Just over two years since the publication of the Independent Review of the Mental Health Act, led by Professor Sir Simon Wessley, the Government published its White Paper on Reforming the Mental Health Act (MHA) on 13th January.
Delayed due to various factors, the publication of the White Paper is a welcome step forward in modernising an outdated piece of legislation; a piece of legislation which is used when people are most ill, vulnerable and in need of help, and must be detained against their will.
It is therefore vital that the MHA, described as a paradox that is both traumatic and confusing whilst being lifesaving and an aid to recovery, is now aligned with the modern health system and support can be offered in an environment that is helpful and therapeutic and can work better for everyone.
The White Paper sets out proposals for a significant programme of legislative reform, taking forward the Government’s commitment to legislate to give people greater control over their treatment and ensure they are treated with dignity and respect. It also provides the Government’s full response to each recommendation made within the final report of the Independent Review, accepting and taking forward a vast majority, but not all, of the recommendations made. And although the White Paper has now been published, we must remember that this is only the first (welcomed) step towards changing the law and ensuring reforms are delivered.
Understanding the aims
The Government’s proposed reforms aim to tackle the racial disparities in mental health services, provide an improved response to the needs of people with learning disabilities and autism and ensure appropriate care for people with serious mental illness within the criminal justice system.
The aim is to introduce new guiding principles, initially developed by the Review and in collaboration with people with lived experience and carers, which will shape the approach to reforming legislation, policy and practice. The principles set to be at the forefront of the reforms will encourage a more person-centred system, where care must have a therapeutic benefit for the patient. The principles are:
- Choice and autonomy – ensuring people’s views and choices are respected.
- Least restriction – ensuring the MHA’s powers are used in the least restrictive way.
- Therapeutic benefit – ensuring patients are supported to get better, so they can be discharged from the Act.
- The person as an individual – ensuring people are viewed and treated as rounded individuals.
Between 2006 and 2016, the number of detentions under the MHA rose by 40% and tens of thousands of people continue to be detained each year. Furthermore, there are substantial disparities between different groups in terms of who becomes subject to the Act. The statistics are stark, particularly for black people who are four times more likely to be detained and ten times more likely to be discharged from hospital with the further restrictions of a Community Treatment Order (CTO).
There is an urgent need to ensure that people of Black African and Caribbean descent with poor mental health receive the treatment and support they need without being discriminated against. The Paper outlines two key approaches to tackle the disproportionality. Firstly, the introduction of a Patient and Carers Race Equality Framework (PCREF), a practical competency tool which enables NHS mental health trusts to understand the steps they need to take to improve Black, Asian and Minority Ethnic communities’ mental health outcomes. Secondly, improved culturally appropriate advocacy services so people from minority communities can be better supported by people who understand their needs.
Whilst the Independent Review did not recommend the abolition of CTOs, we know the most staggering racial disparities are highlighted in their use. CTOs have not reduced hospital readmissions, but are often considered as intrusive and coercive. It is concerning that the Government has chosen not to accept the recommendations in relation to CTOs in full and transform care for those facing serious inequalities and discrimination.
Sadly, the White Paper makes little mention of the role of the voluntary, community and social enterprise sector (VCSE), with the exception of a passing reference in relation to the previously announced investment through the NHS Long Term Plan.
Our members provide advocacy and liaison and diversion services through which they support people with mental illness detained under the MHA. Whilst proposals related to both areas have been welcomed, further clarity continues to be sought in terms of funding and ensuring there are suitable community alternatives with the appropriate levels of support.
Although local authorities, the main funders of statutory advocacy services in the VCSE and social care sectors, do the best they can with over-stretched budgets, commissioning of advocacy services is often predicated on the funding pot available rather than driven by need. Consequently, this puts significant pressure on VCSE providers to do more for less – an unsustainable and precarious position.
The Paper mentions the need to shift to support in the community to prevent avoidable detentions and we know that the majority of community-based mental health services are provided by the VCSE sector. Supporting the development of better preventative and early intervention services will ensure mental health support is offered earlier to reduce the risk of people reaching crisis point whilst offering alternative options to detention under the MHA, but these must be appropriately resourced.
There is certainly a need to improve access to community-based mental health support, including crisis care, to avoid the need for detention and admission. But with this, there also needs to be the recognition that the sector is severely under-resourced and needs additional support, especially with the continuously changing environment and new challenges as a result of the pandemic.
Resourcing the reforms
A key line in the White Paper states the proposals outlined are ‘subject to future funding decisions, including at Spending Review 2021’. These include the expansion of advocacy, entitlement to culturally sensitive advocacy, increased access to tribunals and review of the physical requirements for wards. Significantly, without the changes to advocacy and tribunals, bringing real change to other areas will become unattainable and, as such, it is essential that all planned reforms are fully resourced and there is assurance to this effect.
Furthermore, in order to provide more effective community support, improved crisis responses and alternatives to detention, more resources need to be made available. Merely changing legislation will not have the desired impact and we may continue to see an increased number of people with mental health needs sectioned against their will.
The majority of the recommendations from the Independent Review in December 2018, which the White Paper agrees to, do not require legislative change. It is about expanding and improving services and developing the workforce, including the roles of Approved Mental Health Professionals and Independent Mental Health Advocates. We hope we can begin to see changes sooner rather than later, with the appropriate financial resources to support.
For changes which require legislation, a consultation with 35 questions will continue until early Spring 2021 and it is key that people with mental health needs, their carers and those offering support services make their voices heard. This consultation period will last for 12 weeks and, despite the White Paper being a complex and dense document with over 180 pages, it is no overstatement to suggest that this is a once-in-a-generation opportunity to alter this legislation. Following consultation, the Government will consider and report on the responses and bring forward a draft Bill when Parliamentary time allows. To guide professional practice, the Code of Practice will later also be revised to align with the reformed legislation.
Over the consultation period, The Association will be examining the content of the White Paper in more detail, as well as engaging with and seeking the views of our membership to inform our formal response to the White Paper.
The Reforming the Mental Health Act White Paper and consultation present an important opportunity to modernise an outdated law, which we know is confusing, coercive, traumatic and disproportionately impacts on Black, Asian and Minority Ethnic communities. The proposals outlined are welcomed and we hope the new principles at the forefront of changes will give people the choice, control, respect and dignity that they deserve in receiving care – whilst, at the same time, reducing inequalities that we know exist in the system and through the use of the MHA.
More information can be found on www.amhp.org.uk
What was your reaction to the four priority areas outlined in the White Paper? And what do you think will be the biggest challenges for reform? comment on the feature and join the discussions.