As a passionate believer in the rights of those with mental health needs, I am pleased the government has prioritised mental health rights in their legislative agenda. Mental health reform is long overdue, as outdated mental health legislation has robbed patients of agency in their own care and treatment. It is encouraging to finally see mental health reform be taken seriously.
While the Mental Health Bill, which has reached Committee Stage in the House of Lords, marks a positive step in strengthening mental health rights, there are still inadequacies that must be addressed. The bill remains ambiguous in provisions meant to safeguard mental health patients. This lack of clarity may deprive patients of their rights and bring uncertainty for those providing or commissioning their care.
For example, it is encouraging that the bill’s new provisions protect people with learning disabilities and autistic people from being detained for these conditions alone. However, serious caution is needed to ensure they are not simply detained in hospital under different, inappropriate legal frameworks. Further clarity would ensure these provisions are extended to all types of hospital detention.
Similarly, the bill proposes that treatment cannot be forcibly given if the patient had refused it in advance, unless there is a ‘compelling reason’ to do so. While this proposal aims to provide patients with more agency in their care, the bill must clarify how and when advance decisions will be used in practice, in order to ensure that both patients and those in healthcare are able to apply them effectively.
The bill also proposes increased powers for the Mental Health First-Tier Tribunal, which would provide patients with greater access to justice. Although encouraging, these new powers would add pressure to the legal system, which already faces significant delays. For the new powers to deliver justice swiftly, the bill must ensure that the tribunal system is properly resourced. By requiring the government to submit an assessment of what resources are needed, the bill can ensure the tribunal’s new powers are effective.
Finally, it is worrisome that the bill’s safeguards for children and young people remain ambiguous. While the new powerful ‘nominated person’ role gives young people more choice in who represents their interests, it is unclear how the role would interact with parental responsibility. With such uncertainty, the bill fails to address what could happen if the ‘nominated person’ takes action that conflicts with the wishes of either the parents or young person, or is detrimental to the wellbeing of the young person.
If such proposals remain ambiguous, they may cause more problems than they will solve. The bill must clarify several of its provisions to ensure that it provides patients with enough involvement and support in decisions about their care and gives a clear basis for the treating clinicians to proceed.
In the last parliament, the Law Society worked closely with the Joint Committee on the draft Mental Health Bill, and we are pleased to see that this bill makes use of many of our recommendations. The Law Society will continue to scrutinise this bill, to ensure that it achieves its aims and is supported by sufficient funding, clarity and safeguards. Only then can we enshrine mental health rights and provide mental health patients with the dignity, respect and access to justice they deserve, as well as certainty for those providing their care.
Kirsty Stuart is chair of the Law Society's Mental Health and Disability Law Committee
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