Changes to the Mental Health Act

Discussions are afoot within government to reform the Mental Health Act which has been in place since 1983. These reforms are somewhat overdue in light of how we now approach issues with mental health. The final report into the reform review was published in December 2020 and made many recommendations for change.


The government's response to the report has now been issued in a White paper, a discussion document, which is being followed by a 12 week public consultation. If you have any views or thoughts on changes to the Mental Health Act you should read the consultation and comment. A revised mental health bill will then be drafted and introduced to Parliament for discussion when time allows.


It looks as if the changes are going to include four principles in the new legislation, so working similarly to the Mental Capacity Act 2005. This is in addition to the five principles in the code of practice. It is proposed to introduce the following:-


  • choice and autonomy - to ensure patients' views and choices are respected

  • least restriction - enduring Mental Health Act powers are used in the least restrictive way

  • therapeutic benefit - ensuring patients are supported to get better and discharged as quickly as possible

  • the person as an individual - ensuring patients are viewed and treated as individuals


There are also plans to tighten the criteria for detention under the Mental Health Act to address the rising rates of detention. There are plans to amend the section three detention criteria and the section two detention criteria.


It is intended that Mental Health Tribunals will now check on whether a patient's detention continues to be appropriate with changes coming in to alter the appeals process.


A new element to the legislation is to be introduced called Advance Choice Documents which are to be made by individuals who live with mental health issues at a time when they have capacity for when they do not. These are to document their preferences about future treatment. There will be a requirement for treating clinicians to consider the Advance Choice Documents whilst the individual is being detailed. Along with these documents there will be a requirement for all detained patients to have a care and treatment place with clear expectations about how this should be developed with the individual being detained.


It is proposed that there will be come amendments to introduce additional safeguards which will require the authorisation of the court before being administered if consent has not been provided by the individual, for example the use of urgent electroconvulsive therapy.


The nearest relative role is due to be replaced with a new statutory role called the nominated person who can be chosen by the patient to represent them and the role of independent mental health advocates is to be expanded into providing more support through the mental health treatment process.