Transcription
Welcome to this event celebrating 180 years since the foundation of the first predecessor organization of the Royal College of Psychiatrists. Our subject today is mental health and the law, from question to patient voice. And we have two masters of the subject.
The first speaker would be Dr. Tony Ziegman, former Vice President of the Royal College of Psychiatrists and Mental Health Law Lead of the College at the time. Steve Gildberg is an expert by experience and anti-racism consultant and the Vice President of the Independent Mental Health Act Review Commission.
Before I let them get on, I would like to introduce you to a book that I have recently co-edited with my colleague Professor Nick Burras. Fortunately, my slides don't seem to be turning. Can someone help me turn the slides, please?
Ah, there we are. Thank you. So, the book is called Mind, State, and Society. It is available free, open access, from the Cambridge University Press website, and as you can see in the blue button in the middle, you can download it all at no cost, or you can download PDFs chapter by chapter, or read on your computer in HTML. And what we have tried, the questions we had in our mind in this edited book with 40 chapters, is to answer questions like: What happened to people's mental health between 1960 and 2010? And over the same period, what was it like to receive mental health services? How was it to work in or lead clinical care? How do these relate to the social context? We try to make it different to another book that is written by psychiatrists. Ours is partly written by psychiatrists, which is about what psychiatrists wanted and thought they were doing. We wanted to find out what actually happened.
The reason why I bring it to your attention is because there are a number of chapters that bear immediately on our subject today. Joanna Burke, the distinguished historian, gives a magisterial review of developments in mental health during the period. We have a publication of a witness seminar where people that had been to mental hospitals, only one patient, I'm afraid, but others worked within them, shared their memories. A chapter on scandals in the 60s and 70s in mental hospitals. The second part that looks at change, we look at mental health law, where one of the authors is Larry Kostin, who was someone that was a key player in changes in the mental health law. We have contributions from users, Professor Peter Beresford and Liz Rosner, giving their perspective. And we have a chapter on how the voice of people with mental health problems, families, and the voluntary sector changed the landscape. When it comes to implications in practice, it's not narrowly mental health law, but drugs and drug harms and laws are relevant. And then we have a very original chapter on dangerous and severe personality disorder. Peter Tyron managed to get access to Jack Straw amongst other people and get some information from here. And Pamela Taylor and John Gunn are mentally disordered offenders. So, it's free. I don't get any royalties when you access it free, as I suspect most people will. And I will move on, uh, straight away to, uh, give the ground to Tony Ziegman to speak. Tony, I look forward to listening to you. Please go ahead.
Thank you, George. Well, good afternoon, everyone. 200 years of mental health acts in 20 minutes. I'm speaking from what was the water tower of a mental hospital opened in 1888. I've given you a window view in lieu of PowerPoint. Now, first, an apology. I'm confining my talk to statute law in England and Wales. I'm excluding common law because of time, the jurisdictions other than England and Wales because of my ignorance. And while I've used many sources, I must specifically reference Kathleen Jones's wonderful book, The History of Mental Health Services.
There are two possible ways in which patient autonomy may be enhanced by the law. The law may require us to do as the patient requests, or desist from doing that which the patient declines. Mental health acts through the ages have done neither, actually. I was initially asked to talk about how mental health acts over the years have given voice to patients. I pointed out that I have nothing to say because they haven't. However, the law may sort of increase patient autonomy just by excluding some patients from its scope. This has been tried many times, as I shall describe, and I'll leave you to assess the impact of these attempts.
So, where were we in mental health act terms in 1841, when those asylum doctors had their first meeting? We had the Vagrancy Act of 1714, which included the provision on the order of a magistrate to lock up people who were furiously and dangerously mad. Not that the act had to be used. Actually, any person who could afford it might have another put away, as described in an article in The Gentleman's Magazine in 1763. "When a person is forcibly taken or artfully deployed into a private madhouse, he is instantly seized upon by a set of inhuman ruffians, strip naked, and conveyed to a dark moon." If you complained, because this was just taking us further evidence of mental illness and the need for estranged, and so in 1774, we had an act for the regulation of private madhouses, and certification was introduced. The first attempt to limit the scope for confining and forcibly treating people on grounds of mental ill health. It's only for private patients, covering neither poor patients nor those held singly, who could continue to be locked up for any reason or none. The certification did not require much detail. Indeed, an act had to be passed in 1819, requiring the certifying doctor to at least state that the patient was mentally ill, a lunatic, and not merely that she or he had refused the recommended treatment. Despite this, the vast majority of people admitted to and kept in the silence were there just because a family member or the state thought it a good plan.
