Thursday, 25 May 2017

What’s in Theresa May’s proposed Mental Health Treatment Bill?

No, it's not Cruella DeVil
It was with some surprise on 7th May 2017  that I heard that Theresa May was announcing that she was “pledging to rip up the 1983 Act and introduce in its place a new law which finally confronts the discrimination and unnecessary detention that takes place too often.”

She went on to say: “On my first day in Downing Street last July, I described shortfalls in mental health services as one of the burning injustices in our country. It is abundantly clear to me that the discriminatory use of a law passed more than three decades ago is a key part of the reason for this.

“So today I am pledging to rip up the 1983 act and introduce in its place a new law which finally confronts the discrimination and unnecessary detention that takes place too often.”

It was stated that "vulnerable people are being subject to detention, including in police cells, unnecessarily", and cited the increase in compulsory detention in hospital as a reason for reform.

It was also announced that there would be new safeguards for people with mental health problems who have capacity to refuse or consent to treatment, so that “they can never be treated against their will”.

Jeremy Hunt added "If you have a child that has severe mental health problems and you find that that child, instead of getting treated by the NHS ends up in a police cell, that is a terrible thing for the child... but it is also very bad for the police as well - we want to stop that."

Intrigued by these announcements, since Theresa May and the Conservative Government in general had not previously given any indication that they had an interest in introducing completely new mental health legislation, I waited to see what further detail there would be in the Conservative Party Manifesto.

Encouragingly, this new Bill was first mentioned on page 4, where a Britain was described “in which burning injustices are tackled and overcome, with the first new Mental Health Bill for thirty years to put parity of esteem at the heart of treatment and end the stigma of mental illness once and for all.”

But it wasn’t then until page 57 that a Mental Health Bill was referred to again. Beginning with a promise to “address the need for better treatments across the whole spectrum of mental health conditions”, the Manifesto goes on to state: 

“We will also reform outdated laws to ensure that those with mental illness are treated fairly and employers fulfil their responsibilities effectively.

“The current Mental Health Act does not operate as it should: if you are put on a community treatment order it is very difficult to be discharged; sectioning is too often used to detain rather than treat; families’ information about their loved ones is severely curtailed – parents can be the last to learn that their son or daughter has been sectioned.

“So we will introduce the first new Mental Health Bill for thirty-five years, putting parity of esteem at the heart of treatment.”

And, er, that’s it. There is no more detail to be found.

My first thought was to wonder why on earth they had decided at this point in time to introduce a new Mental Health Act. My second thought was to wonder how both the Prime Minister and the Health Secretary could display such a large amount of ignorance about legislation, some of it the direct responsibility of the Conservative Government, as well as a lack of understanding about the actual content of existing legislation.

Let’s look at the statements they have so far made.

  • “We will introduce the first new Mental Health Bill for thirty-five years.”

As long ago as 2002 the then Labour Government were promising to introduce a new Mental Health Bill. A first draft was published in June 2002, which among other things contained a controversial proposal that allowed for the detention of people described as having a “dangerous and severe personality disorder (DSPD)”. It also removed a requirement for such patients that treatment “is likely to alleviate or prevent a deterioration" of a patient's condition, which could lead to people with a “diagnosis” of DSPD being detained indefinitely, without having had to have committed any offences supporting their “dangerousness”.

Not surprisingly, as this would almost definitely have breached the Human Rights Act, this part was dropped from future drafts, and the culmination of years of consultation and drafting eventually produced the Mental Health Act 2007, which basically extensively amended the existing Mental Health Act 1983. As well as making changes to comply with the Human Rights Act and to reflect cultural changes (such as recognising same sex partners and civil partnership), this introduced Community Treatment Orders – and Approved Mental Health Professionals. I guess that, on the basis that “if it ain’t broke, don’t fix it” it was considered that a large part of the 1983 Act was still perfectly workable.

So essentially, the current Mental Health Act is 10 years old – not 35 years old (or even 34 years old, since 2017-1983=34). Or even 30 years old. Theresa May and the Conservatives appear to have forgotten the 2007 Act.

  • “A new law which finally confronts the discrimination and unnecessary detention that takes place too often.”

They also appear to have forgotten that the 2007 Act was introduced to make necessary changes to mental health legislation to incorporate changes in case law arising as a result of the necessity to comply with human rights legislation, including discrimination and “unnecessary detention”.

So it seems disingenuous to be suggesting that the 2007 Act does not address this – especially as the Conservative Government were not so long ago keen to abolish the Human Rights Act in any case.

