The Government published the long awaited Draft Mental Health Bill on 27 June 2022 which applies to England and Wales.

One of the headline proposals is that people with autism and learning disability will no longer be detainable ‘mental disorders’ under the draft legislation. This has been welcomed as meaning that fewer people with autism and learning difficulties will be detained in treatment and assessment centres as they will be taken out of the jurisdiction of the Mental Health Act 1983.

However, things may not be as promising as they look at first sight. As Dr Lucy Series, Senior Lecturer in Law at Cardiff School of Law and Politics, points out some people are concerned that as the draft legislation stands there may be unexpected consequences. Dr Series explains:

This is because if people are not ‘in scope’ of the Mental Health Act 1983, they can be deprived of their liberty under the Mental Capacity Act 2005 instead, under its ‘Deprivation of Liberty Safeguards’ or – in the future – the ‘Liberty Protection Safeguards’. This is because of complicated rules at the ‘interface’ between the two laws…

If people are deprived of their liberty under the Mental Capacity Act then it is much less likely that a court or tribunal will review their detention. Their ‘nearest relatives’ also lose powers to object to admission or seek their discharge.

This could even accidentally make it easier to deprive people of their liberty. 

People will also lose independent reviews of medical treatment, rights to complain to the Care Quality Commission (CQC), rights to after-care and other new safeguards and rights proposed by the government.

You can read a full explanation of Dr Series’ concerns in this blog post.

And you can submit your thoughts on the draft Bill to the Joint Committee on Human Rights for its pre-legislative scrutiny here.