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Legal changes

Mental Health Bill: new detention and renewal criteria

The draft Bill proposes an amendment to the criteria for detention. What changes can we expect?

As referred to in our overview briefing on the draft Mental Health Bill, this is one of a series of additional briefings to review the proposals to amend the Mental Health Act (MHA) in more detail.

The draft Bill proposes an amendment to the criteria for detention under sections 2, 3 and 5 of the MHA, and of necessity the same changes will apply to the criteria for renewal of detention and in relation to community treatment orders. There will be a separate briefing in this series on the changes to CTOs.

The amendment to the detention criteria focuses on the level of risk that a patient must pose in order to be detained under the MHA. The intention is that patients can only be detained if they pose a risk of serious harm to themselves or others. This amendment reflects one of the key principles enshrined in the Bill, namely to ensure that powers are used in the least restrictive way possible.

The Bill expressly adopts four of these key principles:

  1. Choice and autonomy — ensuring that patients’ views and choices are respected;
  2. The least restrictive option — ensuring that MHA powers are used in the least restrictive way possible;
  3. Therapeutic benefit — ensuring patients are supported to recover so that they can be discharged from the MHA; and
  4. The person as an individual — ensuring patients are viewed and treated as individuals.

The Bill proposes to adopt two new tests that must additionally be met to fulfil the criteria for detention:

  1. Serious harm may be caused to the health or safety of the patient or another person, if they are not detained; and
  2. The decision maker must consider the nature, degree and likelihood of the harm, and how soon it would occur.

The Bill also amends sections 72 and 73 of the MHA which govern discharge by the Tribunal to align the grounds for discharge with the revised detention criteria. A Tribunal must discharge a patient where the patient no longer meets the revised detention criteria relevant to their detention.

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