The Interim Report on the Independent Review of the Mental Health Act: A Response

Akiko Hart
31
2317

The Interim Report on the Independent Review of the Mental Health Act (MHA) has just been released. It has succeeded in being supremely ambitious in its breadth, whilst remaining disappointingly cautious in its goals. The emphasis is on smaller changes in the immediate future, and kicking more progressive reform into the long grass.

This report is a pause for breath in a longer review process of the mental health laws in England and Wales, and how they interact with services, good practice and the wider care system. It was commissioned by the UK Government, and is led by Professor Sir Simon Wessely, psychiatrist and former President of the Royal College of Psychiatrists (more on that later).

My response to the report is a personal one, and is neither detailed nor definitive. As with much of the debate around the review of the Mental Health Act, my reply feels to me somewhat rushed and reactive, marching to someone else’s drumbeat. I recently organised an event to reflect on the MHA for Hearing Voices Network England, and some of the feedback from the day was: we need more time. There are a great many critical and complex issues at stake, and many people — including myself — feel that there has not been enough time to consider the many implications of the review.

I will therefore only focus on three main areas: the remit of the review, the direction of travel of the report, and the ‘service user’ voice within it.

The remit of the review

The remit of the review is vast, and the Interim Report is wildly ambitious in its scope. It looks at most aspects of the MHA and its practice, from the rising rate of detention in England, to how services users are treated when detained; from reviewing police cells as ‘places of safety’ to a more cursory review of forensic detention; from restraint and seclusion to Community Treatment Orders (supervised or enforced treatment in the community). Whilst it is laudable that the review has covered so much ground in its initial phase, on a more detailed reading, there is breadth, but less analysis and depth.

This is partly because there is a fundamental disconnect between the political drivers of the review and its more legislative remit. For example, the terms of reference of the review are to make recommendations for improvement in relation to rising detention rates and racial disparities in detention, and to address concerns that the act is out of step with a modern mental health system. Quite how the first two can be addressed through legislation is hard to see — and something the report acknowledges. The troubling rise in detention in England, the fastest in Europe, can surely not be corrected by amending the MHA, which is there to be used as a tool. It may very well be that the tool is used improperly, but that is a matter of practice. It is hard to see how the MHA could in itself reduce detention unless, for example, it enshrined in law that individuals had access to community-based alternatives to detention — something which is not suggested in the report.

Equally, the over-representation of some BAME (black, Asian and minority) groups in detention (and within detention, of BAME people who are restrained), is arguably not something which can be addressed through reform of the MHA. It is frustrating, in passing, that on this issue the report states that “the causes of this disparity are complex, but we have heard that services can improve, in particular by taking proper account of people’s cultural circumstances and needs.” This may very well be, but until we name the well-documented institutional racism at the heart of our mental health system, we will not see progress on this issue. Nowhere in the report is there any mention of this.

The direction of travel

The direction of travel of the report seems to involve small changes to the MHA, more substantive changes to the Code of Practice (aspirational principles which are guidance but not instruction for practitioners), and anything more ambitious is glossed over. In particular, there is only fleeting mention of the United Nations Convention for the Rights of Persons with Disabilities (UN CRPD), which the UK has ratified. Unsurprisingly, the report is clear that it is not minded to propose the complete repeal of the MHA, as the Committee on the Rights of Persons with Disabilities has formally recommended. Whilst this was never realistically in the cards, it is concerning that the UN CRPD is not explicitly positioned as aspirational. Equally dismaying is no mention of the UN Special Rapporteur’s groundbreaking report, where he calls on states “to move away from traditional practices and thinking, and enable a long overdue shift to a rights-based approach.”

Some small changes have been announced, for example, reforming the Nearest Relative provision, to allow individuals to nominate a person of their choice to fulfil this role. This is eminently sensible. There is also a clear call to reform — or replace — Community Treatment Orders (CTOs). CTOs were introduced in 2007, primarily but not exclusively to reduce detention. There is no evidence that they have done so. However the report questions the research, and, perhaps worryingly, rather than removal of CTOs, speaks of reform or replacement. Finally, some commentators were anticipating the proposal of a Fusion Law — a ‘fusing’ of the Mental Capacity Act (MCA) and the MHA — but the report states that it is unlikely to recommend this, although elements of the MCA may be used in the review.

