A Deep Dive into the Mental Health Bill 2024 – Changes to the Bill and Advance Choice documents

On 4 March 2025, Doughty Street Chambers hosted their second seminar in the series about the Mental Health Bill 2024 (‘the Bill’). This seminar discussed recently-proposed changes to the Bill, advance choice documents and whether the Bill follows the recommendations of the Wesseley Review. 

It was chaired by Anselm Eldergill, former judge and associate at Doughty Street Chambers. The speakers were Liz Cleaver and Sophy Miles, barristers at Doughty Street Chambers, and Laura Shapcott, who is an expert by experience.

Liz Cleaver: Amendment to the Bill and Advance Choice documents

Liz’s talk took two parts. The first concerned amendments to the Bill that were proposed during Committee stage, which concluded on 24 February 2025. The amended Bill is available here. The amendments included that: 

• ‘Serious harm’, within the amended s.2 and s.3 of the Mental Health Act 1983 (‘MHA 1983’) should be defined as ‘death or serious personal injury, whether physical or psychological’: see here.
   
• NHS facilities must record every time they subject a patient to force or long-term segregation: see here. 
   
• Care and Treatment Reviews (‘CTRs’) should be extended to patients in long-term segregation: see here.
   
• Profit-making companies should be banned from delivering treatment under the MHA 1983: see here.
   
• If children are detained on adult wards, the hospital managers must notify the local authority and review whether detention is in the child’s best interests every twenty-eight days: see here.
   
• Gillick competence should obtain statutory footing: see here.
   
• The Secretary of State must report on what community locations can be considered a ‘place of safety’ (per s.136 Mental Health Act 1983): see here.
   
• The Secretary of State must report on how to ensure continuity of care when patients are discharged from secondary services to their GPs: see here.
   
• There should be a costed plan for increasing community services for people with learning disabilities and/or autism: see here.
   
• Community services should be introduced to help patients withdraw from psychiatric medication: see here. 
   
• Local authorities should have a general duty to ‘promote mental health and wellbeing’: see here.

The House of Lords will consider these changes, then send the Bill back to the House of Commons. The Bill will probably receive Royal Assent in the summer of 2025.

The second part of the talk concerned Advance Choice Documents (‘ACDs’). An ACD is ‘a written [and witnessed] statement made by a [patient] specifying their decisions, wishes or feelings about any relevant matter that may arise’, to apply if they are detained under MHA 1983 and lack capacity or competence in relation to that matter (per Clause 43(3) of the Bill). 

ACDs would be analogous to and could include advance decisions under the Mental Capacity Act 2005. However, the two differ: advance decisions are binding when validly created and applicable to the proposed treatment, but it is unclear whether ACDs would bind responsible clinicians’ decisions. In particular, ACDs would not preclude detention and treatment under s.2 or s.3 MHA 1983 when the admission criteria are fulfilled. 

The Bill proposes obliging Integrated Care Boards, NHS England and Welsh Local Health Boards to ‘make such arrangements as it considers appropriate for’ publishing information about ACDs and helping patients make them (per Clause 43(2)).

Laura Shapcott: Lived experience and ACDs

Laura described her experience of treatment under MHA 1983. Laura said that treatment without consent can feel disempowering and that, had she been able to make an ACD after a first admission, the prospect of further treatment might have felt less intimidating than it did. 

Laura now works in a Mental Health Trust. She works with people with lived experience of mental health services with a view to reforming the mental health system. 

Laura’s Trust tries to adopt least restrictive practice and has therefore adopted a system similar to what is proposed through ACDs. Namely, if a patient has written down what treatment is best for them, teams will try to follow that preference insofar as possible. Nevertheless, Laura welcomed ACDs because they would require other Trusts to follow patient preferences, and would travel with patients who are admitted out-of-area. 

Yet, Laura identified gaps in the Bill. For example, where restraint and restrictive practice is planned over several months, it would be useful to have such plans periodically reviewed to ensure the treatment is not excessive. However, to the extent that the Bill disavows restrictive practice, it represents welcome progress towards a better system of mental healthcare. 

Sophy Miles: The Wesseley Review

Sophy analysed whether the Bill follows the recommendations of the 2018 Wesseley Review. The Review sought to ‘improv[e]… service users’ ability to make decisions about their care and treatment’ in order to ‘shift the dial’ away from a single, powerful responsible clinician, and towards patient choice.

