To give people with learning disabilities and autism more independence, Louise Wilson of Hill Dickinson says communities must act fast to provide stable support.
This article was written by Louise Wilson, Legal Director at Hill Dickinson.
As the Mental Health Bill nears Royal Assent, it promises to transform support for people with learning disabilities and autism, prioritising community care over detention. Yet the reforms also intensify pressure, leaving providers and commissioners to navigate new responsibilities and risks.
Commissioning responsibilities are about to shift
One of the biggest changes is that people with learning disabilities or autism will no longer be detained for treatment under section three of the Mental Health Act, unless they also have a separate mental health condition such as depression, psychosis or anxiety disorders.
Section three is the part of the Act that allows someone to be admitted to hospital for longer term treatment which may be provided without their consent. Removing learning disability and autism from this route means that the default expectation will be community-based support, not hospital admission.
This puts significant pressure on integrated care boards and local authorities. Many areas still do not have enough specialist housing and/or skilled support staff or crisis services for people who leave hospital. In advance of the legislation coming into force, commissioners will need to accelerate planning and funding for community-first pathways so that people do not find themselves stuck in unsuitable settings.
Discharge planning will speed up for long stay inpatients
The changes will also increase the pace of discharge for people who have been in hospital for years under the current legislation. Many of these individuals do not have a co-occurring mental health condition and, therefore, will not meet the criteria for section three once the new law comes in.
This will force the system to move at a quicker pace. Providers will need robust discharge plans and commissioners will need available placements and support packages ready to go. Without this, people risk being discharged into the wrong setting, or waiting in hospital longer than necessary, which is damaging for their wellbeing and may give rise to issues relating to appropriate legal frameworks.
Crisis management will need a complete rethink
Frontline teams will arguably feel the most pressure. Because fewer people will meet the threshold for detention under the new criteria, staff may need to support people who are presenting in crisis but who cannot legally be admitted under section three.
This raises real world questions. What happens if a person is highly distressed, but does not meet the new serious harm test (if considering section two admission for example)? Who manages risk if hospital is no longer an available option? What does a safe alternative look like in the community?
The likelihood is that more people will end up in A&E when in crisis and where placement breakdown is likely or has already occurred. However, emergency departments are already struggling to provide the right environment for people with acute mental health needs. Therefore, staff will need clear guidance plans and backup from community crisis teams, with particular understanding of the needs of people with learning disability and/or autism so that people receive safe care without relying on detention.
The changes will create legal grey areas
The Bill may create new uncertainties for staff working in learning disability and autism services. Examples include situations where a person lacks capacity to make decisions about their care, support or treatment but does not meet the threshold for detention, or where crisis or safeguarding teams must respond to high risk individuals without hospital admission as an option.
The Bill also introduces a new test for appropriate treatment. This means clinicians must be able to show that all treatment offered in hospital has a therapeutic benefit, otherwise hospital admission may not be considered lawful.
Providers will need to update policies, train staff and strengthen governance to ensure decisions are safe and defensible.
What providers and commissioners need to prepare for now
Both providers and commissioners will need to adapt quickly, as fewer people with learning disabilities or autism meet the threshold for hospital detention, and more support is delivered in the community. Providers will need stronger crisis pathways, clearer risk management training and closer coordination with social care and housing, as well as updated policies on consent, capacity and restrictive practices.
Commissioners will face pressure to expand specialist housing, skilled staff resource and rapid response options, so people can leave hospital safely and avoid unnecessary or inappropriate admission. Together, providers and commissioners will need to build strong partnerships, working to prevent placement breakdown, reduce A&E presentations and monitor the legal and safeguarding risks that may emerge as the new legislation takes effect.
A moment of opportunity and risk
The Mental Health Bill aims to give people with learning disabilities and/or autism greater independence and reduce long stays in hospital. For this to become a reality, the wider system must be ready. Community services need investment, frontline staff need clarity and commissioners need long term plans that match the new legal framework.
Handled well, the reforms can help build a more humane and person-centred system. Handled poorly, they risk leaving people without the support they need at the moment they need it most.
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