What could the review be covering as well? A more radical engagement with the MHA might explore the contentious nature of ‘mental disorder’, on which the MHA rests, which is a live debate in some psychiatric, psychological and survivor circles. An ambitious review might look at how insight, a clinical term, and capacity, a legal term, are conflated in practice. A progressive review might critically interrogate the concept of risk, so central to our decision-making processes around detention, and yet so often reliant on emotion rather than reasoning. Professor Dainius Pūras, the UN Special Rapporteur for Mental Health, has said that if we were to detain people based on the risk of them harming others or themselves, we would round up inebriated young men in city centres on Friday nights. We don’t — because that would contravene their human rights. What is it about some people’s experiences, for example, of hearing voices or having beliefs which others find unusual, which makes them seem riskier to us?

The ‘service user’ voice

It is positive that there has been an attempt to reach out to service users and note their experiences and concerns and the wide range of views which people have about the MHA. However, it is disappointing that only 2000 service users and carers filled in the survey, and that only 320 people were consulted at workshops. This contrasts starkly with the 45,864 new detentions reported in 2016/17 alone (figures which are in themselves an underestimation as not all providers submitted data). Drop into any acute unit or Hearing Voices group, or stop by Twitter or the comments pages of any mental health articles, and it is quite clear that there are many, many people out there who have strong views (in every direction) based on their experience of the MHA. It might be interesting to reflect on why response numbers were so low — was it, for example, because the review did not reach out enough (there was certainly no social media blitz)? Perhaps it reflected people’s hesitation around contributing to an ‘official’ report which they felt they might not influence. Regardless, the review can and needs to do better to engage with people who have experienced the MHA in order to fully connect with the multiplicity of voices out there.

One of the issues that many people have raised around the review is that it is led by Professor Sir Simon Wessely, a psychiatrist and former President of the Royal College of Psychiatrists (RCP). Professor Wessely no doubt has the skills and knowledge required to lead such a report — but, to be frank, the optics on this could not be worse. Why is this? Detention under the MHA is a complex, contentious and deeply painful issue to many. It can be divisive, ‘them and us’, service users versus psychiatrists. It is, at its most basic, pared-down level, about power: about the state removing the rights of individuals, with this decision determined by psychiatry. In order to navigate this intensely difficult terrain, and for all stakeholders to enter into dialogue, this power imbalance needs to be acknowledged. Many people who identify as survivors of the psychiatric system may feel intense wariness around contributing to a report which is led by the person who used to be, at least in titular form, the most powerful psychiatrist in the UK.

From my reading of the Interim Report, the service user voice has been consulted but not centred. This is clear in the handling of, for example, Advance Decisions to Refuse Treatment, which at present can be overturned for people under the MHA. The report all but rules out the possibility of making advance planning completely binding. Advance planning is binding in every other type of healthcare (for example if someone refuses treatment for cancer). It may well be that we are not able to move to this position in the MHA, but it is disheartening to say the least that it is no longer even on the table.

Nowhere is the sidelining of the service user voice more evident than when the report writes about “the dignity and respect of the service user,” and how the services we provide can fall woefully short of safeguarding these. Only a third of survey respondents who expressed a strong view in their survey felt they were ‘treated with dignity and respect’ when sectioned, and two thirds did not. The report states: “Throughout all of our engagement with service users and carers, we have been made aware of a wide variety of distressing experiences including but not limited to, experiencing or witnessing physical violence, verbal abuse and threats, bullying and harassment, sexual predation, pain-based restraint, coercive reward and punishment systems for access to open air, leave or family contact.” The report continues: “Such negative experiences are likely to be caused by a complex combination of factors and require action on many fronts.”

I am not aware of any other environment in the UK where physical assault, sexual predation, verbal abuse and coercion — some of which would have been carried out by NHS staff on service users — would be classed as ‘negative experiences’ caused by ‘complex factors’. If we were talking about people being assaulted by police officers, young people being bullied by their teachers, or cancer patients being verbally abused by staff, we would be framing this behaviour as deeply troubling, unacceptable and most likely criminal.

This, to me, is at the heart of what is problematic about the Interim Report: it alludes to but does not enshrine a rights-based approach. We may well temporarily lose our right to liberty under the MHA, but we do not lose — and never lose — our human rights. I understand why the review has not centred a rights-based approach, but a rights-based approach need not be a zero-sum game or a brutal and inevitable collision course. All stakeholders — service users, carers and practitioners — could benefit from moving towards a space where we can enter into dialogue as equals, and where we are able to hear each other’s fears, pain, anger and hopes on this, perhaps the most controversial issue in mental health. In the run-up to the Final Report, I urge the review to enter into dialogue — not consultation — with all stakeholders, to centre human rights, and to be ambitious.

