Promising to rip up the 1983 Mental Health Act, Theresa May said she would: "introduce in its place a new law which finally confronts the discrimination and unnecessary detention that takes place too often."

Detentions under the Mental Health Act have increased 47% over the last decade, and BME patients – particularly young, black men – are disproportionately detained under the Act.

There's a fairly broad consensus across the mental health sector that the system isn't working as it should. But the issue of just what to do about the Mental Health Act is more complex – and many professionals were angered by Mrs May's comments.

"The implication is that there's loads of health and social care professionals running around wilfully detaining people," says Nicola*, a social worker and Approved Mental Health Professional (AMHP).

"It's very easy to pin the blame on the professionals doing mental health assessments, but actually it's all about the years and years of inequality that lead up to the point where somebody is so unwell they need to be admitted to hospital," she adds.

"The Conservatives, in my view, have made the problem worse, because they've cut people's benefits, they've cut people's housing, and they're making the systemic problems, which fuel mental illness, worse."

What could a reformed Mental Health Act look like? 

So what are the problems in the current system, and what could a reformed Mental Health Act look like? In June, the Mental Health Alliance published the biggest report of its kind into stakeholders' views on mental health law: 'A Mental Health Act fit for tomorrow: An agenda for reform'.

Based on research undertaken by Rethink Mental Illness, the survey questioned more than 8,000 patients, relatives and professionals about the underlying principles behind the Act, and their personal experiences of the law in action.

On fundamental principles, Rethink concluded, "the survey shows support for the Act's main purpose. A majority (64%) of respondents agreed that it is sometimes necessary to treat someone in hospital against their wishes and restrict their human rights for their own or others' safety."

Community Treatment Orders 

However, a significant number also expressed concerns that the current Act fails to protect people's rights and dignity, and that Community Treatment Orders (CTOs – intended to promote recovery in the community), seclusion, and physical restraint are used "too readily" in some mental healthcare settings.

CTOs have come under particular scrutiny, following the 2012 OCTET report, which concluded that they don't help to reduce the amount of time patients need in hospital.

In their election manifesto, the Conservatives said: "if you are put on a community treatment order it is very difficult to be discharged", while a healthcare professional responding to Rethink's survey said: "I'm very concerned CTOs are being used for far too long."

However, social worker and AMHP Julie* says: "CTOs aren't given lightly. The reason we're using them more is because Theresa May says she wants less people in beds."

For Nicola too, the problem is one of constantly juggling priorities. "CTOs don't really have any teeth to compel people to be treated – we know they don't really work. But it seems to me that it would be better to have a bit more power to treat somebody in the community, rather than just continuously dragging them back into hospital."


On the issue of consent and compulsion, professionals face a delicate balance between a rights-based agenda and a public protection/risk based agenda. Here again, Theresa May's comments on treatment without consent have been a cause for concern.

"If you have somebody who needs to be detained because they're a risk to others, but they're found to have capacity to refuse treatment, what are you going to do? You can't release them because of the risk, but we don't have the beds to keep them in hospital forever," says Nicola.

Currently, under the Mental Capacity Act (MCA), patients' advance decisions about their treatment – including refusals of treatment – are legally binding. For patients sectioned under the MHA, however, these decisions do not have any legal weight, and 68% of Rethink's respondents believe advance decisions should be treated the same under both Acts.

Nearest relative

Another particular issue highlighted by the Rethink report was the use of the 'nearest relative' mechanism, under which the Act currently has a set hierarchy dictating who should be consulted on a patient's treatment.

This can cause real problems, Rethink explains, in cases where an individual has an actively damaging relationship with a parent or abusive spouse who is deemed by the Act to be their "nearest relative".

86% of respondents agreed that patients should be allowed to specify which person close to them is involved in decisions regarding their care.

What next? 

Rethink's priority now is for the government to carry out a comprehensive review of the Mental Health Act, in consultation with a wide range of stakeholders – particularly those disproportionately affected, like BME communities and those currently detained under the Act.

"We want the government to really consider all the evidence and look seriously at the principles," a spokesperson for Rethink says. "I think it's going to be important they get on board with the views of vulnerable groups, like people living in secure care, as well as talking to professionals and people who've been through it and come out the other side."

However, for frontline workers like Julie, the biggest concern is that legislative reform won't be met with the money required to back it up. "The biggest difficulty for us is lack of beds. We want to treat more people in the community, but we don't have the staff," she says.

"Mrs May says she wants to end people being detained in police cells, well a lot of people are in police cells because we haven't got the resources to go and deal with the crisis," she adds.

Indeed, the CQC's latest report into the use of the Mental Health Act shows that, although the number of detentions has increased, the overall number of admissions has remained relatively stable, with the number of informal admissions falling.

"My experience of it is that, because there's so much pressure for beds, consultants are discharging people too early, and they're sometimes being readmitted within two or three days," says Nicola.

Equally worryingly, she adds: "I've heard lots of people saying they can't get a bed unless somebody is detained – which would suggest that more people are being detained just because there's no other option."

*Names have been changed

What do you think needs to change about the Mental Health Act and its use? Let us know in the comments below ...