There was no clear mandate for such changes, and their presumed aims are unlikely to be achieved

This key point, highlighted in several articles,^{Reference Taylor7–Reference Taylor and Burrell9} is that the proposed changes were not recommended in the Independent Review of the Mental Health Act,² and appeared first in the White Paper.⁵ Qazi et al^{Reference Qazi, Watts, Comisky and Okoro10} have reasonably asked, ‘[w]hy not propose a consultation on change, rather than the removal?’.

It is not clear that changes to primary legislation are the best way to achieve the stated policy objectives. Beazley et al^{Reference Beazley, Dewson, Butler and Le Marquand11} and Tromans et al^{Reference Tromans, Bhui, Sawhney, Odiyoor, Courtenay and Roy8} argue that the changes are unlikely to prevent cases of institutional abuse. They highlight that the failings in such institutions have been neither unique to hospital settings nor indeed to autistic people or those with a learning disability, with Tromans et al^{Reference Tromans, Bhui, Sawhney, Odiyoor, Courtenay and Roy8} concluding that ‘the uncomfortable truth is that poor care can occur in any setting’. Instances of abuse may even increase if the changes result in more people being moved to less well-regulated residential environments.

More generally, because of the wider concerns that will be outlined, we believe that it is unlikely that the proposals will improve parity of esteem for autistic people and those with a learning disability, or reduce stigma.^{Reference de Villiers12} One of our carer authors remarked that there was a ‘very high risk of further exacerbating the chronic issue of health inequalities experienced by those individuals with a learning disability and autism, resulting in significantly poorer clinical outcomes for these individuals and causing them to unnecessarily experience a much poorer quality of life’.

The basis for removing autism and learning disability is inconsistent with the conceptualisation of other mental disorders

There is no epidemiological or clinical reason why learning disability and autism should be considered together in the way proposed: they are distinct conditions. Moreover, there are no sound reasons for considering learning disability and autism as sitting apart from the wider legal classification of ‘mental disorder’. As de Villiers^{Reference de Villiers12} points out, ‘it has never been the case that mental disorder only refers to episodic or psychotic illness’. More generally, Beazley et al^{Reference Beazley, Dewson, Butler and Le Marquand11} highlight that ‘the practice of drawing a clear line between “mental illness” and “autism” is not necessarily so easy’, and note the complexity in meaningfully attributing specific features of a presentation to a specific condition.

Other papers have identified challenges with the specificity of terms used to differentiate autism and learning disability. For example, two papers^{Reference Taylor and Burrell9,Reference Beazley, Dewson, Butler and Le Marquand11} challenge the logic that autism and learning disability are ‘untreatable’, highlighting that there are many other examples where the goal of treatment is not to remove a particular condition (for instance, psychological treatment for personality disorder is commonly about increasing the individual’s ability to effectively manage emotional and behavioural symptoms).

It is inconsistent to remove autism and learning disability from the scope of Part II, but not of Part III

This point has been made by a range of authors,^{Reference Taylor and Burrell9,Reference Beazley, Dewson, Butler and Le Marquand11,Reference Hassiotis, Langdon and Courtenay13} who highlight that there is an inherent inconsistency and inequity in allowing a detention to occur under the forensic sections of the Act but not allowing a civil detention under Section 3. The 28-day period allowed under Section 2 is inadequate for meaningful care, treatment or assessment for people who continue to present with serious risks towards the expiry of this section,^{Reference Tromans, Bhui, Sawhney, Odiyoor, Courtenay and Roy8,Reference Hassiotis, Langdon and Courtenay13,Reference McKinnon and Keown14} or where ongoing distress clouds the opportunity for assessment of a mental health condition, particularly in the context of the often different presentation of severe mental illness in this population. These were concerns also considered by the Parliamentary Joint Committee.¹⁵

McKinnon and Keown^{Reference McKinnon and Keown14} have argued that the potential increased use of ‘forensic’ sections under Part III of the Act ‘could have the paradoxical and unintended consequence of detentions under the MHA being more restrictive’ for people with a learning disability. These concerns, as well as the associated concern that the criminal justice system may come under increased pressure to prosecute people with autism and learning disability, were clearly detailed by the joint committee. The potential missed opportunities for treatment and intervention are equally concerning.

One of our carer authors highlighted a concern that, by retaining autism and learning disability within only the ‘forensic’ sections of the Act, there is the risk of unintentionally reinforcing stigmatic beliefs about the dangerousness of autistic people and people with a learning disability.

