The Mental Health Act – Repeal and Replace?

April 5, 2019 at 1:15 pm

The Mental Health Act 1983 (‘MHA’) is the law in England and Wales that covers a range of matters relating to mental health and crisis care. It sets out assessment and treatment in hospital, routes into care, and rights that a patient is entitled to. Whilst the Act has been updated since introduction (most recently in 2007), the core legislation is now over 35 years old. There is a movement calling for its replacement, due to being outdated or other reasons. One of our volunteers, Ellie, has assembled a summary of the arguments on both sides of the coin; for and against wholesale repeal. 

Arguments for the repeal and replacement of the MHA

 

Discrimination

One of the strongest criticisms and reasons for the replacement of the Mental Health Act is the discrimination critics argue it has caused. Disproportionate numbers of black people are detained under the Act. In addition, they generally have more difficult experiences once sectioned. It has further been found that this discrimination impacts young black working class men the most. In 2016/17 rates of detention within the defined category ‘Black or Black British’ was four times of that of those belonging to the White ethnic group. This is furthered when it is identified that the use of Community Treatment Orders (see below) were, for ‘Black or Black British’ people, nearly 9 times that of White people. This has lead to many critics of the Act calling for it to be repealed and replaced with provisions that combat these racial injustices.

Community Treatment Orders

One of the most controversial parts of the Mental Health Act are Community Treatment Orders (CTOs) which were introduced into the Act in 2008. A CTO is when a patient is allowed to be treated within the community rather than in a hospital, but it must follow certain conditions. If these conditions are not followed the patient can be readmitted to hospital. One criticism of Community Treatment Orders is that it does not provide patients a better quality of life or help their mental health condition. It has been argued that being treated within the community leads to a lower quality of life in terms of the patient’s health. This is claimed to be partly due to lower levels of access to resources and support with their health. A further criticism of Community Treatment Orders is that they do not help the patients re-integrate well into the community. It is argued that this is due to the restrictions on the patient’s personal freedoms that come from this form of treatment. Another criticism of Community Treatment Orders is that they act as a punishment rather than treatment and protection for the patient. Some critics of this element of the Act refer to CTOs and ‘psychiatric ASBOs’ and claim that they are used as a replacement for proper care especially for patients with serious conditions such as psychosis. Due to the major problems with CTOs many call for the Mental Health Act to be repealed and replaced in order to solve these major problems by either removing CTOs completely or making major changes to them.

Rising Detention Numbers

One issue that has caused criticism of the Act is the rising detention numbers over the past decade. Between 2005 and 2015 there was a 40% rise in the number of detentions under the Mental Health Act. Whilst there is no one clear reason for detention numbers rising, critics of the Act suggest that this rise in numbers indicates that the Act is failing. In 2007 the Mental Health Act’s grounds for someone to be detained were broadened. It is argued that now people with less serious mental health issues that would not have been previously be detained now are. Critics argue that this has eroded the distinction between serious and less serious mental health conditions. This has lead to calls for a new Mental Health Act that has a narrower requirement of who can be detained in order for less serious mental health issues to not warrant detention.

Patient Decision Making

Once detained patients have very little choice in what happens during their treatment. Some critics of the Act argue that despite the patient not having a choice whether to leave or stay in treatment, they still should have some decision-making power over what treatments they receive whilst they are detained.The Mental Health Act as it is gives very little opportunity for any shared decision making as well as enabling doctors to in some cases administer treatments not approved by the patient. Critics argue that treatment would be more effective if the patient has some say in it. A new Mental Health Act could provide patients with more influence over what happens during their treatment as far as is possible. This is only possible if the current Mental Health Act is repealed and replaced as the current Mental Health Act does not see detained people as having capacity to make significant input into decisions over their treatment.

Arguments against the repeal and replacement of the MHA

 

Patient Protection

One argument against the repeal and replacement of the Act is that its strength in detaining and making some decisions for patients means they are well protected. Some patients in a very serious situation detained under the Mental Health Act are a danger to themselves, and in some cases others. Due to this, supporters argue, the Act’s powers need to be far reaching in order to adequately protect and treat patients who are in the most serious circumstances. Whilst patients are detained, doctors must act in their best interests – the Mental Health Act in its current from gives them the power to do so. Supporters of the Act argue that this comprehensive care in the best interests of the patient would not be possible under a weaker replacement of the Act as it would give doctors less power to make decisions for patients and detain people who are in need of care that may be against their wishes.

Nominated Persons

Under the current Act the patient can nominate a person to support them during their treatment. This nominated person will receive information for the patient, help them exercise their rights and help convey the patient’s preferences and views. Supporters of the Act see this as important as it means the patient can have someone representing their opinions and rights without the burden being directly on them. This allows the patient to better focus on their treatment. Supporters of the Act as it is currently laid out argue that if patients had more of a direct say in their treatment they may not act in their own interest, so it is important to have someone act on their behalf and relay views on their treatment rather than making the decisions directly themselves. This allows doctors still to be able to make decisions considering the patients wishes but not be completely controlled by them. A new Mental Health Act may change this role, and would not necessarily be beneficial to the patient’s treatment.

Recent Reform

Recently the government have committed to reforming elements of the Mental Health Act. This may mean that the whole Act does not need to be repealed and replaced and instead these reforms will address some of the specific problems that critics of the Act identify. One of the key elements of the recommended reform is a greater ability for patients to challenge their detention and challenge their treatment whilst detained as well. This may solve the problems of how much influence patients have in their treatment. It could also be argued that this will go towards reducing detention numbers due to the proposed right to appeal detention more easily. They have also committed to tackling the current racial inequality in detention and believe this can be achieved through changes to how some elements of the Act are carried out in practice rather than through wholesale repeal. This has been promised to be done in part by reducing the numbers of Community Treatment Orders, as these are disproportionally used for black people. In all, some suggest these reforms and changes will solve the problems with the act without the need for it to be repealed.

 

Further information: the Government-commissioned review, ‘Modernising the Mental Health Act – The Independent Review of the Mental Health Act’ concluded in December 2018. The first parliamentary debate considering the Independent Review will take place on Thursday 25 July 2019. Rethink Mental Illness are running a campaign to ensure that the debate is as well attended as possible. Click here for more details. 

April 5, 2019 at 1:15 pm | Blog | No comment

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