The Government introduced the Mental Health Bill into Parliament on 6 November. It draws on the work of the independent Review of the Mental Health Act 1983, chaired by Sir Simon Wessely, that reported in 2018 (to which I was the legal adviser).
The Bill now introduced is very similar to the draft Bill brought forward by the previous Government, which can be found here. A Joint Committee of both Houses of Parliament was convened to scrutinise the draft Bill published in 2022, and its report can be found here (together with my walkthrough of it). The previous Government responded to that report here.
No doubt reflecting recent high-profile cases such as that Valdo Calocane, the Bill now includes measures designed (in the words of the press release) to recognise that “safety is paramount” – including a requirement that the patient’s responsible clinician consults with another person before discharging them; the press release also says that “[d]ischarge processes will be reviewed more broadly and will include a safety management plan for the patient, to keep themselves and others safe.”
The Bill comes with explanatory notes. It does, however, require extensive cross-referencing to the MHA 1983 in order to make sense of what, exactly, it would do. It is available here. Please do send any errors or omissions that you spot to me at alex.ruckkeene@39essex.com.
Amongst the measures that the Bill includes are:
- An updating of the principles to be contained in the statutory Codes of Practice in both England & Wales.
- The removal of learning disability and autism from s.3 MHA 1983.
- Statutory care and treatment plans for all patients.
- Advance choice documents, including provision for NHS England and ICBs to make arrangements for making information about advance choice documents available to those for whom they are responsible, and “helping” such people as they consider appropriate to make advance choice documents.
- Replacing nearest relatives with nominated persons.
- For advocacy provision to be extended in England (as is already the case in Wales) to all informal patients, not just those detained under the MHA 1983.
- Greater access to Second Opinion Appointed Doctors.
- Shorter periods of detention under s.3 and greater access to the Tribunal.
- The power for Tribunals to recommend (but not direct) service provision in the community.
- Tightening the criteria for Community Treatment Orders.
- The prohibition on the use of police and prison cells for those experiencing mental health crisis.
What the Bill does not include are:
- Any provisions preventing the detention of autistic people or those with learning disability under the MCA 2005 (including in psychiatric hospitals) in the event that they are considered to lack capacity to consent to their admission and confinement.
- Statutory principles appearing on the face of the legislation, in the way that principles appear in s.1 MCA 2005.
- Any provision for addressing the legal powers to hold individuals in Accident and Emergency departments pending admission under the MHA.
- Any reference to the interface between the MHA and the MCA 2005.
- Any reference to advance consent to confinement in psychiatric settings, the DHSC having taken the position in response to the Independent Review’s consideration of this issue that the law already provided that people could give such consent so as to avoid the need for formal detention when in crisis.
- Measures allowing patients to challenge their treatment before the Mental Health Tribunal, meaning that they will continue to have to rely upon judicial review to obtain a judicial determination of whether they can compelled to receive a specific treatment.
The Parliamentary Office of Science and Technology has published two reports on mental health reform, one on improving patient choice and on autistic people and people with learning disability. They have also published a wider report on racial inequalities in the mental health context. The House of Commons Library has published a wider research briefing here.
As a final note, some may think that Parliamentarians may be going to experience a degree of cognitive dissonance if Kim Leadbeater’s Assisted Dying Bill proceeds. It will be simultaneously considering both the state’s existing duty to protect life in a crisis and the creation of a duty on the state to assist in the ending of life. But, equally, it is might to be thought to be very important that the two issues are considered together so that Parliament can seek to weigh what might be thought to be competing “goods”. Not siloing such matters is certainly how the Complex Life and Death Decisions research group I am part of seeks to proceed.
