In 2018 Professor Sir Simon Wessely published recommendations for reform based on an Independent Review of the 1983 Mental Health Act (MHA). The review informed the proposals made in the Mental Health Act Reform White Paper. In January 2021 the government opened a consultation about the Mental Health Act Reform White Paper.

In February 2021 ACP-UK surveyed members about the consultation and has published a response based on their feedback. We would very much like to thank the 30 respondents to this consultation.

A summary of the proposed changes will be outlined, and main points from the ACP-UK response to the government consultation. The full ACP-UK response to the consultation can be accessed here.

Summary of Proposed Changes to the Mental Health Act

Four principles guide and shape the approach to reforming the Mental Health Act legislation, policy and practice. These are:

• Choice and autonomy – ensuring service users’ views and choices are respected
• Least restriction – ensuring the act’s powers are used in the least restrictive way possible
• Therapeutic benefit – ensuring patients are supported to get better, so they can be discharged from the powers of the act
• The person as an individual – ensuring patients are viewed and treated as individuals

The Act proposes to reform the criteria for detention so that the purpose of detention is focused on ‘therapeutic benefit’, helping patients to recover and supporting them towards discharge. There is also a proposal to revise the criteria for assessing the risk of harm posed by the individual to themselves or others, so that detention is only used when the risk of harm is ‘substantial’. The criteria for using Community Treatment Orders (CTOs) will be amended so that they are only used where there is ‘strong justification, and a clear therapeutic benefit to the individual’. An increase in the frequency with which patients are reviewed under the terms of the Act is proposed, making longer term detentions more difficult to justify after the point where the patient is no longer considered to pose a ‘significant risk’ and where treatment or detention ceases to have ‘therapeutic value’. There are plans to improve access to advocacy and the rights of patients to challenge their detention where they feel their detention is unjustified. Statutory advance choice documents will be introduced to enable people to express their preferences on the care and treatment that works best for them as inpatients, before the need arises for them to go into hospital, and ‘to refuse a particular treatment, where there is a clinically appropriate alternative available’.

There are proposals to ensure that neither autism nor a learning disability are grounds for detention under the act in and of themselves without a co-existing mental health condition. There are also proposals to introduce a new duty on the NHS and local authorities to ensure an adequate supply of community services for people with a learning disability and autistic people.

There is recognition of the disproportionate number of Mental Health Act detentions of people from Black, Asian and Minority Ethnic backgrounds. A new Patient and Carer Race Equality Framework is proposed. This will support NHS mental healthcare providers to work with local communities to improve the ways in which patients access and experience treatment, and to measure change.

Summary of the ACP-UK Response to the MHA Reform White Paper Consultation

• We welcome the principles of Choice and Autonomy, Least Restriction, Therapeutic Benefit and the Person as an Individual. We believe there should be a legal requirement for all parties acting within the legislation to adhere to these principles.
• The principles of the Mental Capacity Act (MCA) should take precedence. Autonomy, capacity and choice, not ‘mental disorder’, should govern decision making. Choice and Autonomy should be privileged. Where capacity is fluctuating, decisions should be guided by advance choice documents and care plans previously developed in collaboration with service users. Early completion and easy availability of these should be mandatory.
• The continued prominence of the medical diagnostic model of functional ‘mental disorder’ within the MHA perpetuates psychopharmacology as the primary form of treatment of mental distress. This is not in patients’ best interests; for example, people with psychosis report avoiding disclosing their experiences for fear of the impact on their human rights and medicalisation of their mental distress. Psychological, social and occupational therapeutic interventions should be made equally available. All interventions should be based on a culturally informed understanding of the individuals’ experience and needs.
• We welcome the plan for more frequent review of detention. There should be pervasive emphasis on human rights and the restoration of autonomy.
• Psychologists, nurses, occupational therapists and social workers have been successfully deployed as Approved Clinicians. All Approved Clinicians should be able to gain Section 12 approval. Giving service users a choice of the profession of their Responsible Clinician should be mandatory.
• Second Opinion Appointed Doctors (SOADs) are medical practitioners. This perpetuates a medical approach to the assessment of mental health treatment needs. The role should be broadened to other suitably qualified practitioners, for example Approved Clinicians from other professional disciplines.
• Many of the inequalities experienced by marginalised groups and communities are outside of the mental health system but influence how mental health services operate. Action is required to influence the wider determinants of health in order to further reduce these disparities. A more progressive, psychologically-informed approach is required that integrates mental and physical health with understanding and respect for culture and belief. The reformed MHA should specifically be assessed against measures that ensure it will be enacted equitably. The implementation of the Patient and Carers Race Equality Framework (PCREF) and access to a culturally appropriate advocate should be mandatory.
• Modernising the Mental Health Act is an opportunity to instigate a review of all practices that may be discriminatory, such as the current automatic suspension of a person’s driving licence for a minimum of three months when they are diagnosed with a number of psychiatric disorders. When a person is detained such decisions should be made on a case-by-case basis by a Responsible Clinician.

Further information and a link to a summary about the MHA Reform White Paper and the consultation:

https://www.gov.uk/government/consultations/reforming-the-mental-health-act/reforming-the-mental-health-act