Reform for “outdated” Mental Health Act

The Mental Health Act (MHA) is nearly 40-years-old, and outlines how individuals can be detained involuntarily, as well as the treatment they will receive while in hospital.

However, over the years, despite attitudes to mental illness and its treatment evolving, the legislation regulating this area has remained largely unchanged. The legislation significantly restricts the autonomy of individuals suffering from mental illness, and coercion in mental healthcare has been found to be deeply traumatising. On top of this, the legislation has also been found to contribute to racial bias and discrimination.

Responding to the outdated nature of the Act, and a 2018 review on its modernisation, on 13 January 2021, the government announced proposed reforms to bring the MHA “into the 21st century”. While some have welcomed the proposed legislative changes, organisations such as Mind, Recovery in the Bin (RITB) and the Centre for Mental Health, have argued the changes have come too late and don’t go far enough.

Current legislation “outdated”

Although in some cases detainment under the MHA can be helpful for individuals struggling with mental illness, this is not always the case. The 2018 Wessely review found that in fact, detainment can be both incredibly “damaging” and “traumatising”. Of course, forceful and coercive detainment, followed by enforced drug treatment doesn’t sound like it should be a reality experienced by individuals in 21st Century England.

Research also shows a disproportionate number of Black people are sectioned under the Act. Individuals from Black African and Caribbean heritage are detained more than any other group. Black people are also more than four times as likely as White people to be detained under the Act. In addition to this, research shows that there is a disproportionate use of Community Treatment Orders for Black patients and an “overuse of medication”.

Elsewhere, research indicates that many vulnerable children have been admitted to secure hospitals “unnecessarily”. In 2019, the Children’s Commissioner published, ‘Far less than they deserve: Children with learning disabilities or autism living in mental health hospitals’. The report uncovered that in England, there were 250 children with autism and learning difficulties in mental health hospitals. The average time these children spent in hospital was six months, and one in four children had not had their care plan reviewed in the last 26 weeks.

The MHA has also been implemented ineffectively in the prison system. For decades prisons have been used as “holding pens” for defendants who suffer from acute mental illness. According to statistics from the Prison Reform Trust, around 25% of women and 15% of men within the prison system report symptoms which are indicative of psychosis. Comparatively, the rate of psychosis among the general population is much lower at 4%. In addition to this, self-inflicted deaths are also much more likely in the prison population, a shocking 8.6 times more likely. It has also been found that 70% of self-inflicted deaths in prisons occurred in individuals who had already been flagged up as having mental health needs.

Despite the prevalence of prisoners suffering from acute mental illness, too many find themselves neglected and uncared for. Shockingly, a 2016 investigation by the Prisons and Probation Ombudsman (PPO) found that almost one in five prisoners diagnosed with a mental health problem received no care from a mental health professional.

Modernising the Act

The “landmark” reforms announced on 13 January 2021, “build” on the recommendations made by Sir Simon Wessely’s Independent Review of the Mental Health Act in 2018.

Specifically, the review recommended that choice and autonomy should be enhanced and prioritised so that “service users” have their choices and views respected. Elsewhere, the review suggested that the Act’s powers should be implemented in the “least restrictive“ way.

A ‘therapeutic benefit’ principle was also suggested, where patients are given the support they need to be discharged. Importantly, the review also highlighted the need for patients to be treated as individuals.

These recommendations are now being proposed as the four new guiding statutory principles for the Act. Other proposed legislative changes include:

• The introduction of statutory “advance choice documents”
• The piloting of culturally appropriate advocates for patients
• The ability for individuals to appoint a person (family or friend) to look after their interests if they are unable to do so
• An expansion in the role of independent health advocates
• A restriction on the reasons for detaining an individual under the act (mental illness being the only reason)
• An enhancement of community-based mental health support and accessibility improvements

Commenting on the proposed changes within the white paper, Health and Social Care Secretary Matt Hancock, said: “These reforms will rightly see people not just as patients, but as individuals, with rights, preferences, and expertise, who are able to rely on a system which supports them and only intervenes proportionately, and which has their health and wellbeing as its centre”.

He added: “This is a significant moment in how we support those with serious mental health issues, which will give people more autonomy over their care and will tackle disparities for all who access services, in particular for people from minority ethnic backgrounds”.

Changes long overdue

While those working within the mental health sector have welcomed the legislative changes, many argue that the reforms are long overdue and in some cases, lacking.

Speaking about the need for urgent change, Sophie Corlett, Director of External Relations at Mind, said: “At the moment, thousands of people are still subjected to poor, sometimes appalling, treatment, and many will live with the consequences far into the future. Our understanding of mental health has moved on significantly in recent decades but our laws are rooted in the 19th century. Change on the ground cannot come soon enough”.

Echoing these sentiments, Sarah Hughes, Chief Executive at the Centre for Mental Health, said the modernisation of the act is vital and “could not be clearer”. “Every year, the number of people who are sectioned grows. While we know this can save lives, the use of coercion can also cause lasting trauma and distress. And we have known for too long that Black people are subjected to much higher levels of coercion at every stage of the system,” she said.

Hughes also stressed the need for the Act to be less restrictive for those detained under the Act: “It is time for this to change. We need to redress the power imbalance between people subject to the Act and the state and to make the system fairer for all. We hope that today will bring us a step closer to mental health legislation that respects and protects people’s rights and dignity, that reduces inequality and that turns the tide on the growing use of coercion”.

Other mental health groups have argued that the reform proposals fall drastically short. Grassroots mental health group RITB, stated that changes to the Act will not have the impact that the government suggests it will. An RITB spokesperson said: “We welcome proposed changes in the MHA white paper such as a nominated person and increased right to advocacy, but it falls short of a social justice approach and as with the existing act, in the absence of funding and the continuing hostile environment of the DWP [Department for Work and Pensions] and wider systemic racism, the act is irrelevant to the actual conditions people have to endure”.

Meanwhile, Liberation, a rights-based organisation critiqued the proposals, and contested the government’s claim that the MHA white paper will bring the law “into the 21st century”. Dorothy Gould co-founder of Liberation also raised concerns around the Health Secretary’s assertion that the Wessely review should be held up as a beacon of light. Gould said: “It is also intensely worrying that Matt Hancock regards the Wessely review, on which the white paper is based, as ‘one of the finest pieces of work on the treatment of mental health that has been done anywhere in the world’”.

Adding to this, Gould said that the white paper fails to move past the mistakes made by the Wessely review: “It is devastating that, so far from drawing adequately on promising international developments elsewhere and the full human rights set out in the UN Convention on the Rights of Persons with Disabilities, the white paper repeats many major flaws in the Wessely review”. Overall Gould determined that the white paper only seeks to reduce the “fundamental breach of human rights” that is presented by involuntary detention – rather than bringing an end to it altogether.

The consultation will be open until 21 April 2021.