Draft Mental Health Bill 2022 – Report Summary

Summary

The draft Bill arises out of the 2018 Independent Review of the Mental Health Act 1983, chaired by Professor Sir Simon Wessely. The Review made recommendations to address the rising number of people detained under the Mental Health Act (MHA), especially ‘black or black British’ people who are four times more likely to be detained than people from ‘any white background’. We have not addressed everything in the Independent Review, nor repeated its detailed analysis of the case for change. We have focused on improving the draft Bill in front of us, to better achieve the Review and the Government’s aims. This should not be the end of the reform process. There should also be an ongoing process aimed at more fundamental reform of the MHA.

We welcome the draft Mental Health Bill. It makes important changes to introduce more choice, accountability, and oversight into the use of the MHA. We also heard arguments for entirely new legislation, bringing together mental health and mental capacity legislation and focusing the legal framework on patients’ rights. We believe the measures in the draft Bill should be strengthened as set out in this report and brought forward at the earliest opportunity. We recommend that the four Principles that the Independent Review structured their work around—choice and autonomy, least restriction, therapeutic benefit, and the person as an individual—should be included on the face of the Bill.

Whilst we welcome the Government’s reforms, proper resourcing and implementation will be crucial. Most witnesses were unconvinced that the Government’s resourcing plans were adequate. Mental health services are under significant pressure and, in a difficult fiscal environment, transparency and accountability will be key. The provision of high-quality community alternatives to inpatient care are especially crucial. The Government should publish a detailed plan for resourcing and implementation on introduction of the Bill and be required to report annually on progress during the implementation period.

To help drive the ongoing process of reform and ensure accountability for implementation we recommend the creation of a Mental Health Commissioner. They would oversee the direction of travel for the key reforms arising from the Bill and their implementation, monitoring outcomes and supporting cultural change. They should be an advocate for patients, their families and carers and speak up about the stigma still attached to severe mental illness. They should bring forward proposals to tackle inequalities in service provision and the operation of the MHA, advise patients and providers on complaints procedures and make recommendations on further reform.

Data shows that the racial and ethnic inequalities that the Independent Review was set up to tackle have not improved since the Review was commissioned. This is unacceptable. We recommend that all health organisations be required to appoint a responsible person to collect and publish data on, and oversee policies to address, racial and ethnic inequalities. A statutory right to culturally appropriate advocacy should be established, learning lessons from the current pilots. Community Treatment Orders are 11 times more likely to be given to black patients than white patients and this figure is rising. The evidence we heard suggests they are ineffective for most patients. We recommend they are abolished for Part II patients (those not involved in the criminal justice system), and a statutory process and timeline be put in place for their review and potential abolition for Part III patients (those involved with the criminal justice system).

The draft Bill makes changes to the grounds on which someone can be detained for assessment and treatment. These changes are intended to increase accountability, to move away from an abstract notion of risk and to require evidence that detention will benefit the patient. The aims of these changes are welcome, but we recommend clearer guidance and tighter drafting to ensure they are not used to turn away those who need help, especially those who seek it voluntarily or for whom an earlier and shorter intervention may be more beneficial. The changes made to the detention criteria in Part III of the Act are not the same as those made to Part II of the Act. Whilst justified in some cases, we heard it means the draft Bill as it stands could lead to an increase in the number of people detained under Part III. This would be contrary to the intention of the draft Bill. We recommend the changes in the detention criteria are made consistent between Parts II and III of the Act.

Too many autistic people and people with learning disabilities are being detained in inappropriate mental health facilities, and for too long. We welcome the Government’s proposals to address this, but have heard concerns that the removal of autism and learning disability as grounds for detention under Section 3 of the MHA may lead to more detentions under different legal powers, with fewer safeguards, or diversion into the criminal justice system instead. This would be the opposite of what the change is intended to achieve. Proper implementation of community care improvements and stronger safeguards against inappropriate detention will be vital. We make detailed proposals on these, including stronger duties on health and care bodies to proactively identify those in need of community care and provide it, a process to ensure the change only comes into force once community care provision has significantly improved, and a tightly defined power under the MHA aimed at ensuring particularly complex cases where detention might be thought to be warranted are considered by a specialist Tribunal from the outset.

The ability of patients to make choices about their care and treatment was identified as one of the single most effective measures to reduce detentions and improve inequalities. We welcome the draft Bill’s provision for statutory Care and Treatment Plans and recommend that all patients who have been detained under the Mental Health Act should also have the statutory right to make advance choice documents, covering care and treatment, and have support in doing so. Similarly, the draft Bill’s proposal to give patients choice over who should make certain decisions on their behalf is a major step forward, but more work needs to be done to ensure the process is manageable and does not conflict with existing legislation when applied to under 18s. We also recommend that “opt-out” advocacy, whereby patients will be proactively offered the support of an advocate, should be extended to voluntary patients when sufficient capacity has been developed in the workforce to allow it.

The upcoming legislation will be a crucial opportunity for the Government to strengthen the rights and protections for children and young people under the MHA. For example, by introducing stronger requirements to avoid the placement of children in adult or out of area wards, and by consulting on a statutory test for ‘child capacity’ to ensure that children and young people have equal access to the safeguards in the draft Bill that rely on a patient’s ability to make their own choices.

Finally, the draft Bill contains positive proposals in relation to Part III patients, including the statutory time limit of 28-days to transfer patients from prison to hospital and the removal of prison and police stations as “places of safety”. We are concerned, however, that the proposal for a conditional discharge that amounts to deprivation of liberty may be overused, especially for ethnic minorities. We recommend that the use of this provision should be closely monitored, with a statutory review after three years.

Our proposed changes are designed to strengthen the draft Bill, to provide a voice speaking up for patients and driving ongoing reform and to mitigate potential unintended consequences. We look forward to the Government introducing the final Bill into Parliament within this Session.