3rd Report - Legislative Scrutiny: Mental Health Bill

It is crucial that any process of reform to mental health law hears from individuals with direct, personal experience. We welcome the Bill’s proposal to introduce a requirement to offer de–briefing to mental health patients after they have left hospital, so that personal experience can be learned from in future. (Conclusion, Paragraph 14)

We urge the Government to support the retention of this amendment as the Bill progresses through the House of Commons. (Recommendation, Paragraph 14)

It is particularly troubling that the accounts we heard at the roundtable event in 2025 echoed those the JCHR heard in 2019. This emphasised to us that reform of the Mental Health Act is both pressing and overdue. (Conclusion, Paragraph 18) Detaining autistic people and people with learning disabilities under the Mental Health Act

There is an inherent lack of justification for detaining a person for treatment based only on their learning disability or autism, giving rise to clear concerns over compatibility with Article 5 ECHR. We welcome the Bill’s attempts to remove autistic people and people with learning disabilities from the scope of detention for treatment under the Mental Health Act. We recognise that the change in the law would leave open a possibility of these groups being detained on other grounds. (Conclusion, Paragraph 50)

We are pleased to see that the Government has committed to monitoring the number of autistic people and people with learning disabilities who are detained under the Mental Capacity Act. The Government should report these numbers to Parliament within a year of the relevant clauses 53 of the Bill coming into force, and stick to their commitment to take action if they indicate that the Mental Capacity Act is being used inappropriately. (Recommendation, Paragraph 51)

While the evidence we have received supports the view that rushing implementation of the Bill could undermine efforts to improve the treatment of autistic people and people with learning disabilities, we also note that the implementation of other substantial changes in the law in this area have suffered from excessive delays. Most obviously, the Mental Capacity (Amendment) Act 2019, which provides for the replacement of DoLS with Liberty Protection Safeguards, has still not been brought into force. An uncertain target of implementation “where there are strong community services in place” provides little reassurance. Those affected have already waited a long time for this reform and the Bill must not be allowed to lie fallow. (Conclusion, Paragraph 59)

We therefore welcome the Government’s commitment to provide a Written Ministerial Statement to both Houses of Parliament on an annual basis, updating on progress on implementation. (Conclusion, Paragraph 60)

The detention of autistic people and people with learning disabilities under the MHA is a significant human rights concern. Detention in the absence of individualised, therapeutic treatment risks violating the Article 5 ECHR right to liberty and may even result in degrading treatment contrary to Article 3 ECHR. We welcome the Bill’s change in the threshold for detention, which should make detention less likely for everyone, including those who are autistic or have learning disabilities. We also share in the general welcome given in the evidence we received to clause 3 of the Bill, which would prevent autistic people and people with learning disabilities from being detained under section 3 MHA on the basis of their autism or learning disabilities. However, this change will be of limited benefit unless the Government also commits to invest in community services for autistic people and those with learning disabilities– both in respect of care and housing. (Conclusion, Paragraph 63)

To help ensure that mental health needs are properly identified before they reach crisis point, we recommend that the Government considers introducing an English equivalent to the right to a mental health assessment that appears in the Mental Health (Wales) Measure 2010. (Recommendation, Paragraph 64)

We recognise the risk that permitting detention on the basis of autism or learning disabilities under Part 3 of the MHA whilst prohibiting it under Part 2 amounts to a difference in treatment falling under the prohibition on discrimination in Article 14 ECHR. Nevertheless, we share the views expressed to the Committee that, currently, given the alternative for these patients is likely to be detention in prison, this difference in treatment 54 appears justified. This is not, however, an adequate long–term solution. Once again, greater support to autistic people or learning disabilities in the community is needed to divert them away from the criminal justice system. (Conclusion, Paragraph 70) Interface between the Mental Health Act and the Mental Capacity Act

It is disappointing that the Mental Health Bill has not taken the opportunity to provide greater clarity to the interface between the Mental Health Act and the Mental Capacity Act and to make clear when detention and treatment under one or the other should be authorised. In a legislative scrutiny inquiry like this one, we are not in a position to conclude which of the possible alternative approaches to the interface between the MHA and MCA would best provide the necessary human rights protection. (Conclusion, Paragraph 78)

The Government should, however, carry out an urgent review of the interface between the MHA and MCA and take prompt action to provide the clarity that is currently lacking. (Recommendation, Paragraph 78) Children

While the recent Government amendment to the Bill, introducing a review of notification requirements in respect of children on adult wards represents a welcome acknowledgement that the status quo may not be satisfactory, it does not guarantee the prompt protection for children’s rights that we have heard is needed. (Conclusion, Paragraph 93)

