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Mental Health Bill, Committee Stage, House of Lords, 14 January 2025

Councils are key to identifying and addressing the social factors that may influence a person’s mental health. Such as between health inequalities, protected characteristics, socioeconomic deprivation, and poor mental health, however, resources limit the work that councils can do.

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Key messages

  • The LGA supports the reform of the Mental Health Act (MHA)  and we are pleased this was included in the King’s Speech. In our submission to the original MHA White paper in 2021, we supported the emphasis on treating people as individuals as a fundamental principle. We welcome the intention of the Act to address the rising rates of detention and experiences of people from Black, Caribbean and African backgrounds. It is important that the Act reflects the needs of people with lived experience of mental health needs.
  • It is essential that the new Act clearly recognises the local leadership role of councils and identifies the roles and responsibilities of councils in respect of both statutory and non-statutory mental health duties, working in partnership with the NHS and local voluntary and community services. 
  • We strongly support the proposals to revise the detention criteria to be clearer that autism/neurodiversity and learning disabilities are not considered to be mental disorders for this purpose, and the requirement that there must be a probable mental health cause to their behaviour that warrants assessment in hospital. 
  • We want to see people with learning disabilities and/or autism/neurodiversity receiving personalised care in the community whenever possible. To achieve this, it is important that there is additional funding for councils and partners to support the development of alternative resources for people with autism and learning disabilities in the community.
  • The Act will have significant resource implications for councils which need to be fully funded on a long-term basis. The Act needs to reflect the operational needs and resource pressures on local government, and partners, who will need to be resourced to support effective implementation. For many years mental health services at all levels have been reduced despite rising demand.
  • We support investment into expanding and transforming mental health services to ensure more people can access the support they need. Investment must also include mental health support delivered by councils, as well as NHS services.
  • The Bill Impact Assessment does not identify any increase in demand of community mental health services, aside from advocacy. To achieve this reform successfully, it will require investment in both Voluntary Community and Social enterprise (VCSE) and council commissioned community mental health services. This is particularly important as statutory local authority adult mental health services and much VCSE mental health provision is funded from the social care budget. We will be making this point in our response to the recently announced Health and Social Care Committee Inquiry on Community Mental Health Services. 
  • The review of the MHA focussed on the legislation only, it did not address early intervention of prevention. We need a system wide focus on early intervention and prevention. Intervening early to prevent mental health problems developing, or to treat and support children, parents and families before problems progress is essential. Many children and young people especially face challenges accessing support for their mental health. Patchy implementation of policies has also fuelled a postcode lottery in provision meaning that children and young people do not get a consistent offer of support.
  • The success of the new Act will require the NHS and councils working in partnership. More needs to be done to fully embed mental health into integrated care teams, primary care, urgent and emergency care pathways. 
  • Commissioning of mental health services should reflect local needs and knowledge; the process should not be overly prescribed by central government. It is important that any crisis Improvement programme makes links with the mental health role of councils, not just the NHS.
  • A clear workforce strategy for both the adults and children’s workforce is required. This should look at recruitment and retention of Approved Mental Health Professionals, increasing the workforce in the key pressure areas and in early intervention and prevention spaces and at developing an appropriate training plan for workforce to make sure that mental health is everyone’s business.
  • There are clear links between poor mental health and health and racial inequalities. Children from low-income families are four times more likely than those from the wealthiest households to have a serious mental health difficulty by the time they leave primary school. Unemployment and poverty are strongly associated with poorer mental health and a higher risk of death from suicide. And rates of mental health problems can be higher for some black and minority ethnic groups than for White people.
  • Councils are key to identifying and addressing the social factors that may influence a person’s mental health. Such as between health inequalities, protected characteristics, socioeconomic deprivation, and poor mental health, however, resources limit the work that councils can do. 
  • The Centre for Mental Health in its Commission for Equality in Mental Health recommended that councils need an urgent funding boost to coordinate action to pursue mental health equality. We need recurrent long-term funding in councils so that children’s, adults, and public health services can meet existing, new and unmet demands to combat mental health problems.
  • The Bill will require a clear implementation programme with funding to ensure the workforce is prepared effectively, and availability of a range of community mental health services to ensure options for local person-centred care and support are available. 
  • The LGA and ADASS recommended that the Department of Health and Social Care, MHA Policy team and the DHSC Mental Capacity Act/Deprivation of Liberty Safeguards (DoLs) policy team work together to develop solutions to ensure there is no loss of safeguards for those individuals and to reassure the sector on these matters.  
  • The LGA will continue work with DHSC to shape the Bill going forward. Particularly areas where the legislation and associated guidance reflect the role and responsibilities of councils in statutory mental health and where there may be new financial burdens for councils in implementation of the Bill.

