The Draft Mental Health Bill 2022

The Mental Health Act 1983 has been through a long process of review. Wessely’s Review was published in December 2018, and the Government White Paper was published in January 2021.

Finally, in June 2022, the Draft Bill has been published.

I’ll just say now that although the Bill states that this will be known as the Mental Health Act  2022, it does not replace the 1983 Act, it merely amends it, in the same way as the Mental Health Act 2007 amended the 1983 Act.

So, how much of the 2021 White Paper has made it into the Bill?

I’m not going to go through the minutiae of the amendments, but I will concentrate on what I would regard as some of the more significant changes. I’ll also look at some of what has been left out.

To begin with, s.1 MHA has been radically changed. There is now a clear differentiation between “autism”, “learning disability” and “psychiatric disorder”, with associated detailed definitions. These are:

“autism” means a lifelong developmental disorder of the mind that affects how people perceive, communicate and interact with others;”;

“learning disability” means a state of arrested or incomplete development of the mind which includes significant impairment of intelligence;”;

“psychiatric disorder” means mental disorder other than autism or learning disability;”.

There is also a new s.1A, defining “appropriate medical treatment”. Appropriate medical treatment must have “a reasonable prospect of alleviating, or preventing the worsening of, the disorder or one or more of its symptoms or manifestations,” and must be “appropriate in the person’s case”.

Going on to s.2, relating to detention in hospital for assessment, the grounds for detention have been significantly changed. They now read:

“(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)

(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, and how soon it would occur, the patient ought to be so detained.”

The grounds for detention under s.3 for treatment are also subject to amendment. There are now 5 grounds:

“(a) he is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital,

 (b) serious harm may be caused to the health or safety of the patient or of another person unless the patient receives medical treatment,

(c) it is necessary, given the nature, degree and likelihood of the harm, and how soon it would occur, for the patient to receive medical treatment,

(d) the necessary treatment cannot be provided unless the patient is detained under this Act, and

(e) appropriate medical treatment is available for the patient.”

There are other significant changes to s.3, in particular the duration of detention has been halved to 3 months initially.

And perhaps most notably, s.3 can no longer be used at all for people with autism or learning disability, unless they also have a psychiatric disorder.

The Government notes that:

This change ... seeks to end the practice of patients in this group being detained under the MHA in unsuitable long-stay wards and is supported by the guiding principle of least restriction.

There is much in the draft Bill concerning autism and learning disability.

There is a whole new Part 8A, relating to people in England (but not Wales, apparently) with autism or learning disability. This introduces a duty to have regular care and treatment review meeting for anyone with autism or learning disability detained under s.2, (and education for children and young people) as well as the preparation of a report setting out the needs identified, and recommendations made, at each meeting,

There will also be registers set up of all people with autism or learning disability who are identified at being at risk of detention under s.2.

There will also be a legal requirement for care and treatment plans for all patients detained under s.2 or s.3.

There are new criteria for the use of Community Treatment Orders, designed to tighten up their use.

Informal patients will now also be entitled to have an Independent Mental Health Advocate (IMHA).

As expected, police stations and prisons will no longer be regarded as places of safety, only a hospital can now be considered a place of safety.

One major, and very welcome, change will be the abolition of the role of the Nearest Relative, to be replaced by the role of Nominated Person.

For a patient of 16 or older, the Nominated Person has to be at least 16 years old, but for a younger patient they would have to be 18 or older.

As well as being consulted for s.2 and s.3, they also have to be consulted when at CTO is being considered.

A patient will have to nominate the person in writing, witnessed by a health or care professional or IMHA, the Nominated Person has to agree to being nominated, both the patient and Nominated Person will have to sign the statement, and both the patient and the Nominated Person have to have the capacity to make the nomination, or to agree being nominated.

There will be a new role for the AMHP, where a patient lacks capacity to nominate a person, and has not previously appointed a Nominated Person. In such a case, the AMHP may themselves appoint a person to act as the patient’s Nominated Person for the purposes of the Act.

In the past, if a Nearest Relative objected to a s.3 or guardianship application being made, then the patient could not be detained, unless the AMHP went to court to have the NR displaced.

Now, an application can still be made, but only if the AMHP produces a report certifying that, in the opinion of the AMHP, the patient, if not admitted for treatment or received into guardianship, would be likely to act in a manner that is dangerous to other persons or to the patient

There appear to be some notable omissions, one being no mention of revision to the Guiding Principles, which it had been recommended should be included in the Act rather that just in the Code of Practice.

There is also no introduction of advanced choice documents – reference in the Bill to advance decisions refer to the Mental Capacity Act.

This is an overview of just some of the main changes proposed to the 1983 Mental Health Act. Most, if not all, the changes in the Bill will be welcomed by professionals involved in facilitating the Act.

However, it has to be said that this is only the first Draft; it will have to be debated by both the Commons and the Lords, and who knows what amendments may be made

The 2007 Act went through many drafts before reaching the Statute books, and was considerably altered in a process that took most of a decade.

 And with the current turmoil precipitated by the defenestration of the Prime Minister, who knows if priority will be given to seeing it through to Statute.