The Mental Health Act 1983 (MHA) is in need of reform. 

In 2018, there was an independent review of the MHA which examined the functioning of the Act and specifically why black people were four times more likely to be detained than white people. 

Following this, the Government held a white paper consultation and in June 2022, the draft Mental Health Bill was introduced. Earlier this month, the Joint Committee on the Draft Mental Health Bill, made up of cross-party representatives from the House of Commons and the House of Lords, published its report on the draft Bill. It came after hearing written and oral evidence from service users, mental health professionals and legal practitioners, including Irwin Mitchell's Kirsty Stuart. 

The committee welcomed the overall direction of the draft Mental Health Bill and would like to see a final version introduced during this session of Parliament. However, its report also sets out key areas in which the draft Bill needs to be strengthened, and emphasised that this Bill shouldn't signal an end to mental health law reform, and there should be "an ongoing process aimed at more fundamental reform of the MHA".

What does the committee’s report say?

The recommendations outlined are extensive and can't be addressed in full in this article, but four overarching recommendations are worth mentioning:

  • Four principles: The committee suggested that the four principles established by the independent review – choice and autonomy; least restriction; therapeutic benefit; and the person as an individual – should be made front and centre in the primary legislation.
  • Resourcing and implementation: The committee recognised that mental health services were under significant pressure and so recommended that the Government publish a detailed plan for resourcing and implementing the Bill. It should report annually on progress during implementation, particularly in relation to high-quality community alternatives to inpatient (hospital) care.
  • Mental Health Commissioner: To help drive ongoing reforms to mental health law and tackle inequalities in service provision, the committee recommended the creation of a Mental Health Commissioner to act as an independent person to advocate for patients, their families and carers.
  • Responsible person to tackle racial inequality: The Committee observed that since the independent review in 2018, racial inequalities have persisted. It recommend that all health organisations are required to appoint a responsible person to collect and publish data on, and oversee policies to address, racial and ethnic inequalities.

Autistic people and people with a learning disability

There are currently more than 2000 individuals of this cohort who are detained in inpatient units. The committee rightly states that "too many autistic people and people with learning disabilities are being detained in inappropriate mental health facilities, and for too long". 

We continue to observe this in our own legal work. The issue of individuals who are autistic and / or have a learning disability being detained on a prolonged basis is something which the Government and local commissioners have been grappling with for over 10 years now, following the Winterbourne View abuse scandal in 2011 and the establishment of the Transforming Care programme the following year. 

While these issues have been brought into sharp focus in recent years, there is a troubling history of failed initiatives to reduce the numbers in detention.

One of the key provisions of the draft Bill is to remove autism and learning disability as conditions for which an individual can be liable for detention under Section 3 of the MHA (although this provision is not replicated with regard to Section 2 of the MHA which allows an individual to be detained for up to 28-days for a mental health assessment, or Part III of the MHA covering forensic patients).

While the above amendment in respect of Section 3 is generally welcome, the Committee is concerned that this could inadvertently lead to this group of people being detained under different legal powers, such as the Mental Capacity Act and Deprivation of Liberty Safeguards (to be replaced by ‘Liberty Protection Safeguards’), or diverted into the criminal justice system instead. 

The Committee fears this would be counter-productive and could potentially mean "longer periods of detention, with fewer legal safeguards". The Committee is also concerned that people could miss out on key support that comes with being detained under Section 3 of the MHA, including Section 117 after-care. This is particularly important because Section 117 aftercare is designed to alleviate the risk of re-admission to hospital. A potential solution could be providing a corresponding right to community care, but this does not feature in the draft Bill in its current form.

The Committee considers that the reforms in the draft Bill therefore require more thought, testing, and a staged approach to implementation. 

Deficit in community care has potential to derail reform

The report specifically highlights the need for more appropriate community placements to be in place before the changes come fully into force, noting that "the deficit in community care provision has the potential to derail these reforms". 

The committee further recommends that the Government urgently reviews the operation of the Mental Capacity Act framework to ensure this can't be used to deprive people with a learning disability or autistic people of their liberty in psychiatric settings for lengthy periods of time, thereby undermining the intention of the draft Bill.

