Written evidence submitted by INForMHAA (The Interpreting for Mental Health Act Assessments project) (MHB0033)
The following responses are submitted by the INForMHAA research project, a study funded by the National Institute for Health and Care Research, School for Social Care Research (NIHCR (SSCR)) investigating the impact of interpreter mediation within formal Mental Health Act 1983 (MHA) assessments. The responses are from the perspective of the research project, not that of any individual members of the research group. This response is in line with the research project’s Knowledge Exchange, Information and Engagement plan which includes a commitment to contribute emerging evidence to policy and practice. We welcome the opportunity to be able to comment on the proposed standards and are able to provide evidence form our research into interpreter-mediated assessments. Website link here: INForMHAA
How the changes made by the draft Bill will work in practice, particularly alongside other pieces of legislation including the Mental Capacity Act? Might there be unintended consequences and, if so, how should those risks be mitigated?
For INForMHAA, a central point is that failure to provide access to communication in a person’s own language is discrimination on the grounds of origin-language and contrary to the Equality Act 2010.
We are also aware that other legislation should include accessibility Public Sector Equality Duty 2011 (anticipatory duty) and UK Government Accessibility Regulations 2018 https://accessibility.campaign.gov.uk/
We would like to see these issues of access and equity more firmly acknowledged within the Bill itself.
Regarding equality, accessibility and the rights of people with disabilities (as per Convention on the Rights of Persons with Disabilities (CPRD)), albeit we would term this as people with language needs (and not a disability per se), we are pleased to see the principles that are being suggested but note that these are to remain in the Code of Practice.
A key practice issue for us is not just the provision of interpreters or the acknowledgement of a duty to provide them but in reality how those involved in MHA assessments know how to work effectively with interpreters. Our research study is providing evidence in practice of what is actually required and what the consequences are for those assessed of inadequate or ineffective interpreting processes. These issues are also highly relevant to the Mental Capacity Act 2005 in its execution in practice.
To what extent is the approach of amending the existing Mental Health Act the right one? What are the advantages and disadvantages of approaches taken elsewhere in the UK?
No response
Does the draft Bill strike the right balance between increasing patient autonomy and ensuring the safety of patients and others? How is that balance likely to be applied in practice?
Our data show that at the point of assessment for detention, especially the build up to it, the interview and processes thereafter, practice varies when language needs are present. The regulatory monitoring of this matter is sporadic, no specific data is routinely collected by NHS digital, and our emerging findings suggest that good practice in the use of interpreters is intermittent, with for example, no specific requirement on educators to teach this skill as part of the competence framework for Approved Mental Health Professionals (AMHPs). We conceptualise this as effective working together between professionals involved in the assessment and interpreters which requires its own access to training and skills building. Simply making people aware of when an interpreter might be required and duty to provide one is not enough.
How far does the draft Bill deliver on the principles set out in the 2018 Independent Review? Does it reflect developments since? Is the Government right not to include the principles in the draft Bill?
INForMHAA would suggest principle based practice, as suggested by the reform, is fundamental to AMHP practice at the point of assessment (which is the focus of our study) and at other points throughout detention, whether formal or informal. Participation should include as a matter of course, explanation of the process in the assessed person’s own language, requiring effective practice through interpreters, which has to be taught and assessed. It cannot be assumed that just because an interpreter is present means that all communication by an AMHP becomes clear. INForMHAA recommends that diverse language needs require meeting through the provision of interpreters and also appropriately translated materials. (As an aside we would like to draw attention to the importance of being clear about the definition of an interpreter, rather than the usually incorrectly termed ‘translator’ and to be clear how translation differs from interpretation).
To what extent will the draft Bill reduce inequalities in people’s experiences of the Mental Health Act, especially those experienced by ethnic minority communities and in particular of black African and Caribbean heritage? What more could it do?
INForMHAA agrees that a reduction of inequalities in people’s experience is fundamental. We are concerned that no mention is made of language need. Cultural diversity and language diversity are not synonymous. It is our view that there is an invisibility throughout mental health services and also the current reforms and documentation surrounding them, to the significant barriers faced by those who are not fluent English users or who require interpreters to access services. The current and correct focus on cultural diversity and awareness is in fact covering this up because people erroneously assume that cultural sensitivity will include where required linguistic sensitivity and provision. This is just not the case. Documents surrounding the reforms to the MHA including the draft mental health bill, demonstrate this clearly.
INForMHAA would suggest that cultural identity fundamentally includes linguistic identity. Consequently any barriers to direct communication in a shared language will impede cultural understanding too and consequently the rights of the assessed person.
What more could the draft Bill do to reduce the impact of financial inequalities in people's experiences of the Mental Health Act?
No response
What are your views on the changes to how the Act applies to autistic people and those with learning disabilities?
No response
To what extent will the draft Bill achieve its aims of reducing detention, avoiding detention in inappropriate settings and reducing the number of Community Treatment Orders?
