On the 1st May 2018 the Independent Review of the Mental Health Act (England & Wales) published its interim report. As anticipated, it is shaping up to constitute a missed opportunity to dismantle our discriminatory mental health laws. Professor Simon Wessely (a former president of the Royal College of Psychiatry) and his team have produced a 60-page half-term report that achieves (what I assume to be) its overarching aim of appearing to be in the process of conducting a comprehensive review while ensuring that the cherished self-serving pseudoscience underpinning Western psychiatry remains untouched.
At first glance, hopes are raised for some important and meaningful changes. There is reference to a ‘greater focus on a rights-based approach’, an openness to learn from other jurisdictions such as Northern Ireland (who are implementing a comprehensive legal framework that does not discriminate against the ‘mentally disordered’), and acknowledgement of the need to reform Community Treatment Orders (where home-based patients are typically compelled to ingest psychotropic drugs under threat of further incarceration). There is even the expressed intention to revisit the concept of ‘risk’ – raising hope that psychiatry’s perverse approach to risk could change – along with lamenting about increased risk aversion among professionals and the need to support positive risk taking.
But, regrettably, when the report addresses the fundamental issue of self-determination, the rights of people with capacity to make their own decisions and for these decisions to be respected, it becomes clear that this Mental Health Act review will deliver no important changes.
What is urgently required is a legislative framework that incorporates all situations where a person might lose the wherewithal to make decisions, irrespective of the cause of this impairment. Such a framework would not require any specific reference to the dubious concept of ‘mental disorder’ and would manage people suffering emotional distress and overwhelm in the same way as anyone else, thereby removing the current discrimination and human-rights violations. To achieve this pivotal change would involve the development of a comprehensive law addressing involuntary treatment solely on the basis of ‘decision-making capacity’ and ‘best interests’, an aim that could be realised by some relatively minor revisions to the existing (and much more egalitarian) Mental Capacity Act (2005). Viable options that meet these requirements already exist, such as Szmuckler’s ‘Fusion Law’.
But Professor Wessely and his team are having none of this, as starkly illustrated in the body of the report:
‘Some people have expressed concerns that having separate mental health and capacity legislation is discriminatory. A broader question for consideration is whether the MCA and MHA should be ‘fused’ to remove this discrimination … … It is likely that, if only for practical reasons, we will be unlikely to be recommending ‘fusion’ between the MCA and MHA in the short term, but will be considering this as a longer-term option.’ (p24)
So after kicking the prospect of a non-discriminatory law into the long grass, the report delivers a rationale for this reticence that regurgitates traditional psychiatry’s long-held, self-serving belief that there is something inherently abnormal about ‘mentally ill’ people that necessitates curative biological treatments:
‘In certain circumstances, the MHA allows a person to be given mental health treatment against their will, whether or not they have capacity to consent to that treatment. There are only very limited exceptions. By contrast, an adult with mental capacity can refuse treatment for physical conditions even if that decision would be considered unwise by many’.
‘There are well-argued and coherent positions to support and challenge this distinction. It can be argued that it is discriminatory and should be ended, but also that the two situations are not identical or equivalent. We are concerned with the impact of unintended consequences that may result from fusing the mental health and capacity-based legislation. For example, there is a risk that a person with a mental disorder could be detained for a prolonged period of time without the possibility of treatment.’ (p27) (my emphases)
Further dubious (and discriminatory) assumptions are evident in the stance towards advance decisions. An advance decision is an instrument, originating from the Mental Capacity Act (2005), that allows a mentally competent adult to indicate (in a legally binding way) a particular treatment he or she does not wish to receive should the ability to make decisions be lost in the future. Presently, this empowering piece of legislation is corrupted by the Mental Health Act; if you are tagged with a ‘mental disorder’, these advance decisions can be over-ridden by the ‘responsible clinician’. The review team’s comments on this matter ooze with the arrogant paternalism so characteristic of traditional psychiatry:
‘Whilst we are minded to make improvements in this area, we will not lose sight of the problems that might arise from making any form of advance planning completely binding. As an example, the risk that service users may not receive appropriate care.’ (p29)
Clearly, in the world of Professor Wessely, doctor knows best.
So, as we await the full report in autumn of this year, we should brace ourselves to witness a missed opportunity to radically change our discriminatory mental health laws. Instead, I fear we will observe yet another example of the psychiatric establishment going through the motions of reform while ensuring that nothing of substance changes.
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