I think AMHPs without exception would consider it insulting to suggest that they habitually detain patients unnecessarily. At the heart of all AMHP practice is the first principle, which is to always seek the least restrictive option.

  • "If you have a child that has severe mental health problems and you find that that child, instead of getting treated by the NHS ends up in a police cell, that is a terrible thing for the child.”

Jeremy Hunt appears to be unaware of the existence of the Policing and Crime Act 2017, which amends Sec.135 and Sec.136 of the Mental Health Act. As well as reducing the maximum period of detention under Sec.135 & Sec.136, this Act also introduces a new Sec.136A, which principally states that “a child may not… be removed to, kept at or taken to a place of safety that is a police station”. It would therefore not only be extremely undesirable for a child under the age of 18 to be detained in a police station, but actually illegal.

The only problem with this is that it has not yet entered statute. This section was due to become law this month – but was delayed because of calling a General Election. While I have heard that there will be plans to enact this in July (assuming the Conservatives are returned to power) I can’t help wondering if it will simply be forgotten once the fallout of the General Election has settled. (Although I am certain that Inspector Michael Brown, OBE, would do his best to ensure that the timetable was adhered to.)

  • New safeguards for people with mental health problems who have capacity to refuse or consent to treatment, so that “they can never be treated against their will”.
  • “Sectioning is too often used to detain rather than treat.”

These two statements appear to contradict each other. Capacity has never been an issue when it comes to making decisions under the MHA, and is never actually explicitly mentioned in the MHA. People may be legally detained, and treated, even if they are deemed to have capacity, but are objecting. I can think of circumstances where a capacitous person may need to receive treatment despite their objection – I am not sure that patients would best be served by making this impossible.

I do not even understand what the second statement means. Detention under the MHA is not just in order to treat; Sec.2 is designed to assess, but no-one would be detained simply to hold them without assessment or treatment in hospital.

  • Families’ information about their loved ones is severely curtailed – parents can be the last to learn that their son or daughter has been sectioned.”

I am again somewhat perplexed by the meaning of this statement. If we are talking about children, then parents are an integral part of the assessment process, and I find it inconceivable, and probably illegal, that a parent with parental responsibility would not be deeply involved in decisions relating to their child.

We must also remember that children can be deemed to have competence in regard to making decisions about their treatment, and that it may contravene their right to privacy in certain circumstances to consult with relatives.

But in any case, the Nearest Relative of a child, with certain well-defined exceptions designed to safeguard the rights of the patient, would by law need to be informed if the patient was detained.

I cannot conclude this analysis without pointing out that at least some of the complaints that Theresa May makes about the deficiencies of the current MHA are not due to any deficiency in the existing legislation, but rather due to cutbacks in services – a loss of a significant percentage of inpatient mental health beds over the last 7 years, as well as the loss of thousands of frontline mental health professionals. Coincidentally, all this during the time the the Conservatives have been in power

This has been compounded by the severe cutbacks local authorities have had to make in providing social care. This includes the withdrawal of funding for voluntary organisations that provide services for people with mental health problems, as well as the rationing of social care that has been a consequence of the Care Act.

You can’t cut back on beds and services that can provide alternatives to hospital admission, and still expect the Mental Health Act to continue to function efficiently.

Of course, Theresa May does recognise that any change to the existing mental health law would be subject to a process of consultation with interested parties. This consultation took over 5 years when the 2007 Act was being drafted. So there may be no change to existing law within the lifetime of the next Parliament.

Of course, a lot depends on what happens on 8th June.


  1. Interesting post. I think that the section about capacity should not be dismissed. To repeat, it states,

    "New safeguards for people with mental health problems who have capacity to refuse or consent to treatment, so that “they can never be treated against their will”.

    I was surprised to see this statement as generally Governments tend to emphasise the supposed risk to the public by people with mental health problems. This promise would therefore seem to be in line with what many mental health activists have been calling for for some time. It would also tie in with calls for a more capacity based system by academics such as George Szmukler on the grounds that it would allow for law in line on the UN Convention on the Rights of People with disabilities.

    This also reminded me that we have had similar discussions previously when the Government asked the Richardson committee to review mental health law in 1998. The committee had argued that if compulsion was used then a right to treatment and services should follow - a recommendation the new Labour government rejected.

    This debate will be worth watching. Let's hope that a more rights based system is considered within the next parliament.

