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.
A few things on this, does the section 3 need to be 6 months due to the complexity of someone's illness, which may prove hard to treat? Also, as an RNLD, how on earth could abnormally aggressive behaviour be managed in the community? There comes a point when a family can no longer cope and an LD admission ward may be needed, the same as for people on the autistic spectrum.
ReplyDeleteThe Lunacy Act 1890 was in fact, superseded by the Mental Treatment Act 1930. It was under this latter Act that voluntary detainment was first introduced. This Act was later repealed by the MHA 1959.
ReplyDeleteDetails, details... but the 59 Act first introduced a non medical overseer to the powers of doctorss.
ReplyDeleteThey might seem to be minor details on the surface, but by making a huge jump from Lunacy Act 1890 to MHA 1959 leaves out some very important changes in the timeline between the former Lunacy Act, Mental Treatment Act and MHA 1959. After all, one Act becomes the foundation for the next Act and so on...
ReplyDeleteOK. I take your point. Got carried away a bit.
ReplyDeleteI'm concerned to hear that anyone may be able to replace their "Nearest Relative" with someone they've taken a shine to more recently. Given the state of service provision across health and social care, the Nearest Relative is likely the only person at the MHA/MCA hearing with any long-term perspective on the person and their situation. Being Nearest Relative isn't an un-mixed blessing, of course, and the report identifies many of the problems involved. But leaping from a genetic one-size-fits-all appointment to a situation where a vulnerable person chooses their one and only advocate has its own problems. For example, the same vulnerable person is allowed to choose their own state-funded solicitor for an MHA appeal - guess how often they just choose the name at the top of the list that's put in front of them?
ReplyDeleteRe Nearest Relative -Would at the very least like to see the NR have the right to formally resign the role rather than the current situation whereby can appoint someone else (? may have got that wrong) or just decide not to engage leaving the role void time after time after time. My adult children are my NR. They detest the role , believes it undermines our relationship and know in reality the chances of me getting off a section on their request is virtually nil. Plus if they disagree with the MH professionals (based on their joint 50 yrs experience of caring for me) they will just be displaced. They - and I - know my friends are so much better placed to advocate and want that role . I want to be able to nominate a NR that isn't related to me. My offspring hate the responsibility but are active carers. I deny existence of other family members after an AMHP once told me my estranged sister would have to be tracked down and told the detail of my MH condition. For many family are simply the wrong people. Let me nominate who I want. If I have capacity shouldn't that be my right?
ReplyDeleteThey need to review how appeals are undertaken and understand patient's (lack of) access to legal representation as well ensuring we have more advocates.
ReplyDeleteShouldn't we just have just one panel to appeal to but with guaranteed legal representation and advocate input instead of the current two sets of panel with flimsy legal/advocate support?
As the review is encouraging voluntary/informal admission, it should be enshrined in law that if patient request such admission, there should be time limit (say 7 hours) within which they are admitted on the ward. Patients should not be left to their own devices waiting for a bed to no end as bed management prioritise detained patients.
ReplyDelete