Pre-legislative scrutiny of Mental Health Act reform

I mentioned in my last post that there will be a draft Mental Health Act Reform Bill, probably this summer, which will be subject to pre-legislative scrutiny in the autumn with a Bill potentially next spring. I just wanted to make clear what I thought should be in the draft Bill (see eg. previous post), although it seems most of the proposals in the government response to the White paper will go through into the draft Bill (see my summary). My understanding is that two main proposals will be dropped from the White paper consultation response. Firstly, the proposal for the Tribunal to be able to require the Responsible Clinician to reconsider a specific treatment decision will be dropped, which I think is unfortunate. Secondly, the proposal to give powers to A&E professionals to require individuals in need of urgent mental health care to stay on site pending a clinical assessment will also be dropped, which I think is the right decision. It’s also unclear to me whether there will be proper funding for mental health advocacy, which in my view was never properly funded when introduced by the 2007 amendments to the Act. 

I’m not sure how much scope for amendment there will be in the parliamentary process. As I said in my last post, I'm hoping that pre-legislative scrutiny will allow an examination of whether the draft Bill complies with the UN Convention on the Rights of Persons with Disabilities (CRPD). I don't think the government is right that current legislation, let alone the draft Bill, does. The legal capacity of people with mental health problems needs to be protected even though they may not have mental capacity.

A CRPD compliant law would ensure that people with mental health problems are supported in their decision making. When they receive that support they must be protected against abuse. People should have access to support from people they trust in their social network and community. Formal identification of a nominated person as proposed by the government should be helpful in this respect, although the rights of the family also need to be protected. As I've been arguing, I think mental health advocacy can be improved by a more integrated service of IMHAs, mental health lawyers and independent experts (see eg. previous post). Such a service would be commissioned via integrated care system (ICS) arrangements. Mental health lawyers and independent experts would continue to be paid via legal aid.

A Mental Health Tribunal will only be needed if the new properly funded advocacy service cannot persuade the Responsible Clinician (RC) to go along with its suggestions. It would require reinstatement of the idea, which, as I said, will apparently be dropped in the draft Bill, of extending the role of the Tribunal to treatment as well as detention decisions. This arrangement should cut down dramatically on the number of Tribunals. Current proposals just seem to be accepting of the all too common number of Tribunals which are held. The number of tribunals needs to be reduced. My proposal will also mean that Second Opinion Approved Doctors (SOADs) from the Care Quality Commission (CQC) will not be needed and can be abolished, as the 'second opinion' if needed, will come from the advocacy service rather than needing a so-called approved doctor, who in practice too often merely 'rubber stamps' the RC decisions. It's far better that patients themselves can choose who provides the second opinion (see eg. another previous post).

These Tribunal changes and abolition of SOADs will be cost-saving. If further savings are needed, personally I have no objections to Tribunals being reduced to a single judge for all decisions. As far as treatment decisions are concerned, a single judge makes the decision if a case goes to judicial review. The current problem is that this does not happen very often at all. What I'm suggesting is that such cases should be dealt with under the remit of legal aid. All savings in the arrangements I’m suggesting can be invested in mental health advocacy.

The introduction of a new form of supervised community discharge for criminal cases is controversial and I think probably should be abandoned. The need for it is not clear to me and the history of introducing such enforced community arrangements should encourage caution. It also doesn't seem to fit with the thrust of the reform changes to reduce coercion.

As I have also mentioned before (see eg.  previous post), one of the purposes of the draft bill is to make it easier for people with learning disabilities to be discharged from hospital. Personally, I think the same aim should apply to people with serious mental illness (SMI) as well. Too many people with learning disability and SMI are ending up in inappropriate secure care. I think all civil detentions to secure hospitals should just be prohibited. As far as I am concerned, secure provision should just be reserved for criminal cases to provide its function of alternative to prison. My proposal would encourage a focus on more appropriate open and informal care care for civil cases, which will improve community care.

I look forward to seeing all these issues debated by parliamentarians.

Parliamentary scrutiny of draft Mental Health Act Reform Bill

I think a key question for parliamentary scrutiny of the draft Mental Health Act Reform Bill (when it is published - see background notes) will be whether the legal capacity of people with mental health problems will be protected even though they may not have mental capacity (see last post). The Joint Committee on Human Rights is calling for evidence. New legislation needs to be compliant with the UN Convention on the Rights of Persons with Disabilities (CRPD). Even though the UK government is saying that its mental health legislation is compliant, I do not think this is the case (see Disability News Service article).

I think the independent review chaired by Simon Wessely (see previous post), on which the draft legislation will be based through consultation on a White paper (see another previous post), was too influenced by the general comments by the Committee on the Rights of Persons with Disabilities, particularly its 11 April 2014 comment, which has been criticised by Freeman et al (2015) amongst others. From my perspective, CRPD does not completely prevent the detention of people with psychosocial disability as long as it is on the same basis as anybody else. If properly legislated for, it should lead to a dramatic reduction in coercion in mental health services (see eg. previous post). The fundamental problem with mental health legislation is that it is discriminatory and this must change.

Creating CRPD compliant mental health legislation

Coercion needs to be reduced in mental health care (see eg. previous post). Mahomed et al (2022) promote the development of supported decision making regimes to eliminate substituted decision making and coercion in mental health care. As the article notes, "Some in the clinical community remain doubtful about the practicality of ...  [ such] provisions" (see previous post). It is true that there are situations in which implementation of supported decision making is a challenge.  I agree with the argument of the article that these concerns should be seen as "opportunities for dialogue" rather than a reason for dismissing the replacement of substituted by supported decision making. Change is required in mental health law because of the unacceptably high current prevalence of human rights violations within mental health settings (see previous post).

