Autonomy and access to justice vital for mental health patients
The draft Mental Health Bill must ensure patients are able to exercise their legal rights and take an equal approach to patients involved in criminal proceedings, the Law Society of England and Wales said today after giving evidence to parliament this week.
Kirsty Stuart, chair of the Law Society’s Mental Health and Disability committee gave oral evidence to a group of MPs and members of the House of Lords this week.*
She made recommendations on how the bill could be improved for patients detained under the Mental Health Act.
Law Society president Lubna Shuja said: “The draft Mental Health Bill sets out proposals which give patients more say over their care. This is necessary to ensure fundamental rights are strengthened.
"The bill provides better options for patients to appeal against being detained in hospital.
“Our priority is to ensure the Mental Health Tribunal (MHT) – which decides whether a patient can be discharged from hospital – has what it needs to take on the additional responsibilities the government is proposing.
“The proposed increase in the tribunal’s powers will add pressure on the legal system and we recommend that when assessing resourcing for the tribunal, the government funds legal representatives and independent mental health advocates.
“Advocates ensure patients’ opinions are heard, that they know their legal rights, and have more autonomy in how they are cared for.
“The draft bill proposes amending the criteria which allow for someone to be detained, so this may only happen if they pose a risk of ‘serious harm’ to themselves or others.
“We believe the amended criteria should also apply to patients who are involved in criminal proceedings. There isn’t sufficient justification for taking an unequal approach.
“We also recommend proposed increases in the frequency a patient can apply for, or be referred to, the tribunal are introduced sooner than is currently planned (2030/31).**
“When the state intervenes in a person’s freedom because of their mental health, fundamental safeguards are essential to ensure that such interference is necessary and proportionate.
“We at the Law Society will continue to monitor the progress of the draft Mental Health Bill and will work to ensure this vital legislation enables patients to have a greater say in their care and ensures the law is applied on an equal basis.”
Notes to editors
The Mental Health Act 1983 is the legislation in England and Wales that sets out when people can be detained and treated for their mental health in hospital against their wishes.
The Draft Mental Health Bill 2022 is committed to reforming the Mental Health Act and improving the way that people with a learning disability and autistic people are treated in law.
In 2021 to 2022, there were over 53,000 new detentions under the Mental Health Act.
* The Joint Committee on the Draft Mental Health Bill will be publishing a report in December 2022. Watch Kirsty Stuart give evidence
** Section 3 patients would be able to apply within three months (currently six months) and automatic referrals to the tribunal would take place – in cases where the patient had not exercised their right to apply – three months from the date on which they were first detained and then every 12 months.
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