Is it Madness?

Professor Anselm Eldergill examines the government’s Mental Health Bill.

The government’s Mental Health Bill is currently before Parliament. It amends the Mental Health Act 1983, which is the Act of Parliament under which people are ‘sectioned’.

The Bill is the culmination of a process which the then Prime Minister Theresa May began in 2017 when she commissioned an independent review of the 1983 Act by a panel under Professor Simon Wessely. I chaired the Patient Safeguards and Mental Health Tribunals Working Group which formed part of that review.

The Prime Minister was concerned about how the existing legislation was being used, in particular ‘the rising rates of detention and the disproportionate number of people from black and minority ethnic backgrounds being detained under the Act’. England and Wales needed an Act which ensured that ‘people with mental health problems … are treated with dignity, and that their liberty and autonomy is respected as far as possible’.

It is embarrassing to have to admit that liberal reforms of mental health legislation — the 1959 and 1983 Mental Health Acts and the commissioning of this review — have been initiated by Conservative administrations. The Labour Party in government has tended to focus on structures and systems more than individual freedom, with unfortunate results.

The Bill is disappointingly limited in scope and ambition. It could and should have been a generational reform of our mental health laws. The current system is 66 years old, as old as the Lunacy Act 1890 was when it was replaced by the present framework in the 1950s. We needed a new Act. Eight years on, we have an amending Bill that preserves the framework and much of the old legislation.

Most damningly, the Department of Health and Social Care has either failed to see or to address the elephant in the room. When I started in practice, spending my time visiting the old asylums in the 1980s, the Mental Health Act 1983 was (with one tiny exception) the only mental health legislation under which an adult could be detained. Since 2009, it has been possible to detain people in hospitals and care homes under the Mental Capacity Act 2005 on the basis that this is in their ‘best interests'.

There are now just over fifty thousand new detentions under the Mental Health Act each year but over 300,000 deprivation of liberty applications under the Mental Capacity Act. The number of mental illness and learning disability hospital beds has diminished by 82,000 since 1987/88, from a level of 100,543. Conversely, the number of care home beds has increased by 95,000 since 1988, to around 458,000.

Care homes are the new long-stay wards and there are now far more people detained outside psychiatric hospitals than in them. A Bill was required that addressed this issue, with the aim of reducing rates of detention outside psychiatric units, and the complicated inter-relationship between the two Acts. A single, fused, statute was the order of the day.

The government’s reply might be that Parliament had already passed new legislation in 2019 which reformed the deprivation of liberty provisions in the Mental Capacity Act. That would be a misleading answer. The 2019 legislation has not been brought into efect, did not materially change the criteria for detention, is not notably simpler and did not address the serious shortcomings in how the Court of Protection deals with appeals. Furthermore, it bakes in the illegality of the current Mental Capacity Act scheme by permitting detention in care homes for many months without any legal order at all. That is the very approach that the European Court of Human Rights said was unlawful.

Returning to the Mental Health Act, the rate of involuntary hospitalisations under it has risen from 50 per 100,000 in 1988 to 94.8 per 100,000 men and 87.9 per 100,000 women.

Prime Minister May was right to be concerned, as we should be. Three of the hallmarks of a liberal democracy founded on the rule of law are individuality, autonomy and liberty. Society is made up of individuals, and each individual has distinctive feelings, personal goals, traits, habits and experiences. Variety is the essence of the human race, not a passing condition. Because this is so, most individuals wish to determine and develop their own interests and course in life; and the existence of a private sphere of action, free from public coercion or restraint, is indispensable to that minimum independence which everyone needs to develop as an individual.

These principles are equally important to people living with a mental illness or intellectual disability. They are worth defending. Those the law describes as ‘patients’ are individuals, no more and no less than any other individual. Individuals who sufer, who will certain ends for themselves and their loved ones and not others, who wish to develop, and to be happy and fulfilled.

Each is a citizen and a ‘member of the public’. That is, a person whose needs and interests the government exists to serve. A brother, sister, mother, father, possibly ourselves at some time in our lives. One recommendation of mine which the government rejected is that the word ‘patient’ in the 1983 Act should be replaced by ‘citizen’. Asking whether a ‘citizen’ should be detained puts them on an equal footing with other citizens.

Using ‘patient’ and phrases such as ‘protect the public’ places them in a separate silo and implies that they are not members of the public. Language is important to culture and this simple change could change how practitioners and tribunals think about and approach detention and compulsion decisions.

A hospital is not a prison but for the individual concerned both involve detention and a complete loss of that right most important to them, so that Byron's words — "Eternal spirit of the chainless Mind ! / Brightest in dungeons, Liberty ! thou art" — are often an apt description of the individual's predicament. All of us should be invested in ensuring that they get a fair deal and that their liberties and fundamental rights are protected, the more so given their vulnerability.