31 COMMENTS

  1. “It is positive that there has been an attempt to reach out to service users and note their experiences and concerns and the wide range of views which people have about the MHA.”

    No, it’s not. The only reason for involving “user stakeholders” is to legitimise the whole process so that they can sell it to “carers” and the public. They do it in a way that keeps them in full control. Already they have managed to get across to the media that… “Many people interviewed by Wessely’s team believe that being detained was the best thing for them; some said it saved their life and prevented suicide.” I can’t tell you how much that makes me shudder.

    • It could be complete bollox. On the ground when I’ve tried to assert the rights I do have, all Regulators were behaving like petty criminals.

      Having said this my liberty was not (really) at stake so maybe I’m on a different wavelength.

      But I have to say from what I’ve seen of it the Mental Health System is bent from start to finish.

    • “No, it’s not. The only reason for involving “user stakeholders” is to legitimise the whole process so that they can sell it to “carers” and the public.”

      Correct! What – my view -Wessely is seeking to move towards is legally being able to forcefully drug patients at home under an ‘absence of leave’ situation, in other words closer monitoring and enfocement of the drugs and to get wider agreement on this to assert the position. He alludes to it here:

      https://www.youtube.com/watch?v=X-E1iO3rsVk&feature=youtu.be&t=1196

      Please note he says : “I hate people who are passionate, I’m passionately against passionate, it’s an awful thing. But I’m strongly in favour of psychiatry ”

      It is really worth while watching the whole of that video and especially listening to Tony Maden who makes an analogy with patients being pigs:

      https://youtu.be/X-E1iO3rsVk?t=1707

      What is important to get across to the public is that the very drugs forced onto patients and starting with the use of benzodiazepine being prescribed ‘as needed’ by GP’s – before a patient is subject to coerced then forced antipsychotics – ‘AS NEEDED’ is really important to undertand how this whole thing gets out of control because it sets up withdrawal toxic psychosis/akathisia and people being forced towards the likes of Maden.

      And here it is right here:

      DEPENDENCE AND WITHDRAWAL

      “Withdrawal of a benzodiazepine should be gradual because abrupt withdrawal may produce confusion, toxic psychosis, convulsions, or a condition resembling delirium tremens.”

      https://benzo.org.uk/BNF.htm

      Heather Solimine explains it here and very well. I very much hope you listen to this Simon Wessely (hates people who are passionate) and Tony Maden (makes analogy of patients to pigs):

      https://youtu.be/IKNzL-eU650?t=1966

  2. Thank you Akiko for this article. I read the report and felt it didn’t really say anything useful. Theresa May became aware that detentions under the MHA are rising and disproportionately affect people from some ethnic minority communities so decided a review of the law was called for, although it may not be the law that is at fault, and then puts Simon Wessely in charge of it although he is hardly going to argue for less power to psychiatrists. The report says that the reasons for both the above (rising detentions and BAME groups being more likely to be detained) are “complex”. Well, obviously. And as for treating people with dignity and respect – can you make a law that says that you have to?
    As for the disappointing numbers of people responding to survey, etc., could it be that having to identify as a “service user” might have put some people off, especially those who weren’t going to be appreciative of their treatment? I may be behind the times here – is “service user” a term that nowadays is universally, or near universally, accepted by people?
    Not even a mention of ECT in the report. Although, to be fair, the law was changed for ECT in 2007. And how about legislating for DBS?
    I got through to the end of the glossary and was surprised to find SOADs defined as second opinion associated doctors. I thought they were second opinion appointed doctors. Has it changed? It is pointless anyway the A was only inserted to avoid calling them SODs.

  3. “All stakeholders — service users, carers and practitioners — could benefit from moving towards a space where we can enter into dialogue as equals…”

    Yes, but if such a space/conversation were held, it would require the “professionals” to step down from their place of power. Their chronic and continuing unwillingness to do so is the exact reason why such efforts at analysis will not create the needed changes.

    • As the MHA is the UK’s forced treatment law all of this talk of equality is utter nonsense. The warder and his guards get to come and go as they please. The prisoner gets the cell. All talk of dialogue among equals is only talk. The power disparities continue. We know who holds the keys, and we know who occupies the cell. Outside of the prison walls, okay, you’ve got a lot of self promotion, but it doesn’t serve those who are prisoners, and, what’s more, it doesn’t free them.

