The Mental Health Bill 2024

We finally have a Bill to read!

Some eight years after (then) Prime Minister Theresa May asked Professor Sir Simon Wessely to review the Mental Health Act 1983 (MHA), we can now read the Mental Health Bill 2024 which will begin its journey through Parliament. Professor Ginerva Richardson, who chaired the previous, 1999 review of the MHA attended the first meeting of Professor Wessely’s review group in 2017 and warned us all it took eight years to see the Mental Health Act 2007 make certain amendments to the 1983 Act so we had best brace ourselves for the long haul and here we are: seven years later a Bill which will now begin it’s journey so it will be a minimum of eight years before it can become the Mental Health Act 2025, as the Bill suggests it will.

That having been said, once Royal Assent is given, the Act itself does not commence immediately – some parts are planned to take effect two months after Royal Assent, others will requirement commencement orders in the House of Commons, so we should remained braced and vigilient!

And so what does it say? … and more importantly, what does it not say?!

Well, firstly it doesn’t say all of that what the Wessely Review recommended it should say, that’s for certain and I have to admit to thinking that’s a shame. Some good stuff has been left out or watered down such as the idea the MHA should have statutory principles, like the Mental Capacity Act does. The suggestion of this has been pushed in to the Code of Practice for the Mental Health Act when it is reviewed, as I’m expecting it will be to accompany a new Mental Health Act 2025.

SECTIONS 2 and 3

One of the bigger issues – Professor Wessely had recommended the timescales for detention under these sections be changed. It will remain the case for s2 MHA admission you can be held for up to 28 days for assessment but s3 MHA admission is changing. Currently, it is for six-months in the first instance for treatment, renewable thereafter for six months, then twelve months ad finitum. Soon, the first detention will last only three months, and the first renewal a second three months. The second renewal will will give six months and the twelve month blocks ad finitum.

The bigger change to these sections might be the wording around the risk the Act attempts to manage. We currently hear about patients being “sectioned” (whatever that means) if –

(a) he is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; and

(b) he ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons.

We will now have –

(b) serious harm may be caused to the health or safety of the patient or of another person unless the patient is so detained; and

(c) given the nature, degree and likelihood of the harm, the patient ought to be so detained.”

These are the words from the current and the proposed section 2 MHA – it’s all very similar for section 3, but I won’t write it all out. You can read it if you need to … it just contains the word ‘treatment’, not ‘assessment’ and contains a few extra words about the treatment needing to be available – see clause 5 for more details.

RISK THRESHOLDS

You’ll notice the wording above now talks about “serious harm” being a threshold to be considered and you’ll notice that this means the MHA will not be there for a risk of non-serious harm. What is the difference, you might quite reasonably wonder between non-serious harm and serious harm? And does this mean patients at risk of harm will not be “sectioned”

In short, we don’t know yet and “probably”, I suspect … I can just imagine the discussions ongoing in psychiatry and AMHPing about how that distinction will be struck in practice. One the one hand, almost all mental health assessment involves professionals trying to understand a risk of harm and plenty of patients who are cared for in community settings and not admitted are still at risk of harm and it’s a whole other debate about risk assessment and risk management in mental health. Other areas of law do impose “seriousness” thresholds on risks and expect agencies to manage them – the police do this routinely. Public order laws do allow what some would no doubt describe as a ‘crackdown’ on certain protests if there is a risk of “serious disorder”, “serious disruption” and even “serious damage”, accepting that protest does involved creating an element of disorder, disruption and even damage which should be, to an extent, understood. I would imagine the discussions in mental healthcare about this new threshold will be similar.

And it is requiring assessment of likelihood for the first time: how likely is the serious harm because we know that varies by context. I know some of the debates in psychiatry have wondered whether this term now means a “lifting of the bar” for how unwell / risky a patient must be to be “sectioned”?

AUTISM AND LEARNING DISABILITIES

There was considerable debate in Professor Wessely’s Mental Health Act review about the application of the Act to autism and LD – and here we have legislation which will mean both groups of conditions are removed the scope of s3 MHA (detention for treatment).

This one was always contentious because the history of autism and LD inpatient detention (I won’t call it care) has been the stuff of scandals for decades – often of limited therapeutic benefit, situations of criminality and human rights abuses (Winterbourne View / Wharton Hall), the whole situation is in dire need of change. But this Bill, whilst removing autism / LD from the scope of s3 MHA, tells us nothing about how the Mental Capacity Act might change or be used instead and it doesn’t remove autism / LD from the scope of Part III of the Mental Health Act – the criminal justice provisions.

So where someone in the community is a risk to themselves or others and perhaps has already had periods of admission under s2 MHA, there will be no option for clinicians to further detain under s3 MHA – so what happens instead. I’d voiced before, during the MHA review, that this will no doubt led to calls to the police and requests for criminalisation

PRISONS AND POLICE STATIONS

For all that’s within scope of this Bill and missing from it, the BBC chose to lead their news coverage with the headline of prisons and police stations being removed from the definitions of a “Place of Safetey” (PoS) under the Act. Welcome as this is, it gets immediately on to the topic of resources because we have nowhere near enough mental health unit PoS facilities as we’ll need to cope with this without having to dump on Emergency Departments as we currently do around 42% of the time and only some of that is because the patient needs ED attention first, before MH assessment. Few people realise prisons can still act as a PoS – albeit only for patients admitted to hospital via the criminal courts, but it’s still barbaric to think you can be held in a prison or police station for up to 28-days under current law. I did once have a custody officer from a northern police force ring me and ask, “Sir – what the f*ck is section 55 of the Mental Health Act?! I’ve got a judge telling me to hold someone in police custody for a month!” Yes, really.

