Mental Health Act reform – the next stage

The Government published on 13 January 2021 a White Paper responding to the recommendations of the independent review of the MHA under Sir Simon Wessely.  For an excellent summary of its contents, see the article by Tim Spencer-Lane in Community Care.  The White Paper is accompanied by a 12-week public consultation. Following consultation, the government plans to draft a revised Mental Health Bill, which will be introduced when Parliamentary time allows.

I was the legal adviser to the Review.  In a post I wrote when our report was published, I said:

You should, of course, read the whole report, but the easiest way to summarise the 154 recommendations is to set out how things would look in December 2028 when (not, of course if) the recommendations have been implemented and have had time to bed down.  At that point, we would have a system: 

1. 1. 1. In which there are more alternatives to detention (including alternatives proposed and developed with service users, and those for people with learning disability and autism, for whom entry into hospital, whether formal or informal, almost invariably reflects failure in another part of the system even more starkly than for others).
      2. Where, if people are admitted to hospital, admission is truly informal wherever possible. Where it is not informal, the default will be that treatment is on the person’s own terms, any other course of action being deliberately difficult for the relevant professionals to take, and subject to an effective right of challenges;
      3. Stays in hospital are short, targeted, and purposive.  Any other course of action will be difficult and painful for those seeking to justify it.  Where the justification is a system failure, there will be a tribunal able to take appropriate action to unlock it.
      4. Where we as a society are in the position to make an informed decision as to whether we should move beyond separate mental health legislation.

The White Paper adopts the vast majority of the Review’s recommendations.  If the Mental Health Bill 2022 adopts the same course (and the initial signs were that the White Paper was welcomed on a cross-party basis, continuing the same broad consensus as had underpinned the Review’s work) then my prediction/hope remains the same.   I do not underestimate the potential for things to go awry, and the proposal in the White Paper (going beyond the Review’s recommendations) to prevent detention for treatment under s.3 on the basis of learning disability/autism is one that will require very careful consideration if it is not to lead simply to a re-labelling of the locks on the doors on institutions, in particular by simply transferring the legal basis for detention from the MHA to the Mental Capacity Act 2005 in all those cases where it said that the person lacks capacity to consent to their admission.

I am also very conscious that there are many who consider that the Review should have taken a stance that admission and treatment for mental health treatment should only ever be on the basis of capacitous consent.  For the reasons set out in some detail in the Review report, that conclusion is not compelled by either the ECHR or the text of the Convention on the Rights of Persons with Disabilities.  That, though, does not of course mean that this is a direction of travel which should not be considered.  The Review set down five ‘confidence tests’ for a move towards capacity-based legislation, which would mean that admission/treatment could never be lawful where the person capacitously refuses.  They were (1) the views of service users (the term adopted by the Review); (2) the impact of ‘fusion’ legislation in Northern Ireland (still, frustratingly, not yet fully in force; (3) whether the assessment of capacity is reliable enough to provide the sole basis for care and treatment; (4) that associated processes are adapted to support the change; (5) whether capacity-based legislation can take into account what is in the public interest.  Whilst the White Paper does not expressly adopt these tests, I would suggest that these remain important tests for all those concerned with law reform to engage with, as laying the foundation stones for the MHA 2032.  

More immediately, and both at the level of principle (noting, incidentally, that the White Paper proposes to put statutory principles on the face of the Act) and, crucially, detail, only by responding to the consultation – open until 21 April 2022 – can you ensure that your voice is heard in shaping the MHA 2022.