Get in on the Act: Mental Health Act 2025

Introduction

The new Mental Health Bill 2025 was introduced in the House of Lords on 6th November 2024. The Bill will modernise the Mental Health Act (MHA) 1983.

The Mental Health Bill aim is to improve the rights of people through:

Improving Choice: People will have more say in their care, including their treatment and care plans.
Ensuring Dignity: People will be treated with respect and dignity, and their beliefs, values, and past experiences will be considered.
Least restriction: Restrictions on liberty will be minimized while still ensuring safety of the person and public safety.
Therapeutic benefit: People will receive effective and appropriate treatment.
Limited detention: Detention will only be used when and for as long as necessary.
Limited use for certain populations: The use of the Act to detain people with autism or learning disabilities will be limited.

The Bill is based on recommendations from:

An independent review of the Act, led by Professor Sir Simon Wessely, published in December 2018.
A consultation on a white paper published in January 2021
Recommendations from the Joint Committee Inquiry 2023 of both Houses of Parliament

Council role and responsibilities under the Mental Health Act

Councils have several existing statutory duties under the MHA 1983 and will continue to have responsibilities under the new Act. The current existing responsibilities for councils are:

Councils employ the majority of Approved Mental Health Professionals (AMHPs) who carry out a variety of functions under the MHA. Approved Mental Health Professionals are registered professionals (social workers, nurses, occupational therapists, or psychologists) who have undertaken additional training, approved by the Secretary of State and regulated by Social Work England, to carry out specific duties under the Mental Health Act 1983.
AMHPs are also, amongst other duties, responsible for setting up and coordinating assessments under the Act and, if necessary, making applications to detain (“section”) people in hospital for assessment and treatment of their mental health needs.
One of the AHMPs key responsibilities is to make applications for the detention of individuals in hospital, ensuring the MHA and its Code of Practice are followed. It is the AMHP’s duty, when two medical recommendations have been made, to decide whether to make the application for the detention of the person who has been assessed under the MHA, sometimes referred to as ‘sectioning’.
Assessment also includes considering the correct legal frameworks, including alternatives to admission, ensuring that the patient is involved, and identifying and involving their nearest relative.
Councils have statutory duties to provide social care to support people experiencing mental health problems. Section 117 of the current Mental Health Act requires councils, along with the NHS, to provide after-care services and support to some people moving out of hospitals. Councils also have wider Care Act responsibilities for all those affected by mental distress.
Councils are responsible for commissioning advocates to help people express their views and to represent their interests.
They also have duties to authorise deprivation of liberty under the current Deprivations of Liberty Safeguards (DOLS) scheme.

Background

In 2017 the Government commissioned an independent review of the Mental Health Act 1983 (MHA), to look at how it was used and to suggest ways to improve it. The purpose of the Independent Review was to understand:

the rising rates of detention under the Mental Health Act;
the disproportionate numbers of people from black, Asian and minority ethnic groups (BAME) in the detained population; and
investigate concerns that some processes in the Act are out of step with a modern mental health system
it also considered how the Act could better meet the needs of people with a learning disability, or autism or people with serious mental illness within the criminal justice system.

The review’s final report published in 2018 said that the Mental Health Act does not always work as well as it should for patients, their families, and their carers. They recommended greater safeguards and a greater respect for wishes and preferences and changes to accountability, challenges, and transparency.

The review noted that the recommendations need to be seen in the context of wider investment in, and reform of, services for people with severe mental illness, learning disability, and/or autism. And that compulsory treatment must be a last resort which places an additional responsibility to ensure the quality of services is high.

In 2021 in response to the review, the Government held a formal White Paper consultation on reforming the MHA. The LGA made a formal submission to the Consultation. In August 2021, the Government published its response to the consultation. This proposed supporting most of the independent review recommendations and stated that they will develop a new Bill to reform the MHA.

The review recommended four principles to be put into law to underpin the new MHA, these are:

1. choice and autonomy – ensuring service users’ views and choices are respected
2. least restriction – ensuring the MHA’s powers are used in the least restrictive way
3. therapeutic benefit – ensuring patients are supported to get better, so they can be discharged from the MHA
4. the person as an individual – ensuring patients are viewed and treated as individuals.