Two concerns were expressed. First, at least for private patients, with stigma. This was written in The Spectator in 1839, and I quote: "A lunatic in law language is civilized. He suffers an imputation which operates with all the force of a bible. A party detained on a charge of insanity may be acquitted and restored to liberty, but we all know that this is a question of such a nature that it cannot even be raised without attaching suspicion ever after to the individual to whom it relates." Actually, this wasn't thought a problem if you were mentally ill, only if you weren't. And in an attempt to stop people who were not mentally ill from being incarcerated in mental hospitals, a man by the name of James Luke Hansard, and for those of you who recognize his surname, he was the son of the first Princess of Parliament, he formed in 1845 the Alleged Lunatics' Friend Society for the protection of the British subject from unjust confinement on the grounds of mental derangement.
The second issue, more relevant in relation to paupers, was cost. Ratepayers were not happy. The number of patients in the silence was rising out of all control. In 1850, roughly 7,000 in asylums. By 1890, 53,000, a nearly eight-fold increase over 40 years. National concerns were expressed in a leader in The Times from 1877. "If lunacy continues to increase as at present, the insane will, being in the majority, freeing themselves, put the same into the asylums." I'm not saying there was no concern about what happened to patients once admitted. The Commissioners in Lunacy were appointed as inspectors around the issue of standards of care, but in terms of listening to patients, the only real point of issue was: were you a lunatic or weren't you?
And so we come to the 1890 Lunacy Act. I have a copy here. Its central purpose was to stop people being dumped in the silence for no good reason, apart from the bathroom. A hospital with many powerful friends, and later from its inception, the Lordsley. The 1890 Act stopped all mental hospitals from accepting for admission any patient unless they had at least one medical certificate, two for private patients, confirming that the patient was mentally ill and required detention in hospital. Informal admission was bound. Certificates had to state the grounds upon which the doctor had formed his opinion. The doctor had to distinguish that which had been told from that which he should see for himself, having personally examined the patient within the previous seven days, and he could not certify solely on the basis of what he was told. Neither doctor could be related to the other, or to the patient or applicant, or have any financial interest in the admission. Where practicable, one certificate had to be signed by the patient's usual medical attendant, and if that wasn't possible, the applicant had to record why not. Doctors had 14 days in which to correct any errors. The applicant was a relative, one could call them the nearest relative for private patients, and for poor patients, it was a person from the poor law authority. There, I call them an approved mental health professional. The applicant could discharge the patient, giving seven days' notice, although this could be overwritten by the medical officer on grounds that the patient was "dangerous and unfit to be at large." The act introduced protection for doctors and other staff against vexatious claims, so long as we've been acting in good faith. Another very important addition is time limits, that is, the patient will be discharged after a defined period unless the detention was positively renewed. As you will have gathered, most of the provisions for detention in our covered mental health act come from the 1890 Act. The documentation in 1890 was then signed by a magistrate. I just mentioned that the 1890 Act required that all patients be seen by a doctor at a frequency to be determined by the Commissioners, but at least once every two weeks, and it was made an offense to hide patients from Commissioners. Not all psychiatrists approved. In an article in The Journal of Mental Science, the predecessor of the British Journal of Psychiatry, eight years after the 1890 Act came into force, the psychiatrist wrote, and I quote: "The public should be clearly instructed that the annually recurring and possibly increasing horrors from the crimes of lunatics at large is the price it pays for protection from an illusory danger to the liberty of the subject." I have to ask, with those for bears of ours, right, is the danger to the liberty of the patient illusory? In terms of stopping patients being admitted, the 1890 Act had no effect. You will remember, 1890, 53,000 in asylums. Ten years later, it was 74,000, and it was 120,000 by the time of the next law, the Mental Treatment Act of 1930.
This act resulted from the report of the Royal Commission, which had been established four years previously. It's worth noting, in relation to the patient's voice, that there were no patients or ex-patients as members of that commission, nor indeed any psychiatrists. There were two senior doctors, including the President of the Royal College of Physicians, but the majority were lawyers. The National Society for Lunacy Reform arranged for a number of ex-patients to give evidence. The commission said that this led, and I quote, "to an atmosphere of recrimination and controversy." They went on, "We do not find that the evidence received from this source made any constructive contribution to the main purpose of our inquiry."
One obvious change in the 1930 Act is language. Following a recommendation first made by the Medical Psychological Association in 1918, lunatic, insane, and asylum became patient, unsound mind, and hospital. As the commission said, "The idea persists of a mental institution as a place where people are confined against their will. But if the asylum is regarded as it ought to be, not as a place of detention, but as a hospital, the whole outlook has changed." I wonder if they were right then, or now.
The most important feature of the 1930 Act was that certification was not required either for voluntary or temporary admission. Voluntary meant on the patient's written request. Temporary meant if the patient was deemed likely to benefit, even though unable at the time to express themselves as willing or unwilling to receive treatment. That is, they lacked capacity. For those who did require certification, a magistrate's signature was still required because, and I quote, "it is a principle of English law that the liberty of the subject may not be infringed without the intervention of some judicial authority." It's interesting why the commission decided to remove the need for certification not only for capacitous, consenting patients, but also for those who lacked capacity but were thought treatable. The problem with certification, they said, was that it required symptoms to be severe enough to meet the criteria for certification. By removing this requirement, patients could be admitted earlier, while their symptoms were still mild, improving the prospect for cure. Were they right or wrong? I wonder, what is the impact of raising that bar?
