Consultation outcome

Reforming the Mental Health Act: summary

Updated 24 August 2021

This was published under the 2019 to 2022 Johnson Conservative government

Applies to England and Wales

We (the UK government) want to let you know about the changes we are proposing to improve care for people who are detained under the Mental Health Act (MHA). This document:

• summarises the main changes proposed, which are available in the full White Paper^{[footnote 1]}
• tells you where you can find out more information
• explains how you can tell us what you think about the changes.
• explains how the proposals relate to Wales

What has happened so far

The Mental Health Act (the act) sets out when someone can be detained in hospital and treated for a mental health disorder, at times against their wishes. This is sometimes called being 'sectioned'.

The act sets out the process for assessment, treatment and protection of people's rights.

In October 2017 the UK government announced an independent review of the Mental Health Act. The review was asked to look at how the act is used and how practice can be improved. The review looked at why:

• rising numbers of people are being detained under the act
• disproportionate numbers of people from black, Asian and minority ethnic (BAME) groups are being detained.

The review made 154 recommendations on how the Mental Health Act should be improved.

What we're doing now

We have considered the review's recommendations and are proposing changes to improve mental health services and people's experiences under the Mental Health Act. This is called a 'White Paper'.

The changes aim to make sure that:

• people are detained for shorter periods of time, and only detained when absolutely necessary

• when someone is detained the care and treatment they get is focused on making them well

• people have more choice and autonomy about their treatment

• everyone is treated equally and fairly and disparities experienced by people from black and minority ethnic backgrounds are tackled

• people with a learning disability and autistic people are treated better in law and reduce the reliance on specialist inpatient services for this group of people

The White Paper is split into 3 main parts. These are:

• Part 1: legislative reforms – the changes we are proposing to the Mental Health Act itself
• Part 2: reforming policy and practice to improve patient experience – the government's plans to bring about an overall culture change within mental health services, so that people have a far better experience of care under the act
• Part 3: the UK government's response to the Independent Review of the Mental Health Act – the government's response to each of the review's recommendations (this is not covered in this document)

We would like to hear your views on the proposals, so that we can take these into consideration before any changes are made.

The main changes we are proposing in the Mental Health Act white paper are summarised in this document.

How do the proposals relate to Wales?

The current Mental Health Act applies in both England and Wales. Although health policy is devolved to Wales, justice matters remain reserved to the UK government. There is also a separate devolved system for tribunals in Wales.^{[footnote 2]}

The White Paper represents the position of the UK government, which commissioned the Independent Review of the Mental Health Act. The review's proposals were largely focused on how the law and mental health system operates in England, although it did make some consideration of policy and practice in Wales.

Devolved matters

The majority of the White Paper concerns health policy which is devolved to Wales. Improving mental health outcomes is a cross-cutting priority in Wales and the Welsh government has a policy commitment to deliver excellent mental health services. Given that the act has application in both England and Wales, the findings of the review and the proposals set out in this White Paper also need to be carefully considered in the context of how the act currently operates alongside specific legislation, mental health services and systems in Wales. In particular, the Mental Health (Wales) Measure 2010 has already put some similar proposals, such as care plans for people subject to detention, on a statutory footing in Wales.

The Welsh government will continue to engage with the UK government on the proposals set out in the White Paper as it considers appropriate next steps for Wales and develops its own response to the review.

Reserved matters

Reserved matters where the UK government could apply changes in both England and Wales are highlighted below and in the White Paper (in particular in relation to the criminal justice system). However, even in reserved areas, the UK and Welsh governments are working closely to understand any distinct impacts and issues for Wales, and there may be cases where it is appropriate for Wales to take a different approach to reform from that being proposed in England.

It is not uncommon that Welsh patients are cared for in England and English patients cared for in Wales. Both governments are therefore committed to ensuring a joined up, person-centred mental health system that works for all patients and staff in these circumstances.

Responding to this consultation in Wales

We want to ensure that voices from Wales are heard during the consultation period. We will be working with the Welsh government to ensure that this consultation will also help inform policy decisions in Wales. While consultation responses to the White Paper will be received directly by the UK government, if you are responding to this consultation in Wales, your feedback will also be shared with the Welsh government.

On reserved matters, all responses from England and Wales will be fully considered by the UK government. On devolved matters, both governments will read all responses, however, feedback from Wales will not be counted or addressed separately as part of the UK government's consultation response.

Part 1: legislative reforms

Chapter 1: new guiding principles

There are 4 new guiding principles that people working to provide care will need to consider while carrying out their duties. These principles are central to our plans to modernise and improve the Mental Health Act. They are:

• choice and autonomy – making sure people's views and choices are respected
• least restriction – making sure the act's powers are used in the least restrictive way
• therapeutic benefit – making sure patients are supported to get better, so they can be discharged from the act as quickly as possible
• the person as an individual – making sure patients are viewed and treated as rounded individuals

We want these principles to be included up front in the act, as well as in the Code of Practice, which provides practical guidance for staff on how to follow the law. We hope that this change will help ensure that the principles are applied in all aspects of the care and treatment of people under the act.

You can answer the consultation question about applying the guiding principles:

Question

We propose embedding the principles in the MHA and the MHA code of practice. Where else would you like to see the principles applied to ensure that they have an impact and are embedded in everyday practice?

Your answer can be up to 500 words.

Chapter 2: clearer, stronger detention criteria

The detention criteria are the conditions in law that decision makers must demonstrate that a person is meeting before they are detained under the Mental Health Act. There are 2 main criteria. The first is that the person is suffering from a mental illness severe enough to justify detention. The second is that the person needs to be detained for their health and safety, or to protect other people.

A detention of a person can be for medical assessment (section 2 of the act) or for treatment (section 3 of the act).