There are of course important issues of safety to consider. Everyone agrees that people must be protected against serious harm, whether that is self-harm or serious harm to others. However, the risks to other citizens are usually overstated. You are far more likely to be killed or harmed by the person sharing your bed tonight than you are by a stranger with a mental illness.

The enduring impression left after spending forty years visiting psychiatric wards is not one of fear or dangerousness, but of sufering and an often disarming kindness on the part of those who have lost their liberty. Although compelled to submit to the will of others, and forced to accept medication which, if mentally beneficial, may produce severe physical discomfort, most patients remain dignified and courteous, and retain the compassion to respond to the plight of others in a similarly unfortunate situation.

Diferent people have diferent levels of anxiety. As a result, trying to determine what is an acceptable risk, what constitutes adequate protection, and whether a particular system is ‘unsafe’ is partly subjective. Although there is a positive relationship between mental illness and violence, people with drug misuse or substance dependence disorders present the highest risk. Furthermore, variables such as male sex, young age and lower socio-economic status proportionately make a much higher contribution to violence in society than the modest amount attributable to mental illness. According to one study, people sufering from schizophrenia are one hundred times more likely to kill themselves than someone else, and those with a mood disorder one thousand times more likely.

The role legislation has to play in reducing the risk of serious harm is also over-stated. Implicit in any discussion about the need for new laws is the assumption that modifying their content modifies outcomes. However, the situation with psychiatric homicides is always this: Had the professionals foreseen what was about to happen, they already had ample powers under the present Act to intervene. That they did not intervene was due, not to any lack of legal powers, but to the fact that they did not know or foresee what was about to occur. Yet no amount of new legislation can improve foresight.

This leads on to the subject of assessments of risk, about which one must be realistic. The occurrence of psychiatric homicides and similar tragedies does not per se demonstrate any error of judgement on the part of those who decided that allowing the individual their liberty did not involve unacceptable risks. Any decision to detain an individual, or to compel them to have treatment, involves balancing competing risks, of which the risk that others may sufer physical harm is but one. For example, detention and compulsory treatment risk loss of employment, family contact, self-esteem and dignity; unnecessary or unjustified deprivation of liberty; institutionalisation and disabling side-efects.

All violence takes place in the present, and the past is a past, and so unreliable, guide to present and future events. Life is understood backwards but lived forwards. Small diferences in one key variable can result in vastly diferent behaviours and outcomes: just as a sudden change in the physical state of water into steam or ice occurs with the rise or fall of temperature beyond a critical level, so the addition of a small additional stress on an individual may have a profound efect on their mental state or behaviour. When I have chaired psychiatric homicide inquiries and presented my report, the first question from the press is always, ‘Can you guarantee that this will never happen again?’ My answer has to be that I can guarantee that it will happen again; no one would ask the police to guarantee that there will never be another homicide.

Good practice relies on good morale and a feeling amongst practitioners that they will be supported if they act reasonably; it is unjust to criticise them when decisions properly made have unfortunate, even catastrophic, consequences.

The government’s Bill does draw the criteria for detention and compulsion more tightly, the better to protect citizens with a learning disability or mental illness from unjustified interferences with their liberty, but not nearly enough.

My recommendation was that detention and compulsion should require the existence of a substantial or significant risk of serious harm to the citizen or others if the person is not detained. Ideally ‘substantial’ but ‘significant’ if Parliament was unwilling to go that far.

It is dificult to accept that a citizen who has not broken the law should forfeit their liberty unless the identified risk is substantial or significant. An insubstantial or insignificant risk of serious harm is insuficient, as is a substantial or significant risk of non-serious harm.

The criteria in the Bill incorporates a watered down ‘serious harm’ requirement. It sufices that serious harm ‘may’ be caused to the health of the ‘patient’ or the health of another person and that given the nature, degree and likelihood of the harm, the patient ‘ought to be’ detained.

The use of the words ‘may’, ‘nature’ and ‘ought to be’ give mental health professionals and tribunals a very broad discretion, one that is unlikely to be limiting. The new ‘least restrictive’ statutory principle of ‘minimising restrictions on liberty so far as consistent with patient wellbeing’ is frankly feeble.

The prior, unanswered question is of course whether, and if so to what extent, the grounds for compulsion in a statute actually fetter professional decision-making? Is the reality that doctors make their decisions on clinical or best interests grounds and then squeeze their decision into whatever legal framework is provided to them?

This is a particularly relevant question for people with a learning disability or autism. The Bill attempts to limit their detention in hospital to 28 days. However, the history of the 1983 Act suggests that in a significant number of cases doctors are likely to diagnose another concurrent ‘psychiatric disorder’ so that they can be detained for longer. Furthermore, it will be possible in most cases to detain them under the Mental Capacity Act scheme. That is another reason for a combined Act that covers all bases.

