Get in on the Act: Mental Health Act 2022

In June 2022 the government published the draft Mental Health Bill.

The Bill is currently going through parliament and has completed the Joint Committee Inquiry stage. The Joint Committee has published its report. It has recommended the Bill must be strengthened to address rising numbers detained under current legislation and tackle unacceptable and inexcusable failures on racial inequalities.

Key recommendations to Government include:

• Creation of a new statutory Mental Health Commissioner post
• The Principles underpinning the 2018 Review and respect for racial equality should be included in the Bill
• Health organisations should appoint a responsible person to collect and monitor data on detentions under the Mental Health Act (MHA), broken down by ethnicity, with annual figures published by Government, and to implement policies to reduce inequalities
• Community Treatment Orders are used disproportionately for black and ethnic minority patients and should be abolished for the majority of patients, except those involved in criminal proceedings or under sentence where their continued use should be reviewed
• Strengthened duties for Integrated Care Boards and Local Authorities to ensure adequate supply of community services for people with learning disabilities and autistic people to avoid long-term detention
• Patients detained or previously detained under the MHA should have a statutory right to request an advance choice document is drawn up

The Government will now consider the Committee report.

Councils have several existing statutory duties under the Mental Health Act 1983 and will continue to have responsibilities under the new Act. The current existing responsibilities for councils are: 

• statutory duties to provide social care to support people experiencing mental health problems. Section 117 of the current Mental Health Act requires councils, along with the NHS, to provide after-care services and support to some people moving out of hospitals. Councils also have wider Care Act responsibilities for all those affected by mental distress.
• they employ Approved Mental Health Professionals (AMHPs) who work carry out a variety of functions under the MHA. One of their key responsibilities is to make applications for the detention of individuals in hospital, ensuring the MHA and its Code of Practice are followed. It is the AMHP’s duty, when two medical recommendations have been made, to decide whether or not to make the application for the detention of the person who has been assessed under the MHA, sometimes referred to as sectioning. This includes considering the correct legal frameworks , including alternatives to admission, ensuring that the patient is involved, and identifying and involving their nearest relative.
• councils are responsible for commissioning advocates to help people express their views and to represent their interests.
• duties to authorise deprivation of liberty under the current Deprivations of Liberty Safeguards (DOLS) scheme and the forthcoming Liberty Protection Safeguards (LPS) scheme.

The draft Bill contains a number of amendments to the Mental Health Act 1983 which would bring in the following changes:

• autism and learning disability would not be considered to be conditions for which a person could be subject to compulsory treatment under section 3. Detention for people with learning disabilities and autistic people under the new Act is expected to decline.
• changes to the criteria for detention by setting out two new tests with a higher risk threshold
• a new definition of “appropriate medical treatment” to require that the treatment must have a reasonable prospect of alleviating, or preventing the worsening of, the patient’s mental disorder
• a new duty on the clinician in charge of the patient’s treatment to consider certain matters and take of steps when deciding whether to give treatment to a patient under Part IV of the Act
• A higher threshold and new expectations for the clinician responsible for overseeing the patient’s care as a community patient, to be involved in decisions regarding the use and operation of the Care Treatment Order (CTO)
• a new power for the Mental Health Tribunal to recommend that the Responsible Clinician reconsider whether a particular CTO condition is necessary, in cases where the Tribunal has decided not to discharge a person from a CTO
• a new statutory role, the nominated person to replace the current Nearest Relative role in the Act
• although section 2 detentions will still last for up to 28 days, the first period of section 3 detention will be reduced from six to three months
• extend the amount of time patients can apply to the Mental Health Tribunal and make automatic referrals more frequent
• a new power of ‘supervised discharge’ and a statutory 28-day time limit for the transfer of a person from prison to hospital for treatment under the Mental Health Act
• expand access to an Independent Mental Health Advocate (IMHA) from only those detained under the Act, to voluntary (or ‘informal’) patients and a statutory duty on hospital managers to supply information on complaints procedures to detained patients and their Nominated Person
• powers to allow Mental Health Tribunals to make recommendations to the “responsible after-care body” to make plans for the discharge of a patient at a future date
• reforms to the identification of which NHS body and local authority is responsible for arranging the after-care for a patient in the community
• reversal of the burden of proof, so that the local authority responsible for the guardianship must prove that the patient continues to meet the guardianship criteria in Mental Health Tribunals
• removal of prisons and police cells from places of safety
• prevention of the remand of a person for their own protection when the concerns arise from their mental health needs.
• Transfer of patients from Crown Dependencies into England and Wales for reports and treatment.

