In May 2017, Theresa May suggested that, if elected, she would consider replacing the Mental Health Act 1983 ("MHA") “in its entirety", moving forward with a clean slate and a new Mental Health Treatment Bill. However, those working with the MHA understand that this is, at best, an incredibly brave task to take on, and would take years to create a totally new approach, especially with Brexit taking up the focus of parliamentary time.

More importantly, we are aware that the MHA and hospitals cannot take the brunt of the criticism.  Practitioners work under incredible pressure with limited resources dealing with very complex conditions and situations.  Most patients receive good quality care and are supported to take steps toward recovery and a functional life in the community, against all odds.  However, there is only so much that can be done by treatment teams.  To tackle the issues, Mrs May has outlined she will need to look outside hospital wards to the impact of contextual factors like rising poverty and homelessness; depleting resources in the public and third sectors; as well as the difficulty accessing advice, advocacy and financial support when unwell.

As the first step, an independent review of the MHA was commissioned last autumn.  The Interim Report was released in May 2018, and sets out the interim findings and areas of priority for further investigation/reform.

The Interim Report highlights that detention rates in England are about average for Europe, but they appear to be rising faster in England faster than elsewhere.  In 2016 on average there were 180 cases a day where people were sectioned under the MHA.  Interestingly, despite a reduction in the number of beds, the total number of compulsory admissions has remained largely stable.  A wide variety of reasons has been given for this, including lack of robust community care packages, increased risk aversion and using compulsory detention as a tool to access scarcely available beds.

The Interim Report recognises that mixed sex wards, understaffing, over-occupancy and pressure on beds, the use of agency staff and a lack of supervision is challenging for staff and service users when it arises. Further, that some options for reform may extend beyond the MHA and relate to workforce numbers, facilities, staff training, supervision and a need for culture change within care settings.  There is also a nod to those issues such as poverty, discrimination, isolation and racism that are acknowledged to play a part in the cause of mental illness and prospects of recovery, but are beyond the scope of the MHA review.

Following consultation, particularly with patients and those representing patients, the Interim Report raises concerns about practices and procedures which fell short of respecting dignity of patients. It also noted that there was an apparent regular failure to take proper account of people's cultural circumstances and needs particularly of people from black African and Caribbean heritage.

The remit for their final report is incredibly ambitious, including touching on the following:

  • addressing the interface between the MHA and Mental Capacity Act 2005 ("MCA");
  • reforming or replacing Community Treatment Orders;
  • improvements to care planning;
  • revisiting the concept of 'risk' to ensure that there is real substance to it;
  • resolving contentions with confidentiality and family involvement;
  • resolving issues with nearest relative identification and displacement;
  • improving methods to reduce the distress for patients from receiving compulsory treatment;
  • addressing issues related to conditional discharge and the recent Court of Appeal decision;
  • standardising legal oversight for detention to be dealt with by the same Court or tribunal (both deprivation of liberty under MCA and detention under MHA);
  • clarify the role of parental responsibility;
  • clarify the definition of aftercare;
  • resolving the complex arrangements across health and social care, especially regarding funding and ordinary residence;
  • extending and protecting the role that advocates can play;
  • addressing issues that result in unnecessary bed blocking of restricted patients;
  • addressing issues relating to the appropriateness of detention of people with a learning disability and or autism;
  • addressing health professionals' unconscious biases such as believing that black men are more likely to be aggressive resulting in over medication, restraint and detention;
  • considering culturally acceptable alternatives to detention;
  • considering barriers to uptake of earlier intervention for BME potential patients;
  • considering how behaviours of staff that section and admit people affect the likelihood of detention;
  • overall attention to the importance of patient autonomy, dignity, access, person-centred options; and wellbeing, equality, rights-based approaches, safety and the expertise of practitioners.

It is difficult to argue that these things are not issues that would be helpful to resolve for both practitioners and patients.  However, it is not due to a lack of impetus that they have not been addressed already.  By the very nature of the context it operates in, it will always be incredibly complex and difficult to manage such conflicts of rights.

So what's next? The review panel have stated that they are not currently minded to recommend the complete repeal of both the MHA and/or MCA.   The final report is due to be released at the end of this year.  It remains to be seen whether the outcome of the review, will be able to formulate coherent recommendations that will be supported by government and really make an impact on patients, hospitals and professionals, especially in such a short timeframe.

The Mental Health Units (Use of Force) Private Member's Bill is also going through Parliament at the moment and is supported by the government.  This bill would require hospitals to publish data on how and when physical force is used.  The bill would also make sure any non-natural death in a mental health unit triggers an independent inquiry.  We will provide an update on this in preparation for, if, and when this Bill becomes enforceable legislation.


For further information or to discuss any aspect of this article, please contact Alice O'Donoghue, Solicitor or Simon Lindsay, Partner.

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