It is unclear what will happen to those people who might otherwise have been detained under Section 3

This is a key point, considered in some form by most authors, reflecting concerns around both the potential for unmet care needs and unaddressed risks.

McKinnon and Keown^{Reference McKinnon and Keown14} highlight NHS data indicating that the median length of stay for people with a learning disability is ‘42 days, considerably longer than the 28-day duration of Section 2’. This suggests that there will be a relatively large number of people with a learning disability who will, in practice, be affected by the proposed changes. What happens to those who would currently be detained under Section 3?

Tromans et al^{Reference Tromans, Bhui, Sawhney, Odiyoor, Courtenay and Roy8} have highlighted the unpreparedness of existing community services to address the care needs and risks presented by people within this group. Velani et al^{Reference Velani, Sawhney, Alexander, Shardlow and Zia16} conducted a survey of 45 English mixed mental health professionals and reported that 76% ‘thought that substantial investment in community services was required in advance of the proposed reforms’. Taylor and Burrell^{Reference Taylor and Burrell9,Reference Taylor17} have expressed concern that the proposed processes for supporting the development of community services will probably draw heavily on approaches (such as pooled budgets and joined commissioning) adopted in the ‘failed Transforming Care programme’.

Without recourse to the MHA, it is likely that the Deprivation of Liberty Safeguards (DoLS) framework will be used instead to authorise detentions, at least for the group of people who do not object to their treatment in a hospital. In its present form, the Bill does nothing to prevent the use of DoLS in this way, although the current parliamentary process highlights potential amendments that could also remove this option.¹⁸

The DoLS framework is, without question, a much more poorly safeguarded option than the MHA.^{Reference Taylor and Burrell9,15} It is also a much more challenging framework under which to manage risk. It offers no access to a second opinion approved doctor (SOAD) to authorise treatment, no ‘nearest relative’ who can initiate discharge, no Article 8 right to an appeal with the corresponding free legal representation and no regular automatic tribunals even if no appeal is made. If the liberty protection safeguards (LPS) are introduced to replace DoLS, such safeguards may be reduced further because authorisation for the LPS moves with the person, rather than needing to be renewed in each new setting. Similar concerns were identified by the joint committee.¹⁵ Our carer authors expressed a concern that detentions under DoLS might become longer than those under the MHA because of the limited safeguards.

A further disadvantage of an increase in the use of DoLS would be the loss of aftercare provision under Section 117 of the MHA. This provides funding for support in the community following discharge from a Section 3. Our carer authors referred to this as a ‘vital safety net’. Several authors^{Reference Tromans, Bhui, Sawhney, Odiyoor, Courtenay and Roy8,Reference Qazi, Watts, Comisky and Okoro10,Reference Beazley, Dewson, Butler and Le Marquand11} have pointed out the implications of removing access to this, with Tromans et al^{Reference Tromans, Bhui, Sawhney, Odiyoor, Courtenay and Roy8} also highlighting the potential implications for a breach of the Equality Act 2010, particularly if ‘the fabric of social care engagement is not strongly and statutorily designed’. This exclusion might even create a perverse incentive for providers to identify a diagnosis of autism or learning disability to avoid funding obligations under Section 117.

Beyond concerns about DoLS, one of the greatest concerns is the fear that autistic people and those with a learning disability may, instead, be sent to prison because of unmanaged and unnecessary escalation of risk in the community.^{Reference Tromans, Bhui, Sawhney, Odiyoor, Courtenay and Roy8,Reference Hassiotis, Langdon and Courtenay13,Reference McKinnon and Keown14,Reference Khan19} We note that research has highlighted the fact that the closure of psychiatric beds, particularly learning disability beds, has been strongly associated with an increase in the prison population.^{Reference Wild, Alder, Weich, McKinnon and Keown20} An increased likelihood of prison sentences was also a concern of our carer authors, who relayed personal experience of this occurring. Our carer authors highlighted this was a concern, not only because of the direct on the individual sent to prison but also because of the stigmatisation associated with criminalisation, both for the individual and also for the wider community of autistic people and those with a learning disability.

