The Mental Health Act: Legalised Discrimination

The following post is from Gary Sidley. We asked Gary to write for us following his contributions to the Durham conference, especially on the subject of the Mental Health Act. Gary’s post speaks for itself. Readers will find it raises some profound and political questions. Please let us know your thoughts (by commenting on this post, which Gary will read). If you wish to respond to this post in a more detailed way, please ‘contact us’ to discuss that.

Gary has worked as a mental health nurse, a consultant clinical psychologist and has been a team manager. He has a perspective which spans over three decades of work in mental health services and has a PhD that explored the subject of predicting suicidal behaviour. You can find out more about Gary here. He is now a writer and has recently had a critical mental health book published through PCCS books. We feel that this book could not have arrived at a more serendipitous moment and we are looking for people to respond to it on this blog (please contact us if you are interested). We are extremely pleased to have his involvement in the Critical Mental Health Nurses Network.

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Introduction

As the Critical Mental Health Nurses Network (CMHNN) strives to find its raison d’etre, it is timely to ponder as to where this embryonic organisation might best focus its energies. Given the raft of current deficiencies in the way that Western psychiatry responds to human misery and suffering, there is no shortage of worthy endeavours. Possibilities include: challenging the prescriber/drug-industry alliance to stop its relentless misuse of psychotropic medications; ensuring that people in distress routinely receive compassionate and respectful responses from those employed to help them; confronting advocates of the ‘illness like any other’ approach with the stigmatising, passivity-inducing and hope-quashing consequences of their mantra; or highlighting the distorted way that risk is both perceived and addressed within the mental health arena.

But maybe there is one supra barrier that feeds a number of flaws inherent in the current psychiatric system and requires dismantling if we are to realise our aim of providing a more effective and enabling response to emotional pain and anguish: the Mental Health Act (MHA).

What’s wrong with the current MHA?

It is reasonable to propose that the MHA is a form of legalised discrimination that functions as a central generator for much that is awry in psychiatry. In a 21st century democratic society how can we justify a law that permits some of its citizens, who typically have committed no crime, to be incarcerated without trial (‘sectioned’) and to subsequently endure forced drug treatments? Clearly, this process infringes the fundamental tenet of Western democracies that a person is assumed innocent until guilt is established, as well as trampling over the sacred rights of any individual to decide whether or not to accept medical interventions. Even advance decisions – legally-binding instruments that allow all of us to formally highlight a specific treatment we do not wish to receive in the future should we lose the wherewithal to make our own choices – can be overridden by the ‘responsible clinician’ acting within the warped auspices of the MHA.

Since the 2007 revisions to the Mental Health Act, these coercive tentacles have extended beyond the walls of the psychiatric hospital. Community Treatment Orders (CTOs) allow patients who have been detained in hospital under particular sections to have restrictions applied to them upon discharge. Typically, their future freedom is made contingent upon their continuing to take psychotropic medication; non-compliance can lead to a forcible return to hospital. Furthermore, a wide-ranging review of the impact of CTOs concluded that these human-rights violations achieved no clinical benefits for those service users snared within them (1)

Coercion is on the increase

Statistical evidence indicates the deployment of coercion within mental health services is steadily increasing, year-on-year (2). At the end of the 2013/14 reporting period, 23,531 people in England and Wales were subjected to restricted freedoms under the MHA, a figure that represents a 6% rise on the previous year and a startling 32% increase compared to 2008/09, the year that CTOs were introduced.

‘Mental disorder’ and ‘high risk’: two dubious concepts

Measurement of the two fundamental criteria – the presence of a ‘mental disorder’ and significant risk – used to justify the deployment of compulsory treatment under the MHA are each riddled with weaknesses, particularly regarding their validity. Mental illness diagnoses have long been recognised as virtually meaningless, providing minimal information about the likely course of the problem or the interventions likely to be beneficial (3).

