Bindmans LLP has responded to a consultation on the Mental Health Act by the Department of Health and Social Care.

The consultation was prompted by an independent review of the Mental Health Act conducted by Professor Sir Simon Wessely.

The Mental Health Act 1983 gives significant powers of detention to psychiatric hospitals over vulnerable mental health patients. It governs decision making in clinical settings and creates the statutory basis for patients’ right to appeal to the Mental Health Tribunal for independent reviews of the use of these restrictive powers. Some of the components of the Act have been criticised as being outdated and out of step with modern society and patient care for many years.

While we welcome some of the government’s proposals which include greater patient autonomy, increased scrutiny of in-patient admissions by the Mental Health Tribunal and a genuine opportunity for patients to participate in their care and treatment – including by challenging the proposed medical treatment using the Tribunal process – we are concerned that some of the proposals could have the opposite effect. For example, we have invited government to reconsider the removal of automatic Tribunal referrals when a Community Treatment Order is revoked, and the abolition of the Hospital Managers’ power to discharge patients at any time.

Some of the proposals do not go far enough. People with learning disabilities and autism are poorly served by the legal framework as it currently stands. In our experience, people with these diagnoses are frequently detained purely because of the lack of appropriate services in the community, not because hospital treatment is necessary. We have sought commitment from government to improve funding for community services for that purpose and, while we welcome any reforms that would limit the scope to detain people with these diagnoses going forward, we have flagged the need for safeguards to ensure that patients with these conditions are not simply detained under the Mental Capacity Act instead.

Finally, in our view, any safeguards must be extended to patients with autism and learning disabilities who are detained under Part III of the Mental Health Act (sometimes referred to as ‘forensic patients’). Such patients are required to demonstrate, over a prolonged period of time, that they have engaged in the necessary psychology and rehabilitation, to reduce their risk level and be able to progress towards discharge from hospital.

In our experience as Tribunal lawyers, those with learning disabilities and autism find it the most difficult to demonstrate that they no longer pose a risk to the public. This is because psychology programmes are often not suited to these patients, or they struggle with the ward environment and boundaries, which are not suited to people with autism. Consequently, people with learning disabilities who are subject to these sections can remain stuck in hospital for many years longer than those with mental health diagnoses. The proposals do not extend adequate safeguards to prevent such patients from remaining in hospital for extended periods.

You can download and read our response below.