of urgent electro-convulsive therapy
• The replacement of Nearest Relative with a Nominated Person
• Shortening of periods for automatic referrals to tribunals
• Introduction of Conditional Discharge where restricted patients can be subject to conditions when discharged by the MHT or the Secretary
• of State if they no longer require detention for treatment in hospital, but there are continuing risks that cannot otherwise be safely managed in the community
• Introduction of a statutory 28-day time limit within which individuals with a severe mental health need must be transferred from prison to hospital for treatment under the MHA.
• Changes to Advocacy in England to extend the right to IMHA services to voluntary patients in England, already the case in Wales.
• Extension of MHT’s power to recommend to the local social services authority and CCG that they make plans for the provision of after-care services for the patient. Removal of prisons as places of safety.
• Removal of police stations and prisons as places of safety
• Advance Choice Documents are to be introduced, but due to legal reasonings in connection to the MCA reforms, they have not been included in the Draft Bill.

Alongside the Draft Bill, the Government published explanatory notes and an impact assessment.

What was the Independent Review of the Mental Health Act 1983?

The Review was officially announced in October 2017, having been set up by Theresa May to tackle “the injustice and stigma associated with mental health”. The Review was chaired by Professor Sir Simon Wessely and was intended to reform the MHA to tackle:

• the rising rates of people being detained under the act
• the disproportionate number of people from black and minority ethnic groups detained under the Act
• whether some processes relating to the Act are in line with a modern mental health system.

What did the Review do?

The Review examined a range of evidence sources, including speaking to people with experience of the Mental Health Act, to discover which areas of the Act needed reform. It published its early findings in an interim report in May 2018.

Once it had decided on areas in need of reform, the Review set up topic groups on each area to examine potential reform. Reports from each of these topic groups formed the basis of the Review’s final report, published in December 2018.

What are the key findings and recommendations of the Review's report?

The final report of the Review is based on four principles:

• Choice and autonomy
• Least restriction
• Therapeutic benefit
• The person as an individual

Principle 1: Choice and autonomy

The Review called for an increase in patients’ ability to make decisions about their own care and treatment. It made recommendations on:

• Advance Choice Documents – The implementation of Advance Choice Documents (ACDs) in which patients and service users are encouraged to voice their views about any future inpatient care.
• Advocacy – A right to advocacy based on an opt-out approach and an extension of advocacy to people who are informally admitted (as happens in Wales), to mitigate the risk of ‘de facto’ detention.
• Nominated persons – A replacement of the "nearest relative" system with a system in which a patient can choose their own "nominated person".

Principle 2: The use of Least Restriction

The Review called for the Least Restriction principle to be strengthened and stressed that less restrictive alternatives must always be considered. It made recommendations on:

• Avoiding detention and supporting people in crisis – Providing high-quality alternatives to detention is the best way to improve the care and outcomes for those with the severest mental illnesses – greater provision for crisis and community mental health services is needed.
• Care and treatment plans – A duty on the Responsible Clinician (RC) to formulate a detailed care and treatment plan for each individual as soon as reasonably practicable. Should the wishes and preferences of the patient not be followed, a record should be made of the reason why not.
• Rights to challenge – Increasing the role of the Tribunal by giving it the opportunity to scrutinise statutory care plans; shortening the initial period of detention under Section 3; providing a right to seek a referral where there has been a significant change in circumstances.
• The right to an early challenge to compulsory treatment – Earlier access to a Second Opinion Appointed Doctor (SOAD) and an ability for patients to make a Tribunal challenge a treatment decision both the RC and SOAD believe to be necessary.
• The voluntary patient – An aspiration towards voluntary admission as the norm.
• The interface with the Mental Capacity Act – Decisions about detention and treatment where the patient lacks the requisite mental capacity should be made based on whether the patient is “objecting” to what is proposed.
• Community Treatment Orders – Reduce the number of CTOs used by tightening the necessary criteria; an extension of the powers of the Tribunal to include dealing with conditions of a CTO; and making it particularly difficult to extend beyond two years without a compelling reason.

Principle 3: Therapeutic benefit

The Review argues that a Therapeutic Benefit principle should set out that services need to be delivered in a way that minimises the need for MHA powers to be used, and so that, where they are, patients are supported to recover so that they can be discharged from the Act. It makes recommendations on:

• Inpatient environments – Ward environments and ward cultures alike should support independence, social interaction and activity. These are all key to enabling people to get better.
• Discharge – The new Care and Treatment Plan during detention must include discharge planning, to ensure that from the point of detention inpatient services are thinking about the steps necessary to get someone back to their community.
• Aftercare – Level the playing field by making sure there is better access to long-term support to everyone to keep them well and prevent admission, especially as we hope to see far fewer people detained in the future.

Principle 4: The person as an individual

The Review has called for a Principle of Patients as Individuals to make sure that patients are viewed and treated as rounded individuals. It makes recommendations on:

• Ethnic minorities – The creation of an Organisational Competency Framework (OCF) for tackling racial disparity, which has at its core service user and carer accountability measures, designed to address the disproportionate detention of those from some BME communities. Holding organisations to account has the potential to deliver benefits across the MHA and beyond.
• Children and young people – Additional checks and safeguards to tackle the fact that children are likely to be placed out of area and may be placed in an adult unit; a clarification of the use of the laws referring to children; and a position where the same functional test for ability to decide is applicable to all ages.
• Learning disabilities and autism spectrum disorder – There is no recommendation of changes to the status in the MHA of either learning disability or autism spectrum disorder. There is a recommendation of a new duty on health and social care commissioners to collaborate to provide sufficient community-based alternatives to detention for those with learning difficulties, autism or both.
• Policing – Police cells should no longer be used as a place of safety in the Act; ambulance commissioners should commission bespoke mental health vehicles to make S136 conveyances.
• The Mental Health Act and the criminal justice system – Those with serious mental illness should be in hospital and not in prison. The Review recommends changes to allow transfers to happen more easily. The Review also stresses that beds must be available, which is frequently not the case.

Read the full report on the Government's website

What is the College doing to help reform the MHA in England and Wales?

Members’ survey

In 2017, the College ran a survey of members to find out what psychiatrists thought could be done to tackle the problems identified by the Government and to improve the MHA.

This survey has helped frame our priorities and has provided the Review with evidence for what psychiatrists see as important to improve the MHA.

Our submission to Review’s call for evidence

Partly based on this survey, and produced through direct engagement with our faculties, committees and with Council, the College submitted a response to the Review’s call for evidence that set out the College’s values and priorities for reform.

Assisting the Review

Following the publication of the Review’s interim report, the College has worked to make sure that there was a clinical perspective being given on every topic area and that the workforce and resource implications of all recommendations were considered. Members of the Royal College of Psychiatrists have been closely engaged with the Review and have worked with patients, carers and other professionals to make sure the new Act is one that works better for all.

Campaigning for greater investment in mental health

When launched, the Review was set the task of reducing the rate of detention, which has been rising steadily in recent years. As the Review acknowledges, changing legislation alone is not the answer.

Mental health services get around one in every nine pounds spent of the NHS England budget despite mental health making up nearly a quarter of the NHS disease burden. The College is working to secure extra investment and a larger workforce that will be needed to significantly reduce the use of the Mental Health Act.

Working to tackle inequalities

The Review was also tasked with tackling the disproportionate number of people from black and minority ethnic groups detained under the Act.

In a members' survey, 80% of psychiatrists named stigma and a lack of services, especially in the community, as the most common reason for why more people from some BME groups were being detained. Our position statement on racism (pdf) urges the delivery of culturally appropriate care tailored to individuals, and we hope this Review will act as a step towards this.