Reform of the Mental Health Act: White Paper

Mental health research points to a relationship between the experience of racism and mental ill health and to racial inequality within mental health services. There is ethnic disparity in the diagnosis of mental illness. For example, for every one white person diagnosed with schizophrenia, 4.7 black people and 2.4 Asian people are diagnosed with the disorder. Incidence is highest among UK residents of black Caribbean heritage, but that disparity is particular to the UK and is not replicated in the Caribbean, which points strongly to social determinants of mental ill health, including poverty, unemployment, poor housing and school exclusion.

Growing evidence, cited by Mind, suggests that discrimination and, in particular, experiences of racism, both personal and institutional, contribute to increased likelihood of developing mental health problems. Experiences of racism have been linked to an increased likelihood of developing depression, hallucinations and delusions and post-traumatic stress. Routine experiences of racism and discrimination, and the associated prolonged exposure to stress and distress, have been found to have a toxic wear-and-tear effect on the body over time.

There is also evidence of some racial discrimination within mental health services, particularly with regard to racial stereotyping and the perceived risk of violence contributing to increased rates of detention. That translates into significant racial inequalities in the use of the Mental Health Act. Black people are more likely than white people to be referred to mental health services through the criminal justice route, four times more likely to be sectioned, more likely to be detained more than once, three times more likely to be the subject of physical restraint, and eight times more likely to be given a community treatment order.

The Government’s support for the Sewell report, with its denial of institutional racism, gives rise to grave concerns among many of my constituents about whether the reforms will address racial inequality in mental health. It is absolutely vital that reform of the Mental Health Act addresses those stark and unacceptable inequalities. I hope the Minister will understand why I am anxious to emphasise this matter before the Government publish a response to the consultation.

Lambeth and Southwark Mind has identified three ways in which racial and ethnic disparity and discrimination can be addressed in mental health services. The first is greater community engagement directly with black, Asian and minority ethnic communities, working with existing, often dynamic, community structures, rather than expecting communities to engage proactively with NHS structures. Such structures can seem distant and opaque and which often reflect services that have been the source of painful experiences in the past, and in which trust is sometimes low. There are many grassroots organisations and NHS services that engage very well with communities. It is vital that best practice is understood and embedded across all services as part of those reforms.

The second is investment to support more culturally focused peer support groups and counselling as part of much wider investment in improved community care. There is concern that, although increasing the threshold for sectioning is the right thing to do, without a step change in the level of investment in community-based mental health services—specifically those that are culturally appropriate and competent—some people could experience a delay in accessing services until they are much more unwell.

Thirdly, Lambeth and Southwark Mind recommends a significant change in language to reduce stigma and improve access to mental health services. That type of change is modelled exceptionally well by organisations such as Black Thrive, whose language focuses not on the stigma of illness but on the changes that are required to keep people well and thriving. Lambeth and Southwark Mind also emphasises the need for practical changes, including the introduction of discreet mental health vehicles to transport people suffering a mental health crisis, which are more appropriate, less traumatising and less stigmatising than ambulances and police cars.

There is widespread support for the proposal to move to an opt-out system for mental health advocacy services. It is important that training and funding are put in place to ensure that advocacy services are always delivered in a culturally appropriate way. The introduction of a nominated person is a significant improvement over the current nearest relative provision, but in a consultation meeting held by Lambeth and Southwark Mind, which I attended, some of the contributors flagged concerns that there should be robust safeguards against coercion and exploitation, since it is possible for people to be subject to abuse and exploitation from non-relatives, which may result in pressure to designate them a nominated person.

Lambeth and Southwark Mind raises some questions about the lack of clarity in the White Paper on the time limit for temporary detention. As it stands, section 5 of the Act places a 72-hour time limit for an in-patient to be temporarily detained in hospital pending assessment. It is unclear whether the limit extends to out-patients in A&E. Provision of a 72-hour time limit for temporary detention in A&E reflects the horrific experience of far too many mental health patients in A&E departments across the country, due to the acute shortage of in-patient beds. Long wait times in A&E are unacceptable. They should not be enshrined in law; rather, investment should be made in services to ensure that they are available in a timely manner.

Nationally, Mind has raised particular concerns about community treatment orders, given the appalling racial disparity in their use. Black people are 10 times more likely to be put on a CTO than white people. CTOs can involve very significant coercion and intrusion, and there is no evidence that they reduce the number of black people being sectioned. The Government have committed to ensure that any reduction in the use and duration of CTOs is matched by a reduction in disparities surrounding their application, but that is not a sufficient response to the level of racial disparity in the use of CTOs, and will not help to build trust and confidence of black communities in mental health services. I urge the Minister to look again and to ensure that reforms are fit for purpose, by removing racial disparity from the use of CTOs in mental health services.

I commend my hon. Friend the Member for Croydon North (Steve Reed) for his work to introduce the Mental Health Units (Use of Force) Act 2018 known as Seni’s law, in honour of Seni Lewis, who died while being restrained. It was passed in 2018 but has not yet been implemented. Will the Minister commit to expedite the implementation of Seni’s law, which is so important in reducing the use of restraint?

Finally, I want to raise two important issues on the reform of the Mental Health Act for children and young people. First, the Children and Young People’s Mental Health Coalition raised important concerns about the lack of data on children and young people admitted informally to inpatient facilities. There is currently no legal requirement for advocacy for informal patients. Although the White Paper recognises the importance of extending that right to them, it also states that

“this will create an additional burden for local authorities, and advocacy providers”,

and will

“therefore be subject to future funding decisions.”

