Update on the draft Mental Health Bill

There are some key provisions in the draft Mental Health Bill which are relevant and will have an impact on health and care providers and commissioners, writes Kirsty Stuart.

On 6 November 2024 the Mental Health Bill was introduced in parliament for the purposes of amending the Mental Health Act 1983. This has been an already long process with the Independent Review of the Mental Health Act having been undertaken and then reported in 2018, chaired by Sir Simon Wessely.

The Bill is very similar to the one introduced by the previous government in June 2022, (Draft Mental Health Bill 2022 - GOV.UK), which was considered by the government at the time to ‘give people greater control over their treatment and help ensure they receive the dignity and respect they deserve.’ Following its introduction, it was scrutinised by a Joint Committee of both the Houses of Parliament which, following oral and written submissions, produced a pre-legislative scrutiny report at the start of 2023, (Draft Mental Health Bill - Committees - UK Parliament), a response to which was published by the government in March this year.

After such a long and winding road, it was frustrating when those proposed reforms were not pursued or implemented prior to the recent general election. Reform is long overdue, and this new draft legislation has been welcomed by professionals and practitioners in the field who have long considered the current Mental Health Act 1983 to be ‘outdated.’

The Bill is some 98 pages long, but there are some key provisions which are relevant and will have an impact on health and care providers and commissioners, highlighted below.

Care and treatment reviews (CTRs) and Care (education) and treatment reviews (CETRs)

Patients who are autistic and/or have a learning disability and are detained in hospital would have more regular CTRs, (over 18’s), or CETRs, (under 18’s). It will be the responsibility of the Responsible Commissioner to ensure this takes place within 28 days, (for over 18’s), and 14 days, (for under 18’s), from specified dates, which include the date of detention or date on which the Responsible Commissioner considers the person is autistic or has a learning disability.

The Bill sets out who must attend the meeting, as well as those who must produce a report which will cover aspects of social care and mental health ongoing treatment, and other aspects such as risk. This is separate to the reports requested by any ongoing First-Tier Tribunal appeal and so could create a workforce availability issue.

It is interesting to note that this could then be taking place without any eligibility for both s117 aftercare, (if whilst detained on section 2 and noting that eligibility for aftercare is provided by detention under section 3 and not section 2), and so an Integrated Care Board may need to produce a report for a person who they may not have ongoing responsibility for following discharge. 

Registers of people at risk of detention

The Bill has introduced a requirement for each Integrated Care Board to establish and maintain a register of autistic people and/or those with learning disabilities who they are responsible for and who have specified risk factors for detention under MHA Part 2, (usually sections 2 and 3), i.e. those which would mean the probability of meeting the criteria for detention is increased. At this stage, the specifics of the register, and how this will be overseen, are unclear.

With regard to this, the person must either consent to their inclusion or, if the person lacks capacity for that decision, their inclusion can only be on a best interest basis as determined by the ICB. The consideration of what would be included as part of the ‘relevant information’ to ascertain capacity for that decision, or indeed who would undertake such assessment, is not set out, and will need further thought.

Amendments to the detention criteria

The detention criteria have been amended for those under MHA Part 2. There is a greater focus on ‘serious harm’, and it will not be possible to detain an autistic person or those with a learning disability under section 3 unless they have a co-occurring ‘psychiatric disorder’ that warrants treatment in hospital.

This will be welcome for those campaigning for a reduction in detention of those who are autistic and/or have a learning disability, but , and to the availability of suitable community housing and care and support to ensure that individual needs can be sufficiently met if they are considered to be no longer detainable.

Discharge of patients

The Bill outlines that prior to any discharge of a patient, the Responsible Clinician must consult with a person who has been professionally concerned with the person’s treatment. It is evident that this person must not ‘belong’ to the same profession as the Responsible Clinician. This is also reflected in similar terms in respect of Guardianship.

Section 117 aftercare

The Bill introduces a power for the First-Tier Tribunal to make a further recommendation for the responsible aftercare bodies, (the relevant ICB and local authority), to ‘make plans’ for the provision of aftercare in that patient.

At this stage, the extent and the timescales for this recommendation are not clear.

Omissions

Among the many changes proposed in the Bill, it also noteworthy what is not being included, for example:

• no provisions to tackle the Mental Health Act and Mental Capacity Act interface, particularly given those who are no longer eligible to be detained under the Mental Health Act may then be detained under the Mental Capacity Act / Deprivation of Liberty Safeguards
• no provisions for powers to keep those people safe and prevent them from leaving an accident and emergency department pending a formal assessment under the Mental Health Act 1983.

and the Bill is likely to be further amended following scrutiny and consideration, and so relevant updates will be provided.

At this stage, do don’t know when the reforms will be implemented, and of course it is likely to change on its way through parliament, (the next reading of the Bill is on 25 November 2024), and so we will keep you updated. If it is helpful in the meantime to discuss the implications of these reforms, preparation and training, please do get in touch.

This email address is being protected from spambots. You need JavaScript enabled to view it. is a Principal Associate in the Weightmans Healthcare team.