Risk in the mental health arena is perceived, and responded to, in an entirely different way as compared to the threats inherent in our society as a whole (4). Despite the recognition that mental health problems per se contribute very little to the overall level of violent crime (5), there seems to be underlying (and flawed) assumptions that our service users are inherently risky to others and that somehow professionals can accurately predict future risk, and intervene to prevent it, in a more effective way as compared to the risk posed by people outside the psychiatric system. Such distorted assumptions around risk are used to justify the discriminatory practices associated with the MHA. Pilgrim and Tomasini (4) pointedly highlight society’s double standards, arguing that, if risk reduction was the overarching determinant of government policy, a blanket weekend curfew would be imposed on all young adults – a draconian measure that would (unlike the MHA) markedly reduce the incidence of violent crime.

The perpetuation of stereotypes

Not only is the MHA blatantly discriminatory in denying people with mental health problems their fundamental rights of citizenship, but it also underpinned by the most pernicious stereotypes to afflict psychiatric service users. The implicit assumption about inflated risks to others (discussed above) gives weight to lurid tabloid headlines equating psychosis with gruesome murder and other violent crime. Furthermore, as the process to section someone requires no formal assessment of decision-making capacity, it colludes with the implicit notion that people identified with mental disorders must all be inherently defective, rendered incapable of making autonomous choices. Also, there are important negative consequences associated with the spurious view that mental health problems are caused by internal defects – the ‘illness like any other’ mantra – including increased stigma, hopelessness about recovery and overuse of medication (6).

And there are feasible alternatives to the MHA. For example, a ‘fusion law’ has been proposed (7) that is based solely on ‘capacity’ and ‘best interests’, with no specific reference to mental disorder. Importantly, under this amended legislation, any law-abiding citizen retaining the wherewithal to make his or her decisions would be immune to coercion.

Is rejection of the MHA a necessary precursor to meaningful change?

Is it realistic to expect radical change in the way we respond to human suffering while all professional mental health provision is obliged to operate within the discriminatory infrastructure of the MHA? Would progress in addressing prejudice and bigotry in other domains – for example around race, gender and sexuality – have been achieved without changes to statutory laws?

In the words of the inspirational Jacqui Dillon, ‘Fighting for the rights of people deemed mad, many who have already suffered more than enough, is the last great civil rights movement’ (8, p 156). But where are the collective screams of disapproval from mainstream psychiatric professionals, demanding radical revisions to the MHA? If they’re out there, I rarely hear them. Maybe the CMHNN, as the critical mouthpiece of the largest, and potentially most influential, professional grouping within the psychiatric system, might consider a radical revision of the MHA as a central goal?

References

  1. Churchill, R., Owen, G., Singh, S. & Hotopf, M. (2007). International Experience of Using Community Treatment Orders. Institute of Psychiatry: London.
  2. Health and Social Care Information Centre (2015). In-patients formally detained in hospitals under the Mental Health Act, 1983 and patients subject to supervised community treatment, Annual figures, England, 2013/14. http://www.hscic.gov.uk/searchcatalogue?productid=16329&q=title%3a%22Inpatients+formally+detained+in+hospitals+under+the+Mental+Health+Act%22+&sort=Most+recent&size=10&page=1#top
  3. Bentall, R.P. (2009). Doctoring the Mind: why psychiatric treatments fail, pp. 89 – 109. London, Penguin.
  4. Pilgrim, D. & Tomasini, F. (2013). Mental disorder and the socio-ethical challenge of reasonableness. In S. Coles, S. Keenan & B. Diamond (Eds.), Madness Contested: Power and Practice (pp 74 – 89). PCCS Books.
  5. Vinkers, D.J., De Beurs, E., Barendregt, M., Rinne, T. & Hoeck, H.W. (2012). Proportion of crimes attributable to mental disorders in the Netherlands. World Psychiatry, 11(2), 134.
  6. Sidley, G. (2015). Tales from the Madhouse: an insider critique of psychiatric services. PCCS Books.
  7. Szmukler, G. (2010). How mental health law discriminates unfairly against people with mental illness. http://www.gresham.ac.uk/lectures-and-events/how-mental- health-law-discriminates-unfairly-against-people-with-mental-illness
  8. Dillon, J. (2011). The personal is the political. In M. Rapley, J. Moncrieff & J. Dillon (Eds.), De-Medicalising Misery: Psychiatry, Psychology and the Human Condition (pp 141 – 57). Palgrave: Macmillan

