Key takeaways
Detention rules tighten for LD and autism
Hospital detention now requires a co-occurring psychiatric disorder.
Higher threshold and shorter detention periods
Evidence of serious harm needed, reviews every three months.
Commissioners must boost community support capacity
ICBs and local authorities face new resource and training demands.
The Mental Health Bill currently passing through Parliament has implications for a number of different health and social care providers. Here, we look at the implications for commissioners of mental health care.
The proposed changes within the Bill include redefining “mental disorder” so autistic people and people with a learning disability (LD) will not be detained for treatment under section 3 of the MHA without a co-occurring psychiatric disorder. There is also a change to the detention criteria relating to everyone, not just those with LD and/or autism spectrum disorder (ASD), which may lead to fewer people being detained and needing greater support in the community.
Legal and policy
The threshold for detention will be raised and reviews of the need for detention will be undertaken more frequently.
Revised threshold = must be evidence that ‘serious harm may be caused to the health or safety of the patient or of another person’.
Review frequency = initial period of detention under section 3 proposed to be reduced from six to three months.
For those with LD/ASD:
Patients with LD/ASD 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 (note the revised threshold above).
The new criteria will also apply to a person with LD/ASD on a Community Treatment Order (CTO).
The LD/ASD limitation will not apply to detention under section 2 MHA under which a person can be detained for a maximum of 28 days for assessment or assessment followed by treatment, but the revised threshold for detention will apply.
Impact on commissioners
Integrated Care Boards (ICBs) and local authorities (LAs) will need to seek to ensure they can meet the needs of people with learning disabilities and autistic people without detaining them in hospital.
As with other areas of change brought about by the Bill, such as Advance Choice Documents (ACDs), this will require increased resource, together with training of the workforce to deliver specific services to support those individuals.
There will be a need to ensure all community mental health services, not just those relating to LD/ASD, are better resourced to manage people in the community effectively where the revised threshold for detention may lead to people who are more mentally unwell needing to be managed in the community, where the level of harm to themselves or others is not considered sufficient to detain them.
Challenges and opportunities
There are already significant challenges on the ground for commissioners with those eligible for s.117 aftercare services, delayed discharges due to lack of community-based provision, limited crisis beds or workforce recruitment challenges.
The changes proposed within the Bill do not deal with the practical implications on the ground. Redefining ‘mental disorder’ and the thresholds for detention will mean that already struggling community services will require increased funding to address the current difficulties but also be able to meet the needs of those individuals no longer being eligible for treatment in hospital moving forward under the Mental Health Act following the Bill being passed.
There are of course many positive examples of people moving to homes rather than hospitals. It is important for commissioners to be able to draw on the knowledge gained from developing these packages of care nationally to improve services in their area.
It is hoped that recognition of the need for increased community-based support will lead to greater Government investment in mental health services across the country. Funding will be a significant concern for commissioners given current financial pressures.
For further information on the amendments proposed in the Bill regarding autism and learning disabilities, please see our article Mental Health Bill 2025: what you need to know - Perspectives | Hill Dickinson.
Conclusion
The proposals within the Mental Health Bill illustrate a shifting landscape for the assessment and treatment of those with a mental disorder. It is hoped that guidance within the new Code of Practice will support commissioners to fulfil their new and changing statutory duties, bringing greater clarity to expectations for the future. We will be keeping a close eye on developments and the impact for commissioners as the Bill completes its passage through Parliament.
