White paper on reforming the Mental Health Act – Law Society response

The proposals

The Mental Health Act 1983 (MHA) covers the assessment, treatment and rights of people with a mental health disorder.

Following an independent review of the Act in 2018, the government published a white paper on Reforming the Mental Health Act in January 2021 laying out key proposals for new legislation.

The white paper looks at the specific legislative changes that arose from the review, and consultation on broader areas will continue as the new legislation progresses.

It recommends making sure that:

  • mental health patients' views and choices are respected
  • the act's powers are used in the least restrictive way
  • there is a therapeutic benefit to detention, to ensure that patients are supported to get better so that they can be discharged from the act
  • patients are viewed and treated as individuals
  • patients are given more opportunities to access justice and challenge decisions made on their behalf

Our view

Solicitors have an important role in supporting vulnerable people subject to mental health legislation to understand their rights and to access justice.

Whilst many of the white paper’s proposals are welcome, these must be carefully thought through and sufficiently backed up by resources in order to be effective in practice.

Therapeutic treatment should facilitate the shortest possible detention and early discharge home for those detained under the MHA, whether they pose a risk to themselves or to others.

However, the white paper proposes arbitrary distinctions between patients who have capacity and those who lack capacity, as well as those who are and are not in the criminal justice system.

This could set a dangerous precedent for different ‘classes’ of people within the same system of mental health services.

Access to justice and the rule of law

It's extremely important that all people who are deprived of their liberty under the MHA can access the courts to challenge the lawfulness of a decision to detain them.

A person who lacks capacity to make key decisions for themselves deserves and should have:

  • greater safeguards to ensure their autonomy is respected
  • support to participate in and challenge decisions
  • access to justice on an equal basis with the wider population

However, the proposals could result in fewer safeguards for people with impaired mental capacity.

People who lack capacity to apply to the Mental Health Tribunal can currently wait up to three years for any judicial oversight under some sections.

We recommend that the proposal for more frequent automatic referrals to the tribunals is prioritised for such patients, as a matter of urgency and ahead of any change in the law.

Meanwhile, the proposal to change how the legislation applies to people with learning disabilities and autistic people may have limited practical impact by itself.

It's important that people with learning disabilities and autism do not simply find themselves detained in hospital under different, and potentially inappropriate, legal frameworks.

Rather, sufficient community-based alternatives, designed to meet peoples’ needs will need to be commissioned to ensure the much needed reforms are successful.

Next steps

We'll continue to engage with the government on the reform process ahead of new legislation at the end of 2021.

These changes are happening alongside changes to the Mental Capacity Act, representing a monumental shift of a highly complex and crucially important legislative landscape, which engages fundamental human rights.

We will also monitor the reforms in Wales for consistency. As health is a devolved matter, but justice is not, the Mental Health Review Tribunal for Wales may seek to implement the same changes but in a different context of health provision.