In the Queen’s speech in March 2022, the UK Government committed to publishing a draft Mental Health Bill for pre-legislative scrutiny. That draft Bill was published on 27 June 2022. You can download the draft Bill from the Government website, along with explanatory notes and an impact assessment. Despite this draft Bill being of clear interest to people with learning disabilities, there is currently no Easy Read version available.
According to the website, the draft Mental Health Bill seeks to deliver on two manifesto commitments:
- to reform the Mental Health Act (MHA); and
- to improve the way that people with a learning disability and autistic people are treated in law.
There has been a great deal of commentary prior to the publication of the draft Bill on the aspects of it that reform the MHA. Alex Ruck-Keene’s blog is a great place to start if you are unfamiliar with the background to that. My focus in this post is to think through the approach this draft Bill takes to “improving the way that autistic people and people with learning disabilities are treated in law.”
What does the Draft Bill Propose for People with Learning Disability and Autistic People?
There are three key proposals in this Bill that apply to people with learning disability and autistic people:
- People with LD/Autism would no longer be able to be detained for treatment under s. 3 of the MHA, unless they have a co-occurring psychiatric disorder.
- Care (Education) and Treatment Reviews would be placed on a statutory footing.
- Integrated Care Boards would have a duty to establish and maintain a ‘risk register’ of people with LD/Autism who are at risk of hospital admission.
Each of these have both positive and negative elements.
1. No MHA detention (purely) on basis of Learning Disability or Autism
The purpose of this change in the law is to address the well-known problem of people with learning disabilities and/or autism being detained in hospital under the MHA without receiving any mental health treatment. For some people, like Tony Hickmott, this detention can last for many years. For others, like Beth, a stay in hospital can make things worse, causing serious harm . Addressing this is issue is, rightly, a priority. The big question, though, is whether this change in law can solve the problem, or whether it will simply move these kinds of long-term hospital placements onto a different legal footing, like detention under the Mental Capacity Act 2005 (under the Liberty Protection Safeguards), or an increase in the use of mental health Guardianship.
Unfortunately, I don’t have a crystal ball so I can’t see for sure what the future might hold for autistic people or people with learning disabilities who would have been detained under the MHA. What I do know is that the LPS have been designed to be able to provide a legal basis for detention in private hospitals (including in places like Assessment and Treatment Units). The LPS also give people fewer rights to review of their detention, and can be used to authorise much longer periods of detention. So I am sceptical of the ability of reform of the MHA (on its own) to make a substantive difference in this area. Stories like Beth’s demonstrate how carefully crafted support packages, that enable people to live the lives the want to live, are the key to avoiding unnecessary and unhelpful detention in hospitals.
In the Impact Assessment that was published with the draft bill, the financial impact of removing people with LDs and Autism out of the MHA was calculated on the basis of an increase in the numbers of people being subject to mental health Guardianship. Guardianship under the Mental Health Act is regulated by ss 7-10 of the MHA, and has fairly limited application. A Guardian has the power to 1) require the person to live in a particular place; 2) to require the person to attend at specific times for medical treatment, occupation, education or training; and 3) to require that access to the person be given to a medical practitioner. In contrast to detention under the MHA, and under the DoLS/LPS in the MCA, mental health Guardianship is used relatively rarely. In 2021, there were just 155 continuing mental health guardianships recorded as being in place. As far as I can see, the draft Bill does not contain any provisions that would significantly amend the scale or scope of mental health guardianship, but this is certainly an issue that will need to be watched closely, given the general incompatibility of guardianship with the right of disabled people to enjoy legal capacity on an equal basis under Article 12 CRPD, as a mental health Guardian is not a chosen supporter and has powers to compel the person to behave in particular ways. Lucy Series has also posted her thoughts on this issue on her blog.
