Mental Health Act reforms - What’s being taken forward and what’s not?

Published 26 July 2021

The government has now published its response to the consultation it ran earlier this year on its White Paper proposals for reform of the Mental Health Act.

Which of the reform proposals are being taken forward to the next stage - i.e. possible inclusion in draft legislation - and which have fallen by the wayside?

We know that the government is dropping proposals aimed at clarifying the dividing line between the Mental Health Act and the Mental Capacity Act based on whether or not the person is objecting and that it definitely plans to take forward proposals such as tightening the statutory criteria for detention, introducing ‘advance choice’ documents and replacing the ‘nearest relative’ with a nominated person.  However, the position is less clear for a number of other proposals which the government says it will “continue to consider”.

We look at the some of the headlines and what to expect next.

What’s being dropped from the reform plans? 

There is only one element of the proposed MHA reforms that the government says it is definitely not taking forward (for the time being, anyway), but it is an important one. It relates to the interface between the Mental Health Act and the Mental Capacity Act and, specifically, the question of the appropriate legal framework (either MHA detention or Deprivation of Liberty Safeguards/DOLS) for someone who has a mental disorder, lacks the relevant capacity and is not objecting to detention or treatment. The White Paper set out plans for a clearer dividing line between the two frameworks, based on whether or not the patient is objecting to detention or treatment - i.e. MHA if they are objecting, and DOLS (or Liberty Protection Safeguards, as they will become) if they are not.

We are told that the consultation responses showed “no significant support” for this proposal, with concerns focusing on the difficulties in practice of assessing whether or not someone is objecting.  Accordingly, “In the light of feedback received, we do not intend to take forward reform of the interface…at this time”. The government says it plans to review this once the forthcoming Liberty Protection Safeguards are embedded.

What’s being taken forward? 

The reform proposals that appear to have ‘made the cut’ for moving forward to the Bill stage include:

• Guiding Principles - The plan for revised Guiding Principles, to be embedded in both the Mental Health Act itself and the Code of Practice - i.e. choice and autonomy, least restriction, therapeutic benefit and person as an individual - are to be taken forward.

• Tightening detention criteria - Proposals to introduce a new requirement for detention to provide a ‘therapeutic benefit’ and for there to be a ‘substantial likelihood of significant harm’ without detention were broadly supported by the consultation responses (subject to the need for clearer definition of some of these terms) and the government plans to take these forward. It also plans to take forward proposals to exclude those with a learning disability or autism from detention under s.3 MHA unless they have a co-occurring mental illness, although there is an acknowledgment by the government that, in order to provide people in these groups with adequate safeguards, it will be vital for community services to have suitable financial support and resources.

• Farewell nearest relative - Plans to replace the existing ‘nearest relative’ system with people being able to choose their own ‘nominated person’ with enhanced rights (e.g. to be consulted about care and treatment plans) received widespread support and will be taken forward.

• Strengthening patient choice about treatment - Proposals for ‘advance choice documents’ and statutory care and treatment plans are to be taken forward (albeit with a recognition that the proposed timescale of 7 days to produce the latter may not be realistic). Plans to introduce ‘advance consent’ for admission to hospital for treatment for mental illness received a more lukewarm response and the government will continue to consider that aspect.

• Advocacy - The government also plans to take forward proposals to extend the right to an Independent Mental Health Advocate (IMHA) to all mental health inpatients, including informal patients.

• A&E holding power - Consultation respondents were overall in favour of introducing a power to hold patients needing emergency mental health care in A&E pending clinical assessment (as existing holding powers only apply to inpatients), although issues were raised over how long that power should last and precisely how it would work. It seems no decisions have yet been taken on those details, but the government says it will press forward with plans to introduce some form of holding power for those in A&E.

Jury still out?

There were also a number of proposals which received more of a mixed response from those who responded to the consultation. Whilst the government says it is still committed to taking many of these proposals forward, it plans to further consider the detail and practicalities of them ahead of the Bill stage.

• Hospital managers hearings - The White Paper proposed removing the power of hospital managers to discharge patients from detention and dropping hospital managers hearings, to be replaced by increased rights of appeal to the Tribunal. The jury is still out on what will happen here, with the government now saying it will consider this matter further: “The response to this question was far more mixed than the Government anticipated, with a lot of support in favour of keeping the panels in place”.

• Enhanced Tribunal role and powers - Proposed changes affecting the Tribunal include increased frequency of automatic referrals, enhanced Tribunal powers to grant leave and transfers and to direct services in the community (with authorities having 5 weeks to deliver these), as well as a new right for patients to challenge treatment decisions to the Tribunal. Again, there was a mixed response here, with concerns expressed by respondents about the level of Tribunal resource that would be needed to meet the increased demand these changes would bring, plus uncertainty about the appropriateness of Tribunal judges influencing clinical decision-making about treatment and question marks over how the proposed power to direct community services would work in practice given that Tribunals may lack understanding of the local service picture.  The government has acknowledged that there are a number of issues to work through here and has suggested it may consider phasing in the proposed changes to enable it to carefully assess resource/capacity constraints.

• Forensic patients - One of the key proposals in the White Paper relating to forensic patients involved introducing a 28 day time limit on transfers from prison to inpatient mental health care. Whilst respondents were overall in favour of this idea, issues were raised about resourcing, safeguards and practicalities of the time limit and, whilst the government says it plans to press ahead with this, it is suggesting that the changes may be brought in only once related, wider reforms are fully embedded. Meanwhile, the White Paper proposals also attempted to address the difficulties created by the current gap in the law for restricted patients who are no longer benefitting from being in hospital and have capacity but continue to pose a risk in the community requiring a level of supervision and control amounting to a deprivation of their liberty.  The proposed solution - i.e. the introduction of a new ‘supervised discharge’ power that would enable discharge with conditions amounting to a deprivation of liberty, regardless of capacity - was broadly supported by those responding to the consultation, although the government acknowledges that, in order for these proposed measures to work well, there will need to be appropriate and well-resourced community provision available.

• Community Treatment Orders (CTOs) - The White Paper set out a number of proposed reforms to CTOs, including tightening up the criteria for CTOs to introduce a therapeutic benefit test, strengthening the requirement for evidence justifying their use, increasing the number of decision-makers before someone can be put on a CTO and introducing more frequent review. Whilst the government remains committed to taking these changes forward, it says the consultation has confirmed that people “remain divided” about use of CTOs and further consideration will be given to how best to address issues raised about the practicalities and possible unintended consequences of the proposed changes.

What next?

The government will now continue work on the development of draft legislation to bring about the proposed reforms.  

In terms of timing, we are told that a Mental Health Bill will be brought forward ‘when parliamentary time allows’. The Bill will then start on its legislative journey through Parliament, during which it is likely to undergo further changes.

We are therefore likely to be some considerable way off these proposals becoming a reality, but at least we are now another step closer.

How we can help

Our national team of mental health and mental capacity specialists have extensive experience in advising health and social care providers - both in the NHS and the independent sector - in relation to all aspects of the law in this area, including:

• Advice on all aspects of the Mental Health Act, including the impact of legislative changes;

• Advice on drafting and implementing policies that are compliant with legislative change and will withstand regulatory scrutiny; 

• Representation at First Tier Tribunals;

• Advice on the interface between the Mental Capacity Act and Mental Health Act;

• Advice and representation in Court of Protection proceedings.

We also provide training on all aspects of the Mental Health Act and Mental Capacity Act, including induction and refresher courses for s.12 Approved Clinicians.