We want to strengthen and clarify the criteria for detention under sections 2 and 3 of the act, so that patients are only detained when it is absolutely appropriate. These changes are driven by the following guiding principles:

• therapeutic benefit – more consideration must be given to how care and treatment provided under the act will promote recovery and facilitate patients to get better
• least restriction – ensuring a person is only detained where it is absolutely necessary, and where not detaining poses a substantial risk of significant harm being caused to themselves or others

The reasons why a person meets the detention criteria will need to be documented by their responsible clinician, including the specific risk that justifies detention and, where applicable, how detention will deliver therapeutic benefit.

The reasons for detention should be shared with the patient and reviewed by other decision makers, including by the Mental Health Tribunal when it considers appeals. We hope that this will increase transparency and accountability.

See chapter 2: clearer, stronger detention criteria in part 1 of the White Paper for more information and you can also answer the consultation questions about changes to the detention criteria:

Question

We want to change the detention criteria so that detention must provide a therapeutic benefit to the individual. Do you agree or disagree with this proposal?

• strongly agree
• agree
• disagree
• strongly disagree
• not sure

Please give reasons for your answer (up to 500 words).

Question

We also want to change the detention criteria so that an individual is only detained if there is a substantial likelihood of significant harm to the health, safety or welfare of the person, or the safety of any other person. Do you agree or disagree with this change?

• strongly agree
• agree
• disagree
• strongly disagree
• not sure

Please give reasons for your answer (up to 500 words).

Chapter 3: giving patients more rights to challenge detention

We want to ensure that a patient's case for discharge from hospital is reviewed more regularly and that patients have more opportunities to appeal for discharge so they are not detained for longer than is necessary.

We will do this by making the changes set out below.

More frequent review of a patient's case for detention

We want to make sure that the responsible clinician and other decision makers are required to review the patient's case for discharge more regularly. We also intend to increase people's access to the First Tier Tribunal (Mental Health) (Tribunal), which provides vital independent scrutiny of detention.

These changes are supported by the following proposals:

• for patients under section 3 of the act, they should have 3 formal opportunities to appeal their detention at the tribunal, rather than only 2 within their first year of detention
• patients detained under section 2 should be able to apply for discharge during the first 21 days, as opposed to the current 14 day cut off
• independent mental health advocates should be able to apply to the Mental Health Tribunal on the patient's behalf, so that no one slips through the net
• the frequency of automatic referrals to the tribunal are increased to ensure people detained under the Mental Health Act have their case heard
• the tribunal takes into account the patient's statutory care and treatment plan when they consider an application for discharge. This should clearly set out the responsible clinician's justification for the patient's continued detention

See chapter 3: giving patients more rights to challenge detention in part 1 of the White Paper for more information on our plans for giving patients more rights to challenge their detention. You can answer the consultation questions on the proposed time intervals for referring a patient to the tribunal.

Question

Do you agree or disagree with the proposed timetable for automatic referrals to the Mental Health Tribunal (see table 1 for details)?

1) Patients on a section 3

• strongly agree
• agree
• disagree
• strongly disagree
• not sure

2) Patients on a community treatment order (CTO)

• strongly agree
• agree
• disagree
• strongly disagree
• not sure

3) Patients subject to part 3

• strongly agree
• agree
• disagree
• strongly disagree
• not sure

4) Patients on a conditional discharge

• strongly agree
• agree
• disagree
• strongly disagree
• not sure

Please give reasons for your answer (up to 500 words).

Table 1: frequency of automatic referrals

Type of patient	Current provisions	Proposed provisions
Patients subject to section 3	Referral 6 months after the detention started, if the patient had not made an appeal. Thereafter referral takes place if more than 3 years have elapsed since the case was last considered by the tribunal. For patients under the age of 18, cases are referred to the Tribunal annually.	Referral 4 months after detention starts, if the patient had not already made an appeal. Thereafter, referral would take place 12 months after the detention started, if the Tribunal has not considered the case in the intervening months. After the first 12 months of detention, referral would take place annually.
Patients on a CTO	During the CTO, referral takes place 6 months after detention begins, if the tribunal has not considered the case in the first 6 months. Thereafter, referral takes place if more than 3 years (or 1 year in the case of a patient under 18) have elapsed since the case was last considered by the tribunal. If the CTO is revoked, referral to the Tribunal takes place as soon as possible.	Referral would take place 6 months after the patient was put on the CTO, if the tribunal has not considered the case in the first 6 months. Thereafter, referral would take place 12 months after the patient was put on the CTO, if the Tribunal has not considered the case in the intervening month and continue to take place annually.
Patients subject to Part 3	Referral takes place if the tribunal has not considered the patient’s case in the last 3 years.	Every 12 months.
Patients on a Conditional Discharge (restricted, part 3 patients)	These patients have no right to an automatic referral.	Referral would take place 24 months following receipt of the conditional discharge by the patient. Thereafter, referral would take place every 4 years.

Changes to the tribunal's responsibilities

Where the continuation of a patient's detention is justified, we want to give the tribunal the power to grant leave or direct the transfer of patients to other, less restrictive settings, to help facilitate the patient's recovery. We also propose to give the tribunal the power to direct services in the community, where this is a barrier to discharge. We propose that health and local authorities should be given 5 weeks to deliver on directions made by the Mental Health Tribunal.

Other changes to procedures around a patient's detention

We propose removal of existing parts of the detention review process, which the review concluded were ineffective or are compensated for by the above reforms, which will ensure that a patient's case for discharge is more frequently reviewed:

• removal of the automatic referral to a tribunal when a patient's community treatment order (CTO) is ended and they return to hospital. A CTO is an order made by the responsible clinician to give the patient supervised treatment in the community, instead of staying in hospital
• removal of the role of associate hospital managers (AHMs) (also known as a hospital managers' panel) in reviewing a patient's case for discharge from detention or a CTO

More information on these changes can be read at chapter 3: giving patients more rights to challenge detention in part 1 the White Paper. You can also answer the following consultation questions:

Question

We want to remove the automatic referral to a tribunal received by service users when their community treatment order is revoked. Do you agree or disagree with this proposal?

