The Mental Health Act 1983 (MHA) covers the assessment, treatment and rights of people with a mental health disorder. The Act provides the legal basis for authorising an individual’s detention and/or compulsory treatment when there is a risk they may harm themselves or others.
The Act provides a framework for people needing care for mental illness, either in the community or in hospital. It also contains separate guidance for those who are involved in criminal proceedings or are under sentence. The MHA ensures that individuals who are subject to the criminal justice system and have mental health needs can be treated, where necessary, in a hospital setting.
The story so far
Former Prime Minister Theresa May commissioned an independent review of the MHA, owing in part to reported growing social and cultural issues with the Act. At the time, the number of detentions under the MHA had increased by 40% between 2007 and 2016. This increase was affecting a disproportionate number of people from black and ethnic minority groups, with black people four times more likely than white people to be detained. It was also felt that some procedural aspects of the MHA were outdated and needed a fresh approach.
The Independent Review published its report in December 2018 and made 154 recommendations for reform. The Government’s response to the review was published on 13th January 2021 and accepted the majority of those recommendations.
Following manifesto promises in 2017 and 2019, it was announced in the Queen’s Speech on 10th May 2022 that draft legislation would be introduced to reform the Mental Health Act 1983. The stated purpose of the new draft Bill is to ensure that people living with mental health conditions have greater control over their treatment, and that they receive the dignity and respect they deserve. It will also work to improve the position of those with learning disabilities and autism and the handling of their discharge after being hospitalised.
People first
A core element of the Bill is finding ways to give people more control by putting them at the centre of decisions about their own care. As part of this, the Bill adopts four key principles, which are:
Choice and autonomy, ensuring that people’s views and choices are respected.
Advocating the least restrictive option, so that MHA powers are introduced gradually and only when necessary. Therapeutic benefit, ensuring people are supported to recover so that they can be discharged from the MHA. Ensuring that people drawing on mental health services are viewed and treated as individuals.
Headline changes
The draft Bill runs to some 77 pages. It retains the existing Act but inserts amendments in the same way as the last reforms, made in 2007. Accordingly, the broad structure of care under the MHA remains the same. However, there are some headline changes that practitioners must be aware of:
1. Changes to Community Treatment Orders
The Bill will tighten the use of Community Treatment Orders (CTO), including the requirement for an appointed community clinician. CTOs were a key part of the 2007 amendments to the MHA, but there is a view that they have been used too much.
Clause 19 of the Bill seeks to regulate its use through an amendment to s.17A of the MHA. Now, the community clinician responsible for overseeing the individual’s care will be involved in decisions regarding the use and operation of a CTO. It is hoped this will strengthen the link between the community and the responsible clinician, ensuring the patient continues to make positive progress. It is also hoped that it will better enable more informed decisions about the need to continue the restrictions in a CTO.
The driver behind these changes is the principle of using the least restrictive option and it has also prompted two further changes to the use of CTOs, detailed in Clause 20. Now, conditions of a CTO may only be imposed where they are ‘necessary’ – where previously they were required to be both ‘necessary and proportionate’. Further, the Bill grants the Tribunal a new power to ask a responsible clinician to consider whether a certain CTO condition is truly necessary, in cases where the patient has not yet been discharged from their CTO.
2. Autism and learning difficulties
Under the current MHA, people with a learning disability can be detained for assessment and treatment under s2, and for treatment under s3, where this is associated with abnormally aggressive or seriously irresponsible conduct. This has led to some patients being subjected to lengthy detentions with apparently little therapeutic benefit.
The draft Bill therefore aims to make it clearer that, for the purposes of detention under the MHA, learning disabilities alone will not be sufficient. People with these conditions will only be able to be detained for treatment under the MHA, if it can be shown that they are suffering from a co-occurring mental disorder that is not a learning disability – often referred to as having a ‘dual diagnosis’. This also supports the principle of the least restrictive option.
A new section – 125A – has also been added into the draft Bill to cover the arrangement of care, education and treatment review meetings for children and adults with an Education, Health and Care Plan under the Children and Families Act 2014, who have been detained under the MHA. This is because NHS England has previously issued guidance on holding reviews in these areas to help reduce unnecessarily long stays in hospital. There was a particular focus on assessing whether a person with learning disabilities is safe and receiving the right care and treatment in hospital. However, it was found that recommendations from the reviews were not always enacted and there was often no follow-up process.
Finally, a new part – Section 125E – sets out that Integrated Care Boards (ICB) and local authorities will also need to consider risk registers and the needs of the local ‘at risk’ population when carrying out commissioning duties. The clause aims to ensure that the right community provisions are in place for people with a learning disability, so that they are not admitted into in-patient units unnecessarily. An ICB must try to ensure that the needs of people with a learning disability can be met without detaining them under the MHA. The ICB must also ensure that an individual’s unique needs are at the heart of any decision making.
3. Detention criteria
The long-standing criteria for detention under sections 2, 3 and 5 of the MHA (and for renewal of detention) are amended to add two new tests. Firstly, that ‘serious harm may be caused to the health and safety of the patient or of another person’. Secondly, those assessing whether the individual meets those criteria must consider the nature, degree and likelihood of the harm and how soon it would occur. The same changes to the criteria apply to CTOs and discharge by the tribunal.
4. Nearest relative
Concern has been raised for some time regarding the MHA approach of selecting a patient’s representative by reference to an established list of suitable individuals within the legislation. The Bill proposes to change this and instead allow patients to select their own representative, to be known as the Nominated Person, to replace the nearest relative. If the individual lacks the mental capacity to do this at the point of detention and has not previously nominated an individual, then an Approved Mental Health Professional (AMHP) may appoint someone instead.
5. Care Plans and the definition of ‘medical treatment’
Where appropriate, the draft Bill requires clinicians to prepare personalised care and treatment plans for certain people detained under the MHA. These plans must be kept under regular review. The Bill also includes provisions as to how these plans will be monitored, imposing requirements on the managers of a hospital to do this.
The Bill also amends the definition of ‘appropriate medical treatment’ to require that, when considering whether treatment under the MHA is appropriate for a patient, there is a reasonable prospect that this would have a therapeutic benefit for that patient.
Watch this space
This is by no means an exhaustive summary of all the new provisions in the Bill. There are clearly many other areas of change on the horizon, with those outlined above being some of the most significant. This will require health and social care providers to introduce new processes, update policies and deliver staff training to ensure success and compliance with the amended mental health legislation. Further, the thrust of the changes would suggest that the use of the MHA will be reduced, which may impact on social care providers when they need to refer residents to psychiatric services for alternative provision.
The Healthcare team at Weightmans are experienced mental health lawyers and would be happy to assist with any queries arising from this article, or more generally. Please contact Julia Appleton, Andrew Parsons or Marianne Frall for further information.
Andrew Parsons is a Partner at national law firm Weightmans. Email: andrew.parsons@weightmans.com Twitter: @Weightmans
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