A Once in a Generation Opportunity to Reform Mental Health Law

There are 152 recommendations in the Independent Review of the Mental Health Act which recently released its final report. Overall, the recommendations paint a picture of mental health legislation out of step with human rights obligations.

The fact that only 30 percent of service users and carers felt that they had been treated with dignity and respect or that those of black African or Caribbean heritage are over eight times more likely to be subjected to Community Treatment Orders than those of white heritage demonstrates the difference between the system that is currently operating and the one that should be.

The Review recommends shortening the length of time a person can be detained before a review, as well as making it easier and quicker to get a second opinion from a doctor when an individual is objecting to treatment as well as ensuring that treatment decisions can be appealed against in Court. This should in theory make it far harder for an individual to be treated against their will and be detained for long periods of time. Also to be welcomed is the call to ensure that police cells are no longer used as places of safety for those experiencing mental health problems and the recommendation that the families of those who have died while detained under the Act should receive non-means-tested legal aid.

However, as with every independent review, the real focus needs to be on the Government’s response. They will formally respond in the new year but have committed to introducing new legislation as well as accepting two recommendations straight away – only 150 to go.

We know that the Government often cherry-picks from independent reviews because we have just spent the last six months attempting to improve the Mental Capacity Amendment Bill. This Bill was introduced after the Law Commission had spent years consulting on a new system to replace the maligned Deprivation of Liberty Safeguards (DoLS) only for the Bill that was introduced to be human rights deficient on a number of basic levels.

The Mental Capacity Amendment Bill has just finished passing through the House of Lords and will now go to the House of Commons. The Bill is in a much improved state but Liberty still has concerns that we will press in the Commons.

The Bill would still allow for an individual to be detained for three years (tripling the current timeframe). This at a time where the Review of the Mental Health Act has called for detention periods to halve in length to a maximum of six months.

It is troubling that these two pieces of legislation are heading in completely opposite directions and will only serve to deepen a two-tier system within our mental health legislation which might see individuals bandied about to which ever piece of legislation has weaker safeguards.

Opportunities to rewrite our mental health legislation don’t happen very often. It is vital to the rights of millions in this country that this one is grabbed with full knowledge of the deficiencies in the current legislation and with the desire to put those who are affected by the Act at the heart of our thinking going forward.