Archive: guide to the draft Mental Health Bill

This bill was published by the Conservative government that left office in 2024 so is no longer relevant. Get the latest news on the Mental Health Act here.

By Tim Spencer-Lane

The government has published its much-anticipated draft Mental Health Bill to amend the Mental Health Act 1983 (MHA).

According to the government, the draft bill includes “a range of changes to shift the balance of power from the system to the patient, putting service users at the centre of decisions about their own care”. The following is a general summary of the key provisions in the draft bill.

Tighter detention criteria

The draft bill would tighten the criteria for detention under the MHA to address the rising and disproportionate rates of detention, and to end the inappropriate admission of people with learning disabilities and autism to mental health hospitals.

Firstly, section 2 would be amended to insert the following tests for detention:

That serious harm may be caused to the health or the safety of the patient or another person, unless the person is detained, and
It is necessary, given the nature, degree and likelihood of the harm, and how soon it would occur, for the patient to be detained.

Secondly, the section 3 detention criteria would be amended to insert the following new tests:

That serious harm may be caused to the health or the safety of the patient or another person, unless the patient receives medical treatment;
It is necessary, given the nature, degree and likelihood of the harm, and how soon it would occur, for the patient to receive medical treatment;
That medical treatment cannot be provided unless the patient is detained, and
Appropriate treatment is available (which is defined as meaning there must be a reasonable prospect that the outcome of the treatment would have a therapeutic benefit for the patient).

Thirdly, learning disability and autism would be excluded from the definition of mental disorder for the purposes of section 3. This means a patient could not be detained under section 3 for treatment, solely on the basis of learning disability or autism. The learning disability exclusion does not apply to part 3 patients (those in the criminal justice system).

Replacing the nearest relative

The draft bill would replace the nearest relative with a new statutory role, the nominated person (NP). The NP could be selected by the patient at any time when they had capacity or competence to do so. The nomination would have to be witnessed by a health or care professional, who must confirm a number of matters, including that there was no reason to think that the patient lacked the relevant capacity or competence or that undue influence had been used.

The NP would continue to represent the patient even if that patient subsequently became unwell and no longer had the relevant capacity or competence. If the patient lacked capacity or competence to nominate, and had not made a nomination, an approved mental health professional (AMHP) would be able to appoint a NP for the patient.

The NP would have the same rights and powers as nearest relatives have now. In addition, the NP would have new rights to be consulted about statutory care and treatment plans and transfers between hospitals, and to object to the use of a community treatment order.

The road to the draft bill

The draft bill seeks to take forward recommendations made by the Independent Review of the MHA, which was chaired by Professor Sir Simon Wessely. The final report of the review was published in December 2018 and made 154 recommendations covering both legislative reforms and changes to policy and practice. The government published its response in a white paper, which accepted the vast majority of the review’s recommendations. The subsequent consultation on the white paper reported in July 2021 and showed broad support for the proposed reforms.

Currently, when a nearest relative exercises their powers inappropriately, the only means of overruling them is to remove or displace them as nearest relative. The draft bill would change this to enable the NP to be temporarily overruled when they exercise certain powers (such as the right to object to a section 3 admission). This is intended to ensure that, where appropriate, the NP would continue to have a role in the patient’s care and treatment. The county court would retain the power to terminate the appointment of an NP either permanently or for a specified time.

Requirements for compulsory medical treatment

The draft bill makes several reforms to part 4 of the MHA, which regulates when treatment can be imposed on detained patients.

It would introduce a ‘clinical checklist’, which would apply to clinicians making treatment decisions. There would be a duty on the treating clinician to consider certain matters and take a number of steps when deciding whether to administer medical treatment to a patient. These include considering the patient’s wishes and feelings, assisting patients to participate in treatment decisions and consulting those close to the patient. This is intended to ensure that, as far as possible, decisions would be based around the patient’s wishes, preferences and needs.

Currently, the MHA requires that in order to continue giving medication to a patient, after three months have passed, an approved clinician or second opinion approved doctor (SOAD) must certify certain matters, such as that the treatment is appropriate and the patient is, or is not, “capable of understanding the nature, purpose and likely effects” of the treatment. The draft bill would shorten the three-month period, to two months. It would also amend the language to refer to “capacity” and “competence” and require confirmation of therapeutic benefit.