As is common these days, the Bill is littered with words and phrases such as ‘have regard to’ and ‘may’, and a raft of fundamentally inconsequential requirements for review meetings, registers and the like. These provisions are designed to give the impression that the government is listening and responding without requiring any expenditure. Activity rather than action is the order of the day here. As President Biden was fond of saying, ‘don’t tell me what you value; show me your budget and I’ll tell you what you value’.

It is, to put it mildly, disappointing that the current Bill does not contain any provisions that specifically address the over-representation of black citizens in the detained population, which was one of the terms of reference. The rates of detention for ‘Black or Black British’ citizens (343.5 detentions per 100,000) are over four times higher than the White group (74.7 per 100,000).

No doubt the statistics partly reflect economic and social disadvantage, which are prime causes of mental distress and serious mental and physical ill-health. The most deprived areas in the country have the highest rates of detention (160.7 detentions per 100,000). This is more than three and a half times higher than in the least deprived areas (43.5 detentions per 100,000).

Nevertheless, additional safeguards are called for to protect black citizens against arbitrariness and to restore confidence in psychiatric services. There is no single, easy answer. However, a system whereby detained black citizens are entitled to an additional medical recommendation from a ‘Black or Black British’ Commission-appointed doctor could be a valuable safeguard.

Even more worryingly, the rate of community treatment orders for ‘Black or Black British’ people in England (78.9 uses per 100,000) is over ten times the rate for the White group (7.8 uses per 100,000). These figures are all the more disturbing when one takes into account the fact that individuals subject to such orders are not considered to present such a significant risk to themselves or others that they require detention in hospital.

The disparity is so great that it is necessary to abolish community treatment orders. There can be no confidence they are being applied fairly. The use of guardianship should instead be promoted as a light touch protective alternative for people living in community settings.

The four protective pillars of the original Mental Health Act 1983 — how citizens were to be protected against unjustified detention or compulsion — were Mental Health Review Tribunals, a Mental Health Act Commission, the nearest relative and hospital managers. It is helpful to take each in turn.

The Mental Health Tribunal is the court that hears appeals against detention or compulsion under the Mental Health Act. The number of citizens subject to compulsion under the Mental Health Act 1983 on any given day reflects the usage made of the 1983 Act and the usage made by the tribunal of its powers to terminate compulsory powers. These two factors are inextricably linked.

Discharge rates have fallen markedly in recent years from around 20-25% in the mid- 1990s to around 6% (3% for community treatment orders). Tribunal judges sometimes try to explain this by saying that the ‘patient population’ is more disturbed today and the figures reflect the low number of hospital beds. You now have to be very ill to be admitted to hospital. That sounds plausible but is unlikely to be more than a small part of the explanation. Bed occupancy in the mid-1990s was running at 130% in many hospitals and people were often admitted to chairs. Furthermore, the rate of involuntary hospitalisations under the 1983 Act has almost doubled, not gone down as a result of fewer beds.

More likely factors include public disquiet and press criticism following well-publicised homicides and serious incidents, leading to defensive decision-making; Judicial Appointments Commission procedures and judicial culture; insuficient hospital beds and rehabilitation services; insuficient community alternatives to detention; inadequate legal representation following the decimation of legal aid; a misunderstanding of what ‘safeguarding’ involves; and the efect of legislative amendments.

It was disturbing that the tribunal’s representations to my working group proposed curtailing rather than expanding some of the legal rights of detained patients, and indeed placed less emphasis on individual liberty than did the system in place under the old 1959 Act.

The Bill’s tribunal reforms are both disappointing and disturbing. Tribunals retain the power to discharge compulsory orders but still have no power to transfer citizens to a less secure hospital or to grant them leave of absence. These relaxations of the regime are often necessary staging posts towards eventual discharge from compulsion. It is illogical that a tribunal can discharge a person from detention but not take steps short of this. Furthermore, the Bill fails to restore the Tribunal’s discretionary discharge power, which is now severely limited as the result of a wholly erroneous Upper Tribunal decision.

Worse still, in a Bill that is supposed to be a response to too much compulsion, tribunals are given a power in some cases to authorise deprivation of liberty in the community. Tribunals will come to be seen by some as part of the state apparatus that imposes compulsion rather than as a court that exists solely to review and terminate infringements of liberty that are not justified.

The nearest relative provisions in the 1983 Act were an important protective measure in tune with English traditions. The idea behind them was this: if your nearest relative — usually your spouse, partner or parent — was willing to care for you at home and no one was in danger then the state should not incarcerate you or interfere. It was only if the person was likely to behave in a manner dangerous to themselves or others that this could be blocked.

