Mental Health Bill (England and Wales) – update on passage through Westminster Parliament
An update on the progress of the Mental Health Bill through the Westminster Parliament and the College’s influencing work on it.
On Monday 24 February the House of Lords completed its last session of the committee stage of the passage of the Mental Health Bill through Westminster Parliament. These sessions have involved lengthy and lively debate on the Bill and its implications for mental health care in England and Wales and a large number of amendments have been tabled.
The College has worked with stakeholders from across the sector to promote amendments that will improve the Bill as is, both in how they work for patients and for clinicians.
Learning disabilities and autism
The Bill removes, for the purposes of Part 2 of the Act, people with a learning disability and autistic people from the scope of the conditions for which a person can be detained for compulsory treatment under section 3.
Though the College commends the emphasis on supporting people with Learning Disability [LD] in the community, we have detailed substantial concerns about potential negative impacts following the implementation of these reforms to the Government, including:
- There are times when community services cannot manage the level of risk that some patients with LD present with.
- We are concerned that excluding people with Autism/Learning Disability from admission for treatment [section 3] would result in use of the Liberty Protection Safeguards [MCA] for the same detention but with fewer safeguards.
- There is also 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 [CJS] if they are discharged prematurely from hospital.
- We are concerned that differentiating between the criteria for detention in Part 2 and Part 3 of the Mental Health Act would be discriminatory and may negatively affect the care people with LD would receive.
To mitigate these risks and to align with the Joint Committee of the Draft Mental Health Bill’s recommendation that: ‘there should be provision by which detention can be continued after the 28-days allowed under Section 2 of the Mental Health Act for people with learning disabilities or autistic people in tightly defined exceptional circumstances’, the College has tabled an amendment to this end.
Advance choice documents
Health bodies will be required to inform patients about advance choice documents [ACDs], which record the patient’s care preferences when they have capacity. Clinicians must consider these documents when providing treatment.
The Joint Committee recommended that all patients who have been detained under the Mental Health Act should have the statutory right to make ACDs, covering care and treatment, and have support in doing so. However, instead of a statutory right recommended by the Joint Committee, the Bill introduces duties on Integrated Care Boards [ICBs], NHS England and Local Health Boards [Wales] to make arrangements so that people at risk of detention are informed of their ability to make an ACD, and [if they accept] supported to make one.
The College believes this is a positive step in comparison to the draft Bill of 2022 where ACDs were lacking, but we still believe that a statutory right to an ACD would be better for ensuring that all patients who could benefit from an ACD can get one, thereby reducing detentions and improving therapeutic relationships.
We are working with the Government to improve this provision to enable the Advance Choice Document to inform care and treatment throughout the Mental Health Act. We are supportive of the amendment proposed by Earl Howe to ensure that all eligibles patients have a right to create an advance choice document.
Detention criteria
The College has also tabled an amendment on the new proposed detention criteria in Part 2 of the bill. We have concerns about the wording ‘likelihood’ and ‘may be caused’ which occurs in several places in the bill [e.g. amended section 2, 3].
- “Serious harm may be caused to the health or safety of the patient or of another person unless the patient is so detained”
- “likelihood of the harm”
Sentence 1 is a complex one to interpret. It seems to mean that a failure to detain is the possible cause of serious harm.
The phrase ‘may be caused’ and ‘likelihood’ are not exact though could [falsely] give the impression of being so. “May’ allows any possibility or potentiality and implies huge breadth of application [preventative detention]. The wording will also be highly prone to hindsight bias, outcome bias and the narrative fallacy which are retrospective biases well recognised in our field. Overall, we are concerned that the words will drive defensive [rather than defensible] practice.
To this end, the College has tabled amendments to simplify the detention criteria with a view to ensuring a straightforward, holistic assessment of individual risk in the context of significant mental disorder which can be scrutinised by tribunals, etc. without pseudo exact wording.
Mental Health Commissioner for England
Much discussed during the committee stage has been the Joint Committee recommendation of 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. The College is supportive of the amendment to this end as put forward by Baroness Tyler, Baroness Murphy and Lord Bradley.
Workforce impacts
Following the previous Government’s White Paper in 2021 on reforming the Mental Health Act the College commissioned The Strategy Unit to provide an independent assessment of the impact of the proposed changes on the psychiatric workforce in England.
This was with the aim of better understanding how many additional psychiatrists would be required to deliver the reforms in the proposed year of implementation, and 10 years later.
Based on the White Paper, the research found that:
- by 2023/24, an additional 333 Full-Time Equivalent psychiatrists will be needed in England, costing £40m per year by 2023/24
- by 2033/34, a further 161 Full-Time Equivalent psychiatrists will be needed in England, costing £60m per year by 2033/34, at current prices [including £40m cited to 2023/24].
While these figures will not accurately reflect the exact number of psychiatrists needed to deliver the reforms in the current Bill or the current timelines for the legislation, they do demonstrate the clear impact on the workforce, which is already understaffed.
Regarding these concerns about resources, we support the amendment tabled by Baroness Tyler and Lord Scriven to ensure there is sufficient resources in the community. We continue to stress to the Government the need for workforce expansion to allow for the delivery of any reformed Mental Health Bill.
Reform to the Mental Health Act in Wales
The Bill extends to both England and Wales, but only certain parts of the Bill will apply to Wales [see Annex A of the Explanatory Notes]. As the Bill contains measures to do with health and social care, which are devolved matters, the legislative consent process has been engaged and the Senedd will be asked to consent to these provisions which are within its competence. Measures to do with the [criminal] justice system will not require legislative consent, as these are reserved to Westminster.
The Welsh Government published an initial Legislative Consent Memorandum on the Bill on 20 November 2024, recommending that the Senedd gives legislative consent. A Supplementary Legislative Consent Memorandum was published on 10 January 2025, taking account of UK Government tabled amendments ahead of Committee Stage. Again, the Welsh Government has recommended granting legislative consent, stating it supports the proposed reforms.
RCPsych Wales recently responded to a call for evidence on the Legislative Consent Memoranda by the Senedd’s Health and Social Care Committee. Also, on 6 February, the Minister for Mental Health and Wellbeing, Sarah Murphy MS, gave oral evidence to the Committee. We are pleased that Committee members drew on our evidence to call for a dedicated psychiatry workforce plan and for Advance Choice Document to be made a statutory right for patients. The Health and Social Care Committee and Legislation, Justice and Constitution Committee have a reporting deadline of 4 April 2025. A debate on legislative consent will take place in the Senedd thereafter.
Alongside reforms to the Mental Health Act, the Welsh Government has committed to updating the Mental Health [Wales] Measure 2011 as part of its new Mental Health and Wellbeing Strategy and accompanying Delivery Plan, due for publication in April. This commitment was informed and secured through work undertaken by RCPsych Wales to modernise the legislative framework and empower patients through the Mental Health Standards of Care [Wales] Bill. The Private Member’s Bill, introduced by James Evans MS in December 2023, received cross-party support and the backing of the Welsh Government, but ultimately had to be withdrawn following the introduction of the latest Mental Health Bill at Westminster. We’re delighted to see that the respective elements of the Mental Health Standards of Care [Wales] Bill are being brought forward directly by Welsh Government.