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15 January 2021

Landmark reform of the Mental Health Act - good news for service users?

3 mins

The Government has published a long awaited White Paper, proposing radical reforms to the Mental Health Act.

The proposed changes seek to implement the recommendations of the Wesley review, published in 2018 (available here). The Government’s aim is to bring the Mental Health Act ‘into the 21st century’, empowering services users, and tackling the inequalities faced by patients from BAME backgrounds. The proposals include:

  • Detained patients to have a greater say in their care, through advance decisions about their treatment;
  • Patients will be able to choose which family member or carer represents them, instead of their nearest relative being nominated automatically;
  • Provision for culturally appropriate support from mental health advocates, and greater powers for advocates to support patients with appeals;
  • Strengthening of the legal criteria, so that patients can only be detained where there is ‘therapeutic benefit’ and where detention is necessary to avoid a risk of ‘significant harm’ to the patient or others;
  • Increased access to the Mental Health Tribunal;
  • Those with learning disabilities and autism will be removed from the scope of the Mental Health Act completely.

Mental health charities and stakeholders are cautiously welcoming this White Paper, whilst highlighting that this is just the start of a long overdue and lengthy process of reform. The increased focus on treatment in the community will require additional resources to be made available to extremely overstretched community mental health teams. It remains to be seen whether these resources will be readily available.

The new ‘therapeutic benefit’ criteria will be welcomed by those who (like myself) have long advocated for a change to the current ‘appropriate treatment’ test. Hospitals are currently able to detain a patient on the basis that treatment is available to them, regardless of whether or not they are engaging with treatment or benefitting from it. This can lead to prolonged detention for some patients, within an environment that is not suited to their needs. Many service users who have struggled to ‘tick the boxes’ expected of them when their cases come before the mental health tribunal, will benefit from this change.

The decision to remove those with learning disabilities and autism from the scope of the act completely is a very pleasant surprise. The Transforming Care programme, set up by NHS England following the Winterbourne view scandal, has sought to reduce the number of people with learning disabilities in hospital. The effectiveness of this scheme has been very limited due to a severe shortage of appropriate community services. These reforms will give legal backing to the Transforming Care agenda, but it remains critical for additional resources to be made available.

The government consultation is open until 21 April 2021. Service users and their families can respond here.

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