submission to the Mental Health Act (MHA) Review 2018. I have shown support by signing up on the ROTA website and hope others will as well.
I have blogged before on the MHA review (eg. see previous post). I have questioned how open this review is (see previous post). I hope it doesn’t boil down merely to ‘watering down’ community treatment orders (CTOs), because I think that will be a missed opportunity to create a more rights-based focus for mental health work in England and Wales.
Anti-discriminatory principles and the acknowledgement of institutional racism do need to be made explicit in any new Mental Health Act. I understand historically why mental illness was not defined in the 1983 Mental Health Act, but I think this difficult issue needs to be grappled with in this review. For example, even alcohol intoxication seems to have been misunderstood as a disorder that is liable to detention (see twitter conversation). However much this may be against the spirit of the MHA, there is clearly confusion and a clearer definition of mental disorder that is liable to detention is required. More stringent criteria are required to avoid cultural misunderstandings and racial bias. It should be explicit that diagnosis must take account of the person’s social and cultural background. In practice, detention may only be justified for psychosis, with loss of mental capacity, and for personality disorder which is treatable. And there need to be rigorous standards to avoid misdiagnosis of psychosis because of cultural and racial bias. And if people are going to be detained for personality disorder or psychosis, the degree of risk should not be exaggerated because the person is "big and black". Mental health professionals should have the skill to appreciate cultural diversity in diagnosis and treatment and this needs to be legislated for by stipulating that Approved Mental Health Practitioners (AMHPs) and Responsible Clinicians (RCs) can only be approved (and their approval renewed) when they do have these skills. A similar process needs to apply to independent mental health advocates (IMHAs).
The interim review does say it will look at improving the Mental Health Tribunal (MHT) (see extract). The MHT should be able to deal with specific appeals against failure to take account of the person’s social and cultural background, with expertise from Black and Minority Ethnic (BAME) interests on the panel and the ability to call evidence from outside sources. MHTs need to be able to seek additional information on cultural background of the detained person. Their decisions need specifically to take account of cultural diversity and institutional racism. People appointed to MHTs need to have experience of race and anti-discrimatory practice. Personally I think the MHT has become too legalistic and has lost sight of its role as a safeguard in detention. I think there is a case for wholesale reform of the MHT. I would actually change its name to the Mental Heath Rights Tribunal. This is putting the R back into the acronym of MHRT, but inserting the word 'rights' rather than 'review', as it used to be.
As I said in my previous post, I was surprised that the interim report did not mention the statutory responsibility of the Care Quality Commission (CQC) (after taking over the role of the Mental Health Act Commission (MHAC)) to interview detained patients and investigate their unsatisfactorily dealt with complaints, as well as deal with any other complaints in relation to detained patients. This was a significant safeguard introduced by the 1983 Act and its significance seems to have been lost with MHAC's assimilation into CQC. The CQC should be reducing the use of detention and racial inequalities in practice. It needs to reinforce its inspection of cultural competence of mental health professionals and address racial bias. It also needs to be fulfilling its role to prevent ill treatment under the Optional Protocol to the UN Convention (OPCAT) (see duties under National Preventative Mechanism). Personally I think the Mental Health Act functions of CQC need to be taken out of CQC and taken over by a new body. Maybe this could be a new single Mental Health Rights body, which also incorporates the MHT functions. Second Opinion Appointed Doctor (SOAD) functions also need to be strengthened so that they are not merely a rubber-stamping exercise.
As a member of the Critical Psychiatry Network (CPN), I was against the introduction of CTOs. CPN was an original member of the Mental Health Alliance that campaigned against the reforms that eventually led to the 2008 amendments to the Mental Health Act. CPN was the first group of psychiatrists that was part of the Mental Health Alliance, which was subsequently joined by the Royal College of Psychiatrists. CPN resigned from the Alliance when it looked as though the Alliance was going to compromise on the introduction of CTOs, which in fact proved to be the case. I am not opposed to CTOs because I don't realise there has always been provision within the MHA for enforced community treatment, in the form of guardianship orders. I think at the time of the 2008 amendments there was a supervised community treatment provision, which was never used as much as community treatment orders. I'm not proposing returning to supervised discharge arrangements. Too many CTOs are currently technically unworkable because of non-compliance and even those that seem to be workable the person consents to the treatment, so there may be a question about why the CTO is needed. Quite commonly people are recalled just for breaching conditions, which is actually an insufficient reason for recall within current legislation but there is no safeguard. I'm pleased to see that the interim report of the MHA review has said that CTOs will be reformed or replaced. My personal option would be to go for replacement, perhaps building on the current provision within guardianship.
I'm also not one that necessarily thinks it would be a good idea to replace the MHA with Mental Capacity legislation. The trouble is that mental health professionals tend to define people who do not make very rational decisions as lacking in capacity. Mental capacity legislation makes clear this is incorrect but ensuring its implementation may in fact be more difficult than reforming the MHA, as RCs and AMHPs have got used to interpreting the spirit of the Act. That spirit of the Act needs to be reinforced in reformed legislation to make it even more rights-based.