In practice, suggested changes to the Act include introducing Advance Choice documents to enable people to set out in advance the care and treatment they would prefer, extension of the choice of Nominated Person, detention only if suffering from a ‘mental disorder’ that can be treated in hospital, reduction in Section 3 treatment order time limits, new care and treatment plans, more frequent tribunal access and a reduction in Community Treatment Orders.

LGA views

The LGA supports the reform of the Mental Health Act. We support the emphasis on treating people as individuals as a fundamental principle. We welcome the intention of the Act to address the rising rates of detention and experiences of people from Black, Caribbean and African backgrounds. It is important that the Act reflects the needs of people with lived experience of mental health needs.
It is essential that the new Act clearly recognises the local leadership role of councils and identifies the roles and responsibilities of councils in respect of both statutory and non-statutory mental health duties, working in partnership with the NHS and local voluntary and community services.
We strongly support the proposals to revise the detention criteria to be clearer that autism and learning disabilities are not considered to be mental disorders for this purpose, and the requirement that there must be a probable mental health cause to their behaviour that warrants assessment in hospital.
We want to see people with learning disabilities and/or autism receiving personalised care in the community whenever possible. To achieve this, it is important that there is additional funding for councils and partners to support the development of alternative resources for people with autism and learning disabilities in the community.
The Act will have significant resource implications for councils which need to be fully funded on a long-term basis. The Act needs to reflect the operational needs and resource pressures on local government, and partners, who will need to be resourced to support effective implementation. For many years mental health services at all levels have been reduced despite rising demand.
We support investment into expanding and transforming mental health services to ensure more people can access the support they need in the community. Investment must also include mental health support delivered by local authorities, as well as NHS services. This is particularly important as statutory local authority adult mental health services are funded from the social care budget.
We need a system wide focus on early intervention and prevention. Intervening early to prevent mental health problems developing, or to treat and support children’s, parents and families before problems progress is essential.
The success of the new Act will require the NHS and councils working in partnership. More needs to be done to fully embed mental health into integrated care teams, primary care, urgent and emergency care pathways.
A clear workforce strategy for both the adults and children’s workforce is required. This should look at recruitment and retention of Approved Mental Health Professionals, increasing the workforce in the key pressure areas and in early intervention and prevention spaces and at developing an appropriate training plan for workforce to make sure that mental health is everyone’s business.
There are clear links between poor mental health and health and racial inequalities. Children from low-income families are four times more likely than those from the wealthiest households to have a serious mental health difficulty by the time they leave primary school. Unemployment and poverty are strongly associated with poorer mental health and a higher risk of death from suicide. And rates of mental health problems can be higher for some black and minority ethnic groups than for White people.
Councils are key to identifying and addressing the intersectionality between health inequalities, protected characteristics, socioeconomic deprivation and poor mental health, however, resources limit the work that councils can do. The Centre for Mental Health in its Commission for Equality in Mental Health recommended that councils need an urgent funding boost to coordinate action to pursue mental health equality. We need recurrent long-term funding in councils so that children’s, adults and public health services can meet existing, new and unmet demands to combat mental health problems.

Next steps

The Bill will be debated and must be approved by both Houses of Parliament.

It will likely be amended during its passage through Parliament.

Once approved, it will be sent for Royal Assent and will then become an act (law).

A Code of practice will also be published.

The timeline of the implementation of the Mental Health Act 2025 is still to be published. The Act will not come into force fully immediately – but duties will be introduced in stages. Duties for Councils will likely be introduced in 2026/27. It is estimated that full implementation may take 10 years.

The first duties to be introduced are likely to include the new detention criteria, including for people with learning disabilities and autism, Nominated Person, and automatic referral of formal patients to Independent Mental Health Advocacy (IMHA) services.

Further information

Proposed changes to the Mental Health Act in detail

(Source Community Care Inform 2024).