• strongly agree
• agree
• disagree
• strongly disagree
• not sure

Please give reasons for your answer (up to 500 words).

Question

We want to give the Mental Health Tribunal more power to grant leave, transfers and community services.

We propose that health and local authorities should be given 5 weeks to deliver on directions made by the Mental Health Tribunal. Do you agree or disagree that this is an appropriate amount of time?

• strongly agree
• agree
• disagree
• strongly disagree
• not sure

Please give reasons for your answer (up to 500 words).

Question

Do you agree or disagree with the proposal to remove the role of the managers’ panel in reviewing a patient's case for discharge from detention or a community treatment order?

• strongly agree
• agree
• disagree
• strongly disagree
• not sure

Please give reasons for your answer (up to 500 words).

Chapter 4: strengthening the patient's right to choose and refuse treatment

We plan to update the Mental Health Act so that patients:

• have greater influence over decisions about their care and treatment
• can expect their wishes and preferences to be respected and followed
• have the opportunity to challenge their care and treatment if their wishes are not followed

We will do this by making the changes set out below.

Introducing advance choice documents

In an advance choice document, people will be able to set out in advance the care and treatment they would prefer and/or treatments they wish to refuse should they later become too unwell to make these decisions themselves. The document can also set out other important information like details of the patient's nominated person, crisis planning arrangements and early signs of relapse.

Our reforms will require that advance choice documents must be taken into account if the patient later lacks the relevant mental capacity to express their wishes.

We propose that advance choice documents will, in most cases be treated as equivalent to the wishes and preferences expressed by someone with the relevant capacity so long as, at the time of writing, the individual had the relevant mental capacity.

You can read more about what can be included in an advance choice document, and how they will work in practice in chapter 4: strengthening the patient’s right to choose and refuse treatment in part 1 of the White Paper. You can also answer consultation questions about what should be included in a patient's advance choice document and how the validity of an advance choice document should be determined:

Question

Do you have any other suggestions for what should be included in a person's advance choice document?

Your answer can be up to 500 words.

Question

Do you agree or disagree that the validity of an advance choice document should depend on whether the statements made in the document were made with capacity and apply to the treatment in question, as is the case under the Mental Capacity Act?

• strongly agree
• agree
• disagree
• strongly disagree
• not sure

Please give reasons for your answer (up to 500 words).

Making care and treatment plans statutory

We propose that all patients must have a detailed care and treatment plan in place by day 7 of detention and that this is signed off by the medical or clinical director by day 14. The care and treatment plan should include information such as:

• the care and treatment provided and how it can be delivered in the least restrictive way
• how the patient's wishes and preferences are taken into consideration, including the content of any advance choice document
• the responsible clinician's reasoning when the patient's wishes and preferences are not followed, however they have been expressed
• how the recommendations from Care (Education) and Treatment Reviews have been taken on board in the case of patients with a learning disability or autistic patients, including any reasons why these have not been followed.
• planning for discharge, including aftercare arrangements
• acknowledgement of any protected characteristics, for example known cultural needs, and how the plan will take account of these

You can read more about what we propose should be included in a care and treatment plan and how they will work in practice in chapter 4: strengthening the patient’s right to choose and refuse treatment in part 1 of the White Paper. You can also answer the consultation question on what else should be contained in the statutory care and treatment plan:

Question

Do you have any other suggestions for what should be included in a person's care and treatment plans?

Your answer can be up to 500 words.

Introducing a new framework for patient consent and refusal of medical treatment

We want to give patients greater control over their care and treatment and the right to refuse specific medical treatments at a much earlier point in detention. To achieve this, we propose reforms to part 4 of the act, which regulates decisions about a patient's care and treatment, including what happens when a patient gives consent to treatment being administered to them, and what happens when they don't.

These reforms will improve existing safeguards and introduce new ones for patients who are not consenting to treatment. A key change we wish to make is to bring forward the point at which the second opinion appointed doctor (SOAD) reviews a patient's treatment. The SOAD is independent of their responsible clinician and reviews whether the treatment is right from a clinical perspective and if the patient's views and rights have been sufficiently considered. Currently, the SOAD must certify a patient's treatment 3 months after the treatment began, where they are not consenting. We propose to give the patient access to the SOAD at day 14 of detention and, where the patient lacks the relevant capacity to consent to treatment, we will require that the SOAD certifies their treatment at month 2, as opposed to month 3.

Another important reform we propose to make is the ability for patients to appeal treatment decisions at the tribunal, before a single judge, where there is evidence to suggest their wishes and preferences were inappropriately overruled by the responsible clinician.

Chapter 4 sets out more details on the changes we want to make around:

• the rights of patients to be involved in decisions around medical treatment, and to refuse specific treatments, with different rules depending on whether someone refuses with or without capacity and on the nature of the treatment
• the procedures that must be followed by health professionals to ensure that they take account of a patient's wishes and preferences around medical treatment
• the rights of patients to appeal decisions made by the responsible clinician around their treatment and how these differ for patients with and without the relevant mental capacity and those with an advance choice document
• changes to the criteria for administering treatment in urgent circumstances that protect the right of the patient to refuse treatment, if they have relevant capacity to do so

You can also answer the consultation questions on these changes:

Question

Do you agree or disagree that patients with capacity who are refusing treatment should have the right to have their wishes respected even if the treatment is considered immediately necessary to alleviate serious suffering?

• strongly agree
• agree
• disagree
• strongly disagree
• not sure

Please give reasons for your answer (up to 500 words).

Question

Do you agree or disagree that in addition to the power to require the responsible clinician to reconsider treatment decisions, the Mental Health Tribunal judge (sitting alone) should also be able to order that a specific treatment is not given?

• strongly agree
• agree
• disagree
• strongly disagree
• not sure

Please give reasons for your answer (up to 500 words).

Chapter 5: improving support for people who are detained

Nominated person

One of the overarching aims of our planned reforms is to give people more choice and autonomy when subject to the act.

