Written evidence submitted by Professor George Szmukler, Emeritus Professor of Psychiatry and Society at King's College London (MHB0020)

The draft Mental Health Bill does not keep pace with recent legislation in Northern Ireland or what is likely to be proposed for Scotland, nor with international reforms, such as those in India and various states in Australia. The lack of a prominent role for decision-making capacity (DMC), which aims to give emphasis to the person’s autonomy (or self-determination or ‘will and preferences’) is disappointing.  It thus fails to respect the person’s right to refuse treatment (including admission to hospital) on an equal basis with all other patients who do not have a mental disorder diagnosis.  Parity between those with a mental disorder and those with a physical disorder is not supported. This difference in respect for autonomy perpetuates the discrimination based on deeply rooted, false and prejudicial stereotypes of people with a mental disorder - that they are incapable of making sound judgments, and that they are intrinsically dangerous to others - probably for another twenty years, until the next review of the legislation.  A ‘fusion law’ such as has been passed in Northern Ireland, or at least a movement in the direction of greater consistency with the Mental Capacity Act 2005 would be a major step forward.  Arguably, it would also move the law to a significant degree in the direction required by the UN Convention on the Rights of Persons with Disabilities (CRPD) by reducing the discrimination against people with mental disorders (or in the terms used in the CRPD, ‘psychosocial’ disabilities).

The absence of ‘principles’ on the face of the Bill is difficult to defend.  They play an important role in arriving at an interpretation of the Act and its application in complex situations that may arise.

On the positive side, the ‘clinical checklist’ (s56A) including regard to a person’s wishes, feelings, beliefs and values is welcome. This requirement may have a beneficial effect in bringing what is most important to the patient to the attention of mental health professionals, but its effects will depend on how it is exercised and eventually imbedded in practice. One hopes that it will lead clinicians to gain a better understanding of the beliefs, values, commitments, and concept of the ‘good’ of people from different cultures, together with an appreciation of the obstacles they face to their attainment (perhaps involving violations of their human rights).

Advance statements (or Advance Choice Documents) make an appearance, but do not have the prominence they deserve.  They represent an important means of ensuring that a patient’s deeply held beliefs and values (or will and preferences) can be made clear if in the future a relapse of their illness does not permit the person to express these at the time. Good research evidence suggests that advance statements may reduce compulsory admissions by around 25%.  There should be an obligation to offer all admitted patients on discharge (certainly those who were detained) the support to make an advance statement if they so wish.

There is some recognition of a role for decision-making capacity to make treatment decisions.  However, s57A looks totally at odds with the meaning of ‘capacity’ as it applies to all patients who do not have a diagnosis of a mental disorder; for them, a capacitous decision to refuse treatment is respected, no matter the seriousness of the consequences.  In s57A(4), in relation to detained patients, the proposed nature of a so-called ‘compelling reason’ for overriding a capacitous refusal bears no relationship to accepted meanings of the word ‘compelling’. It seems to be saying that if the responsible clinician and the second opinion appointed doctor (SOAD) agree that there is a treatment that is ‘appropriate’, then it can be given despite the patient’s refusal. I would have thought that if there is to be an override of a capacitous refusal of treatment, uniquely for persons with a mental disorder only, it would have to be where a fundamental human right is immediately threatened, such as the right to life or to be free of inhuman or degrading treatment.

The revised criteria for detention may be minimally more restrictive.  It is not clear whether the ‘therapeutic benefit’ criterion involves any requirement that attention be given to the person’s deeply held beliefs, values or commitments (as, for example in the s56A checklist).

The forensic provisions in the Bill make no attempt to address an important source of discrimination towards mentally disordered offenders – the fact that such persons may be deprived of their liberty under forensic sections of the MHA for periods far in excess of the usual prison sentence for a non-disordered offender who has committed the same offence with a similar degree of seriousness. If the duration of the order were to be commensurate with the ‘normal’ sentence for the offence, and the person were to meet the criteria for involuntary treatment at the expiration of the court order, then a civil order could be instituted. If there were reason to believe that a longer period of detention under the court order was necessary due to an offender’s dangerousness to others, then the same criteria employed for imposing extended sentences on ‘non-disordered’ offenders could apply.  Public safety could thus be secured in a non-discriminatory fashion.

There are major resource implications arising from the provisions in the Bill. Truly appropriate community services for autistic persons and those with intellectual disabilities will be critical.  Will there be enough psychiatrists able to act as SOADs?  Will there be enough manpower for more Tribunals?  Will the important needs for independent advocacy be met?

Setting a national objective to decrease coercive interventions by, say 10-15% per annum, might be a useful measure. This would require the collection of important data on their frequency across mental health services.  There is now consistent evidence that the number of coercive measures on inpatient units can be reduced significantly when there is a serious intention, exercised ‘top-down’ as well as ‘bottom-up’, to do so.  The Reducing Restrictive Practices programme in the UK has reported highly significant reductions – 60% or more in a substantial proportion of inpatient units - as have other approaches, such as ‘Safewards’ in other countries.

14 September 2022