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Mental Health Act reforms to limit detention of people with learning disabilities and autism

Mental Health Act reforms to limit detention of people with learning disabilities and autism
By Awil Mohamoud Reporter
14 January 2021

Proposed reforms to the Mental Health Act (MHA) would limit the scope for the detention of people with a learning disability or autism.

The Government has said it plans to revise the Act to be clearer that autism and learning disabilities are not to be considered as mental disorders that would warrant being detained for treatment under section three. 

A package of wide-ranging measures has been set out in a new ‘Reforming the Mental Health Act White Paper’, which builds on the recommendations made by Sir Simon Wessely’s Independent Review of the Mental Health Act in 2018.  

The white paper said: ‘Both learning disability and autism are lifelong conditions, which cannot be removed through treatment. However, we recognise that some people with a learning disability and autistic people may require treatment for a mental illness and we want to ensure that people receive high quality and safe care that is the most appropriate for them.’

The proposed revisions would still allow the detention of people with a learning disability or autism for assessment where are safety concerns – under section two of the Act – but only where the person is considered to have a co-occurring mental health condition. 

According to the new plans, where the driver of the behaviour is not considered to be a mental health condition, grounds for detention under the MHA would no longer be justified and ‘the detention should cease’. 

This would include where there is ‘an unmet support need, unmet social or emotional need, or an unmet physical health need (including untreated pain)’, the document said.

The Government also made a commitment to reduce reliance on specialist inpatient services for people with a learning disability and autistic people and to developing community alternatives. 

‘Providing appropriate support in the community can ensure that people with a learning disability and autistic people are not living in an inappropriate institutional setting,’ it said.

‘Some detentions cannot be justified’

The NHS Long Term Plan, published in January 2019, committed to reducing the number of people with a learning disability or autism placed in mental health hospitals by 50% by 2023 to 2024 compared to March 2015. 

The Government said in its latest proposals: ‘Over a number of years we have seen high profile cases of quality failings where a common theme was that detained inpatients with a learning disability and autistic people were not receiving sufficiently therapeutic or reasonably adjusted care.’

Evidence of such failings – also outlined in the Care Quality Commission’s (CQC) Restraint, segregation and seclusion review’ – act as a ‘confirmation that some detentions cannot be justified’, the paper said. 

BAME Inequalities

The ‘most profound inequalities’ exist across mental health services and under the Act for people from ethnic minority communities, and in particular black African-Caribbean people, the Government paper said.  

In October, NHS Digital figures showed that black people were more than four times as likely to be detained under the Mental Health Act (MHA) in 2019-20 compared to their white counterparts

The Government said it is making a series of reforms to tackle these inequalities, which includes developing culturally appropriate advocacy for people of all ethnic backgrounds, but in particular for black African and Caribbean people.

It said it would also introduce a new Patient and Carer Race Equality Framework (PCREF) ‘to embed structural and cultural change in healthcare delivery to improve how patients from diverse ethnic backgrounds access and experience mental health care’.

Other plans to reduce the number of community treatment orders (CTOs) – of which 5,000 are made each year – will also play a role, the paper said, given that black people are over 10 times more likely to be issued one compared to white British people. 

‘We must bring the MHA into the 21st century’

Matt Hancock, health secretary, said: ‘I want to ensure our health service works for all, yet the Mental Health Act is now 40-years-old. We need to bring mental health laws into the 21st century. Reforming the Mental Health Act is one of our central manifesto commitments, so the law helps get the best possible care to everyone who needs it. 

‘These reforms will rightly see people not just as patients, but as individuals, with rights, preferences, and expertise, who are able to rely on a system which supports them and only intervenes proportionately, and which has their health and wellbeing as its centre.’

He added: ‘This is a significant moment in how we support those with serious mental health issues, which will give people more autonomy over their care and will tackle disparities for all who access services, in particular for people from minority ethnic backgrounds.’

The Government will consult on a number of proposed changes, including:

  • Introducing statutory ‘Advance Choice Documents’ to enable people to express their wishes and preferences on their care when they are well, before the need arises for them to go into hospital;
  • Implementing the right for an individual to choose a ‘Nominated Person’ who is best placed to look after their interests under the Act if they aren’t able to do so themselves;
  • Expanding the role of ‘Independent Mental Health Advocates’ to offer a greater level of support and representation to every patient detained under the Act;
  • Piloting culturally appropriate advocates so patients from all ethnic backgrounds can be better supported to voice their individual needs;
  • Ensuring mental illness is the reason for detention under the Act, and that neither autism nor a learning disability are grounds for detention for treatment of themselves;
  • Improving access to community-based mental health support, including crisis care, to prevent avoidable detentions under the Act. This is already underway backed by £2.3bn a year as part of the NHS Long Term Plan.

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