  2. very interesting and more human and near to heart. In developed nations like UK, USA, the mental diseases are first found out, treated, given prominence and jobs also both in government and private. In India also, after Modi ji,has come to power he has changed mental helth act and given room for the sufferers. The world population becoming too much, all sorts of physical, mental illness are increasing. God only has to save.

  3. Good Post. You are right to point out that the current Act was quite recently.

    There are some safeguards for people who are receiving certain treatments under the MHA. I think it also depends on how you define someone having capacity. For me the key thing with people who have mental illness is that they do not fully accept that there are (or may be) ill. They can understand, retain and communicate but do not weigh the information well as they do not accept that the professionals and often their families think that they are ill (and there is treatment that should work).

    I think it would be great to see a right to have treatment / support as well as a right to refuse it.

    With regard to discrimination and thinking of employment - offering positive support to employers and employers to help them make adjustments would be good if that is not already available. Locally we did have an employment service in the mental health trust but I think they are long gone.

    Guy Soulsby AMHP

  4. My worry about this is that it has already been done in Northern Ireland , The Mental capacity Act (Northern Ireland)> the key change seems to be giving people the right to refuse treatment if they are assessed as having capacity using the current capacity assessment in the MCA. My very real fear is that people with non psychotic ( and even psychotic) illnesses, will pass the capacity assessment and refuse treatment, even people with depression will refuse treatment for a whole range of reasons, all driven by the illness. I have a friend who at her most ill really believed that she didn't deserve to live and that everyone would be happier if she was dead. Already anecdotally I hear 'having capacity' used as a reason not to detain people diagnosed with a personality disorder...... I would love to read your opinion on the northern Ireland Act

  5. Thanks for an excellent article. My experience as a practising psychiatrist and Mental Health Tribunal Member is that it's uncommon for people to be inappropriately detained: very often the the problem is that people who are relapsing are not detained quickly enough, but are left to deteriorate, leading to escalating risks, much distress for their carers/ families, and a need for longer admissions because people have become more unwell by the time a bed is found for them. This is often because of an inadequate number of inpatient beds. The disproportionate number of detained people from BME backgrounds is to some extent explicable by the difficulty they experience in accessing services earlier in the course of their illness - again, a reflection of chronically underfunded and inefficiently managed services overseen by this and previous governments. It's also common for recovering people to be discharged prematurely due to pressure on beds, only to be readmitted in a revolving-door pattern.

    The Conservatives' statements seem to contradict the fact that it is difficult to get the MoJ (i.e. the Conservative government) to agree to conditionally discharge restricted patients - usually one has to rely on the Tribunal to do this. The MoJ's reports to tribunals are invariably and predictably over-cautious and recommend continued detention!

  6. I personally welcome the idea of not forcing people with capacity to undergo IP treatment when they do not want it. My daughter's distressing experience was that professionals took 'Best Interests' decisions even though there was no hard evidence to say she was still losing weight and they had failed to make reasonable adjustments to treat her (an autistic woman with debilitating social anxiety) in a community setting. The MH team acted underhandedly and, without giving her any notice of their intentions, got us to take her to a locked hospital ward under false pretences and then made it clear she would be sectioned if she did not agree to informal treatment. She was terrified. She was on a medical ward where she was de facto detained as an informal patient i.e. under 1:1 agency RMN observation, 24 hours a day, and doctors prevented her from leaving the ward. When a bed came up out of county in a specialist ED unit she was told she would be assessed under the MHA if she did not agree to go. Every rule that existed about good practice was broken. This was just 10 week after the (questionable) anorexia diagnosis. She didn't even meet the HA's own anorexia Care pathway criteria for IP treatment. Her admission to a medical ward proved harmful - she went from a position of having successfully maintained her weight for two months (without any medication, nutritional supplements, or care plan in place) to losing 4lbs in hospital as she was so embarrassed being observed using the toilet. Her experience was truly dreadful and because we were supporting her in her wish to be treated in the community MH staff were looking into displacing us as her NR. This all happened last year: she self discharged as soon as she could without fear of being sectioned. We now have no option other than to support her through private practitioners. Worst part for me is that I used to be a social worker. I simply cannot believe MH 'professionals' acted as they did. And yes I would like the law changed. My daughter has ARFID not anorexia. Its not unknown in people with autism. I don't doubt some people are very ill and need to be detained but honestly... 10 weeks after an AN Dx? And to de facto detain her when she has no history of self harm or violence, and did not meet their own IP Care pathway criteria? Truly dreadful situation I would not wish on my worst enemy.