INforMHAA is concerned that support in any setting but especially during the processes that might lead to deprivation of liberty are more effective and correct where communication is appropriate. For people whose first language may not be English there needs therefore to be a stronger regulatory emphasis on such needs. Relevant to reducing detention and number of community treatment orders is also the specific issue of continuity of language access. We have plenty of examples of patients being provided with some linguistic access at one point of the process of assessment but not the other e.g. during an interview but not on arrival at the place of detention. Similarly we suspect, but do not yet have clear enough evidence, that there may be a reluctance to consider community treatment orders in the first place because the substantial interpreting requirements that may be required for such treatment to occur outside of the hospital setting with regularity.
What do you think the impact of the proposals will be on the workforce within community mental health services and multidisciplinary working practices both in inpatient and community services?
We are particularly keen to suggest that language and communication is key to an effective workforce and curricula to improve uptake and effectiveness for all students in interpreter-mediated interaction – whether signed or spoken language - associated with Mental Health Act assessments is fundamental. Our current NIHCR SSCR funded work will produce training materials to this effect in partnership with AMHP training providers amongst other stakeholders and has wider application.
We fully support that their health and wellbeing is a key consideration especially for those in the workforce who may have a disability. We do not view language needs as a disability but is a need that some workers may have and should be fore fronted. For example, qualified social workers, or indeed other professionals who are Deaf, British Sign Language users will have additional rights and requirements in order to fulfil their role that need to be fully understood and met, especially in light of the recent passing of the British Sign Language Act 2022.
What changes and additional support do you think will be needed to help professionals and the third sector implement the proposals effectively? Will additional staffing and resources be required?
No response
How far will the draft Bill allow patients to have a greater say in their care, with access to appropriate support and avenues for appeal?
Professional aspects of practice are integral to assessments, INForMHAA again suggests that practice with people with lived experience concerning their use of languages other than spoken English and when interpreters are required needs to be central and especially so at a time of crisis including being assessed under mental health legislation. Although some materials exist to support patients to understand their avenues of appeal in languages other than English these are difficult to discover and usually take the form of translated information without for example cultural mediation that may be additionally required to fully understand the implications and rights of such information. The routine lack of acknowledgement of these issues in formal guidance is of concern.
What do you think of the proposed replacement of “nearest relative” with “nominated persons”? Do the proposals provide appropriate support for patients, families and nominated people?
Echoing our recommendation that communication is key, we suggest that consideration of this need also applies to nominated persons and families. information should also be made available in other formats.
We support the recommendation of nominate persons in place of nearest relative but would suggest that care needs to be taken in the guidance surrounding this to address very clearly that nominated person will not encompass any formal duties regarding interpreting and translation. There is widespread practice of relatives and friends being used by professionals and services as interpreters if it is difficult to obtain a professional interpreter. If the nominated person also takes on informal interpreting roles this could seriously affect the rights of the individual being assessed and also is clearly inappropriate practice from a professional perspective. We would suggest such cautions needs to be acknowledged within any guidance accompanying such changes.
To what extent is the Government right in the way it has approached people taking advance decisions about their care?
No response
What impact will the draft Bill have on children, young people and their families? Does it take sufficient account of the existing legal framework covering children and young people?
No response
To what extent are the proposals to allow for conditional discharge that amounts to a deprivation of liberty workable and lawful?
No response
What are your views on the proposed changes in the draft Bill concerning those who encounter the Mental Health Act through the criminal justice system? Will they see a change in the number of people being treated in those settings?
No response
Are there any additions you would like to see to the draft Bill?
Communication AND language is at the heart of effective professional relationships in social work and is the means of informing, supporting and listening to people. The INForMHAA project is driven by this principle and seeks practice, accordingly, underpinned by legislation. Information should always be given in a form, language, and manner that people can understand. It is important that legislation echoes these considerations around communication and are of particular concern when a person is in crisis. Our research endorses that key skills in communication take all factors into account in both the doing of any intervention and in its recording, The mental health workforce can experience a loss of confidence in their communication skills when using an interpreter and experience less direct access to the communication of the person who is being assessed. This therefore is a complex consideration that requires particular focus in the legislation. We note that no British Sign Language was available for this consultation. This will soon be unlawful in itself under the provisions of the British Sign Language Act 2022.
We suggest that the reforms imply only the impact on those people who have needs based on language and appropriate communication. Given that the fundamental role of the workforce, including AMHPs at the point of assessment is to interview in a suitable manner, in essence such communication is fundamental to the broader process of decision-making. We would like the proposed draft Bill actively considers this and should seek to ascertain a clear understanding that cultural diversity and language diversity are not synonymous. Attention to cultural needs is not in all cases attention to linguistic requirements.
The welcome reforms to the Mental Health Act and draft Bill have quite rightly paid attention to the disproportionate outcomes/detentions experienced by some cultural groups. Almost no attention whatsoever has been paid to potential inequalities in outcomes concerning those who undergo assessment with an interpreter. The INForMHAA project (NIHCR SSCR funded) on whose behalf this contribution to the consultation is being made is seeking to provide the first evidence base on that. Much more research is needed to understand this issue and to fund translational research that makes a real difference in practice for this overlooked group. Such research requires cross disciplinary experience in mental health roles, and interpreting/translation as our project has done. The summary report (House of Commons Library) suggests that there have been calls for investment in community social care mental health services and the mental health workforce. INForMHAA suggests that interpreter-mediation is key to this investment.
16 September 2022