By Tim Spencer-Lane
On 6 November 2024, the Mental Health Bill was introduced in Parliament. The bill contains measures to amend the Mental Health Act 1983 (MHA) in order to strengthen the voice of the patient and ensure that that detention is only used when, and for as long as, necessary.The bill is largely the same as the draft Mental Health Bill published by the previous government, itself largely based on the recommendations of the Independent Review of the Mental Health Act in 2018.
However, the bill also takes forward a number of recommendations from the 2023 report of a joint committee of both Houses of Parliament that scrutinised the draft bill.
The key changes since the draft bill include the following:
- The removal of “how soon” harm may occur from the detention criteria.
- The removal of the requirement for the approved mental health professional (AMHP) to see the nominated person – the role that will replace the nearest relative - in person.
- A new duty on NHS commissioners to make arrangements to inform people about advance choice documents and provide appropriate help to create one.
- Including the wording of the principles identified by the independent review within the MHA’s requirements for a code of practice.
- A new duty on the patient’s responsible clinician to consult with a professional involved in the patient’s treatment when taking the decision to discharge.
What happens next?
The bill will be debated and must be approved by both Houses of Parliament. It will no doubt be amended during its passage through Parliament. Once approved, it will be sent for Royal Assent and will then become an act (law).It will not come into force immediately. It is estimated that full implementation may take 10 years, largely due to the lead-in time required to train additional clinical and judicial staff.
The following is a general summary of the key provisions of the Mental Health Bill.
Amending the detention criteria
The bill amends the criteria for detention under part 2 of the MHA and for renewals. The aims are to provide greater clarity as to the level of risk that a person must present in order to be detained and to reduce the use of the MHA for people with a learning disability and autistic people.Firstly, section 2 (admission for assessment) is amended to insert the following new tests for detention:
- That serious harm may be caused to the health or the safety of the patient or another person, unless the patient is detained; and
- It is necessary, given the nature, degree and likelihood of the harm, for the patient to be detained.
- 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, for the patient to receive medical treatment;
- That medical treatment cannot be provided unless the patient is detained under the MHA; and
- Appropriate treatment is available (which is defined as meaning there must be a reasonable prospect of alleviating or preventing the worsening of the disorder or one or more of its symptoms or manifestation).
This exclusion does not apply to part 3 patients (those in the criminal justice system).
From nearest relative to nominated person
The bill replaces the nearest relative with a new statutory role, the nominated person (NP).The NP can be selected by the patient at any time when they have capacity or competence to do so. The nomination must be witnessed by a health or care professional, who must confirm a number of matters, including that there is no reason to think that the patient lacks the relevant capacity or competence or that undue influence has been used.
The NP continues to represent the patient even if that patient subsequently becomes unwell and no longer has the relevant capacity or competence. If the patient lacks capacity or competence to nominate, and has not made a nomination, an AMHP may appoint an NP for the patient.
The NP has 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 (see below) and transfers between hospitals and to object to the use of a community treatment order (CTO).
Currently, when a nearest relative exercises their powers inappropriately or unreasonably, the only means of overruling them is to remove or displace them from their role.
The bill changes 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 can continue to have a role in the patient’s care and treatment.
The county court retains the power to terminate the appointment of an NP, either permanently or for a specified time.
Compulsory medical treatment safeguards
The bill makes several reforms to part 4 of the MHA, which regulates when treatment can be imposed on detained patients.It introduces a new ‘clinical checklist’, which applies to clinicians making treatment decisions. There is 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 enhance the role of the patient in decision making under the MHA.
New safeguards are introduced for patients refusing medication, either with capacity or competence at the time, or in a valid and applicable advance decision, or where the treatment is in conflict with a decision made by a donee of lasting power of attorney, deputy or the Court of Protection.
In these circumstances, the treatment cannot be given unless there is a “compelling reason” to give the treatment and a second opinion approved doctor (SOAD) has provided certification. A compelling reason means that no other forms of treatment are available or that alternatives are available, but the patient has not consented or they would conflict with an advance decision or a decision by a donee, deputy or the Court of Protection.
Where the patient is consenting to the medication, or lacks capacity or competence (and there is no conflict with any advance decision or decision by a donee, deputy or the Court of Protection), the bill provides that the treatment cannot continue beyond two months, unless an approved clinician or SOAD has certified certain matters. This is a reduction of the current three-month time-period.
The bill also gives additional safeguards to patients who have refused urgent electro-convulsive therapy, either with capacity or competence at the time, in a valid and applicable advance decision, or where the treatment is in conflict with a decision made by a donee, deputy or the Court of Protection. In order to give such treatment, a SOAD must first issue a certificate within a time period prescribed in regulations.
Also, the bill prohibits compulsory treatment on an urgent basis of those with the relevant capacity or competence, in order to alleviate serious suffering, as is currently permitted under section 62. It only permits treatment in the face of a capacitous refusal based on a SOAD certificate and “compelling reasons”.
Community treatment orders (CTOs)
The bill revises the criteria for the use of CTOs in line with changes to the detention criteria. CTOs can only be used if there is a risk of “serious harm” to the health and safety of the patient or others, and consideration has been given to the “nature, degree and likelihood of the harm, and how soon it would occur”. In addition, there must be a reasonable prospect that the CTO would have a therapeutic benefit for the patient.The CTO must also be agreed in writing by the community clinician. The mental health tribunal is also given the power to recommend that the responsible clinician reconsiders whether a particular CTO condition is necessary.
