Increasing Autonomy in the Mental Health Act
Michael Henson-Webb is a qualified lawyer and was Head of the Legal Team here at Mind. In his blog, Michael considers the limitations of the Mental Health Act, and how we can start increasing patient autonomy and independence under it.
The final report from the Independent Review of the Mental Health Act sets a lofty ambition with its title: 'Increasing choice, reducing compulsion.' Yet the current Mental Health Act does precisely the opposite: it allows people to be medicated against their will, detained for crimes they have yet to commit and have their freedom restricted even after they've left hospital.
Whatever your view of the Mental Health Act, what it does is restrict freedom and choice in a way that those of us without mental health problems do not have to worry about.
But for now, the Mental Health Act is here to stay and these basic principles remain. So, how do you increase autonomy within an Act that was designed to take it away?
My first experience of the Mental Health Act was working as a solicitor for detained patients. One of the things that struck me was that it gives a detailed process for how people get into hospital and how they get out, but there really isn't much in there about what happens during your time on the ward. If you wanted to be discharged I could represent you at a tribunal hearing, but there really wasn't anything I could do about the 101 other things that are incredibly important to you: whether you got to go to your mum's funeral, that you were in a hospital six hours from home, which medication you were prescribed, whether or not you can have your mobile…
I doubt that those of us who have not been detained can appreciate how completely you are controlled. 'No choice, no voice?', a report by Rethink Mental Illness, gives some insight:
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"These people, doctors, who are supposed to be fair had control over my clothes, shoes, bedding. Everything."
"I was reflecting back on it and I realised how weird it was that I had to earn back my shoes."
Increasing autonomy within the confines of the Mental Health Act means handing back as much power as possible to those who are impacted by it. It means allowing people to make decisions for themselves wherever they can and supporting them to do so wherever they cannot.
So what does the report recommend?
- Creation of a statutory support plan that will record patients' views
- More guidance on shared decision-making in the Code of Practice, particularly around medication
- Advance Choice Documents that allow people to say how they want to be treated in the future and make sure doctors record why treatment preferences are not followed
- More access to second opinion doctors who review medication decisions and a limited right to challenge treatment decisions at the tribunal
- Allowing patients to choose their own 'nearest relative'
These recommendations take two important steps. First, in order to give more weight to people's wishes, you first need to know what they are. They encourage people to make their wishes known in advance and make sure professionals seek out and record them when making decisions. The second step is to improve transparency by requiring decision-makers to record when and why they don't follow a person's wishes. This enables the next step, which is to allow people to challenge decisions they disagree with. The recommendations go halfway on this, giving limited appeal rights over treatment.
But is this a fundamental shift in the balance of power? I'm not convinced. To do that you would need to increase the number of decisions where the patient has the final say. These remain very, very few. Transparency is a good first step, but it is only that.
Michael Henson-Webb is a qualified lawyer and was Head of the Legal team here at Mind until 2019. Before joining Mind he worked as a social care solicitor within local authorities and before that represented patients detained under the Mental Health Act. He sat on a topic group for the Independent Review and worked on Mind's submissions to that review.
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