Moving towards a modern Mental Health Act
'On the one hand, the Mental Health Act takes away your liberty and imposes treatment that you don’t want. It can be traumatic, frightening and confusing. But on the other it can help restore health, and even be life-saving. It is an imposition on personal freedom, but it can also help people to become freer from the pain and distress that accompanies the most severe of mental illnesses.'
- Professor Sir Simon Wessely, Independent Review of the Mental Health Act
The Independent Review of the Mental Health published its final report in December 2018, entitled “Modernising the Mental Health Act: increasing choice, reducing compulsion”. Commissioned in October 2017 by then Prime Minister Theresa May, the Review, chaired by Professor Sir Simon Wessely, was set up to look at how the legislation in the Mental Health Act (1983) is used and how practice can improve. In particular, the Review was asked to consider the reasons for rising rates of detention; the disproportionate number of people from Black, Asian and Minority Ethnic Groups (BAME) detained; and processes that are out of step with a modern mental health care system.
The published report contained 154 recommendations, including four key principles that should underpin the reformed Act:
- choice and autonomy – ensuring service users’ views and choices are respected
- least restriction – ensuring the Act’s powers are used in the least restrictive way
- therapeutic benefit – ensuring patients are supported to get better, so they can be discharged from the Act
- people as individuals – ensuring patients are viewed and treated as rounded individuals
The government have already committed to implementation of several recommendations. One of the first to be announced was that systems will be updated such that individuals detained under the Act will be allowed to nominate a person of their choice to be involved in decisions about their care. Currently, they have no say on which relative is contacted. This can lead to distant or unknown relatives being responsible for important decisions about their care when they are at their most vulnerable. People will also be able to express their preferences for their care and treatment and have these listed in statutory ‘advance choice’ documents. Further plans were recently revealed that particularly focus on improving the experience of those from BAME communities (see box, below). The government has recently set up a Mental Health Act Review Advisory Group to consider the Independent Review recommendations and a full response is expected by the end of the year.
The Review sought views from those with lived experience, their carers, and the full range of professionals who interact with the Act. These included:
Dr Shubulade (Lade) Smith CBE
Consultant Psychiatrist, South London and Maudsley NHS Foundation Trust
Visiting Senior Lecturer, Institute for Psychiatry, Psychology and Neuroscience, King’s College London
Member of the Working Group, Co-Chair of the Mental Health Act Review African and Caribbean group and the Criminal Justice System Group, and member of the Understanding the Increasing Rates of Detention Topic Group, Independent Review of the Mental Health Act
Dr John Taylor
Consultant Clinical Psychologist, Northumberland Tyne & Wear NHS Foundation Trust
Professor of Clinical Psychology, Northumbria University
Chair, British Psychological Society Mental Health Act Advisory Group
Member of the Advisory Group, Independent Review of the Mental Health Act
Kate King MBE
Advisor on Lived Experience, Fellow of the Mental Health Collective
Member of the Working Group and Service User and Carer Group, Independent Review of the Mental Health Act
We discussed the Mental Health Act and how it needs to be modernised.
In 2019, do we need a Mental Health Act? Is a system based on deprivation of liberty the appropriate way to support individuals experiencing serious mental illness?
Lade: The problem is, when people question getting rid of the Mental Health Act, it’s somehow assuming that there won’t still be situations where people are at risk of harming themselves or others, or that without it everyone would be treated kindly and nicely. We know in jurisdictions where there isn’t a Mental Health Act, the problem is that there aren’t sufficient safeguards for people with serious mental illness. The Mental Health Act provides the chance to appeal, to have someone oversee your care, and to have an independent assessor. Even with these safeguards, in an age where there is less stigma about mental illness, the fact is there is still a lot of discrimination… so a system without these safeguards would just result in terrible things happening to people.
John: I would support all of that. If you didn’t have it, what would be the alternative? There was a lot of talk in the Review about adapting the Mental Health Act to be a more capacity-based system. Many concerns and practical issues were raised, including from jurisdictions that have taken such steps. If you look at how the Mental Capacity Act works – it may seem on the surface less restrictive and a gentler approach, but you have relatively few safeguards. So, the Review concluded that we needed to stick with the frame of the current Mental Health Act but think carefully about how it’s implemented and strengthen the safeguards and appeal processes.
Kate: Some service users feel the Mental Health Act saves lives; some others feel it should be abolished. My life was saved by the Mental Health Act and I know many others think the same. Sometimes, for people who are extremely unwell, detention is the safest thing to do, maybe there will always be a need for this option.
I don’t think that a capacity-based system would help at present. There are real problems with the way ‘capacity’ is too often seen as being synonymous with compliance, or wrongly used as a way of denying treatment to people at real risk. However, if we maintain the Mental Health Act, then we need to make sure it allows people to exercise their human rights as far as is possible, with better opportunities to challenge detention and treatment decisions. I would also challenge any assumption that the patient experience is the same whether detained or not.
