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Our response to the Mental Health Act White Paper

Earlier this year, the government released its White Paper on the Mental Health Act - this detailed a number of proposed changes to mental health law, and went out for public consultation.

For those who may be unfamiliar with the Act or the actions that lead up to the realise of this new paper, we’ve prepared some background information. If you're ready to read our Advocacy team's white paper analysis, feel free to skip ahead.

What is the Mental Health Act?

The Mental Health Act 1983 describes how and when you can be detained in hospital against your wishes, in the event that your mental health has made you a danger to yourself or others.

People often use the word ‘sectioned’ to describe someone who has been detained, because the circumstances of your hospitalisation and your rights depend on what section of the Mental Health Act you have been detained under.

The sections within the Act also detail how decisions are made about your care, how and where it is given and the treatment you will receive.

Why does the Mental Health Act need to change?

As with all laws and policies, they need to be kept up to date to reflect the society we currently live in. There may also be short-term changes made in an unprecedented emergency, such as those bought in by the Coronavirus Act 2020.

The Act is now 36 years old. Campaigners, mental health professionals and patients alike have voiced how certain parts of the Act bear little resemblance to how we need to support people: from the ambiguity for people who also live with learning disabilities, to the culture of treatment experienced by those from different ethnic backgrounds.

A controversial part of the Mental Health Act is it’s use of restraint, both physical and chemical, which is often disproportionality used on Black males. The Act urgently needs to consider and protect different ethnicities and cultures, to prevent further harm and distrust of the mental health system.

What is a white paper and what will it do?

In 2017 the government asked a range of independent experts (including Mind) and those with lived experience of a mental health issue to review the Mental Health Act and suggest ways it could be improved. This January 2021 white paper is the government’s response to these suggestions, and lists the ones they wish to turn into law.

Before that can happen, the government now wishes to hear feedback through a public consultation, which means you too can have your say. The consultation closes on 21st April 2021, but there is no suggested timeline to make these proposals law, and the pandemic response continues to slow down projects such as this. It’s possible it might even take years, which is an issue when changes are already overdue.

Here, we take a look at why we think the Mental Health Act needs to change and summarise our official response to the new proposals.

Solent Mind’s response to key questions in the White Paper

We propose embedding the principles in the Mental Health Act (MHA) and the MHA code of practice. Where else would you like to see the principles applied to ensure that they have an impact and are embedded in everyday practice?

The principles are good, but they need to be embedded not only in the MHA and Code of Practice, but in culture and practice at every point within the mental health system. This cultural change will not “just happen” because the MHA is reformed – it will only happen when mental health professionals are willing to give up some of their power and place it in the hands of those of us who use mental health services. This change will take time, and the principles need to be applied at every step, including in the education of future mental health professionals.

We want to change the detention criteria so that detention must provide a therapeutic benefit to the individual. Do you agree or disagree with this proposal?

For many people, being detained under the MHA, rather than being a helpful experience, is a negative one which actually sets our recovery back. Inpatient units are too often experienced as unsafe and frightening, with little offered in the way of therapy or treatment beyond medication. If being detained is not going to assist with recovery or, is actively going to worsen our mental health and wellbeing, then we need to be offered therapy, treatment, sanctuary and support to enable us to stay out of hospital even when we are experiencing acute mental and emotional distress and crisis.

We also know that detention is applied disproportionately – as stated in the White Paper, black British people are over 4 times more likely than white British people to be detained at all and are over ten times more likely to be subject to a community treatment order (CTO). As well as higher rates of detention, black British people also experience poorer outcomes in terms of their recovery and wellbeing, from being involved with the mental health system. At Solent Mind we are introducing new Diverse Communities Coordinator roles into our workforce, in order to support the major change that needs to happen in respect of Black people within the mental health system.

We also want to change the detention criteria so that an individual is only detained if there is a substantial likelihood of significant harm to the health, safety or welfare of the person, or the safety of any other person. Do you agree or disagree with this change?

