June 7, 2018 by The Lancet Psychiatry (Editorial)
The Mental Health Act review: getting out of the twilight zone
The interim report on the independent review of the England and Wales Mental Health Act (MHA) begins with a brief discussion about society’s attitude towards mental health problems. “For many years”, the authors write, these problems have “existed in a twilight zone”; an analogy intended to convey the idea of a shadowy realm only recently illuminated by public attention. However, readers might also connect the phrase with the eponymous TV series whose plotlines were characterised by the deep anxiety of the entrapped individual, unable to make their voice heard, slipping again and again into a recurring nightmare. This association might not be altogether inappropriate. For even at this early stage, the review’s working group has put on record some deeply disturbing findings.
While the review consultation process has elicited “examples of excellent care” from individuals detained under the MHA, two-thirds of those who expressed a strong view in the working group’s survey felt that they had not been treated with dignity and respect. Moreover, the interim report authors state that during their consultation process, they have been made aware of service users “experiencing or witnessing physical violence, verbal abuse and threats, bullying and harassment, sexual predation, pain-based restraint, [and] coercive reward and punishment systems for access to open air, leave or family contact.” When the authors add that “issues can sometimes escalate when trying to discuss or challenge diagnosis or treatment decisions”, their report temporarily lurches into the Kafkaesque.
Commissioned in 2017, the working group’s remit is to address rising detention rates, racial disparities in detention, and concerns that the MHA as it stands is not appropriate for a modern mental health system. Their findings so far only emphasise the difficulty of their task. The review hints at possible future recommendations: the unification of sections 2 and 3 of the MHA, allowing a shorter period of detention, and reform or replacement of the controversial Community Treatment Order. When it comes to the problem of undignified and frankly abusive treatment, the authors seem less certain. They “would like to” put guiding principles in statute, but recognise the difficulty in making these clear and legally enforceable.
The authors do not discuss the possibility that one cause of the infringement of service users’ rights and dignity could be discriminatory attitudes kindled by the MHA itself: that it might separate people with mental health problems from others who also lack capacity but do not bear the stigma of mental illness; that detention means that an individual’s diagnosis and legal status is seen to overshadow every decision they make, even their very personhood.
The next phase of the MHA review includes gathering information about mental health law in other jurisdictions, including Northern Ireland. In 2016, Northern Ireland’s Mental Capacity Act (MCA [NI]) replaced both the use of common law in matters of mental capacity and the 1986 Mental Health Order. Public consultation in 2011 revealed “strong support for the proposal of a single legislative framework”. The fusion of mental health and mental capacity law in the MCA (NI) starts from the presumption that the individual being assessed has capacity. To show that this is not the case, two things are required: a diagnostic test demonstrating impairment of, or disturbance in, the functioning of the mind or brain; and, connected to this, a functional test demonstrating that the person cannot understand, retain for a sufficient period, appreciate the relevance of, and use or weigh pertinent information, and communicate their decision based on this information. In a paper describing the Act, Gerry Lynch, Chair of the Royal College of Psychiatrists in Northern Ireland, and colleagues stated that “treating mental and physical illnesses equally under the law…reduces stigma associated with separate mental health legislation, and is respectful of a person’s autonomy and decision-making capacity whether they have a mental or a physical illness.”
Where Northern Ireland has been quietly bold, England has been noisily timid. The interim report mentions the possibility of a fused MCA and MHA, but dismisses this in the short term “for practical reasons”; fusion, it explains, “would take many years to design”. This is not the radical approach that Prime Minister Theresa May’s vow to “rip up the 1983 Act” might have led us to expect. The independent review has a rare opportunity to consider substantial change: the short-termism of the current Government should not affect what the working group thinks it can propose. The Twilight Zone, according to creator Rod Serling, was “the dimension of imagination”. Hopefully, the working group will feel better able to exercise their imagination as their work progresses.
For the interim report on the independent review of the Mental Health Act see https://www.gov.uk/government/publications/independent-review-of-the-mental-health-act-interim-report
For details of the Mental Capacity Act (Northern Ireland) 2016 see B J Psych Bulletin 2017; 41: 353–57