Why is it that so many service users feel a lack of dignity whilst under the Act? What needs to be done to improve their experience?
Kate: There are many factors. For example, too many people, including children and those with learning disabilities and/or autism, are sent miles away from home, and are subject to high levels of security and deprivations that are not justified. There are issues around risk at both ends of the spectrum – some people are a risk to themselves but left without support, and some are being inappropriately detained or placed in overly restrictive environments, particularly those from BAME communities. For many inpatients, the social and physical environments are demoralising, isolating and undignified – if you’re not trusted with a magazine or a jigsaw puzzle, if there isn’t enough water for a hot shower, if you can’t move a chair to sit with someone because it’s bolted to the floor, if people in physical or mental distress are ignored… what message does that send? Paternalistic attitudes rob people of autonomy, and patients continue to be traumatised by restraint, sexual harassment and neglect. We should not be allowing this to happen. I think it’s really important that the Review recognised in black and white the realities of what people suffer under the Mental Health Act.
The solution has to be multi-factorial: we need changes in the law to ensure that patients’ human rights are respected, but there also needs to be a genuine recognition of peoples’ experience and an appetite at all levels of the system to improve conditions.
Lade: Although we might be able to tweak some of the law, much of the problem in the mental health system is the practice and implementation. This is something we talked about a lot during the Review. What makes people feel disrespected and a lack of dignity is often the environment. If you go into a care environment, then you’d expect that space to be clean, you’d expect that people would take the time to explain the processes, you’d expect that people wouldn’t take your stuff. Unfortunately, what we know is that a lot of the physical facilities in mental health units are very poor and not fit for purpose. For example, there are still lots of units where people have to share bathroom facilities, and yet people will be staying in some of these facilities for many days, if not months and years.
In addition, there is a massive shortage of staff. One of the things that always surprises me is how we don’t have sufficient staff whose main job it is to deliver therapy. Even though there are thousands of psychology graduates, it’s common not to have a psychologist in the team or to have to share a psychologist across multiple teams. This means patients often can’t receive cognitive-behavioural therapy even though that might be the treatment that’s needed. It’s a similar story with occupational therapists and nurses. The shortage of staff means that often people aren’t able to take the time to explain basic things to patients. There is a massive shortage of infrastructure; not just the physical infrastructure but the manpower that’s required to provide people with the care they need. This all leaves service users questioning why they’re there at all. If someone is detained because they’re unwell, of course it feels disrespectful if they’re not provided with the care and treatment that they need.
John: I completely agree. It’s also important to consider that the number of beds taken out of the system in recent years means the option of voluntary admission has become basically non-existent. A few years ago, we would have been able to offer someone who thought they might benefit from a period of inpatient care the opportunity to come in voluntarily for a period of time. That felt more collaborative and a shared decision. In effect, now the only way to get someone into a bed is to be detained under the Mental Health Act; which is often reactive at a point where service users are seriously ill rather than being a considered step to support the service user manage their illness. No matter how carefully and kindly it’s done, the process is a legal process stripping people of their liberty and we need to respect that.
The issues around workforce are also really important. During the Review, we discussed at length the lack of people from a range of BAME backgrounds who are able to deliver therapy; not just people having the capacity to deliver it, but to deliver appropriate treatment and therapy in a culturally sensitive way. For many service users, this can result in an undignified care experience.
Are there challenges facing clinicians and mental health practitioners providing care and treatment under the Mental Health Act? What can be done to better support staff working in this system?
John: It’s the reverse side of the coin in relation to the previous question. In terms of beds, good environments, and the development of the right sort of workforce to meet people’s needs in a timely and effective way. Not only would the patients feel better and more positive from that, but so would we clinicians. In that sense we’re in it together.
We also spend too much of our time struggling with resources and fighting with commissioners. In my service, even a few years ago, we would have moved people through the pathways according to their clinical need and level of risk, for instance from inpatient out into the community, or from medium security into a rehabilitation unit. We’re not able to do that so easily anymore. In order to move people between different levels of security within the same service pathway, we have to get commissioner support, which often involves going to great lengths and huge amounts of time – it’s incredibly frustrating. As a result of different services being funded by different bodies, perverse incentives stop people moving through the system and result in patients sitting in overly restrictive environments for months and years. Which is just wrong. So, if I was going to opt for one thing that would improve the lives of clinicians and help patients, it would be to start over with the commissioning system.
Lade: Yes, these issues happen to us all the time. John is a senior practitioner – what is he doing spending so much time sending letters to commissioners, speaking to lawyers about housing, and arguing with local authorities? But we have to do it all the time! In fact, it’s been estimated that about 20% of total practitioners’ time is spent dealing with the barriers created by the artificial funding and barriers between teams. That’s time we could spend caring for our patients.
