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Mental health legislation: Are we on the cusp of radical change?

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There is a growing consensus that mental health legislation across the Western world is discriminatory and not fit for purpose. In England and Wales, the Mental Health Act (MHA – 1983, 2007), in keeping with other jurisdictions, rides roughshod over two basic human rights. Firstly, law-abiding citizens of any civilised society expect to be immune from incarceration, yet the MHA allows people deemed to be suffering from a ‘mental disorder’ and who have committed no crime to be forcibly confined to a psychiatric hospital – ‘sectioned’ – without recourse to a Court hearing. Secondly, a psychiatric patient under a section loses the fundamental freedom to make an informed decision as to whether or not to accept a medical intervention, typically enduring the non-consensual administration of toxic psychotropic drugs. [Further information about the discriminatory nature of the MHA can be found here and here].

Not only does the MHA fundamentally discriminate against those suffering emotional pain and overwhelm, but it also acts as an engine-room for much that is wrong with Western psychiatry. In not requiring any assessment of decision-making capacity prior to the sectioning process, the MHA implicitly assumes that anyone labelled as displaying a ‘mental disorder’ will not have the wherewithal to make their own choices. This mistaken presumption colludes with biological psychiatry’s enduring message that mental health problems are the direct consequence of brain abnormalities, a myth that promotes stigma and passivity, as well as stifling hope.

Encouragingly, there are signs that we might be on the cusp of witnessing radical change to our discriminatory mental health legislation. These positive indicators include:

1. The emergence of viable alternatives to the MHA, such as Szmukler’s ‘Fusion Law’ (Dawson & Szmukler, 2006; Szmukler et al., 2010), a proposal that offers one legislative framework governing non-consensual treatment applicable to both physical and mental health problems. Appropriately, under Fusion Law the justification for any coercion would require the demonstration of a lack of capacity to make autonomous decisions.

2. Expressions of political intent to change mental health law. For example, prior to the UK’s general election in June 2017, Theresa May (the Prime Minister) described ‘burning injustices’ resulting from ‘the discriminatory use of a law passed more than three decades ago’ (Savage, 2017). Furthermore, the subsequent Queen’s Speech retained the government’s intention to ‘reform mental health legislation’ (Queen’s Speech, 2017).

3. The Mental Health Alliance (a coalition of over 65 organisations) was formed 17 years ago and has continually highlighted concerns about the MHA.  More recently, this collective has campaigned for radical revision of the existing legislation, culminating in June 2017 in the publication of a document titled, A Mental Health Act fit for tomorrow: An agenda for reform.  Based on a survey of over 8000 stakeholders (a mixture of service users, carers and professionals) the document revealed a range of serious concerns including those related to human rights violations, the overuse of Community Treatment Disorders and the disregarding of advance decisions. The overarching conclusion was that the Government should conduct a ‘fundamental review’ of the MHA, a legal framework that was ‘not fit for purpose’.

4. The Five Year Forward View of Mental Health , published by the Mental Health Task Force in 2016, made a number of recommendations. Although – regrettably – many of these called for more-of-the-same traditional services, the report did urge the Department of Health to collaborate with stakeholders in a review of the MHA.

5. The United Nation’s Special Rapporteur for health  recently published its third annual report and, in June 2017, presented it to the United Nations. Within the document are the unequivocal conclusions that mental health laws infringe basic human rights, that all coercive practices should end and that the laws supporting them be changed.

6. The Mental Capacity Act (Northern Ireland), introduced in 2016, has provided a precedent that the remainder of the United Kingdom might usefully follow. In recognition of the human rights violations inherent to their existing mental health laws, Northern Ireland successfully developed a comprehensive legislative framework covering mental health, learning disability and physical health, thereby avoiding the requirement to rely on the dubious concepts of ‘mental disorder’ and ‘risk’ when considering restrictions on people’s freedoms. Furthermore, in doing so it constitutes one viable way of fusing mental health and mental capacity legislation.

In light of these ongoing pressures for change to mental health laws, there appears to be a basis for optimism that the legalised discrimination against people suffering emotional distress and overwhelm may end. What is, however, conspicuously missing from this clamour for reform is the collective voice of each core professional group (psychiatrists, psychologists, psychiatric nurses, social workers and occupational therapies). The potential reasons for this silence demands explanation and will be addressed in my next blogpost.

 

 

References

Dawson & Szmukler (2006) – Fusion of mental health & incapacity legislation. Retrieved 15th June 2017 from, http://bjp.rcpsych.org/content/188/6/504

Mental Health Act (1983). Retrieved 26th Nov 2017 from http://www.legislation.gov.uk/ukpga/1983/20/pdfs/ukpga_19830020_en.pdf

Mental Health Act (2007). Retrieved 26th Nov 2017 from http://www.legislation.gov.uk/ukpga/2007/12/pdfs/ukpga_20070012_en.pdf

Queen’s Speech (2017). Retrieved 30th June 2017 from, https://www.gov.uk/government/speeches/queens-speech-2017

Savage, M. (2017). Theresa May pledges mental health revolution will reduce detentions. The Observer, 7th May. https://www.theguardian.com/politics/2017/may/07/theresa-may-pledges-mental-health-revolution-will-reduce-detentions

Szmukler, G., Daw, R., & Dawson, J. (2010). 1. A model law fusing incapacity and mental health legislation & outline of the Model Law. 2. Response to the commentaries. Journal of Mental Health Law, Special Issue Ed 20, 11-24; 101-128.

 

Photo courtesy of Becris at FreeDigitalPhotos.net

One thought on “Mental health legislation: Are we on the cusp of radical change?

  1. Pingback: National Survivor User Network (NSUN) Bulletin – 28 August 2018 - Altering Images of Mentality

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