Detention under the Mental Health Act – Friend or Foe?

England and Wales

The Care Quality Commission (‘CQC’) has reported that from the beginning of March 2020 to the end of April 2021, 556 people died whilst detained under the Mental Health Act (1983) (‘Act’), 383 of which were said to have died from “non-Covid” causes[1].  This is in comparison to 2012-2019, when an average of 273 people per year are said to have died in England whilst in detention in hospital or being supervised in the community under the Act[2].  The new figures appear to demonstrate that there has been an increase in such deaths throughout the Covid-19 pandemic.

Problems within the mental health sector and, particularly, in respect of detaining people under the Act are not a novel concept.  Mind, the prominent mental health charity, comments that the legislation is outdated as reviews have not kept pace with radically changing societal attitudes towards mental health and well-being[3]. There are long identified sources of concern; in 2017, the Mental Health Act Independent Review, chaired by Professor Sir Simon Wessley with the final report published in December 2018[4], made 154 recommendations for reform. The Review highlighted that the key issues were the balance of individual autonomy against the state's responsibility to protect those in need of care.  Recommendations included the requirement of more robust and transparent justification for using compulsory powers, greater legal weight to be given to people’s wishes, and a complete end to the use of police cells when initially detained.

In recognition that reforms are desperately needed, the Government conducted a consultation from January to April 2021 on possible changes to legislation.  The Government White Paper[5] drafted in response, published in August 2021, sets out four guiding principles which underpin suggested reforms: to ensure service users' choices and autonomy are respected, to guarantee the Act’s powers are used in the least restrictive way possible, to ensure patients get better as quickly as possible to be discharged, and to view and treat patients as individuals. There are nine further, detailed proposals of area for reform within the White Paper including strengthening patients right to choose and refuse treatment, and improving the services provided to children and young people.  The reforms are due to come into force April 2022.

It is clear that significant changes are long overdue to protect some of the most vulnerable people in society.  The Department of Health and Social Care is reported to have confirmed that plans to reform the Mental Health Act will be brought forward shortly[6]. Though it is a positive step that the wheels are in motion for tangible reform, it remains to be seen whether the current proposals within the White Paper will go far enough and, indeed, whether the proposed timetable will be adhered to. 

If you are a health or social care provider and require advice and assistance, please contact us.  Our team are on-hand to assist with your regulatory queries.

Co-Authored by Heather Flaherty