Modernising the Mental Health Act: Will more rights lead to less wrongs?

by Professor Judy Laing, University of Bristol Law School

The government published a White Paper in January 2021 outlining proposals to reform the Mental Health Act in England and Wales.  The government has consulted on these proposals and the consultation period closed a few weeks ago on 21st April 2021. We now await further announcements on the government’s plans following this consultation process. I am currently engaged in a parliamentary academic fellowship, working with Lizzie Parkin (a University of Bristol alumna) in the House of Commons Library Social Policy section. The Library offers an impartial research and information service for MPs and their staff. Part of my role involves working on research briefings to inform Members of Parliament on business in the House of Commons. Mental health law reform will no doubt be debated in parliament in the coming months and I have developed a detailed research briefing on the proposals in the White Paper to assist parliamentarians with that process.

The Mental Health Act regulates compulsory detention and in-patient treatment of persons with a mental disorder in England and Wales. The Act contains provisions which empower mental health professionals to admit a person with a mental disorder who presents a risk to themselves or others to a psychiatric hospital, for compulsory assessment or treatment of the mental disorder.  There have been longstanding concerns about the operation of the Mental Health Act, in particular rising rates of compulsory detention during the last 10-15 years and over-representation of BAME patients in the detained population. The Act was passed in 1983 and has not been fundamentally reformed since then. Some changes were made to the law in 2007, including expanding the definition of mental disorder, which have contributed to a huge increase in the number of people who are detained under the Act. The Care Quality Commission reported on this in January 2018 and concluded that the causes are multi-factorial, though changes to law and policy over the past decade may have been a factor in the rising detention rates.  There have also been concerns about the inappropriate detention of persons with learning disability and autism under the Mental Health Act which has led to mistreatment and human rights abuses, as noted by the Parliamentary Joint Committee on Human Rights in its report in 2019.

These concerns led the government to appoint an independent review in October 2017 to look at how the Act is used and consider how practice can improve.  The Review took 2 years to complete and the Review team engaged with a wide range of stakeholders during that period to develop its proposals.  The final report ‘Modernising the Mental Health Act’  was published in December 2018. It emphasized the need to reform the Act in order to: recognize the importance of human rights in mental health care; restore dignity and make it easier for patients and service users to participate in decisions about their care. The report contained over 150 reform recommendations with the overarching aim of strengthening the focus on human rights and putting patients at the heart of decision making under the Act.

It was announced in the Queen’s Speech in October 2019 that the government planned extensive reform of the Act when parliamentary time allowed, although the impact of the pandemic in 2020 delayed the publication of detailed proposals.

The detailed proposals were finally published in January 2021. The government has accepted the vast majority of the Independent Review’s recommendations to change the law and practice. In line with the Review’s recommendations the White Paper aims to: ‘rebalance the MHA, to put patients at the centre of their own care and ensure everyone is treated equally’.

To achieve these aims, the White Paper proposes numerous wide-ranging changes such as:

  • Putting principles on the face of the Act to guide decision making – four new principles would focus on promoting patient choice and autonomy; ensuring that care is provided in the least restrictive environment; ensuring therapeutic benefit to the patient and treating the patient as an individual;
  • Changes to the criteria for admission to raise the threshold for the use of compulsion – which entails introducing a higher threshold emphasizing the need for ‘therapeutic benefit’ and a ‘substantial likelihood of significant harm’ to justify the use of compulsory powers;
  • Limiting the detention of persons with Learning Disability and Autism to restrict the use of the Act for these groups, such that it is limited only to compulsory short-term admission for assessment when there is evidence of a co-occurring mental disorder;
  • Bolstering various statutory safeguards and support processes for detained patients, including strengthening independent advocacy mechanisms and the role of family support through a new nominated person; expanding the role of the Mental Health Tribunal as a form of independent scrutiny; putting in-patient care and treatment plans on a statutory footing to strengthen enforceability; tightening the provisions in the Act relating to consent to invasive treatments and introducing advance choice documents for patients with capacity to set out their treatment preferences in advance; and
  • Limiting the use of community treatment orders on discharge from hospital due to concerns about over-use of coercive mental health powers in the community.

There are also other changes designed to target specific groups, in particular, to address the racial disparities in the operation of the Act and respond to the specific needs of children and young adults.  Overall, the proposed changes would retain the current statutory framework to enable compulsory in-patient treatment, but the scope of the Act would be narrowed and the safeguards and supports for patients would be significantly enhanced and bolstered. Taken together, many of these provisions should, in principle, promote patient-centred decision making and strengthen protection for patients by giving them a greater voice and control over treatment for their mental disorder.

In order to achieve their stated aims however, the proposals will have to be extremely well resourced and supported by a range of system wide supports and enablers. The White Paper recognizes this and states that legal changes will be complemented by a ‘significant expansion in community provision’, as set out for mental health services in the NHS Long Term Plan. But this aspect of the White Paper is troubling, as the government has also stated in the accompanying Impact Assessment that some of the proposals will be ‘subject to future funding decisions’ and ‘affordability’. Notably, the financial Impact Assessment was calculated prior to the pandemic:

The assumptions used in all the models and underlying the cost estimates were set up before the Covid-19 pandemic and do not account for potential impacts on mental health and services. At the time of producing this Impact assessment it was still too early to assess these impacts robustly; as we do not currently have the data to reliably estimate the impacts of Covid on people with severe mental illness and detention numbers under the MHA’. (MHA White Paper Impact Assessment, December 2020)

This is also concerning, as there has been a marked increase in reported mental ill-health and demand for mental health support since Covid first emerged in the UK last year, especially for disadvantaged groups, which is likely to have put additional pressure on already stretched services. This additional need has not been factored into the proposals. Service user campaign groups, such as MIND, have already called for additional funding to ensure that the reforms are meaningful and impactful. And professional groups, including the Royal College of Psychiatrists, have echoed these calls to ensure that the proposals are properly implemented.

The proof of the pudding, as they say, is in the eating and only time will tell whether this set of law reform proposals will be properly implemented and lead to much needed improvements in care and support for persons with severe and enduring mental illness. Unless the government sets aside the caveats on ‘affordability’ to provide firm financial commitment to bolster the legal changes, we’re unlikely to see these improvements materializing. The focus must be on securing rights and resources if we are going to make a real and lasting difference to the lives of persons with mental illness.

Note: Professor Laing is writing here in her professional capacity as an academic in the Law School at the University of Bristol. Any opinions expressed are her own and do not represent the views of the House of Commons Library.

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