Changing Mental Health Law
The 2017-2018 Review of the Mental Health Act in England and Wales shone a spotlight on a number of human rights issues that reflect the lived experience of the people involved in mental health care. These include long periods of detention that are not of therapeutic benefit and concerns that people accessing mental health services and their loved ones have little say over their care, treatment and recovery. From our experience of supporting people in the system, both those trying to access support (and their families, supporters, and advocates) and staff members trying to deliver care, the evidence is that the Mental Health Act is used in unsuitable, and often discriminatory, ways.
Since 2021, the UK Government has been moving ever-closer towards Mental Health Act reform. Read below for BIHR's work to promote a human rights-based approach to mental health care.
We gathered evidence on whether or not these reforms will improve the human rights protections of people and their loved ones accessing or trying to access mental health services. Together with NSUN (the National Survivor User Network) we ran interactive evidence gathering sessions and an online (Easy Read) survey giving people the opportunity to share their views and experiences of working with the Act or accessing mental health services. Our submission amplifies these voices in two distinct groups:
- People: People accessing (or trying to) access mental health services, or who have previously accessed mental health services, and their family members and people who care about them.
- Staff working in mental health: People working in organisations with legal duties to respect and protect rights, including those working in mental health services (including private, charitable, or voluntary bodies), and advocates and campaigners working in the area of mental health.
BIHR’s Key Findings
79%
of people said including information about human rights in the Mental Health Act will help make sure that staff think about human rights.
43%
of people thought that plans to change Community Treatment Orders did not protect people’s right to liberty, or they were unsure it would.
37%
people thought that the plans for a Race Equality Framework, culturally appropriate advocacy, and changes to Community Treatment Orders did not protect the right to be free from discrimination.
Read our reports
You can read all about our research findings in the report we submitted to the Government, available in Long and Easy Read below. You can also read our plain language Explainer on the consultation.
Read our response to the Government Read our Easy Read response to the Government Read our Explainer on the consultation
The Government response
The UK Government published its response to the consultation on the 15 July 2021. You can read their response in full here, and an Easy Read version is also available here. There were 1,710 responses to the consultation from individuals and organisations. The Government ran 19 policy development workshops with over 300 people with direct experience of the Mental Health Act. The government said there was ‘broad support for our proposed reforms’.
Our findings reflected in the Government Response
- Support for the four new guiding principles of: choice and autonomy, least restriction, therapeutic benefit, and the person as an individual. But these must not just be words and should be embedded in the mental health system. This includes through staff training, commissioning of services, and the language used in mental health care.
- The Government said they are planning changes that ‘will see that people receive earlier support and better mental health services in the community’. This could support people’s rights to liberty (Article 5) and to be free from inhuman and degrading treatment (Article 3).
- People should only be detained under the MHA if it would be of therapeutic benefit and there is no other way to provide support and protect them from inhuman and degrading treatment (Article 3). Most responses agreed, and that being detained should only happen 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’. The Government said agrees.
- The Government will implement Care and Treatment Plans and they will keep thinking about how they can make Advance Choice Documents work in practice. They also said they will look at making clear guidance for when people with capacity to make decisions about their care refuse a treatment that has been recommended for them. This could support people’s rights to autonomy (Article 8) but the Government needs to be clear about what it will do to make sure this happens.
Our remaining concerns about the Government Response
- There was no mention of the Human Rights Act at all; neither the duty to ally the Mental Health Act in a way the respects people’s human rights, not any mention of the specific rights which are engaged, such as liberty and non-discrimination. We think this needs to be in the new Mental Health Act and the Code of Practice and staff training. This would increase awareness of this duty and improve rights protection for people and their loved ones. 79% of the people involved in our research agreed with us.
- The government said it wants to change the Mental Health Act to help address the inequalities that Black, Asian and minoritised groups experience in mental health services. They will be launching a pilot programme of culturally appropriate advocacy and think about how to engage with experts by experience to shape how the legislation is implemented. Whilst these could support people’s right to non-discrimination (Article 14), there is no reference to structural racism in the mental health system nor clear plans on how this will be addressed.
- The Government will take forward its proposals about Independent Mental Health Advocates (IMHAs). This includes making them available to everyone staying in a mental health hospital and giving more power to support people to be involved in treatment decisions and to appeal against their detention. Improved access to properly-funded, culturally competent independent advocacy would support people’s rights to liberty (Article 5), freedom from discrimination (Article 14), and to respect for private and family life (Article 8). However, the Government said ‘the proposals that require additional funding continue to be subject to future funding decisions.’ Where advocacy is essential to ensuring the rights mentioned above are respected and protected, this cannot be subject to funding as public bodies have a legal duty to do this.
- The Government says they want to make sure Community Treatment Orders (CTOs) are only used for a very good reason and when they will help the person. Our research suggested having time limits on CTOs and making sure people can more easily raise complaints to challenge them would better protect people’s right to liberty (Article 5). There are longstanding concerns about the use of CTOs and its disappointing to have no clear and well-defined plans on these issues.
Advocacy in reforms to the Mental Health Act
In September 2021, we joined with VoiceAbility and over 50 other signatories including Mind, Rethink, the National Autistic Society, the NHS Confederation’s Mental Health Network, and the British Association for Counselling and Psychotherapy to write to the Health and Social Care Secretary about our concerns around access to independent advocacy in reforming mental health law. We called on the UK Government to fully implement its White Paper proposals to extend the right to advocacy to voluntary patients and to implement an ‘opt-out’ model for advocacy, where people automatically get support from an advocate rather than having to ask for one.
Joining organisations to raise concerns
We join organisations raising concerns about racism in mental health reforms
On the 14 December 2021, The Mental Health Alliance, a coalition of organisations working in the mental health sector, wrote to the Secretary of State for Health and Social Care, calling on him to address institutional racism in the Mental Health Act reform.
What happens next?
After publishing its response to the consultation on the MHA, the Government continued to develop the proposals and published a Draft Mental Health Bill in June 2022. This was subject to pre-legislative scrutiny, where a panel reviewed the Draft Bill and made some recommendations to change parts of it, which the Government responded to in March 2024, sharing which of the panel's recommendations it would take forward.
The Mental Health Bill had been 'shelved' by the previous Government as it was not mentioned in their final King's Speech, however under the current Government, mental health reform is back on the agenda. A Mental Health Bill will be reviewed by the House of Commons and the House of Lords who can suggest changes. When they are both happy with the Bill it will be approved (called Royal Assent) and then became an Act, which is a full law.
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