Reforming the Mental Health Act white paper 2021

The Government published the Reforming the Mental Health Act white paper in August 2021, which sets out proposed changes to the Mental Health Act 1983 (MHA) and wider reforms of policy and practice around it. White papers are policy documents produced by the Government that set out their proposals for future legislation.

This provides a basis for further consultation and discussion with interested or affected groups and allows final changes to be made before a Bill is formally presented to Parliament. It is anticipated that the new Mental Health Act will be introduced as law in 2023 but this is not confirmed.

This briefing summarises the key points of the white paper with regard to people with a learning disability and autistic people.

The current Mental Health Act applies in both England and Wales. The Mental Health Act 1983 provides a legal framework to authorise the detention for assessment and compulsory treatment of people who have a mental health disorder and are considered at risk of harm to themselves or others.

The Independent Review of the Mental Health Act 1983, published in December 2018, found that the Act is in need of significant reform and proposed a range of changes to improve mental health services. The Government carried out a consultation about the recommended reforms in 2021 and published its response as a White paper in August 2021. The Government has accepted the majority of the review’s recommendations in its white paper.

The aim of the Government’s as outlined in the White paper is to modernise mental health legislation and ensure that care and treatment is of the highest quality and promotes recovery. Included in the White paper are plans to tighten the admission criteria and raise the threshold for compulsory detention; reduce the use of community treatment orders; strengthen some of the statutory safeguards by giving more frequent access to the tribunal to review detention; bolster support from family members and independent advocates; and enable patients to make advance choices about their future mental health care and treatment. There are also proposals designed to reduce the use of the Mental Health Act for persons with a learning disability and autistic persons, and a range of measures targeted at improving the experiences of persons from BAME groups. Reform will also be extended to people with serious mental illness in contact with the criminal justice system, with a focus on rehabilitation and reduced re-offending.

1. Choice and autonomy – ensuring service users’ views and choices are respected and followed.

2. Therapeutic benefit – ensuring patients are supported to get better, and receive care and treatment, so they can be discharged from the Act.

3. Least restriction – ensuring the Act’s powers are used in the least restrictive way and people are only detained where it is absolutely necessary.

4.The person as an individual – ensuring patients are viewed and treated as individuals.

A key ambition outlined in the white paper is to improve how the Mental Health Act works for people with a learning disability and autistic people.

The review of the Mental Health Act found that too many people with a learning disability and autistic people are admitted inappropriately to mental health wards and once admitted, stay in hospital too long. Instead of helping the patient, detention can lead to a deterioration in their condition, particularly for autistic people.

The white paper proposes several ways to reduce inappropriate admissions and ensure the quality of care these groups of people receive improves; particularly for autistic people.

The white paper states that the aim of the new Act will be to ensure people with a learning disability and autistic people are treated better in law and reduce the reliance on specialist inpatient services for this group of people. To address this, the government proposes several ways to reduce inappropriate admissions and ensure the quality of care these groups receive is improved.

The details of how the proposals will work in practice require further policy development.

The white paper proposes new duties on commissioning bodies. The first is a duty to ensure an adequate supply of community services and the second is a duty to monitor risk of crisis at an individual level.

Propose to create a new duty on local commissioners (NHS and local government) to ensure adequacy of supply of community services for people with a learning disability and autistic people.

• Propose a further duty on commissioners that every local area should understand and monitor the risk of crisis at an individual level, for people with a learning disability and autistic people in the local population through the creation of a local ‘at risk’ or ‘support’ register.
• Government says: “any duty that requires an adequate supply of services to be commissioned for people with a learning disability and autistic people could create new funding requirements, if there is not already sufficient supply in place.”
• Government will undertake a formal new burdens assessment to establish implications for local government, informed by the consultation responses.

• the white paper proposes that detention is only appropriate when it can be demonstrated that the purpose of care and treatment is to bring about a therapeutic benefit,
• care and treatment cannot be delivered to the individual without their detention and appropriate care and treatment is available.
• the white paper proposes to:
  • exclude people who have a learning disability or autistic people from detention under section 3 (detention for treatment), unless they have a co-occurring mental health need that can be treated in hospital care.
  • permit people who have a learning disability or autistic people to be detained under section 2 (detention for assessment) only if there is a probable underlying mental health cause for their distressed behaviour.
• Government says this is to prevent the 'warehousing' of patients and ensure that neither autism nor a learning disability are grounds for detention in and of themselves.
• substantial likelihood of significant harm: Act to be more explicit about how serious harm must be, or how likely it is that the harm will occur, to justify detention and/or treatment. Significant harm to the health, safety or welfare of the person, or the safety of any other person must be evidenced and recorded, with a focus more than the individual's presenting behaviour and their perceived likelihood and severity of the harm.
• these changes will apply to section 2 and 3 and a Community Treatment Order
• people detained under Part 3 of Act are excluded (referred to as forensic patients. A forensic patient is a person who has been found unfit to be tried for an offence and ordered to be detained in a correctional centre.)
• the white paper proposes putting recommendations from Care, Education, and Treatment Reviews (C(E)TRs) for children and Care Treatment Reviews (CTRs) for adults on a statutory footing because C(E)TRs have been proven to reduce hospital admission when they are undertaken correctly and acted upon.
• It also proposes the introduction of a statutory requirement for the Responsible Clinician (RC) to consider the findings and recommendations made as part of the C(E)TRs and CTRs in the patients care and Treatment Plan and that any deviation from the recommendations made in the C(E)TRs should be justified by the responsible clinician.

