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Mental health law briefing 254 – Final report of the independent review of the Mental Health Act 1983, December 2018

Amid the noise arising from Brexit, Sir Simon Wessely’s review of the Mental Health Act was published in December.  The report runs to some 300 pages grouped by reference to a series of principles, namely:

  1. Truth and autonomy
  2. The use of least restriction
  3. Therapeutic benefit
  4. The person as an individual

It is now for the Government to consider the report and which recommendations to adopt, if any. Whichever way Brexit goes, parliamentary time is likely to be at a premium and it remains to be seen whether new legislation will be placed before Parliament.

In the meantime, for those who do not have the time to read the full report, a summary of the key proposals[1] is set out below.

1. Patients’ advance choice document and informal views to be followed.

2. Only a Court can override a refusal of ECT.

3. Right to advocacy based on opt out approach.

4. Nominated person to replace nearest relative.

5. Police cells not be used as place of safety.

6. Duty on RC to formulate a statutory care plan.

7. Tribunal able to scrutinise care plans and review treatment.

8. Hospital Managers’ power of discharge to be taken over by Tribunal.

9. Where patient is objecting, MHA rather than MCA to be used.

10. Reducing use of CTOs by tightening criteria and limiting use for over two years.

11. Statutory care and treatment plans to include discharge plans.

12. New capacity test for children and exclusion of parental consent as basis for treatment of those between 16-18.

13. New duty on Health and Social Care Commissioners to collaborate to provide community based alternatives for those with learning disability.

14. Although Sir Simon’s review considered removing learning disability from the MHA this is not recommended at present.

15. Speeding up processes to transfer mentally ill prisoners to hospital.

16. Low risk leave decision for Part III prisoners to be taken by RC rather than MoJ.

17. Proposals to be considered separately for Wales.

[1] These are our view of the key proposals rather than an exhaustive list of all of them


This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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