The Independent Review of the Mental Health Act (MHA) was completed in 2018 and we now have a Draft Bill that is being scrutinised by a Joint Committee which is currently hearing oral evidence. NSUN was among a number of groups invited to give evidence. You can watch evidence sessions here and follow updates from the committee.
The Draft Bill is not a perfect document. It is not compliant with the letter or spirit of the UN CRPD, though this should come as no surprise to those who have been involved with the process so far. Chronically underfunded services remain a problem and the funding for reforms are unclear.
One of the drivers of reform was the disproportionate detention of racialised people, in particular Black people, under the Act. Whilst policy has been proposed to address this, there is very little in the draft bill itself. The failure to abolish Community Treatment Orders is an example of inaction when it comes to addressing institutional racism in the use of the MHA. The gap between part II and part III (forensic) patients will grow with the current reforms, and with people of colour up to 40% more likely to end up in mental health services through the criminal justice system, it remains an overlooked area that contributes to ongoing exclusion and disparities.
The reforms are not driven by a rights-based approach but they do contain the potential to make changes to the experiences of some people who are detained, if properly resourced and implemented.
Recent reports of abuse in care settings serve as a stark reminder of the reality of people’s lives in inpatient mental health settings. Responding to these systemic failures without resourcing replicates historic patterns and prolongs the abuse and harm that no person should ever have to experience in contexts that claim to be about care.
What are the changes proposed in the Draft Bill?
- Stopping the use of police and prison cells as ‘places of safety’ for people in crisis
- Introducing a 28 day transfer limit to hospital for prisoners and detainees in crises
- Changing nearest relative to nominated person
- Introducing opt-out advocacy
- Introducing statutory care and treatment plans
- Tightening detention criteria – shifting to ‘serious harm’ as a criterion for detention
- Halving the maximum time for Section 2 detentions from 6 months to 3 months
- Removing autism and learning disabilities from Section 3 of the Act (Part II)
- Giving greater weight to advanced decisions
- Increased access to tribunals, but crucially, no recourse to challenge treatment decisions
Unintended consequences and opt-outs
When talking to our members about mental health reform, one of the issues raised was unintended consequences. For example, therapeutic benefit is proposed as a criterion for detention – i.e. you should only be detained if you can get therapeutic benefit from that detention. It is hazily defined and we are concerned that it could lead to an increase in coercion or neglect by excluding people with certain diagnoses from detention because they are seen as not able to gain therapeutic benefit.
The current state of reforms also risks a two tier system, for example between those who are detained for the first time and those who already have advanced directives and nominated persons in place.
Many of our concerns about unintended consequences were outlined in our previous responses to the White Paper.
Working with what we have on the table: what changes do we want to see to the Draft Bill?
- Legally binding Advanced Choice Documents: ‘Parity of esteem’ between mental and physical health is often invoked in conversations around mental health reform. We believe that legally binding advanced decisions, with a structure in place to support their implementation, are a critical omission from this current suite of reforms. Dr Lade Smith is leading research in this area regarding impact on Black people (AdStAC).
- Abolishing CTOs: Repealing a coercive instrument that disproportionately impacts Black people would further commitment to addressing racial inequality. CTOs are used at more than 10x the rate envisaged when they were brought into law in 2007.
- Sufficient funding to give reforms the best chance of success across the implementation period. Much of what is proposed by the White Paper is dependent upon sustained investment in community services, primary care, and the NHS overall.
- Monitoring and evaluation across the implementation period with annual publishing of relevant data with particular focus to the experiences of racialised people subject to the act.
- Funding and resourcing of genuine alternatives for crisis care.
- Properly resourced community support for those being discharged from hospital. We welcome the proposal to create a new duty on local commissioners to ensure adequacy of supply of community services for people with a learning disability and autistic people. We would like to see a similar duty extended to the provision of community services for people with mental health needs. This will require the resourcing of primary care mental health support and community-led alternatives.
- Integrating Seni’s Law with MHA reform.
- Recourse to challenge treatment decisions at tribunal.
What is the horizon we are moving towards?
In the near term, the committee’s report will be published in December 2022.
The report’s context is troubling. Recent announcements have indicated that there will not be an increase to NHS funding to account for inflation. Pressure on individuals and communities is growing, and the response remains inadequate and uncertain. Calls to tighten departmental budgets sit at odds with an agenda for legislative reform in mental health.
There are many big questions about what mental health reform should look like. Some push the scope far beyond where we are at present. For example, should we scrap reforms and start again? Should we aim for a fusion approach as is the case in Northern Ireland?
Ultimately, we want to ask: how can we best shape these reforms to reduce coercion and make a tangible difference to people detained under the Act? These reforms are not groundbreaking but they are what is on the table. We want to challenge whether they are intended to move people along, or are genuinely concerned with care and wellbeing.