In 2018, an Independent Review of the 1983 Mental Health Act concluded that the Act does not consistently meet the needs of patients. This the Review found is especially true for people with autism or a learning disability and for people of Black, Asian, and Minority Ethnic heritage who experience pervasive inequalities in access to treatment, care, and outcomes.

In response to the Independent Review, in January of this year, the Government detailed their long-awaited White Paper reform of the Mental Health Act. And then, the Government began a public consultation process on the impact of the new legislation and how to best implement the reforms in practice.

Recently, the Government has published the responses to the public consultation. In this article, we explore four of the key changes to the Act and the public’s reaction to those proposals – changes to detention criteria, improved processes of scrutinisation of detentions, Advance Choice Documents, and the interface with the Mental Capacity Act.

The Mental Health Act White Paper proposals

The White Paper legislation, set out by the Government, responded to the Independent Review by proposing substantial changes to the Act in four guiding principles:

  • Choice and autonomy – emphasising service users' views and choice through the introduction of ‘advance choice documents’ to allow patients to express prior wishes and preferences for care if they are incapacitated.
  • Least restrictions – limiting the Act's power through an increased scrutinisation of how detentions under the Act are implemented and reviewed.
  • Therapeutic benefit – clarifying the detention criteria so that detentions only can be actioned if they can provide a therapeutic benefit to the individual and when it is vital to deliver care and treatment.
  • Individual focused – a greater focus on community-based mental health support to prevent avoidable detentions. Additionally, a requirement that all patients subject to detentions must have a Care and Treatment Plan.

Furthermore, the reforms were guided by a few fundamental policies, aimed at addressing systemic disparities of care for specific communities:

  • Ensuring that the Act is not used to detain people solely because they have a learning disability or are autistic.
  • The tackling of racial disparities in mental health services, including the piloting of culturally appropriate advocates.
  • A 28-day time target for the speeding up of prisoners’ transfer to hospital for mental health treatment.

The public consultation responses

Detention criteria

Under the Mental Health Act, a person with a mental health disorder can be detained, also known as sectioned, if they are considered to be at risk of harming themselves or others. People detained under the Act can then be treated in a hospital without their agreement.

The current wording of the Act states that detentions should be ‘necessary for the health or safety of the patient or the protection of other persons’. The White Paper proposed changing the detention criteria to consider whether detention would provide a therapeutic benefit to the individual. In addition to a rewording around risk, so that a person may only be detained if there is a genuine likelihood of harm to themselves or others.

In the public consultation, over 82% of responses agreed with the planned rewording of the Act, and respondents overwhelmingly supported changing the detention criteria to require that the patients receive some therapeutic benefit from their detention.

However, a range of concerns was voiced about the potential unintended consequences resulting from this change, with some arguing that ‘therapeutic benefit’ needs to be carefully defined.

Multiple respondents proposed a narrow definition of ‘therapeutic benefit’ as they felt that a broad definition might lead to unnecessary detentions, while others argued that the term should be defined broadly to encourage a range of therapeutic options.

Additionally, despite overall support for the proposed rewording around the risk of harm, some respondents voiced concerns that the changes to the criteria could make the threshold too high for people who need urgent help.

The Law Society, an independent professional body of solicitors, said in response to the rewording of the detention criteria:

“The Law Society strongly agrees with this proposal [on therapeutic benefit], as this would better reflect human rights standards. Detention must be necessary and proportionate, used as a measure of last resort and with care provided in the least restrictive setting.”
“[On risk, the] Law Society considers that the inclusion of ‘imminent harm’ would lead to a much clearer test, through which risk of harm necessitating detention could be more accurately demonstrated.”

Scrutinisation of detentions

As recommended in the Independent Review, to ensure that detentions under the Act are more regularly scrutinised, the White Paper details a process of automatic referral to Mental Health Tribunals (a court which deals with mental health cases). The Government’s plan for automatic referrals to the Tribunal aims to act as a safeguard so that all detentions are regularly reviewed independently from the detaining authority, rather than relying on patient or advocate requests.