Kate: Understaffing is a vicious cycle: people clearly don’t feel supported and I know too many who have left or reduced their hours. Lack of funding affects everything. People lose benefits that enabled them to stay well and they have to try and get help from services that are already overwhelmed. I don’t see how staff can find work rewarding if they are primarily acting as gatekeepers and firefighters. I do think that working towards better therapeutic and physical environments through management-supported, co-produced quality improvement can increase morale and retention. Communities and people with relevant lived experience are undervalued resources: when I do section 12 training, doctors often ask why those with lived experiences aren’t involved more throughout training.
What do you think are the most important recommendations the Review makes in attempting to modernise the Act?
Kate: Those that increase patient autonomy. For example, advanced choice documents, requirements in the statutory care plan for patient’s choices to be documented and properly responded to, and the right to review treatment at tribunal. These can all help shift the power imbalance between clinicians and service users in a positive way. However, this has to be supported by appropriate advocacy and more awareness of where bias affects risk assessment. It would be good to have the principles actually on the face of the Act.
Lade: Overall the principles are really important, in particular ‘Choice and Autonomy’ and ‘The Person as an Individual’, because sometimes in the system, the person’s views get lost and that’s one of the reasons why people end up feeling disrespected. The recommendations are encouraging clinicians to ‘show their working’, explain what they’re doing, and give patients the chance to argue against it in an independent space. In that way, I hope things won’t feel so stacked against service users who are detained. It will also give the opportunity to those clinicians who are literally firefighting to stand back and consider whether there is a different way to address the situation that could be more in line with the patient’s wishes. That might still mean detention, but it will help to improve therapeutic alliance. What I’m hoping is that if some of the recommendations are taken forward, there will be better longer-term outcomes for all, in particular BAME patients.
John: The proposal that patients will be better able to challenge treatment decisions is an important recommendation. Linked to that, I think that removing Hospital Manager Hearings is a good thing. I’ve been acting as Responsible Clinician for the last 10 years and I’m not aware of the Hospital Managers making a significant decision in all of that time. If instead patients can more easily access tribunals, that will help support challenges to treatment decisions.
The Mental Health Act is a legislative tool – what are the most important things that can be done to support the modernisation of the Mental Health Act outside of legislation?
John: I would focus on community service provision. Community services are on their knees so, unsurprisingly, they cope less well with people who carry significant challenge and risk and often detention is the only available option in the end. So, we need to really focus on this.
Lade: I would come back to commissioning issues. People get unnecessarily stuck in overly restrictive environments. In the forensic service I work in, it particularly affects black men; it’s a travesty. We keep coming back to resources but it’s also to do with how they’re allocated, and the artificial and sometimes arbitrary way things are funded. The money needs to follow the patient properly, according to their therapeutic needs. Ideally money would be allocated to provide services at an early stage to prevent people ending up in crisis and in the more restrictive end of services. A conversation does need to be had at a higher level about how it’s best to commission services.
Kate: To add to the commissioning issues, I think there needs to be focussed efforts made to not only bring people safely back from secure rehab and ATUs, but also to prevent new patients being sent away – this is still happening. If the money saved from ending such out of area placements was used to support people through their transition back to their communities, then they would have a better chance of getting home safely and for good.
For me, however, the most important system enabler is codesign and coproduction. We need more resources and to rebuild services, but we need to do that with people with lived experience. By working together, we’ll be able to create a more humane system where bad practice stands out and can be addressed. Patients are not one homogenous group; they are individuals with skills, talents, knowledge and relevant experience, and to not use that would be a huge disrespect and wasted opportunity.
- Sophie Carruthers is a PhD student, Institute of Psychiatry, Psychology and Neuroscience, King’s College London
Secondee to the Independent Review of the Mental Health Act Sep-Dec 2018
BOX: Benefitting ethnic minority groups
In June, healthcare bosses and senior members of the Independent Review of the Mental Health Act attended a roundtable with the Prime Minister. They discussed the government’s plans for early action to reform mental health legislation and services to particularly benefit ethnic minority groups, which include:
- the first ever Race Equality Framework will ensure NHS mental healthcare providers work with their local communities to improve the ways in which patients access and experience treatment, and ensure data on equality of access is monitored at board level and acted on
- working with Black African and Caribbean community groups alongside others to develop a White Paper formally setting out a response to Sir Simon’s review
- further work towards eradicating the use of police cells as a place to detain people experiencing mental illness ahead of banning it in law, building on the Prime Minister’s work to end this practice for under-18s
- launching a pilot programme of culturally-sensitive advocates in partnership with local authorities and others, to identify how best to represent the mental health needs of ethnic minority groups
- a partnership between the Care Quality Commission and Equality and Human Rights Commission to review how they can use their regulatory powers to better support equality of access to mental health services
- an open call for research into how different ethnic minority groups experience mental health treatment and how this can be improved – to be launched later this year by the National Institute for Health Research
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