The Mental Health Bill: a human rights explainer

The Mental Health Bill was published on 6 November 2024 and is currently progressing through the UK Parliament. The Bill sets out changes to the Mental Health Act 1983 which is the main law covering the assessment, treatment, and rights of people experiencing mental distress in England and Wales.

The Department of Health and Social Care has created an Easy Read version of the Mental Health Bill.

Go to the Easy Read version of the Bill

What is the Mental Health Act?

The Mental Health Act (MHA) is a law which sets out how people experiencing mental distress in England and Wales should be supported. It allows for people who have a “mental disorder” to be detained in hospital – also known as being sectioned – if there is a risk of harm to themselves or others. It also allows for people to be given medical treatment against their wishes if it is considered “appropriate”.

The MHA has now been in operation for over 40 years, with some changes made to it back in 2007. Over the years, several problems have been highlighted with how the MHA is being used, including more and more people being detained, certain restrictions being disproportionately applied to Black and minoritised communities, and inappropriate care for autistic people and people with a learning disability.

Where has the Mental Health Bill come from?

The issues identified with the MHA led to an Independent Review in 2018, which highlighted the need for reform to bring mental health law in England and Wales up to date. A public consultation took place in 2021 (click here to read about BIHR’s work on this) and a draft Bill was published in 2022, setting out planned changes to the MHA. A Committee made up of Members of Parliament from across the political spectrum was set up to review the draft Bill. They made a series of recommendations which the previous Government accepted or rejected in its response in March 2024.

The Bill had been shelved by the previous Government, however following the General Election in July 2024, mental health reform is back on the agenda. The Mental Health Bill was introduced to Parliament in the House of Lords on 6 November 2024 by Baroness Merron. The Bill is now up for discussion by politicians who can agree changes to it before it eventually becomes a new law.

Read about how laws are made here

What does the Bill propose to change?

The Mental Health Bill is guided by four principles:

Choice and autonomy – involving people in decisions about their care as well as taking into account the views of carers and loved ones.
Least restriction – minimising restrictions on liberty whilst also supporting the person’s wellbeing and safety, and the safety of others.
Therapeutic benefit – any treatment should be effective and appropriate.
The person as an individual – treating people with dignity and respect, thinking about their characteristics and past experiences.

These principles came out of the Independent Review in 2018, and the Bill states that they will be written into the MHA Code of Practice (statutory written guidance to help professionals who are making decisions using the law).

The Bill proposes a number of other changes, including:

preventing autistic people and people with a learning disability from being detained under the MHA unless they also have a co-occurring mental health condition which means they need to be admitted to hospital.
changing the criteria for when someone can be detained in hospital to specify that ‘serious harm’ may occur to the person or others if this doesn’t happen. The criteria of ‘serious harm’ also applies to Community Treatment Orders (CTOs), which require someone to engage with medical treatment in the community if they are at risk of being re-admitted to hospital.
introducing additional safeguards against being given compulsory medical treatment, including getting a second opinion and reducing the length of time the treatment can go on for before a formal review.
changing the role of ‘Nearest Relative’ to ‘Nominated Person’. This is someone chosen by the who can represent their views, object to certain decisions, and be consulted about their care and treatment.
placing more duties on hospitals and advocacy services to ensure people in need of help and information can access it, and extends the offer of independent mental health advocacy to informal patients (people who have consented to being in hospital for their mental health and are not detained).
creating ‘advance choice documents’, which are written statements setting out a person’s decisions, wishes and feelings about how they want to be treated if they are in hospital for their mental health. There will be a duty on NHS England and Integrated Care Boards to share information about advance care documents and help people to create them.
removing police stations and prisons as places of safety, where someone experiencing a mental health crisis can be taken by the police.

How are human rights relevant to mental health reform?

The Human Rights Act (HRA) requires whoever is in charge of the Bill to say whether or not they think it is compatible with human rights. This is called a Section 19 statement – you can read about this more in our explainer on the Human Rights Act. Baroness Merron, who introduced the Bill to Parliament in the House of Lords, has stated that the Bill is compatible with the rights protected by the European Convention on Human Rights, brought into UK law by the HRA.

The HRA is also set out as the foundation of all other laws, regulations and policies. This means that the MHA now, and any changes that might be made to it through the Mental Health Bill, must be applied in a way that supports human rights as far as possible. This means that although the Mental Health Bill may support human rights on paper, the practitioners making decisions using the law also have to ensure they do not apply it in a way which breaches people’s human rights in practice.

The Bill engages several key rights in the HRA, including but not limited to:

The right to life (Article 2, HRA)

One of the human rights legal duties on public services is to step in and take positive steps to protect rights. A risk to someone’s life may result from self-harm or suicide, and if public officials know or should know that the risk is real and immediate, they should take reasonable steps to avoid that risk. The MHA (and Bill) provides a legal framework for public officials to protect this right, which might involve someone being detained in hospital.