      • Yes, and have you noticed how it is always the ones with the most power who spin the line that it’s in everyone’s best interests to set aside differences and work together? It’s a favourite of Professor Sir Simon. There is no doubt that he absolutely needs the input of “user stakeholders” to validate whatever “reforms” he has in mind for the MHA, but a “dialogue of equals”? Dream on.

      • Reminds me of the fables told by Aesop and Foucalt where a predator–a fox or cat–tells a smaller creature like a bird or mouse that all animals are equal now. “Come down from your perch in that tree and let me tell you about it.”

        Uh huh. Thanks, but no.

  4. Comments from individuals using the public mental health system would be helpful. We got significant amount of former service users hospitalized in 60 and 70’s commenting.

    Please post my comment. This is a fair point. I’m trying to have balanced conversation.

  5. Dear Akiko,
    What a very thoughtful and wise perspective you offer on the Interim Report of the Mental Health Act. I share your every concern. I am not at all sure how this review came to be labelled as “Independent”!

    I should say I work in NHS Scotland and Scotland has its own Mental health legislation. I have been a psychiatrist for more than 20 years and I am coming now to the end of my career.

    Thank you for writing this Akiko.

    aye Peter
    Bridge of Allan

  6. How about we include in the legislation, serious financial compensation for people who have had their lives ruined for many months into years. At the moment the PHSO (and how about the PHSO employ people who have suffered as a result of the UK MH service) can only make a health trust award a token financial compensation. An individual has to bring their own litigation and all the stress involved in that. How about we STOP psychiatrists investigating themselves re complaints and have a true independent complaints system and not a shame facade of accountability which only makes these people more brazen.

  7. What needs to happen with people who hear voices, who are locked up, (prison or sectioned) is not just hearing voices groups, they require a Cytochrome P450 pharmacogenetics test – plus if they were subject (no real option) to the common food stuffs, herbs and spices that inhibit the CYP metabolising enzymes – as a matter of urgency to ascertain if they are toxic on the drugs causing at least agitation and at worst akathisia induced suicide attempts/violence which has caused them to be incarcerated/sectioned. This is because psychiatrists and MH nurses who prescribe, enforce and administer these drugs will be the very last people to acknowledge they are responsible and hence are unable – and frankly do not care – to know the difference between iatrogenic and any true condition. When that happens and it is established who is toxic and affected by this horrific condition they need to not only be given access to appropriate compensation for having their bodies – and therefore human rights – seriously violated, it needs to be done for them because they will need years to recover, yes years, it’s that bad.

    • “This is because psychiatrists and MH nurses who prescribe, enforce and administer these drugs will be the very last people to acknowledge they are responsible and hence are unable – and frankly do not care – to know the difference between iatrogenic and any true condition.”

      This describes the full tragedy of the Psychiatry hoax in a nutshell. I sincerely believe that the majority of students are attracted to these professions because they are caring by nature and have a strong desire to relieve suffering and distress. Some of them even see it as a calling. Their training is a process of indoctrination into an ideology and belief system from which they quickly learn it is unwise to stray. By the time they graduate, they will have learnt to dismiss and ridicule without hesitation anyone who threatens their world view – “Anti-science, Flat-earther, Scientologist.” These once caring people have become so invested in this rotten ideology that they will be incapable of acknowledging to themselves the massive harm they are doing to their patients.

      Here is a heartbreaking illustration of this…

      https://www.youtube.com/watch?v=BBJBMXw7-fw

      When this patient took her own life, I imagine that all the staff involved were consoled by the thought that they had done “everything they could” for her.

      • The woman who filmed that wrote this in the YouTube comments:

        “This lady’s name is Jean Cozens. In May 2014 I attended the inquest into her death and the Coroner declared it an open verdict not suicide. Jean’s psychiatrists was at the inquest and her evidence was that she put Jean on the medication with her welfare in mind. When the verdict was announced she smiled as it meant she did not have to worry that she had a suicide on her record. The inquest was more of a cover up as to how Jean died. She was found hanging but the psychiatrist and the mental health Trust South London and Maudsley did what they could to persuade the coroner that she did not mean to take her own life. I was disgusted with what I heard at the inquest and I have sent a complaint to S.L.A.M. They did not bother to reply to my complaint after the inquest. Yet.”