The fact that only a relatively small number of regions have a functioning community forensic learning disability team,^{Reference McKinnon, Whitehouse, Harris, Ciausu, McCarthy and Sheehan21} a service clearly defined in national service standards,²² raises a particular concern that any associated hospital closures that follow the proposed changes would mean that some areas may be left with no functioning services with relevant professional expertise in risk management of learning disability, thus increasing the likelihood of risks escalating without effective intervention and support. There are particular concerns about people awaiting trial in the community who might otherwise be managed via detention under Section 3.^{Reference McKinnon and Keown14}

It is important to emphasise the potential impact on public protection based on unmanaged risks. Of course, most autistic people or those with a learning disability present no wider risk to others. However, in some cases there are risks including fire-setting, sexual violence and stalking. Some ‘special interests’ in autism can also cause concern (e.g. poisons or explosives). These behaviours occur for a complex range of reasons, and effective risk management is important to assure public safety, including that of carers. When such risks begin to escalate, a detention under Section 3 is a key mechanism to prevent further development with more serious consequences.

Beazley et al^{Reference Beazley, Dewson, Butler and Le Marquand11} highlighted a particularly concerning scenario for people who commit a serious offence but who are unable to be prosecuted for it for any reason. A ‘hospital order’ under Section 37 of the MHA generallyFootnote ^b relies on a successful prosecution occurring. Plenty of prosecutions are not pursued for evidential reasons, or because the Crown Prosecution Service judges them not to be in the public interest. For people with profound impairments, their probable unfitness to plead or wider difficulties in engaging in trial proceedings may also be relevant and, even if such proceedings are brought, the underlying cognitive impairment may cause a failure in the underlying mens rea, meaning that charges are dropped. This could leave a person with no prison sentence, no access to the MHA and, if the person objects, no access to DoLS. If the underlying behaviour means that the person also loses their residence (this might occur if the initial incident is, for example, an assault on a staff member in a residential home), it could leave a group of people with literally nowhere to go.

Finally, if increased numbers of autistic people or those with a learning disability move into community residential or care settings, it will be vital to improve the capacity, governance and quality of housing and care provision at these locations, as well as associated community NHS services. The joint committee indicated they had ‘serious concerns that the deficit in community care provision has the potential to derail these reforms and lead to worse outcomes for this group’.¹⁵ One key factor is that, while care homes will typically be registered with the Care Quality Commission, many supported living environments are not. One of our carer authors, reflecting on their son’s experience, noted that ‘the level of squalor and misery that was deemed acceptable is unbelievable when I look back on it now’. Echoing this, a pilot study that reviewed stakeholder views concerning supported living and residential care settings highlighted a wide range in the quality of care provided.^{Reference Chester, Martineau, Manthorpe, Hickman, Coper and Yuan23}

The definition of ‘autism’ is too broad (and so the definition of ‘psychiatric disorder’ is consequently too narrow)

Beazley^{Reference Beazley24} has highlighted a specific concern about the breadth of the proposed definition of ‘legal autism’ in the Bill, noting that this is much broader in scope than any clinical conceptualisation. This paper raises the concern that, because ‘psychiatric disorder’ is ‘defined primarily by what it is not (i.e. legal autism or learning disability)’, there is a risk that conditions other than autism (including, but by no means limited to, personality disorder) could be argued as meeting the definition of ‘legal autism’ and thus be excluded from the scope of a Section 3 detention. The paper raises a particular concern about the resultant necessity for tribunals to have an increased focus on ‘mental disorder’ (as opposed simply to ‘nature’ or ‘degree’), particularly given the fact that presenting an autism diagnosis that subsumes or overlaps with ‘nature’ might become a compelling line of argument for advocates arguing for discharge. This is a particular concern given that autistic people are known to have high rates of co-occurring psychiatric conditions.^{Reference Lai, Kassee, Besney, Bonato, Hull and Mandy25} The briefing by the Parliamentary Office of Science and Technology²⁶ acknowledges that ‘[m]ental health disorders can present differently in autistic people, and combined with communication difficulties this can make disorders harder to diagnose’. In a situation with comorbid or overlapping features, who determines where the boundaries of the excluded ‘legal autism’ and remaining ‘psychiatric disorder’ begin and end?

Wong^{Reference Wong27} has argued for the need for ‘definitional width’ more generally from a legal standpoint, concluding that ‘a wide definition allows for requisitely flexible approaches to treatment administration under practical complexities’. Certainly, creating legal definitions of clinical problems, disorders or conditions is an inherently complex process, with lessons to be drawn from the ‘Dangerous and Severe Personality Disorder’ concept introduced following the last set of MHA reform.^{Reference Beazley, Dewson, Butler and Le Marquand11} If legislators wish to avoid the unintended consequences arising from adopting a broad clinical definition for a legal purpose (particularly one with an exclusionary function), it is important that development of the corresponding definitions and conceptualisations is underpinned by additional research.