I just mentioned that the 1930 Act also introduced the role of an approved medical practitioner, approved by the mental hospitals regulator, if the patient's usual doctor wasn't available. The 1890 Act committed any doctor to sign the certificate. The 1930 Act required an approved doctor to do it. So, and the 1930 Act reduced the length of each detention period before renewal was required.
Before moving on to the next act, the UK became a signatory to, indeed largely wrote, a treaty which has become very important both in relation to legislation and court judgments. I'm referring, of course, to the European Convention on Human Rights, which came into force in 1953, coincidentally the same year as I arrived. Its impact was rather slow burn until 1998, when it was given a more starring role by its incorporation in domestic law with the passing of the Human Rights Act. But it isn't mental health legislation, so I shall move on to the 1959 Act.
It was the result of the Royal Commission chaired by Lord Pearson, seen as far-reaching because it removed the need for a magistrate's signature for detention. The move from legal to medical certification was complete. Lawyers considered this a massive legal step. From a practical point of view, and I worked under the '59 Act, I think it did something more important. It removed the need for the patient to consent to informal admission. Only patients who actively objected to admission needed to be formally detained. Those who were compliant were to be admitted informally. The commission's view was that the care and treatment of the mentally ill was a matter for doctors and nurses, and really very little to do with lawyers. Having said that, the '59 Act did establish the current tribunal system for appeals, although the onus was on the patient to prove that they were sane rather than on the hospital to show the patient was of unsound mind. It also established hospital orders. Oh, and the 1959 Act reduced the length of each detention period before renewal was required.
I've just returned to hospital orders for a moment because I think they're a good example of one of the issues relating to listening to what patients want. When is a mental health act commissioner? I interviewed patients transferred from prison to one of the secure hospitals. They invariably wished to return to prison. This was partly because of the stigma associated with hospital transfer, partly because they had more likes and freedoms in prison than hospital, but mainly because they knew when they'd been released from prison. All factually correct concerns for patients, yet they are kept against their will in hospital. An example of the mental health act giving medical treatment priority over capacitous patients' wishes. Maybe benign, maybe in the patient's best medical interest, but not accepting the decision of a person who retains decision-making capacity.
And on to the '83 Act. Does it require us to listen to what patients want? It may, perhaps. Significant changes. For the first time, there were explicit safeguards in relation to some treatments by the introduction of the second opinion doctor requirements. Critics would suggest that PSOads are no more likely to have regard to patients' wishes than the patient's psychiatrist. Others would disagree. I will point out that the law did not require patients' wishes to be respected, albeit this was very slightly amended in 2007. Another change was the establishment of the Mental Health Act Commission, an inspectorate, now gone. Third, that required codes of practice to be published, to which practitioners have to give regard. Fourth, advocacy became a right for some patients. And fifth, it required the patient to be told about their rights. Actually, it's odd because that was also in the 1890 Act, but then seemed to have got lost. Oh yes, and like all its predecessors, the '83 Act reduced the length of each detention period before renewal was required.
The act has had several amendments since it was introduced, the most important being in the 2007 Mental Health Act. The number of patients detained under the '83 Act has increased markedly through its life. In addition, luckily, to introducing compulsion in the community, Earl Howe, in his closing speech prior to the 2007 bill being passed, summarized the changes as follows, and I quote: "Patient empowerment and respect for the wishes of the patient, who acknowledge features of good clinical practice in all other areas of health care, but not, it seems, in mental health."
I end by noting that the purpose of every mental health act, past, present, time, future, is to reduce or remove patient autonomy. The rest of medicine, everybody except psychiatry, has legislation to encourage or enforce the importance of respecting a patient's capacitous wishes. The law, both common and statute, does that. The only reason to have a separate act for the treatment of mental disorder is in order to deviate, in whole or part, from that principle. You may, of course, think that's justifiable, indeed necessary. I'm just pointing out this is coercion and does limit the patient's voice, and we mustn't pretend otherwise. Lord Russell, in the debate prior to the 1930 Act, said, "And don't do his treating mental disorder in exactly the same way she treats any other disease." Of course, it wasn't true then, and it's not true now. Indeed, the common law cases of Bournewood, R vona, and Cheshire West have almost returned us to 1890, banning informal admissions. And in addition, we also have compulsion in the community. Northern Ireland is currently in the process of leaving this legal merry-go-round. There'll be no mental health act for adults, only a Mental Capacity Act, which covers everyone, whether physically or mentally ill, and non-consensual treatment will be authorized only if the patient lacks capacity. True parity of esteem. And I can't help but wonder if it's time for the rest of the United Kingdom to follow. As John Eden used to say, if you have been. Thank you for listening. And back to you, George.