This section discusses our plans to replace the current nearest relative role, which we think is out of date and does not give the patient enough say in who is involved in their care, with a new statutory role, known as the 'nominated person'. Individuals will be able to choose their nominated person, if they want one, at the point of detention under the act or in their advance choice document.

If a patient is too unwell to make this decision, an approved mental health professional (AMHP) will appoint one for them. AMHPs are mental health professionals who have been approved by a local authority to carry out certain duties under the act. They are responsible for coordinating a person's assessment and admission to hospital if they are sectioned under the act.

The nominated person will have all the powers of the nearest relative, plus some new powers and rights, including:

• the right to be consulted on statutory care and treatment plans to ensure the patient's best interests are protected
• the right to be consulted on transfers between hospitals, as well as about renewals and extensions of detentions and CTOs
• the ability to appeal clinical treatment decisions, on behalf of the patient where they are too unwell to do so themselves
• the power to object to the use of a CTO on behalf of the patient
• the power to apply for discharge to the tribunal on behalf of the patient

We will change the process around overruling decisions made by the nearest relative, so that the nominated person will not forfeit their role in the patient's care if they object to the patient's detention.

You can read more about the powers of the nominated person, which patients will have access to them and the circumstances and procedures by which their powers can be overruled and where this responsibility lies in chapter 5: improving the support for people who are detained in part 1 of the White Paper. You can also answer the consultation questions about the new powers of the nominated person:

Question

Do you agree or disagree with the proposed additional powers of the nominated person?

• strongly agree
• agree
• disagree
• strongly disagree
• not sure

Please give reasons for your answer (up to 500 words).

We want to see that more patients have the right to a nominated person. We intend to extend this right to patients in the criminal justice system, who are subject to part 3 of the act (also called forensic patients), however, the nominated person's powers will be more limited.

For children and young people, those aged 16 and 17 will have the same right to choose a nominated person as an adult. For children under 16, we think that if they are ‘Gillick competent’, where they have sufficient understanding, maturity and intelligence to fully understand, we think that they should be able to choose a nominated person too.

You can find more information on this area in chapter 5: improving the support for people who are detained in part 1 of the White Paper and you can also answer the consultation question on the ability of children and young people to choose a nominated person:

Question

Do you agree or disagree that someone under the age of 16 should be able to choose a nominated person (including someone who does not have parental responsibility for them), where they have the ability to understand the decision (known as ‘Gillick competence’)?

• strongly agree
• agree
• disagree
• strongly disagree
• not sure

Please give reasons for your answer (up to 500 words).

Advocacy

Independent mental health advocates (IMHAs) provide important safeguards to people detained under the MHA. We want to expand the role of IMHAs so that they can also:

• support patients to take part in care planning
• support individuals to prepare advance choice documents
• challenge treatment decisions where they have reason to believe they are not in the patient's best interests
• appeal to the tribunal when patients are too unwell to do so themselves

High quality advocacy is critical to make sure people get the support they need when detained. We are considering how we can improve the role and we welcome your views on whether this can be achieved by professionalising the service.

A priority in the delivery of higher quality services is the development of culturally appropriate advocacy for people of all ethnic backgrounds and communities. We will be conducting culturally-sensitive advocacy pilots to learn how to better respond to the diverse needs of individuals from minority ethnic communities.

You can answer the consultation questions on the expanded powers of IMHAs and how we can ensure that high quality advocacy services are delivered across the board:

Question

Do you agree with the proposed additional powers of independent mental health advocates?

• strongly agree
• agree
• disagree
• strongly disagree
• not sure

Please give reasons for your answer (up to 500 words).

Question

Do you agree or disagree that advocacy services could be improved by:

1) enhanced standards

• strongly agree
• agree
• disagree
• strongly disagree
• not sure

2) regulation

• strongly agree
• agree
• disagree
• strongly disagree
• not sure

3) enhanced accreditation

• strongly agree
• agree
• disagree
• strongly disagree
• not sure

4) none of the above, but by other means

• strongly agree
• agree
• disagree
• strongly disagree
• not sure

Please give reasons for your answer (up to 500 words).

Chapter 6: community treatment orders (CTOs)

The purpose of CTOs is to enable some inpatients, who might otherwise remain detained under the act, to be discharged into the community with conditions intended to maintain ongoing contact with services, in order to provide support and prevent relapse.

We will reform CTOs so that they are only used where there is strong justification for doing so and where the CTO is considered to deliver a genuine therapeutic benefit to the patient.

To achieve this, we will:

• strengthen the criteria to make a CTO in the first place, so it reflects the new criteria for detaining someone under section 3 of the act
• increase the evidence requirements needed to make a CTO and the conditions around it
• change the process for recalling a person subject to a CTO back to hospital, so it is less disruptive to the individual
• require that more professionals have to sign off on a CTO, to ensure greater scrutiny
• give the tribunal powers to order that the responsible clinician reconsiders the conditions of a patient's CTO where they are overly restrictive
• give the nominated person the right to object to a CTO, on behalf of the patient
• introduce an expectation that a CTO should last no longer than 24 months

We hope that these reforms lead to fewer people being placed on CTOs and, where they are used, that patients benefit from the structure they provide to support continued engagement with mental health services.

We will monitor the effects of these reforms over an initial 5-year period. We will further review and update Government policy on the use of CTOs in line with the emerging evidence.

You can read information on the proposed reforms to CTOs in chapter 6: community treatment orders (CTOs) in part 1 of the White Paper.

Chapter 7: the interface between the Mental Health Act and the Mental Capacity Act

When a person needs to be admitted to hospital because of their mental disorder, the clinician may need to decide whether the person should be admitted under the Mental Health Act or the Mental Capacity Act's Deprivation of Liberty Safeguards (DoLS), which will soon be replaced by Liberty Protection Safeguards (LPS).

This choice between which framework is most appropriate arises if the patient:

• is suffering from a mental illness that puts their own safety at risk and requires hospital admission for medical treatment
• lacks the relevant mental capacity to consent to detention and treatment
• is not objecting to detention or treatment

In these circumstances, it is currently unclear which legal framework should be used. There are also opposing views on which legal safeguards are better for patients.