Overall, respondents to the consultation, again, agreed to the proposals, although by slimmer margins than the changes to the detention criteria.

A key theme for those who disagreed with the proposed changes was that the length of time for referral to Tribunals should be more frequent than what is currently planned. However, while supportive of the proposal, many respondents were sceptical about the resources that would be available to facilitate these plans.

As many respondents noted, these proposals would be currently unrealistic as they will require significant funding increases for the Tribunal, if the proposal is to be delivered effectively.

The Mental Health Tribunal body commented: “The increase in workload that would inevitably arise from the proposed reforms is recognised in the White Paper as an important factor to bear in mind. The ability of the Tribunal to manage that increase in workload requires careful consideration to be given to the financial and administrative resources the jurisdiction would require to implement the proposed changes.”

Similarly, Sean Duggan, the chief executive of the NHS Confederation's Mental Health Network, said: “It’s vital that any costs incurred as a result of the implementation of the new recommendations and legislation are fully funded and not taken from existing budgets, which are already very stretched.”

Advance Choice Documents

Another significant change introduced in the White Paper was the introduction of Advance Choice Documents. These documents are designed to allow people the opportunity to set out in advance the care and treatment they would prefer, to nominate an advocate, and to identify any treatments that they wish to refuse in the event they become incapacitated and detained under the Act.

In the consultation, the majority of respondents signalled their support for the introduction of Advance Choice Documents. Although, points were raised as to the potential inclusion of non-clinical information in these documents to improve the general wellbeing of detained patients.

On the other hand, some respondents worried that the implementation of these documents will be impractical, as it could be difficult or unrealistic to deliver the patients' preferences. Moreover, the documents could expose clinicians to further legal challenges and unfairly raise the expectations of services users, breaking down the relationship between patients and clinicians.

Mental Health Act and the Mental Capacity Act

The Mental Health Act applies if you have a mental health problem and sets out your rights if you are detained under this Act, while the Mental Capacity Act applies if you have a mental health condition and cannot make certain decisions.

In the Mental Health Act White Paper, the intention was to define the two Acts more clearly, based on whether or not the patient is clearly objecting to detention or treatment. So, in effect, all patients without the relevant capacity, who do not object, would be subject to the Mental Capacity Act.

In the consultation, it was clear that there is already widespread confusion as to the complexities of the interface of these two Acts, as over 1,000 of the 1,449 respondents expressed it was difficult to answer as to the benefit of this change.

Although many respondents expressed that while clarity was desirable, the division between the two Acts should not depend on whether a person is objecting. They felt that objection is not always clear or consistent, meaning that people might be detained under the wrong legislation, therefore not achieving the desired clarity and distinction.

Furthermore, concerns were raised regarding the different sets of rights that the Mental Health Act and Mental Capacity Act entitle patients. Consequentially, many respondents felt that patients would be better served if the two Acts were combined into a single piece of legislation.

Along those lines, the mental health charity Rethink Mental Illness commented:

“We do not believe that the [Mental Capacity Act] provides sufficient safeguards for people with fluctuating capacity or who are likely to respond to medical treatment, including people with mental illnesses. Moreover, we feel that in practice, the concept of objection is extremely difficult to assess and measure. We, therefore, believe that predicating the Review's proposals on this concept is likely to create more problems than it solves."

In response to those criticisms of the proposed changes, the Government said they would not take reforms of the interface between the two Acts forwards. Nevertheless, the Government will build upon the current interface and review once changes to the Mental Capacity Act come in full force next year.

What is next for the Mental Health Act?

As highlighted in the White Paper and the consultation, additional funding will be required to implement many of the proposals successfully. Therefore, the Spending Review later this year will be fundamental in deciding the eventual shape of the final reform legislation, which is projected to progress through Parliament early next year.

Although, the positive responses to the proposed reforms at consultation underlines the necessity of these reforms for both patient and clinicians. Therefore, the Government signalled in consultation that the White Paper reforms are high on the agenda to solve the problems highlighted in the 2018 Independent Review and to move forwards with other NHS policy aims.