Thank you very much, Tony. Very clear and succinct summaries. Very few people can present. I should have said at the beginning that we will keep questions, uh, for the end. I'll try and go through as many as we can. But, uh, now I would like to hand over to Steve Gilbert, who will give us his views. Steve, thank you for joining us. It's a pleasure to have you at the College. Please go ahead.
Can you see my slide? I'll take some. Yes, we can. Thanks. Brilliant. Um, thank you for having me. Um, so my name is, uh, Steve Gilbert. Um, and I'm just going to start off by giving you a very, uh, quick snapshot of my mental health journey. Um, I left home when I was 19, um, and I thought that was just kind of growing pains. Um, but over my, um, my late teens and into my early 20s, I had multiple fairly minor, um, issues with my mental health. Um, but in 2008, at the age of 24, I had a major depressive episode. Um, I made, uh, attempts to take my life. This was the first time that I came into contact with secondary mental health services. 2009, a very similar event happened. And then in 2010, I had a manic episode. I was detained by the police under Section 136 and was subsequently then detained under Section 2 of the Mental Health Act. I spent a total of 21 days in hospital. My friend did her best to get me out as quickly as she could. Um, and it's a very short period of time by many standards, but it's, it's also long enough to understand the impact that the Mental Health Act can have on a person's life.
I describe myself as biracial. My mother is white and my father is black. He was born in the UK, but my grandparents are from the Caribbean on my father's side. There are at least three others, um, including my own father, who have been sectioned. Um, some of them repeatedly, in for for quite, uh, considerable periods of time. And it's really fair to say that the way that severe mental illness has, uh, manifested in my family, along with the impacts of racial discrimination, has just had a horrific impact. Um, and personally, has destroyed my relationship with my family. I have a diagnosis of bipolar disorder and complex PTSD, and this is the results of psychological abuse by my parents and now siblings. And over the last 10 years, I've had regular appointments with my psychiatrist, my CPN. I've had multiple courses of talking therapy, many lifestyle changes, um, and I regularly take medication, including lithium. And over the last seven years, I've used my experiences of mental illness, mental health services, and racial discrimination to develop various work streams. And then this is just, uh, a sample of some of the, the roles that I've had, and some of the roles that I hold at the moment. Um, I was appointed as one of the vice chairs for the Mental Health Act Review. Um, I like, and I believe that it was not only because I have a mental illness, um, and not just that I've been detained under the act, but importantly, because of, uh, a skill set and competences, um, that allowed me to, to, um, to be a significant part of the review process. And the reason I highlight this is that it's proof, proof, be needed, that, um, people with lived experience, certainly of, um, severe and enduring illnesses, mental illnesses, can and, and do work at the highest levels within our society. Um, and this was a great day out. I got to meet, uh, Prince William and was awarded, uh, an OBE in 2019 for services to mental health.
So, I now have the, uh, the enviable role of, of following the previous, um, presentation. Um, and I'm nowhere near as versed, um, in mental health law, um, as, uh, as Tony was. Um, but I did spend, uh, a good 18 months, um, with the review. So, I'm going to really speak to, to that, and, and, um, speak to some of the processes and speak to some of the challenges we had. Um, and really, um, the final point that Tony made about coercion, he, he's absolutely right, and we're going to, um, have a quick look at some of that. On the screen are the headline, uh, terms of reference. Um, it's important to remember that this was commissioned by the then Prime Minister, Theresa May, in the autumn of 2017, and she famously stood on the steps of 10 Downing Street and spoke of the burning injustice, in particular in relation to the experiences of, uh, the black community, and in particular young black men. And there were three key drivers for the Mental Health Act Review: one was, uh, concern at the rising rates of detention under the act; the second is a concern of the disproportionate number of people from black and minority ethnic groups who were detained under the act; and the third was that the processes are out of step with a modern mental health care system. And I haven't put up the slides that I sometimes do, um, but the review was a considerable process. Um, every effort was made to, to engage with service users, with carers, with relevant professionals, um, and any organization that is, that was affected. Um, and I think we estimate that at its, uh, largest, that there were up to 200 people working on the review. And so we really did try to go as far and wide as possible to make sure that we were coming up with the right recommendations.
If we kind of go beyond the, the terms of reference, there were some, the background, and there were some historical challenges that we had to find some way to address. And this is not an exhaustive list, but, but these are our three, the key areas. One was the complex balance between respecting a person's autonomy and the duty of a civilized state to protect the vulnerable. The second is the problem of fear, and this is fear that's held by patients, by the public, um, and certainly by professionals who are involved in the system and involved in administering, uh, the Mental Health Act. And thirdly, is the rise of coercion and the continuing legacy of stigma, discrimination, and racism in society.
