Szmukler, G.

Weich, S.

White Rose Research Online

Maudsley Debate: Has the Mental Health Act had its day?

MAUDSLEY DEBATEHas the Mental Health Act had its day?Unjust discrimination against people with mental ill health should be replaced with universal rulesbased on decision making ability, writes George Szmukler, but Scott Weich worries about legaldistractions that won’t improve outcomes while services are so thinly stretchedGeorge Szmukler emeritus professor of psychiatry and society 1, Scott Weich professor of mentalhealth 21Institute of Psychiatry, Psychology and Neuroscience, King’s College, London; 2School of Health and Related Research (ScHARR), University ofSheffieldYes—George SzmuklerPatients with a “mental disorder” in England and Wales can bedetained and treated against their will on legal grounds that areethically unacceptable. These grounds contribute to the shadowof coercion that hangs over the practice of psychiatry. Therelevant law remains fundamentally unchanged since the late18th century.1Two sets of rules exist for involuntary treatment—one forpsychiatry and one for the rest of medicine. In comparing them,the discrimination against people with a mental illness becomesobvious.2 3In non-psychiatric cases, the person’s ability (or capacity) tomake a decision about treatment is key to whether over-ridinga refusal can be justified.4 A refusal made with capacity isrespected no matter what the health outcome might be. Evenwhen capacity is lacking, an involuntary intervention is justifiedonly if it is deemed to be in the person’s “best interests.” Inassessing “best interests” the patient’s personal values, beliefs,and commitments have a powerful role.5Capacity and best interestsThese two considerations—capacity and best interests—havealmost no role in initiating involuntary treatment in psychiatry.Two entirely different criteria operate: firstly, the presence ofa “mental disorder,” largely undefined; secondly, a perceived“risk” to the person’s health or safety or of harm to others. Thus,autonomy (or the recognition of a right to self determination orto pursue personal goals and values) is not accorded the samerespect as among patients with a non-psychiatric diagnosis.In a pluralistic society such as ours, such attention to values ishugely important. The significant shift in medicine from“paternalism” to patient self determination over the past 50years has passed psychiatry by.1Furthermore, the protection of other people in the “risk” criterionmakes people with mental disorders uniquely liable to a formof preventive detention (albeit usually, or eventually, in hospital)on the basis of risk alone.2 3 They can be detained, unlike therest of us, without first having committed an offence (or withoutbeing strongly suspected of having done so) and despite the factthat only a tiny proportion of violent offenders have a mentalillness.6The blurred boundary of what constitutes a “mental disorder”may widen the net for involuntary detention to include somepeople who are deemed to pose a threat to social order. Justicerequires that all people posing an equal risk should be equallyliable to preventive detention.We have accepted such discrimination for so long because ofdeeply rooted, stigmatising stereotypes of people with mentalillness—that is, that they are incapable of exercising judgmentand that dangerousness is intrinsic to mental illness. Mentalhealth law is shaped by both assumptions.The blurred boundary of what constitutes a “mentaldisorder” may widen the net for involuntary detentionto include some people who are deemed to pose athreat to social orderCan we create a legal framework that is non-discriminatory?Indeed we can.3 7 Such a framework is based on decision makingability and best interests but also incorporates the regulation ofdetention and involuntary treatment with strong human rightsprotections. Robust assessments, with high agreement betweenassessors, can be made.8 A key point is that the law must begeneric: namely, that it applies to everyone who has a problemwith decision making, whether the diagnosis is physical orCorrespondence to: G Szmukler george.szmukler@kcl.ac.uk, S Weich s.weich@sheffield.ac.ukFor personal use only: See rights and reprints http://www.bmj.com/permissions Subscribe: http://www.bmj.com/subscribeBMJ 2017;359:j5248 doi: 10.1136/bmj.j5248 (Published 2017 November 16) Page 1 of 3Head to HeadHEAD TO HEADpsychiatric, and in any setting—medical, surgical, psychiatric,or in the community. A specific “mental health” law is notnecessary: the law should be formulated so as to applythroughout all medical specialties, from psychiatry toorthopaedics.Fusion law can workA “fusion law,”3 covering mental health and mental capacity,is an example of such a generic law that Northern Ireland is dueto implement in 2018. Fears that such a law will fail to protectthe public are unfounded.1 9The moral case for reforming mental health law is decisive. Thediscrimination such law entails can no longer be supported. Thesolution for eliminating this discrimination is a generic law.Northern Ireland has taken the groundbreaking step of enactingsuch a law10; we are sure to see more like it in the future.No—Scott WeichA world without compulsory