NSUN initial response to the Mental Health Act White Paper 2021

The White Paper on the Reform of the Mental Health Act was published last Wednesday (you can also access it in Welsh and Easy Read). This is the Government’s response to the Independent Review of the Mental Health Act in 2018 – you can read our original analysis of the Independent Review here. The White Paper broadly follows the recommendations in the Independent Review. It is now open to a public, online consultation until the 21 April.

The publication of the White Paper in 2021 is happening in a radically different context to the release of the Independent Review in December 2018. Then, it was a culmination of months of consultations and focus groups on what was billed to be the biggest mental health story of the year. Now, against the backdrop of a pandemic and an economic crisis, it feels very different. It is understandable to feel that our focus now in mental health should be on campaigning for the benefit ‘lifeline’, or for an independent inquiry into the disproportionate death rates of disabled people during the pandemic.

Detention under the Mental Health Act affects a relatively small number of people. There were 50,893 new detentions recorded in 2019/20, with rates of detention for Black people four times those of white people, and rates of Community Treatment Orders for Black people ten times those of white people. But the Mental Health Act casts a wider shadow, affecting not just people who are subject to it, but people who might be. The services and practice which fall under it are also what we offer people who are in extreme distress: when acute services fall short of treating people with respect and dignity, as they so often do according not least to the Independent Review, they fail at the time they are most needed.

For campaigners, the White Paper may not be what some of us had hoped for- but it is what is on the table. It is no exaggeration to say that this is a once in a generation opportunity to change this piece of legislation. Small changes in the Act will make a huge difference to the lives of people who are detained, their families and friends, and people who live in fear of the Act.

NSUN will be holding a series of focus groups and online surveys for our members, in order to help us formulate a response, but also to support people respond to the consultation directly. The White Paper is over 180 pages long. It is dense and complex and covers a huge range of issues, from CTOs to tribunals, advance choice documents to secure transfers from prison to hospital. We will provide some explainers and try and break some parts of it down- but we’re aware we won’t be able to cover all of it. We’ll work with partners across mental health, human rights and disability on different areas.

Our starting position is that real change in how people experience detention is not just down to legislation, but will also be contingent on changes in practice and culture, and on the funding which follows. The devil is in the detail: there is, for example, a lot of attention on the welcome renewal of the mental health estate, but very little, for example, on funding alternatives to detention. Implementing a number of the proposals would mean radically increasing the number of AMHPs (Approved Mental Health Professionals), but with little detail on how to achieve this.

Overall there is a strong focus on shifting the dial- ensuring people who are detained have more choice and autonomy, that patients are treated as individuals, that the Act’s powers are used in the least restrictive way, and that detention offers therapeutic benefit. But to what extent do the proposed legislative changes actually shift the balance of power?

There are a number of specific changes we welcome, including the change of Nearest Relative to Nominated Person to represent the individual subject to the Act, opt-out and culturally sensitive Independent Mental Health Advocacy, the introduction of Advance Choice Documents, and the ban on police stations as places of safety under s135 or s136. But for any proposed change, we need to scrutinise the detail: for example, Advance Choice Documents will carry greater legal weight, but can still be overruled.

There is a new and welcome focus on autistic people and people with Learning Disabilities who are detained under the Act. Specifically, for the purposes of s.3, autism and/or Learning Disability would not count as a mental disorder. However, there are a number of challenges in the proposals – you can read an excellent summary here by Lucy Series, who warns that taking autistic people and people with Learning Disabilities ‘out of scope’ of the Act might not prevent them being detained in Assessment and Treatment Units (ATUs) under the Mental Capacity Act, with far weaker safeguards.

We welcome in principle the proposed amendment which will enshrine in law that there needs to be ‘therapeutic benefit’ to justify detention. But as Neil Allen notes, much will depend on how this is phrased in the final draft, and this might slip from a meaningful criterion for detention to a standard which is too easily satisfied.

One of the drivers of the Independent Review was to address and reduce the disproportionate number of people from racialised communities subject to the Act. However, the proposals in the Review did not fully address institutional racism, and the Race Equality Foundation has highlighted a number of areas where the White Paper proposals fall short.

The Independent Review achieved widespread consensus amongst mental health charities, professional representatives and other stakeholder groups. This, combined with general fatigue around this issue, and the complexity and density of the document, could easily mean that the proposed amendments are not adequately scrutinised. The direction of travel and the parameters of the reforms have been set; but we can still influence some of the detail. This can only happen if we engage with what is on the table, rather than what we would have liked to see. Let’s work together to make these reforms as meaningful as possible for the people it will affect the most.

Email us to be kept up to date on the focus groups and surveys we will organise.

Akiko Hart, NSUN CEO, 19th January 2021