Mental health detention powers must be reviewed urgently, says Parliamentary Committee – Lucy Series

14 August 2013 by Guest Contributor

The House of Commons Health Committee has published a report (PDF) following its inquiries into the Mental Health Act 2007.  The MHA 2007 introduced several amendments to the Mental Health Act 1983 (MHA, as amended), some of which were very controversial at the time and continue to be so now.  The Health Committee’s report follows post-legislative scrutiny of the legislation by its parent department. 

The Committee’s report was very focussed on the rights of mental health patients guaranteed by Article 5 ECHR and the MHA itself.  Those with an interest in mental health human rights will, however, notice that the radical challenge to detention and involuntary treatment under the MHA from the UN Convention on the Rights of Persons with Disabilities was absent from their discussion.

Rising numbers of detentions

The inquiry took place against a backdrop of rising numbers of people being detained under the MHA or subject to ‘community treatment orders’ (CTOs).  This was linked to growing bed shortages; the Committee heard that some wards were running at over 100% occupancy – a concern that has also been raised by the Care Quality Commission (CQC).  The Committee queried whether one factor behind the rising number of detentions was the introduction of a new ‘appropriate treatment’ test, which broadened the definition of which treatments a person may be detained to receive, and had been very controversial during the passage of the MHA 2007.  The Royal College of Psychiatrists, however, felt these changes had ‘very little impact on the practice of psychiatrists’.

Ironically, the Committee heard that one factor behind the growth in detention could be the bed shortages themselves, as ‘voluntary admissions to psychiatric wards are now so difficult to access that patients are being sectioned to secure treatment in hospital.’  The Committee condemned clinicians for resorting to this practice, and called for an urgent investigation by the Department of Health.

Community treatment orders

Another innovation of the MHA 2007 was Community Treatment Orders (CTOs), which allow clinicians to make orders requiring patients to comply with treatment in the community.  As the Committee highlighted, the Department of Health had hoped that CTOs would save the NHS millions of pounds by reducing detentions for treatment.

Although the pattern of which section of the MHA is used to detain people has changed since their introduction, CTOs have not quelled the rise in the overall number of people detained under the Act.  Noting recent research into CTOs which found no evidence of ‘any reduction in overall hospital admission to justify the significant curtailment of patients’ personal liberty’, the Committee recommended that the Department review their operation, but fell short of objecting to the principle of supervised community treatment.

Access to advocacy

One positive amendment of the MHA 2007 was the introduction of Independent Mental Health Advocates (IMHAs) to support people who are detained or subject to CTOs under the MHA.  The Committee agreed that IMHAs had improved the safeguards available to patients, but added that ‘Recognition of the success of IMHAs must be accompanied by a number of qualifications’.  In particular, they expressed concerns about variations in access to IMHA services, that (in contravention of the MHA) a significant proportion of patients were not being told about their right to advocacy.

The Committee heard evidence from researchers that ‘the more you needed an advocate, the more difficult it was to access them’ and recommended that ‘the IMHA service becomes an opt-out rather than an opt-in service’.  The Committee also recommended extending entitlement to an IMHA to cover voluntary mental health patients, not detained under the MHA.

Police powers of detention

Section 136 MHA gives the police powers to remove a person ‘who appears to him to be suffering from mental disorder and to be in immediate need of care or control’ from a public place and take them to a place of safety.  The MHA 2007 enabled police to take the person to hospital, which was considered a more appropriate environment.

The Committee heard evidence that only 1 in 5 people held under s136 were then detained by clinicians, and it recommended the Department of Health commission an independent assessment into the use of the power.  Having heard that around 300 children had been detained under s136 last year, the Committee also recommended that, ‘as a matter of urgency’, the Department of Health review the practice of detaining children under this power.

Disproportionate detention of black and minority ethnic groups

The Committee also heard that people from black and minority ethnic groups were disproportionately (2-13%) likely to be detained under the MHA.  This is a longstanding concern about the MHA, and there was no suggestion that this was altered by the MHA 2007.  Clinicians and the Department of Health argued that this could not be attributed to institutional racism in the mental health system, but felt it could be attributed to the impact on mental health of racism in society and ‘demographic characteristics’.

The Committee recommended effective commissioning of advocacy, commenting that ‘Helping Black patients to use and exploit their rights would be a small but important step in begin to address the disproportionate number of Black patients subject to the provisions of the Mental Health Act.’

The deprivation of liberty safeguards

The Committee’s fire was reserved for their comments on the Mental Capacity Act 2005 deprivation of liberty safeguards (DoLS).  The beleaguered DoLS have been extensively criticised since their inception and have become a byword for convoluted and costly, yet often ineffective, safeguards for a very vulnerable population.  In the House of Lords a Select Committee on the Mental Capacity Act 2005 has heard fierce criticism from experts about the framework, and the Equality and Human Rights Commission plans to set up an inquiry into the DoLS later this year.

The Health Committee heard evidence of ‘extreme’ variation in their application, and that care providers did not ‘know when they were exceeding the powers it gave them and would therefore need to apply for a DOLS authorisation’. There is no statutory definition of detention under the DoLS, and whilst its more ‘wholistic’ approach to Article 5 may be ‘richer’, this has led to confusion.  The Committee noted that:

People who suffer from lack of mental capacity are among the most vulnerable members of society and they are entitled to expect that their rights are properly and effectively protected. The fact is that despite fine words in legislation they are currently widely exposed to abuse because the controls which are supposed to protect them are woefully inadequate.

It called upon the Department of Health to initiate an urgent review of the DoLS, to be presented to Parliament within twelve months with an action plan for improvement.

Lucy Series is a Research Associate at the Centre for Disability Law and Policy at NUI Galway.  Lucy’s research focuses on legal capacity, community care and disability rights law.  She writes a blog called The Small Places.

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