Addressing racial disparities in application of the Mental Health Act

Black people are four times more likely to be detained in psychiatric hospital under the Mental Health Act (MHA) and ten times more likely to be subject to a Community Treatment Order (CTO) than white people. The Secretary of State for Health and Social Care claimed that the draft mental health bill recently announced (see last post) will tackle these disparities. This was said to be because of greater scrutiny of decision-making, including a greater use of second opinions on important decisions and expanded access to tribunals. I have been concerned that the reforms may not go far enough to change the current discriminatory nature of the Act (see eg. previous post). 

I wanted to look further at the situation of access to second opinions, which the Secretary of State said would be improved by the draft bill. Certain treatments require the involvement of Second Opinion Approved Doctors (SOADs) appointed by the Care Quality Commission (CQC). If a patient is not consenting to treatment, SOADs currently merely have to certify that it is appropriate that the recommended treatment is given. Their role has been criticised as merely a rubber-stamping exercise. 

The other way patients can obtain a second opinion is if this is requested from an independent expert by the patient's solicitor as part of the process of appeal against detention to the Mental Health Tribunal (MHT). I don't think there's anything in the draft bill that will necessarily increase the availability of these independent opinions, which are probably not as common as they should be. 

The independent expert opinion has the advantage over the SOAD opinion that it is given on behalf of the patient (see previous post), although the focus of the MHT decision for which the opinion has been requested by the patient's solicitor is on detention rather than treatment. The SOAD tends to look at the Responsible Clinician's (RC's) treatment plan to decide if it is appropriate, rather than necessarily considering the patient's point of view, although the CQC says SOADs should decide whether due consideration has been given to the views and rights of the patient when deciding whether the treatment recommended by the RC is clinically defensible (see webpage).

There are welcome changes, which I had not anticipated, in the draft bill that clarify the role of SOADs and I think should make the SOAD certification process less of a 'rubber-stamping' exercise. In particular, SOADs will have a duty under a new section 56(B) to ensure that the RC and other clinicians are complying with another new section 56(A) to follow a 'clinical checklist' when treatment is given under the Act. This checklist includes: that the patient’s wishes and feelings as far as reasonably ascertainable are considered; reasonably practicable steps are taken to assist and to encourage the patient to participate in treatment decisions; people close to the patient are consulted; and any available forms of medical treatment are identified and evaluated. Making these duties of both RCs and SOADs clearer and legal will be helpful, I think.

As far as independent expert opinion on behalf of the patient is concerned, I have been arguing that advocacy services need to be commissioned as an integrated service of Independent Mental Health Advocates (IMHAs), mental health lawyers and independent experts (see eg. previous post). This will strengthen advocacy arrangements in the interests of the patient.  I would argue that an improved integrated advocacy service should actually reduce the number of tribunals, as tribunals should only be needed if there is no agreement between the advocacy service and the Responsible Clinician (RC) about the care plan. In this respect there has been a 'watering down' of the White paper in the draft bill, as the White paper talked about legislating for appeal to the Tribunal on treatment as well as detention decisions. This proposal has been dropped. If it is not going to be reinstated, the bill could still create a right for a patient to have a second opinion of their own choice for medical, nursing and social matters, which would have to be considered by the RC. Even if there is no right to appeal to the MHT if there is any conflict with the RC, the degree of conflict created by legislating for the right to a second opinion nonetheless can be assessed over time, and if needed, consideration given to amending the new Act in due course so that appeals can be made to the Tribunal on treatment matters.

Furthermore, as mentioned above, there is even more disparity for black people for CTOs than there is for detention. Changes are being made to the criteria for CTOs but I'm not convinced these changes will necessarily reduce their use. In fact, the evidence is that CTOs are not effective and I think should be repealed, or at least no new CTOs enacted.  I have had some correspondence with DHSC civil servants about the evidence base and they seem to be saying that the feedback from some patients is that CTOs are helpful, which is true. I have asked, though, whether CTOs are being continued not on the basis of the evidence but because of a minority view of patients who are complying with the CTO anyway. I was told I would get an answer but instead have been offered a meeting instead. Certainly, I would say the lived experience amongst black people does not support the continuation of CTOs or at least any new orders being made. In fact, both Mind and NSUN said in the response to the White paper consultation that CTOs should be repealed. 

More generally, I'm not convinced the draft Bill is as compliant with the UN Convention on the Rights of People with Disability (CRPD) as it should be. The new sections 56(A) and (B), though, may well help in this regard. The World Health Organisation (WHO) in collaboration with the Office of the High Commission on Human Rights (OHCHR) is undertaking an international review of WHO guidance on mental health law in line with CRPD to be held from 1 July to 31 August. The aim is to obtain feedback from national stakeholders on the content of the draft guidance, which will be available online from 1st July. I think this draft guidance will be able to inform debate about the draft bill, perhaps particularly about disparities.