The Government arranged for a review of the current Mental Health Act back in October 2017.
The review’s terms of reference were “to make recommendations for improvement in relation to rising detention rates, racial disparities in detention, and concerns that the act is out of step with a modern mental health system.”
Having taken submissions and recommendations for changes from service users, professionals and professional bodies, this interim report was published at the beginning of May 2018.
This is still an ongoing review, which will make concrete recommendations later in the year. However, judging from the tone of this report, I am very encouraged that the eventual recommendations will reflect changes in the approach to human rights, and will make sensible and achievable changes.
The report states from the beginning that “the aspiration is to increase informal admissions and/or alternatives to admission, rather than compulsory admissions, in keeping with the original intentions of modern mental health legislation, first laid out in the 1959 MHA.”
It is worth remembering that much of the current Act, despite the extensive amendments from the 2007 MHA, the Health & Social Care Act 2012, the Care Act 2014, most recently the Policing and Crime Act 2017, still contains a lot of the original MHA from 1959.
It is also worth remembering that the MHA 1959 replaced the Lunacy Act 1890. It is incredible now to think that a Victorian law governed the management of people with mental health problems well into the middle of the 20th Century.
One of the largest conceptual changes was to introduce the concept of a social perspective informing assessments for compulsory detention in hospital. Rather than doctors having virtual free rein to incarcerate mentally ill and learning disabled patients in asylums, often for many years, the 1959 Act only allowed doctors to make recommendations. The final decision was to be made by a “mental welfare officer”, a non medical role that eventually evolved into the “approved social worker” role created by the 1983 Act. This role morphed again into that of the “approved mental health professional”.
Having had all three of those titles, I can speak from personal experience of the impact that that change in approach had on decisions about whether or not to admit people to psychiatric hospital. While MWO’s had minimal training, the ASW role in the early years required a compulsory training course and the necessity to pass an examination in order to practice. Today, the AMHP not only has to undergo months of training, but also has to prove their ongoing competence to practice.
The interim report makes some cogent observations, one being that “we have seen unprecedented investment in talking therapies for those with common mental health problems, and an upsurge of general interest in mental health”. It goes on to say:
“Most of this new interest is at one end of the spectrum, with far less attention given to those at the other end of the spectrum, those with the most severe forms of mental illness. Yet those with the most severe forms of mental illness have the greatest needs, and continue to be the most neglected and discriminated against. Furthermore, they are also the group who are the most likely to be subject to the influence and powers of the MHA.”
The report is clear that “we remain committed to the goal we set out when we began – namely to make the MHA work better for everyone. We know that much of what is required to achieve these goals, of a mental health service that provides dignified and therapeutic care for those with the most severe of mental illnesses, is not going to be achieved by legislative means alone. We know that issues such as resources and staffing are fundamental to these objectives.”
The report lays out 10 explicit aims to improve mental health care.
Service users and carers being treated with dignity and respect
Greater autonomy for people subject to mental health legislation
Greater access to services for those that need them
Making the least restrictive option appropriate to a person’s circumstances the default option
Improved service user and carer wellbeing
Service users and carers supported to be fully involved in treatment as possible
Reduced disparities between groups with protected characteristics
Greater focus on rights-based approaches
Reduced harm and improved safety for all
Professionals better able to deliver their expertise
I cannot find anything there with which to take issue.
From an AMHP perspective, I am also heartened with the comment that “Many service users had a positive or largely positive view that [detention under the MHA] was the right course of action, with some service users, on reflection, commenting that being detained saved their life and prevented suicide. However this view was not universal and an almost equal number did not believe detention had been the right approach for them.”
The Review identifies a total of 18 key topics requiring particular attention. These are divided into four areas: before detention, during detention, leaving hospital, and issues for specific groups. I will not analyse all of these, as this post would risk being a long as the Interim Report itself.
Rising numbers of detentions
The Review sees it as a priority to address the rising numbers of detentions under the MHA, noting that this has grown steadily for each of the last 10 years. (Is it coincidental that this period largely covers the time since the Coalition, and then the Conservative Government, have been in power? I can only speculate.)
It goes on to say that:
“We have been told people are not receiving the care they need in the community, and which might have prevented them from reaching crisis. We have also been told that a reduction in acute bed numbers has made the use of the MHA more important to get someone a bed when needed.”
It is encouraging that the Review is listening to the legitimate concerns of those with both a professional and personal interest in mental health legislation.