We are exploring the review's idea of introducing a simpler 'dividing line' between the Mental Health Act and the Mental Capacity Act to make it clear which framework a clinician should use to detain a patient in these circumstances.

This proposal would mean that the choice would be removed, and decision makers would use the DoLS or LPS and not the Mental Health Act, if a patient:

• lacks the relevant mental capacity to consent to detention and treatment
• and is not objecting to detention or treatment

You can read more on this issue at chapter 7: the interface between the Mental Health Act and the Mental Capacity Act in part 1 of the White Paper and also answer the consultation question on how we should make clearer the dividing line between the Mental Capacity Act and the Mental Health Act:

Question

How should the legal framework define the dividing line between the Mental Health Act and the Mental Capacity Act so that patients may be made subject to the powers which most appropriately meet their circumstances?

Your answer can be up to 500 words.

Prior consent to be admitted as an informal patient

We also discuss whether we should make a provision in the MHA clearly setting out the right of individuals to consent in advance to admission to hospital for treatment for a mental illness. This would mean that, if an individual had given prior consent and they later become unwell and lose the relevant capacity, then they would be admitted as informal or voluntary patients, as opposed to being detained under the MHA or subject to the DoLs or LPS.

You can read more about what this would mean for patients in chapter 7: the interface between the Mental Health Act and the Mental Capacity Act in part 1 of the White Paper and you can answer the consultation question on whether we should change the legislation to make clear the option of prior consent to admission as an informal patient.

Question

Do you agree or disagree that the right to give advance consent to informal admission to a mental health hospital should be set out in the Mental Health Act (MHA) and the MHA code of practice to make clear the availability of this right to individuals?

• strongly agree
• agree
• disagree
• strongly disagree
• not sure

If you agree, please provide reasons for your answer (up to 500 words).

Are there any safeguards that should be put in place to ensure that an individual's advance consent to admission is appropriately followed?

Your answer can be up to 500 words.

Emergency powers in the Mental Health and Mental Capacity Acts

We want to improve the powers available to health professionals in accident and emergency departments so that individuals in need of urgent mental health care, stay on site, pending a clinical assessment. This aims to avoid the use of the police to hold individuals who are in crisis and are attempting to leave A&E, potentially leading to further distress to the individual.

We discuss the merits of relying on section 4B of the Mental Capacity Act to achieve this objective versus extension of section 5 of the Mental Health Act, both of which would provide health professionals in A&E with powers to temporarily hold people in specific circumstances.

See chapter 7: the interface between the Mental Health Act and the Mental Capacity Act in part 1 of the White Paper for further details of this change and you can also answer the consultation question:

Question

We want to ensure that health professionals are able to temporarily hold individuals in A&E when they are in crisis and need a mental health assessment, but are trying to leave A&E.

Do you think that the amendments to section 4B of the Mental Capacity Act achieve this objective, or should we also extend section 5 of the Mental Health Act (MHA)?

• rely on section 4B of the Mental Capacity Act only
• extend section 5 of the MHA so that it also applies A&E, accepting that section 4B is still available and can be used where appropriate

Please give reasons for your answer (up to 500 words).

Chapter 8: Caring for patients in the Criminal Justice System

Some people in contact with the criminal justice system may have a mental illness severe enough to require treatment in hospital. This could be identified after arrest by the police, recognised by a court, or a person may later become unwell in custody.

We want to ensure that people in these circumstances have access to the right care, at the right time, while fulfilling our duty to protect the public.

Part 3 of the act sets out the framework for the care of these patients. Many of our reforms to improve patient care will apply to patients under this part of the act, however, there are some exceptions:

• the new criteria for detention will not apply to part 3 patients
• the nominated person for a part 3 patient will have limited powers
• tribunal powers and automatic referrals to the tribunal will differ for these patients compared to civil patients
• changes to the detention criteria for individuals with learning disability and/ or autism will not apply to part 3 patients

The criminal justice system covers both England and Wales. We particularly welcome responses from people both in England and Wales to the consultation questions in chapter 8: caring for patients in the Criminal Justice System in part 1 of the White Paper.

Court powers: aligning Magistrate and Crown Courts

The MHA gives magistrates' courts power to divert a person in mental health crisis away from the criminal justice system and into hospital for assessment and/or treatment. However, there can currently be delays in ensuring people get the care and treatment they need.

To speed up the process, the review recommended that the magistrates' courts' powers should be increased to bring them in line with the Crown Court. As we are currently considering other reforms to the magistrates' courts, made by the Law Commission, we wish to give this further consideration before we make our decision on the review's recommendation.

Read chapter 8: caring for patients in the Criminal Justice System in part 1 of the White Paper for a full discussion of this proposal.

Secure transfers: transferring people between prison or immigration and removal centres and hospital

We want to ensure that people who need care and treatment under the MHA are not being held in prisons or immigration and removal centres (IRCs) inappropriately.

To speed up transfers of patients from prison or IRCs to mental health inpatient settings, we will introduce a 28-day statutory time limit in England once new guidance, being prepared by NHS England and Improvement (NHSEI), is properly embedded.

You can answer the consultation question on what else should be in place before we can safely bring in the statutory time limit for transferring patients.

Question

To speed up the transfer from prison or immigration removal centres (IRCs) to mental health inpatient settings, we want to introduce a 28-day time limit.

Do any further safeguards need to be in place before we can implement a statutory time limit for secure transfers?

• Yes
• No
• Not sure

Please give reasons for your answer (up to 500 words).

We also want to introduce a new independent, statutory role for managing the process of transferring people from prison to hospital so that barriers are more quickly overcome, and the patient's needs are put first. We are also considering giving people who are waiting to be transferred the right to have an IMHA.

