Author: Martin Coyle

Martyn has been an advocacy campaigner for over 15 years. He runs True Voice as an independent consultant and continues to promote the importance of independent advocacy.

I was recently asked to write a post in light of the review of the Mental Health Act so in this post I will look at issues including the continued denial of people’s rights in the mental health system, de facto detention, and what should happen when things go wrong.

Let’s start with a recap. One purpose of the Mental Health Act was to define the rights of people held against their will in psychiatric hospitals. Though it codifies methods of detention and asserts powers of mental health professionals, it also limited those power. In short it brings professional judgement within the context of legal processes.

This flags up some of the areas where the current Act isn’t working. The Care Quality Commission (CQC) has responsibility for monitoring the use of the Mental Health Act, and the issue of people’s rights comes up time and again.

For example, the latest CQC report (Monitoring the Mental Health Act 2015/16) showed the following:

No evidence that staff had discussed rights with the patient on admission            10%        (5,840 people)

No evidence that information was given in an accessible format                           12%        (7,008 people)

No evidence that patients had been reminded of their rights                                18%        (10,512 people)

These are the bare minimum figures. The report notes that when people are given information about their rights this is sometimes in the form of “reading the patient their rights” which it goes on to describe as “insufficient”. The CQC have been making this point for a number of years. It doesn’t seem to be changing the larger picture, and it certainly is not making rights more tangible to the individuals involved. To whom should those denied their rights raise their concerns? And how would they know they could do this?

Most people detained under the Act have a right of access to an Independent Mental Health Advocate (IMHA), and part of the IMHA role is to help people exercise their rights. Unfortunately, the latest CQC report found no evidence of people being told about IMHA in 12% of cases; that’s over 7,000 people. The report notes that there was no improvement in this figure from the previous year. Those who aren’t told about their right to an IMHA are likely to be those most in need of one- the right to an IMHA is unlikely to be the only right that is being ignored.

There is growing support for making IMHA an opt out service, that people will be provided with an IMHA unless they specifically ask for this not to happen. There are merits in this approach, although it does beg two further questions;

    Will extra funding be provided to advocacy services to make sure they can meet demand?
    What about people who have not been detained under the Act?

The first question is important as here has been ongoing pressure on the funding of advocacy services, including where there is a statutory duty to provide it. The second is vital because it is not only those people who are formally detained whose rights are in peril.

91% of wards that the CQC visited in the 2015/16 report were locked. As their report notes,

“Any informal patient that is admitted to a locked ward is at risk of unlawful de facto detention. We often raise concerns about this on our visits and ask services to make sure that informal patients are aware that they are allowed to leave wards with locked doors.”

Leaving aside how likely it is that CQC’s requests are met once they have left, this says that 91% of people who are voluntarily on inpatient wards are, right now, at risk of an unlawful deprivation of liberty. Approximately 50,000 people classed as informal patients by CQC are on mental health wards each year. That’s 46,956 people at risk of unlawful detention. A figure similar to Arsenal’s average attendance at a home match. That’s a massive problem.

It could be argued that this provides a compelling reason for extending the right to an IMHA to anyone receiving inpatient treatment for a mental health condition, something that happened in Wales with the introduction of the Mental Health Measure. Such a move, if adequately funded and commissioned, could make a big difference to the lives of people in psychiatric wards, not just in terms of rights but also in engagement with clinical teams and getting your voice heard.

However, surely if we are reviewing the Mental Health Act systemic breaches of rights should not be seen as inevitable. What then could be changed at a more fundamental level? I believe there is a need to create and embed overarching principles in the Act. This would be consistent with the principles approach of the Mental Capacity Act and the Care Act, with principles including Presumption of Capacity, Least Restrictive Option, and Promotion of Individual Wellbeing. What principles could be embedded in the Mental Health Act?

Using the least restrictive option jumps out as it addresses issues such as the decision to detain someone, restraint, when detention should end, and the use of locked wards. A second principle could be that the person will be as aware of their rights as possible at all times, and be given support to understand and exercise those rights if there is a possibility that they might be infringed. This would exist regardless of whether the person had been detained under the Act or not.

However, the most important principle may well be that there must be clear routes to accountability for any organisation with powers or duties under the Act. Without this there will continue to be no effective remedy against those whose rights are ignored. There would be no change in systemic practices. Access to advocacy will continue to be a problem, people will continue to not be told of their rights, and the use of locked wards will continue to rise despite CQC holding up a mirror to these problems year after year.

With routes of accountability there would be a process by which an individual (whether supported by an advocate or not) could raise their concerns with the expectation of redress. And without a means of protection or enforcement, what are our rights really worth?