This briefing outlines the background to the proposed reform of the Mental Health Act 1983, including the independent review of the act, white paper, draft bill and pre-legislative scrutiny.
The Mental Health Act applies in England and Wales only There are separate statutory provisions covering Scotland and Northern Ireland.
This briefing uses the term ‘patient(s)’ to mirror the language used in legislation and to distinguish between people who are in a mental health hospital (and people subject to community treatment orders) and people who are engaging with primary or secondary mental health services in the community.
Forthcoming Mental Health Bill
The King’s Speech 2024 included a commitment to legislate to modernise the Mental Health Act.
The accompanying briefing notes to the King’s speech highlighted concerns about increased rates of detention under the act and its application to autistic people and people with a learning disability. It also noted that Black people are three and a half times more likely to be detained under the act than White people and over eight times more likely to be placed on a community treatment order.
The notes said the bill would bring in amendments to the act “to give people detained greater choice and autonomy, enhanced rights and support, and ensure everyone is treated with dignity and respect throughout treatment”. This would be achieved through steps such as:
- increasing the risk threshold for detention
- limiting the application of the act to people with a learning disability and/or autistic people
- adding statutory weight to the voice of patients.
The reforms would take a number of years to implement and would be introduced in phases. New powers would not be introduced until there were sufficient staff in place to ensure safety.
Draft Mental Health Bill
In June 2022, the 2019 Conservative government published a draft Mental Health Bill. It contained proposed amendments to the Mental Health Act 1983, including:
- Redefining “mental disorder” so autistic people and people with a learning disability could not be detained for treatment under section 3 of the act without a coexisting psychiatric disorder.
- Raising the threshold for detention and reviewing the need for detention more frequently.
- Replacing the nearest relative with a nominated person, chosen by the patient.
- Placing care and treatment plans on a statutory footing for detained patients.
- Expanding access to advocacy services.
- Removing prisons and police cells as places of safety.
- Introducing a statutory 28-day time limit for transfer from prison to hospital.
Pre-legislative scrutiny of the draft Mental Health Bill
A joint select committee scrutinised the draft bill from July to December 2022 and published its report in January 2023. The committee said it supported reforming the act, but the government should strengthen the bill to address rising detention rates and racial inequalities.
Examples of recommendations made by the committee include:
- introducing a new statutory Mental Health Commissioner role
- abolishing community treatment orders (CTOs) for most patients
- introducing statutory advance choice documents (ACDs).
Government response to scrutiny of the draft Mental Health Bill
The government published its response to the joint committee’s report on 21 March 2024. It said it would consider some of the committee’s recommendations in preparing the bill but did not agree with all of the recommendations. For example, the government did not agree with creating a Mental Health Commissioner role or introducing a statutory right to request an ACD.
A mental health bill was not introduced by the previous government.
Background to reforming the Mental Health Act
Independent review of the Mental Health Act
In 2017, the government announced an independent review of the Mental Health Act 1983, in response to concerns about the use of the act.
The terms of reference of the independent review set out that the review should consider:
- the rising rates of detention under the act
- the disproportionate numbers of people from Black and minority ethnic groups in the detained population
- concerns that some processes in the act are out of step with a modern mental health system.
The independent review team, led by Professor Sir Simon Wessely, published its final report, Modernising the Mental Health Act: Increasing choice, reducing compulsion, in December 2018. It recommended changes to the law to make it easier for patients and service users to participate in decisions about their care, to restore their dignity and recognize the importance of human rights in mental health care. The review made over 150 recommendations. The government accepted most of the recommendations and incorporated them in a subsequent white paper.
White Paper on Reforming the Mental Health Act
The government published its white paper, Reforming the Mental Health Act, in January 2021. The paper is divided into three sections:
- legislative changes
- policy and practice changes are required to support the new law and improve patient experience
- the government’s response to the independent review.
Proposals in the white paper included tightening admission criteria and raising the threshold for compulsory detention. There were also proposals designed to reduce the use of the act for persons with a learning disability and autistic people, and a range of measures targeted at improving the experiences of people from Black, Asian and minority ethnic groups, in particular Black African and Black Caribbean people.
The government consulted on the white paper proposals from January to April 2021 and published its response to the consultation in August 2021. Respondents were broadly supportive of the proposals. The government said it would continue to work with stakeholders to refine the proposals, to make final policy decisions and develop a draft bill.