Observations on the Draft Mental Health Bill 2022

On 27 June, the government published its proposals for changes to current mental health legislation in England and Wales in the form of its draft Mental Health Bill and accompanying Explanatory Notes.

This is potentially therefore quite a moment in the development of mental health law, as significant changes are relatively rare. In recent times, we have had the Mental Health Act (‘MHA’) 1959, followed 24 years later by the MHA 1983, and then, 24 years after that, the MHA 2007. (The latter was an amending act whose sole purpose was to introduce amendments to the 1983 MHA, which remains the central piece of mental health legislation).

The new draft bill is a response to pressure for further changes to the 1983 MHA which have been building for many years. The impetus has come from many quarters and for various reasons, but there have been particular concerns in relation to the general rise in the number of people detained using the MHA (a 40% rise in detentions in the period 2005/6 to 2015/16)) and in relation to the disproportionate use of the MHA amongst Black, Asian and Minority Ethnic groups. There has also been growing pressure for a more modern, rights-based mental health system, taking greater account of the patient’s voice when it comes to treatment decisions.

The recent timeline of events leading to the draft bill began in February 2016 with the 5 Year Forward View For Mental Health For NHS in England, commissioned by the NHS and published by the Mental Health Taskforce. The 58 recommendations for change made by the Taskforce covered the provision of mental services as a whole and therefore went far beyond suggested changes to the MHA, but they did include recommendations that the government should devise plans to reduce detention rates generally, to reduce the over-representation of minority ethnic groups in the detention figures, and to revise the MHA with a view to ensuring stronger protection of patients’ autonomy.

In January 2017, the government announced that it accepted the Taskforce’s recommendations in full, following which, in October 2017, it announced an Independent Review of the Mental Health Act 1983 to be led by Professor Sir Simon Wessely. In announcing the Independent Review, the Government said:

‘It will seek to address concerns about how the legislation is currently being used, and give recommendations for improving practice in the future.

The review will look at existing practice and evidence. It will consider the needs of service users and their families, in order to tackle injustices and improve how the system supports people during a mental health crisis.

In particular, the review will consider:

why rates of detention are increasing – what can be done to reduce inappropriate detention and improve how different agencies respond to people in crisis

reasons for the disproportionate number of people from certain ethnic backgrounds, in particular black people, being detained under the act, and what should be done about it’.

Following a lengthy and far-reaching consultation process, the Independent Review, ‘Modernising the Mental Health Act: Increasing choice, reducing compulsion’ was finally published in December 2018. It made 154 recommendations for change, many of which were quite radical. Headline recommendations included:

• The incorporation into the MHA of four fundamental statutory principles: choice and autonomy; least restriction; therapeutic benefit; and the person as an individual.
• Detention should require a comprehensive statutory Care and Treatment Plan to be in place within 7 days and reviewed at 14 days.
  
• Statutory advance choice documents (ACDs) should be created that enable people to make a range of choices and statements about their inpatient care and treatment.
  
• Patients to be able to request a review of their treatment by a Second Opinion Appointed Doctor (SOAD) once their care and treatment plan has been finalized or 14 days after their admission, whichever is the sooner, and again, following any significant changes to treatment.
• Patients should be able to appeal treatment decisions to the Mental Health Tribunal following a SOAD review. 
• Patients should be able to choose a new Nominated Person (NP) to replace the current Nearest Relative (NR) role.
  
• The right to an Independent Mental Health Advocate (IMHA) should be extended so that it includes all mental health inpatients, including informal patients.
  
• Detention criteria concerning treatment and risk should be strengthened.
  
• The initial maximum detention period under section 3 should be reduced to 3 months.
  
• Mental Health Tribunals should have the power to grant leave from hospital and direct transfer to a different hospital, a power to direct the provision of services in the community, and a power to be able to order changes to the conditions of a CTO.
  
• CTOs should end after 24 months.

In December 2018, the government acknowledged the report, said it would consider the recommendations and, in the meantime, indicated immediately that it would accept two of them, those in relation to Advance Choice Documents and the Nominated Person.

