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Mental Health Act reform: one step closer

Stephen Hinchley 22 July 2021

There should be a right to advocacy based on an opt-out approach. A person who is significantly unwell needs the services of someone who sees things from their perspective and understands their rights. We regard this provision as essential.

Independent review of the Mental Health Act, December 2018

VoiceAbility’s Stephen Hinchley reflects on the government’s formal response to the public consultation on reforming the Mental Health Act.

Last week, the government published its formal response to the public consultation it held earlier this year on reforming the outdated Mental Health Act (you can read our consultation submission here).

This reform is taking place in an international context where the use of coercion in mental healthcare is increasingly being challenged. According to the Commissioner for Human Rights at the Council of Europe, Dunja Mijatović, the ultimate goal must be to replace institutions and a coercion-based mental health system by a recovery and community-based model, which promotes social inclusion and offers a range of rights-based treatments and psychosocial support options”. The World Health Organisation also recently called for healthcare services to find ways to support people without resorting to coercion” and respect people’s choices and decisions regarding treatment and care”.

Detention of people with a learning disability and autistic people

One of the most pressing challenges for government is resolving the scandal of thousands of people with learning disabilities and autistic people being detained for years on end without therapeutic benefit and in conditions that are harmful and abusive. Many reports over many years have described what needs to change and one of the key issues for this reform is how people with a learning disability and autistic people are treated under the Mental Health Act. 

The government has now confirmed that they will change the law so that people with a learning disability and autistic people will not be detained, beyond an initial assessment period, unless they have a mental health condition. This is a welcome step forward and we called on government to make this change in our consultation response. However, the government have also recognised that this may have unintended consequences. For example, it may increase the risk of detention under the Mental Capacity Act or more people might be pushed into the criminal justice system. 

As well as legislative reform, investment in community services will be vital if the proposed changes to the Mental Health Act are to be successful and genuinely deliver the support people need to live their lives fully and with greater autonomy and control over the decisions that affect them. These concerns, and many others, will need to be addressed by government in the coming months, if people with a learning disability and autistic people are to get the support they deserve rather than facing the threat of inappropriate detention because of the lack of services available in the community. 

More influence over care and treatment

The government’s proposals will not remove the possibility of compulsory treatment for people detained under the Mental Health Act but they are seeking to reduce the use of compulsory treatment and to give people more rights and influence over their care and treatment. 

We welcome the government’s confirmation that it will introduce requirements for healthcare staff to give greater weight to people’s preferences, including through Advance Choice Documents, and also enhanced rights to challenge detention and treatment through the Mental Health Tribunal. The detail of how these rights are enshrined in law and implemented in guidance will determine whether this a genuine shift to more person-centred healthcare. 

Stronger rights to advocacy still uncertain

The support of an Independent Mental Health Advocate (IMHA) is often crucial for people to be able to exercise rights in practice. Advocates are there to help people express their wishes and make their voices heard when it matters most. We therefore welcome the government’s confirmation that the role of IMHAs will be enhanced, which received overwhelming support in the public consultation.

The independent review of the Mental Health Act made two key recommendations on advocacy. It recommended that advocacy should be:

  • available on an opt-out’ basis - where people automatically get referred for support from an advocate, rather than having to ask for one, but can still choose to opt-out
  • available to voluntary patients’ - so also available to people who are in hospital voluntarily but who can still be subject to restrictions and at the moment do not have the legal right to an advocate

The government must confirm that these proposals will be included in their entirety in its reform of the Mental Health Act.