Reforming the Mental Health Act

The Mental Health Act (1983) regulates the compulsory detention and treatment of people with a mental disorder in England and Wales. It was last amended in 2007, following a lengthy review process. However, in 2013, a report by the Commons Health Select Committee highlighted concerns about rising rates of detention (which have continued to rise each year since the report) and the over-representation of people from Black, Asian and minority ethnic groups among those detained. 

In 2017, partly in response to these concerns, Professor Sir Simon Wessely, regius professor of psychiatry at King’s College London, was commissioned by the government to conduct an independent review and examine the legislation. The resulting report, published in 2018, recommended changes based on four guiding principles: choice and autonomy; least restriction; therapeutic benefit; and recognising people as individuals. 

“The Mental Health Act review team carried out extensive stakeholder engagement, including service users, families, mental health professionals, legal experts, charities, think tanks, and Parliament,” says Professor Wessely. “Our completed review was warmly welcomed across the parliamentary spectrum, and nearly all recommendations were accepted by the government, especially those related to reducing coercion and increasing choice.” The independent review also made recommendations to address concerns that people from most minority ethnic groups in the UK are more likely to be detained under the Mental Health Act than white people. As noted in Mental Health Act Reform – Race and Ethnic Inequalities – a research briefing published by the Parliamentary Office of Science and Technology (POST), this inequality is most pronounced for Black people, who were four times more likely to be detained than white people in 2020/21. 

Community treatment orders, introduced in the 2007 Mental Health Act reforms, are particularly controversial. Designed to allow clinicians to order patients to continue supervised treatment in the community or face recall to hospital, they are used 10 times more often for Black than white people. 

Addressing race inequalities 
Stakeholders agree that reforms require both legislative and systemic change to address these inequalities. The Wessely review recommended a patient and carer race equality framework that would require mental health trusts to fulfil statutory duties relevant to equalities; develop a competency framework for awareness, behavioural change and service development; and embed patient and carer voices in service improvement. Wider proposals to address inequalities include promoting culturally appropriate advocacy, boosting NHS workforce diversity, and funding more research into interventions.

“For the first time in the chequered history of Mental Health Act reform, our recommendations were welcomed by stakeholders of African Caribbean heritage,” says Wessely. “We know that people of African Caribbean heritage are up to 10 times more likely to be subject to community treatment orders than others. This is an unacceptable situation, and our proposals could reduce these numbers.”

A new draft bill
Following Wessely’s review, in 2021 a white paper on reforming the Mental Health Act was released, and the government published a draft Mental Health Bill in June 2022. Several reforms in the draft bill have implications for children and young people. The criteria specified by the current Mental Health Act to detain children and young people, are the same as for adults. However, other relevant legislation and case law comes into play relating to a child’s competence to make their own decisions about medical treatment. 

Evidence shows that children can often be placed in inappropriate mental health settings, such as adult wards, due to a lack of specialist inpatient beds. Reforms proposed in the draft bill include changes that have implications for children, including criteria for detention and the right to make advance care decisions. Critics say the draft bill could go further, for example by establishing a formal test of decision-making competence for under-16s.

By implementing a statutory duty for clinicians to develop care and treatment plans, involving the patient whenever possible, and maintaining their rights to challenge their detention, the draft bill also seeks to strengthen approaches to improving patient choice. A new right for patients to choose a ‘nominated person’ is also in the draft bill. This would replace the current legislation’s ‘nearest relative’ policy, where a person is selected according to their familial relationship to the patient. Several proposals aim to expand the role and improve the efficacy of patient advocacy, increase access to independent mental health advocates and ensure cultural appropriateness.

Scrutiny of the draft bill
Pre-legislative scrutiny began with the establishment of the Joint Committee on the Draft Mental Health Bill, which reported its recommendations in January this year. The committee emphasised its support for reform, described by the chair, Baroness Buscombe, as “long overdue”, and urged the government to introduce the legislation as soon as possible. 

The committee’s recommendations to strengthen the proposed reforms included abolishing community treatment orders for most patients, creating a new statutory mental health commissioner post, and a statutory right for patients to draw up an advance choice document to guide treatment during future episodes of detention. 

This agreement provides a support framework for people suffering from a mental health crisis.

“A relatively small number of recommendations in the independent [Wessely] review require primary legislation,” says Baroness Buscombe. “In contrast, the draft Mental Health Bill sits within a much larger programme of cultural and policy change. The joint committee addressed complex and emotive issues and reached consensus on all our recommendations.”

The report urged further action to tackle racial inequalities and strengthen safeguarding for people with learning disabilities. The committee also highlighted concerns in response to the proposed removal of learning disability and autism from some parts of the legislation, but not others. Their concerns include that people with autism and those with learning disabilities may instead be referred to the police and detained under the criminal justice system or the more restrictive ‘forensic’ part of the Mental Health Act. 

Baroness Buscombe says that although the committee “has not yet received a government response”, she is “heartened” that it seems to be adopting some of the committee’s key recommendations through the national partnership agreement on Right Care, Right Person, published by the government in July.

“This agreement provides a support framework for people suffering from a mental health crisis. It is supported by police forces, NHS England and social care services, to deliver responsive, local, specialist support and safe places, without unnecessary police involvement. Proper implementation of this agreement will be crucial to reducing unacceptable and rising rates of detentions, one of our key concerns in the draft bill.” Following the publication of the joint committee’s report, Professor Wessely notes: “The draft legislation has gone through pre-legislative scrutiny by a joint committee of both Houses. We are nearing the finishing line.”

Informing the legislative process
As the reforms proposed to the Mental Health Act continue to be scrutinised, POST has produced three peer-reviewed briefings (POSTnotes): race and inequalities; children and young people; and approaches to improve patient choice. These briefings were produced through POST’s fellowship schemes. POST PhD fellows are academics, usually early in their research careers; some have additional clinical or professional experience. They spend three months working with POST and review scientific literature and stakeholder interviews to produce POSTnotes on a range of topics. The fellow works with a POST scientific adviser to distil what they have learnt into a succinct, impartial, and accessible summary.
POST’s research on Mental Health Act reform is complemented by House of Commons Library briefings: Reforming the Mental Health Act and Mental Health Policy in England. These resources ensure parliamentarians have access to comprehensive, impartial information on all aspects of this crucial and complex legislation. 

Stakeholders agree that reforms require both legislative and systemic change to address these inequalities. The Wessely review recommended a patient and carer race equality framework that would require mental health trusts to fulfil statutory duties relevant to equalities; develop a competency framework for awareness, behavioural change and service development; and embed patient and carer voices in service improvement. Wider proposals to address inequalities include promoting culturally appropriate advocacy, boosting NHS workforce diversity, and funding more research into interventions.
“For the first time in the chequered history of Mental Health Act reform, our recommendations were welcomed by stakeholders of African Caribbean heritage,” says Wessely. “We know that people of African Caribbean heritage are up to 10 times more likely to be subject to community treatment orders than others. This is an unacceptable situation, and our proposals could reduce these numbers.”

Dr Howard Ryland is a consultant psychiatrist with the Oxford Health NHS Foundation Trust and a researcher at the Oxford Health Biomedical Research Centre. Dr Sarah Bunn is a biological sciences and health scientific adviser at POST

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