Bringing the Mental Health Act in line with the 21st century

The Mental Health Bill was finally presented to Parliament on 6th November, fulfilling Labour’s manifesto promise to modernise the Mental Health Act 1983.

The Government has also published explanatory notes together with a fact sheet.

The Bill draws on the recommendations of the 2018 independent review of the Mental Health Act, chaired by Professor Sir Simon Wessely. It’s hard to believe that it is nearly six years since that was published. 

A draft Bill was introduced under the previous government in 2022, and this Bill is largely the same as the draft Bill but introduces stronger protections for patients, staff and the general public to reflect recent high-profile cases. You can read our blogs on the draft Bill. 

Given that the draft Bill requires extensive cross-referencing to the Mental Health Act 1983 in order to make sense of what exactly the Bill would do, the fabulous Alex Ruck Keene KC (who was in the working group advising the Independent Review leadership), has done this cross-referencing exercise (in the same way that he did for the draft Bill published in 2022). NHS Confederation’s Mental Health Network have also produced a helpful summary. 

The three key bullet points in the accompanying press release are:

• Outdated Mental Health Act modernised to better support patients, treat them more humanely and address disparities.
• Reforms will introduce statutory care and treatment plans, end the use of police and prison cells to place people experiencing a mental health crisis, and end the inappropriate detention of autistic people and people with learning disabilities.
• Greater involvement of patients, families and carers will improve treatment while protecting patients, staff and the wider public.

It also emphasises that safety is “paramount” and that the Bill will introduce improved decision making around detention, discharge, care and treatment – and a new requirement for the responsible clinician to consult another person before they discharge a patient. It also says that discharge processes will also be reviewed more broadly and will include a safety management plan for the patient, to keep themselves and others safe.

What’s in the Bill?

• Nominated person role: the Bill will strengthen the rights of families and carers through changes to the nominated person roles and require clinicians to consult with others close to the patient as they make decisions around their care where appropriate or where the patient wishes. 
• Advocacy provisions to be extended in England: this will apply to all informal patients and not limited to those detained under the Mental Health Act.
• Advance choice documents: new duties on Integrated Care Boards, NHS England and Local Health Boards (Wales) to make arrangements for making information about advance choice documents available to those people at risk of detention and supporting to making an ACD, if they wish.
• Statutory care and treatment plans for all patients.
• Amendments to the statutory Codes of Practice for England and Wales.
• Safer discharge: requiring the responsible clinician to consult another person before they discharge a patient and will include a “safety management plan” for the patient to keep themselves and others safe.
• Detention criteria: end the inappropriate detention of autistic people and people with learning disabilities; the Bill places a limit of 28 days for which they can be detained unless they have a co-occurring mental health condition.
• Community Treatment Orders: revising the criteria so that they are only used when appropriate and proportionate.
• End the use of police and prison settings: stop the use of these settings for those experiencing mental health crisis, ensuring that patients will be supported in more suitable environments, such as a hospital.

Commenting on the Bill, Professor Sir Simon Wessely, said:

“I am delighted that at long last a new Mental Health Act bill is to go before Parliament. No one doubts that it is time to modernise our legislation, in order to achieve the goal of reducing coercion and increasing choice for those who suffer from the most severe mental illnesses. 

Our reforms will achieve that by ensuring better treatment and discharge planning with more family involvement, replacing outdated Victorian rules, and by reforming community treatment orders to tackle unacceptable ethnic differences. Most of all, ensuring that more attention is given to patient preferences will improve compliance with essential treatment, reduce coercion, while still protecting the public where necessary.”

Second reading

The Bill had its second reading in the House of Lords on 25 November. Second reading being the first substantive consideration by Parliament. As a result, we now know more about the Government’s plans and thoughts on implementation.

The debate is neatly summarised on LinkedIn by Tim Spencer-Lane. Of note, the focus of the Lords concerns was on:

• The full statutory review of the use of Community Treatment Orders.
• Inappropriate placement of under-18s into adult wards or facilities that may be miles away from their home.
• Allowing patients at risk of detention the ability to create Advance Choice Documents – and using an App to create ACDs.
• The recurrent use of overstretched A&E departments as places of safety following the removal of police stations and prisons from the “places of safety” list and the need for investment in alternative community-based healthcare provision.
• The need for provisions for the treatment of and care of children and young people under the Mental Health Act.
• Support for people with a learning disability and autistic people in the community.
• Appointment of an independent mental health commissioner.
• The proposals to reduce racial inequalities, addressing the overrepresentation of black people and other minority groups in mental health detentions.
• Children and young people and the interface between the Mental Health Act and the Children Act.
• Correct the oversight under section 73 of the Care Act 2014 affecting human rights, issues raised in the Sammut judgement – a ruling that means the Human Rights Act does not apply where mental health patients receive section 117 aftercare in private settings.

If you have time to read Hansard there is fascinating input into the debate from the likes of Lord Adebowale, Lord Stevens, Lord Alderdice (who gets a mention as he is from Northern Ireland!), Baroness Neuberger and Baroness May.

Lord Stevens commented: “In the western movie “The Magnificent Seven”, Steve McQueen said that as gunslingers “we deal in lead”.

Clearly here in Parliament we deal in law but my underlying point is that law only gets you so far. The question is not just the content of the law but how it is implemented, how fast and in what context.”

As always, the world of healthcare is very intertwined. Baroness Merron noted the concerns raised around a mental health commissioner. At the present time the Government are of the view this would be duplicative. However she suggests awaiting Dr Penny Dash’s review of the current range and combination of organisations within the healthcare regulation landscape.

There are many good things that come from Northern Ireland and Lord Alderdice emphasised the “fusion” legislation operating there.

Lord Meston and Lord Scriven made bus analogies with Lord Scriven noting: “This Bill is a welcome direction of travel…but it is only an extra stop…sometimes we have to look at the bus we are on – the underlying legislation…If we go back to the 1983 legislation, and it had its last MOT 17 years ago”. Lord Meston continued the theme saying “The bus was not built in 1983: its chassis was built in 1959”.

Baroness Merron’s final comments tell us a lot about the timeframes for implementation:

• Full implementation of reforms will take around 10 years due to need to expand and train our work force.
• “A small number of reforms relating to the criminal justice elements of the Bill will commence within two months of Royal Assent”.
• “In the first year after Royal Assent, there will be a focus on updating the code of practice and creating the necessary secondary legislation to enable implementation.”
• “We will need a further year to train existing staff on the reforms and ensure that processes are in place.”
• “We would therefore hope to commence the first phase of significant reform in 2027, and to commence further reforms as and when there is sufficient resource in place to do so. 
• “In the spirit of honesty, the truth is that for what I would call the most burdensome reforms - for example, the increased frequency of mental health tribunals - those would not be likely to commence before 2031-32.”
• “in relation to learning disability and autism. Again, the exact timing of implementation of the reforms will depend on future funding.” 

Bill timetable

The Bill now proceeds to its committee stage where it will be scrutinised line by line. A date has not yet been scheduled for this stage.

As the Bill progresses through Parliament, we will keep readers updated and assess the changes this new legislation will have on patients, mental health providers, commissioners and staff alike.

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