Learning disability and autism
Under the bill, people with a learning disability and autistic people will not be able to be detained for treatment under section 3 unless they have a co-occurring “psychiatric disorder” that warrants hospital treatment. Also, they will not be able to be made subject to a CTO solely on the basis of their learning disability or autism.The bill also places care (education) and treatment reviews (C(E)TRs) on a statutory footing. C(E)TRs are designed to ensure that people with a learning disability and autistic people are only admitted to hospital when necessary and for the minimum possible time.
The NHS commissioning body must ensure that C(E)TRs are held when a patient with a learning disability or an autistic patient is detained under the MHA. Certain bodies are required to have regard to the recommendations made by the C(E)TR.
There is a duty on integrated care boards (ICBs) to establish and maintain a register of people with a learning disability and autistic people who are at risk of detention. ICBs and local authorities must have regard to the register and the needs of the local ‘at risk’ population, when carrying out their commissioning duties. The aim is to help ensure that adequate community services are available for people with a learning disability and autistic people, so as to avoid unnecessary hospital admissions.
Statutory care and treatment plans
The bill introduces statutory care and treatment plans for detained patients and those subject to community treatment orders and guardianship, excluding those subject to short-term detention powers.Responsible clinicians are placed under a duty to prepare and regularly review the plan, and regulations will be used to set out the contents of the plan.
Independent mental health advocates (IMHAs)
IMHAs are specially trained advocates who represent and support patients detained under the MHA. The bill extends the right to an IMHA to informal patients.It also introduces an “opt-out” system, whereby hospital managers and others are required to notify advocacy services about qualifying patients and those services must then arrange for patients to be interviewed to find out if they want an IMHA. The aim is to increase the uptake of IMHAs.
These changes apply in England only.
Detention periods and their renewal
The bill shortens the period that a patient may be kept in detention for treatment. The initial detention period is reduced from six months to three months. This can be renewed for a further three months (reduced from six months) and then for a further six months (reduced from one year).These changes mean the patient’s initial detention will expire sooner and if the detention is to continue, it must be reviewed and renewed more frequently.
Mental health tribunals
The bill provides that patients have greater access to the tribunal. Specifically:- section 2 patients can apply to the tribunal within 21 days of detention (rather than 14 days currently);
- section 3 patients can apply within three months (rather than six months currently); and
- automatic referrals to the tribunal take place – in cases where the patient has not exercised their right to apply – three months from the date on which the patient was first detained and then every 12 months.
Discharge process
The bill provides that before a patient is discharged from detention, the responsible clinician must consult someone professionally concerned with the patient’s treatment.This is intended to ensure that patients are not discharged inappropriately where they may be a risk to themselves or others. There are similar safeguards in respect of the decision to discharge guardianship.
Principles
The bill amends section 118 of the MHA, with the effect of imposing statutory requirements in relation to the content of the code of practice to include the wording of the principles formulated by the Independent Review of the MHA.Those principles are: choice and autonomy, least restriction, therapeutic benefit and the person as an individual. This will apply to the codes of practice for both England and Wales.
Section 117 aftercare
The bill changes the ordinary residence rules that identify which local authority must provide or arrange section 117 aftercare services to an eligible person, by applying new ‘deeming provisions’.In broad terms, these mean that when a person is placed out of area, they will remain ordinarily resident in the area of the placing authority.
So, for example, where a person living in local authority A is placed into a care home in the area of local authority B, local authority A will remain responsible for providing or arranging their aftercare.
The mental health tribunal is also given the power to recommend to the NHS bodies and local authority to provide aftercare services for a patient. The tribunal can reconvene to reconsider a case if any such recommendation is not complied with.
Advance choice documents
The bill places duties on health bodies to make information available about, and help people to create, advance choice documents.These are written records of a person’s wishes, feelings and decisions about their care and treatment that are made when the person has the relevant capacity or competence.
Clinicians must have regard to these documents (but not necessarily follow them) when providing medical treatment under the MHA.
Places of safety
The bill removes police cells from the definition of “places of safety” for the purposes of sections 135 and 136. This change is in response to evidence that police cells are not suitable environments for people with severe mental health needs awaiting assessment and treatment.The bill also ends the use of prison as a place of safety for people in contact with the criminal justice system.
Patients in the criminal justice system
The bill aims to speed up the transfer of prisoners with a mental disorder to hospitals by introducing a statutory time limit. The relevant health and justice agencies are required to seek to ensure that a transfer takes place within 28 days.The bill creates a power that allows the mental health tribunal or the secretary of state for justice to place conditions that amount to a deprivation of liberty on a patient as part of a conditional discharge.
This will apply in a small number of high-risk cases where the patient is no longer benefiting from hospital detention, but the conditions are necessary to protect the public from serious harm.
This is a response to the Supreme Court decision in MM v Secretary of State for Justice [2018] UKSC 60, which held that a patient with the relevant capacity cannot be discharged in this manner under the existing provisions of the MHA.
Tim Spencer-Lane is a lawyer specialising in adult social care, mental capacity and mental health and legal editor of Community Care Inform.
