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Call for evidence in Mental Health Bill legislative scrutiny

19 December 2024

The Joint Committee on Human Rights is inviting written submissions to inform its legislative scrutiny of the Mental Health Bill. 

The Mental Health Bill would introduce wide-ranging changes to the Mental Health Act 1983. This is the principal legislation governing the detention and compulsory treatment of people suffering from mental disorders in England and Wales. It would make changes to policies in multiple areas including the approach to autism and learning disabilities, grounds for detention, and community treatment orders. 

The Joint Committee on Human Rights is undertaking scrutiny of the bill to assess its compatibility with international and domestic human rights standards.  

Background

In the King’s Speech in July 2024, the new Government announced its intention to “legislate to modernise the Mental Health Act so it is fit for the twenty first century”. The Mental Health Bill was subsequently introduced in the House of Lords on 6 November 2024 and Committee Stage in that House is scheduled to commence on 14 January 2025.

The Mental Health Bill is the product of years of preparatory work. In 2017, then-Prime Minister Theresa May commissioned an independent review of the Mental Health Act 1983. The review, chaired by Professor Sir Simon Wessely, published its report in December 2018. The Government subsequently brought forward a White Paper in 2021. Following a public consultation on that White Paper, the Government published a draft Mental Health Bill in June 2022. Parliament’s Joint Committee on the Draft Mental Health Bill carried out pre-legislative scrutiny of the Bill and published its findings in January 2023. These findings have informed the Mental Health Bill which is now before Parliament.

The Government’s proposals

The Bill aims to amend and reform a number of aspects of the Mental Health Act 1983. The Mental Health Act 1983 is the principal legislation governing the detention and compulsory treatment in England and Wales of people suffering from mental disorders.

The Government’s proposals in the Bill are wide-ranging, covering policies on multiple areas including:

  • Autism and learning disabilities
  • Grounds for detention
  • Nominated persons
  • Advanced choice documents
  • Community treatment orders
  • Changes to the statutory Codes of Practice

Get involved 

The Joint Committee on Human Rights welcomes evidence from interested groups and individuals. To find out more information about how to submit evidence, please visit the Mental Health Bill inquiry page. 

The deadline for submissions is 24 January 2025.  

In particular, the Committee is interested in receiving views on the following issues: 

  1. The Bill will remove the power for autistic people and people with learning disabilities to be detained under section 3 of the Mental Health Act on the basis of their autism or learning disability. However, no equivalent changes are made for autistic people and people with learning disabilities under Part 3 of the Act (so-called ‘forensic’ patients). Does this differential treatment raise any concerns under Article 14 ECHR when read with Article 5 or Article 8 ECHR?  
  2. The Bill will allow conditions amounting to a deprivation of liberty to be applied as part of a conditional discharge (see Clause 33).  
    • Are there sufficient safeguards for the new deprivation of liberty conditions to be compatible with Article 5 ECHR?  
    • The Bill will allow these deprivation of liberty conditions to be applied retrospectively, meaning that a patient who is already conditionally discharged could be made subject to them. Does this raise any human rights concerns, particularly under Article 5 ECHR?  
  3. The Mental Health Act 1983 and the Mental Capacity Act 2005 can both be applicable to the detention and treatment of patients with mental health conditions. Does the interaction between the two Acts raise any human rights concerns? In particular, are there any concerns that the law is insufficiently clear to fulfil the “prescribed by law” criteria in Article 5 ECHR, or to raise discrimination concerns under Article 14 ECHR?  
  4. Other than the issues identified in the above questions, does the Bill raise any other issues under the ECHR or the Human Rights Act 1998?  
  5. The UK is a party to the UN Convention on the Rights of Persons with Disabilities. Does the Bill raise any concerns regarding the UK’s compliance with this convention?  
  6. The Bill has provisions which would apply to children as well as adults. The UK is a party to the UN Convention on the Rights of the Child. Does the Bill raise any concerns regarding the UK’s compliance with this convention? 

Role of the Joint Committee on Human Rights

The Joint Committee on Human Rights carries out scrutiny of legislation to ensure its compatibility with international and domestic human rights standards.

The Mental Health Bill deals with the detention and compulsory treatment of patients against their will. As such, it raises important issues concerning liberty and autonomy, as well as issues of public and personal safety.

The European Convention on Human Rights (ECHR) – which has been incorporated into domestic law through the Human Rights Act 1998 – includes a number of rights that may be engaged by the measures in the Mental Health Bill. For example:

  • Article 5 ECHR guarantees the right to liberty and security. Article 5 states that “[n]o one shall be deprived of his liberty” except where it is in accordance with a “procedure prescribed by law” and one of the exemptions in the exhaustive list set out in Article 5. Article 5(1)(e) states that a person can be deprived on their liberty in accordance with a procedure prescribed by law where it is for the lawful detention of “persons of unsound mind”. Article 5 requires certain safeguards and procedures to be in place before a person can lawfully be deprived of their liberty.
  • Article 8 ECHR guarantees the right to respect for private and family life. Article 8 is relevant to many aspects of mental health and medical treatment. For example, mental health is regarded as an indispensable precondition to effective enjoyment of the right to respect for private life. An individual’s right to refuse medical treatment falls within the scope of Article 8, including in the case of a mentally ill patient.
  • Article 14 ECHR prohibits discrimination. Article 14 is not a stand-alone or general right against discrimination; the prohibition on discrimination only applies to discrimination in the enjoyment of the other rights set out in the Convention. It can therefore be relevant to arguments made under the other substantive rights, such as Articles 5 and 8.
  • Articles 2 and 3 ECHR may also be relevant. Article 2 guarantees the right to life. The UK has responsibilities under Article 2 to protect the lives of vulnerable people in its care. Article 3 prohibits torture and inhuman or degrading treatment or punishment. Where forced medical intervention is medically necessary and procedural safeguards are in place, it is usually not considered to amount to inhuman or degrading treatment. However, where medical necessity is lacking, medical treatment can be found to be incompatible with Article 3.

Other international human rights instruments may also be engaged by the provisions of the Bill, particularly the UN Convention on the Rights of Persons with Disabilities.

Further information

Image: House of Commons