Mental Health Bill, House of Lords – Second Reading (25 November 2024)

1. The use of the Mental Health Act 1983 has significant implications for equality and human rights under domestic legislation (the Human Rights Act 1998 and the Equality Act 2010) and international law (in particular, the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD)).

2. In this briefing, we provide our analysis of the equality and human rights implications of the Mental Health Bill. This draws on our more detailed analysis of the proposed changes, provided to the Joint Committee on the Draft Mental Health Bill in September 2022.

Clause 3: Application of the Mental Health Act 1983: autism and learning disability

3. Amendments to the detention criteria, set out in clause 3, will remove learning disabilities and autism as sole grounds for compulsory treatment under section 3 of the Mental Health Act. As highlighted by a 2023 NHS review, many autistic people and people with learning disabilities have needs that can be better met in the community. Detaining people in secure hospitals inappropriately when there is no therapeutic benefit may violate their rights under the European Convention on Human Rights (ECHR), including the right to liberty (Article 5 ECHR) and right to a private, family life (Article 8 ECHR).

4. We previously highlighted risks in our response to the draft Mental Health Bill in 2022 that, without sufficient safeguards and community services in place, people may instead be detained under the Mental Capacity Act rather than being discharged from hospital to live in the community. It is therefore important that the UK government consider what additional safeguards may be necessary to reduce this risk.

5. We note that, in their response to the Joint Committee on the draft Mental Health Bill, the UK government has committed to improving and clarifying the interaction between the Mental Health Act 1983 and the Mental Capacity Act 2005 in the Mental Health Act 1983 code of practice. These clarifications should be made in parallel with proceeding with the proposed changes to the Mental Health Act 1983.

Clause 4: People with a learning disability and autistic people

6. Insufficient services providing support in the community can lead to a risk of unnecessary admissions to inpatient settings and delayed discharges. In some circumstances, this may violate people’s human rights, in particular the right to liberty and security (Article 5 ECHR) and right to a private and family life (Article 8 ECHR).

7. The new duties proposed in clause 4 aim to ensure that people with a learning disability and / or autistic people have the support they need in the community. These duties should be strong enough to mitigate the risk of inappropriate detentions. New section 125E of the Mental Health Act 1983, which would require local authorities and Integrated Care Boards (ICBs) to ‘seek to ensure that the needs of people with autism or a learning disability can be met without detaining them’, needs to be strong enough to ensure it achieves its desired effect of ensuring sufficient community-based services and reducing detentions. The current wording of the duty, to ‘seek to ensure’ the specified outcome of the section, does not do this.

8. Other legislation, for example, the sufficiency duty imposed on local authorities in relation to the provision of in-area accommodation for looked after children, as found in section 22G of the Children Act 1989, provides stronger wording which could be considered.

Clause 5: Grounds for detention

9. We note that clause 5 has been updated to reflect the Joint Committee’s recommendation that consideration of ‘how soon’ harm might occur should be removed from the detention criteria in the bill, due to concerns that this would be difficult to assess objectively.

10. Risk should be assessed objectively and appropriately to avoid the occurrence of discrimination. Page 158 of the Independent Review of the Mental Health Act highlighted that some ethnic minority groups, particularly men from Black ethnic groups, may be subject to negative stereotypes and other factors that lead to inappropriate risk assessments. Mitigating the risk of discrimination when making risk assessments should be considered and guidance should be provided to support this process.

Clause 17: Urgent treatment to alleviate serious suffering

11. The amendment in clause 17 removes the power to administer urgent treatment to alleviate serious suffering to patients who have the relevant capacity and are refusing. It is a general principle in law that people have a right to consent to or refuse treatment, even if that results in their suffering.

12. Involuntary treatment can in some circumstances violate the right to be free from torture and inhuman or degrading treatment (Article 3 ECHR) and the right to a private and family life (Article 8 ECHR), which includes a right to physical and psychological integrity. In addition, the UNCRPD provides in Article 19 that disabled people have a right to exercise choice and control over decisions affecting their lives with the maximum level of self-determination and autonomy.

13. The amended clause 17 explicitly excludes those who lack capacity but have made a valid and applicable advance decision to refuse treatment. This creates a real risk of unlawful discrimination, contrary to Article 14 ECHR, in distinguishing between the two groups of patients in this way.

