Alex RKThe independent Review of the Mental Health Act conducted by Sir Simon Wessely has today, 6 December, published its report, entitled Modernising the Mental Health Act: Increasing choice, reducing compulsion. Having been legal adviser almost from the outset, working closely alongside a range of dedicated individuals from across the spectrum of those within the net of the MHA, above all service users,[1] I hope that I am allowed a small moment of pride at the sheer breadth and depth of the report.[2]
I will not rehearse the contents of the report here, save to note that the title almost sells it short. Not merely does the report contain hefty and grounded recommendations for changes to the Act itself, but also recommendations also for related legislation (including the Mental Capacity Act), policy and practice. You should, of course, read the whole report, but the easiest way to summarise the 154 recommendations is to set out how things would look in December 2028 when (not, of course if) the recommendations have been implemented and have had time to bed down. At that point, we would have a system:
- In which there are more alternatives to detention (including alternatives proposed and developed with service users, and those for people with learning disability and autism, for whom entry into hospital, whether formal or informal, almost invariably reflects failure in another part of the system even more starkly than for others).
- Where, if people are admitted to hospital, admission is truly informal wherever possible. Where it is not informal, the default will be that treatment is on the person’s own terms, any other course of action being deliberately difficult for the relevant professionals to take, and subject to an effective right of challenges;
- Stays in hospital are short, targeted, and purposive. Any other course of action will be difficult and painful for those seeking to justify it. Where the justification is a system failure, there will be a tribunal able to take appropriate action to unlock it.
- Where we as a society are in the position to make an informed decision as to whether we should move beyond separate mental health legislation.
All bits of the report will not please everyone, but where they do not, there should at least be an explanation of why the Review has proceeded in the way that it has. See, for example, the discussion of whether compliance with human rights norms, in particular the CRPD, requires the abolition of involuntary admission and placement (spoiler alert the Review concludes that it does not, even if compulsion must always be the last, rather than first resort).
As for the bits of the report which do please you, your task – should you choose to accept it – is to bang the drum to ensure that the recommendations are implemented on the ground and to hold Government to their commitment to legislate to respond. There has already been a welcome commitment to legislate in relation to the creation of statutory “advance choice documents” and the replacement of nearest relatives with “nominated persons,” but this is just the start. If I have learned one thing over my time on the Review, it is that change would not merely be nice or desirable, but that it is pressing and urgent.
[1] As will not come as a surprise, language in this area proved intensely complex throughout the Review. ‘Service user’ did not meet with approval by all; ‘person with lived experience’ likewise; ‘patient’ is legally correct within the four walls of the MHA but was problematic for many. Similarly, ‘person with disabilities’ and ‘disabled person’ were contested terms for describing those within the scope of the CRPD. ‘Service user’ is used here as the term settled on in most of the Review’s work.
[2] This could not have been achieved absent the support of the civil service secretariat, most of whom could not, I suspect, have had the faintest idea of what they had let themselves in for, but rose magnificently to the challenge.
