Our series will cover:

• Assessment and admission
• Nominated Person
• Inpatient issues Part I - treatment
• Inpatient issues Part II - RCs, IMHAs, complaints, discharge
• Community issues Part I - CTOs
• Community issues Part II - conditional discharge, guardianship and aftercare

In this first briefing, we will be focusing on the changes the Bill is proposing in relation to assessment and admission, including the MHA detention criteria.

Assessment and admission - summary of key changes

Since a key focus of the Bill is on ensuring ‘that detention and compulsory treatment under the Act is only undertaken when necessary’ (Explanatory Memorandum), it is unsurprising that many of its amendments focus on admission and the detention criteria.

Changes are introduced to the definition of mental disorder and appropriate treatment, as well as to the Part 2 detention criteria, with a distinction being introduced between the criteria for the Part 2 and the Part 3 provisions.

There are also four new key principles which will inform assessment and admission.

A further key change from a MHA assessment perspective will be the replacement of the long-outdated nearest relative role, with the introduction of new nominated person provisions, which will be considered in detail in our next briefing.

We discuss these key changes, and their potential impact, in more detail below.

Principles

What changes is the Bill proposing?

The Bill introduces changes to the requirement to draw up a Code of Practice, providing that, in both England and Wales, the Code must include a statement of principles, including the 4 principles below:

• Choice and autonomy - involving patients in decision-making, and considering their past and present wishes and feelings

• Least restriction - minimising restrictions on liberty so far as consistent with patient wellbeing and safety, and public safety

• Therapeutic benefit - ensuring patients receive effective and appropriate treatment

• The person as an individual - treating patients with dignity and respect, and considering their beliefs, values, past experiences and wider needs

Our thoughts

These principles should, of course, already be part-and-parcel of all mental health service provision. It therefore remains to be seen what impact, if any, the revised principles will have in practice, particularly where any issues may primarily lie in the challenges of delivering care within the resources available. The revised Code will of course add more ‘flesh to the bones’ in terms of the practical effect of these principles.

Mental disorder

What changes is the Bill proposing?

The MHA definition of mental disorder is very broad, with very limited exceptions and a qualification of the application of the longer-term provisions to those with a learning disability. For some time now, there has been considerable concern expressed in relation to the appropriateness of the application of the MHA to those who are autistic or have a learning disability, in particular the concern that MHA admissions may be counter-therapeutic and risk resulting in some service users being ‘stuck’ in hospital, pending appropriate community provision being put in place. 

The Bill introduces amendments to detention (and CTO) criteria which prevent a person being detained on a s.3 based on their learning disability and/or autism.

The key changes include:

• The broad definition of mental disorder with the alcoholism/drug addiction exemptions remains. However, a new ‘psychiatric disorder’ provision is introduced which is defined as any mental disorder/disability of mind other than learning disability or autism. New definitions are also introduced for autism and learning disability

• For detention under s.3 (or a CTO), a person must have a ‘psychiatric disorder’, thus detention on the basis of autism/learning disability is excluded

• For Part 3 provisions, however, a new ‘relevant disorder’ provision is introduced which is defined as a psychiatric disorder (as above) or autism or a learning disability ‘with serious behavioural consequences’. This effectively means the application of Part 3 to autism and learning disability is not limited in the way that it will be for s.3, with the position remaining broadly as it is now (including allowing for non-restricted patients to be discharged onto a CTO)

Note: Other provisions are also introduced which specifically apply to learning disability and/or autism, including requirements that care, education and treatment reviews/care and treatment reviews be carried out and ‘at risk’ registers maintained. We will consider these further in a later briefing.

Our thoughts

Whilst there are understandable concerns about the appropriateness of the application of the MHA to learning disability and autism, insofar as it is a lack of community resources which result in service users becoming ‘stuck’ in hospital, then these changes could have (presumably) unintended consequences. For some service users, detention could be based on a co-morbid disorder. There may be an increase in the use of the Part 3 provisions and confusion/complications arising. In some cases, the Mental Capacity Act (MCA) may have to be relied upon, with the ‘broken’ Deprivation of Liberty Safeguards (DoLS) applying even where the person objects, since they are no longer ‘within the scope’ of the MHA.

