Offender health

Offender health: What changes to the Mental Health Act 1983 will the Mental Health Bill bring?

The Government’s proposals for reform through the Mental Health Bill (‘the Bill’) are more limited for Part 3 of the Mental Health Act 1983 (‘MHA’) than for other areas. Part 3 covers the criminal justice related sections (often referred to as ‘forensic sections’).

However, there is still plenty that health and social care organisations need to be aware of. Here are some of the key changes. 

Background

In 2023/2024, nearly a third (29.2%) of all people detained in hospital on 31 March 2024 were detained under Part 3 of the MHA. More than 2 in every 5 of the over 2000 people with a learning disability or autistic people in mental health in-patient services are detained on a forensic section.

Data from the Ministry of Justice showed a total of 1,746 restricted patients were admitted to hospital for treatment under the MHA in 2023 in England and Wales, a 5% increase from 2022. As of 31 December 2023, there were 7,833 restricted patients, of which 4,648 were detained in hospital and 3,185 conditionally discharged. Restricted patients are offenders subject to special controls by the Secretary of State for Justice, for example, after a court sentence or transfer from prison.

Patients in the criminal justice system

• The Bill aims to speed up the transfer of prisoners with a mental disorder to hospitals by introducing a statutory time limit. The relevant health and justice agencies would be required to seek to ensure that, save for exceptional circumstances, a transfer takes place within 28 days.

  • The 28-day timeframe already appears in NHS England good practice guidance - the Bill puts this on a statutory footing. However, this is something which has been very difficult to achieve in practice and the wording of the Bill stops short of there being a duty to transfer within 28 days if caveats built in to the wording are met.

• The Bill aims to help reduce inappropriate detentions under the MHA - the Government is proposing to amend the detention criteria for Part 2 patients in two significant ways: 

  • to introduce a higher legal threshold for detention of “serious harm” to self or others 

  • that detention must have a demonstrable “therapeutic benefit” so that “the purpose of detention is always about helping patients to recover” 

• For Part 3 patients, the criteria for initial detention will be different and the serious harm test is not applied in the same way. It will form part of renewal considerations for those unrestricted Part 3 patients however.

• There is also a different consideration when determining mental disorder – for Part 3, the Government has proposed a new section 34A which defines the ‘relevant disorder’ for Part 3. Schedule 1 of the Bill makes various amendments to sections of the MHA to reflect this. 
   
  This will lead to a different legal test and threshold for detention for Part 2 and Part 3 patients. 
    

• Learning disability and autism changes under Part 2 of the MHA exclude those diagnoses from being relied on for detention without a co-occurring psychiatric disorder but this will not apply to Part 3 patients (see s.34A and Schedule 1 to the Bill). 

• Prisons and police stations will be removed as ‘places of safety’ under the MHA 1983. Those who are in custody will need to have any assessment under s.135/s.136 undertaken in a health-based setting. 

  • This is broadly welcomed but could present difficulties. How do organisations manage the risks of someone requiring assessment, where there is already an overspill into Accident and Emergency Departments from designated health-based places of safety? Close local agency working will be needed to agree police support during the custody timeframe and/or if offending risk is significant.

Part 3 patients in hospital and on discharge

Further changes are proposed for Part 3 patients once they are detained to prepare for their discharge. These include:

• A power that allows the mental health tribunal or the Secretary of State for Justice to place conditions that amount to a deprivation of liberty on a restricted patient as part of a conditional discharge – ‘supervised discharge’.

  • This is envisaged to apply to a relatively small number of high-risk cases where the patient is no longer requiring hospital detention, but the conditions are necessary to protect the public from serious harm. 

  • This is a response to the Supreme Court decision in MM -v- Secretary of State for Justice [2018] UKSC 60 which held:

    • A patient with capacity relating to their care and support arrangements in the community cannot be discharged with conditions amounting to a deprivation of liberty under the existing provisions of the MHA.

    • The patient would not be able to have a Court of Protection or Schedule A1 MCA 2005 DOLS authorisation applied to them depending on the type of accommodation they were going to if there was no element of the DOL which was in the patient’s best interests rather than solely protecting others, or if they had capacity in relation to their care and support arrangements.

• Changes to timescales in which those subject to Part 3 of the MHA may apply for a Tribunal, or must be referred for a Tribunal, to consider their case. There is also change to the grounds for discharge by the Tribunal of those under Part 3 and this needs to be read in conjunction with the new s.20(4) and Schedule 1 of the MHA. The serious harm threshold will be applied on considering discharge.

• Changes across the MHA under Part 2 need to be read with the differences in mind for Part 3 patients to consider the application of the relevant wording in the MHA applicable to Part 3 unrestricted and restricted patients – see Schedule 1 of the Bill in particular.

• Statutory care and treatment plans will be required for all detained patients under Part 3 MHA. 

• The Responsible Clinician will need to consult with a person professionally concerned with the patient’s medical treatment, and who belongs to a different profession to them, before discharging the patient (or, in the case of restricted patients, recommending discharge).

How will this impact the safety of the public?

• Public safety is paramount. The new MHA is designed to ensure patients, staff and the general public are protected.

• The Bill will introduce a new requirement for the Responsible Clinician to consult another person before discharging a patient which will apply to Part 3 unrestricted patients, or before recommending discharge for those restricted patients under Part 3.

• Discharge processes will also be reviewed more broadly, with Care and Treatment Plans to include safety management plans for patients when they need them, to keep the patient and others safe. 

• Prohibition on using prisons and police stations as places of safety may lead to high-risk individuals being assessed in settings not designed for that level of risk to others. Thought will need to be given by organisations regarding the challenges faced locally.

• The higher threshold of serious harm introduced under Part 2 of the MHA may mean that Part 3 detentions increase where offences arise from the actions of an unwell individual, and detention thresholds differ for those under Part 3.

How can those impacted by the MH Bill proposed changes prepare?

Mental Health Trusts, Integrated Care Boards, and Local Authorities in partnership with acute trusts and criminal justice services should begin preparing now. Before the changes takes effect, services can:

• Ensure staff are well trained in understanding the changes, supporting patient rights and following best practice for care planning.

• Start updating documentation and policies to reflect upcoming changes, including how tribunals and discharge processes will be impacted.

• Build community partnerships to strengthen crisis support and post-discharge care.

• Plan for foreseeable issues locally such as non-use of police stations as places of safety.

• Involve people with lived experience in implementation design.