Reform of the Mental Health Act: Do the proposals go far enough?

Stephen Hinchley 19 January 2021

Reform of the outdated Mental Health Act has moved one step closer with the publication of the government’s long awaited white paper. The white paper responds to the findings of the 2018 independent review of the Act. In this blog, Stephen Hinchley shares some initial reactions to the proposals, which have the potential to dramatically change the lives of those who experience mental ill health and spend time in hospital or on community treatment orders.

Last week, the government shared its proposals to reform the Mental Health Act. And reform is urgently needed. 

We have known for too long that people do not consistently get the therapeutic support they need when they are in hospital for mental ill health. Current legislation does not mirror the understanding we have about mental health conditions and how best to support people who are experiencing mental ill health.

The independent review carried out in 2018 found a clear case for reform of the Act: 

The rate of detention is rising; the patient’s voice is lost within processes that are out-of-date and can be uncaring; there is unacceptable overrepresentation of people from black and minority ethnic groups amongst people detained; and people with learning disabilities and or autism are at a particular disadvantage. We are also concerned that we are out-of-step with our human rights obligations.”

Some parts of the mental health system are not just poor but downright awful. The abuse uncovered at Winterbourne View, Whorlton Hall and, most recently, Yew Trees all had something in common. These hospitals were for people with learning disabilities or autistic people who were detained under the Mental Health Act and where a culture of abuse and neglect had taken hold. Too many times, we have said never again’. A reformed Mental Health Act will not be transformational on its own but a legal framework that places people’s rights front-and-centre would be a major step forward. 

So what do we know about the proposals so far? 

Detention in hospital must bring about a therapeutic benefit”

The white paper heralds a welcome and overdue change to the grounds on which somebody can be detained and also offers greater protection of their human rights if they are detained (also known as being sectioned). It proposes to change the criteria for detention so that care and treatment must bring about a therapeutic benefit”. People will also have more influence over their care and treatment including through: 

  • advance choice documents setting out preferences in the event of detention
  • statutory care and treatment plans including how wishes and preferences have been taken into consideration and the rationale where not
  • enhanced role for the Mental Health Tribunal with a new route to challenge treatment where choices have not been followed

Taken together with other proposals in the white paper, this is a significant shift towards supported decision-making by individuals and away from substituted decision-making by medical professionals, which has been the dominant approach of the last 300 years.

More rights: but will people have support to understand and exercise them?

Whilst the government proposes additional rights when subject to a reformed Mental Health Act, worryingly the white paper lacks funding commitments for the services that would ensure people understand what their rights are, how to exercise them, and how to effectively challenge if their rights are being denied. 

The independent review recommended that people who are in hospital voluntarily should also have the statutory right to an advocate, just like people who are sectioned. It also says that advocacy should operate on an opt-out basis, so people can more easily get the support they are entitled to. Too often, those most in need of support or those whose rights and wellbeing are most at risk find it harder to ask for advocacy and so are in danger of missing out on the support of an advocate. This may be because they are held alone in seclusion, subject to the harshest restraint, or because they need additional support to understand their right to an advocate.

It is very concerning that the expansion of the right to advocacy envisaged by the independent review, and broadly accepted in the white paper, is subject to future funding decisions”. This leaves a huge cloud of uncertainty over how people will be supported to exercise their voice and rights under a reformed Mental Health Act. Future legislation must provide enhanced rights to statutory advocacy as absolutely integral to delivering on the government’s stated intention of empowering individuals and increasing patient voice.

Disproportionate detention of black people

In examining the continued disproportionate detention of Black people under the Mental Health Act, the independent review concluded that we have to accept the painful reality of the impact of that combination of unconscious bias, structural and institutional racism, which is visible across society, also applies in mental health care”. The statistics bear this out and are stark. Black people are over four times more likely to be detained, more likely to be subject to restraint whilst in detention and over ten times more likely to be subject to a Community Treatment Order. 

The government’s proposal to launch a pilot programme of culturally appropriate advocacy is welcome and it will be crucial for government and advocacy organisations to learn from the pilots to make sure Black, Asian and people from minority ethnic communities get the quality advocacy support that they are entitled to. However, this is only one element of what will be needed in order to properly address these unacceptable disparities. The government needs to address the wider social determinants of mental ill health, as set out recently by the Commission for Equality in Mental Health, and ensure culturally competent support and care across all mental health care.

End warehousing” of people with learning disabilities and autism under the Act

The independent review described the long-term warehousing of patients” with learning disabilities and autism under the Mental Health Act and how their experience of detention is often traumatic. Proposals to give Tribunals new powers to request care and support in the community should help people leave hospital when they shouldn’t be there and where support in the community would be much better for them. Other specific proposals include:

  • new duties on the NHS and councils to ensure availability of community services for people with a learning disability and autistic people 
  • limiting the scope to detain people on the basis of a learning disability and/​or autism 
  • recommendations of a Care and Treatment Review (for an adult) or of a Care, Education and Treatment Review (for a child) to be incorporated into the new care and treatment plans if they are detained

Initial reactions to the white paper have highlighted the risk of unintended consequences with the potential for greater use of the Mental Capacity Act to deprive people of their liberty rather than the Mental Health Act. The interaction between these two pieces of legislation needs to be investigated further to make sure potentially positive steps in one area are not offset or made worse by the inappropriate use of another piece of legislation.

A new Mental Health Act for the 21st century

This public consultation on a new Mental Health Act is a once in a generation opportunity to strengthen the rights of people who are in hospital because of mental ill health. It’s impossible to cover all the white paper’s proposals in this blog but over the coming months, VoiceAbility will be working together with people who have first-hand experience as a mental health in-patient, as well as our expert mental health advocates, to respond comprehensively to the government’s public consultation which runs until 21 April 2021. If you have any thoughts or comments on what we should include, please do get in touch.