So, we'll start with the, the first balancing act. Um, and there is that question of why do we need a Mental Health Act? Um, and it's a good question. Um, I'm under the, uh, the personal, um, thought that detention under the Mental Health Act is one of the most draconian acts that the state can take. I recall vividly the moment that I was told that I was being sent to hospital. I remember being put into a police vehicle and, um, being completely ignored when we got lost on the way to the hospital. Um, I told them the way to go, I've lived in the city all my life. And, you know, that was one of the first moments that I realized that once you are labeled as, as a madman, um, nobody listens to you. I recall being given medication on the day that I got there and been told to take it. I remember not being able to leave the ward, and it is an experience like no other. Um, I, I've been, I've been arrested. Um, I, I'm not really a bad boy. Um, it was a complete misunderstanding. No charges were brought against me. I'm a good boy. Um, but being arrested, you know, the time scale, you know, that you know, certain things will have to happen, that, um, you will be bailed, you'll be charged, um, and what the process will look like. There are no such, um, kind of guarantees within the Mental Health Act. Um, it is, uh, frightening and bizarre. I'm going to, um, reference us, uh, towards the end of my session with some of the, the contributions that we got through this survey. The, the patient and carer survey, and there was about a 50/50 split of people saying that being detained was the right thing to happen to them. There were also, half the group that surveyed that said it was absolutely not the right thing that should have happened. But in too many cases, um, it's a bad experience. But also, in too many cases, it's a necessary action to protect the mental health of an individual, and it can be life-saving. And this is where we start to, to, to touch upon the wider system and the issues that we're all very well aware of, of under-resourcing for many, many years, the stigma that exists around severe mental illness, and the fact that our community services are just not as responsive and nowhere near as robust as they need to be to protect people who have lifelong and serious mental illnesses.
We then come to the, the challenge area of fear. And the Mental Health Act is fraught with it. From the perspective of professionals, many are fearful that unless they adopt a cautious, risk-averse approach to their patients, that they're going to find themselves being publicly shamed for those occasions when those same people cause serious harm to themselves or to others. Or to put it another way, nobody wants to end up on the front of the newspapers. Fear from the patient's perspective. Patients are often fearful, not only of the consequences of such illness, but of how they will be treated by society in general, and the mental health system in particular. They do not always experience kindness, particularly where the state's powers of coercion have been invoked. Um, the fear that results from being detained and the Mental Health Act, again, is, is, is unlike anything I've ever experienced. And having spoken to, to many people that have been detained, um, it is, it is a fairly unique type of fear. Um, the idea that we can detain somebody for an indefinite period of time, having committed no crime, and supposedly, um, for someone's mental illnesses, is, is unique to the Mental Health Act. Um, and arguably, the, the Mental Capacity Act.
Then we come to the issue of risk. Um, and one of the things that was very interesting during the review process was speaking to people, such as Tony, who were involved in, in the previous attempts at reform. And what resulted in the 2007 reforms was largely shaped by risk. Um, and it's led to a Mental Health Act and a, uh, a system of, of delivering care that is very risk, risk-averse. What's interesting is that rates of severe mental illness haven't changed substantially over that period. Um, but risk aversion is certainly something that has played a role. One of the things that, that sticks on my mind are the testimony of, uh, people that have been detained, of ward environments that are physically incredibly safe, but psychologically become very unsafe because it's as if all, any risk, um, is being, is being eradicated, and it becomes a very false environment. And if you're spending considerable periods of time in those environments, um, that, that has an impact on your, on your mental health. Um, so we were, we were tasked with, with how do we address risk aversion?
And then it goes without saying, um, it was right at the top, in, in the, um, in the headline, in terms of reference, of the issue of ethnicity, racism, and discrimination. Um, and all too often, in many, too many areas, the experiences of those from black African and Caribbean heritage is one of either being excluded or detained. Um, we accepted, uh, very fully, uh, the painful reality of the impact that there's a combination of unconscious bias, structural, institutional racism, um, which we know is visible across society, and is absolutely visible in the mental, mental health care, and within the, uh, the actions of the Mental Health Act. This is incredibly difficult to, uh, to talk about still. When I look at my own family's experiences, and the experiences that people have had over the last 30, 40 years, my family's experiences, like so many others, very much tracks, um, what can only be described as a failure of, um, of all of us, really, to, to get to grips with this, and to understand how we provide care to people who are, especially from black communities, that really meets their needs and doesn't cause harm.
We also had the challenge of how do we move towards a rights-based mental health act? And Tony's given that beautiful, um, overview of, of, of the, the journey of, of mental health legislation. Um, and we, we really were charged with rebalancing the system to be more responsive to the wishes and preferences of the patient, to take my work out of a person's rights, and to improve the ability of patients to make choices, even when their own circumstances make this far from easy. And I've kind of touched upon this, but the fact that severe mental illness has been overlooked. There have been huge strides in our society and globally around, um, more common, um, and less disruptive, um, mental health conditions. Um, but for those people that live with severe and enduring mental illnesses that have such an impact on our lives, we haven't made the same progress. And that is part of the backdrop to this review process.
