Draft Mental Health Bill promises to stop prisons being used as ‘places of safety’ for people in crisis

After more than three years since the Independent Review of the Mental Health Act (MHA) conducted by Sir Simon Wessely, the Government has published the draft bill reforming the legislation.

The Mental Health Bill 2022 will present before Parliament a series of amendments to the MHA 1983, including removing prisons and police stations as temporary places of safety, addressing the rising and disproportionate rates of detentions, and the ending the admission of people with learning disabilities and autism to mental health hospitals.

Clarifying the grounds for detentions under the MHA

In addressing detention rates and admission, key revisions are proposed to be made to sections 2, 3, and 5 detention criteria. Regarding the new provisions for section 2, the draft sets out two ‘serious harm’ tests that must be met to fulfil the criteria for detention:

1. ‘Serious harm may be caused to the health or safety of the patient or of another person’.
2. And a consideration of the ‘the nature, degree and likelihood of the harm, and how soon it would occur’.

The explanatory notes to the draft Bill outline that the purposes of these changes are to provide greater clarity as to the level and risk of harm that a person must present in order to be detained. Additionally, the explanatory notes details that in terms of people with a learning disability and/or autism, there is to be a notation in section 3 to prevent these individuals from being subject to compulsory treatment unless they have a co-occurring condition.

Removal of police stations and prisons as places of safety

Another significant amendment to the MHA is the following the Government’s commitment to removing prisons and police cells as ‘places of safety’. This commitment came after evidence clearly suggested these were not suitable environments to temporary detain (under section 135 or 136) individuals at the point of crisis awaiting assessment and treatment.

The use of police or prison facilities has been the result of the lack of hospital beds being immediately available – occasionally, this provision has lasted up to two weeks. However, reassuringly, prisons and police stations will no longer be considered safe places, pending hospitalisation, if the Bill makes it into law.

In line with another Government commitment to reforming the MHA and its interface with the criminal justice system, the draft also enshrines a 28-day limit on transferring individuals with severe mental health needs from prisons to hospitals for treatment under the Act.

New statutory role of the 'nominated persons'

Replacing the role of the ‘nearest relative’. The Independent Review highlighted that service users and stakeholder organisations found the current hierarchal system of nearest relative outdated and insufficient. The intention of this reform of the nominated person is to, unsurprisingly, allow a person to select the person to represent them and exercise the relevant statutory function. Another secondary aim of this reform is to take regard more fully to the wishes of patients if they become incapacitated and unable to communicate their treatment preferences.

Reduced detention periods

The draft bill also shortens the period that an individual may be kept in detention for treatment. This will mean that patients’ initial detention periods will be reduced, and any renewal of this detention order will be more frequent. The amendment stipulates that detentions for treatment will be no longer than three months (reduced from six), and any renewals will be reviewed after six months (reduced from one year).

What have mental health stakeholders said of the draft bill?

Paul Farmer, Chief Executive of leading mental health charity Mind, welcomed the publication of the draft Bill, commenting that it “is a watershed moment for mental health in the UK. The 1983 Mental Health Act is an outdated piece of law that far too often enables appalling treatment towards people with mental health problems.”

Specifically, Mr Farmer welcomed proposals giving people more say over how they are treated under the Act.

“The new proposed duty on clinicians to consider the person’s wishes and feelings and to involve them in the decision-making process, before deciding whether to treat them under the Act, should help to focus clinical decision-making on a patient’s wishes.”

Although, Mr Farmer said that as the Bill progresses through Parliament, other areas of further reform will need to be added to ensure “the law is fair and equitable for all, especially in reducing racial inequalities.”

“In particular, we’d like the UK government to review the use of Community Treatment Orders (CTOs), which are coercive, don’t reduce readmissions and are disproportionately applied to Black people.”

“We’d also like the guiding principles suggested by the Independent Mental Health Act review to be included, especially as these would strengthen people’s rights and help focus decision-makers on eliminating racism.”

Mark Winstanley, Chief Executive of Rethink Mental Illness, echoed Mr Farmer’s balanced tone, optimistic but with an eye on the next stage of parliamentary scrutiny. He said:

“The publication of the Mental Health Bill is a cause for celebration. It is the culmination of many years of campaigning to reform crucial legislation that supports and protects people when they are most unwell and often in crisis.”

“It will give people more choice, dignity, and involvement in their care. In due course, the Bill will progress its way through Parliament when it will be scrutinised and debated in detail. Our collective challenge will be to ensure it treats everyone fairly, delivers on its commitment to address racial inequalities, and ultimately that it becomes law.”

Accompanying Government announcement of financial investment in services and ‘mental health ambulances’

Following the publication of the draft Bill, the Government has announced that a ￡150 million investment over the next three years will accompany the implementation of the reforms to bolster NHS mental health spending. Including ￡7 million for specialised mental health ambulances to reduce the use of general ambulances for those experiencing a mental health crisis. The Government said this initiative will reduce pressures across the NHS, improve response times and outcomes, and ensure individuals experiencing a crisis are treated with dignity and respect.

What is next for the Mental Health Bill?

The draft bill will now be subject to pre-legislative parliamentary scrutiny through a cross-party select committee before the Government publishes the final version later this year.