Implementation of the Mental Health Act 2022 is staggered over time, with first duties to be introduced in mid-2024/2025. The first duties to be introduced include the new detention criteria, including for people with learning disabilities and autism, Nominated Person, and automatic referral of formal patients to Independent Mental Health Advocacy (IMHA) services.

The estimated commencement dates of Mental Health Act powers are on Page 14 of the Impact assessment.

In 2017 the government commissioned an independent review of the Mental Health Act 1983 (MHA), to look at how it was used and to suggest ways to improve it.

The purpose of the Independent Review was to understand:

• the rising rates of detention under the Mental Health Act;
• the disproportionate numbers of people from black, Asian and minority ethnic groups (BAME) in the detained population; and
• investigate concerns that some processes in the Act are out of step with a modern mental health system.

It also considered how the Act could better meet the needs of people with a learning disability, or autism or people with serious mental illness within the criminal justice system.

The review’s final report published in 2018 said that the Mental Health Act does not always work as well as it should for patients, their families, and their carers. They recommended greater safeguards and a greater respect for wishes and preferences and changes to accountability, challenges, and transparency.

The review noted that the recommendations need to be seen in the context of wider investment in, and reform of, services for people with severe mental illness, learning disability, and/or autism. And that compulsory treatment must be a last resort which places an additional responsibility to ensure the quality of services is high.

In 2021 in response to the review, the government held a formal White Paper consultation on reforming the Mental Health Act. The LGA made a formal submission to the Consultation. In August 2021, the Government published its response to the consultation. This proposed supporting most of the independent review recommendations and stated that they will develop a new Bill to reform the Mental Health Act.

The review recommended four principles to be put into law to underpin the new Mental Health Act, these are:

In practice, suggested changes to the Act include introducing Advance Choice documents to enable people to set out in advance the care and treatment they would prefer, extension of the choice of Nominated Person, detention only if suffering from a ‘mental disorder’ that can be treated in hospital, reduction in Section 3 treatment order time limits, new care and treatment plans, more frequent tribunal access and a reduction in Community Treatment Orders.

In June 2022 the government published the draft Mental Health Bill.

In their submission to the Joint Committee Inquiry in October 2022 the LGA and Association of Directors of Adult Social Services (ADASS) made the following points.

1. The LGA and ADASS support the reform of the Mental Health Act to improve choice and autonomy, ensure least restriction, support therapeutic benefit, and promote the rights of the individual.
   
    
2. The Bill Impact Assessment does not identify any increase in demand of community mental health services, aside from advocacy. To achieve this reform successfully, it will require investment in both Voluntary Community and Social enterprise (VCSE) and local authority community mental health services. This is particularly important as statutory local authority adult mental health services and much of the VCSE mental health provision is funded from the social care budget.
   
    
3. Local authorities require sufficient funding to invest in early intervention and prevention services to reduce the increasing mental health needs among children and young people. Sometimes young people will require more specialist support. Funding is required to ensure that they can be supported in their communities with specialist services and a trained workforce that can respond to their needs.
   
    
4. Such an investment in mental health must go beyond the traditional areas of ‘treatment’ provided by NHS colleagues and recognise the role of councils and the VCSE sector, in supporting a wide range of people whose mental health impacts on their ability to manage life effectively or compounds the other challenges they face.
   
    
5. The Bill will require a clear implementation programme with funding to ensure the workforce is prepared effectively, and availability of a range of community mental health services to ensure options for local person-centred care and support are available. This is currently not addressed in the Bill’s impact assessment.
   
    
6. The LGA and ADASS recommended that the Department of Health and Social Care (DHSC) Mental Health Act policy team and the DHSC Mental Capacity Act/Deprivation of (DoLS)/ Liberty Protection Safeguards (LPS) policy team work together to develop solutions to ensure there is no loss of safeguards for those individuals and to reassure the sector on these matters. The LGA have published information on the Mental Capacity Act including DoLS and LPS.
   
    
7. The LGA and ADASS will continue work with DHSC to shape the Act going forward. Particularly areas where the legislation and associated guidance reflect the role and responsibilities of councils in statutory mental health and where there may be new financial burdens for councils in implementation of the Act.
   
    
8. The LGA will continue to argue for sustainable funding for local government statutory and non-statutory mental health services, so they are on an equal footing with NHS clinical mental health services, to meet current, unmet and new demand in the community. The proposals place significant reliance on community services to support and safeguard people who under current legislation may be detained in hospital. To achieve this ambition successfully, it will require investment in local authority community mental health services.