You can answer the consultation question on how we should introduce the new statutory role:

Question

We want to establish a new designated role for a person to manage the process of transferring people from prison or an immigration removal centre (IRC) to hospital when they require inpatient treatment for their mental health.

Which of the following options do you think is the most effective approach to achieving this?

• expanding the existing approved mental health professional (AMHP) role in the community so that they are also responsible for managing prison or IRC transfers
• creating a new role within NHS England and Improvement (NHSEI) or across NHSEI and Her Majesty’s Prison and Probation Service to manage the prison or IRC transfer process
• an alternative approach (please specify)

Please give reasons for your answer (up to 500 words).

When there is no hospital bed available and a defendant (meaning a person against whom a criminal or civil action is brought) requires mental health care and treatment, courts may be forced to put them in prison as a ‘place of safety’. We wish to make sure that alternative locations are in place to end the use of prison as a place of safety.

Restricted patients

Restricted patients are patients detained in hospital under part 3 of the act who are subject to special controls by the Secretary of State for Justice, due to safety concerns.

For restricted patients, the responsible clinician must seek the consent of the Secretary of State for Justice to allow the patient leave, or to transfer the patient to another hospital, or to discharge the patient. The review raised its concerns about inefficiencies in this system which resulted in delays in securing this consent. We have since worked to address this and we are already seeing positive progress.

You can read chapter 8: caring for patients in the Criminal Justice System in part 1 of the White Paper for a discussion on our approach to reducing delays in the system and progress that has been made so far.

Conditionally discharged patients

Some restricted patients who no longer meet the statutory test for detention in hospital must be discharged. This can be an absolute discharge, with no conditions. Or, if deemed appropriate by the tribunal or the Justice Secretary, a conditional discharge.

A conditional discharge allows patients to move into the community. But they must follow certain conditions, and there is a power which means they may be recalled to hospital if it is necessary to protect the public from harm. There were 2,821 conditionally discharged patients in the community in 2019.

Conditionally discharged patients are generally supervised in the community by a psychiatrist and a social supervisor. Social supervision is an important role, balancing public protection with the care and support of conditionally discharged patients. It has traditionally been a local authority social worker, although other professionals can also take on this role. There is currently some confusion about which professionals should play this role and a lack of national guidance about how it should operate.

Question

Conditionally discharged patients are generally supervised in the community by a psychiatrist and a social supervisor.

How do you think that the role of social supervisor could be strengthened?

Your answer can be up to 500 words.

Release of transferred prisoners by the Parole Board

For part 3 patients who are being treated in a mental health hospital and who are serving an indeterminate or life sentence, decisions around the person's discharge from hospital and release from prison can be complicated.

Currently, the tribunal and then the Parole Board are separately required to consider decisions on discharge and release respectively, resulting in delays.

We are doing work to streamline processes and to identify procedural changes to reduce delays.

Giving the tribunal the power to discharge someone with conditions which restrict freedom in the community

For a small number of restricted patients, the risk they pose to others may still remain significant at the point they are no longer therapeutically benefittingfrom detention in hospital. We want to make sure that the risk these patients pose is managed in the most appropriate and least restrictive way, while progressing the individual along their care pathway.

To achieve this, we want to give the tribunal the power to discharge restricted patients into the community, under supervision and with conditions that restrict their freedom.

The criteria for doing this and the safeguards the patient would have access to are set out in chapter 8: caring for patients in the Criminal Justice System in part 1 of the White Paper.

You can also answer the consultation question on whether we should make this new discharge power possible and what it should involve.

Question

For restricted patients who are no longer therapeutically benefiting from detention in hospital, but whose risk could only be managed safely in the community with continuous supervision, we think it should be possible to discharge these patients into the community with conditions that amount to a deprivation of liberty.

Do you agree or disagree that this is the best way of enabling these patients to move from hospital into the community?

• strongly agree
• agree
• disagree
• strongly disagree
• not sure

If you agree, please give reasons for your answer (up to 500 words).

We propose that a 'supervised discharge' order for this group of patients would be subject to annual tribunal review. Do you agree or disagree with the proposed safeguard?

• strongly agree
• agree
• disagree
• strongly disagree
• not sure

Question

Beyond this, what further safeguards do you think are required?

Your answer can be up to 500 words.

Victims of unrestricted patients

We want to improve the level of information provided to victims of offenders who become subject to the act who have no restriction order, and how it is shared.

See chapter 8: caring for patients in the Criminal Justice System in part 1 of the White Paper for more details on the work we are doing to make sure that victims receive the information to which they are entitled.

Chapter 9: people with a learning disability and autistic people

We are committed to reducing the reliance on specialist inpatient services for people with a learning disability and autistic people and to developing community alternatives. As part of this, we want to limit the ability to detain people with a learning disability or autistic people under the act.

Both a learning disability and autism are lifelong conditions, which cannot be removed through treatment. We recognise that some people with a learning disability and autistic people may require treatment for a mental illness and we want to ensure that people receive high quality and safe care that is the most appropriate for them.

We propose changing the act to be clearer that autism or a learning disability are not considered to be mental disorders for the purposes of most powers under the act.

Our proposal is to allow for the detention of people with a learning disability and autistic people for assessment, under section 2 of the act, when their behaviour is so distressed that there is a substantial risk of significant harm to the person or to other people (as for all detentions) and a probable mental health cause to that behaviour that warrants assessment in hospital.

Where the driver of this behaviour is not considered to be a mental health condition, for example it is due to an unmet support need, an unmet social or emotional need, or an unmet physical health need (including untreated pain), grounds for a detention under the MHA would no longer be justified and the detention should cease.

You can read chapter 9: people with a learning disability and autistic people in part 1 of the White Paper to out more about the rationale behind this proposal and you can answer the consultation questions:

Question

Do you agree or disagree with the proposed reforms to the way the Mental Health Act applies to people with a learning disability and autistic people?

• strongly agree
• agree
• disagree
• strongly disagree
• not sure

Please give reasons for your answer (up to 500 words).