People with mental health issues should have confidence that our basic human rights will not be overridden simply because we are in crisis, but all too often detention is also accompanied by restraint and forced medication, reinforcing our loss of choice and control. The emphasis needs to shift to providing the support we need at a much earlier stage, in our own homes or in alternatives to admission. Having said that, when someone feels very unsafe and asks to be admitted as a voluntary (not detained) patient, and there is suitable therapy, treatment and support available in the hospital or inpatient unit, then voluntary admission should be available.

Do you agree or disagree that patients with capacity who are refusing treatment should have the right to have their wishes respected even if the treatment is considered immediately necessary to alleviate serious suffering?

The proposed changes give us back our choice and autonomy to a large degree. This includes our right to choose to suffer. Some treatments and medications are in themselves harmful to aspects of our health and wellbeing, and we need to be in control of weighing up whether we prefer to suffer in one way, in order not to suffer in another, e.g., through the unwanted side effects and harms of psychotropic medication.

Do you agree or disagree with the proposed additional powers of the nominated person?

The Nearest Relative provision is outdated and doesn’t give us choice and control. Having a nominated person who has rights to be consulted, not just notified, about decisions relating to our care and treatment, will give us more power and autonomy.

Do you agree or disagree that someone under the age of 16 should be able to choose a nominated person (including someone who does not have parental responsibility for them), where they have the ability to understand the decision (known as ‘Gillick competence’)?

If someone under the age of 16 has Gillick competence, then they are as much able to choose their nominated person as someone over 16.

Do you agree with the proposed additional powers of independent mental health advocates?

At Solent Mind we have a team of advocates, and the difference they can and do make to people’s lives, by upholding their human rights and amplifying their voice, can’t be overstated. The role of the IMHA needs to be given additional powers, in order that the proposed changes to the MHA have independent “teeth”.

Do you agree or disagree that the right to give advance consent to informal admission to a mental health hospital should be set out in the Mental Health Act (MHA) and the MHA code of practice to make clear the availability of this right to individuals?

The “get out clause” needs to be clearly defined, in both the MHA and the Code of Practice, in order to safeguard those of us who may not know “what we’d be letting ourselves in for” by setting out advance consent to informal admission.

Are there any safeguards that should be put in place to ensure that an individual's advance consent to admission is appropriately followed?

The right to an IMHA should be extended to people admitted informally following their advance consent.

To speed up the transfer from prison or immigration removal centres (IRCs) to mental health inpatient settings, we want to introduce a 28-day time limit.

Do any further safeguards need to be in place before we can implement a statutory time limit for secure transfers?

The 28 day limit should focus the minds of those responsible, and ensure that people needing mental health treatment do not languish in inappropriate settings such as prisons and IRCs, as happens now.

Conditionally discharged patients are generally supervised in the community by a psychiatrist and a social supervisor.

How do you think that the role of social supervisor could be strengthened?

BY setting out quality and practice standards, backed up by training and accreditation.

Do you agree or disagree with the proposed reforms to the way the Mental Health Act applies to people with a learning disability and autistic people?

Learning disability and autism are not mental health conditions in themselves that can be treated in a mental health inpatient setting, the environments of which are practically guaranteed to increase the sensory and emotional distress of people who have a learning disability or who are autistic. The “treatment” of Bethany was scandalous and there are other people still being held in equally inhumane conditions. This has to stop now, and the proposed changes will help to create that change.

We think that the proposal to change the way that the Mental Health Act applies to people with a learning disability and autistic people should only affect civil patients and not those in the criminal justice system. Do you agree or disagree?

It’s likely that many people who have a learning disability / are autistic have ended up in the criminal justice system because they haven’t received appropriate care, treatment and support for their condition or for associated mental health issues; therefore this could be discriminatory.

How could the Care Quality Commission support the quality (including safety) of care by extending its monitoring powers?

We support the review recommendations about extending the CQC’s powers, but what is equally important is that the CQC engages far more effectively than at present, with people who use services and our families and loved ones, and is given the resources necessary to carry out its extended role.

What happens next?

The Department of Health and Social Care will consider all the responses to the White Paper from the public consultation, and then the government will propose a Bill in Parliament, which will go through various stages in both the House of Commons and the House of Lords, potentially being amended along the way, before being voted upon and (if voted in) becoming an Act.