With society's understanding of mental health increasing, it seems appropriate that over recent years the current legislation enacted over 40 years ago is being reviewed and amendments proposed. Under the current legislation there has been an increase in detention rates. Of particular concern is the understanding that there appears to be a disproportionate number of ethnic minorities and black people being detained as well as individuals who have a learning disability or autism being potentially unnecessarily detained.
This article explores the current legislation, the reviews and released reports as well as considering the proposed changes.
Current law: the Mental Health Act 1983 (the Act) is the main legislation in England and Wales that guides the assessment, treatment and rights of individuals with a mental health disorder following a person's compulsory admission to hospital or application for guardianship.
Independent review: the government requested a review of the Act in October 2017. The review committee was chaired by Professor Sir Simon Wessely and released its findings in the 2018 Independent review of the Mental Health Act.
The purpose of the report was to understand:
- Detention rates: the reasons why there are rising rates of detention under the Act;
- Disproportionality: why there are a disproportionate number of black people and individuals from minority ethnic groups being detained; and
- Procedure: the processes required for a modern mental health service.
CQC involvement: in addition to the 2018 independent review, the Care Quality Commission (CQC) undertakes regular reports and releases their findings. The CQC is the independent regulator of health and social care in England. In the context of the Act, the CQC is responsible for reviewing and monitoring how care organisations apply the Act when providing services and so it is only appropriate for the CQC to release its findings particularly considering the contents of the 2018 independent report and the entities it monitors.
CQC report: The most recent report released by the CQC in respect of the Act was published in March 2024. The report is based on the CQCs monitoring reviews of services registered to assess, treat and care for people under the Act in 2022/2023. The CQC report identifies five key areas:
- Workforce issues and staff wellbeing
- Inequalities
- Children and young people
- Restrictive practices
- Closed cultures
The CQC report confirmed one of the greatest challenges to the mental health sector remains to be staff shortages and workplace retention. If your staff shortages are due to mental health, then please see our article entitled 'How can employers support mental health in the workplace?' which sets out support that employers may be able to provide to proactively assist with the mental health of their staff.
In addition to staff shortages, the CQC report identified there were potential gaps in community care that are compounding the rising demand on inpatient services. This has particularly impacted children and young people, with the CQC report identifying record highs from NHS data of 496,897 open referrals to children and young people's mental services in November 2023. A further concerning finding relates to the ongoing disproportionate use of sectioning of individuals from ethnic minority groups and black people.
Independent recommendations: The 2018 Independent report made some key recommendations to the government including:
- Creation of a new statutory Mental Health Commissioner post.
- Principles to address the current racial inequality of those individuals being detained.
- Collection and monitoring of data by health organisations through a responsible person including noting the ethnicity of those being detained.
- Consideration of whether Community Treatment Orders (CTOs) should be abolished particularly given the disproportionate use of them for ethnic minority patients.
- Strengthened duties for providers to ensure adequate supply of community services for people with long term disabilities to avoid long term detention.
Proposed changes: the draft Mental Health Bill was published on 27 June 2022 and makes a number of changes in hope to achieve the following outcomes:
- Ensure future detentions and treatments under the Act are necessary.
- Limit the detention of individuals with learning disabilities and/or autism where there is no co-occurring mental health condition and increase understanding locally of those who treat individuals with learning disabilities and autism under the Act.
- Update the CTO criteria and improve professional involvement in the process.
- Ensure proper environments are available for the treatment of individuals under the Act.
- Introduction of time-limits for transferring patients from prison to hospital along with a new form of supervised community detention for those convicted of crimes.
- Give the patients a voice including an ability to choose the person to represent them.
Current position: the Mental Health Bill is currently in draft and is subject to scrutiny by a pre-legislative parliamentary committee before the final version is drawn up and introduced to parliament. A Joint Committee was appointed on 19 July 2022, chaired by Baroness Buscombe, and reported on its pre-legislative scrutiny in January 2023. The Government provided its response to the Joint Committee's report in March 2024 and we await further updates.
Once enacted, it appears the proposed amendments will provide new mechanisms to ensure individuals being detained should be as well as ensure the necessary monitoring and review processes are in place to prevent the disproportionate detention of some individuals within our society.