Question

Do you agree or disagree that the proposed reforms provide adequate safeguards for people with a learning disability and autistic people when they do not have a co-occurring mental health condition?

• strongly agree
• agree
• disagree
• strongly disagree
• not sure

Please give reasons for your answer (up to 500 words).

Question

Do you expect that there would be unintended consequences (negative or positive) of the proposals to reform the way the Mental Health Act applies to people with a learning disability and autistic people?

• Yes
• No
• Not sure

Please give reasons for your answer (up to 500 words).

Question

We think that the proposal to change the way that the Mental Health Act applies to people with a learning disability and autistic people should only affect civil patients and not those in the criminal justice system. Do you agree or disagree?

• strongly agree
• agree
• disagree
• strongly disagree
• not sure

Please give reasons for your answer (up to 500 words).

Question

Do you expect that there would be unintended consequences (negative or positive) on the criminal justice system as a result of our proposals to reform the way the Mental Health Act applies to people with a learning disability and to autistic people?

Your answer can be up to 500 words.

For people with a learning disability and autistic people, we want to make it a statutory requirement for the responsible clinician to consider the findings and recommendations made as part of care and treatment reviews in the patient's care and treatment plan. We know that care and treatment reviews (or care education and treatment reviews in the case of children) are effective in reducing hospital admissions when they are undertaken correctly and acted upon, this is why we want to give them statutory force.

Question

Do you agree or disagree that the proposal that recommendations of a care and treatment review (CTR) for a detained adult or of a care, education and treatment review (CETR) for a detained child should be formally incorporated into a care and treatment plan and responsible clinicians required to explain if recommendations aren't taken forward, will achieve the intended increase compliance with recommendations of a CETR?

• strongly agree
• agree
• disagree
• strongly disagree
• not sure

Please give reasons for your answer (up to 200 words).

Ensuring an adequate supply of community services for people with a learning disability and autistic people

We are also developing a duty on health and social care commissioners to collaborate to ensure provision of community-based support and treatment for this group. This will be set out in the Mental Health Act.

You can answer the consultation questions on this issue:

Question

We propose to create a new duty on local commissioners (NHS and local government) to ensure adequacy of supply of community services for people with a learning disability and autistic people. Do you agree or disagree with this?

• strongly agree
• agree
• disagree
• strongly disagree
• not sure

Please give reasons for your answer (up to 500 words).

Question

We propose to supplement this with a further duty on commissioners that every local area should understand and monitor the risk of crisis at an individual-level for people with a learning disability and autistic people in the local population through the creation of a local ‘at risk’ or ‘support’ register. Do you agree or disagree with this?

• strongly agree
• agree
• disagree
• strongly disagree
• not sure

Please give reasons for your answer (up to 500 words).

Question

What can be done to overcome any challenges around the use of pooled budgets and reporting on spend on services for people with a learning disability and autistic people?

Your answer can be up to 500 words.

Chapter 10: children and young people

We want to strengthen the rights and support children and young people receive when subject to the act.

In addition to legislative changes, all of which will be available to children and young people, we will ensure that care and treatment plans are provided to all children and young people receiving inpatient mental health care, irrespective of whether they are detained under the act.

See chapter 10: children and young people in part 1 of the White Paper for a discussion of the review's recommendations around assessing the 'competence' of children and young people to consent to their own medical treatment and make decisions about their care and treatment without parental permission or knowledge.

We wish to fully consider these recommendations as part of our review of the code of practice.

Chapter 11: the experiences of ethnic minority communities

Profound inequalities exist across mental health services and under the act for people from BAME communities, in particular for black African and Caribbean people. We are making a series of reforms to tackle these inequalities:

• the introduction of a new Patient and Carer Race Equality Framework (PCREF) to embed structural and cultural change in healthcare delivery to improve how patients from diverse ethnic backgrounds access and experience mental health care
• the development of culturally appropriate advocacy for people of all ethnic backgrounds and communities, in particular for black African and Caribbean people
• research that aims to support the improvement in mental health outcomes for people from ethnic minority communities

These reforms are supported by work being led by NHSEI to improve the diversity of the mental health workforce and by the wider reforms discussed in the White Paper.

Part 2: reforming policy and practice around the new act to improve patient experience

This section of the White Paper describes the current and future work the government and the NHS is undertaking to bring about changes so people have better experiences of care.

Transforming mental health services

The NHS Long Term Plan outlines the ambition for a radical transformation of mental health services, so that patients have better experiences of inpatient care and better mental health outcomes.

This transformation of mental health services is backed by additional investment rising to £2.3 billion each year by 2023 to 2024 and includes a renewed focus on services for people with severe mental illness and on improving the provision of community care. Ambitions include:

• increasing staff on acute inpatient wards – such as peer support workers, psychologists and occupational therapists to minimise time spent in hospital and improve outcomes
• reducing the lengths of stay in adult acute inpatient mental health settings
• establishing a culture of learning across the NHS so that, when things go wrong, commissioners and providers ensure that issues are circumvented in future
• ensuring that everyone has mental health crisis care support available at all times via NHS 111 by 2023 to 2024
• expanding community services to support 370,000 adults with severe mental illness to provide more support to people in the community before they need crisis or inpatient care, including under the MHA

Supporting people in the community

In addition to the Long Term Plan's ambitions to expand and improve community mental health care to address current gaps and prevent avoidable admissions we wish to make sure that all service users in contact with community mental health teams, inpatient care and/or social services have a high-quality care plan, personalised around their needs.

The current process around the provision of aftercare in the community for patients who have been discharged from the Mental Health Act can be confusing and there are inconsistencies in the way it is carried out. We want to produce national guidance on how budgets and responsibilities should be shared to pay for aftercare.

Improving ward culture for patients and staff

In addition to improving mental health services, we will take steps to create the best ward cultures to improve patient experience. A key part of this is the development of a quality improvement programme focused on implementing the Mental Health Act reforms. This will be led by NHSEI and will aim to address issues around quality, patient experience, leadership and culture.

