Roundtable: What should we do with the Mental Health Act?
Theresa May’s speech to the 2017 Conservative Party Conference may be long remembered, though perhaps not for the reasons she might wish. It was thus easy to overlook some of the substance of what she said. While the PM may have been handed a P45, she is still the holder of the top job in the UK Government and it’s of more than passing interest to us that she announced the formation of an independent enquiry to review the current Mental Health Act (MHA). The review will be chaired by Professor Sir Simon Wessely and will focus on increasing rates of detention under the Act. It will also look at the disproportionate numbers of people from black and minority ethnicities (BME groups) who are detained using these powers. Ahead of the review group’s first meeting (in November 2017) we asked several of our contributors and staff what they think of the announcement and where they hope it may lead. We’re very pleased to welcome back the legal expertise brought by @THEAGENTAPSLEY and to debut our very own Maria Griffiths. So, without further ado, let’s roundtable!
WHY DO YOU THINK THIS REVIEW HAS BEEN ANNOUNCED?
JOHN MCGOWAN: I wonder if a big reason is her own personal commitment to the issue. She’s mentioned it (pretty much unprompted) a number of times. She also has some record of sponsoring policies (such as Grammar Schools) which aren’t necessarily big vote winners but which she believes in. I don’t really know where this one is coming from, and her overall aims are similarly not very clear to me. However, it seems to be something she does care about enough to put the weight of the Prime Minister’s office behind it. I think that is to be welcomed.
RACHEL TERRY: I also welcome the spotlight that Theresa May has chosen to shine on mental healthcare (particularly inpatient care). I also agree with her concerns about the number of people involuntarily admitted to hospital rising at such a dramatic rate (47%, in last 10 years). We know that the experience of being ‘sectioned’ can be extremely traumatic and should very much be a last resort in mental healthcare. I was very pleased see Sir Simon Wessely highlighting question of how we support those in mental distress so that they do not need to be detained in hospital in the first place. He also drew attention to factors such as discrimination and poverty which are crucial.
The cynic in me though is concerned that the Prime Minister’s announcement is also driven by a wish to further cut spending on mental health care, without necessarily considering where else people may be able to access support.
@THEAGENTAPSLEY: Government only reviews Mental Health law when clamour and/or court rulings oblige it (e.g. the Bournewood case). After commissioning such reports numerous recent governments have then side-lined them or seriously dragged their feet. (Maybe this is normal in government, but it’s worth looking at the example of the safeguards on deprivation of liberty. These were raised in a Lords’ Select committee in March 2014, but the Government response will have taken four years.)
Ostensibly, the review is motivated by the wish to address the unequal impact of Sectioning (detention under the MHA), on those from BME backgrounds. Racial stereotyping was a problem at the time of the 2007 Act (big, black and dangerous is a pernicious trope), and males from those backgrounds are disproportionately detained. If the Government is serious about addressing the hugely negative impact of race in mental health they also need to review stop and search powers.
MARIA GRIFFITHS: Theresa May has talked in the past about ways in which compulsory treatment under the MHA can disempower people who might be vulnerable. The fact that she’s mentioned it again is encouraging, as is her concern about rising admission rates and the effects on people from BME groups. I hope that her actions match the rhetoric. I also welcome the fact that she is suggesting starting from scratch rather than reviewing the current act. I do wonder if she has really appreciated quite how much needs to change in the whole system for any new legislation to work well in practice.
WHAT ARE THE MAIN PROBLEMS WITH THE MENTAL HEALTH ACT AS IT STANDS?
JOHN: I see quite a few people queuing up to criticise the MHA, but what precisely is wrong with the current legislation, beyond the fact of compulsory powers, is sometimes less clear. Unpleasant though the thought may be I think societies will never completely do without compulsory treatments in one way or another. Because of that the law will always need to be involved. It’s really about how we manage this: on what basis are decisions made and how do things get to that point? Currently we can detain people on the basis of a mental disorder irrespective of whether they can consent to treatment or not. This situation is unlike any other area of health care. Also problems exist in the wider world beyond the legislation. Why do many more people from BME groups come to the point where the MHA is seen as a necessary option in the first place? The reasons for that maybe be pretty complicated. In some ways the actual legislation is the least of it. I think, to his credit, Simon Wessely understands that. We’ll see how that works its way into the review.