Councils’ current role and responsibilities under the Mental Health Act (MHA) 1983

Councils have several existing statutory duties under the existing MHA and will continue to have responsibilities under the new Act. The current existing responsibilities for councils are:

  • Councils employ the majority of Approved Mental Health Professionals (AMHPs) who carry out a variety of functions under the MHA. Approved Mental Health Professionals are registered professionals (social workers, nurses, occupational therapists, or psychologists) who have undertaken additional training, approved by the Secretary of State and regulated by Social Work England, to carry out specific duties under the MHA 1983.
     
  • AMHPs consider a person's social and cultural circumstances, as well as their medical history, when making decisions. AMHPs aim to reduce the need for compulsory admission to hospital by exploring the least restrictive options. They also promote the rights of people using mental health services and try to identify and challenge discrimination and inequality.
     
  • However, AMHPs are also responsible for setting up and coordinating assessments under the MHA and, if necessary, making applications to detain (“section”) people in hospital for assessment and treatment of their mental health needs.
     
  • One of their key responsibilities is to make applications for the detention of individuals in hospital, ensuring the MHA and its Code of Practice are followed. It is the AMHP’s duty, when two medical recommendations have been made, to decide whether to make the application for the detention of the person who has been assessed under the MHA, sometimes referred to as ‘sectioning’.
     
  • Councils also have statutory duties to provide social care to support people experiencing mental health problems. Section 117 of the current MHA requires councils, along with the NHS, to provide after-care services and support to some people moving out of hospitals. Councils also have wider Care Act responsibilities for all those affected by mental distress and commission many community support services such as advocacy services.
     
  • Councils are responsible for commissioning advocates to help people express their views and to represent their interests.
     
  • Duties to authorise deprivation of liberty under the current Deprivations of Liberty Safeguards (DOLS) scheme.

History of the review of the Mental Health Act (MHA) 1983

In 2017, the Government commissioned an independent review of the MHA 1983, to look at how it was used and to suggest ways to improve it. The purpose of the Independent Review was to understand:

  • The rising rates of detention under the MHA.
     
  • The disproportionate numbers of people from black, Asian and minority ethnic groups (BAME) in the detained population.
     
  • Investigate concerns that some processes in the Act are out of step with a modern mental health system.

It also considered how the Act could better meet the needs of people with a learning disability, or autism or people with serious mental illness within the criminal justice system.

The review’s final report published in 2018 said that the MHA does not always work as well as it should for patients, their families and their carers. They recommended greater safeguards and a greater respect for wishes and preferences and changes to accountability, challenges, and transparency.

The review noted that the recommendations need to be seen in the context of wider investment in, and reform of, services for people with severe mental illness, learning disability and/or autism, and that compulsory treatment must be a last resort which places an additional responsibility to ensure the quality of services is high.

The review recommended four principles to be put into law to underpin the new MHA, these are:

  1. Choice and autonomy – ensuring service users’ views and choices are respected.
  2. Least restriction – ensuring the MHA’s powers are used in the least restrictive way.
  3. Therapeutic benefit – ensuring patients are supported to get better, so they can be discharged from the MHA.
  4. The person as an individual – ensuring patients are viewed and treated as individuals.

In 2021 in response to the review, the government held a formal White Paper consultation on reforming the MHA. The LGA made a formal submission to the Consultation

In August 2021, the Government responded to the consultation. This proposed supporting most of the independent review recommendations and stated that they will develop a new Bill to reform the MHA.

Timeline

The timeline of the Implementation of the Mental Health Act 2025 is still to be published. Implementation is likely to be staggered over time, with first duties to be introduced in 2026.