Inpatient safety and risk

The safety of patients in mental health services will always be a crucial concern. The NHS Long Term Plan committed to a new Mental Health Safety Improvement Programme (MHSIP) which aims to tackle priority mental health safety issues:

• sexual safety for inpatients
• reducing restrictive practice
• reducing suicide and deliberate self-harm

You can read part 2 of the White Paper to find out more about the work that is underway in these priority areas.

We will work to ensure that new patient safety measures do not come at the expense of developing and maintaining truly therapeutic environments that support people to recover.

Improving the physical ward environment

Inpatient settings should offer rehabilitative environments that enable the delivery of therapeutic care and that support the recovery of patients.

We will improve the physical environment of mental health services, making them far better places for patients and for staff. As part of this, we will bring an end to dormitory accommodation, allowing patients the privacy of their own room and en-suite bathroom. The government has committed over £400 million for this purpose and has identified 1,200 beds that will receive this upgrade over the next 4 years. This is an important step towards improving sexual safety in mental health services and towards ending breaches of single-sex accommodation.

We are also investing in the building of new mental health hospitals as part of the government's hospital building programme.

The role of the Care Quality Commission (CQC)

The CQC has consistently reported that many people continue to experience care that is not person-centred and does not fully protect their rights.

Driven by these findings and the ambitions of the Long Term Plan, the CQC will review how it assesses factors that inform the quality of inpatient care, such as the physical layout of wards, the safety fixtures and fittings and the provision of same-sex accommodation.

In addition, the CQC will be working with people who use services, families, providers, frontline staff and other stakeholders to improve the way that they regulate services, with a particular focus on improving ward culture, given the critical role this can play in a patient's recovery.

Read part 2 of the White Paper to learn more about the other work the CQC is taking forward to help improve the experience of patients in mental health services. You can also answer the consultation question on how the CQC's monitoring role could be extended.

Question

How could the Care Quality Commission support the quality (including safety) of care by extending its monitoring powers?

Your answer can be up to 500 words.

Removing police cells as 'places of safety'

A 'place of safety' is a designated safe place where people who are experiencing a mental health crisis can be taken and where a mental health assessment can be carried out.

Currently, people can be taken to police cells for a mental health assessment. We want to put an end to this and ensure that, in future, all people in mental health crisis are taken to a clinical environment, where they can receive the care and support they urgently need. We have committed to reform the MHA to stop the use of police cells as places of safety by 2023 to 2024.

Enabling better handovers from police to health services

Currently, more people experiencing a mental health crisis are taken to hospital by the police than by ambulance.

The NHS Long Term Plan commits to investment to improve the capacity and capability of ambulance services to meet mental health demand, helping to avoid the use of the police to convey patients.

The mental health workforce

Expanding and developing the mental health workforce is vital to fulfilling our commitment to modernise the Mental Health Act. The government will be working with NHSEI, Health Education England and other stakeholders to look at further national support requirements, including training staff on the changes to the act, meaningful co-production and the development of expert-by-experience leadership roles within providers and local systems.

These reforms are, to an extent, supported by broader work to expand and develop the mental health workforce as part of the NHS Long Term Plan. However, we anticipate that the reforms will require further expansion of the workforce to meet additional demands.

We are working to increase the diversity of the mental health workforce to ensure that it better meets the needs of the community it serves. This involves work to recruit more people from the black African and Caribbean communities into mental health professions and supporting them to rise to senior levels.

We know that improving staff morale is important to delivering high quality patient care. NHSEI is working to improve the experience of staff and therefore the experience of patients through its Improving Health and Wellbeing programme.

Read part 2 of the White Paper for more information on our plans to expand and develop the mental health workforce.

Data and digital

The government is committed to working with all the organisations involved in the operation of the act to bring about improvements to data collection and to new digital approaches to service delivery. This is a critical part of building a modern mental health service that can more efficiently respond to patients' needs.

This ambition has been accelerated during the pandemic period in 2020, which has served to highlight the benefits that digital can bring.

Impact assessment

Alongside the White Paper we have produced an impact assessment in which we have estimated likely costs and benefits of implementing the proposed changes to the act.

Please provide information (up to 500 words). You can also upload files when you respond to the consultation.

Question

In the impact assessment we have estimated likely costs and benefits of implementing the proposed changes to the act. We would be grateful for any further data or evidence that you think would assist the departments in improving the methods used and the resulting estimates.

We are interested in receiving numerical data, national and local analysis, case studies or qualitative accounts, etc that might inform what effect the proposals would have on the following:

• different professional groups, in particular:
  • how the proposals may affect the current workloads for clinical and non-clinical staff, independent mental health advocates, approved mental health professionals, Mental Health Tribunals, SOADs etc
  • whether the proposals are likely to have any other effects on specific interested groups that have not currently been considered
• service users, their families and friends, in particular:
  • how the proposal may affect health outcomes
  • ability to return to work or effects on any other daily activity
  • whether the proposals are likely to have any other effects on specific interested groups that have not currently been considered
  • any other impacts on the health and social care system and the justice system more broadly

Please provide information (up to 500 words). You can also upload files when you respond to the consultation.

Responding to the consultation

There are a lot of questions and you may not wish to answer all of them. We have created a survey so you can answer as many or a few questions as you would like.

The questions have been divided up into sections and themes. The consultation will be open until 21 April 2021. This consultation is our formal consultation with the public.

Respond to the consultation.

1. A white paper is a document produced by the government that sets out proposals for future legislation. ↩

2. The functions, which in England are performed by the Mental Health jurisdiction of the First-tier Tribunal (usually referred to as the Mental Health Tribunal or MHT), are dealt with by a separate tribunal in Wales, the Mental Health Review Tribunal for Wales, or MHRTW. This is a devolved Welsh Tribunal under the President of Welsh Tribunals and is administered by the Welsh government. It’s important to note that the response to the recommendations in this White Paper only refer to the MHT in England and not the MHRTW. ↩