RACHEL: I’m concerned about how the law is sometimes implemented. In my experience in inpatient settings people are often detained for too long, staying in hospital well after their crisis has subsided. This can have a detrimental impact on a person’s relationships, education and employment, and can erode someone’s belief in their ability to manage ‘on their own’. This delay is often due to there being a lack of resources in the community: perhaps ironic when you see how much hospital admission costs relative to other interventions. I’m also uneasy about Community Treatment Orders (CTOs), which were introduced when the Act was updated in 2007. These allow for an individual to be recalled into hospital if they don’t comply with an element of their treatment plan. The idea behind these was, I think, well-intentioned (to reduce the amount of time someone would be detained in hospital). However, it places even greater limits on a person’s autonomy to make decisions about their own care. Also I wonder if CTO powers are actually helpful for mental health professionals either. The danger is that CTOs feed into an idea that professionals hold more and more responsibility for managing a person’s risk to themselves and others. As well as the pressure this places on staff, that feeling of responsibility can lead to very cautious practice which curtails liberty and impedes recovery.
@THEAGENTAPSLEY: As psychologist Ste Weatherhead and I contended a few a few years back, the circumvention of advance directives and lack of consent for electroconvulsive therapy (ECT) by deeming people not to have capacity are big problems.
Also the role of the Police is an issue. They are involved under s. 136 (the section that mandates someone who is ‘mentally disordered’ being taken to a ‘place of safety’). However, the Police have little reason to have a role elsewhere under the Act (e.g. absconding). Over involving them can exacerbate the fears of that this is essentially a system for criminals.
Another important area is the ‘Least Restriction Principle’. The aim of this is to keep invasive restraint to an absolute minimum. However, the Act requires considering Supervised Community Treatment Orders before looking at longer-term leave (unless the former has been considered first). These CTOs have not been shown to work.
MARIA: I think you have to start by at least questioning the idea that compulsory admission is sometimes necessary. It’s very difficult for us to stand away from this assumption. We’ve relied on it for so long that it is hard to imagine operating without it. I’m not sure, for example, that we fully understand how the short term management of risk is offset by the long term risks of traumatising people by admitting and treating them against their wishes. In my own clinical work, I also frequently encounter the impact the Act can have on carers. I’ve seen family relationships break down completely following the involvement of a relative in the detention of a family member. Carers can also be put under immense strain by difficulty accessing a suitable safe place for a family member in crisis. I agree with Rachel about CTOs, but I’d also add that these can also be particularly difficult for families. When your relative is under a CTO, attempts to encourage engagement with treatment can be experienced as attempts to monitor compliance with the CTO.
It’s also worth mentioning the complexity of the MHA. It can be very difficult for service users, and their families and carers, to understand what is being done and what their rights are. It’s hard to see how this can be completely avoided, but I think we often could do a better job of informing people of key facts before situations reach a crisis point.
IS THERE ANYTHING GOOD ABOUT THE LAW CURRENTLY?
JOHN: Especially since the 2007 updating of the original Act (form 1983) there are safeguards built into the process (e.g. second opinions, advocacy, different kinds of scrutiny of how the law has been operated). These are a lot better than nothing. That isn’t to say though that they couldn’t be improved or that they are always administered appropriately, but they are there and have been improved over the years.
RACHEL: Although it feels very uncomfortable, I believe that there is a need for clear legislation about what to do if someone is in need of treatment but doesn’t consent to it. A strength of the law as it currently stands is that it involves several safeguards. However, it is important that these are not tokenistic and that it’s possible to challenge and question decision making. The 2007 update of the Act was a positive step, increasing recognition of the potential for mental health professionals other than Consultant Psychiatrists to take on the role of ‘Responsible Clinician’. I hope that thinking will be continued as it could lead to care that is more multi-professional and holistic.
@THEAGENTAPSLEY: There are some valuable parts of the law right now but they are often a double-edged sword. As a sort of back-hander the Act grudgingly accords an advance directive a status (it calls directives ‘decisions’). However, it is hedged by needing certification by ‘the registered medical practitioner concerned [that he or she] is satisfied is valid and applicable’ and that the treatment ‘would not conflict’.
It is also good to have Independent Mental Health Advocates, but funding / priority for them has tended to destroy generic advocacy services.
Section. 127 makes ‘ill-treatment of a patient’ and offence, but when was a prosecution ever brought?
