Mental health bill 2024: what you need to know

Overview    

The Mental Health Act 2007 amended parts of the Mental Health Act of 1983 and importantly extended the rights of people diagnosed with mental illness. However, much of the current legislation is over 40 years old and does not reflect modern understanding of mental illness.

The Independent Review of the Mental Health Act followed in 2018 and two of the main drivers were to reduce detention rates and stark disparities of the use of the act on some ethnic minority groups. The review’s final report identified four key principles that should be used as a 'basis for all actions taken under the act'. It is these principles that form the foundation of the 2024 mental health bill: 

• choice and autonomy
• least restriction
• therapeutic benefit
• the person as an individual. 

Reforms the new legislation seeks to bring in

These reforms only relate to Part 2 of the Mental Health Act (MHA), not Part 3, which involves patients in criminal proceedings. Both Parts 2 and 3 provide the powers for compulsory detention There are also minor reforms to other Parts of the legislation that were brought in from the 2022 draft legislation. 

Key reforms

• The bar for detention will be higher; there must be evidence that ‘serious harm may be caused to the health or safety of the patient or of another person’. 
• People with a learning disability and autistic people without a co-occurring mental health issue will only be able to be detained for a maximum of 28 days, however this will only be enacted when the government is confident sufficient community services are in place. 
• Integrated care boards (ICBs) and local authorities will need to ensure they meet the needs of people with learning disabilities and autistic people without having to detain them, which means by ‘increasing community provision for this group’. They will also have to maintain a dynamic list of people with learning disabilities and autistic people who are at risk of detention.
• Community treatment orders (CTOs) will remain, but will have stricter criteria. 
• Patients will be able to choose their nominated person, with safeguards in place.
• Care and treatment plans when an individual is detained will become statutory.
• Patients and their nominated person will have more opportunities and power to challenge their detention and treatment.
• Police and prisons cells will no longer be able to be used as a place of safety for adults experiencing a mental health crisis. In 2023/24 police cells were only used as a place of safety for around 1 per cent of the total, and they are already outlawed for children and young people.
• A new time limit of 28 days will be set to transfer prisoners who need mental health treatment to a mental health hospital. In 2017, the NAO found the average wait for prison transfers was 100 days.
• Patients will automatically have access to independent mental health advocates, unless they choose to opt-out. ‘Informal’ patients will also have access, but will need to opt in. 

Minor changes

These changes from the 2022 draft mental health bill include:

• NHS England and ICBs must ‘make arrangements’ to provide information and support that allows people to create Advance Choice Documents (ACDs), although they will not be statutory.
• Inclusion of the four principles in the bill, but only in relation to ensuring the updated Code of Practice adheres to them.
• Statutory duty for the responsible clinician to consult with another clinician before discharging a patient, although we understand this is widely the approach already taken by services.
• Streamlined process for people to choose their nominated person.
• The inclusion of ‘likelihood of harm, and how soon it will occur’ in the detention criteria has been removed, due to complexities on defining these terms legally. 

Analysis

Updating the Mental Health Act is long overdue... however success of the reforms will be dependent on the wider infrastructure to support it.

Changes for people with learning disabilities and autistic people 

There is agreement from the mental health and learning disabilities sector that people with a learning disability and autistic people should not be detained any longer than necessary. However, our members are concerned that the changes increase the risk of people in these groups falling into the criminal justice system due to lack of community provision and the inability to access support through the MHA. 

Evidence from New Zealand, which made similar changes to their legislation, resulted in more patients being sent ‘to prison, left neglected in the community or admitted to forensic facilities as secure patients’ as they were unable to be detained under their equivalent of the MHA.

There are concerns from members that 28 days is not long enough for a thorough assessment to identify co-occurring mental disorder, due to the complexity that patients present with, for example patients who are non-verbal. High vacancy rates across the sector also impact on staff capacity and that will need to be addressed. In addition, patients with a learning disability and autistic people’s access to Section 117 support will be reduced due to the changes.

The government will only enact this change once it is confident sufficient community provision in place will mitigate this risk, however the level of provision that is needed for the government to enact this change is not currently clear. ICBs and local authorities are responsible for ensuring there is community provision available, however without a funded plan to build up this provision, there is a risk that the proposed changes to the legislation will never be enacted, and people will continue to be inappropriately detained. 