There are currently two separate Government inquiries on the new Bill. Firstly, a Health and Social Care Committee inquiry into Community Mental health services and secondly, a Joint committee inquiry into the Mental Health Bill and the European Convention on Human Rights. The LGA will submit a response to the first inquiry and are considering whether to respond to the second inquiry.

Key provisions of the new Mental Health Bill

The following is a general summary of the key provisions of the Mental Health Bill (source:Community Care Inform).

Amending the detention criteria to ensure that detention and treatment under the Mental Health Act (MHA) takes place only when necessary

The Bill amends the criteria for detention under part 2 of the MHA and for renewals. The aim is to provide greater clarity as to the level of risk that a person must present to be detained and to reduce the use of the MHA for people with a learning disability and autistic people.

Firstly, section 2 (admission for assessment) is amended to insert the following new tests for detention:

  • That serious harm may be caused to the health or the safety of the patient or another person, unless the patient is detained; and
  • It is necessary, given the nature, degree and likelihood of the harm, for the patient to be detained.

Secondly, the section 3 (admission for treatment) detention criteria are amended to insert the following new tests:

  • That serious harm may be caused to the health or the safety of the patient or another person unless the patient receives medical treatment.
  • It is necessary, given the nature, degree, and likelihood of the harm, for the patient to receive medical treatment.
  • That medical treatment cannot be provided unless the patient is detained under the MHA; and
  • Appropriate treatment is available (which is defined as meaning there must be a reasonable prospect of alleviating or preventing the worsening of the disorder or one or more of its symptoms or manifestation).

Third, it will no longer be possible to detain a person with a learning disability or an autistic person under section 3 unless they have a co-occurring “psychiatric disorder” that warrants hospital treatment. This exclusion does not apply to part 3 patients – those in the criminal justice system.

From nearest relative to nominated person

The Bill replaces the nearest relative with a new statutory role, the nominated person.

The nominated person can be selected by the patient at any time when they have capacity or competence to do so. The nomination must be witnessed by a health or care professional, who must confirm that there is no reason to think that the patient lacks the relevant capacity or competence or that undue influence has been used.

The nominated person continues to represent the patient even if that patient subsequently becomes unwell and no longer has the relevant capacity or competence. If the patient lacks capacity or competence to nominate, and has not made a nomination, an Approved Mental Health Professional may appoint a nominated person for the patient.

The nominated person has the same rights and powers as nearest relatives have now. In addition, the nominated person would have new rights to be consulted about statutory care and treatment plans (see below) and transfers between hospitals and to object to the use of a community treatment order.

Currently, when a nearest relative exercises their powers inappropriately or unreasonably, the only means of overruling them is to remove or displace them from their role. The Bill changes this to enable the nominated person to be temporarily overruled when they exercise certain powers (such as the right to object to a section 3 admission). This is intended to ensure that where appropriate, the nominated person can continue to have a role in the patient’s care and treatment.

The county court retains the power to terminate the appointment of a nominated person, either permanently or for a specified time.

Compulsory medical treatment safeguards

The new Bill makes several reforms to part 4 of the Mental Health Act, which regulates when treatment can be imposed on detained patients.

It introduces a new ‘clinical checklist’, which applies to clinicians making treatment decisions. There is a duty on the treating clinician to consider certain matters and take certain steps when deciding whether to administer medical treatment to a patient.

Community treatment orders (CTOs)

The Bill revises the criteria for the use of CTOs in line with changes to the detention criteria. CTOs can only be used if there is a risk of “serious harm” to the health and safety of the patient or others, and consideration has been given to the “nature, degree and likelihood of the harm, and how soon it would occur”. In addition, there must be a reasonable prospect that the CTO would have a therapeutic benefit for the patient.

The CTO must be agreed in writing by the community clinician. The mental health tribunal is also given the power to recommend that the responsible clinician reconsiders whether a particular CTO condition is necessary.

Learning disability and autism

Under the Bill, people with a learning disability and autistic people will not be able to be detained for treatment under section 3 unless they have a co-occurring “psychiatric disorder” that warrants hospital treatment. Also, they will not be able to be made subject to a community treatment order solely because of their learning disability or autism.

