News focus: Legal perspectives on the draft Mental Health Bill

The government says its ‘once in a generation’ Mental Health Act reforms will give people greater control over their treatment and ensure they receive the dignity and respect they deserve. But the devil will be in the detail. This week parliament’s joint committee on the draft mental health bill questioned legal experts on how the proposed changes will translate in practice.

An independent review of the 1983 act, commissioned by then prime minister Theresa May, set out recommendations covering four principles that should underpin reformed legislation. The act should ensure: service users’ views and choices are respected; the act’s powers are used in the least restrictive way; patients are supported to get better, so they can be discharged; and patients are viewed and treated as rounded individuals.

Should these principles be included in the draft bill, the committee asked?

‘I don’t think anyone would argue that a modern mental health law would embody the principles set out in the review. The question for me is how they are given effect,’ Justin Leslie, an associate at Bevan Brittan and former parliamentary counsel, said. ‘The Mental Health Act is a 40-year-old piece of legislation and it was drafted a very long time ago in a very different environment. It’s been chopped and changed somewhat over the years. It would be a chop and change too far in my view to just put the principles in the bill unless we’re clear about what they’re doing.’

Declaratory-only principles create risk, he added. ‘At some point a court will look at those and say “perhaps they do have an effect”. From the government’s point of view, having things in legislation where their meaning is unclear, awaiting for them to be adjudicated by a court, increases the risks of things going wrong in the future.’

The committee pointed out that the review recommended that mental health tribunals should be able to look at appeals of treatment decisions – something not in the draft bill. Should tribunals have that power?

'I don’t think anyone would argue that a modern mental health law would embody the principles set out in the review. The question for me is how they are given effect'

Justin Leslie, Bevan Brittan

The Law Society supports the need for a proper route to challenge treatments independent of medical professionals, the committee heard. However, Kirsty Stuart, chair of the Society’s mental health and disability law committee, highlighted concerns about the effectiveness of a process where a tribunal judge, sitting alone, orders that treatment is not given and remits a decision back to a clinician for reconsideration. The ‘limited form of redress’ may prove unsatisfactory to the patient and could negatively affect the patient’s confidence in the justice system as well as their perception of tribunals.

The bill gives county courts jurisdiction to overrule or displace the patient’s ‘nominated person’. Should the tribunal have that power, the committee asked?

Professor Judy Laing, professor of mental health law and policy at the University of Bristol, could see no reason why not. ‘It is a specialist tribunal that has expertise. Often these hearings take place in hospitals so it’s more accessible in terms of access to justice, certainly for those patients who are subject to detention. Quite how it would work for people who are in the community I’m not quite sure.’

The changes proposed in the bill would result in a ‘widening difference’ between how the Mental Health Act treats part 2 and part 3 patients. Part 2 of the act deals with patients who have no criminal proceedings against them. Part 3 deals with patients involved in criminal proceedings or under sentence. Is the distinction justified, the committee asked?

‘The Law Society does recognise the need to protect the public from offenders, but we don’t think there’s sufficient evidence to create that distinction between part 2 and part 3,’ Stuart said. ‘Although patients detained under part 2 may not have been prosecuted for a criminal offence, they may actually have a long history of violent behaviour, for example. They may have equivalent or higher risk levels than a patient under part 3.’

Should the bill contain a statutory competence test for under-16s?

The Society says such a test is necessary. ‘The law states that under-16s are unable to make decisions for themselves in contrast to the presumption of capacity for those over 16,’ Stuart said. Setting out a test in the bill ‘would ensure that those working with under-16s have a clear and consistent understanding around how to assess competence and thereby supporting under-16s in exercising their rights’.

The committee must report to both houses of parliament and make recommendations to the government on the draft bill by 16 December.