Response to the White Paper on the reform of the Mental Health Act
The undertaking to reform the Mental Health Act was begun by Theresa May in early 2017 as part of her plan to tackle the ‘burning injustices’ in British life at the beginning of her term in office. The 2017 Conservative Manifesto stated: “The current Mental Health Act does not operate as it should: if you are put on a community treatment order it is very difficult to be discharged; sectioning is too often used to detain rather than treat; families’ information about their loved ones is severely curtailed – parents can be the last to learn that their son or daughter has been sectioned. So we will introduce the first new Mental Health Bill for thirty-five years, putting parity of esteem at the heart of treatment.” The Mental Health Act White Paper has instead arrived in 2021 after an Independent Review which reported in December 2019 under a different government and different Prime Minister into a Parliament preoccupied with Brexit and during a global pandemic. The national, political and mental health landscape in 2021 is very different from 2017.
Legislative change does not occur in a vacuum. The last revision to the Mental Health Act in England and Wales was in 2007. Seven years of activity to develop a new Mental Health Act led to a bill which amended the 1983 Act rather than replacing it and introduced Community Treatment Orders, influenced by a perceived public concern about violence perpetrated by those living with mental ill health. The Independent Review of the Mental Health Act to which the White Paper is a response, was framed within public concerns about over-detention and the disproportionate number of Black people subject to the Act. The White Paper arrives under a different government, during a global pandemic and after the UK has left the European Union. The publication of the report of the Commission on Race and Ethnic Disparities in March 2021, widely reported as refuting the idea of structural racism, raised deep concerns across mental health charities that reform to reduce racial inequalities in mental health care may be sidelined. This context shapes our response to the White Paper. We cannot, yet again, kick this into the long grass: as a matter of urgency, we need to name and address the racism at the heart of our mental health system.
The changes proposed in the White Paper on the Reform of the Mental Health Act do not therefore occur in a vacuum and do not just exist in a legislative space. They are shaped by their political context, including public opinion, and there is no guarantee they will be enacted: many proposals in White Papers never make their way into law. Many of the proposed changes in this White Paper are contingent on funding and other policies. Others might have unintended consequences. While some may seem promising on paper, they may in practice worsen some individuals’ experience of detention. Here, we have focused on a few key areas which our members have highlighted as concerns.
The consultation process
While the Independent Review of the Mental Health Act did much to make the complex ethical and legal elements of mental health legislation accessible to a lay audience, we feel that the White Paper has not been easy for the general public to comment upon meaningfully. One of the consequences may be a poor response to the consultation, and inadequate scrutiny of the proposed changes going forward.
While we welcome the increased focus in the White Paper on the principles of choice and autonomy; least restriction; therapeutic benefit and the person as an individual, we also observe that these are not the same as a set of rights for the individual subject to the Mental Health Act. The Independent Review and subsequently the White Paper have deliberately avoided an explicit rights-based approach and framing. What would a right to mental health support look like? We are interested in exploring a rights-based approach to mental health which looks beyond detention.
The Proposals outlined in the White Paper rest upon a criterion for detention based on ‘therapeutic benefit’, but the concept of therapeutic benefit is, perhaps deliberately, hazily defined. We feel that this principle needs to be fully fleshed out within any bill and that it is too important a justification to be established after the bill passes into law. We agree that minimising harm in the use of the Mental Health Act is imperative, but so too is establishing what good care should comprise. The misuse of therapeutic benefit as a criterion for detention might have the unintended consequence of increasing both coercion and neglect, with some individuals deemed out of scope of the Act and therefore support which may be useful, due to their diagnosis or a clinical judgement.
We also draw attention to the set of guiding principles in the current Mental Health Act Code of Practice (least restrictive option and maximising independence; empowerment and involvement; respect and dignity; purpose and effectiveness; and, efficiency and equity) and question the extent to which any revised principles will be monitored and enforced in practice.
A two tier system
Changes proposed in the White Paper may make it easier for individuals to refuse particular treatments or to challenge the grounds for their detention, which we welcome. However the proposed changes do not set out rights to care and treatment. We are concerned that the unintended consequences of the proposed changes may be that some people in need of care, support or treatment are discharged without help, and that others have treatment wishes overridden to justify that their detention is providing a therapeutic benefit. Specifically, we call for Advance Choice Documents to be legally binding in relation to treatment refusal, in line with similar documents in physical health.
