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

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.