WHO QualityRights Core Training has a helpful training and guidance tool on 'Legal capacity and the Right to Decide'. There are a course guide and course slides. One of the main aims of the module is to understand article 12 of Convention on the Rights of Persons with Disabilities (CRPD) and the right to legal capacity. The right to legal capacity is guaranteed by Article 12 of the CRPD. 

People with disabilities have rights and responsibilities like anyone else. They have the right to receive support to help them make decisions and when they receive that support they must be protected against abuse. There is a distinction between legal and mental capacity and disabled people should not be denied the right to make a decision merely because other people do not agree with it and attribute it to their disability. How well people make decisions varies and disabled people should not be discriminated against. Flawed use of mental capacity tests has led to the denial of the right to legal capacity (see previous post). 

Article 12 of the CRPD makes clear that the right to legal capacity can never be taken away from a person. A psychosocial, intellectual or cognitive disability can never justify denying someone the right to legal capacity. Having the right to legal capacity at all times does not mean that people never need or want support in making their decisions (see eg. previous post). 

People should have access to the support of people they trust. Support also has to be tailored to the individual. For example, someone in the early stages of dementia may require less support than in later years. It is the need for support that may fluctuate not the right to exercise legal capacity. Formal professional support should not replace informal support provided by the person's social network and community. 

Support must be based on the will and preferences of the person. Best interpretation of will and preferences needs to replace best interests determinations in decision making law. Supported decision making is a completely different approach to decision making which puts the person at the centre of the decision. Independent support advocacy should be available (see eg. previous post). Obtaining informed consent to treatment is essential in respecting the right to legal capacity. People should not be discriminated against on the basis of a disability. 

People with disabilities can only be detained on the same basis (or for the same reasons) as anybody else. Detention can be violent and abusive, which can amount to torture and ill-treatment in violation of articles 15 and 16 of CRPD. People with disabilities have a right to respect for their physical and mental integrity on an equal basis with others under article 17 of CRPD. They have a right to live independently and to be included in the community under article 19. Health care professionals are required to provide care on the basis of free and informed consent under article 25.

Progress needs to be made in the reduction of coercion in mental health services. Treatment of people with mental health problems should not be unjust or prejudicial. Discrimination within mental health law must end.

Mental health crisis amongst young people?

Sami Timimi (2022), who I’ve mentioned before (see eg. previous post), provides a very helpful contribution to the Psychological Medicine debate about whether antidepressants and ECT are the answer to depression (see eg. last post). What I want to pick up on is what he says about the effect of  ‘desigmatisation’ campaigns on helping people, particularly young people, identify their mental health problems (see previous post). 

Encouraging young people and their families to talk about their problems has created, as Sami says, “a disastrous tsunami … to sweep them away”. He goes on:-

Young people, their parents, and their teachers [have] developed an awareness that ‘illnesses’ like depression are all around us, and you could be one of those affected. … You start to notice how bad you feel sometimes and wonder why you feel like this. Could it be that you are developing a mental disorder?

Sami references a very good Channel 4 Dispatches programme ‘Young, British and Depressed’, in which he appeared. He quotes figures from a survey undertaken for the programme. 68% of young people thought they have had or are currently experiencing a mental health problem. Of those, 62% thought that ‘de-stigmatisation’ campaigns helped them to identify it. Do the majority of young people really have a mental health problem? Surely it’s not meaningful to frame the emotional problems of young people in this way. As Sami says, “This alienation from, and fear of, … emotional turmoil … is the terrifying result of … [a] moral panic about mental health”. He goes on:-

The scene has been perfectly set up for transforming the challenges, confusions, intensity, and changes that happen as we grow and develop, particularly in our adolescent years, into potential obstacles, dysfunctions, dysregulations, and disorders, that can be neatly packaged and given ‘treatments’ to get rid of them.

The mental health system is clearly not functioning for young people. To quote again from Sami, “The perseverative call for more resources is the standard juvenile political response to the chaos our incoherent logic has caused”. Let’s hope the current national review of mental health strategy (see Call for evidence) does something about this situation. Mental health services need to be transformed and the aim to expand them needs to be rethought. Everyone, and perhaps particularly young people, are suffering because of this cultural process to create panaceas for emotional problems. They don’t always work and may create more problems than they are worth. Mental health is too important to leave to the professionals alone.

Blinding psychiatric critique with science

The article by John Read and Joanna Moncrieff, which I've mentioned before (eg. see previous post) on 'Depression: Why drugs and electricity are not the answer' has provoked even more responses. If the one by Goldberg and Nasrallah (2022) is the best case that biomedical psychiatry can make, then it is clearly in trouble. Within the limited space they had, Moncrieff and Read (2022) make a partial response.

The problem is that Goldberg & Nasrallah are blinding people with science. They've not really engaging with psychiatric critique. Most people do not understand  the scientific jargon they use and quote. For example, Jay Joseph (see his guest post) can undermine what they've said about the genetics of depression in a single tweet. But most people are not on top of the literature as he is. Interpretation, at least, of the evidence that Goldberg & Nasrallah give is wrong but it's not readily apparent from the complex way in which they present it. 

I'm sure speculative papers like Goldberg & Nasrallah will continue to try and present themselves as facts. But it's not a very firm foundation for psychiatric practice.