The Joint Committee’s detailed report is published today following extensive hearings to scrutinise the draft legislation. The Joint Committee, established in July 2022, has examined the extent to which the draft Bill would ensure fewer people were detained against their wishes, promote patient choice, address racial inequalities and end the inappropriate long-term detention of people with learning disabilities and autistic people under the Act.
The Committee supports reform of the 1983 Mental Health Act and the intentions behind the draft Bill. It says that the reform process should not end here and needs to continue beyond the draft Bill in the direction of more rights-led legislation that respects patient choice.
The Government is urged to publish a comprehensive implementation and workforce plan alongside the Bill with clear actions and milestones. There should be a statutory duty to report annually to Parliament on the progress against milestones, including the number of detentions, length of stay and progress on reducing racial and ethnic inequalities.
Chair's comment
Chair of the Joint Committee on the draft Mental Health Bill Baroness Buscombe said:
“We welcome the intention of the Government’s draft Bill to bring about long overdue mental health reform. We hope Ministers will accept our amendments which strengthen the Bill and deliver workable legislation. Ministers must now act swiftly to bring it before Parliament.
“To drive reform, we urge the creation of a new Mental Health Commissioner to monitor the implementation of the Bill and to speak up for patients, families and carers.
“We believe stronger measures are needed to bring about change, in particular to tackle racial disparity in the use of the Mental Health Act. The failure to date is unacceptable and inexcusable.
“The Government should strengthen its proposal on advanced choice and give patients a statutory right to request an advance choice document setting out their preferences for future care and treatment, thereby strengthening both patient choice and their voice.
“The existing shortfall in community care must also be addressed or these reforms risk being derailed, with worse outcomes for those that the Bill is intended to help.”
Key recommendations to Government include:
- Creation of a new statutory Mental Health Commissioner post
- The Principles underpinning the 2018 Review and respect for racial equality should be included in the Bill
- Health organisations should appoint a responsible person to collect and monitor data on detentions under the MHA, broken down by ethnicity, with annual figures published by Government, and to implement policies to reduce inequalities
- Community Treatment Orders are used disproportionately for black and ethnic minority patients and should be abolished for the majority of patients, except those involved in criminal proceedings or under sentence where their continued use should be reviewed
- Strengthened duties for Integrated Care Boards and Local Authorities to ensure adequate supply of community services for people with learning disabilities and autistic people to avoid long-term detention
- Patients detained or previously detained under the MHA should have a statutory right to request an advance choice document is drawn up
Draft Bill must be stronger to tackle ‘collective failure’ on racial disparity
The Report sets out a number of recommendations to strengthen the draft Bill’s ability to tackle racial disparity. There have not been improvements since the commissioning of the 2018 Independent Review, intended to address racial and ethnic inequalities in the use of the Mental Health Act, with a rapid worsening on some key metrics. The Joint Committee condemns this a “collective failure that is unacceptable and inexcusable”.
Community Treatment Orders were found to represent “the starkest racial disparity” in the use of the Act, with evidence of an increase in their disproportionate use for black and ethnic minority patients - around eleven times higher than for white individuals.
In the absence of convincing evidence to demonstrate the benefit of CTOs, the Report recommends that CTOs are abolished for patients under Part II of the Act with a statutory review of CTOs for Part III patients (those involved in criminal proceedings or under sentence) to report within three years of the Bill’s Royal Assent, with abolition for Part III following that review unless a convincing case for their retention is made.
‘Strengthen duties’ to safeguard people with learning disabilities and autism
The Joint Committee welcomes the Government’s intention to end the inappropriate long-term detention of people with learning disabilities or autism but calls for stronger safeguards and duties on commissioning bodies to prevent more detentions under legal powers other than Section 3 of the Mental Health Act or diversion into the criminal justice system.
The Report also warns that a deficit in community care provision has the potential to derail these reforms, leading to worse outcomes for people with learning disabilities and autism.
NHS Digital figures showed that 1,970 people with learning disabilities or autism were detained in hospital in England in August last year, with 350 patients for longer than 10 years. The Joint Committee calls for agreed milestones on service provision to be met before the reforms are fully implemented.
Provision of places of safety
The removal of prisons and police custody as places of safety is welcomed with the provision of appropriate ‘places of safety’ seen as crucial to reducing detentions and pressures on A&E and the police.
The changes would require the provision of high-quality community care and the Joint Committee recommends that the Government includes this provision in its implementation plan.