After a long wait, the Department of Health and Social Care has published the white paper outlining a series of potentially radical reforms to the Mental Health Act. The nearly 40-year-old legislation gives authorities the power to detain and treat people regarded as a threat to themselves or others due to a mental health condition.

However, under the current legislation, a person with learning disabilities or autism can be detained in hospital under Section 3 of the Act if they are deemed 'abnormally aggressive or seriously irresponsible' without the co-occurrence of a mental health condition. Although the proposed reform aims to ensure that the Act is not used that way, so that a person with a learning disability or autism can only be sectioned if they have a severe mental health condition.

Often being detained in mental health wards can be a confusing and distressing experience, and especially as a report by the Care Quality Commission in October of last year found that conditions in many mental health hospitals were a cause for concern, as they revealed that due to a lack of training and support, staff were increasingly using chemical and physical restraints and were isolating patients.

Additional funding is necessary to allow people to live in homes not hospitals

Another proposed change to this ‘landmark reform’ is the improvement in access to community-based mental health support and crisis care to avoid preventable detentions under the Act. But the focus on community organisations, and the removal of the backup of inpatient wards for those without a mental health condition, leaves a couple of questions:

What funding is available for more significant community-based activity so that those organisations can adequately care for the individuals with learning disabilities or autism who would have been previously sectioned under the Act? And what are authorities and organisations going to do to fill in the gap and prevent the need to resort to Section 3?

The Department of Health and Social Care highlighted that there has already been invested in community support to reduce the number of people with a learning disability and/or autism in inpatient settings. The Government intends to make further progress on this issue with a £62 million Community Discharge Grant, and that the changes to the legislation will further reduce the reliance on mental health wards.

Dan Scorer, head of policy and external affairs at the learning disability charity Mencap, welcomed the changes to the Act. Still, he also cautioned against taking an eye off the ball by emphasising that the reforms focus on community support should be followed through with additional funding for services for people with learning disabilities or autism:

“It is the right thing to do to require commissioners to develop community support, but this new duty must be properly funded, not left to cash-strapped local authorities who are already struggling to fund social care. While putting Care and Treat review recommendations on a statutory footing looks good on paper, this makes no sense unless the reviews themselves are also a statutory requirement – otherwise it risks reviews simply not happening.”

"Ultimately, changes to the Mental Health Act must be backed by a cross-government strategy to deliver on Government promises to get people with a learning disability and/or autism out of inpatient mental health units. The Government also needs to commit funding to develop the right housing and social care support to truly transform care and close inpatient beds for good. People with a learning disability have a right to live in their own homes, not in hospitals."

This concern was similarly echoed during the ministerial statement about the proposed reforms in the House of Commons on Wednesday by Barbara Keeley, Labour MP for Worsley & Eccles South, who said:

“On the issues of the 2,000 autistic people and people with learning disabilities who are currently trapped in inappropriate mental health units the news that autism and learning disabilities will no longer be grounds for detention under the Mental Health Act is welcome. As well as changes to the legal framework, ending this inpatient detention means putting in place funding for community support, which has often not been available due to cuts to council budgets.”

While the proposed changes have not been written into law, the Government plans to consult the public about the recommended reforms until the start of spring 2021 to aim to have a Mental Health Bill drafted by early next year.