mental health treatment is acommendable ambition. Psychiatrists are often accused ofpaternalism and coercion, and we know that compulsorytreatment stigmatises patients, causes rifts in social networks,and disrupts therapeutic alliances. Never having to “section”anyone would make our work immeasurably easier. But it wouldsubstantially disadvantage those most in need of help.It is unacceptable that more than 60 000 people were subject tothe Mental Health Act (MHA) in England last year11 and thatblack patients are three times more likely to be admittedcompulsorily than their white counterparts.12The United Nations has said that the United Kingdom, and allsignatories to the Convention of the Rights of Persons withDisabilities (CRPD), should repeal legislation authorisingcompulsory treatment in healthcare.13 The UK government hastherefore commissioned another costly review of the MHA.Instead of tackling the parlous state of mental health serviceswe’re about to embark on further protracted legalistic debate.What, then, of “fusion” legislation, which argues for compulsorytreatment only when decision making capacity is impaired,irrespective of cause? Sadly, it’s not CRPD-compliant. Legalminds will be challenged to find a way around the fundamentalCRPD principle that disability is a wholly social phenomenon,for which substituted decision making (in the best interests ofpeople incapable of making decisions for themselves) is neverpermissible.14 15Capacity based legislation seems great from a moral perspective:like parity of esteem and personal autonomy, it’s impossible toargue against equality under the law for people with physicaland mental illnesses.People in distress would go without helpSo, why don’t we abandon the MHA, as in Northern Ireland?Because it won’t obviate the need for compulsorytreatments—and won’t placate the UN as things stand. But,more importantly, lives would be lost, and more people indistress would go without help. It would mean contraveningother human rights, including the rights to health, liberty, justice,and life.15 The most vulnerable people would probably suffermost.The MHA allows for compulsory treatment based on evidenceof mental disorder plus risk. Restricting this to people judgedto lack capacity would inevitably mean some going withouttreatment, even when it would be in their best interest.Judgments about mental capacity are notoriously complicatedand variable. Assuming (or overestimating) capacity to makelife changing decisions poses tremendous risks.Mental and physical illnesses differ. Mental disorders in general,and several specific conditions such as schizophrenia and mania,commonly lead to impairments in decision making capacity.16Moreover, many patients approve of surrogate treatmentretrospectively.17The law is not the problem. Only properly resourced mentalhealth services can reduce rates of compulsion and assure decent,humane outcomes for patients and their families. Because UKservices are so thinly stretched, abandoning the MHA woulddiscriminate against people with mental illness by denying themcare.The act ensures that people get helpOne of the paradoxes of the MHA is that its application obligesservices to provide care.18 Only patients deemed most at riskcan access psychiatric beds. In other words, they get help onlybecause the MHA (that is, the law) demands that they gettreatment. Consequently, psychiatric wards are more disturbedthan ever. The number of patients detained after being admittedvoluntarily has increased by more than 15% per year recently,11and this year record numbers of mental health staff have reportedbeing assaulted.Psychiatric bed numbers inversely mirror compulsoryadmission rates, and reductions predict compulsoryadmission rates in the next yearThe determinants of compulsion in mental healthcare are moresocial than legal. From 2010 to 2015 NHS mental health budgetsfell by an estimated 8.25%, local authority social care budgetsfell 13.2%, and over 2000 psychiatric beds were closed.19Psychiatric bed numbers inversely mirror compulsory admissionrates, and reductions predict compulsory admission rates in thefollowing year.20And, although black patients are more likely to be assessed andadmitted compulsorily than white patients, there is no evidencethat ethnicity influences the outcome of MHA assessments.21We can’t divorce the law from its setting. Focusing on the MHAis looking too far downstream and is a dangerous distraction.Unless services are properly resourced, changing the law won’tmake things better for patients, and it might make them verymuch worse.The authors are taking part in the 56th Maudsley debate, “This housebelieves that fundamental reform of the Mental Health Act is requiredto reduce discrimination and unnecessary detention,” on 22 November2017 at King’s College, London.Competing interests (GS): I have read and understood BMJ policy ondeclaration of interests and have no relevant interests to declare.Competing interests: SW is an honorary consultant psychiatrist inSheffield Health and Social Care Trust, where he is also a universitynominated member of the council of governors. He is approved by thesecretary of state under S12 of the Mental Health Act and has completedmany medical assessments