Government response to consultation on Reforming the Mental Health Act (MHA)


Proposed reforms in White paper with government response to consultation


  1. New guiding principles up front in the Act

Principles will be taken forward


  1. Change criteria for detention under sections 2 and 3 and for use of Community Treatment Order (CTO), but not for Part III detained patients, so that detention and CTO (a) must provide a therapeutic benefit and (b) can take place only if there is a substantial likelihood of significant harm

Considerations raised will be borne in mind as draft Bill developed


  1. More frequent Mental Health Tribunals (MHTs), although some differences for Part III cases

Proposals will be taken forward to increase the frequency of automatic referrals to the Tribunal and ensure that detentions are more regularly scrutinised


  1. Remove automatic referral to Tribunal after CTO revoked

Will need to be carefully implemented to ensure that a patient’s ability to challenge detention is not negatively impacted


  1. Power for MHTs to grant leave, transfers and community services as well as discharge, including making recommendations for restricted patients which Justice Secretary must consider

Issues highlighted will need to be worked through


  1. Removal of the role of hospital managers

Will be considered further


  1. Advance Choice Documents (ACDs) must be taken into account by services and be offered to all people who have previously been detained.

Work with stakeholders to establish what contents are critical to ensuring ACDs effectively inform patients’ care and treatment and how to align advance choice decision making under MHA with Mental Capacity Act


  1. Detailed Care and Treatment Reviews (CTRs), and Care, Education and Treatment Reviews (CETRs) for children, young, autistic and learning disabled people, to be put on a statutory footing and must be in place by day 7 of detention and signed off by clinical/medical director by day 14 and become living documents to be amended and reviewed. Responsible Clinician (RC) should incorporate recommendations from any CETR panel.

Seek to ensure that new statutory Plan takes into account existing requirements around care planning, that it encourages joint working, and that there is flexibility regarding the contents of the Plan so that it is truly patient led. Will work with stakeholders to review the proposed timelines and governance structure to ensure that any statutory requirements placed on staff are aimed at facilitating a culture of high quality, co-produced care and treatment planning for all patients detained under the Act, including people with a learning disability and autistic people


  1. Patients refusing their medication treatment must have it certified by second opinion approved doctor (SOAD) at day 14, and by 2 months if they do not have relevant capacity, rather than 3 months

Not consulted


  1. Wishes of patients with capacity who are refusing treatment should be respected even in urgent circumstances

Will work closely with stakeholders to explore how can develop proposal to mitigate concerns raised


  1. MHT judge (sitting alone) can require the Responsible Clinician (RC) to reconsider a specific treatment decision in a Tribunal hearing, following preliminary ‘permission to appeal’ stage, of a patient refusing treatment or of a patient that lacks the relevant capacity if challenge has been made by Independent Mental Health Advocate (IMHA) or Nominated Person 

Will continue to work with stakeholders to develop the expansion of Tribunal powers


  1. Provision to enable people in advance to consent to informal admission with ‘get out’ clause to prevent them being confined for longer than they would wish to be

Continue to explore how could be implemented


  1. Nearest Relative replaced with Nominated Person (NP), including a Gillick competent adolescent being able to choose their NP, and has additional powers, including being able to object to CTO, although power to block admission and CTO can be overruled, possibly by MHT judge (sitting alone) rather than County Court

Will take forward legislative changes and will provide additional support and guidance to address concerns


  1. Expansion of role of Independent Mental Health Advocates (IMHAs), including power to appeal to Tribunal on the patient’s behalf

Will take forward legislative changes to extend IMHA services and explore best way to improve quality of IMHA services


  1. Pilot programme of culturally sensitive advocates to respond appropriately to diverse needs of individuals from BAME backgrounds

Development of culturally appropriate advocacy will be prioritised


  1. Consultation will take place about creating a clearer dividing line between MHA and Mental Capacity Act

Do not intend to take forward reform of the interface at this time and will review once new Deprivation of Liberty Safeguard (LPS) arrangements are embedded


  1. Consideration to be given to extending Section 5 as a holding power in A&E 

Will seek to give powers in legislation to health professionals in A&E so that individuals in need of urgent mental health care stay on site pending a clinical assessment


  1. Greater alignment between Crown Court and magistrates’ courts in being able to divert people from the criminal justice system

Not consulted


  1. Establish a new designated role for someone to manage the process of transferring people from prison or Immigration Removal Centre (IRC) to hospital

Continue work to introduce the independent role


  1. Introduce 28 day time limit to transfers from prison or immigration removal centres (IRCs) to mental health inpatient settings
    Will take forward legislative change to introduce 28-day time limit, once NHSEI guidance on transfer and remissions fully embedded

  2. Introduction of option of ‘supervised discharge’ for discharge of a restricted patient with conditions amounting to a deprivation of liberty

Will move forward with plans to provide Tribunal and Justice Secretary with the power to grant a supervised discharge to restricted patients where they are satisfied that this is the least restrictive option when:

• The patient is no longer therapeutically benefitting from treatment in hospital; but

• Continues to pose a level of risk which would require a degree of supervision and control amounting to a deprivation of their liberty; and so, could not be managed via a conditional discharge


  1. Consultation to strengthen role of social supervisor of conditionally discharged patients

Will continue to work with stakeholders to understand how to best redefine the role of social supervisor


  1. Autism and learning disability no longer to be considered mental disorders warranting treatment under section 3, although such patients can be admitted under section 2 for assessment of factors driving any abnormally aggressive or seriously irresponsible conduct, and section 3 continued if a mental health condition is the driver.

Continue to consider the best way to take forward these reforms, taking into account the potential risks and practical implications raised and will explore their application to the criminal justice system


  1. New duty on local commissioners to ensure adequate supply of community services for people with a learning disability and autistic people and to create local ‘at risk’ or ‘support registers’

Intend to proceed with the proposal on adequacy of supply and will explore how ‘support registers’ proposal could work in practice


  1. Asked for views on pooled budgets for people with a learning disability and autistic people

Continue to consider options


  1. Consultation with proposals to follow on extending monitoring powers of Care Quality Commission.

Will continue to consider extending monitoring powers as reforms implemented, within context of broader changes to CQC’s role being considered as part of NHS Bill


  1. Proposals to reform Community Treatment Orders (CTOs)

a.     Community supervising clinician must also agree CTO as well as inpatient RC and Approved Mental Health Practitioner (AMHP)

b.     Expectation that CTOs will end after 2 years set out in guidance in Code of Practice.

c.     MHT will have power to check justification for CTO conditions and recommend reconsideration if they believe they are overly restrictive.

d.     Recall of CTO patient only possible when there is a substantial risk of significant harm and patient can be recalled to another appropriate location if hospital treatment not needed.

e.     Impact of reforms on CTOs will be monitored for reduction in use and effect on racial disparities for an initial 5 year period 

Not consulted, although will continue to work closely with stakeholders to reform CTOs