5

We are pleased to see that the Government has committed to monitoring the number of...

Recommendation
We are pleased to see that the Government has committed to monitoring the number of autistic people and people with learning disabilities who are detained under the Mental Capacity Act. The Government should report these numbers to Parliament within a year of the relevant clauses 53 of the Bill coming into force, and stick to their commitment to take action if they indicate that the Mental Capacity Act is being used inappropriately. (Recommendation, Paragraph 51)
Government Response
Rejected
HM Government Rejected
Support in the community is crucial, but we do not agree that a new dedicated right is the best approach to achieve this. We are concerned that introducing a statutory right would bring practical and delivery complications, with the NHS already being free at the point of use. The right to healthcare already exists – it is in the NHS Constitution, which is clear that the NHS is designed to improve, prevent, diagnose and treat both physical and mental health problems with equal regard. It provides people with the right to access NHS services, to receive care and treatment that meets their needs and reflects their preferences, and to expect the NHS to commission and plan the services to meet health needs as considered necessary. We are piloting neighbourhood mental health centres to improve access to timely and appropriate care. These pilots will co-locate services and assign a named professional to oversee each person’s care. This will provide 24/7 open access and direct referral routes, reducing the need to navigate complex pathways. Staff will provide immediate support and connect individuals to the right care without unnecessary delays. Joint clinical management and neighbourhood-based oversight will ensure care is continuous, accountable, and responsive to individual needs. Committee View We recognise the risk that permitting detention on the basis of autism or learning disabilities under Part 3 of the MHA whilst prohibiting it under Part 2 amounts to a difference in treatment falling under the prohibition on discrimination in Article 14 ECHR. Nevertheless, we share the views expressed to the Committee that, currently, given the alternative for these patients is likely to be detention in prison, this difference in treatment appears justified. This is not, however, an adequate long–term solution. Once again, greater support to autistic people or learning disabilities in the community is needed to divert them away from the criminal justice system.
Addressee Bodies
Ministry of Justice
Timeline
Recommendation age 1.1 yr
Report published 19 May 2025