We are concerned that the proposals in the White Paper may lead to a two-tier system, where those judged to have capacity and who have benefited from extended support and care will enjoy a significantly different level of autonomy to those who have not had such prior support. The extent to which many of the proposed changes will work as intended will depend on the extent to which an individual has had a fruitful, caring and continuous relationship with primary care services and the extent to which they have received meaningful support, guidance and care around their mental health. Everyone who is detained under the Mental Health Act, whether this results in a stay in hospital or not, will have a first time they encounter the powers of the Act. Not all of these people will have been in touch with primary and secondary care prior to this. Not everyone will have a supportive history of mental health support. While we welcome the increased provisions for Advance Choice Documents and Nominated Persons, we feel there are too few provisions within the White Paper for those experiencing the powers of the Mental Health Act for the first time. We note that those considered to lack capacity who do not have an Advance Choice Document will be significantly impeded in challenging a specific treatment decision.
Recourse to justice
As the proposed changes in the White Paper stand, much of the recourse to justice held by individuals and their Nominated Person lies with the increased role of Independent Mental Health Advocates and the increased powers of the tribunal. It is not clear how the choices of patients will be observed where the real provision of choice is limited by available treatments and bed places. We are also concerned that the role of tribunals in ruling over whether an individual meets the legal threshold for detention is not the same as a ruling on whether their treatment is appropriate or useful. We feel that the exact role, training, requirements, regulation and resourcing of Independent Mental Health Advocates needs to be established before it is possible to evaluate whether their proposed increased powers will be effective in protecting individuals’ rights under the Mental Health Act. We would like to see how many Independent Mental Health Advocates are considered to be sufficient for this role and how their work will be managed.
Our members have told us that discharge from hospital is a critical time and that often what is available to support people when they return to their everyday lives is in no way appropriate for their needs. We welcome the proposal to create a new duty on local commissioners (NHS and Local Government) 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.
While we agree that detention should be minimised wherever possible, we also believe that the conditions in the community need to be created, where specialist and general support, including support led by those with lived experience, can flourish. Meaningful, community-based support needs to be in place so that people are not discharged to lives where support, community, fellowship and help are not present. This will require not only commitment to primary care mental health support but also the recognising, resourcing and sustaining of community-led alternatives.
Community Treatment Orders and continuous supervision in the community
We are disappointed that Community Treatment Orders (CTOs) are not proposed for removal and would like greater clarity around any proposals for discharge to the community that require a deprivation of liberty. As it is currently with CTOs, our concern is that the burden of proof for discharge would rest with the individual due to anxieties about risk, perceived and actual. The proposed changes could result in more individuals, and potentially more individuals from racialised communities being deprived of their liberty and also not receiving support which may be helpful.
Autistic people and people with learning disabilities
The changes propose taking more autistic people and people with learning disabilities out of scope of the Mental Health Act, which might mean they are eligible for detention under the Mental Capacity Act. This would not necessarily decrease the number of detentions or improve the conditions in which individuals are detained, but might mean instead that people with a learning disability and autistic people would still be subject to detention but with fewer safeguards.
In the light of the recent Commission on Race and Ethnic Disparities report, there has been an increased focus on institutional racism in the UK. We welcome the Royal College of Psychiatrists’ and other professional bodies’ statements about structural racism, and we understand the commitment to address it in the White Paper. However we believe there is insufficient focus on the role of institutional racism within mental health services, and in line with other organisations such as the Race Equality Foundation, we are concerned that some of the proposed initiatives such as PCREF are contingent on funding. We also note that whilst one of the drivers of the Independent Review was to decrease the number of people from racialised communities detained under the Act, the proposed changes in this area relate to policy, practice and culture. It is unclear how they would impact on the number of people from racialised communities detained or subject to the Act under a CTO.
Much of what is proposed in the White Paper depends upon sustained investment and consistent funding of community services, primary care and the NHS itself overall. However, over the past decade, mental health and social care services have been through continuous and brutal cuts, and there are few signs that there is the political will to reverse this in a meaningful way and plug the numerous gaps in service provision. In this context, our view is that introducing these changes to law before the elements required for the changes to function as intended represents too great a risk.
We don’t share the optimism of other bodies that all the proposed changes in the White Paper are towards the incremental good. Nor do we think that all the proposed legislative changes are necessarily negative. We invite legislators and others to undertake as deep an examination of the proposals in the White Paper as possible, and in particular to scrutinise the proposed changes for unintended consequences. We are keen to challenge the view that any change is better than none. Without detailed scrutiny of the real-world implications of the proposed changes and the input of a broad range of views from those who may be subject to any future powers, we are concerned that unintended consequences may compound the negative effects of the powers of the Mental Health Act for some people, while alleviating harms for others.