The committee also makes several specific recommendations for this group, including a mechanism for a specialist Tribunal to authorise autistic people and people with a learning disability being detained in mental health hospitals under Section 2 MHA beyond 28 days in "tightly defined exceptional circumstances". Additionally, Care (Education) and Treatment Reviews (C(E)TRs) are already in place for people with a learning disability and autistic people who are in inpatient mental health facilities or at risk of admission, and we have seen these make a big difference for our clients. The report recommends, firstly, strengthening the legal duties on commissioning authorities to follow the recommendations from C(E)TRs, and secondly, reducing the maximum time between C(E)TRs for those in inpatient units from 12 to six months.

The risk register should focus on providing support

The draft Bill envisages a ‘risk register’ for Integrated Care Boards (ICBs) to establish and maintain a list of people with a learning disability or autistic people in their area who are at risk of admission to a mental health hospital. 

The committee recommends that this is renamed the ‘Dynamic Support Register’ and that the Government consults with people with a learning disability and autistic people to build trust in this mechanism. The report also recommends that the Government imposes a firm duty on local health and social care commissioners to ensure adequate provision of community services for this group of people. In other words, the register must be "focused on providing support, rather than simply identifying risk".  

Finally, the Committee emphasises the importance, not only of sufficient community services for people with a learning disability and autistic people, but also of a stronger requirement for the relevant commissioning bodies to collaborate in providing community care to this cohort. The committee notes that this might require additional funding but expects this can be met if the Government invests in community services as it has committed to doing.

Our analysis 

The report raises some salient points and we share many of the committee’s concerns, and hopes, for the draft Mental Health Bill and for legal reform more generally in this area. 

The report notes that the compulsory detention of autistic people and people with a learning disability "has been identified as a human rights issue". We would agree. We've seen individuals placed under severe restrictions, sedation, restraint and prolonged seclusion. 

These can engage various rights under the European Convention on Human Rights, including Article 5 (right to liberty), Article 8 (right to respect for private and family life) and, in some instances, Article 3 (prohibition of torture, inhuman and degrading treatment). 

Moreover, there is a real concern that hospital settings (particularly Assessment and Treatment Units or ATUs) are wholly unsuitable to meet the needs of autistic people and people with a learning disability to begin with. Treatment at mental health facilities can in fact lead to worse outcomes for this cohort, and what is most often required is good quality community placements that meet their care and support needs. 

We also agree with the committee’s report that in some areas, the draft Mental Health Bill has not gone far enough, and more must be done to protect vulnerable service users. The Government must be alive to potential unintended consequences, such as the framework in the Mental Capacity Act 2005 being used for prolonged detention in psychiatric settings in lieu of Section 3 of the MHA. 

This said, as a separate observation, in our experience the provisions of the Mental Capacity Act / Deprivation of Liberty Safeguards, and the more holistic approach taken in the Court of Protection can help facilitate discharge from hospital settings into an appropriate community placement. Oversight from the Court of Protection can assist the transition process and help focus minds to overcome the various practical and legal obstacles that may arise.

Investment in community care can't be overstated

Finally, the importance of investment in community provision can't be overstated. Our view is that without this, other legislative change could become hollow. We have observed that even where an individual who is autistic or has a learning disability is ready for discharge from a mental health unit, the lack of community placements can, in practical terms, amount to a near absolute barrier. The result in too many cases is prolonged detention with no commensurate benefit for the individual. 

Inadequate community services can also be a factor behind re-admission to hospital, creating a risk that the cycle could simply repeat itself. As such, it's likely that much will hinge on whether the Government adequately resources community services.

Conclusion

Following the committee’s report, it's hoped that the Government will take on board some of the recommendations and seek to strengthen and improve the provisions in the draft Mental Health Bill. Many thousands of people who use mental health services, their families, advocates and carers will closely await further updates. 

It's crucial that the opportunity to make real and lasting change is taken, to ensure that people with a learning disability and autistic people can live in homes, not hospitals.

Find out more about Irwin Mitchell's expertise in supporting people with concerns over mental health care or their human rights at our dedicated protecting your rights section

Our website also has information on how we also specialise in supporting families whose loved ones are detained in assessment and treatment units and how you can sign up to free monthly ATU advice surgeries that we run.