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

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.