The Mental Health Act

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.

No. The Review’s remit was limited to the MHA in England and Wales. Both Scotland and Northern Ireland have their own mental health legislation.

Mental health law in Scotland is covered by the Mental Health (Care and Treatment) (Scotland) Act 2003. See RCPsych in Scotland for further information.

Northern Ireland has recently introduced the Mental Capacity Act (Northern Ireland) 2016, the state’s first independent legislation to cover the legalities surrounding a lack of mental capacity.

The College in Northern Ireland is working to influence the development of the Code of Practice. See RCPsych in Northern Ireland for further information.

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. 

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

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.

Read our Members' survey

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.

Read our submission

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 last year’s 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 urges the delivery of culturally appropriate care tailored to individuals, and we hope this Review will act as a step towards this.

This report does not change anything on its own. It is an independent report commissioned by the Government to make recommendations on how the Mental Health Act can be improved – considerable further work will be needed for this to be implemented.

The Government must now consider and respond to the recommendations of this Review and decide upon implementation. This could be through a new Mental Health Bill and/or through changes to codes of practice which will not require legislation. This may be a lengthy process. 

We will continue to work to make sure that changes to the Mental Health Act work for patients, carers and clinicians and will be helping the Government on any Bill it introduces or any amendments to codes of practice it makes – we will share more details of this when it emerges.

If you have anything you would like the College to be aware of, or if you have any evidence or experiences that will be relevant, please send them to mentalhealthactreview@rcpsych.ac.uk

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