Mental Health Bill

Mental Health Bill – how the proposals might affect acute trusts 

The Mental Health Bill is making its way through Parliament and will bring the biggest reform of the Mental Health Act 1983 (‘MHA’) since 2008.

Here we outline some key changes, then consider how acute hospital trusts will be impacted by the changes brought about through the Bill.

Key changes 

1. Autism and Learning Disabilities: treatment under section 3 Mental Health Act 1983 (MHA):

The Bill will define “autism” and “learning disability” as separate from a “psychiatric disorder”.

The proposed new terms are:

“mental disorder”any disorder or disability of the mind.“autism”lifelong developmental disorder of the mind that affects how people perceive, communicate and interact with others.“learning disability”state of arrested or incomplete development of the mind which includes significant impairment of intelligence.“psychiatric disorder”mental disorder other than autism or learning disability.

The impact is that section 3 MHA will apply only to patients with a concurrent psychiatric disorder. Autism or a learning disability alone will not suffice.

Detention under s.2 MHA can still include patients with learning disability and/or autism (and this will also continue to apply to patients detained under Part 3 MHA). For detention to apply to a patient with a learning disability, the learning disability must result in “serious behavioural consequences”, meaning that the patient’s conduct is “abnormally aggressive” or “seriously irresponsible”.

2. New criteria for detention: 

• Section 2 – detention will continue to require the individual to have a mental disorder (which can include learning disability and/or autism) which is of a nature or degree which warrants detention in hospital for assessment (which may be followed by medical treatment). However, the level of risk identified will now need to be one of “serious harm” either to the health and safety of the patient or another person.
   

• Section 3 – detention can take place where a patient is:
   

  • suffering from a psychiatric disorder that requires medical treatment i.e. a disorder which does not include learning disability or autism;

  • “serious harm” may be caused to the health and safety of the patient or another person unless they receive medical treatment;

  • It is necessary, given the nature, degree and likelihood of the harm for the patient to receive medical treatment 

  • The necessary treatment cannot be given unless the patient is detained under this Act; and 

  • Appropriate medical treatment is available

“Appropriate medical treatment” will be defined as medical treatment which is appropriate and has a reasonable prospect of alleviating, or preventing the worsening of, the disorder or one or more of its symptoms or manifestations and is appropriate in the person’s case. 

3. The Bill will introduce a duty to prepare care and treatment plans and to monitor their implementation. 

4. Removal of police stations (and prisons) as places of safety.

5. Detention and Tribunal Application Periods:

There is no proposed change to the period of detention under section 2 MHA.

The timeframe for appeal to the Tribunal will be extended from 14 days to 21 days.

For detention under section 3 MHA, the following time periods are proposed:

 Current positionNew positionTribunal applicationInitial period of detention6 months3 monthsOne application within this periodSecond period of detention6 months3 monthsOne application within this periodThird period of detention12 months6 monthsOne application within thisAll subsequent periods of detention12 months12 monthsOne application within this period

Potential impact and future planning for acute trusts

• Over the past 7 years, the number of compulsory detentions under the MHA has increased. The MHA Statistics report that in 2023-24 there were 52,458 new detentions, of which 36,686 took place at the point of admission to hospital. The changes to the detention criteria are aimed at reducing the use of compulsory detention in a hospital setting.  
   

• This has the potential to cause difficulties for A&E Departments, particularly where an individual has identified needs for care and support but would no longer meet the threshold for detention under the MHA and so cannot be transferred to a mental health inpatient unit. Given the current difficulties and delays in accessing social care support and limitations of community based mental health support, it is likely that patients may increasingly become stuck in A&E departments waiting for packages of care and support to be put in place.  
   

• Concerns are being raised nationally already about the capacity of A&E departments to manage individuals brought there as a place of safety, given the limited number of other health-based places of safety. The removal completely of Police Stations as places of safety is likely to have a limited but still relevant impact on that difficulty. There is no proposal from the government regarding what alternative resources can be made available to manage demand. There will also be the issue of how patients with known high-risk behaviours can be safely managed outside of police custody and will require close working between services locally. This is in a context of an already changing landscape in light of the Right Care Right Person approach, and differing reports nationally about how this is positively or negatively impacting service delivery in different regions. 
   

• The criteria for detention will now include the risk of ‘serious harm’. This term is not defined by the Bill and introduces a new element of professional judgement at the time of assessing for detention, alongside assessing the likelihood of that harm. This may lead to disputes, legal challenges and issues at inquests or in clinical negligence claims. 
   

• The fact that autism or a learning disability alone will no longer satisfy section 3 detention may have a positive effect in acute hospital settings. There was a trend developing in some areas following the case of Manchester University NHS Foundation Trust -v- JS [2023] EWCOP 12, whereby individuals with learning disability and/or autism who had high levels of support needs, were suggested to be ineligible for a Standard Authorisation under the Deprivation of Liberty Safeguards, where the reason for admission to an acute trust was essentially social care related e.g. placement breakdown or there was a delay in discharge following completion of physical health treatment, whilst community support was put in place. These changes will hopefully remove or reduce any disputes which can arise in this area. 
   

• During any admission, there will now be a specific statutory duty to prepare a care and treatment plan. Whilst the Responsible Clinician will be responsible for preparing this, for patients detained under ss 2 or 3 MHA, there will also be a requirement for a system to be in place whereby the Hospital Managers, ie the Trust Board, monitor compliance with that duty. Processes will need to be established detailing how that monitoring takes place. Where psychiatric services are provided via a service level agreement, which may also include Mental Health Act Administration services, acute trusts may need to consider implementing (or updating) schemes of delegation and standing orders alongside any existing agreements to include such monitoring.  

This article was co-authored by Rachael Watkinson.