The Bill removes the nearest relative provisions, for essentially Kafkaesque equality reasons. Because some people are unbefriended and have no nearest relative, therefore the system is discriminatory, therefore no one should benefit from this important protection.

The nearest relative is replaced by a ridiculously complicated and bureaucratic ‘nominated person’ scheme which involves the citizen or a professional selecting the nominated person. Of course, you cannot give the nominated person all the powers of a nearest relative, otherwise detained citizens would simply nominate another patient on the ward who is willing to discharge them, and vice-versa. That being so, the Bill authorises an applicant, who usually will be a social worker, to override the nominated person’s objection in certain circumstances.

Turning next to the Mental Health Act Commission, it was abolished by a Labour government in 2007 and its functions transferred to a succession of ‘quality assurance’ super quangos, currently the rightly maligned Care Quality Commission.

The context can fairly be summarised as follows. The 1959 Act abolished the Board of Control. This came to be seen as a mistake and the 1983 Act established a Mental Health Act Commission. Broadly speaking, its functions were to visit psychiatric units in order to ensure compliance with the Act and to investigate complaints of ill-treatment or breaches of the Act. In the mid-2000s, Alan Milburn introduced a raft of quality- assurance quangos. This led to a backlash, a volte-face and a ‘bonfire of the quangos’. The MHAC was caught up in this and abolished in 2007, albeit it was long established and the one fulfilling an important legal function.

I campaigned against this, pointing out that vulnerable persons require strong legal safeguards to ensure that they are not ill-treated and their rights are protected. There is a diference between legal commissions and quality assurance quangos that monitor and drive forward government targets. Trying to combine them is like merging Boots and Halfords. They are diferent businesses. Why should ‘patients’ — that is members of the public — want their constitutional rights, their liberty and the use of force against them ‘joined up’ with the Government’s NHS modernisation and ‘quality assurance’ agenda?

Parliament’s Joint Committee on Human Rights accepted my submissions and the need to retain such a Commission, but the government forced through abolition. I wrote at the time that,

‘This is the most poisonous of all the proposals in the Bill. What will happen is what has always happened. As one small division within a super-Commission dedicated to monitoring compliance with the NHS programme, the constitutional imperative will be consumed by the larger political imperatives. When … budgets are set, ‘mental health legal money’ will compete with Ministerial performance-targets, and be diverted to the inspection of acute care …. Increased institutional abuse can be expected due to this lack of reasonable foresight. May none these sad marks eface, for they appeal from tyranny to God.’

That is indeed what has come to pass. Whereas one-third of the old Commission were legal members, the CQC now has no legal members. It supposedly performs the function of legislative compliance and legal safeguarding without legal expertise. This reflects the government’s other reason for abolishing the MHAC, which was that it had been critical of the government.

What we desperately need is a multi-disciplinary legally-led Mental Health and Human Rights Commission that is responsible for monitoring and ensuring compliance with the Mental Health Act, Mental Capacity Act and European Convention on Human Rights. It should be accountable to and funded by Parliament, not the Department of Health and Social Care, so as it ensure its independence from Ministerial pressure. It is easily done; indeed, I drafted the relevant sections.

Two aspects of detention that citizens most fear are the use of seclusion and the use of restraint. The Bill has nothing to say about either. The regulation and monitoring of these interventions should be the responsibility of the hospital managers and the new Commission.

The last pillar, hospital managers, perform valuable functions through co-opted independent managers. However, their focus needs to be on seclusion, restraint, investigating complaints and reporting allegations of ill-treatment or non-compliance with the law to the new Commission. They should be the local eyes and ears.

There are many other omissions that will be troubling to mental health lawyers and their clients. For example, the Bill does not simplify the unnecessarily complicated absence without leave provisions in sections 21-22; does not efectively address the substantial number of mentally ill people now in the prison system or their non-consensual treatment; and does not address the very obvious problems in the way the short-term powers are currently drafted.

The government has had eight years to produce a whole new Act that fully addresses the shortcomings of the current system. It was invited last year to set up an expert committee to do this, consisting of MHA practitioners and service users, instead of introducing the current Bill into Parliament. It declined to do so. The problems are mainly due to over- reliance on civil servants and academic input and insuficient practitioner input. The consequence is that a legal system that was deficient will remain deficient.

My experience of trying to assist mental health service users over forty years is that during this time there has been a move away from liberty and traditional constitutional values. These Bills are once in a generation events and we shall now have to wait another generation for necessary reforms. Pure madness.

Anselm Eldergill is a solicitor who until recently was a judge in the Court of Protection. He is an Honorary Professor of Mental Health and Mental Capacity Law at University College London. For many years he was President of both national mental health law associations.