2. Care (Education) and Treatment Reviews (C(E)TRs)
The draft bill proposes to place Care and Treatment Reviews (which are for adults) and Care, Education and Treatment Reviews (which are for young people) on a statutory footing. This will mean that C(E)TRs must take place within 14 days of the ‘applicable day’ . The draft Bill provides that C(E)TRs are meetings that aim to identify needs for social care or medical treatment, and for special education provision for children and young people. The C(E)TR should also make recommendations about how (and whether) those needs can be met, how to keep the person safe, their discharge from hospital and reducing the risk of re-admission. The draft Bill further places a statutory duty on the responsible clinician, responsible commissioner and the appropriate integrated care board to have regard to the recommendations set out in the C(E)TR report.
All of this seems eminently sensible. The draft Bill is, however, silent on the matter of what remedies there might be for breach of these new statutory duties. Importantly, not all breaches of statutory duties give rise to liability in tort law (X v Bedfordshire County Council  2 AC 633). But if disabled people don’t have a clear route to an effective remedy where these statutory duties are breached, they may become hollow rights, aspirational but impossible to enforce. It would be helpful to know conclusively whether a breach of these statutory duties (which impose specific obligations to hold C(E)TRs within a specific timeframe, and place duties on professionals to have regard to the contents of C(E)T Reports) would give rise to a right to sue for breach of statutory duty. If the government are serious about making the law work better for Autistic people and people with learning disabilities, then it would be extremely helpful to state clearly that a breach of these duties would give rise to liability.
3. A New Learning Disability and Autism ‘Risk Register’
The proposed new Section 125D (Clause 2, draft Mental Health Bill) creates another statutory duty, this time on integrated health boards, to “establish and maintain” a register of people who have a learning disability or are autistic and “have risk factors” for mental health detention under the MCA. These risk factors, and the detail of what kind of information would be held on the register are to be determined by regulations (as yet unavailable). I can see that this kind of information would certainly be of use to those planning health and social care services, but this provision troubles me on two fronts: the interaction between it and the Mental Capacity Act 2005; and equality and privacy concerns.
The draft Bill suggests that only those who consent to being on the register would be included (clause 2, new section 125D(1)(b)). There is no consideration on the face of the draft bill as to what the situation would be if the person lacked the capacity to consent to inclusion in the register. In general terms, the Mental Capacity Act applies to all decisions except those that are explicitly excluded from its remit. Whilst there is an existing exemption for Mental Health Act matters, that only extends to giving treatment for mental disorder when the treatment is regulated by part 4 of the MHA. This then means that it is possible that a best interests decision could be made to include a person who lacked capacity in this new register, whether or not they actually consented. If that is not the intention, then I think the draft Mental Health Bill would need to include provision to amend the MCA to exclude this type of decision.
My privacy concerns about this ‘risk register’ primarily cohere around the right to respect for private life (Article 8 ECHR, Article 22 CRPD), given the information on the register is likely to be of a very personal nature (health data is special category data under the GDPR/Data Protection Act 2018), and must be treated very carefully. Further, the development of a register by a public body that only contains information about the health status of autistic people and people with learning disabilities seems to me to be a clear infringement of their rights to have their privacy, health and rehabilitation information protected on an equal basis with others (Article 22(2) CRPD). This is important, because it does not take a huge stretch of the imagination to see information on such a register being used to limit or restrict a person’s access to services. This is especially the case if the person has been labelled as exhibiting ‘challenging behaviour’, which is a catalyst for many people with autism and learning disabilities in referral into the mental health system.
It was not my intention for this to be a very long blog post (!), so I will conclude here. Suffice to say, there are several other potential issues in the draft Mental Health Bill that I have not touched on here (Tim Spencer Lane has published a helpful summary of all the changes included in the draft Bill on the Community Care website). I hope that the pre-legislative scrutiny will help to address all the problems in the draft bill, to ensure that we make the most this rare opportunity to make law work better for autistic people and people with learning disability.
 the “applicable day” is defined in clause 2 – in essence the definitions all cohere around the idea of a day when the person is ‘liable to’ be detained in hospital or registered establishment, and the responsible commissioner becomes aware, or forms the view, that the person has autism or a learning disability. The precise definitions can be found in the new section 125A(5).