Legalised discrimination? Is the Mental Health Act a fundamental impediment to developing better ways of responding to human suffering?

This is the second of the write-ups of the conference workshops from Birmingham in Sept 2015. We are very grateful to Gary Sidley for his continued support of the Network and for the strong leadership he has provided to think about the Mental Health Act. His session was very well attended. Please feel free to comment, ask further questions, etc. Gary will read the comments. 

We would especially be interested to hear from nurses and from service-users who are able to give examples of practice or describe opportunities which they feel would help us all consider the suggestion that nurses have an individual responsibility to challenge discriminatory practice, even if it is technically deemed lawful. If we can generate enough discussion about that, we may begin to identify specific areas which can become a focus for the Network, for campaigning etc. Please give it some thought.

For the powerpoint slides, please click on the following (downloads as separate document): Legalised Discrimination – Birmingham presentation. Please do not use this presentation in whole or in part without permission.

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Facilitator: Dr. Gary L. Sidley

The inspirational Jacqui Dillon – a prominent mental health activist – stated that ‘Fighting for the rights of people deemed mad, many of who have already suffered enough, is the last great civil rights movement’ (1). In support of this assertion, the central theme of the workshop was to consider whether the legal framework of the Mental Health Act (1983, 2007) feeds and maintains a number of fundamental flaws inherent to the current psychiatric system.

To stimulate thinking and discussion, Gary presented a few slides proposing three major problems with the Mental Health Act (MHA):

It infringes basic human rights

By sanctioning forcible incarceration without trial of people who have committed no crime, the MHA disregards a fundamental tenet of Western democracies that a person is assumed innocent until guilt is established. By legitimising preventative detention, it affords people with mental health problems the same legal status as suspected terrorists.

Also, by allowing the non-consensual administration of drugs the MHA tramples over the sacred right of any individual to decide whether or not to accept a medical intervention. And with the introduction of Community Treatment Orders in 2007, psychiatry’s coercive tentacles extended beyond the walls of the hospital, typically threatening another period of confinement unless the patient complies with the prescribed drug regime. Furthermore, these human-rights violations do not achieve any clinical benefits for those snared within them (2).

Advance decisions (3) allow all citizens to state, in a legally-binding way, which medical interventions they do not wish to receive should they lose the wherewithal to make their own decisions in the future. Alas, this refreshingly enabling piece of legislation is trumped by the MHA. The implications are bizarre: each of us could reliably prevent life-saving, emergency resuscitation in the future but could not forbid the forcible administration of a psychiatric drug.

Its central concepts – ‘mental disorder’ & ‘risk’ are dubious and unreliable

An assessment suggesting the presence of both a mental disorder and a high level of risk is sufficient to detain someone under the auspices of the MHA, yet each of these constructs is characterised by poor validity and reliability.

Mental illness diagnoses are virtually meaningless providing scant information about the course of a mental health problem or the interventions likely to be beneficial (4).  And even the most comprehensive of risk assessments (for suicide and violence) are only marginally better than guesswork and are unlikely to reduce the likelihood of high-profile incidents (5)(6)(7).

It reinforces unhelpful stereotypes

The MHA’s implicit assumptions about inflated risk to others perpetuates the ‘psycho-killer’ myth and colludes with sensationalist media headlines. Furthermore, the fact that sectioning requires no formal assessment of decision-making capacity implies that all people with mental health problems are inherently defective, an assumption that leads to more stigma, less proactivity, more hopelessness and overuse of medication (8).

Worryingly, coercion is increasing year on year. The number of people subjected to restricted freedoms under the auspices of the MHA has increased by 32% between 2008 and 2013 (9).

The workshop participants were asked to consider a number of questions:

Does the MHA constitute legalised discrimination?

Without exception, the expressed views of those present agreed that it does.

Is it feasible to radically improve the way we respond to human suffering while the MHA remains?

The most commonly expressed view was that, although the MHA represents an impediment to meaningful progress, it does not constitute an insurmountable barrier. The issue of risk in the psychiatric arena, and the distorted and unrealistic approach to it, was discussed at length.

Are there viable alternatives to the MHA?

Given the recent and protracted review of mental health law, culminating in revisions to the act in 2007, it will be a challenging task to persuade the government to undertake a further comprehensive review any time soon. Nevertheless, the argument that the rights of people with mental health problems should be decided solely on the basis of their behaviour and capacity to make their own decisions – just like everyone else – seems fair and difficult to refute.

It was suggested that the current Mental Capacity Act legislation could be adapted and extended to accommodate the needs of people experiencing acute distress and overwhelm. One attempt to do just that is the work of Szmukler, his ‘Fusion Law’ proposing that appropriateness of coercive treatment should be determined exclusively on the basis of capacity and ‘best interests’.

What practical steps could we take to achieve change in mental health law?

There was insufficient time to discuss this question in the workshop. In the full group discussion at the end of the day it was highlighted that a number of other organisations (MAD Studies Network, for example) are currently engaged in mental health activism highlighting the fundamentally discriminatory nature of the MHA; maybe ongoing collaboration between the CMHNN and some of these campaigning collectives might be productive.

My personal view is that each professional currently working within the psychiatric system has a moral responsibility to challenge the injustices they witness around their individual service users. In addition, the CMHNN might wish to seriously consider a ‘conscientious objection’ clause where psychiatric nurses can legitimately – and without fear of censor – opt out of colluding with such fundamentally discriminatory practice.

Gary L. Sidley

(September 2015)

References

  1. 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
  2. Churchill, R., Owen, G., Singh, S. & Hotopf, M. (2007). International 

            Experience of Using Community Treatment Orders. Institute of Psychiatry:

London.

  1. Sidley, G. (2012). Advance decisions in secondary mental health: what’s the problem? Nursing Standard 26, (21) 44 – 48.
  2. Bentall, R.P. (2009). Doctoring the Mind: why psychiatric treatments fail, pp. 89 – 109. London, Penguin.
  3. Szmukler, G. (2000). Homicide inquiries: What sense do they make? Psychiatric Bulletin, 24, 6 – 10.
  4. Witterman, C. (2004). Violent figures; risky stories. Advances in Psychiatric Treatment, 10, 275 – 76.
  5. Morgan, J. (2007). ‘Giving Up the Culture of Blame’. Risk assessment and risk management in psychiatric practice. London: Royal College of Psychiatrists.
  6. Sidley, G. (2015). Tales from the Madhouse: an insider critique of psychiatric services. PCCS Books.
  7. 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

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