We agree with submissions made to us that the Mental Health Bill could and should do more to protect against children being placed on adult wards. The Bill should be amended to include a requirement that a child should not be placed on an adult ward unless that placement is demonstrably in the child’s best interests. We propose an amendment to this effect (see Appendix). The Bill should also go further than a review of current notification requirements. It should require the provider to notify the CQC within 24 hours of any child being placed on an adult ward (see Appendix). (Recommendation, Paragraph 94)

We recognise the special importance of advocacy services for children, who may face particular difficulties in understanding and enforcing their legal rights when separated from their families. Independent advocates represent an important method of ensuring the child’s right to be heard, guaranteed by Article 12 UNCRC, is respected. (Conlcusion, Paragraph 100) 55

We welcome the introduction of an “opt–out” system in respect of independent advocacy but call on the Government to ensure that this system extends to children who are informal patients as well as those who are compulsory patients. (Recommendation, Paragraph 100)

We agree with witnesses that children under 16 may be denied the opportunity to benefit from the rights provided by the Bill if their ability to make decisions for themselves is not properly assessed. Clarity in such assessments is therefore important. (Conclusion, Paragraph 106)

We support the call from the Joint Committee on the Draft Mental Health Bill for the Government to consult on the introduction of a statutory test for competency, or “child capacity”, for children aged under 16. (Recommendation, Paragraph 106) Race Discrimination

One of the most significant factors that prompted the process of reform that has resulted in this Mental Health Bill was the disproportionate use of compulsory detention and treatment under the MHA on people from minority ethnic backgrounds, particularly black people. Unequal treatment on the basis of race, especially in respect of the coercive powers of the state, is, of course, a significant human rights issue. (Conclusion, Paragraph 122)

We recognise that some of the changes proposed in the Bill could help to reduce racial inequity in the application of the Mental Health Act. We also recognise that the causes of differences of treatment and particularly outcomes between people of different races can be varied and complex, and that addressing them may require wider systemic and societal change beyond the scope of this or any legislation. Nevertheless, we were surprised that the Mental Health Bill contains no measures directly addressing racial and ethnic inequalities in the application of the MHA and we agree with many witnesses that the Bill could go further. (Conclusion, Paragraph 123)

We share the view of witnesses including the Care Quality Commission that the inclusion of an additional guiding principle of equity in the Bill would be beneficial. While by no means a complete answer, this would emphasise the key need for equitable treatment under the MHA. We propose an amendment to the Bill to add this additional guiding principle (see Appendix). (Recommendation, Paragraph 124)

The Government should carry out a review of the use of Community Treatment Orders, which a black person is seven times more likely to receive than a white person. (Recommendation, Paragraph 125) 56

We look forward to the results of the evaluation of two culturally appropriate advocacy pilot schemes, which the Government should expand if the results are positive. (Recommendation, Paragraph 126) Other issues

The Human Rights Act provides legal protection against, and redress for, human rights violations in the UK. Recent case law has highlighted a gap in that human rights protection for mental health patients in state commissioned but privately provided care. (Conclusion, Paragraph 136)

The Mental Health Bill should be amended to ensure that the Human Rights Act, and the protection it provides, applies whenever people receive publicly funded mental health treatment or after–care, or are deprived of their liberty on mental health grounds. This protection should not depend on whether or not the provider itself is public or private. The Government should also consider carrying out a wider review of the scope of the terms “public authority” and “functions of a public nature” in section 6 HRA to address any other similar and unjustified human rights protection gaps that may exist. (Recommendation, Paragraph 137)

It is crucial that prisoners experiencing serious mental health crises are promptly moved to a hospital environment where they can receive the treatment they need. Delays in such moves risk exposing individuals to inhuman or degrading treatment in breach of Article 3 ECHR. The Bill’s introduction of a statutory 28 day time frame for hospital transfers represents, therefore, a welcome development. (Conclusion, Paragraph 144)

Monitoring compliance with this standard is important. Data on hospital transfers should be gathered centrally and made available to the public. (Recommendation, Paragraph 144)

We can see that in narrow circumstances, where the need to ensure the safety of the public makes deprivation of liberty in the community the least restrictive option available, being able to impose conditions on the discharge of a restricted patient that amount to a deprivation of liberty may be beneficial and compatible with Article 5 ECHR. However, we agree with evidence we received that effective safeguards against abuse of the power to impose such conditions are crucial. (Conclusion, Paragraph 155)

The Bill should be amended to ensure that conditions depriving a restricted patient of their liberty are reviewed by the Mental Health Tribunal promptly and regularly In particular, the Secretary of State should refer the restricted patient’s case to the tribunal after 6 months (unless the case has already been considered) and every restricted patient subject to deprivation of liberty conditions should have their case reviewed every 12 months. 57 A proposed amendment to achieve this is set out in the Appendix. The Government must also ensure that full and detailed guidance is issued on the use of conditions that amount to a deprivation of liberty. (Recommendation, Paragraph 156) 58