I'm not going to, to really label the point here, but I just wanted to quickly, uh, go over some of the, the realities of black experiences during the Mental Health Act. People of African and Caribbean heritage are 40% more likely than white British people to come into contact with mental health services through the criminal justice system rather than through primary care. Adults of black African Caribbean heritage are significantly more likely to be readmitted, or more likely to be subjected to restrictive practices such as high-dose antipsychotic meds, physical restraints, and seclusion. There's a significant over-representation in psychiatric intensive care or secure care services, and experience longer hospital stays. And on the other side, people of African and Caribbean heritage are less likely to be offered psychological therapists, and if they do, are likely to finish their course of therapy early and abruptly.
So, where did we land? Well, we came up with 154 recommendations, which you'll be glad to know I'm not going to take us all the way through. Um, but one thing we did do was come up with a new set of principles. Um, and these four principles really cover all of the recommendations. Um, and these four principles are: the principle of choice and autonomy, of least restriction, of therapeutic benefit, and the seeing the person as an individual.
So, when we start to think about choice and autonomy, we're talking about things such as the implementation of advanced choice documents, which we hope will encourage the voice of service users to be, uh, to be respected and sought during their inpatient treatment, regardless of their capacity. Um, we believe there should be a right to advocacy based on an opt-out approach. Um, and we believe that, uh, replacing the nearest relative with a position of nominated person gives more choice and autonomy over your care.
When we start to think about the principle of least restriction, we are considering the care and treatment plans and the right to challenge. All too often, it seems as though, uh, the detention, whilst appropriate, is then not matched with, uh, the best care for that person's needs, which leads in again to, kind of, the, the therapeutic benefit. Care and treatment must be designed to meet the person's needs in a timely manner, with a supportive, healing environment, with a view to ending the need to be subject to coercive powers under this act. And it should go without saying, but the need to see the person as an individual. One thing that's worth, uh, pointing out, uh, certainly in relation to, uh, black, brown, and racialized communities, is the creation of something called the P-CRAFT, which is the Patient Carer Race Equality Framework, an organizational competency framework aimed at tackling racial disparity, which at its core has service user and accountability built into it. It can be argued that these things should be common sense, but they're not, and they're certainly not routinely delivered.
I just want to finish up by bringing in the voices of other people. Um, I think that it's a really important, uh, part of what we need to do. LEX stands for Lived Experience, and CAR stands for those views of carers. And these are anonymized from the survey. And when it comes to the, uh, the implementation of the Mental Health Act, it was described as being a necessary evil. Or, in hindsight, absolutely yes, it saved my life. And at the time, I would have argued there was nothing wrong with me. It has at times been the best approach. It kept me alive, but I would have definitely died without it. Being detained saved their lives. At the time, my wife was at high risk of suicide, so the section probably saved her life. But also, at a time when you're vulnerable and seriously ill, you find yourself losing your rights and any say in anything. This isn't healthy for anyone. I felt as though I was being judged and ordered around. An advocate helped me more than once and made complaints too. My views were dismissed by psychiatrists. And the final slide, at other times and forever people, it has been an unhelpful, traumatizing, and horrendous experience, which has led to, or created, or exacerbated a range of mental health triggers and experiences. Thank you so much for listening. I hope that you've got some value from us, and I'll hand back to George.
Thank you, Steve, for this very rich presentation. I should have introduced myself. My name is George Gicos. I'm a consultant psychiatrist and chair of the History of Psychiatry Special Interest Group of the Royal College of Psychiatrists. You can find more information about us on the College website, and I particularly commend to you our newsletter, which comes out twice a year. Dr. Clare Hilton, my predecessor as chair, is a historian as well as a psychiatrist. It's brought up to a very high standard and is available to everyone from our website, again, at no cost at all.
So, a lot of people, Steve and Tony, have expressed their appreciation for your talks. They clearly have had appeal, and there have been a number of questions that I will try to work through. And perhaps I should start from the first one by Chola, I hope I'm pronouncing that correctly. Steve, and then Tony, how can we get rid of separate mental health law and mental capacity? I assume as it is being massively abused and misused in modern times. I mean, I'm particularly thinking that your commission has not recommended a similar arrangement as is about to be implemented in Northern Ireland. So, yeah, let's start off with the easy questions. Um, I, what we, and again, I am not a, a legal expert. I think this is a, there's certainly a legal aspect to this which makes it very, very difficult. What we did do at the, and it's at the very end of the, um, the Mental Health Act Review report, was we set out the conditions, as we saw it, or as, um, uh, the principal lawyer on the, on the, on the working group, five conditions that would have to be met for us to, um, to move towards fusion. And that's definitely worth checking out because I think that, again, part of our concern is that if you, if you, how do you make sure that actually we don't leave people in limbo? How do we make sure that we don't actually remove what we argue are not the best safeguards, but that are still safeguards? Um, so if anyone's interested, it starts on page 222 of the Mental Health Act Review and it's titled "The Future Direction of Travel: Fusion of the Mental Health and MCA." I'm not going to butcher a response because you can read it much better than I can explain it there.
