A deep dive into the Mental Health Bill 2024 - Overview

On 21 January 2025, Doughty Street Chambers hosted the first event in a series of webinars taking a ‘deep dive’ into the Mental Health Bill 2024 (‘the Bill’). The event was attended by lawyers, campaigners, other professionals and people with lived experience of the Mental Health Act 1983 (‘MHA 1983’).

Anselm Eldergill introduced the event. He said that there would be three subsequent seminars covering four themes:

1. Admission criteria and the new “nominated person”;
2. Detention and treatment; 
3. Autism and learning disability; 
4. The Tribunal and aftercare.

After Anselm’s introduction, three barristers from Doughty Street Chambers gave speeches introducing those themes.

Sophy Miles: Admission Criteria and the new “Nominated Person”

Sophy said that the Bill can be traced back to Theresa May’s 2017 promise to ‘rip up the 1983 Act’. From there, it was shaped by the 2018 Wesseley Review and its Report, which found, amongst other things, ‘unconscious bias, structural and institutional racism’ in the operation of MHA 1983. The Report recommended changes to ‘shift the dial in favour of greater respect for wishes, choices and preferences’.

In 2024, the Bill was introduced to Parliament. It does not contain all of Sir Wesseley’s recommendations, but is making progress, complete with an Easy Read guide to its contents. It will probably receive Royal Assent in the summer of 2025.

Clause 1 of the Bill introduces new definitions. These include ‘learning disability’, ‘autism’, the residual category of ‘psychiatric disorder’, ‘appropriate medical treatment’ and ‘serious behavioural consequences’ . 

Clause 3 of the Bill reforms the criteria for detention under sections 2 and 3 of the MHA 1983. As amended, they would read as follows:

Section 2

(2) An application for admission for assessment may be made in respect of a patient on the grounds that—

(a) he is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; 

(b) serious harm may be caused to the health or safety of the patient or of another person unless the patient is so detained; and

(c) given the nature, degree and likelihood of the harm, and how soon it would occur, the patient ought to be so detained.

Section 3

(2) An application for admission for treatment may be made in respect of a patient on the grounds that—

(a) he is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and

(b) serious harm may be caused to the health or safety of the patient or of another person unless the patient receives medical treatment,

(c) it is necessary, given the nature, degree and likelihood of the harm, and how soon it would occur, for the patient to receive medical treatment,

(d) the necessary treatment cannot be provided unless the patient is detained under this Act, and

(e) appropriate medical treatment is available for the patient.

Sophy said that the Bill’s changes to sections 2 and 3 are significant and would ‘tighten up’ the criteria for detention. 

Clauses 23 - 27 propose replacing the ‘Nearest Relative’ role with a new ‘Nominated Person’ position. To appoint a Nominated Person, one would have to follow the process described in a new ‘Schedule A1’ to the MHA 1983. Amongst other things, the nominee would have to be over 18 years old, and the instrument appointing them would have to be signed by a witness who ‘has no reason to think’ that the patient lacks the mental capacity to so appoint. 

The powers and duties of the Nominated Person appear in clauses 24 - 27. For example:

• An Accredited Mental Health Professional (‘AMPH’) would have a power to appoint a Nominated Person for patients who: (i) are, or are becoming, detained or subject to a guardianship and; (ii) lack capacity to make an appointment themselves. 
   
• The Nominated Person must, unless impracticable or impossible, be consulted before a patient is placed on a Community Treatment Order (‘CTO’). However, their objection can be overridden if the Responsible Clinician certifies that, if the patient was discharged without a CTO, they would likely endanger themselves or others.

Elizabeth Cleaver: The Tribunal

Liz described how the Bill affects access to Mental Health Tribunals (‘MHTs’) and their powers.

The Bill increases access to the MHT in two ways. First, it widens the timeframes for applying to the MHT. Clause 29 proposes that patients detained under section 2 may apply in the first 21 days of their detention (previously, the timeframe was 14 days). Similarly, those detained under section 3 can apply within the first 3 months (previously, they had to be detained for 6 months before applying). In both cases, patients would be able to apply to the MHT sooner than ever before.

Second, the Bill increases the frequency with which references to the MHT must be made. For civil patients, Clause 26 proposes that hospital managers must refer to the MHT after 3 months (previously, references were required after 6 months) and every 12 months thereafter (previously, references had to be made every 3 years). For restricted patients, Clause 71 provides that the Secretary of State must refer to the MHT every 12 months (previously, references were required every 3 years). Again, the result would be a greater number of cases before the MHT.  

The Bill changes MHTs’ powers to order patients’ discharge. For example:

• The discharge criteria would exactly match the admission criteria (as amended) as a result of Clause 7.
   