The Review also makes observations relating to changes in the perception and handling of risk:
“The decision to detain, either at the stage of initial admission or at the point of renewal, is primarily based on risk. A theme identified by many stakeholders has been the emphasis on risk and the differing risk thresholds that are applied when making decisions about using the MHA or continuing to detain a service user when a renewal is due.”
One interesting suggestion is that sections 2 & 3 should be combined into a single section of shorter duration. I certainly posited some time ago on this blog that there was no rational reason for a S.3 to last for 6 months.
The Police Role
The Report notes that:
“The police recognise that helping people with mental health issues is a part of their core business. The police are key partners in the community-based model of mental health care. This is particularly true in cases of immediate responses to people in mental health crisis.”
It continues by recognising that the police should not be placed in a position of having to make up for gaps in NHS provision, and also that it should be a matter of principle that those under arrest who have been assessed as requiring detention in hospital “should be treated within the NHS rather than a police cell.”
The Nearest Relative Role
I am pleased to see that attention has been given to changing the NR role. This is directly in accordance with the recommendations of the three main professional bodies representing those involved in administering MHA legislation: The Royal College of Psychiatrists, the Law Society, and the British Association of Social Workers, all of whom have submitted that the current NR role does not reflect current needs.
“At present, this provision and the statutory order of preference of the nearest relative can result in inappropriate people automatically being selected to be the nearest relative. AMHPs have highlighted the complexity of identifying the correct nearest relative. “
The favourite model appears to be a system whereby a patient can appoint their own person to take on the role, in a way similar to the Scottish MH legislation. In principle, I would welcome this, although I can also see that the legislative framework to ensure this best meets the needs of the patient could be fraught with problems.
A similar situation to that under the Mental Capacity Act, where someone can in advance appoint a lasting power of attorney to manage their affairs were they to lose capacity might work, but how many people would foresee this need, and appoint an NR in advance?
Community Treatment Orders
These were introduced by the changes in 2007, and have been somewhat controversial. The Report says:
“About 5,000 people are currently on a CTO at any time, considerably more than the number estimated by the government prior to their introduction. The latest MHA statistics show that ‘Black or Black British’ people are nine times more likely to be given a CTO than white people.”
The submissions by BASW and the Law Society expressed clear misgivings about this legislation, the Law Society asking “are they in practice a crude mechanism for the chronic bed management issues in hospitals?” BASW suggested that they should either be abolished, or “the criteria for their use strengthened so that they only apply to individuals with clear and evident history of rapid and repeated relapses,” although the RCPsych preferred CTOs to be retained, although with some modifications.
The Report was clear that:
“We are not persuaded that CTOs should remain in their current form. In reforming or replacing them, we will start by ensuring that there is clarity of purpose, and also that future provisions do not reproduce the current overrepresentation of some BAME groups, particularly men of black African and Caribbean descent.”
Issues for particular groups
The Report has clearly identified issues and problems associated with specific groups, not least those from black and minority ethnic communities, who are disproportionately represented in statistics relating to detention under S.2, S.3, and S.136, as well as CTOs.
It correctly identifies problems with hospital beds for children and young people, who are often placed in hospitals far from home. It also flags up the anomalies associated with the interface between different legislation, including the MHA, the Mental Capacity Act and children’s legislation.
The Report identifies “wider questions about whether or not learning disabilities and autism are conditions that are treatable under the MHA definition of treatability”, the authors observing that “we have been struck by the significant level of disagreement about the inclusion of learning disability and autism in the MHA and the subsequent role of the interaction with the MHA to provide the most appropriate care for their needs.”
BASW has gone so far as to suggest that “it is inhumane for learning disabled people to be detained in hospitals because their behaviour cannot be managed in the community”, also stating that “formal detention of learning disabled people in hospital where there is evidence of ‘seriously irresponsible or abnormally aggressive’ behaviour is inappropriate”, and because “psychiatric hospitals can exacerbate the distress of these service users, their needs should be met in the community”.
It appears clear that those in charge of this Review are committed to ensuring as far as possible that the needs of people subject to the MHA are met, and that their consideration of their human rights should be paramount. I am very encouraged by this.
The final recommendations of the Review will likely be far from the end of the process of revision, however.
In the late 1990’s a review of the MHA 1983 was mooted, and several draft Bills were published, which culminated not in a completely new Act, but merely extensive revisions to the existing Act in 2007. On the way, some of the more contentious proposals were jettisoned, such as the concept of a power to detain indefinitely someone deemed to have a dangerous and untreatable personality disorder, even if they had not actually committed any offence.
And of course, the present Government has other legislative priorities, which may indefinitely postpone a new Mental Health Act, especially if it is likely to cost more money.