In January 2021, the government published its full official response in the form of a White Paper, in which it indicated that it accepted ‘the vast majority of [the] recommendations for change’. Following a further consultation period, the government announced a Draft MHA Reform Bill in the Queen’s Speech in May of this year before finally publishing the draft Mental Health Bill itself on 27 June. In announcing the Bill, the government reiterated its claim that it had accepted the vast majority of the Independent Review’s recommendations and suggested that the Bill contained a ‘once in a generation’ set of reforms.

Against that background, here are some observations on the Bill and its implications:

• Like the 2007 Act, the Draft Bill’s purpose would simply be to amend the 1983 MHA, which will continue to be the central piece of legislation.
• The Bill contains a proposal that autism and learning disability will no longer by themselves be justification for detention for treatment under s3 of the MHA. For the purposes of s3, detention will, in future, be on the basis of ‘psychiatric disorder’, which is defined as a mental disorder other than autism or learning disability. Until now, autism has, without qualification, been regarded as a mental disorder for the purposes of detention under s3, and so has learning disability, provided it is linked to abnormally aggressive or seriously irresponsible conduct. That will all change. This has huge implications for the care and treatment of patients with autism or learning disability and is arguably one of the significant features of the Bill but, interestingly, it does not come from the Independent Review at all, which made no such recommendation. 
  
• In so far as the new, more stringent detention criteria for s2 and s3 patients (the requirement of a risk that ‘serious harm’ may be caused to the health or safety of the patient or of another person unless the patient is detained, and that consideration needs to be given to the ‘nature, degree and likelihood of the harm, and how soon it would occur’) are an attempt to reduce the number of patients detained under the Act, it will be interesting to see whether they actually make any difference at all. What is clear from reading the Independent Review is that Professor Sir Simon Wessely and his colleagues were uncertain as to the causes of the increased rates of detention and accepted that there may well be factors which required action other than simply amending the MHA. Particular emphasis was placed in the Foreword to the Review on the need to address the problem of risk aversion associated with decision-making in mental health care, ‘which has played a substantial role in [the rise in the number of detentions], and contributes to problems…in creating and sustaining a genuinely therapeutic atmosphere for those detained’. What use will more stringent detention criteria be without a change to the risk averse culture? 
• The government has consistently claimed that one of the key aims of the reforms is to address the disproportionate use of the MHA amongst patients from minority ethnic groups, but, looking at the Bill, it is not entirely clear just what aspects of it are likely to make any significant difference in this area of concern. When introducing the Bill to the House of Commons, the Health Secretary, Sajid Javid, said: ‘The Bill provides for greater scrutiny of decision making, including through greater use of second opinions on important decisions, and through expanded access to independent tribunals; that will help us to address the disparities in the use of the Act’.                                                                                                                                                                                                                          Even if the ‘greater scrutiny of decision making’ is as significant as is being suggested, however, it is not immediately obvious what difference it is going to make to the levels of detention generally and in relation to minority ethnic groups in particular. Is the involvement of SOADs and Mental Health Tribunals really going to be that much more frequent, and is it really going to make that much more difference to the detention of patients from minority ethnic groups?

• It is debatable whether the Bill supports the government’s claim that it has accepted the ‘vast majority’ of the Independent Review’s recommendations for change. Just some of the recommendations which have not made it to the final cut are the following: 

The four key principles (choice and autonomy; least restriction; therapeutic benefit; and the person as an individual) have not been put on a statutory footing.

• The Mental Health Tribunal has not been given the power to grant leave, to direct transfer, or to direct changes to the conditions of a CTO.
• In Part III (restricted) cases, the Mental Health Tribunal has not been given the power to make recommendation in relation to leave or transfer.
  
• For CTOs, the evidence threshold, although made higher, has not been raised to require evidence that contact with mental health services has been declined and that this has led to a serious decline in mental health; and they will not automatically end after 24 months.
  
• The proposals for Care and Treatment plans do not include a right for the patient to request a SOAD review once their plan has been finalized, or within 14 days of hospital admission, whichever is sooner, and do not include a right to apply to the Mental Health Tribunal by way of appeal against treatment decisions following the SOAD review.
  

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Written by Michael Butler