Guide to the draft Mental Health Bill 2022: detention and community treatment orders

On 27 June 2022, the Government published the draft Mental Health Bill for consideration before it becomes law. When the Bill becomes law, it will amend the Mental Health Act 1983 and modernise mental health legislation in England and Wales.

The Government states that the reforms seek to ‘give people greater control over their treatment and help ensure they receive the dignity and respect they deserve’.

This blog is the first in a five-part series exploring the themes that underpin the reforms and some of the key provisions in the Bill.

In this blog, we consider some of the proposed changes to detention and community treatment orders, which aim to support the Act’s guiding principle of least restriction.

1. Definition of mental disorder: the Bill amends this for civil detentions so that individuals can no longer be detained only because they have a learning disability or they are autistic. To be detained, these individuals must have a different co-occurring mental disorder. This change seeks to avoid people with a learning disability and / or autism being detained for significant periods without any therapeutic benefit.

2. Criteria for detention and CTOs: the Bill amends the civil provisions of the Act so that two tests must be satisfied before an individual can be detained or made subject to a CTO:
   1. Serious harm may be caused to the health or safety of the patient or of another person if the person is not detained / made subject to a CTO; and
   2. The decision maker must consider the nature, degree and likelihood of the harm and how soon it would occur.

3. Period of detention for treatment: the Bill reduces the period that a patient can be detained for treatment. This means the initial detention period will expire after three months rather than the current six months. The detention must be reviewed and renewed more frequently to continue.

4. Oversight of CTOs: the Bill differentiates between a patient’s responsible clinician (who has overall responsibility for the patient) and a community clinician (who has responsibility for the patient in the community). The Bill requires the community clinician to be involved in decisions in respect of CTOs, including the decision to implement one in the first instance. Other provisions in respect of CTOs are also tightened, to mandate oversight by the community clinician and ensure that CTO conditions are only made where necessary.

If your organisation requires advice in respect of your duties under the Mental Health Act 1983, or in relation to the proposed reforms, please do not hesitate to get in touch with our team of experts.