The mental health act review team have published their interim report. It shows they want to give greater weight to advance wishes on care responses.
In the ten year period between 2006 and 2016 - the last year which we have records for - the number of people detained against their will for hospital treatment increased by 40 percent. The number of people incarcerated for hours, days, weeks, months or indefinitely increased from 45,484 to 63,622.
It is rarely talked about, such is the taboo associated with being hospitalised for our mental health. What happens in mental health wards of hospitals around the country should be discussed more. Some of it is precious; much of it is re-traumatising.
Detention could happen to any one of us: if we reach a crisis point in our emotional wellbeing; if our behaviour is misunderstood by police; or, increasingly, if we are deemed to be lacking in capacity and perceived to be a danger to ourselves or others due to behaviour related to dementia, learning disability or autism.
The United Nations, alarmed by the rise in detentions, called on the UK to address the soaring daily deprivation of liberty.
Prime Minister Theresa May last year commissioned a team led by psychiatrist Simon Wessely to review the Mental Health Act - the legislation that allows medical professionals - the police and others to take matters into their own hands.
Was this is a response to pressure applied by the UN? Mrs May has never said. It's unclear whether anyone has ever asked her.
What drives Theresa May's interest in mental health and crisis care?
We know that she has spoken out against burning injustices suffered by minorities and others. We know also that she had a withering attitude towards the Human Rights Act when she was Home Secretary.
We know that Mrs May is sympathetic to the work of Norman Lamb, the Liberal Democrat who's sibling died by suicide and who influenced the coalition government to begin talking about mental health in inclusive language.
We know that the Prime Minister wants to rid the Conservative Party of its nasty party image, among swing voters at least. We know that she also likes to pander to this image when the public mood and opinion polls encourage it.
In short, it's difficult to tally whether the Prime Minister has views on what good mental health care looks like or is more driven by thoughts on how action in the area could be used to her advantage. More generously, is she consumed by ideas that she knows are contradictory, but is too overloaded to reconcile?
Clearly, leadership on mental health policy is not going to come from the Prime Minister; it's going to come, if at all, from the independent team she's appointed to provide direction.
Today the MHA review team have updated us on the direction they're taking. These are the goals they've shared:
- 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
Over 2,000 people with direct or indirect experience of being sectioned for their mental health have already had their views canvassed as part of the consultation.
Around half say detention saved their life. From this we can read that the Mental Health Act is not going to be abolished at the end of the current review. It will stay. Detentions will continue.
This will disappoint rights groups like the National Survivors Union Network (NSUN). Last week, at an event organised by the Hearing Voices Network, the NSUN shared their concern with Mental Health Today that detentions will remain despite the United Nations' Convention on the Rights of Disabled People saying that they should cease altogether.
The review team park this concern today in their 59-page interim report on the review. "Some rights are directly enforceable under the Human Rights Act 1998," they write. "Those that arise under other conventions remain aspirational: they are acknowledged but they are not legally enforceable."
Mental capacity challenges and justifications
Disability activists will be among many disappointed by the review team's stance than the UNCRPD is "aspirational". The review team have expressed surprise to Mental Health Today about how capacity evaluations are being increasingly rushed under heavy workloads. However, they say in their report they are hamstrung here as the government has not asked it to go further under the scope of their review.
"The UK Government has not yet submitted its response to the [UN] Committee’s Concluding Observations [that substituted decision making should be abolished]," the interim report says. "But it is clear that, taken together with other statements by the Committee adopting the approach recommended by the Committee would mean the fundamental recasting not only of the Mental Health Act but also of the Mental Capacity Act."
Some will have wanted Wessely's team to be more assertive here, to have championed broadening their scope to fuse both Acts to free the 3,000 people with learning disabilities currently living in hospital despite having no treatable conditions.
The review team say today it's "unlikely" they will be following Northern Ireland in recommending fusion in the immediate term, despite the positive reception and awards the legislative review there achieved. The review team feel this is an area that the Transforming Care programme leads need to finish. However, that programme has achieved nothing in seven years despite an imminent deadline.
Advance care plans
"We are speaking with colleagues in Scotland, where the Mental Health (Care and Treatment) (Scotland) Act 2003 put ‘advance statements’ which include both refusals and statements of wishes, into statute."
"Whilst we are minded to make improvements in this area, we will not lose sight of the problems that might arise from making any form of advance planning completely binding. As an example, the risk that service users may not receive appropriate care."
Encouraging noises in the main here, however the public surely need the law to move beyond using words like "appropriate" in statute. "Appropriate" is a subjective term and there will remain a power imbalance between patient and psychiatry while such terminology continues to be hidden behind.
Language is important
The review team write that the (relatively new) consensus that the factors behind the over-representation of people of African-Caribbean descent are "social and societal" is "reasonable" is important leadership. It's welcomed from a body tasked with reforming mental health law. This common sense has been hard won by black activists.
Black mental health campaigner Colin King last week reminded an audience of fellow activists of the journey they have been on, right back since the disgusting notion of 'drapetomania' was allegedly attributed by physicians to non-compliant slaves.
"One of the things we want to test is the hypothesis that diversity of workforce leads to improved outcomes for minorities," Steve Gilbert, reflected to Mental Health Today.
Simon Wessley, who has a track record of challenging racial profiling in psychiatry, told our outlet last week that legislation alone won't solve the over-representation of minorities in crisis care.
"I don't think anyone thinks the mental health act itself is the reason behind over-representation," Wessley said. Today's interim report pledges to look further at interactions with police. "Trust is everything," Wessley continues. "I trust the police but the review has shown that trust is very low from some individuals towards the police."
The police are recognised as "key partners" in today's report but further difficult conversations may need to be had.
"How is the way a young black boy behaves at school being judged?" asks Steven Gilbert. "How is behaviour being judged by the criminal justice system? We are trying to understand the degree to which this is conscious, or unconscious bias. We’re confident that over the next six months we’ll have more substantive answers to some of these questions."
Ending Community Treatment Orders, currently requiring 5,000 people in England to report for medication on an ongoing basis, including over 4,000 black patients, look likely to be one of the tangible changes that can and will be recommended to government. The charity Mind have lobbied for it and their behind-the-scenes campaigning appears to have been heeded.
Elsewhere, the Mental Health Today community has led efforts, along with the likes of Rethink Mental Illness, to raise awareness that people should be able to choose which relative can speak for them if they under too much distress to speak for themselves. This call has been heard too.
"We want to rescue the notion of the informal patient," the review team write today. It's a mission we should all support. The consultation continues. We will continue to contribute evidence while holding the process to account. Join us in guiding the Mental Health Act review team in where they need to tighten their recommendations to government before they are finalised this autumn.
Write to firstname.lastname@example.org if you have a perspective on the Mental Health Act you'd like to share through Mental Health Today or join our Twitter chat this Wednesday May 2 at 12pm using #MHTchat.