 

9 thoughts on “The Mental Health Act: Legalised Discrimination

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  1. I agree absolutely with everything you have said Gary, its refreshing to hear a Psych Nurse make important and valid arguments for abolishing the MHA. When I worked in the system I rarely heard anyone say how draconian the MHA was, and what an awful thing to do to people who experience mental distress. It just seemed like everyone either turned a blind eye or a tsunami of cognitive dissonance brushed over so nobody felt comfortable enough in talking about it.

    Then theres the damage the MHA does to the Psych Nursing profession too who work on placement, and do their first jobs on psych wards. Ive written already a little bit about this before on this website.

    When I talk about radical changes to psychiatric system it always starts, first and foremost, with abolishing the MHA, like how can any other change ever make much difference if the MHA remains in place?. I never get Activism in MH unless it includes MHA as a point of fundamental change. It certainly is the last civil rights movement!

    I will look more closely at a ‘fusion law’ as an alternative to MHA.

    I support your calls Gary for CMHNN to have radical change of MHA as its central goal. That would be worthy of any MH manifesto!

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  2. Howard, thank you for reading and commenting. It’s reaffirming to hear we are on the same page with regards to the MHA.

    And I relish your phrase ‘a tsunami of cognitive dissonance’ as one explanation for the perplexing lack of a collective scream of outrage from mental health professionals.

    Just to clarify, I’m no longer a psychiatric nurse – 1987 being my last year in the nursing profession. I worked as a clinical psychologist until 2013 when I opted for early retirement from the NHS.

    Best wishes

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  3. Dear Gary

    We are mental health nursing students at BCU and your blog generated much discussion and debate amongst us. For some of us, it makes us wonder how we can reconcile the reasons we went into MH nursing in the first place with the realities of the “job”. Some of us certainly feel our moral and ethical principles being challenged. Your post certainly gave all of us something think about.

    From our discussion we came up with more questions and thought we would share these.

    1) What would a mental health system without “power” look like?

    2) What changes would need to occur to enable this to happen (aside from scrapping the MHA)?

    3) What can those of us, who agree with your points do either collectively, or as individuals to help bring about change?

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    1. Ollie (and colleagues) – thank you for reading my post and raising some intriguing questions. I’ll respond to each in turn.

      1. Power derives from a variety of sources: resource power (from controlling assets); position power (inherent to a formal role, such as ‘responsible clinician’); expert power (related to someone’s acknowledged expertise); and personal power (linked to a person’s charisma and personality). As such, I do not believe it is possible for any system comprised of a collective of people to be devoid of power, and some degree of power imbalance is inevitable.

      Nor do I believe that exercising power will always be a damaging process – sharing a personal story with someone in distress, or using one’s interpersonal skills to develop a trusting relationship could, for example, both be viewed as exercising power in a therapeutic way, as could the teaching of specific coping skills.

      Nevertheless, I believe it would be a worthy aim of mental health systems to strive to reduce the stark power differentials that currently exist.

      2. Power differentials could be attenuated in a number of ways, via actions across a range of levels within society. These could include: the abolition of the MHA, a legal framework that formally legitimises discrimination against a subset of our citizens; placing much less emphasis on ‘technological’ expertise (medical & psychological), that purportedly remedy internal deficits as a way of responding to human suffering; markedly expanding the role of peer-support networks and service-user run services, where hierarchies are minimised; and political/societal changes to counter homelessness, deprivation, unemployment, child abuse/neglect – perhaps given impetus by a government ‘Department of Well-being’.