I have done a specific post to set out the wording of the proposed sections 135-136

Also for prisons, we need to think about transfers under sections 47 and 48 MHA – where someone in prison (or immigration detention) is deemed to require hospitalisation under transfer, there will now be a 28-day legal limit of moving them from one estate to the other. Highly ambitious – we now someone judges have complained of prisoners waiting 9-months or more for transfer, quite simply because there aren’t enough beds in secure mental health units so whilst most people probably welcome that idea that if someone in prison needs to go to hospital it happens within a timescale, that can only be met if there are resources to which someone can be transferred so I’ll be interested to see how quickly this amended provision kicks in bearing in mind some psychiatrists between 8-15% of prisoners could be admitted to hospital under the Act.

CTOs and DISCHARGE PLANS

The effectiveness of community treatment orders has been debated for years and some research suggests they make little difference in the end, but many clinicians are a fan and it makes some kind of intuitive sense. If a section 3 (or section 37) patient is to be discharged and there is a risk of them disengaging from treatment or doing other things which might compromise their care and safety after discharge, an Approved Mental Health Professional along with the hospital and community psychiatrists can consider a CTO. This may impose certain kinds of conditions on the patient after discharge (residency, medication, drug / alcohol testing, etc.) to ensure oversight of them staying safe and not relapsing. A few years back, there were in the region of 5,000-6,000 such patients at any given time and the CTO patient can be recalled to hospital relatively easily if things start going awry – no need for a full MHA assessment (but there is still the need for a “bed”, which is often a barrier and a source of problems and improvisations. The amendments to CTOs are not extensive, essentially requiring greater consultation before authorising one and before recalling somebody from one, so I’m left a little unclear how this fixes whatever the Government thinks the problem is.

You may also remember, after the 2024 General Election, the new Secretary of State for Health, Wes Streeting, made comments about not moving too quickly on Mental Health Act reform and this was in the aftermath of the CQC Valdo Calocane report in to Nottinghamshire Healthcare. Well, one thing we see in the new Mental Health Bill (clause 32) is a requirement for responsible clinicians or RC (hospital psychiatrists, usually) to consult with a another professional before ordering the discharge of a patient from s2 or s3 detention. You will remember, there was concern expressed by the CQC about Calocane’s discharge and let’s be fair: his is far from the first case where reviews have expressed this concern – the wording of clause 32 doesn’t appear to obligate the RC to do anything differently, but at least it requires a further scrutiny of the decision?

MISCELLANEOUS

You’ll notice there is nothing in here about creating powers in Emergency Departments (which actually wasn’t in the Wessely Review itself but it did emerge in the (then) Government’s White Paper – the idea of creating a “section 5” type holding power in Emergency Departments to allow them to stop people leaving without having to call the police or wait for the police to arrive. It caused a big old debate, largely because EDs do not want to enter the coercion business (even though much of medicine is coercive in nature) and we’ve ended up in the position where after these proposed amendments, we will still have a position where someone at risk of walking out and hurting themselves lead to tortuous debates about “common law” and the Mental Capacity Act whilst some is frantically ring the police to ask if officers could come and use s136 MHA on the patient.

So that will stay entirely chaotic, as it already was even before RCRP where the police began to decline to attend situations where patients at risk of death or serious harm had left hospital. It’s worth remembering, the grounds for using s136 are nowhere near the threshold of RCRP triggering a police response, so there are obvious problems to anticipate there.

Section 140 MHA is unmentioned in the Bill – despite it coming in when pressure on inpatient mental health beds is at its worst and after years of section 140 being more honoured int he breach than in the observance. I’ve done a few more FOIs about s140 MHA in recent months – you just get ignored by ICBs now, they’re not even trying to pretend to take it seriously.

Revision of section 35 MHA is unmentioned which I have to acknowledge is a personal disappointment to me because I asked Professor Wessely to think about this provision. He kindly invited me to complete a short paper to summarise the suggestion and he included suggested revision in his Review. I remain grateful for being able to influence the review in that small way and the previous government did propose revision in their White Paper but it didn’t make it in to either the 2022 or, now, the 2024 Bill. What a shame – it means we will have to keep imprisoning seriously mentally ill people who need to hospitalised, thus creating more pressure on the prison system and hospital transfer process. I’ll blog about this suggestion to explain more detail.

MISSED OPPORTUNITY

We could say more on the new Bill … but that’s enough for now.

Suffice to say, none of this really matters anyway unless you put resources in to making things work. The Bill is a diluted form of Professor Wessely’s review and such changes as it is making are pushing in the opposite direction from the objectives set for him by Theresa May, to reduce inequalities and criminalisation which are doubly likely to affect those of us from black backgrounds and which was a particular sub-group and sub-theme of the review. Re-read all of the above from the point of view of being black and you’ll see these changes could so very easily affect you disproportionately.

What a shame – because I doubt the Act will be reviewed again in my lifetime.

Winner of the President’s Medal, the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award

All opinions expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2024.
I am not a police officer.

I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current. Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.

Government legislation website – www.legislation.gov.uk