So, just before I pass on to Tony, are you saying that there is a direction of travel towards that, and that is a recommendation of the committee, or are you saying that the commission did not feel that the conditions were in place, or something like that, to be implemented in the UK in England?
The conditions certainly weren't in place. We, so one of the, one of the other, what are the other kind of challenges we had during the review process was that it was argued that we should be implementing, um, the interpretation of the UNCRPD, the United Nations Convention on the Rights of Persons with Disability, which, if taken in the way that, um, has been interpreted by some, would remove any and all mental health law. It would remove the Mental Capacity Act. Um, when we're not on a point where that would be feasible, um, you would end up with people being unable to get care. Um, and we've already got huge challenges around getting even basic mental health care, let alone, um, care for people with severe and enduring mental illnesses in, in the community. We didn't, um, we certainly moved towards that position. We haven't gone far enough for some people, and we acknowledge that, um, but we've definitely moved more towards a rights-based act. As for the fusion of the Mental Health and Mental Capacity Act, we didn't endorse an approach. Um, and we, we asked that at the end of the review report, those five conditions be set out there, um, purely to, to highlight that we have given it thought. It was not that we didn't give it any thought. Um, but actually, if we were to revisit this, this is what you'd have to consider. I think also as well, at the time, it hadn't actually been implemented. So people kept referencing what was going on in, in, um, in Northern Ireland, but it actually hadn't, it, we didn't know if it was working or not. So that was one of the reasons that we, we also couldn't say, let's, let's move straight towards fusion.
So, I think Tony has had the major part to play in, uh, drafting, uh, the legislation and in Northern Ireland, in fact. And Tony, could we please have your response to the question and to what Steve said? Thank you.
Uh, no, I didn't have any part in drafting, but they, they were, and have been kind enough to say that I was influential in them moving in that direction. Um, we've got a sort of halfway house, as it were, perhaps even closer to, to fusion law, even though there are two acts, and that's in Scotland, where, in order to detain somebody under their mental health act, they have this thing called SIGMA, the significantly impaired decision-making as a result of the mental disorder. So, if somebody retains full decision-making capacity, then full decision-making ability, then they cannot be detained lawfully under the Mental Health Act of Scotland, and that's been so for 20 years. So, so we, there is, uh, some evidence now. It's a pity that Northern Ireland hasn't, uh, been able to bring the act into force, and of course, it wasn't able to do so just because it had no government for so long, rather than for any specific difficulties with the legislation. I think the biggest difficulty that people have expressed is to do with the definition of capacity and its assessment, and that, to my mind, has been addressed very well in Northern Ireland, and that they have, they have, um, tweaked the criteria for assessing somebody's capacity in a way that I think is very helpful indeed. It was recommended, um, for the Capacity Act for England and Wales, but was rejected by the relevant government department. And that's the, the notion of appreciation. And it was rejected by the government department because they said that that was included in the usual way of, in the balance in coming to a decision, and I just don't think it is included, at least not overtly included in that. So that's a very specific point. Now, why didn't the review go for it? I wasn't part of the review, I'm, and I'm not, but it's because their bottle went, uh, I mean, that's the top and bottom of it. They did not have the courage to grasp that nettle.
Thank you. That is, uh, an interesting provocation, let's call it, certainly a view. Thank you, Tony. I just point out that Owen O'Sullivan has put up a reference to a paper by George Smukler on this particular issue that people may want to refer to. Um, I want to talk a little bit about discrimination. There are two questions, one is on women and the other one is on black and minority ethnic groups. And I would say here that when I was editing the book, I was shocked by the chapter on Mind, Race, and State, because I have never been discriminated or felt so in this country, but I was aware that there was discrimination, but I had not realized that the lives of black boys and black men have become more difficult during the period that we, we looked at. Um, I just want to put that in the background to acknowledge how difficult things seem to be. Tony, can I ask you to comment on differential treatment, if you want, of women and black and minority ethnic groups? The numbers look different. What, what are your views about that?
It is, uh, it's been like that, um, since 1983. Figures from before then are extremely difficult to, uh, to come by in terms of the, the differentials. I have no explanation other than, given how racist society is, it would be pretty surprising if there were racism amongst, or conscious or otherwise, amongst staff in mental hospitals, and also, of course, the, the impact of racism on people's lives, um, outside. So, but I have no expertise in this area at all. It's unfortunate that it's an all-male panel. I think we ought to acknowledge that, but that's the way the cookie crumbled, I'm afraid.