The new guiding principle of therapeutic benefit should be underpinned by this right.

Click here to read Melanie's story.

Read our explainer on the the right to life.

The right to be free from inhuman and degrading treatment (Article 3, HRA)

Serious physical or mental harm is likely to engage this right, and aspects of being detained in a mental health hospital have been known to cause this level of harm, such as seclusion, restrictive practices, and compulsory treatment. The Bill aims to reduce the likelihood of these practices.

The new guiding principle of therapeutic benefit should be underpinned by this right.

Click here for Kirsten’s story.

Read our explainer on the right to be free from inhuman and degrading treatment.

The right to liberty (Article 5, HRA)

As a non-absolute right, people can be deprived of their liberty if it is lawful, for a legitimate aim, and proportionate. Detention in a mental health hospital is an interference with the right to liberty, but this can be done in a way that respects people’s human rights as long as it meets the three-part test of being lawful, for a legitimate aim, and proportionate. The right to liberty also includes safeguards to ensure that people can appeal against their detention – here this takes the form of a mental health tribunal. The Bill aims to strengthen access to independent advocacy and will create automatic referrals to the tribunal if the person has not already applied themselves. Remember that courts and tribunals are public bodies with their own legal duties to respect, protect and fulfil human rights.

The new guiding principle of least restriction should be underpinned by this right.

Click here to read Megan’s story.

Read our explainer on the right to liberty.

The right to private and family life (Article 8, HRA)

Another non-absolute right, this covers our physical and mental wellbeing, involvement in decisions about our own lives, and relationships with others, all of which can come into play when it comes to admission to a mental health hospital. The guiding principles of choice and autonomy and the person as an individual are very relevant to this right. The MHA (and Bill) allows medical treatment against a person’s wishes – depending on the circumstances, this could interfere with some people’s right to private life whilst protecting it for others. Remember: non-absolute rights can only be limited by the actions or decisions of a public body if this is lawful, for a legitimate aim, and proportionate. As is always the case with human rights, these situations must be considered on a case-by-case basis depending on what is right for each individual person.

The new guiding principle of choice and autonomy should be underpinned by this right.

Click here to read Paul’s blog.

Read our explainer on the right to private and family life.

The right to be free from discrimination (Article 14, HRA)

This right can be raised alongside other rights in the HRA if discrimination appears to be an issue. This could be where someone has been treated worse due to their status or characteristics, or there has been a failure to treat them differently when they are in a very different situation to others, and this treatment cannot be objectively and reasonably jus The Bill seeks to address racial inequalities in how the Bill is put into practice as evidence shows that Black people are disproportionately restricted under the MHA. The Bill puts forward specific changes relating to people with a learning disability and autistic people, but this is justified as a way of improving treatment for this group of people under the MHA.

The new guiding principle of the person as an individual should be underpinned by this right.

Click here to read a befriending group’s story.

Read our explainer on the right to be free from discrimination.

A human rights-based approach to mental health reform

When BIHR responded to the public consultation on mental health reform back in 2021, we argued that for proposed reforms to have any real impact on the rights of people accessing mental health services, they must be properly implemented, staff must be fully supported, and adequate funding must be provided.

An attendee at an interactive workshop we ran for people accessing (or trying to access) mental health services and their loved ones said:

“If the Mental Health Act is not written with the human rights principles at the centre, how can we expect the European Convention on Human Rights Articles [i.e. our human rights which are part of UK law] to have full impact on practice?”

The Government should take a human rights-based approach to MHA reform, in developing the current Bill as it passes through UK Parliament, and in how the legislation itself is implemented. This process should follow the PANEL principles which help break down a human rights-based approach into practice:

Participation: people should be meaningfully involved in conversations about mental health reform and any changes that could affect their rights.
Accountability: it should be clear how people's voices will be listened to by human rights duty-bearers, and what they will do with that information.
Non-discrimination: mental health reform should work towards the elimination of discrimination, and people who face the biggest barriers should be prioritised.
Empowerment: people should be supported to take part in the development of the new legislation, including support to understand their human rights.
Legality: mental health law reform and how any changes are put into practice should be grounded in the Human Rights Act.

People's experience of mental health care is determined partly by what is written in the law, and partly by how staff in public bodies interpret that law in their everyday decision-making. The Human Rights Act and the legal duties it places on public bodies offers a lens through which any changes to the MHA can be implemented, ensuring that staff across mental health services can enact the new principles, policies, and practices in a human rights-respecting way. This could truly transform the implementation of mental health law from an experience which too often risks rights, to one in which people’s human rights are centred.

What's next?

The Mental Health Bill is the next step in a long process of mental health reform. We will keep this page updated as things move forward. You can follow the progress of the Mental Health Bill through parliament here.

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The Mental Health Bill: a human rights explainer

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