        This is one of the main reasons I believe paychiatry needs to be abolished: There is no accountability. And this was very clear to me from my engagement with the CQC, GMC, PHSO, ICO and NMC. Those who think they can change this from within just become useful – funded – idiots and skillfully manipulated.

        What happend to Jean Cozens must be shown to the public. I hope it ricochets down time, amplifying like a laser at the heart of psychiatry.

    • I refuse to go on linkedin, but someone needs to keep an eye on this woman: Dr Alina Roser. Yeah we need pharmacogenetics, but we need the public to be infomed and to learn about their own phenotypes and not have it kept from them by the nanny state. Plus pharmacogenetics will not help anyone from the long term harm done by these drugs. This test will just push the horror and death further down the line.

      https://www.linkedin.com/in/dr-alina-roser-grynik-10903753

  8. When clinicians threaten sectioning the clinical relationship is destroyed. Something needs to be done to try and ameliorate the catastrophic collapse in trust.

    The fact that forced medication (without time limit) goes hand in hand with incarceration seems an intolerable breach of human rights, especially when the efficacy of such medication is questionable at best, and possibly administered by the same people whose treatment has arguably failed up to now.

    Furthermore the coercive nature of the drugging must raise the desire to get off it as fast possible on release, which is dangerous. Shouldn’t enforced medication be reduced to the role of temporary tranquilisation for safety reasons only? Beyond that, should not there be consensus and consent? Any enforced medication should definitely be within NICE guidelines with recorded justification in that context.

    It also places carers and families in the role of prison visitors. I cannot begin to imagine what its like having an “Oddjob” security figure watching your every move.

        • Yes, If we concentrate excessively upon the rights and wrongs and terrible harm caused by psychiatric interventions ,we run the risk of
          providing our opponents the opportunity of presenting (to public at large) new treatment ,better care ,old drugs found to be harmful etc.
          When in-fact there is no pathology involved in psychiatric oppression.
          They will like-as not use the treatment debate as a advertising campaign for the latest break through,in what we know is in fact Torture.
          CJ

          • I agree, if I understand you correctly, that if we overly focus on specific “treatments” the implication is that we need “better” ones rather than an end to the whole pseudo-medical framework. I guess the key word is “overly,” as we need to make people aware of the dangers as well.

  9. Yes , the principal behind not being able to interact with that which is not
    materially measurable especially in medicine is well understood by most.
    Psychiatry however,demands that we reject this fundamental observation ,upon which the entire industrial and scientific world is based upon.
    Psychiatrists would have us believe in monsters at the bottom oft the garden, with pink ears.!!! This is not to reject the spiritual difficulties
    people sometimes experience.
    CJ

  10. why is it that psychiatrists now lead the human rights investigations? what qualifies them for that kind of work, especially in the positions of ‘principal investigators’??!! this is sooo wrong and unless it stops our human rights will never be properly addressed.

  11. Sorry a bit late in commenting on points made by Akiko about MHAct Review. Based on much discussion (study group on counteracting racism in MH systems, conference on MHAct Review and Institutional racism attended by nearly 130 people etc etc.), subsequent to the release on my book (https://www.springer.com/gb/book/9783319627274), I suggest that legal action (i.e. MHAct) can indeed play a part in counteracting institutional racism. Legislation can influence both practice and attitudes by setting standards and shifting the state-sponsored terms of acceptability, in the way Race Relations legislation, introduced in the 1970s altered employment practices and thence attitude of society. We can do this (for example) by regulating the process of making diagnoses and their ‘power’; regulating the skill base of professionals (who are currently totally dominated by white-supremacist, ‘white knowledge’); creating effective system of tribunals that are driven by principles of human rights, including by anti-discriminatory practice and combatting institutional racism; and shifting the culture of psychiatry and clinical psychiatry by regulating the professions – as police culture was nudged to change to some degree after the Macpherson report of 1999, and so on . What seem to be needed is in-depth understanding of what institutional (‘cultural’) racism really means (I am not sure many people in positions of power have this understanding). This is really a form of indirect racism unlike the direct in-your-face racism we all recognise so easily and counteracting such racism has to be primarily by indirect action (of which legal action it one). And of course there has to be a political will to institute change and for people leading reviews (like MHAct Review) to “TELL IT HOW IT IS” to start with. Will Simon Wessely do that?