Detention criteria

What changes is the Bill proposing?

The Bill makes changes to the detention criteria for Part 2 patients ‘to ensure that people can only be detained under these sections if they pose a risk of serious harm either to themselves or to others.’ (Explanatory Memorandum).

Section 2 - For Section 2 purposes the amended criteria (in bold text) provide for detention where a person:

(a) is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment…; and

(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, the patient ought to be so detained.

Section 3 - For Section 3 purposes the amended criteria (in bold text) provide for detention where:

(a) the patient is suffering from psychiatric disorder of a nature or degree which makes it appropriate for the patient 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, 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.

Discharge and renewal - Amended criteria will also apply to (Tribunal) decisions to discharge and (for s.3) on renewal.

Part 3 forensic patients - Again, a distinction is introduced between Part 2 and Part 3 MHA, with the new criteria not (initially) applying to the Part 3 detentions. The new criteria will, however, apply when the Tribunal reviews detention (and presumably to other decisions to discharge) and (for non-restricted patients) on renewal (although the s.3 requirement for there to be a ‘psychiatric disorder’ is replaced by ‘relevant mental disorder’ and so applies to learning disability and autism).

The nurse’s holding power - The criteria for the nurse’s holding power in s.5(4) is also amended to reflect the ‘serious harm’ criteria.

Our thoughts

Whilst the serious harm ‘test’ is aimed at tightening the criteria, in practice, with the current major issues with bed availability, it may well be that the vast majority of patients who are currently detained would meet the serious harm test in any event, meaning there will be no/little real practical impact (other than, of course, the resources required to implement these changes). The assessment of the nature, degree and likelihood of harm is essentially a risk assessment. Whilst the Explanatory Memorandum refers to the changes providing ‘greater clarity’, the fact that serious harm is not defined means it will be crucial that the Code provides clear guidance to those involved in MHA assessments, in particular as to how the criteria should be applied.

Whilst there is commentary in the Explanatory Memorandum as to the rationale for the separation of the Part 2 and Part 3 criteria, it is far from clear why this distinction has been adopted, particularly since the revised criteria will apply on renewal/discharge. It is to be hoped that this does not cause confusion in practice.

The s.2 or s.3 debate may become more difficult, with a clear recognition that either criteria may be met and a choice made.

Appropriate treatment

What changes is the Bill proposing?

Whilst s.3 already has an appropriate treatment requirement, the definition of appropriate treatment will change as set out in the new s.1A, so that appropriate medical treatment will be medical treatment which has a ’reasonable prospect of alleviating, or preventing the worsening of, the disorder or one or more of its symptoms or manifestations’.

Our thoughts

The changes mean that there has to be a ‘reasonable prospect’ of treatment alleviating/preventing a worsening of the patient’s condition, rather than being provided for that purpose. Whilst it may be that the impact of the changed definition will be the focus of argument, particularly before the Tribunal, the removal of autism from the s.3 criteria may limit the impact in practice.

Section 3 detention periods

What changes is the Bill proposing?

Once detained under s.3, detention will last for 3 months, can be renewed for a further 3 month period, then for 6 months, and then yearly.

For Part 3 patients, the current 6 month period is retained (with some modification for CTO revocation and guardianship transfers).

Our thoughts

The changes to s.3 mean that detention will need to be reviewed/renewed more frequently. This will have a considerable impact from an administrative perspective, in particular in relation to the frequency of hospital managers' reviews.

What next?

Whilst, of course, changes may still be made (and there is some tidying up to do) as the Bill proceeds through the Parliamentary process, it seems likely that there will not be any major changes.

Although implementation (which will be phased in) is not likely to commence until 2027 - with the Code, new regulations and forms to be drafted in 2026 - there will be lots of work to do preparing for these changes and services should begin their strategic planning now.

We will continue to keep you updated on developments and, as the Bill moves towards implementation, can assist by advising on drafting and implementing policies and processes that are compliant with legislative change and will withstand regulatory scrutiny. We can also provide training on all aspects of the Mental Health Act and the impact of the proposed changes to ensure that staff understand the scale and implications of the changes being proposed.