To assess whether the Bill so ‘shifts the dial’, Sophy analysed six of its elements.

1. ‘Appropriate medical treatment’: Currently, a responsible clinician need only assert that appropriate treatment exists when admitting a patient. The Bill proposes that, in future, there must exist treatment with ‘a reasonable prospect of alleviating, or preventing the worsening of, the disorder or one or more of its symptoms and manifestations’ and which is ‘appropriate in the person’s case’ (per Clause 8 of the Bill). This change would reduce the scope for admissions that do not meet patients’ needs.
    
2. Checklist: The Bill proposes that, before administering treatment, responsible clinicians would have to consider a checklist of matters including the patient’s past and present wishes and any applicable ACDs (per Clause 11 of the Bill). Compliance with the checklist would be overseen by a Second Opinion Authorised Doctor (‘SOAD’). This change would ensure that patient-specific factors are taken into account during clinical decisions. 
    
3. Administering treatment to capacitous, non-consenting patients: Currently, such treatment can be given for up to three-months. Thereafter, if it is to continue, a SOAD has to certify that the treatment is appropriate. The Bill proposes that such treatment may only be given for two-months and that, thereafter, for such patients (or non-capacitous patients with applicable ACDs or objecting deputies or holders of Lasting Powers of Attorney) treatment may only be given if: (i) there is a ‘compelling reason’ for treatment to be given and; (ii) a SOAD certifies that treatment should be given (pe Clause 13 of the Bill). Sophy noted that, while these appear helpful safeguards checks on responsible clinicians’ decision-making, there is no definition of ‘compelling reason’, nor specification of who decides whether one exists. If the responsible clinician had the final say on both matters, the safeguards may achieve little in practice. 
    
4. Urgent treatment: Currently, treatment can be administered if it is ‘urgent’ within the four limbs of s.62(1) MHA 1983. The third is that the treatment is not ‘irreversible or hazardous’ and is ‘immediately necessary to alleviate serious suffering’ by the patient. The Bill proposes retaining that limb for patients that lack capacity to consent to the treatment, but removing it for patients who possess the capacity to decide (per Clause 17 of the Bill). The result is that, if a patient has the mental capacity to make treatment decisions, they are entitled to reject treatment even if ‘serious suffering’ will follow.
    
5. Urgent electro-convulsive therapy (‘ECT’): Currently, the approved clinician can administer urgent ECT if it is ‘urgent’ within the meaning of s.62(1) MHA 1983. In doing so, the approved clinician can override any objection to ECT made by the patient when they had capacity, or in an advance decision, or voiced by a deputy or holder of a Lasting Power of Attorney. The Bill proposes that, in future, urgent ECT may only be given if: (i) a SOAD consults with a nurse and any Nominated Person that the patient has, and; (ii) issues a certificate approving urgent ECT (per Clause 15 of the Bill). This change would reduce the scope for urgent administration of ECT. 
    
6. Care and Treatment Plan: The Bill proposes entitling all detained patients, save for those detained under s5(2), s5(4), s135 or s136 MHA 1983, to a statutory Care and Treatment Plan. This would be ‘a plan.. for meeting the patient’s current and future needs arising from or related to a mental disorder’ and including other details about their care, leave and post-discharge issues. The Plan would have to be reviewed if the patient’s case was considered by the Mental Health Tribunal, and following a CTR or ‘reasonable’ request by a patient or their Nominated Person (per Clause 20 of the Bill). This change should tighten the focus on patient needs, wishes and preferences when arranging their care.

On paper, these changes appear to ‘shift the dial’ away from a single, powerful responsible clinician and towards patient choice. However, Sophy said that their efficacy may be limited if patients are increasingly assessed as lacking capacity to refuse treatment, or are simply not told about their new rights.

Related Events

Doughty Street Chambers thanks all attendees. Related seminars are described below. 

• 21 January 2025: Sophy Miles, Liz Cleaver and Oliver Lewis introduced the Mental Health Bill and the topics that would be discussed throughout the seminar series. The write-up is here.
   
• 4 March 2025: Oliver Lewis and six speakers further discussed the extent to which the Bill will help people with autism and learning disability. The write-up will be published shortly. 
   
• 16 May 2025: Doughty Street Chambers will host a seminar about MHTs and aftercare. Further information will be released in due course.