Amending the detention criteria to ensure that detention and treatment under the Mental Health Act takes place only when necessary

The Bill amends the criteria for detention under part 2 of the MHA and for renewals. The aim is to provide greater clarity as to the level of risk that a person must present to be detained and to reduce the use of the MHA for people with a learning disability and autistic people.

Firstly, section 2 (admission for assessment) is amended to insert the following new tests for detention:

That serious harm may be caused to the health or the safety of the patient or another person, unless the patient is detained; and
It is necessary, given the nature, degree and likelihood of the harm, for the patient to be detained.

Secondly, the section 3 (admission for treatment) detention criteria are amended to insert the following new tests:

That serious harm may be caused to the health or the safety of the patient or another person unless the patient receives medical treatment.
It is necessary, given the nature, degree, and likelihood of the harm, for the patient to receive medical treatment.
That medical treatment cannot be provided unless the patient is detained under the MHA; and
Appropriate treatment is available (which is defined as meaning there must be a reasonable prospect of alleviating or preventing the worsening of the disorder or one or more of its symptoms or manifestation).

Third, it will no longer be possible to detain a person with a learning disability or an autistic person under section 3 unless they have a co-occurring “psychiatric disorder” that warrants hospital treatment. This exclusion does not apply to part 3 patients - those in the criminal justice system.

From nearest relative to nominated person

The Bill replaces the nearest relative with a new statutory role, the nominated person.
The nominated person can be selected by the patient at any time when they have capacity or competence to do so. The nomination must be witnessed by a health or care professional, who must confirm that there is no reason to think that the patient lacks the relevant capacity or competence or that undue influence has been used.
The nominated person continues to represent the patient even if that patient subsequently becomes unwell and no longer has the relevant capacity or competence. If the patient lacks capacity or competence to nominate, and has not made a nomination, an AHMP may appoint an NP for the patient.
The NP has the same rights and powers as nearest relatives have now. In addition, the NP would have new rights to be consulted about statutory care and treatment plans (see below) and transfers between hospitals and to object to the use of a community treatment order (CTO).
Currently, when a nearest relative exercises their powers inappropriately or unreasonably, the only means of overruling them is to remove or displace them from their role. The Bill changes this to enable the NP to be temporarily overruled when they exercise certain powers (such as the right to object to a section 3 admission). This is intended to ensure that where appropriate, the NP can continue to have a role in the patient’s care and treatment.
The county court retains the power to terminate the appointment of an NP, either permanently or for a specified time.

Compulsory medical treatment safeguards

The new Bill makes several reforms to part 4 of the MHA, which regulates when treatment can be imposed on detained patients.
It introduces a new ‘clinical checklist’, which applies to clinicians making treatment decisions. There is a duty on the treating clinician to consider certain matters and take certain steps when deciding whether to administer medical treatment to a patient.

Community treatment orders (CTOs)

The Bill revises the criteria for the use of CTOs in line with changes to the detention criteria. CTOs can only be used if there is a risk of “serious harm” to the health and safety of the patient or others, and consideration has been given to the “nature, degree and likelihood of the harm, and how soon it would occur”. In addition, there must be a reasonable prospect that the CTO would have a therapeutic benefit for the patient.
The CTO must be agreed in writing by the community clinician. The mental health tribunal is also given the power to recommend that the responsible clinician reconsiders whether a particular CTO condition is necessary.

Learning disability and autism

Under the Bill, people with a learning disability and autistic people will not be able to be detained for treatment under section 3 unless they have a co-occurring “psychiatric disorder” that warrants hospital treatment. Also, they will not be able to be made subject to a CTO solely because of their learning disability or autism.
The Bill also places care (education) and treatment reviews (C(E)TRs) on a statutory footing. C(E)TRs are designed to ensure that people with a learning disability and autistic people are only admitted to hospital when necessary and for the minimum possible time.
The NHS commissioning body must ensure that C(E)TRs are held when a patient with a learning disability or an autistic patient is detained under the MHA. Certain bodies are required to have regard to the recommendations made by the C(E)TR.
There is a duty on integrated care boards (ICBs) to establish and maintain a register of people with a learning disability and autistic people who are at risk of detention. ICBs and local authorities must have regard to the register and the needs of the local ‘at risk’ population, when carrying out their commissioning duties. The aim is to help ensure that adequate community services are available for people with a learning disability and autistic people, so as to avoid unnecessary hospital admissions.

