Written by Thecla Richardson for the Medical Law Section.
This article, with reference to the King’s Speech in November 2023, artfully examines whether the proposed reforms detailed within the 2022 Draft Mental Health Bill will be useful. The question for the nation is, are we headed in the right direction regarding mental health reforms?
Introduction
The Mental Health Act (MHA) is the law in England and Wales which regulates the compulsory detention (or ‘sectioning’) and treatment of individuals who suffer from mental health issues. (1) Passed in 1983, over forty years ago, the act is in urgent need of reform and modernisation. (2) In their 2019 manifesto, the Conservative Party committed to ‘legislate so that patients ... have greater control over their treatment and receive the dignity and respect they deserve’. (3) However, the long overdue Mental Health Bill was excluded from the King’s Speech in November 2023, the government’s last chance to put forward its legislative agenda before the next general election, demonstrating yet another betrayal of its manifesto promises and seriously failing vulnerable patients currently detained under the act. (4) This article will provide an overview of present mental health legislation in the UK, proposed reforms to the MHA, and it will discuss whether these proposed reforms will go far enough to protect the rights of mentally ill people in our country.
‘Landmark’ Reforms Proposed
The 1983 Mental Health Act is the law which presently applies in England and Wales. It covers the assessment, treatment and rights of detained people, who require urgent medical treatment for a mental health disorder and are at risk of harm to themselves or others. (5) Concerns about rising rates of detention, the disproportionate number of black and minority ethnic groups detained under the act, and inappropriate use of the act to detain people with autism and learning difficulties resulted in the current government commissioning the 2017-2018 Independent Review of the MHA. (6) This report and the government’s 2021 Reforming the MHA White Paper recommended the many changes needed to modernise the MHA, to bring it into the twenty-first century. (7)
This research enabled the formation of the 2022 Draft Mental Health Bill, which was published in June 2022 and contained many changes. (8) These include tightening detention criteria, shortening initial detention periods from six months to three months, reversing the burden of proof to require local authorities to prove that patients continue to meet guardianship criteria, new powers for the Mental Health Tribunal and frequent, automatic referrals to the Mental Health Tribunal to ensure that no-one is inappropriately detained. (9) The bill would require the expansion of access to an Independent Mental Health Advocate to include those voluntarily detained, rather than just for involuntarily detained patients. The bill includes new statutory duties for hospital managers, additional safeguards for patients with capacity to refuse treatments, reforms to community care services managed by local authorities and new duties for clinicians. It introduces a new statutory role, the ‘nominated person’, rather than the ‘nearest relative’, which would grant patients greater autonomy. (10)
The bill would additionally improve the rights of mental health patients in the criminal justice system. For example, police cells and prisons would no longer be considered ‘a place of safety’ for those awaiting mental health assessment and treatment. (11) Furthermore, the introduction of a statutory 28-day time limit would significantly improve the speed with which prisoners are transferred from prisons to mental health inpatient settings, greatly benefiting their medical recovery. The proposed new MHA would enable patients to no longer be detained solely on the basis of learning disabilities or autism, ending these inappropriate admissions to mental health hospitals. It would also strengthen duties for local authorities to ensure adequate supply of community services for patients with autism or learning disabilities, to avoid long-term detention. (12) At present, ‘black or black British’ people are four times more likely to be detained than people from ‘any white background’. (13) The proposed reforms would tighten criteria for Community Treatment Orders, which disproportionately impact black people. They would also require local authorities to monitor data on detention, broken down by ethnicity, to implement policies to further reduce racial inequalities.
“Dither, delay and failure”
The King’s Speech in November 2023, the government’s last chance to put forward its legislative agenda before the next general election, excluded these long-awaited reforms. This announcement indicated – for now – the end of the six-year project to reform the MHA, which was described by members of the House of Lords as “of the highest priority”. (14) Mental health charities expressed that this decision was “incomprehensible” and a “major breach of trust” which demonstrated “little regard” for mental health. (15) The Labour former shadow minister for mental health, MP Rosena Allin-Khan, criticised the “dither, delay and failure”, condemning the government for having “broken its promise to thousands of people, their loved ones and the nation as a whole to reform the Act”. (16) The government was also criticised by parliamentarians from its own party, who described this decision as a “profound betrayal” which illustrates how progress to improve the nation’s mental health has stalled. (17) Fortunately, the chair of The Independent Review of the Mental Health Act 1983, psychiatrist Professor Sir Simon Wessley, believes that the government simply did not have enough time to pass the proposed reforms, and that they will hopefully be passed by the next government. (18)
Conclusion
It is evident that the proposed reforms described in the 2022 Draft Mental Health Bill would address long overdue concerns and significantly improve existing mental health legislation. Although the proposed reforms, if implemented by a successive government, would strengthen and protect the rights of patients who have been detained, they would not prevent the deterioration of the health of mentally disordered people in the first place. (19) Drastic investment in our public health service and improved community support is needed to combat the national mental health emergency, to help to prevent crisis situations. (20) The government promised in 2019 to treat ‘mental health with the same urgency as physical health’, yet it failed the 16,212 people detained in hospital under the MHA in September 2023 alone. (21) These patients and their families are experiencing trauma and difficulties which may have been prevented had the government been able to fulfill its manifesto promise. It is therefore vital that the next government urgently invests in mental health services and ensures ‘landmark’ reform of mental health laws to improve the nation’s health and to reduce inappropriate detentions. (22)
References
(1) Mental Health Act 1983
(2) ‘Reforms to the Mental Health Act welcome, but need scrutiny’ Mind UK, 27.06.22 (accessible at <https://www.mind.org.uk/news-campaigns/news/reforms-to-the-mental-health-act-welcome-but-need-scrutiny/> last accessed 30.11.23).
