Response to the white paper on MHA reform: marginalisation of patients detained under part III of the MHA

In England and Wales, the Mental Health Act (MHA) 1983 provides the legal framework for the detention of individuals suffering from a mental disorder if they are judged to present a risk of harm to self or others. The MHA removes from certain psychiatric patients civil liberties otherwise inherent in our legal system. Through both statute and common law, it balances a patient’s right to autonomy with psychiatrists' duty of care by reference to the health and safety of the patient. It also balances the civil rights of individual patients against the right of society to protection.1 The 2018 Independent Review of the Mental Health Act (1983) set out recommendations for the government on how the MHA and associated practice needed to change in its final report ‘Modernising the Mental Health Act’.2 This led to the development of the government’s plans to reform the Act, together with the associated policy and practice, as set out in the white paper.3 The proposals take forward the recommendations made by the Independent Review and the full government response. The government is now consulting on its proposals before bringing forward a bill to amend the act. This commentary highlights the white paper’s marginalisation of patients detained under part III of the MHA. As a member of the Independent Review’s Department of Health and Social Care Topic Groups tasked with formulating recommendations for revision of the detention criteria and part III of the MHA, I am delighted that so many of our recommendations have been approved or are being given serious consideration by the government. However, I have substantial concerns about the white paper’s differential approach to civil (part II) and forensic (part III) patients, specifically the exclusion of forensic patients from the proposed changes to the detention criteria in the MHA. …