4 August 2021

In January 2021, the UK Government published a White Paper setting out reform proposals intended to tackle issues with the Mental Health Act (MHA). A consultation was held where the public was invited to comment on the proposed legal changes. Any changes to the MHA will impact people accessing (or trying to access) mental health services, their loved ones and carers, mental health advocates and campaigners, and staff working across mental health services.

You can read our plain language Explainer on the Mental Health Act White Paper and Consultation here.

BIHR’s work on the Mental Health Act Consultation

At BIHR, our mission is to enable change through human rights by supporting people and organisations to use human rights advocacy and approaches in their everyday life to achieve positive social change. The Human Rights Act is the law which protects our rights here in the UK. It says that staff working for mental health services within the NHS or local authorities have a legal duty to respect, protect and fulfil human rights in everything they do, including when they are applying other laws. This includes the MHA.

We wanted to respond to the MHA consultation by amplifying the voices of people with direct experience of either applying the law or accessing mental health care in England and Wales. To inform our response, BIHR ran two interactive evidence gathering sessions alongside the National Survivor User Network (NSUN) and created an Easy Read survey to give people the opportunity to share their views on the proposed changes.

Based on what people, advocates, campaigners and staff told us about the proposed reforms to the MHA, we made a number of recommendations to the consultation. You can read these below, or you can read our full submission here.

The Government’s Response to the Mental Health Act Consultation

On 15 July 2021, the government published its response to the consultation and their proposals to reform the MHA. You can read their response in full here, and an Easy Read version is also available here.

The government said they received 1,710 responses to the consultation from individuals and organisations, and they ran 19 policy development workshops with over 300 people with direct experience of the MHA. The government said there was ‘broad support for our proposed reforms’. It went through all the suggested changes one by one, laying out what people who responded to the consultation thought about them, before saying what they plan to do next.

What are we happy to see in the government’s response?

  • Like BIHR, most people who responded to the consultation supported the four new guiding principles of choice and autonomy, least restriction, therapeutic benefit, and the person as an individual. But, lots of people (including BIHR) said the guiding principles need to not only be set out on paper but be embedded in the mental health system, suggesting that staff training, commissioning of services, and making these visible in mental health settings were good ways of doing this. The government said it will go ahead with the four principles it has suggested and consider how they can embed them into everyday practice. It will be good to see what actions the government plans to take to ensure these principles will be embedded in practice. Only then will we know if it has truly taken into consideration the recommendations of the people who informed BIHR’s response to this consultation.
  • Lots of people who responded to the consultation said it was important to make sure there are better services in the community to support people with mental health issues. Many of the people involved in our research agreed, because having better mental health care outside of hospital would protect our right to liberty (Article 5) and our right to be free from inhuman and degrading treatment (Article 3). The government said the changes they plan to make to the MHA ‘will see that people receive earlier support and better mental health services in the community’.
  • We said people should only be detained under the MHA if it would be of therapeutic benefit and there is no other way to provide support because this would protect our right to be free from inhuman and degrading treatment (Article 3). Most people agreed with this. Lots of people also said people should only be detained under the MHA when there is ‘a substantial likelihood of significant harm to the health, safety or welfare of the person, or the safety of any other person’. We are pleased that the government has decided to take forward these proposals.
  • To protect our right to respect for private life (Article 8), which includes the right to make decisions about ourselves, the people who informed our response said that more power and support needs to be given to the voices of people accessing, or trying to access, mental health services. The government said they will implement Care and Treatment Plans and they will keep thinking about how they can make Advance Choice Documents work in practice. They also said they will look at making clear guidance for when people with capacity to make decisions about their care refuse a treatment that has been recommended for them. We are happy that the government intends to enhance people’s autonomy when they are admitted to mental health hospitals. However, providing clarity around how this will work in practice will be essential to ensuring people’s rights are upheld.

What are we disappointed to see in the government’s response?

  • We were disappointed to see that there was no mention of the Human Rights Act (or any of the specific rights it protects) in the government’s response to the MHA consultation. At BIHR, we think it is important that the legal duty to apply the MHA compatibly with human rights is directly referred to not only in the Act, but also in the Code of Practice and staff training. In our view, this would increase awareness of this duty and improve rights protection for people and their loved ones. 79% of the people involved in our research agreed with us.
  • When the Independent Review of the Mental Health Act published its report in 2018, the chair pointed out that unconscious bias, structural and institutional racism were visible in mental health care. In its response to the consultation, the government said it wants to change the MHA to help address the inequalities that Black, Asian and minoritised groups experience in mental health services. They will be launching a pilot programme of culturally appropriate advocacy to look at how advocacy can support the needs of Black and minoritised people, and they will think about how to engage with experts by experience to shape how the legislation is implemented. Whilst these statements are promising and go some way towards addressing the right to non-discrimination (Article 14), we are disappointed that there is no reference in the government's response to structural racism within the mental health system nor clear plans on how this will be addressed.

  • The government said it will take forward its proposals about Independent Mental Health Advocates (IMHAs). This includes making IMHAs available to everyone staying in a mental health hospital, including people who are admitted informally, and giving IMHAs more power to support people to be involved in treatment decisions and exercise their right to appeal against their detention. We think improved access to properly-funded, culturally competent independent advocacy would support our right to liberty (Article 5), our right to be free from discrimination (Article 14), and our right to respect for private and family life, home and correspondence (Article 8). Whilst we are pleased to see that access to IMHAs and their powers will be expanded, the government said ‘the proposals that require additional funding continue to be subject to future funding decisions’. At BIHR, we are concerned about this. Where advocacy is essential to ensuring the rights mentioned above are respected and protected, this cannot be subject to funding as public bodies have a legal duty to do this.

  • The government said it wants to reform Community Treatment Orders (CTOs) to make sure they are only used for a very good reason and when they will help the person. Some people thought the proposals to change CTOs were good, but others thought they could have negative consequences. The government said it will keep thinking about how it can improve CTOs. We said having time limits on CTOs and making sure people can complain about them easily would protect our right to liberty (Article 5). Concerns about the use of CTOs are longstanding, and with this review we hoped to see clear plans to address these issues. We hope the government will soon announce clear and well-defined plans to improve the use of CTOs in mental health care.

What happens next?

After publishing its response to the consultation on the MHA, the government will continue to develop the proposals, working alongside NHS England and NHS Improvement. Eventually, they will publish a new Bill (a draft law) to reform the MHA which is expected to be introduced to parliament in early 2022. This Bill will be reviewed by the House of Commons and the House of Lords who can suggest changes. When they are both happy with the Bill it will be approved (called Royal Assent) and then became an Act, which is a full law.

We will leave you with a quote from a person who attended one of our evidence gathering sessions which informed our submission to the MHA consultation:

More BIHR Resources on the Mental Health Act Reform