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Fudges, evasion and blatant self-interest – a response to the review of the Mental Health Act

courtesy-of-winnond-at-freedigitalphotos-net

Last month (December 2018) saw the publication of the final report of the Independent Review of the Mental Health Act 1983. In an earlier blog, following the interim report, I’d suggested that the primary aim of Simon Wessely – senior psychiatrist and chairperson – was to give the impression of conducting a comprehensive review while ensuring that ‘the cherished self-serving pseudoscience underpinning Western psychiatry remained untouched’. Sadly, my prediction turned out to be an accurate one.

 

There are some positive proposals ensconced within the report’s 306 pages. There is acknowledgement of the pressing need for alternative, non-coercive crisis services together with the recognition of the unhelpful culture of risk aversion that pervades the psychiatric system – professionals are urged to ‘adopt positive/therapeutic risk-taking approaches’ that emphasise ‘personal safety rather than risk’ (p104). An extension of the advocacy system is also proposed, where each service user in crisis (whether informal or detained) has automatic access to the services of an advocate unless s/he opts out (p88). Another sensible suggestion is the acceptance that each detained service user should be able to choose the ‘nominated person’ rather than it defaulting to the ‘nearest relative’ (p83). In addition, there are worthy statements of intent to address the stark racial inequalities in the use of coercion within the psychiatric system (although it remains to be seen whether the ‘Organisational Competency Framework’ will effectively hold organisations to account for their discriminatory practices). And the recommended reductions in detention periods – for example, from six months to three months in the first instance for service users under a Section 3 (p116) – are a welcome step in the right direction. Unfortunately, however, the report’s collusion with the pseudo-science of biological psychiatry together with missed opportunities to meaningfully challenge the discriminatory nature of mental health law, will ensure the above-mentioned desirable recommendations will achieve no significant impact on the current psychiatric landscape.

 

Five major flaws in the report are apparent:

 

  1. Unhelpful language

Language is important. The words we use when describing emotional distress, and the desired responses to it, convey assumptions about the nature of human suffering. The report is littered with medicalised terms, such as ‘disorder’, ‘treatment’, ‘relapse’, ‘illness’ and diagnostic labels such as ‘schizophrenia’ – this, despite highlighting (a subheading, no less) the importance of seeing the ‘person as an individual’. Language such as this perpetuates the myth that human suffering is primarily caused by biological abnormalities.

 

 

  1. Professional protectionism

The reader of the report would not need to be told that the lead person for the review was a senior psychiatrist. While – in the real world – the pseudo-science of psychiatry is coming under increasing scrutiny, the report constitutes an essay in professional protectionism, an attempt to prolong the psychiatric fairy-tale.

 

In addition to the repeated use of medical terminology to imply that we are talking about valid biological illnesses (that require medical specialists – psychiatrists – to oversee treatment), there is the implicit, non-evidenced assumption running through the report that coercive psychiatric intervention is very effective, even life-saving. Thus, for example, we read, ‘We have heard from some who feel that they would refuse ECT even if that imperilled their life’ (p22). And, in an unconvincing attempt to explain why they will not address the human rights violations implicit to the Mental Health Act, the report states that fundamental changes to the legislation ‘would mean that it would no longer be possible to detain someone who is a very serious risk to themselves or other people’ (p59).

 

Furthermore, under the cover of the ‘parity of esteem’ mantra, the report perpetuates the illness-like-any-other nonsense by lamenting the radical difference between rates of coercion in physical health as compared to mental health, as if the numbers should be similar. This is, at best, disingenuous. In the general medical sphere, there is typically some specific biological abnormality that has been identified and the patient knows that the corresponding treatment is highly likely to be of benefit. By contrast, all psychiatry can offer are speculations about the presence of pseudo-illnesses and interventions that are often more damaging than effective. Is it any wonder that general hospital patients are more willing to cooperate?

 

The absence of any questioning of psychiatry’s core constructs is evident throughout the report. Despite recurrent references to the importance of seeing the person as an individual, there is no consideration of the lack of validity of diagnostic labels nor any discussion about the potential advantages of jettisoning the DSM categorisations. Also, the review regurgitates the assertion that, ‘You will only be detained if suffering from a mental disorder and there is a significant risk’ (p45) without any mention of the invalid and dubious nature of each of these two constructs that form the cornerstones of the sectioning process.

 

And then there are the all too familiar pleas for more of the same, to invest more resources in the discredited, but currently dominant, biomedical approach to human suffering. Thus the report urges ‘new capital investment by the government and NHS to modernise the mental health estate’ (an appeal at odds with its earlier recommendation for more alternatives for people in crises). There is even a main subheading providing a blatant plug for psychiatry, boldly broadcasting that, ‘Severe mental illness has been overlooked’ – professional protectionism in its crudest of forms.

 

 

  1. Perpetuating stigma

The report regurgitates the pervasive myth about the assumed link between ‘schizophrenia’ and violence by claiming that the risk of serious violence committed by those with ‘severe mental illness’ is slightly higher than the general population (p7). This sounds like another attempt by psychiatry to promote its fallacious and self-serving role as noble protector of the general public. A reduction in the level of violence within our society could be achieved much more effectively by focusing on alternative issues, such as alcohol misuse. By replicating the dubious ‘mental illness’ and violence  link, the report is fuelling discriminatory attitudes to psychiatric service users.