      3. Based on the above-mentioned ways of minimising power differentials, each of us could try and promote change both by acting individually and as a collective. As individuals each of us could challenge abuses of power and coercion as and when we witness them: questioning multi-disciplinary team decisions to place someone on a Community Treatment Order; advocating for service users who are being pressured into ‘treatments’ (e.g. ECT or prolonged poly-pharmacy) without their full understanding of the pros and cons of these interventions; challenging managers, and clinical colleagues, when they default to the ‘expertise’ of consultant psychiatrists’ bio-medical model; maybe refusing to collude with a care programme that incorporates any of these coercive elements; lobbying our local MP to raise the issue of the discriminatory MHA in the House of Commons.

      Options for collective action might include: group approaches to professional/trade union organisations (e.g. RCN) urging them to campaign for the desired changes; and active participation in the embryonic organisations like the Critical Nurses Network to try and enable our concerns to be viewed as mainstream rather than emanating from some extreme, vocal minority.

      I hope my responses are helpful, although I suspect they will raise more questions as opposed to providing answers.

      Thanks again for your ongoing interest.

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  4. Hi Gary, We are a group of final year MH nurses at Birmingham City University. We agreed with much of what you wrote, particularly with regard to risk being massively overemphasized across England. We felt that Society in general found it uncomfortable to acknowledge unacceptable thoughts outside their comfort zones and associated those abstract thinkers with unjustified risk.
    We as a group felt Pilgrim and Tomasini’s argument was compelling but we wanted to ask what Gary thinks of the use of mental health act powers amongst forensic patients who have trials prior to being sectioned?
    We also felt that there is more to the story of predicting risk as we feel that by increasing our knowledge about service users and building a therapeutic relationship should improve predictions of risk beyond chance.
    We also felt that we as nurses do not see ourselves as not nasty custodians of the state and felt slightly upset when thinking of the unavoidable and unnatural barriers created by the MHA powers between ourselves and the clients.

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    1. Ernest and colleagues – thank you for reading my post and taking the time to share some interesting ideas.

      My views about the forensic arena might be considered by many as extreme, and I have, over the years, debated this very topic with a number of my respected colleagues. I believe that mental health problems, no matter how severe, should never be deployed to render an individual immune to prosecution. As part of respecting the rights of each service user, and promoting full citizenship, if a person has committed a crime that person should be prosecuted like anyone else. Not to do so would, in my opinion, collude with the paternalism of existing services as well as implying that there exists some internal, enduring defect that renders the individual immune to the laws of the land.

      After saying this, I do have faith in our legal system to take into account mitigating circumstances – they have a long history of making sensible decisions in this area – and to ensure that those individuals in need of support and help are directed to provision that will offer the opportunity to regain control of their mental health. (Of course, for this to be viable would require redistribution of funding so as to provide change opportunities across the range of custodial provision).

      As for your comment about the importance of the relationship to future risk, I totally agree. I believe a trusting, respectful, compassionate alliance with a service user will be more effective in minimising the likelihood of future self-harm than any comprehensive ‘risk management plan’.

      And I have no doubt that everyone who enters into one of the mental health professions does so with the worthy intention of helping people who are suffering distress and misery. Speaking personally, for many years I accepted the MHA as ‘the way it was’ and rarely gave it a second thought – perhaps in much the same way as people in bygone years condoned legalised discrimination against women, ethnic minorities and the gay and lesbian community. But as future practitioners within the largest (and potentially most influential) mental health profession, I believe you and your colleagues are ideally placed to contribute to the groundswell of change that is rapidly gaining momentum and which will, I hope, achieve a much more enabling and respectful societal response to human suffering.

      Thanks again for your interest.

      Liked by 1 person

  5. A wonderful and promising discourse….
    Relating to folk with different subjective experiences of themselves and their relativity and difficulty with the objective bias of ours, is the most challenging yet rewarding and meaningful endeavours of our time.
    In more primal cultures, such individuals have always been viewed as messengers and their messages vital for the ineluctable collective loss of soul.

    Like

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