Mental Health Act review ‘falls significantly short on human rights’

A government-commissioned review* set up to modernise the Mental Health Act has been criticised for falling “significantly short” of recommending full human rights for people in mental distress.

The review, published today (Thursday), includes 154 recommendations for improvements to the Mental Health Act 1983 that its chair, Professor Sir Simon Wessely, says would make it easier for mental health service-users to say how they want to be treated and harder for those requests to be ignored.

The prime minister this morning welcomed the report, announced plans for a new mental health bill, and said the government would respond formally in the new year.

But nearly 150 user-led organisations, allies and individual campaigners – led by the National Survivor User Network (NSUN) – have previously warned that the review appeared to be backing away from the need for fundamental reform of the act.

They have argued that there needs to be “full compliance” with the UN Convention on the Rights of Persons with Disabilities, with action taken to comply with recommendations made to the UK government last year by the convention’s committee.

NSUN was today highly critical of Wessely’s report, and said many user-led organisations, individuals with lived experience and allies were “disappointed and feel let down” by support for its recommendations from professionals, many mental health charities and some human rights organisations.

An NSUN spokeswoman said: “The recommendations fall significantly short of giving people with mental health diagnoses full human rights as set out in the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD).”

She said the review had failed to address the concerns raised by NSUN and its supporters in letters to the review in May and October.

Full implementation of the convention would mean – among other changes – an end to detentions, substitute decision-making [appointing someone to make decisions on behalf of a service-user, rather than providing them with support to make the decision themselves] and compulsory treatment.

When asked by Disability News Service at a press conference yesterday why the review had not recommended full implementation of the UN convention, Wessely (pictured, right) said that “those kind of recommendations go too far”.

He said the review’s recommendations had “done a lot” to move towards the “very clear and concrete” changes to human rights that the convention demands.

But he said the UN convention made it clear that the Mental Health Act and the Mental Capacity Act were not compatible with the treaty.

He said: “I think the truth is that we don’t think that’s right. We don’t think much of the public will think that’s right, we don’t think service-users will and we don’t think parliament will.

“We think it’s absolutely right in principles, but I think those kind of recommendations go too far.”

He said there had to be a balance between the need to respect autonomy and “looking after the vulnerable” and he said the review’s recommendations would mean “full compliance” with the European Convention on Human Rights.

Among the 300-page report’s recommendations are a proposal to create new advance choice documents, which would enable people to make choices and statements about their future inpatient care and would be “easier to make, and far more difficult to ignore” than current methods of expressing views about future treatment for those detained or at risk of being detained under the act.

There should also be earlier access to second opinions about treatment, and the right to challenge decisions made by tribunals.

Service-users would be able to choose the person who would have power to take decisions for them if they lacked capacity themselves, rather than having to be allocated a “nearest relative”.

The review also calls for “systematic” improvements by services to take account of the local population’s ethnic and cultural backgrounds, and there is a call to address the frequent inappropriate use of the act to detain autistic people and those with learning difficulties.

The review also said that decisions to give compulsory treatment or detain someone in hospital should be “clearly explained and recorded”, while the harm being mitigated by detaining someone must be recorded and would have to be “significant”.

It also calls for a “substantial” reduction in the use of community treatment orders, particularly for black African and Caribbean people.

And it says that police cells should never be used as a “place of safety” for those who meet the criteria for detention under the act.

The review also calls for improvements to the physical environment of wards “through co-design and co-production with people of relevant lived experience, to maximise homeliness and therapeutic benefit and minimise institutionalisation”.

The review’s recommendations have been welcomed by people with lived experience of mental distress who advised or worked on the review.

Steve Gilbert, a vice-chair of the review and chair of its service-user and carer group, a member of the working group that advised the review’s leadership, and a trustee of the mental health charity Mind, said: “No one person in our group agreed on everything.

“However, when we look at the package for reform as a whole, we do feel the recommendations must be adopted, that the act will work better for service-users, families, carers and professionals by delivering better experiences, better outcomes, and it is for this reason that I call upon the government to accept all of our recommendations.”

Asked by DNS about the influence of service-users on the recommendations, Gilbert said they were “fundamental” to the review process and “right there at the centre”, while “in some respects it was service-users leading the development of the recommendations”.

Kate King, who had years of experience of inpatient mental health care – with the care she received ranging “from the excellent to the abusive” – and was a member of the review’s service-user and carer group and the working group, said: “We really need the amendments this review will recommend.”

She said the review’s recommendations would “empower patients to be involved in their care, to make choices when they are well that would be harder to over-rule and to have better access to doctors and tribunals for a review of how and where they are treated”.

But the NSUN spokeswoman said: “People with mental health diagnoses should be able to enjoy the same human rights as other people have; under the review recommendations, this will not be the case.

“There has been a failure to draw directly on the type of supported decision-making set out in UNCRPD documentation in relation to people whom clinicians designate as ‘not capable’.

“The review report continues to employ an essentially clinical model for understanding and approaching mental distress, despite the fact that significant numbers of service-users have found these unhelpful and despite growing scientific challenges to the evidence base for these.

“There is an attempt to address issues for service users from black, Asian and other minority ethnic communities, people with learning difficulties/disabilities and/or autism and young people, though the adequacy of the recommendations has been questioned by a considerable number of service-users.”

And she said there was also “a concerning lack of focus on other intersectional issues, such as gender and gender identity, sexual orientation, older age, including dementia, other disability issues and disadvantaged socio-economic status”.

*The review deals with the UK government’s responsibilities under the Mental Health Act in England and Wales, which cover health policy in England and justice policy across England and Wales

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