Richard Jones, 'Preface to Mental Health Act Manual, 24th edition' (July 2021)
Preface to MHA Manual Richard Jones argues that mental health law in England & Wales is in a dire state for two main reasons: (1) the decision to legislate for the detention of mentally incapacitated patients within the MCA instead of amending the MHA, which error was compounded by over 250,000 people being identified as deprived of their liberty, in the absence of any coercion or interference with their freedom of action, following the Cheshire West decision; and (2) the complexity of the MHA, which would be increased by the proposals of the Wessely review and the decision to incorporate those by further detailed amendments without structural change. His proposed way forward is to remove the detention powers from the MCA, repeal the LPS legislation, and abandon the Wessely proposals; for the long term, to draft a single modern statute which applies to everyone; and, in the meantime, "some attempt should be made before it is too late to prevent the ageing hulk of the Mental Health Act from sinking into disrepute under the weight of its multiple amendments".
Mental health law in England and Wales is in a dire state and, if the proposals contained in the Government’s White Paper on Reforming the Mental Health Act are enacted in anything like their current form, the situation is likely to get much worse.
There are two main reasons for reaching this depressing conclusion. First, the Government made a fundamental error when it decided to respond to the judgment of the European Court of Human Rights in HL v United Kingdom (the “Bournewood case”) by legislating for the detention of mentally incapacitated patients within the Mental Capacity Act 2005, rather than making suitable amendments to the Mental Health Act. The fact that there are now two legal routes which provide for the civil detention of the mentally disordered has led to confusion about which Act to use and, according to research the Government commissioned, has resulted in patients being unlawfully detained (Understanding clinical decision-making at the interface of the Mental Health Act (1983) and the Mental Capacity Act (2005), The Kings Fund, 2021). This error has been compounded by the impact of the decision of the Supreme Court in the Cheshire West case which resulted in over a quarter of a million people in England in 2019–2020 being identified as being deprived of their liberty despite the fact that in many cases the identification was made in the absence of any coercion or interference with the person’s freedom of action. The White Paper cannot provide a solution to the “interface” issues between the two Acts because none exists as long as they both remain in force. Instead the government seeks to reach a view on how to establish a “clearer” interface between the two Acts.
The second reason relates to the complex nature of the Mental Health Act and the fact that the White Paper states that the Government intends to enact the “vast majority” of the recommendations contained in the Independent Review of the Mental Health Act chaired by Sir Simon Wessely (“the Review”). The Review, which was not greeted with universal acclaim, was extravagantly praised by the Secretary of State for Health and Social Care as “one of the finest pieces of work on the treatment of mental health that has been done anywhere in the world” (Hansard, vol.687, col.325). Although the Review made frequent references to the complexity of the Mental Health Act which “can be confusing to those who use it, let alone those who are subject to it”, and the White Paper states that the Government “have heard consistently that the Act, which is still arranged around a system that essentially was established in 1959, does not fit with our modern sense of how health and care services should provide for people in the 21st century”, the Government proposes that the model adopted by the Mental Health Act 2007 be followed. This will involve adding significantly to the complexity of the Act by making multiple detailed amendments to it without altering its structure.
Although this is not the place to offer a detailed critique of the proposals contained in the White Paper, special mention can be made of the fact that if the proposals are enacted the legal protections provided to detained patients with autism or a learning disability will be eroded to a significant extent: see “Unintended consequences of taking people with learning disabilities and/or autism out of scope of the Mental Health Act 1983” by Dr Lucy Series which can be found on her The Small Places Blog (https://thesmallplaces.wordpress.com).
What is the way forward? Ideally, the Mental Capacity Act 2005 should be amended to return it to its original purpose of seeking to secure the best interests of mentally incapacitated people by removing the power to detain such people; the legislation providing for the Liberty Protection Safeguards under the 2005 Act should be repealed; and the proposals set out in the White Paper should be abandoned. Following this, a fresh attempt should be made to draft mental health legislation to provide a new modern structure for mental health law which would, amongst other things, eliminate interface issues by creating a single statute that applies to everyone. Such developments are not going to happen. However, if yet another review of mental health law is to be avoided in the medium term, some attempt should be made before it is too late to prevent the ageing hulk of the Mental Health Act from sinking into disrepute under the weight of its multiple amendments.
I have attempted to state the law on the basis of material that was available to me on July 1, 2021.