(3) B Johnson, ‘Conservative Party Manifesto 2019’ The Conservative Party, 24.11.19 (accessible at <https://www.conservatives.com/our-plan/conservative-party-manifesto-2019> last accessed 30.11.23).
(4) R Thomas, ‘Tory MP accuses government of ‘failing’ patients after Mental Health Act reforms dropped from King’s Speech’ The Independent, 07.11.23 (accessible at <https://www.independent.co.uk/news/health/mental-health-bill-act-kings-speech-b2441071.html> last accessed 30.11.23).
(5) Mental Health Act 1983
(6) Department of Health and Social Care, ‘Modernising the Mental Health Act – final report from the independent review’ The Government, 06.12.18 (accessible at <https://www.gov.uk/government/publications/modernising-the-mental-health-act-final-report-from-the-independent-review> last accessed 30.11.23).
(7) Department of Health and Social Care, ‘Consultation outcome – Reforming the Mental Health Act’ The Government, 24.08.21 (accessible at <https://www.gov.uk/government/consultations/reforming-the-mental-health-act/reforming-the-mental-health-act> last accessed 30.11.23).
(8) Department of Health and Social Care and Ministry of Justice, ‘Draft Mental Health Bill 2022’ The Government, 27.06.22 (accessible at <https://www.gov.uk/government/publications/draft-mental-health-bill-2022> last accessed 30.11.23).
(9) K Garratt, ‘Reforming the Mental Health Act’ The Government, 31.01.23 (accessible at <https://commonslibrary.parliament.uk/research-briefings/cbp-9132/> last accessed 30.11.23).
(10) T Spencer-Lane, ‘Guide to the draft Mental Health Bill’ Community Care, 27.06.22 (accessible at <https://www.communitycare.co.uk/2022/06/27/guide-to-the-draft-mental-health-bill/> last accessed 30.11.23).
(11) ‘Get in on the Act: Mental Health Act 2022’ The Local Government Association, 04.01.23 (accessible at <https://www.local.gov.uk/publications/get-act-mental-health-act-2022> last accessed 30.11.23).
(12) Department of Health and Social Care, ‘Modernising the Mental Health Act – final report from the independent review’ The Government, 06.12.18 (accessible at <https://www.gov.uk/government/publications/modernising-the-mental-health-act-final-report-from-the-independent-review> last accessed 30.11.23).
(13) The Parliament of the United Kingdom of Great Britain and Northern Ireland, ‘Government urged to strengthen draft Mental Health Bill’ UK Parliament, 19.01.23 (accessible at < https://committees.parliament.uk/committee/605/joint-committee-on-the-draft-mental-health-bill/news/175494/government-urged-to-strengthen-draft-mental-health-bill/> last accessed 30.11.23).
(14) S Meyrick, ‘Reform of Mental Health Act ‘urgent’ says Bishop of St Albans’ The Church Times, 01.12.23 (accessible at <https://www.churchtimes.co.uk/articles/2023/1-december/news/uk/reform-of-mental-health-act-urgent-says-bishop-of-st-albans> last accessed 01.12.23).
(15) A Rogers, ‘Rishi Sunak accused of a ‘major breach of trust’ after scrapping mental health reforms’ Sky News, 07.11.23 (accessible at <https://news.sky.com/story/amp/rishi-sunak-accused-of-a-major-breach-of-trust-after-scrapping-mental-health-reforms-13002690?fbclid=IwAR1vXWgwUYpOlRvRgc_u7ENu5Yrj6LMXDhfxHXTVrPo2FSo554_23j9sRT4> last accessed 30.11.23).
(16) A Rogers, ‘Rishi Sunak accused of a ‘major breach of trust’ after scrapping mental health reforms’ Sky News, 07.11.23 (accessible at <https://news.sky.com/story/amp/rishi-sunak-accused-of-a-major-breach-of-trust-after-scrapping-mental-health-reforms-13002690?fbclid=IwAR1vXWgwUYpOlRvRgc_u7ENu5Yrj6LMXDhfxHXTVrPo2FSo554_23j9sRT4> last accessed 30.11.23).
(17) R Thomas, ‘Tory MP accuses government of ‘failing’ patients after Mental Health Act reforms dropped from King’s Speech’ The Independent, 07.11.23 (accessible at <https://www.independent.co.uk/news/health/mental-health-bill-act-kings-speech-b2441071.html> last accessed 30.11.23).
(18) M Samuel, ‘Mental Health Act reform ditched, King’s Speech confirms’ Community Care, 07.11.23 (accessible at <https://www.communitycare.co.uk/2023/11/07/mental-health-act-reform-ditched-kings-speech-confirms/> last accessed 30.11.23).
(19) ‘King’s Speech: Huge disappointment as vital reforms absent from ‘Government agenda’ British Association for Counselling and Psychotherapy,
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