Steve, you are an expert on race, if not on, uh, women, but I would greatly value your comments on both groups. Women are majority, race minorities are minorities. Yeah. It's, I think, I mean, certainly on race, there is something going on in this, in this country, um, for sure. I mean, you've only got to see what happened after the football, um, on Sunday night, and I'm glad I wasn't out because I would have feared for my own safety. Um, and unfortunately, that is how many people who are not visibly white in this country feel. Um, and it's not just felt within, um, healthcare. It's felt within the, uh, the employment space. It's felt with, um, contact with schools. It's felt with contact with, um, law enforcement. Um, it, but it's certainly felt within the mental health act. Um, and I think when I was writing the presentation, and I was writing about risk, part of the challenge is that there is risk associated, and risk, um, viewed in the mental health act for everybody, that is particularly bad for, certainly young black, young black men. Um, we are viewed as being inherently dangerous, um, and that, that comes through. As for women, um, I, I don't know. I think, I think one of the things that we have certainly observed, and again, I think.
Of you know races where I specialize a lot of research is focused on men, so there's not enough research been done around at the experiences of black women that are that are different as well. Um, so I think part of, um, part of the point of doing these these these sessions and these these, um, kind of Q&As actually to bring out some of those questions because I can't honestly sit here and give you a reason as to why, um, for women, um, we didn't come across any or to my knowledge any evidence that gave, um, a a key reason for that.
I think one of the things that we do know is that the experiences of women in detention are also particularly bad, um, subject to, um, certainly, uh, issues around sexual violence. Um, so again, we we really need to understand that and we need to invest in research to understand those differential experiences.
Okay, we're meant to be stopping at five, but I want to go through two more questions. Uh, one is about dolls and whether dolls would be an alternative to the Mental Health Act. Steve, do you have an answer to that question? The Deprivation of Liberty Standards. I don't think, I don't think that it is. Um, yeah, I like that the two, the two acts came from very different places. Um, one of the arguments that we had during the rule her during the review was that if somebody is, uh, assessed under the MCA or under DoLS, that their capacity is recorded, but only at that one point. But actually, the way that the MCA is set up, all those is set up, there are not the same safeguards that that are in place for for people under the Mental Health Act. So no, I don't, I don't believe that, um, the DoLS, um, it is interchangeable with the MHA.
All right, sorry. Well, because DoLS is going, uh, and being replaced, um, interestingly with fewer safeguards than indulge, um, which is is interesting. The divergence that one could, uh, put in whatever safeguards one wants into whatever legislation there is, which covers depriving people of their liberty when they lack capacity, and that's what's happening in Northern Ireland. So there's all sorts of safeguards even though it's in their capacity out, rental capacity out. Um, so, so we should have safeguards, significant safeguards, but they should cover everybody.
You and one question is from Dr. Naresh Bhutan, a consultant psychiatrist, and he's asking, really, he's looking at the Mental Health Law being seen as discriminatory or punitive and humiliating. And Dr. Bhutan, maybe she, I, I don't know if it's he or she, is saying, well, the problem is not with the act, but with the punitive language of law. Tony, do you have a comment on that?
Uh, yeah, I think, um, it's interesting, as I said in my talk, of course, as to, uh, if we call get rid of the word asylum and we call them all hospitals, uh, that'll end the matter of the stigma and the perception of these places is, uh, depriving people of their liberty. Uh, of course, we no longer talk about certifying. We've replaced that with sectioning, and films and TV programs and so on, uh, referred to sectioning, and I don't, I think now it's understood in exactly the same way that certifying was. So, uh, you can keep changing the language, but the stigma will soon catch up with it.
Yeah, perhaps you'll allow me to say some comments, uh, on the back of that, that include things that have been said by some people in the audience. And I think that is a crucial point that the stigma moves on to the next word. Is now a conclusion amply justified by experience. So we actually should be working on changing attitudes, perhaps even more than changing the law. And people like Steve, for example, and many, many others are doing, are doing this, and we should be grateful to them. And we need to be, I think, mindful of the distinction between what we want to achieve and what we actually achieve. Obviously, in recent years, there have been assisted efforts or talk to safeguard human rights and to amend the law, but in fact, since the 1983 Act, the use of the act has actually increased. It's not gone down. So the language and the legislation has not reduced use, which is actually what matters. And in that sense, it's important to to have services and communities that support people rather than, uh, abandon them or acquiesce them. And again, someone mentioned the importance of kindness, that we need to champion actively community. There are divergent views. I was fascinated to hear that 50% of people thought that in hindsight, it was right for them to be sectioned, and 50% not. Sadly, I was not surprised to hear about the environments in which people find themselves in. We should be putting a lot of effort into the environments of psychiatric wards or any detention environment rather than just amending the law. Anyway, it's been a fascinating session. I thank everyone for their questions and above all, uh, Steve Gilbert and Tony Ziegler for excellent presentations. Thank you very much. Thank you.