14. We do not think that the exclusion of those who now lack capacity but have made an advance decision can be objectively justified. These circumstances would likely fall within the scope of Article 8 ECHR (regarding respect for choices regarding medical treatment) and Article 3 ECHR (not to be subject to inhuman or degrading treatment). There would be a clear difference in treatment between the two groups, likely to be based on an ‘other status’ for the purposes of Article 14.

Clause 13: Medicine etc: treatment conflicting with a decision by or on behalf of a patient

15. Amendments in the bill aimed at making it more difficult to override the stated wishes of the patient do not contain strong enough criteria for overriding an advance decision in non-urgent situations.

16. The new section 57A(4) of the Mental Health Act 1983, set out in clause 13, requires only that there be no alternative forms of medical treatment available to override an advance decision. This may not meet the requirements of Article 3 ECHR (not to be subject to inhuman or degrading treatment) and Article 8 ECHR (in terms of respect for choices regarding medical treatment). Case law indicates that a test of therapeutic necessity would also be required to ensure compliance with convention rights.

Clause 39: Information about complaints for detained patients

17. The amendment to section 132 of the Mental Health Act 1983, set out in clause 39, which places a statutory duty on hospital managers to give complaints information to both the patient and the nominated person should be strengthened to ensure that patients fully understand all of their rights.

18. Evidence from the CQC suggests many patients do not have their rights explained to them at the point of detention or in the right format or at appropriate intervals throughout their treatment. This is despite the existing requirement in the Mental Health Act 1983: code of practice for hospital managers to provide information to patients both orally and in writing.

19. We have previously called for a standardised notification of rights under the Mental Health Act 1983 and under equality and human rights law. We have developed a guide for patients who are detained under the Mental Health Act in England, explaining their rights under the Human Rights Act and the Equality Act. The guide was developed in collaboration with stakeholders (including patients, families, carers and staff). Early testing during the development of our notification of rights document suggested that a resource like this can help patients, families, advocates and staff better understand and realise people’s rights. It is important that ways are identified to ensure people are informed of their rights.

Clause 42: Advance Choice Documents

20. We have previously made recommendations aimed at improving awareness, and increasing the uptake, of Advance Choice Documents (ACDs). ACDs can help support a human-rights based approach to treatment. In particular, they may support Article 8 ECHR, which requires the state and public bodies to respect the right to personal autonomy, dignity and physical and psychological integrity. Additionally, allowing patients to have greater control can reduce the risk of discrimination in decisions about their care and treatment.

21. New sections 130M and 130N of the Mental Health Act 1983, set out in clause 42, would introduce new duties for ICBs, NHS England and local health boards (Wales) to make information about ACDs available, and help people create ACDs.

22. Page 58 of the explanatory notes to the Mental Health Bill states those most likely to benefit from making an ACD are those who may be detained or hospitalised in the future, and those who have been previously detained. Page 78 of the Independent Review suggested the UK government consider a requirement to offer ACDs to these two groups of people for this reason. It is therefore important that these groups in particular benefit from the new duty, and that this is consistent across all regions.

Monitoring and evaluation

23. We note the UK government’s commitment, on page 94 of the impact assessment for the Mental Health Bill, to developing a monitoring and evaluation strategy for the reforms and to undertaking a post-implementation review to assess the impact of the reforms after five years. Collecting, analysing and publishing data on the impact of reforms, particularly on groups sharing protected characteristics, can help to identify and address inequalities. It can also support government departments and public bodies to meet their obligations under the public sector equality duty (PSED).

24. The monitoring and evaluation strategy and the post-implementation review specifically should include assessment of the impact of the reforms on:

• reducing inappropriate detention, particularly for people with learning disabilities and autism
• supporting more people to live independently as part of their communities
• reducing restraint and other forms of coercion
• addressing the disproportionate treatment, including the use of community treatment orders (CTOs), of groups sharing protected characteristics, particularly people from Black ethnic groups

These assessments will ensure the bill has the positive impacts intended, in particular, to end the inappropriate detention of autistic people and people with learning disabilities, and to address racial disparities in detention rates and treatment.

25. Following the post-implementation review, the UK government should continue to report on the impact of reforms on these measures on a periodic basis thereafter.