and made medical recommendations forcompulsory admission and treatment in this capacity. He currently actsas a responsible clinician for patients subject to community treatmentorders. He has undertaken research concerned with uses of the MentalHealth Act, funded by the National Institute for Health Research.Provenance and peer review: Commissioned; externally peer reviewed.1 Szmukler G. Men in white coats: treatment under coercion. Oxford University Press, 2017.For personal use only: See rights and reprints http://www.bmj.com/permissions Subscribe: http://www.bmj.com/subscribeBMJ 2017;359:j5248 doi: 10.1136/bmj.j5248 (Published 2017 November 16) Page 2 of 3HEAD TO HEAD2 Dawson J, Szmukler G. Fusion of mental health and incapacity legislation. Br J Psychiatry2006;359:504-9. doi:10.1192/bjp.188.6.504 pmid:16738339.3 Szmukler G, Daw R, Dawson J. A model law fusing incapacity and mental health legislation.J Mental Health Law 2010;359:11-24.4 HM Government. Mental Capacity Act 2005. https://www.legislation.gov.uk/ukpga/2005/9/pdfs/ukpga_20050009_en.pdf.5 Szmukler G. The UN Convention on the Rights of Persons with Disabilities: “rights, willand preferences” in relation to mental health disabilities. Int J Law and Psychiatry 2017.https://doi.org/10.1016/j.ijlp.2017.06.003.6 Flynn S, Rodway C, Appleby L, Shaw J. Serious violence by people with mental illness:national clinical survey. J Interpers Violence 2014;359:1438-58. doi:10.1177/0886260513507133 pmid:24309910.7 Szmukler G, Daw R, Dawson J. A model law fusing incapacity and mental health legislation:outline of the model law. J Mental Health Law 2010;359:101-26.8 Cairns R, Maddock C, Buchanan A, et al. Reliability of mental capacity assessments inpsychiatric in-patients. Br J Psychiatry 2005;359:372-8. doi:10.1192/bjp.187.4.372 pmid:16199798.9 Szmukler G, Daw R, Dawson J. A model law fusing incapacity and mental health legislation:response to the commentaries. J Mental Health Law 2010;359:91-100.10 Northern Ireland Assembly. Mental Capacity Act (Northern Ireland) 2016. www.legislation.gov.uk/nia/2016/18/pdfs/nia_20160018_en.pdf.11 Community and Mental Health Team. Inpatients formally detained in hospitals under theMental Health Act 1983, and patients subject to supervised community treatment. Usesof the Mental Health Act: annual statistics, 2015-16. 2016.12 Weich S, McBride O, Twigg L, et al. Variation in compulsory psychiatric inpatient admissionin England: a cross-classified, multilevel analysis. Lancet Psychiatry 2017;359:619-26.doi:10.1016/S2215-0366(17)30207-9 pmid:28647537.13 United Nations Commission for the Protection of Rights of Persons with Disabilities.Concluding observations on the initial report of the United Kingdom of Great Britain andNorthern Ireland (CRPD/C/GBR/CO/1). 2017.14 Bartlett P. The United Nations Convention on the Rights of Persons with Disabilities andMental Health Law. Mod Law Rev 2012;359:752-78doi:10.1111/j.1468-2230.2012.00923.x.15 Freeman MC, Kolappa K, de Almeida JM, et al. Reversing hard won victories in the nameof human rights: a critique of the General Comment on Article 12 of the UN Conventionon the Rights of Persons with Disabilities. Lancet Psychiatry 2015;359:844-50. doi:10.1016/S2215-0366(15)00218-7 pmid:26236004.16 Owen GS, Richardson G, David AS, Szmukler G, Hayward P, Hotopf M. Mental capacityto make decisions on treatment in people admitted to psychiatric hospitals: cross sectionalstudy. BMJ 2008;359:a448. doi:10.1136/bmj.39580.546597.BE pmid:18595931.17 Owen GS, David AS, Hayward P, Richardson G, Szmukler G, Hotopf M. Retrospectiveviews of psychiatric in-patients regaining mental capacity. Br J Psychiatry 2009;359:403-7.doi:10.1192/bjp.bp.109.065151 pmid:19880929.18 DeRidder R, Molodynski A, Manning C, McCusker P, Rugkåsa J. Community treatmentorders in the UK 5 years on: a repeat national survey of psychiatrists. BJPsych Bull2016;359:119-23. doi:10.1192/pb.bp.115.050773 pmid:27280030.19 Buchanan M. Mental health service budgets “cut by 8%.” BBC News 20 March 2015.www.bbc.co.uk/news/health-31970871.20 Keown P, Weich S, Bhui KS, Scott J. Association between provision of mental illnessbeds and rate of involuntary admissions in the NHS in England 1988-2008: ecologicalstudy. BMJ 2011;359:d3736. doi:10.1136/bmj.d3736 pmid:21729994.21 Singh SP, Burns T, Tyrer P, Islam Z, Parsons H, Crawford MJ. Ethnicity as a predictor ofdetention under the Mental Health Act. Psychol Med 2014;359:997-1004. doi:10.1017/S003329171300086X pmid:23795603.Published by the BMJ Publishing Group Limited. For permission to use (where not alreadygranted under a licence) please go to http://group.bmj.com/group/rights-licensing/permissionsFor personal use only: See rights and reprints http://www.bmj.com/permissions Subscribe: http://www.bmj.com/subscribeBMJ 2017;359:j5248 doi: 10.1136/bmj.j5248 (Published 2017 November 16) Page 3 of 3HEAD TO HEAD

George Szmukler

Scott Weich

Crossref

Has the Mental Health Act had its day?

https://eprints.whiterose.ac.uk/126392/1/Has%20the%20mental%20health%20act%20had%20its%20day.pdf

Maudsley Debate: Has the Mental Health Act had its day?

Abstract

Similar works

Full text

Available Versions

White Rose Research Online

White Rose Research Online

Crossref