ICBs are already expected to maintain a dynamic risk register of people with learning disabilities and autistic people who are at risk of detention, however the MHA will make this statutory.

Reducing racial disparities

Reducing racial disparities on the use of the act was a key driver of the reforms. While it is not part of the legalisation, the patient and carer race equalities framework (PCREF), the anti-racism framework for mental health, is the key vehicle in reducing the racial disparities that exist within the MHA and in wider services. 

All mental health providers are expected to implement PCREF. There are concerns that the understanding of the framework, as well as the lack of resources available, are hampering its implementation and this would be a missed opportunity to address one of the more important issues with the MHA.

There are concerns that excluding Part 3 from the reforms, which relate to patients involved in criminal proceedings, will increase racial disparities regarding to detentions. This is because black people are significantly more likely to access mental health support through the criminal justice system and are over-represented in secure mental health care.

Debating community treatment orders

The racial disparities in the use of CTOs are incredibly stark – with black people being eight times more likely to be detained under a CTO than white people. There has been much debate about whether CTOs should be removed, however there was consensus among our members that while acknowledging the disparity concerning CTO use, they remain useful for some patients and result in the least restrictive option. Previous recommendations from the pre-legislative scrutiny committee that they should be abolished have not been included, although the government has committed to ‘reviewing them’. The details on this are not currently clear.

Advance Choice Documents

Making ACDs statutory was something that many in the sector were calling for and was recommended by both the MHA review and the pre-legislative scrutiny committee, due to the evidence that they reduce racial disparities in the level of detentions. The draft legislation asks ICBs and local authorities to allow and support people to create them, but there will be disappointment from some in the sector that these have not been made statutory.

Putting legislation into practice

Updating the Code of Practice will translate the legislation into practice. The new criteria for detention, that ‘serious harm may be caused’ needs to be defined, otherwise there risks inconsistency on how the definition is interpreted, and the bar for detention may not be adjusted. 

Implementation

Successful implementation of the act will depend on ensuring that the workforce and resources are in place. Capital funding to improve the safety and therapeutic environments of inpatient wards will also be vital to implementing the reforms.

• Detaining fewer people will help reduce demand for expensive inpatient services. However, to detain fewer people, clinicians must be confident that community services are resourced and robust enough to support the level of need of patients in the community.
• Detentions also often impact negatively on patient outcomes, increasing the need for, and therefore cost of, mental health support in the longer-term. Additional resources such as supported housing is vital to ensure people have access to step-down care, and NHS and VCSE provision to support people from entering a mental health crisis is required. 

The increased opportunities for patients to challenge their detentions are likely to increase the number of tribunal hearings and would require an additional 33 per cent expansion of the inpatient responsible clinician workforce. Given the 10-15 per cent national consultant psychiatrist vacancy rate, this will be very challenging. The legal aid budget would also need to increase. 

Parliamentary process and implementation timescales

We expect the bill to receive royal assent in summer 2025. As both the Conservative and Liberal Democrat parties support reforming the MHA, we do not expect much opposition to the bill as it passes through parliament. However, in the wake of the homicides by Valdo Calocane in 2023, there may be concerns raised around detaining fewer people and the theoretical risk this poses to the public. 

The NHS Confederation’s viewpoint is a reformed MHA will encourage engagement with mental health services and reduce the risk to the public. Parliamentarians will have the opportunity to suggest amendments to the bill.

Once enacted, the new MHA will be phased in over eight to ten years. This is to enable the Code of Practice to be updated, with the process for this expected to start in summer 2025. Also, it is important to give services time to adjust, to train and recruit staff and to develop new services. 

Key actions for members

• Although the bill is largely the same as the previous draft bill, members from across the system need to work together to continue with their preparations for these changes and identify what additional resources are needed. 
• The changes regarding people with learning disabilities and autistic people are likely to be most challenging. Systems need to have in place plans in place for how alternative provision will be developed and staffed, including around reduced entitlement to Section 117 support. 
• The implementation of PCREF is key to reducing racial disparities and requires board level endorsement.