Although the Code of Practice states many useful principles, they are not in the Act in itself, and the result of case-law has been to downgrade the status of the Code. (There are as good principles that guide what should be in the Code, but they too do not guide the Act.)
MARIA: I think that the development over time of the MHA Code of Practice has been a strength and it’s an important reference point. The inclusion of the opportunity to use an Independent Mental Health Advocate is particularly valuable but I’m not sure how routinely people are encouraged to take this up. I doubt whether most people would know to ask for it or feel able to assert a request to access an appropriate person.
WHAT WOULD YOU LIKE TO SEE CHANGED IN A NEW LEGAL FRAMEWORK?
JOHN: I do think the safeguards are worth looking at. The law as it stands already has some but we could aim higher. Rachel and @TheAgentApsley mentioned CTOs. I was initially in favour of these. However, I’ve said before that I don’t think they are achieving what they set out to achieve and it would be worth taking a look at them too. Ultimately though I think I’d like to see something a lot more radical. As I said earlier, mental health is an area unlike any other: one where you can have capacity to refuse treatment but nonetheless be treated anyway. I wonder what it would look like if we abandoned that idea and brought mental health into line with other areas of health care. We have mental capacity legislation already in place and, if we put that together with improved safeguards, we’d have a fundamentally different relationship between citizens and the healthcare system. One built on rights rather than control. Theresa May has said she wants to ‘rip up’ the MHA. That really would do it!
RACHEL: I’d like to see a wider use of advance directives so that people can make a plan for the care they wish for in a crisis. More broadly I would also like to a greater emphasis on investment in community mental health services and also other non-medical resources (such as supported employment schemes and supported housing). Overall we should aim to make it less likely that detention is the only option. I would also like to see inpatient settings where non-biological models of mental distress are given more weight than they are at present. One way of doing this would be to increase the input of mental health professionals from a range of disciplines (or even lay people in the wider community) when making decisions about detention.
@THEAGENTAPSLEY: Most potential changes are implicit in the above: give the Code of Practice greater status, ensure meaningful consequences for mistreatment or neglect of people detained, and respect the capacity to refuse treatment. You should not be able to be treated against your will if you have capacity.
It would be useful to consider the role of the ‘Nearest Relative’. It’s a real concern that abusers amongst family or so-called carers are too often credited with a decisive role. While it is unusual for the Nearest Relative (defined by the application of rules that are set out in the Act) to apply for hospital admission, it is possible. This could be someone a who may be dishonest about the actions or beliefs of the person being sectioned. Once someone has been detained under the Act, those that Nearest Relative has greater status than they do. The Nearest Relative can be ‘displaced’, but only going to court.
The review could also consider the scope of MHA Tribunals and recourse around the reasons for detention. Detained patients often look to First-Tier Tribunals (who handle applications for discharge) to say that they should never have been detained. However, a discharge by a Tribunal does not look at the point of detention, but rather considers whether to discharge at that time time the Tribunal is held. Nothing addresses whether the person ever should have been detained, and discharge or discharge by Tribunals, hospital managers or a relative, are all that is open to them.
MARIA: I’m also interested in the options for formalising the use of advance directives and would like to see the perspectives of the ‘Nearest Relative’, and others close to the service user, given higher priority in this process.
Overall though I’m less clear about what needs to change and more concerned about how any changes are implemented. I do wonder whether all the same problems we have now could be recreated with new legislation, however innovative it might be. The pull towards what we know and have relied on will be very strong. This may be the case particularly in situations that raise organisational anxiety but without proper means to manage that anxiety (e.g. risk issues in under-resourced teams with high staff turnover). Any new legal framework will have to be supported by proper investment in mental health care more broadly, including a wider range of options to manage crises without the need for compulsory powers. The implementation of the Home Treatment Team model in routine practice could usefully be reviewed, for example. As others have said, it’s about trying to address issues before compulsion becomes the primary option.
So that’s what our panel think. Some agreement and some real contrasts (e.g. over the role of the Nearest Relative or about whether we actually can do without compulsory powers). What do you think the Mental Health Act review should focus on? We’d love to hear your suggestions below.
@THEAGENTAPSLEY, served articles in a law firm in the early 1990s. Despite ‘a breakdown’ soon after, caused by lack of confidence and too many pressures, The Agent managed to practise as a solicitor in a high-street firm and employment law, before working in mental health for nine years.