The Bill also places care (education) and treatment reviews (C(E)TRs) on a statutory footing. C(E)TRs are designed to ensure that people with a learning disability and autistic people are only admitted to hospital when necessary and for the minimum possible time.

The NHS commissioning body must ensure that C(E)TRs are held when a patient with a learning disability or an autistic patient is detained under the Mental Health Act. Certain bodies are required to have regard to the recommendations made by the C(E)TR.

There is a duty on integrated care boards (ICBs) to establish and maintain a register of people with a learning disability and autistic people who are at risk of detention. ICBs and local authorities must have regard to the register and the needs of the local ‘at risk’ population, when carrying out their commissioning duties. The aim is to help ensure that adequate community services are available for people with a learning disability and autistic people, so as to avoid unnecessary hospital admissions.

Statutory care and treatment plans

The Bill introduces statutory care and treatment plans for detained patients and those subject to community treatment orders and guardianship, excluding those subject to short-term detention powers.

Responsible clinicians are placed under a duty to prepare and regularly review the plan, and regulations will be used to set out the contents of the plan.

Independent mental health advocates (IMHAs)

IMHAs are specially trained advocates who represent and support patients detained under the MHA. The Bill extends the right to an IMHA to informal patients.

It also introduces an “opt-out” system, whereby hospital managers and others are required to notify advocacy services about qualifying patients and those services must then arrange for patients to be interviewed to find out if they want an IMHA. The aim is to increase the uptake of IMHAs.

Detention periods and their renewal

The Bill shortens the period that a patient may be kept in detention for treatment. The initial detention period is reduced from six months to three months. This can be renewed for a further three months (reduced from six months) and then for a further six months (reduced from one year).

These changes mean the patient’s initial detention will expire sooner and if the detention is to continue, it must be reviewed and renewed more frequently.

Mental health tribunals

The Bill provides that patients have greater access to the tribunal. Specifically:

  • Section 2 patients can apply to the tribunal within 21 days of detention (rather than 14 days currently).
  • Section 3 patients can apply within three months (rather than six months currently); and
  • Automatic referrals to the tribunal take place – in cases where the patient has not exercised their right to apply – three months from the date on which the patient was first detained and then every 12 months.

Discharge process

The Bill provides that before a patient is discharged from detention, the responsible clinician must consult someone professionally concerned with the patient’s treatment.

This is intended to ensure that patients are not discharged inappropriately where they may be a risk to themselves or others. There are similar safeguards in respect of the decision to discharge guardianship.

Principles

The Bill introduces statutory requirements in relation to the content of the code of practice to include the wording of the principles formulated by the Independent Review of the Mental Health Act.

The principles are: choice and autonomy, least restriction, therapeutic benefit and the person as an individual. This will apply to the codes of practice for both England and Wales.

Section 117 aftercare

The Bill changes the ordinary residence rules that identify which Council must provide or arrange section 117 aftercare services to an eligible person, by applying new ‘deeming provisions’.

In broad terms, these mean that when a person is placed out of area, they will remain ordinarily resident in the area of the placing authority.

The mental health tribunal is also given the power to recommend to the NHS bodies and local authority to provide aftercare services for a patient. The tribunal can reconvene to reconsider a case if any such recommendation is not complied with.

Advance choice documents

The Bill places duties on health bodies to make information available about, and help people to create, advance choice documents.

These are written records of a person’s wishes, feelings and decisions about their care and treatment that are made when the person has the relevant capacity or competence. Clinicians must have regard to these documents (but not necessarily follow them) when providing medical treatment under the Mental Health Act.

Places of safety

The Bill removes police cells from the definition of “places of safety” for the purposes of sections 135 and 136. This change is in response to evidence that police cells are not suitable environments for people with severe mental health needs awaiting assessment and treatment. The Bill also ends the use of prison as a place of safety for people in contact with the criminal justice system.

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 are required to seek to ensure that a transfer takes place within 28 days.

The Bill creates 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 patient as part of a conditional discharge.

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

Contact

Arian Nemati, Public Affairs and Campaigns Adviser
Email: [email protected]