• MHTs’ statutory recommendations powers would be increased due to Clause 43.  For example, the MHT could recommend that ‘responsible after-care bodies make plans for the provision of after-care services’. If no such plans were made, the MHT would reconvene. 

Clause 29 contains an especially important change. It proposes empowering the MHT to conditionally discharge restricted patients into conditions amounting to a deprivation of a patient’s liberty, provided that: (a) doing so is necessary to protect another person from ‘serious harm’ and that; (b) such discharge would be ‘no less beneficial to [the patient’s] mental health than for them to be recalled to hospital’. This would effectively reverse SSJ v MM [2018] UKSC 60. Presumably, it would also require the MHT to understand the Mental Capacity Act 2005, to determine whether the conditions comprise a deprivation of liberty in fact.

The Bill leaves some problems unsolved, however. For example, it does not let patients appeal Responsible Clinicians’ treatment decisions, nor empower MHTs to make statutory recommendations in relation to restricted patients. Nor is the problem of MHTs’ underfunding addressed.

Dr Oliver Lewis: Autism and Learning Disability

Oliver explained that the Bill barely helps those with autism and learning disabilities. It exists against the background of Article 19 of the United Nations Convention on the Rights of Persons with Disabilities, which recognises ‘the equal right of all persons with disabilities to live in the community, with choices equal to others’ and requires states to take ‘effective and appropriate measures’ to enjoy those benefits. Whilst the United Kingdom is a signatory to the UNCRPD, it is not embedded in domestic law.

The Bill does not take the UK any closer to complying with UNCRPD. On the contrary, the Bill largely sustains the state’s power under MHA 1983 to subject disabled people to acts that would otherwise be unlawful, including prolonged detention and forcible injections. 

People with autism and learning disability are especially vulnerable to those acts. According to NHS England statistics, as of December 2024, 2,050 people with learning disability were detained in hospital. Of those, 92% were detained under the MHA 1983 (most under section 3) and 52% had been in hospital for over two years.

However, it is bizarre to view people with autism and learning disability through the lens of mental illness. Autism and learning disability are conditions of neurodivergence, not mental illness. Indeed, when people with autism and learning disability are hindered, it is often not because they are inherently incapable, but because society can’t accommodate their needs.  

An obvious problem is the lack of appropriate housing for people with autism and learning disability. If such a person is detained under MHA 1983, an MHT won’t discharge them unless there is a safe place for them to live outside of hospital. Currently, such places are rare.

Whilst impasses can sometimes be broken by levying several areas of law at once (e.g. MHA 1983, Mental Capacity Act 2005, Equality Act 2010, Care Act 2014, Human Rights Act 1998), few solicitors’ firms have contracts in all of those areas with the Legal Aid Agency. This makes it difficult to help people with autism and learning disability.

The Bill hardly addresses these problems. Its centrepiece is Clause 3(4), which prevents ‘people from being detained under section 3 of [the MHA 1983] on the basis of autism or learning disability’. Whilst efforts to keep people with autism and learning disability are welcome, that aim is unlikely to be achieved simply by swapping around words in a statute. Until people with autism and learning disability are better accommodated in the community, they may find themselves restricted again: either in hospital under Part 3 of the MHA 1983, or subject to deprivations of liberty in the community.

Clause 4, which has two key effects, is similarly limited.. First, it places Care and Treatment Reviews (‘CTRs’) within the MHA 1983. This is progress, as CTRs can be excellent root-cause analyses of people’s care in the community. However, Clause 4 does not give MHTs powers in relation to CTRs; whether to convene, direct that their recommendations are followed or otherwise. If MHTs had been given such powers, discharge from hospital could be far more productive for people with autism and learning disability.

Second, Clause 4 obliges Responsible Clinicians, in the exercise of their functions, ‘to have regard’ to guidance issued by the Secretary of State. It is doubtful what difference that duty will produce in real terms, as few Responsible Clinicians would admit to ignoring the Secretary of State’s guidance when doing their jobs.

To achieve meaningful change for people with autism and learning disability, we need greater resourcing. The Bill’s explanatory notes detail ‘financial requirements’ for implementing its reforms, including an investment of £2.5 billion in housing and social care options. This sounds good. However there is a risk, as recognised by Sir Keith Joseph MP in a speech in 1957, that politicians will want to raise those resources only ‘slowly and securely’. If so, the Bill may yield little more than excuse and inaction.

Future Events

Doughty Street Chambers thanks all attendees. Links to notes from subsequent seminars will be added below. 

• 27 February 2025: Sophy Miles, Elizabeth Cleaver and Laura Shapcott discussed MHTs, Advance Choice Documents and changes to the Bill after Committee Stage. 
   
• 4 March 2025: Oliver Lewis and six speakers further discussed the extent to which the Bill will help people with autism and learning disability.