• give the tribunal the power to grant leave or direct the transfer of people to other, less restrictive settings, to facilitate recovery
• give the tribunal the power to direct services in the community, where this is a barrier to discharge
• health and local authorities should be given 5 weeks to deliver on directions made by the Mental Health Tribunal
• reform Community Treatment Orders (CTO) so that they are only used where there is strong justification for doing so and where the CTO is considered to deliver a genuine therapeutic benefit with more scrutiny once and more rights to challenge
• removal of existing parts of the detention review process, which the review said were ineffective or are compensated for by the above reforms
• removal of the automatic referral to a tribunal when a patient's CTO ends and they return to hospital.

• Only half of the over 2000 people with a learning disability or autistic people currently detained in hospital have support from an Independent Mental Health Advocate.
• The white paper proposes to strengthen people’s legal rights to an advocate, this means; legislating for ‘opt-out’ advocacy so people automatically get support from an advocate when they are admitted to hospital
• Extending the right to an advocate to voluntary patients as is already the case in Wales

• Currently clinicians decide which act (MHA or MCA) to detain people under.
• The independent review and white paper proposal was that that decision-makers would use the Deprivation of Liberty Safeguards (DoLS) or Liberty Protection Safeguards (LPS) and not the Mental Health Act, if a patient:
  • lacks the relevant mental capacity to consent to detention and treatment, and
  • is not objecting to detention or treatment
• If the person was objecting to the admission, the Mental Health Act should be used.
• Following the consultation, however, the Government has decided not to include these proposals in the Bill
• Also, prior consent to be admitted as an informal patient is under discussion to avoid detention under either act
• Emergency use of these acts by Accident & Emergency clinicians is under discussion to avoid the police having to hold people

The Government is currently developing the new Act and has said it will continue to work with stakeholders to refine the proposals, to make final policy decisions and develop a draft Bill.

To prepare councils can:

• ensure services for people with a learning disability and autistic people are aware that the reforms will be implemented in due course
• ensure the Code of practice good practice is implemented locally. The Mental Health Act 1983: Code of Practice has made clear for a number of years that autistic people should only be detained as a last resort.
• consider use of the new Act when using Community Discharge Grant to transform services. See LGA briefing on the CDG.

The LGA continues to speak with the Government to help shape the reforms.

We welcome the Government’s acceptance of the large majority of the independent reviews' recommendations. For the Act to be successful there needs to be an improvement in the care that is provided to some of the most vulnerable people in our society. Along with changes we support the balance of appropriate safeguards but enable greater individual rights and liberties, with individuals having a more active role in care planning with a recovery focus.

Successful implementation will be heavily reliant on additional funding and workforce for mental health services and local authorities. Throughout the process, we will raise the necessity of additional resources to support to implement the new legislation.

The Government has undertaken an impact assessment; it addresses two main areas of new burdens for councils; the reforms/workforce pressures of approved mental health professionals and the increased demand on Independent Mental Health Services commissioned by councils; however, the impact of the policy and costs of the reform related to people with a learning disability and autistic people needs further clarification.

We have highlighted the need for the provision of appropriate post-discharge care and support, especially given the number of people with a learning disability and autistic people currently in inpatient services (of whom there are approximately 2,600 nationally) and those in the community at risk of being admitted to hospital without the right support (of whom there are an estimated 24,000 nationally. 

The proposed reforms align with the national plan ‘Building the Right Support’ and the NHS Long Term Plan to develop community services and close inpatient facilities for people with a learning disability and autistic people who display ‘behaviour that challenges’, including those with a mental health condition.

We support specific interventions to reduce the use of the Mental Health Act for people with a learning disability and autistic people, which are lifelong conditions.

Evidence suggests people in these groups are typically detained because they demonstrate behaviour’ that challenges possibly due to the persons communication, distress or the impact of the environment not being recognised and responded to by the people around the person. We strongly support the proposal to clarify the criteria for detention so that learning disability and autism are no longer grounds for detention on their own, without a co-occurring mental health condition. We are concerned this proposal in isolation will not lead to a meaningful reduction in the number of people detained. In our view, it is primarily the lack of community support rather than the legislative framework that has resulted in continued detentions of people.

The white paper proposes that the detention of people with learning disabilities and autism will remain possible for assessment and where a co-occurring mental health condition is diagnosed. Implementation will need to ensure that that behaviour associated with a learning disability or autism, including coping strategies, is not misinterpreted as a mental health condition and used to justify detention.

A reform of this size will naturally require further expansion of the mental health workforce with an understanding and expertise in supporting individuals with learning disabilities and autism needs. We look forward to the opportunity to influence training on the changes to the Act and supporting meaningful co-production and the development of expert-by-experience leadership roles.