Draft Mental Health Bill 2022

Proper resourcing and implementation will be crucial for the changes to work. Mental health services are under enormous pressure, and significant changes and improvements are needed to provide high-quality community alternatives to in-patient care, particularly ensuring that there will be a sufficient workforce to deliver the proposed changes. We welcome commitments from the Government to increase spending on health and social care, but most people we spoke to, including mental health providers, were still unconvinced that current resourcing or workforce plans are adequate. The Government must publish a detailed plan for resourcing and implementation on introducing the Bill, including the implications for the workforce. They should report annually to Parliament on their progress against that plan.

The independent review structured its work around four key principles that should shape care and treatment under the Mental Health Act. Those principles were: choice and autonomy, least restriction, therapeutic benefit and the person as an individual. These principles should be included in the Bill to ensure that they endure and become a driver of cultural change.

Tackling racial inequalities in the use of the Mental Health Act must be at the core of the reform. Black people are four times more likely to be detained under the Mental Health Act than white people, and 11 times more likely to be given a community treatment order. Those figures are rising. There has been a collective failure to address this issue. We now feel that the time has come for that to be addressed. Understanding of racial inequality must be included in the Bill. There must be a responsible person in every health organisation to monitor data on inequalities and oversee policies for change. We heard evidence that community treatment orders are ineffective for most patients and disproportionately used for black patients. We have therefore recommended that they are abolished for civil patients and reviewed for use with forensic patients.

On the important issue of the detention criteria, the draft Bill makes changes to the grounds on which someone can be detained for assessment and treatment, with the intention of moving away from a risk-based model and ensuring that detention will benefit the patient. Accountability is welcome, but we heard that it may lead to people being denied the help they need when they most need it, particularly patients with psychotic illnesses and those with chronic and enduring mental illness. We recommend some changes to the criteria and greater guidance in the code of practice to prevent that.

Too many autistic people and those with learning disabilities are detained in inappropriate mental health facilities, and for too long. Change to the way the Mental Health Act works for patients with learning disabilities and autism is long overdue. The Government’s intention to address that, by removing learning disabilities and autism as conditions that can justify long-term detention under section 3 of the Mental Health Act, may lead to benefits in the longer term. However, we heard that without proper implementation, those changes could make the situation worse, and potential displacement of people with learning disabilities into the criminal justice system could occur. There must be improvements in community care before people with learning disabilities and autistic people can be supported to live in the community. It is vital that reforms are not implemented until that is achieved.

Another pressing risk is that those communities may be detained, instead, under different legal powers, and possibly criminalised. That would be the opposite of what the change is intended to achieve. The Government must address that risk before the changes are implemented. We have therefore recommended the introduction of a tightly defined power to allow for longer detention periods in exceptional circumstances, with strong safeguards in place to prevent that happening unnecessarily.

On patient choice, patients should be able to make choices about their care and treatment. The draft Bill makes welcome changes in this area but does not follow through on a White Paper commitment to give patients statutory rights to request an advance choice document. We heard almost unanimous evidence supporting an advance choices document, and made a recommendation that advance choices should be a statutory right.

The number of children and young people experiencing mental distress has risen dramatically since the covid-19 pandemic. Children and young people continue to be placed in adult wards or in hospitals far from home due to the lack of appropriate care placements. The draft Bill misses a crucial opportunity to address that. We also believe that children should benefit from stronger protections in the draft Bill to support patient choice. This is a complex area and the Government need to carefully think through their proposals, consulting further where necessary about this Bill and how it will interact with the Children Act 2004.

In conclusion, it is 40 years since the Mental Health Act 1983. This draft Bill is needed. If the Government are willing to address our concerns in the ways that we have suggested, the Bill can make an important contribution to the modernisation of mental health legislation. Given our suggested amendments, we hope that the Government act swiftly to introduce the Bill to Parliament in this Session, so that it can be further scrutinised and improved.