By Afiya France, PhD Student, The Law School, University of Bristol
The UK government is forging through on its declared commitment to modernise the 1983 Mental Health Act (MHA) for the 21st century. This key piece of legislation sets out a legal framework for the detention and compulsory treatment of people with a mental health disorder. The Draft Mental Health Bill 2022 was published in June 2022, and pre-legislative scrutiny by a Joint Select Committee is ongoing. This Draft Bill follows the government’s white paper, Reforming the Mental Health Act which incorporated the majority of the recommendations of an Independent Review .
This reform has been driven by concerns about the over-use of coercion in mental health settings, and rising detention rates, especially among minority populations. It seeks to correct current failures by enhancing supports and safeguards for detained persons.
The importance of both types of human rights in designing an ideal mental health system has been highlighted in the reform process. Negative or civil and political rights, that protect individual freedoms are as important as positive, or socio-economic rights, that call for resourcing the system to promote good mental health.
Though the Draft Bill maintains the existing statutory framework of compulsory mental health care at times of crisis, there is evident commitment to protecting the human rights of persons subject to the MHA. The Joint Select Committee has recently demonstrated this by searching out lessons from other UK nations that have enacted legislation granting positive rights to people with mental health problems. To this end, the Mental Health (Wales) Measure 2010, known simply as the “Measure” has been considered in a recent evidence hearing.
The Measure was one of the first pieces of legislation passed by the devolved Welsh Senedd (then National Assembly). It established positive rights for people with mental health problems (whether diagnosed or not) to obtain help at a sufficiently early stage avoiding the risk of further mental health decline and the use of compulsory powers. It also provides for rapid re-assessments of the needs of former users of secondary mental health services and broader access to independent advocacy for persons detained under the 1983 MHA, and other persons who are receiving in-patient hospital treatment for mental health.
The Welsh Measure is unique globally in establishing positive rights to support for people with mental health difficulties. The legislation resulted from close working between mental health organisations, patients, professionals, and Welsh politicians. It focuses on active prevention rather than merely regulating detention and involuntary treatment. It has four key strands.
- Primary mental health services support.
The aim is to ensure that GPs can refer people with mental health problems such as anxiety and depression to services like counselling or stress and anxiety management, services by local voluntary groups, or advice on causes of stress, like money and housing.
Part 1 mandates Local Health Boards (“LHBs”) and Local Authorities (“LAs”) to work together as ‘mental health partners’ to develop joint schemes to deliver ‘primary mental health assessments’ and ‘local primary mental health support services’ across Wales. A list of both medical and social services is set out in section 5.
- Care and treatment planning.
The aim is to ensure more specialised care and support through care planning, based on the Care Programme Approach (CPA), which was codified in 1990 English guidance.
Part 2 of the Measure requires LHBs and LAs to ensure that all mental health patients in secondary care have a written care and treatment plan (“CTP”), developed by a care coordinator, in consultation with the patient, with its delivery overseen by the care coordinator. CTPs under the Measure are to be comprehensive and holistic, giving consideration to all aspects of patients’ lives.
The Draft Bill proposes mandatory CTPs for detained patients. However, statutory rights to a CTP under the Measure apply not only apply to detained patients, but to any patient receiving secondary mental health services.
- Re-accessing specialist mental health services
Part 3 provides a mechanism for previous secondary mental health service users to re-access specialised mental health treatment, if they experience a relapse within 3 years from their date of discharge, without them having to first go through their GP. This means that people have faster access to specialist services when their mental health deteriorates.
- Independent Mental Health Advocacy
Part 4 expands independent mental health advocacy via the support of an Independent Mental Health Advocate (“IMHA”). It extends the advocacy service that was previously only afforded to patients detained on a long-term basis under the 1983 MHA, to all patients receiving care and treatment for mental health problems in hospital.
Evaluation of the Measure
A largely positive review of the Measure was published in December 2017. Analysis of 548 service user satisfaction questionnaires revealed that on average over 90% of services users across Wales have positively rated the local primary mental health support services, and there is more awareness, among secondary mental health service users, of their entitlement to a CTP. Overall, the review found that the investment in the provision of the Measure was value for money.