Mental health reforms are ‘full of loopholes’ and will ‘uphold the status quo’

The government’s planned mental health reforms contain “far too many loopholes” and will retain a “fundamentally discriminatory” system, according to some of the first detailed concerns raised by disabled people.

Three leading disabled campaigners have told Disability News Service this week that they believe the government’s draft mental health bill “lets people down very badly” and is just a “sticking plaster” that will “uphold the status quo”.

The draft bill, which applies to England and Wales, will reform the Mental Health Act 1983.

It is being examined in detail by a parliamentary joint committee, which issued a call for evidence on 1 August, ahead of hearings due to take place in the autumn.

But significant concerns are already emerging about its content, particularly the failure to provide full rights for disabled people as laid out in the UN Convention on the Rights of Persons with Disabilities (UNCRPD).

Among concerns raised by Dorothy Gould, founder of the user-led, rights-based organisation Liberation, are that the draft bill will retain key ways in which the Mental Health Act currently breaches the convention – through involuntary detention, forced treatment in psychiatric hospitals and community treatment orders – even if it aims to reduce their use.

Those judged not to have capacity would not have the same weight attached to their advance wishes about their treatment as those said to have capacity, she says.

And the draft bill would – if it eventually became law – continue to allow denying a person the right to a trial on the basis that they lack mental capacity.

Gould has also questioned some of the supposed improvements included in the draft bill.

The draft bill aims to reduce detentions, but the terminology it uses is so vague that it is unlikely to reduce the number of people detained, and the lengths of their detentions, she says.

Even if someone is assessed as having capacity, clinicians will still be able to have the final say on what goes into their new statutory care and treatment plan, and overrule their wishes, if that professional has a “compelling reason” and approval from a second opinion appointed doctor (SOAD)*.

And Liberation says that, even though the bill will allow patients to choose their own “nominated person” to take on various rights and responsibilities, rather than have a “nearest relative” assigned to them, this will only apply to those judged to have “capacity” at the time of their choice, and the nominated person could also be overruled or displaced.

The government says its bill will “ensure greater choice and autonomy for patients in a mental health crisis”, address the disproportionate number of people of colour detained under the Mental Health Act, and improve the treatment of people with learning difficulties and autistic people, and of people with mental distress in the criminal justice system.

It is based on a white paper published in January 2021, which was put out to consultation, with the government publishing its response last July.

Although many of last year’s white paper’s proposals were welcomed, it built on recommendations made by Professor Sir Simon Wessely’s independent review of the Mental Health Act in 2018, which was criticised for falling “significantly short” of recommending full human rights for people in mental distress.

Clenton Farquharson, a director of the user-led organisation Community Navigator Services, said detention will still be the “default position” within the mental health system “if resources are not wrapped around the changes needed”.

He said: “The government needs to travel in the direction disabled people want, which is the UNCRPD.

“Detention should not be the default position. The government needs to put in the missing jigsaw pieces to prevent it happening.”

He said this means that funding needs to be “wrapped around law, attitudes, education systems, culture and services”.

He said the disabled people’s movement “believes passionately in choice and autonomy for everyone”, which means enabling people who find communication difficult “to understand what others are saying and be understood”, but the draft bill will not allow that to happen adequately.

And he said there was no evidence that the draft bill would “make a difference to people from racialised communities”.

He said: “Racial equity holds society to a higher standard, demands we pay attention not just at an individual level, but at societal, systems and outcomes levels.

“What the government is proposing is a sticking plaster.”

Cheryl Prax, from the campaign group Speak Out Against Psychiatry (SOAP), said she believed that psychiatrists – including Wessely – had been put in charge of the reforms, which she said was “like putting gambling dens in charge of Gamblers Anonymous”.

She said: “They are not going to put the patients’ needs and wants first.”

She said that psychiatry had a history of forcing treatments on people which they later renounce as useless or even harmful, such as lobotomies and insulin comas, while electroconvulsive therapy (ECT), brain implants and psychiatric medications were all “under scrutiny for worsening outcomes”.

She said that forced, unwanted psychiatric treatment should not be an option for people in distress.

She said: “It is perfectly reasonable not to want ECT or chemicals in your body, yet incapacity is cited as a reason to overrule choices, even choices made when they considered you capable of making them.

“We are all human and when in difficulty we need compassion and choices. Human rights should be for all.

“In my opinion, psychiatry has tried to uphold the status quo when reviewing the Mental Health Act.”

Gould said the draft bill “lets people down very badly” and would allow people to continue to be “subject to coercion through involuntary hospitalisation, forced treatment and community treatment orders, in circumstances which are illegal for others”.

She said: “It’s not enough to make ‘improvements’ while retaining a mental health system which is fundamentally discriminatory.”

She said the draft bill was still “based on the idea that, for safeguarding reasons, coercion may be necessary for those of us given mental health diagnoses.

“Yet we are far more often subjected to abuse and violence than put others at risk and we rarely even receive legal reparation.

“It’s also well known that risk assessments are not a good predictor of risk, yet, unlike members of the public in general, we can still be locked up on the basis of potential risk.

“It’s very wrong, too, that the bill continues to deny many of us our rights on capacity grounds.

“There are also far too many loopholes in the draft bill and these undermine even the proposals that it does contain.

“For example, how much real difference will it make now to say that people must pose a ‘serious’ risk if they are to be detained?

“Quite apart from the unreliability of risk assessments, ‘serious’ risk could be interpreted in so many different ways.

“And, given the current power-dominated culture of many psychiatric hospitals, how was it wise to give clinicians the final say, even about what treatment a detained patient receives?”

She added: “This draft bill is not good enough. What we want and deserve are our full human rights under the UNCRPD.”

*The SOAD service is run by the Care Quality Commission, and it aims to safeguard “the rights of patients detained under the Mental Health Act who either refuse the treatment prescribed to them or are deemed incapable of consenting”

Picture: The Department of Health and Social Care’s Whitehall offices

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