Statutory care and treatment plans

The Bill introduces statutory care and treatment plans for detained patients and those subject to community treatment orders and guardianship, excluding those subject to short-term detention powers.
Responsible clinicians are placed under a duty to prepare and regularly review the plan, and regulations will be used to set out the contents of the plan.

Independent mental health advocates (IMHAs)

IMHAs are specially trained advocates who represent and support patients detained under the MHA. The bill extends the right to an IMHA to informal patients.
It also introduces an “opt-out” system, whereby hospital managers and others are required to notify advocacy services about qualifying patients and those services must then arrange for patients to be interviewed to find out if they want an IMHA. The aim is to increase the uptake of IMHAs.

Detention periods and their renewal

The Bill shortens the period that a patient may be kept in detention for treatment. The initial detention period is reduced from six months to three months. This can be renewed for a further three months (reduced from six months) and then for a further six months (reduced from one year).
These changes mean the patient’s initial detention will expire sooner and if the detention is to continue, it must be reviewed and renewed more frequently.

Mental health tribunals

The bill provides that patients have greater access to the tribunal. Specifically:

section 2 patients can apply to the tribunal within 21 days of detention (rather than 14 days currently);
section 3 patients can apply within three months (rather than six months currently); and
automatic referrals to the tribunal take place – in cases where the patient has not exercised their right to apply – three months from the date on which the patient was first detained and then every 12 months.

Discharge process

The Bill provides that before a patient is discharged from detention, the responsible clinician must consult someone professionally concerned with the patient’s treatment. This is intended to ensure that patients are not discharged inappropriately where they may be a risk to themselves or others. There are similar safeguards in respect of the decision to discharge guardianship.

Principles

The Bill introduces statutory requirements in relation to the content of the code of practice to include the wording of the principles formulated by the Independent Review of the MHA.
The principles are as stated; choice and autonomy, least restriction, therapeutic benefit and seeing the person as an individual. This will apply to the codes of practice for both England and Wales.

Section 117 aftercare

The Bill changes the ordinary residence rules that identify which local authority must provide or arrange section 117 aftercare services to an eligible person, by applying new ‘deeming provisions’. This mean that when a person is placed out of area, they will remain ordinarily resident in the area of the placing authority.

So, for example, where a person living in local authority A is placed into a care home in the area of local authority B, local authority A will remain responsible for providing or arranging their aftercare.

The mental health tribunal is also given the power to recommend to the NHS bodies and local authority to provide aftercare services for a patient. The tribunal can reconvene to reconsider a case if any such recommendation is not complied with.

Advance choice documents

The Bill places duties on health bodies to make information available about, and help people to create, advance choice documents. These are written records of a person’s wishes, feelings and decisions about their care and treatment that are made when the person has the relevant capacity or competence.
Clinicians must have regard to these documents (but not necessarily follow them) when providing medical treatment under the MHA.

Places of safety

The Bill removes police cells from the definition of “places of safety” for the purposes of sections 135 and 136. This change is in response to evidence that police cells are not suitable environments for people with severe mental health needs awaiting assessment and treatment.
The Bill also ends the use of prison as a place of safety for people in contact with the criminal justice system.

Patients in the criminal justice system

The Bill aims to speed up the transfer of prisoners with a mental disorder to hospitals by introducing a statutory time limit. The relevant health and justice agencies are required to seek to ensure that a transfer takes place within 28 days.
The Bill creates a power that allows the mental health tribunal or the secretary of state for justice to place conditions that amount to a deprivation of liberty on a patient as part of a conditional discharge.
This will apply in a small number of high-risk cases where the patient is no longer benefiting from hospital detention, but the conditions are necessary to protect the public from serious harm. This is a response to the Supreme Court decision in MM v Secretary of State for Justice [2018] UKSC 60, which held that a patient with the relevant capacity cannot be discharged in this manner under the existing provisions of the MHA.