Mental Health Bill 2025: what you need to know

The draft Mental Health Bill is currently making its way through Parliament. It has just been scrutinised by the Public Bill Committee. 

The proposals are sparking much needed dialogue about how society should address mental health in the 21st century. The Mental Health Act 1983 (MHA) is outdated – it’s now over 40 years old!

The new Bill aims to:

• Modernise the approach to mental health.

• Achieve parity between mental and physical health services across the public and private health and social care sector and insurance systems. 

• Reinforce patient autonomy, choice and protect their human rights.

• Expand access to mental health services across the private and public sector through systemic reform.

In the first of our series on the proposed changes and their possible impact on health and social care providers, we look at the potential ramifications for people with autism and learning difficulties (‘ASD and LD’).

Key reforms applicable to ASD and LD (from Bill published following Committee stage)

• Redefining “mental disorder” so autistic people and people with a learning disability will not be detained for treatment under section 3 of the MHA without a coexisting psychiatric disorder.

• Raising the threshold for detention and reviewing the need for detention more frequently. There must be evidence that ‘serious harm may be caused to the health or safety of the patient or of another person’. 

• Initial period of detention under Section 3 will be reduced from six to three months.

• Replacing the nearest relative with a nominated person, chosen by the patient (in most circumstances)

• Placing care and treatment plans on a statutory footing for detained patients and a new requirement to consult the nominated person.

• Integrated care boards (ICBs) and local authorities will need to seek to ensure they meet the needs of people with learning disabilities and autistic people without detaining them.

• Public bodies will have to maintain a dynamic list of people with learning disabilities and autistic people who are at risk of detention.

• Clause 44 inserts new sections 130M and 130N which create new duties for ICBs, NHS England and Local Health Boards (Wales) to help people to make Advance Choice Documents.

• 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.

• Increased access to the tribunal: Section 66(2) (a)- Section 2 patients can apply in the first 21 days of detention (extended from 14 days.

Current Timetable

Progress of the Bill in the House of Commons

• 1st reading - complete

• 2nd reading - complete

• Committee stage - complete 

• Report stage – where we are now

• 3rd reading (expected end of July 2025)

Final stages

• Consideration of amendments

• Royal Assent.

The reforms will take several years to implement and will be introduced in phases. 

Detention 

The Bill focusses on ensuring that:

• A patient with a learning disability or an autistic person can no longer be detained for treatment under section 3 of the Mental Health Act 1983 (MHA), 
  unless

• They have a co-occurring psychiatric disorder which meets the detention criteria. 

The new criteria will also apply to a person with a learning disability or an autistic person on a Community Treatment Order (CTO), unless they have a co-occurring psychiatric disorder.

This change relating to autism and learning disability will not apply to section 2 MHA under which a person can be detained for a maximum of 28 days, for assessment or for assessment followed by medical treatment for a mental disorder. There is a change to section 2 detention criteria overall, however. 

Joint Committee on Human Rights

Alongside the progress of the draft Bill through Parliament, the Joint Committee on Human Rights has published their third report of Session 2024–25. The Joint Committee remains concerned that the detention of autistic people and people with learning disabilities under the MHA remains a significant human rights concern. Key concerns highlighted by the Joint Committee include: 

At paragraph 76:

“…the changes proposed by the Bill to exclude people with learning disabilities or autistic people from much of the MHA could be undermined if the MCA can simply be used as an alternative route to the same outcome. This could result in the continued detention of people with learning disabilities or autistic people in circumstances that do not comply with Article 5 ECHR.”

At paragraph [63]: 

“Detention in the absence of individualised, therapeutic treatment risks violating the Article 5 ECHR right to liberty and may even result in degrading treatment contrary to Article 3 ECHR”

The lack of change to Part 3 of the MHA for those with autism and learning disability was also highlighted as a concern at paragraph 65. 

Article 5 of the European Convention on Human Rights (“ECHR”) is concerned with protecting the individual’s right to liberty and security. In particular, it specifies that no one shall be deprived of their liberty except in specific cases and in accordance with a procedure prescribed by law; individuals who are deprived of their liberty have the right to challenge the lawfulness of their detention before a court and individuals detained in contravention of Article 5 have an enforceable right to compensation.

Article 3 ECHR prohibits torture and inhuman or degrading treatment or punishment. 

From a legal perspective, it is important for NHS and independent providers of mental health services to be aware of these concerns and the potential for legal challenges relating to Articles 3 and 5 of the ECHR when applying the revised detention criteria to those with autism and learning disability.

Implications for health and social care providers

• Concern that the proposed changes and tightening up of the legal framework for the detention of autistic people and people with learning disabilities under the MHA may lead to an increase in the use of MCA/DoLS as an alternative pathway for detention.

• Ongoing complexity of the interface between the MHA and the MCA.

• Shift towards a more patient-centred system through the introduction of statutory care and treatment plans, along with the introduction of Advance Choice Documents (ACDs). 

• Implementation will be a major challenge. A ten-year phased introduction has been mooted so that funding can be made available to ensure that the new provisions can be delivered. Some aspects relating to LD and ASD will come in sooner than others, e.g. dynamic support registers will come in relatively quickly we anticipate, whereas change to s.3 MHA criteria specific to LD/ASD is anticipated to be on a slower stream. However, local systems need to focus on implementing community services necessary now to plan for these changes. 

• There remains difficulty in being able to commission sufficient, suitable community care provision for those with learning disability and/or autism. Crisis provision will need to be carefully planned where MHA detention will not be available or appropriate. How risk is to be managed in the community is a significant factor. 

• Ongoing work with local communities to increase understanding of the needs of those with autism and learning disability is required to enable successful transitions from hospital to community-based provision, or to sustain community-based packages of care.

• Recruitment issues are a significant concern across all health and social care sectors currently and public bodies will need to plan to address those concerns. 

• Commissioning disputes must be resolved speedily and without impact to the individual at the heart of the issue. 

If your organisation requires advice or training in relation to the Mental Health Bill and/or associated matters, please do not hesitate to get in touch with our experienced team via the key contacts noted below.

This article was co-authored by Caroline Hadfield.