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Health, Sports & Psychology

Why is the Mental Health Act in England and Wales being reviewed?

Updated Wednesday, 6th March 2019

Dr Sarah Vicary explains why the legislation is in need of a review and explores the current challenges with the system.

A blonde-haired woman is seen from the back and side, sat on a green chair in a waiting room wiping her eye with the hand nearest the camera. Copyrighted  image Icon Copyright: The Open University Although many people with mental health problems are offered help without recourse to mental health legislation, there are times when its use offers support and also a safeguard. The safeguard can be for the person themselves and also for the community. For some people with mental health problems this can involve being formally detained. In the UK in 2016/17, there were 45,864 new detentions recorded. However, this process is undertaken only after medical recommendations and applications are made usually by an Approved Mental Health Professional, who has received extra training and is officially approved to do this role.

Such formal detention is sometimes referred to as being sectioned. The legal framework for the formal care and treatment of people with mental health problems, both in hospitals and in the community, is the Mental Health Act 1983. This Act applies in England and Wales, whereas different legislation applies in Northern Ireland and Scotland. The Act confers powers that do not exist elsewhere in the health and social care field and are usually exercised when people are at their most vulnerable because of a problem with their mental health.

Failed attempts for new legislation

Debates on mental health have not always received equal coverage in the public media and are reflected in conflicting attitudes. One example of this conflict is the initial review of the Mental Health Act 1983 that took place in the first decade of the twentieth century.

Over many years there were attempts by the Government to bring about new mental health legislation to address what was, at the time, concern about the risk posed by people with serious mental disorders living in the community. This concern was fuelled by the anxiety surrounding high-profile cases where people with acute mental health needs committed serious criminal offences, having been either discharged from hospital or not given appropriate and effective supervision in the community.

Among the issues still under consideration are addressing the rising numbers of detentions, decision making and, exploring how the Mental Health Act 1983 works alongside the Mental Capacity Act 2005

However, the idea that this risk was high also attracted fierce criticism and as a result the 1983 Act was amended only, but concern about the use of the Mental Health Act remains and in October 2017, the Government commissioned a second (and this time independent) review of the Mental Health Act 1983. 

In May 2018 the review which was being chaired by Sir Simon Wessely (and a range of experts on the panel), published an interim report outlining the work it has done to date and the proposed next steps. The report acknowledges that while the over-representation of black and minority ethnic groups is neither new nor unrecognised, there does not seem to be a single explanation for this phenomenon other than a reasonable consensus that social reasons may have the biggest impact. This area remains a high priority for the review.

The independent review published its final report in December 2018. Its recommendations included:

  • New more stringent detention criteria.
  • Statutory advance choice documents.
  • Greater powers for the mental health tribunal.
  • A new Nominated Person to replace the current Nearest Relative role.
  • Extended rights to independent advocacy.
  • Statutory care and treatment plans.

The Government has announced that it will legislate to implement two of the review’s recommendations – advance choice documents (second bullet point) and the Nominated Person (fourth bullet point. A formal response will be published in 2019.

Looking to the future

Wooden tiles with letters on spell out the words 'mental health' on a background of plain wooden tiles. The letters are in black writing and the wood is light coloured. Creative commons image Icon Wokandapix on under Creative-Commons license As highlighted above, issues for particular groups including black and minority ethnicities, are being given priority, as are matters concerning children and young people, and people with learning disabilities and autism. It is not yet known if the review will result in new or amended mental health legislation or what changes may be recommended in relation to the current mental health system as it operates in England and Wales but the report indicates that ‘any changes to the MHA must be underpinned by improvements to mental health services’ (DoH, 2018: 12).


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