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The Future of the Mental Health Act

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The Future of the Mental Health Act The future of the Mental Health Act Institute of Psychiatry, Psychology and Neuroscience, King’s College London Dr Gareth Owen The Policy Institute at King’s Alexandra Pollitt, Dr Benedict Wilkinson and Laura Jones Power of Numbers Ltd. Ross Pow May 2018 The Policy Institute at King’s i About the Policy Institute at King’s The Policy Institute at King’s College London addresses complex policy challenges with rigorous research, academic expertise, and analysis focused on improving outcomes. Our vision is to enable the translation of research into policy and practice by facilitating engagement between academic, business and policy communities around current and future issues in the UK and globally. kcl.ac.uk/sspp/policy-institute About Mental Health and Justice Mental Health and Justice is a Wellcome-funded collaborative research endeavour spanning psychiatry, law, ethics, neuroscience, social science/ public policy and service user involvement. The project takes an interdisciplinary approach to two fundamental duties: the duty to protect people in contexts where they can be vulnerable and the duty to respect their agency and autonomy. mhj.org.uk Acknowledgements We would like to thank the Mental Health and Justice academic management group for comments on an earlier draft of this briefing note; George Murkin for designing the document; and all of the participants in our policy labs for their time and insights. We are grateful to the Wellcome Trust for supporting this work. © Copyright 2018 The Policy Institute at King’s College London and Mental Health and Justice Front-cover image: Shutterstock/Cienpies Design Summary In October 2017, Prime Minister Theresa May The variety of factors to take into account and the announced an independent review of the Mental breadth of legitimate perspectives (patients and Health Act, chaired by Professor Sir Simon professionals, politicians and the public), mean that Wessely. Mental health is an increasingly high on a number of issues, there are quite diverse ideas priority for government and the Mental Health Act on the best way forward. Often different opinions (MHA) is a key piece of legislation in this area. are held by members of the same stakeholder Under the Act, people with a mental disorder may groups and across all contributors, strongly-held formally be: views can be passionately expressed. • detained in hospital against their own wishes We should use that energy as an encouragement to in the interests of their own health or safety, or keep evolving the law to reflect, as best as possible, the safety of others. the new insights it is possible to create through • treated in the community but subject to recall bringing these perspectives together, rather than to hospital when necessary for assessment and/ seeing them as cause for despair or an excuse to or treatment under a Community Treatment stick with the status quo. Order (CTO). • taken to a ‘place of safety’ (a hospital or a police In this spirit and to help inform the debate of how station) to be assessed for a mental illness. mental health law might evolve, in November 2017 the Policy Institute at King’s College London The review is a significant piece of work for those brought a group of these stakeholders together with an interest in this area, including those who in an innovative and interactive ‘policy lab’ to have mental disabilities or disorders, the charities consider what approaches the review could take that support them, the professionals working in to six ‘areas of tension’ that had been identified as this area (such as clinicians, social workers and the being of potential relevance to the review: police) and the lawyers and academics interested in the development of such legislation. 1. The increasing overall rates of detention. 2. The higher rates of detention amongst Black Mental health inhabits a complex policy making and Minority Ethnic (BME) groups. space. For much of the history of UK mental health 3. The use of Community Treatment Orders provision, it could be argued that things were slow (CTOs). to change, in terms of the treatments available 4. The interface between the use of the MHA and to patients, the infrastructure and systems set the Mental Capacity Act (MCA). up to provide mental health ‘care’ and the public 5. The current and potential use of so-called attitudes that pervaded the discourse around ‘advance directives’. mental health. That is no longer the case and the 6. The approach to ‘positive rights’ and their rate of change has steadily been increasing. A potential inclusion in mental health legislation. powerful set of factors now feed into mental health policy deliberations: protecting the rights of the individual; providing parity with physical health; avoiding discrimination; investing in new ways to recover and sustain mental health and well-being. Neither are the debates around how the law should evolve conducted by relatively small groups of professionals and politicians. In an increasingly connected world, the discussion about mental health policy, more than ever, is played out as a much larger public conversation. 1 What is a policy lab? Proposals for the six ‘areas of tension’ One of the ways in which the gap between evidence 1. Undertake additional analysis to understand and policymaking can be narrowed is through policy what is driving the increase in detention rates. labs. Policy labs are collaborative sessions that bring 2. Tackle BME overrepresentation by building together research, policy, practitioner and service a ‘culturally competent service’ based on user expertise to assess the evidence, understand understanding the reasons for variations in how barriers and constraints to change and use this BME individuals are assessed and treated. understanding to inform policy options that can help 3. Abolish, or phase out, CTOs. improve outcomes. All policy labs seek to draw out a 4. Incorporate some form of decision-making wide range of perspectives and views to ensure that capacity (DMC) test into the MHA, perhaps options and ideas are challenged and deliberated. along the lines of the SIDMA approach used in Policy labs focus on a particular issue or challenge. Scotland, and work with the Law Commission Previous policy labs undertaken by The Policy recommendations to further simplify the Institute have focused on issues such as reducing the MHA-MCA interface. costs associated with rising levels of type 2 diabetes 5. Encourage the increased use of advance care and improving access to and use of effective land planning and undertake additional analysis de-mining techniques. of advance decision-making in mental health compared to physical health. 6. Enshrine positive (or ‘social’) rights in The discussions drew on the latest data and legislation as a counter-balance to the risk- evidence combined with an assessment of the overall based orientation of the Mental Health Act and direction the mental health system might take into the individual liberty orientation of the Mental the future. From this, a number of principles and Capacity Act proposals emerged for the review to consider. Implications for the broader policy context Four principles to shape the future of the MHA • The MHA is one of several pieces of legislation 1. Protections and prevention should be balanced that inter-relate and impact on each other and with a more person-centred approach. it will be a challenge to review the MHA in 2. The concept of risk should take more account isolation from these. of risks the individual prioritises and avoid the • While some of the problems around the MHA ‘slippery slope’ towards a wider set of risks relate to the law and its application, most prioritised by the state. of the challenges to be resolved flow from 3. The MHA should evolve towards a framework issues around available resources and ways of that places greater emphasis on the ability of working within the mental health system. people to make their own decisions about care • There are values to be balanced in reform and treatment. of the MHA. These include: a) valuing the 4. To minimise detentions, alternative approaches individual vs valuing the public, and b) valuing are needed. legal safeguards vs valuing informal health and social care arrangements. These balances are political (though not party political) and greater efforts should be made to generate a consensus on them. 2 Four proposed principles to shape the future of the MHA 1. Protections and prevention should be balanced to avoid the ‘slippery slope’ of prioritising with a more person-centred approach. state-focused risks over those of concern to the individual, especially as the definition of what In line with developments in international human constitutes mental disability or disorder has been rights, the MHA should give more prominence to gradually broadening. the rights of the individual and their autonomy in decision-making. The language should focus on 3. The MHA should evolve towards a framework health, recovery and social connections, with more that places greater emphasis on the ability of emphasis given to investing in non-compulsory people to make their own decisions about care options and a more person-centred approach to and treatment. people for whom compulsory options can protect them from harms. There will always be a very Application of the MHA is currently grounded on small number of people whose mental health will the assessment of a ‘mental disorder of a nature and predominantly pose a risk to third parties but the degree’. Shifting this to assessment of decision- real scale and predictability of this threat should making capacity would underscore the importance be communicated to politicians and the public to of respecting individual decision-making and have avoid a counterproductive approach by the state. the goal of achieving greater parity with decision- making about physical health, which is based on 2.
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