 

The biomedical and diagnostic language, used throughout the report, is also likely to encourage prejudice against people suffering emotional distress by implying that there is some primary biological abnormality underpinning these difficulties. Importantly, the Mental Health Act is an engine-room for these stigmatising internal-deficit ideas by making the assumption that anyone tagged with a ‘mental disorder’ will typically not have the capacity to make their own decisions. Curiously, the report recognises this ‘epistemic justice’ (p52) (where a patient’s treatment preferences are dismissed because a ‘mental health diagnosis suggests they are unable to think clearly or rationally about their options’) yet fails to offer any constructive solution to counter this inherent discrimination; this represents a missed opportunity.

 

 

  1. Failure to abolish Community Treatment Orders (CTOs)

The concept of the CTO emerged from the revisions made to the Mental Health Act in 2007. A CTO allows restrictions to be placed on previously-sectioned patients when they are discharged. Typically, their future freedom is made contingent upon their continuing to take psychiatric drugs; if they do not comply they can be forcibly returned to hospital. This legalisation of human rights violations  within a person’s home has, rightfully attracted increasing criticism. Furthermore, there is a lack of evidence that CTOs deliver any benefits for service users (1), their implementation achieving no positive impact on patient satisfaction, length of hospital stays nor on readmission rates.

 

Given the combination of gross human rights infringements and ineffectiveness, many viewed this review of the Mental Health Act as an opportunity to end the use of CTOs. But Wessely and his colleagues – remarkably – arrived at a different conclusion: ‘During the course of the Review we have become convinced that there are some service users for whom, despite our doubts, the CTO does play a constructive role. For these reasons we do not propose their abolition at this stage.’ The subsequent statement that CTOs are in ‘the last-chance saloon’, and will be jettisoned in five-years’ time if their use does not decrease, is of meagre consolation.

 

 

  1. Failure to make advance decisions binding

An advance decision is a mechanism that allows mentally competent adults to indicate a treatment they do not wish to receive if, in the future, they are rendered incapable of making their own decisions. As such, it offers people the power to curtail future service responses. Advance decisions are legally binding; professionals risk prosecution if they wilfully ignore these directives. Unfortunately, this enabling piece of legislation is corrupted by the Mental Health Act in that, if someone is being held under a section, the service user’s expressed wishes can be overridden by the ‘responsible clinician’ (in almost all instances, a psychiatrist).

 

This further example of discrimination against people labelled with a ‘mental disorder’ throws up a curious anomaly. Each of us can complete an advance decision regarding our physical health which would have to be respected by the clinical team even if it meant withholding life-saving intervention and our subsequent demise. Yet no one can construct an advance decision regarding a psychiatric treatment – such as a directive to not be administered a particular psychiatric drug – in the confidence that it will be obeyed. Surely, a major review of the Mental Health Act would put an end to this bizarre and indefensible dichotomy?

 

Sadly, no. All the review offers are fudges: a name change to ‘advance choice documents’ and the inclusion of a patient’s preferences as well as refusals; a stated expectation that it will be ‘harder to ignore’ advance refusals; and meaningless promises that such overriding of people’s wishes will only occur if ‘absolutely necessary’. In what situations would it be ok to force electro-convulsive therapy or a specific psychiatric drug on somebody who, while able to make informed decisions, has explicitly refused these options?

 

 

Fundamental question

There is one fundamental question that, if adequately addressed by the review, could have gone a long way to reducing the prejudice and discrimination routinely endured by those in receipt of psychiatric services: Why do we require separate, distinctive legislation for people with mental health problems? Put another way, why do we respond to the loss of decision-making capacity and emotional overwhelm differently for those people tagged as suffering ‘mental disorders’ as compared to other troubling or troubled people (such as those with learning difficulties, head injuries or drug intoxication)? We already have another legal framework – the Mental Capacity Act – that is non-discriminatory (applicable to all) and which determines the appropriateness of coercive state intervention purely on the basis of an individual’s decision-making capacity and ‘best interests’. Why do we need a parallel law?

 

As with much of the report, the reasons offered for not focusing on this fundamental issue are weak and unconvincing. After acknowledging that ‘there is a strong argument in principle that maintaining mental health and mental capacity laws can lead to discrimination for those with mental health problems’ (p214), it excludes the option of recommending a radical solution on the basis that the required legislative change would take too long. And then follows that up with a claim that assessments of decision-making capacity might not be sufficiently reliable to form a basis of care and treatment – conveniently ignoring the fact that the current reliance on identification of a ‘mental disorder’ and an estimation of ‘risk’ involves two dubious constructs (the former invalid and the latter a weak predictor of future behaviour).

 

But, I believe, we know the real reason why Wessely’s review side-stepped this fundamental question: an admission that there is no need for distinctive ‘mental health’ legislation would expose the pseudo-science that underpins Western psychiatry and would deliver a significant blow to the enduring psychiatric fairy tale of chemical imbalances and underlying ‘disorders’.

 

And we shouldn’t expect a turkey to vote for Christmas.

 

Photo courtesy of winnond at FreeDigitalPhotos.net

 

 

Reference

 

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

Experience of Using Community Treatment Orders. Institute of Psychiatry:

London.

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