Mental Health Act reform: the story so far
Readers will recall the Government published its draft Mental Health Bill almost two years ago on 27 June 2022, which contained proposals to implement recommendations from Sir Simon Wessely’s 2018 (yes 2018!) Independent Review into Modernising the Mental Health Act (MHA).
The Joint Committee on the draft Mental Health Bill was appointed in July 2022 to scrutinise and report on the draft Bill, and their report followed on 18th January 2023. You can read our previous collection of blogs on the draft Mental Health Bill here.
The Joint Committee’s report made 55 recommendations, but where does the Government stand on the Joint Committee’s recommendations?
Short version
Baroness Buscombe, the former chair of the Joint Committee, responded on the day of publication and said:
“It is welcome that the Government has published its delayed response to recommendations made by our Joint Committee to strengthen legislation on long overdue mental health reform.
“We urged the Government to act swiftly to bring the draft Mental Health Bill before Parliament and to accept our call for stronger measures in some areas to bring about the changes needed. That was 14 months ago. We have since witnessed the absence of the Bill from the King’s Speech, compounding disappointment for those whose lives are bound up in some form with the Mental Health Act.
“I note the Minister’s intention to bring forward a Bill when Parliamentary time allows, however she cannot but be aware that the clock is ticking.”
The slightly longer version
We’ve cantered through the 45-page response and highlight just some of the key areas.
The Government rejected the following key recommendations:
No to this new statutory post on the basis that the role already exists. CQC’s wide remit allows it to take a holistic view of the health and social care sector, making it uniquely placed to identify and investigate potential issues. Its role as a regulator means it's well positioned to directly follow up on any issues, with the power to intervene.
The government will work with CQC and PHSO to establish what steps need to be taken to improve the complaints process, but do not think legislation is necessary.
The suggestion had been replacing section 118 MHA with a new section at the start of the Act requiring the Secretary of State to draw up a Code of Practice having regard to the statutory principles (set out in the Independent Review) on choice and autonomy, least restriction, therapeutic benefit, and the person as an individual. The Government think that the strongest and most effective approach is to embed them in measures in the Act and to give full prominence in a revised Code of Practice.
No to the abolition of CTOs under Part II of the MHA. The Government intend to reform CTOs so they can only be used where there is strong justification and a genuine therapeutic benefit. They will introduce greater scrutiny through involvement of community clinicians and greater oversight by the Tribunal. They want to strike the right balance between risks and benefits to patients and consider any potential unintended consequences related to abolition, such as delayed discharges or increased reliance on other areas of the act that are not designed for longer term cases.
No to a new provision to extend the continued detention under section 2 of the MHA for some people with learning disability and autistic people after the 28-day period.
While recognising the concern that some Integrated Care Boards (ICBs) do not currently fully engage with the process, the reforms mean ICBs will be under a statutory duty to make arrangements to ensure a CETR take place and they must have regard to recommendations from a review so no strengthening of wording required.
A consultation on introducing a statutory test for “competency, or ‘child capacity’” for children under 16.
Not appropriate for Tribunal to be able to review each and every aspect of patient’s treatment so no pilots.
A statutory right to request “culturally appropriate advocacy”. The Government intends to consider the findings from the pilots before deciding if legislation would be the best mechanism for implementing this policy.
The Review recommended an analysis of the operation of the MCA, with a view to amending the Deprivation of Liberty Safeguards (soon to be the Liberty Protection Safeguards). This is so that they cannot be used an alternative route to the MHA to deprive people with learning disabilities and autism of their liberty in inpatient mental health settings for lengthy periods. The Government disagreed saying that it is not always inappropriate for the MCA to be used.
The Government was not accepting of the need for extra safeguards but agreed to publish operational guidance highlighting the need to ensure the principle of therapeutic benefit.
To place a duty on services to carry out activity in relation to Advance Choice Documents (ACDs) rather than introduce new rights for individuals to request an ACD as recommended by the Joint Committee. The reason being that this will be more effective than placing the onus on individuals.
No change to the wording of “seek to ensure” a transfer occurs within 28 days.
The Government accepted the following recommendations:
Looking ahead
Separately, the Department of Health and Social Care commissioned an independent rapid review to explore how the Government can improve the way data and evidence is used to identify risks to patient safety in mental health inpatient settings. That independent report was published in June 2023 and the Government’s response has now been published.
In addition, the Health Services Safety Investigations Body (HSSIB) has launched a national investigation into mental health inpatient settings as one of its first priorities. The investigation will identify risks to the safety of patients, and HSSIB will seek to address those risks by making recommendations to facilitate the improvement of systems and practices in the provision of mental health care in England. The aims of the investigation include learning from inpatient mental health deaths to improve patient safety.
One of the early recommendations from the Joint Committee is a recommendation that there should be an ongoing process of mental health legislation reform, moving towards a more “fused” and “rights-based” approach. The Government has confirmed that, in addition to legislative reform and updating the code of practice, it plans to review implementation of the reforms within the bill and will commission independent evaluation of the reforms.