Advocacy is rightly recognised as important enough to make it a statutory requirement. It is surely therefore important enough for the Government to fund it properly. Will the Minister make a commitment today to fund advocacy services for children and young people who are admitted as mental health in-patients, whether by a formal or informal route?

Secondly, it is absolutely vital that these reforms remove the routine use of out-of-area placements and placements in private hospitals for children and young people. Out-of-area placements are distressing for young patients and their families, limit access to vital support networks, make services less transparent, and are not conducive to good outcomes. Will the Minister confirm that there is a commitment to ensure that children and young people who need to be admitted to hospital for their mental health will be able to access a bed close to home?

These reforms are vital and long overdue. They are also complex and far reaching, and it is vital that the Government get this right. Reform of the Mental Health Act must work for everyone in our diverse communities, and it must work for children and young people. Involving and engaging a wide range of community stakeholders and people with lived experience of in-patient treatment and care in developing the reforms further and in the future design of services will help to ensure that these reforms are fit for purpose.

In response to Sir Simon’s review, in January the Government published the White Paper on reforming the Mental Health Act, setting out our proposals to make the Act work better for people. These are once-in-a-generation reforms that will give people greater control over their treatment and let them have the dignity and respect they deserve. Through these reforms, we will give patients a voice in their own care, which we know leads to better engagement in treatment. We will put care and treatment plans, and advance choice documents, into statute for the first time. I will address in a moment some of the individual points made by the hon. Lady.

Patients will be more closely involved in the development of their own care and can have confidence that if they lose capacity because of illness, their preferences on drug treatment, named next of kin and choices for the future will be properly considered. We will also make it easier—this is incredibly important—for patients to challenge decisions about their care. We are creating a new right for patients to choose a nominated person who will best look after their interests. I am sure the hon. Lady knows that, until the reform of the Act, it was still the case that if a woman was detained in hospital, it was her husband, father or next male relative who—regardless of how remote that person was to her life or experience—was nominated to make decisions on her behalf. That is one of the reasons why I personally think that this new provision is so important—it is so that that anyone can choose their nominated person, regardless of whether they are a relative, next of kin or someone in their family. That person is nominated during a time of wellness and remains the nominated person in the future. That can lead to patients having a far greater degree of control over their treatment, and a feeling of control over decisions taken on their behalf.

We are increasing patients’ access to the independent mental health tribunal to provide vital independent scrutiny of detention. The reforms also seek to address the disproportionate number of people from black and minority ethnic groups detained under the Act. Black people are currently four times more likely than white people to be detained under the Act, and 10 times more likely to be placed on a community treatment order, as mentioned by the hon. Lady. Our plans to enhance patient choice, increase scrutiny of decisions and improve a patient’s right to challenge aim to address those concerning disparities.

On the criminal justice system, our proposals include key improvements to how we manage offenders with acute mental disorders and support them to access the care they need as quickly and as early as possible. We will improve the timeliness of transfers from prisons to mental health hospitals where individuals become unwell when in custody—I am sure that the hon. Lady is familiar with that situation from her previous experience —so that people in the criminal justice system get the right care, in the right place, at the right time, while continuing to fulfil our duty to keep the public safe.

Finally, we want to improve how people with a learning disability and autistic people are treated under the Act. The right community services would prevent needs from escalating. In future, the Act should be used only where there is a treatable mental health condition and admission is therapeutic, close to home and for the shortest time possible. There have been far too many examples of poor practice and quality failings in in-patient care for people with learning disabilities and autistic people. Therefore, we are proposing reforms to limit the scope to detain people under the Act where their needs are due to their learning disability or autism alone. We are firmly committed to developing community based services to support people with learning disabilities and autistic people, and to reduce reliance on specialist in-patient services. We have put forward proposals to ensure that that is available. These once-in-a-generation reforms will be instrumental in bringing the Mental Health Act into the 21st century.

On the points raised by the hon. Lady, CTOs are incredibly important and we are increasing the scrutiny of when they are used—and the frequency of that scrutiny—so that they are used only when appropriate and for no longer than necessary. That has been one of the failings so far, and it needs to be addressed. They will now be monitored and kept in place for no longer than is necessary. We are taking action to address racial disparities across the use of the Mental Health Act. Those CTO disparities are, of course, happening in the communities represented by the hon. Lady.

The hon. Lady mentioned Seni’s law. We are clear that restrictive intervention and restraint should only ever be used as a last resort, when all attempts to de-escalate a situation have already been employed. The Mental Health Units (Use of Force) Act, also known as Seni’s law, received Royal Assent in November 2018. The purpose of the Act is to increase the oversight and management of the use of force and acts of restraint in mental health units, so that force is only ever used as a last resort. We published the draft statutory guidance to the Act for public consultation in spring, and are committed to publishing the final guidance and commencing the Act in November.

We have made a huge amount of progress, but unfortunately, and sadly, we have been delayed by covid. The Department’s resources have all been focused on covid over the last 15 months. I met Seni’s family and the hon. Member for Croydon North (Steve Reed) only a few weeks ago to discuss this. They were absolutely delighted to hear that we will make huge progress from September to November, and that by November the Act will hopefully be live. I commend them for the work and the campaigning that they have done—they are still campaigning.

The disparity in the use of force and restraint speaks to the communities that the hon. Lady represents. The Mental Health Units (Use of Force) Act will be instrumental, along with reform of the Mental Health Act 1983, in improving her constituents’ mental health experiences of detention and in-patient treatment.

On the next steps, public consultation on the White Paper has ended. I note that the hon. Lady said that she would like her comments to be considered, and they will be—they have been heard and duly noted. I reassure her that the stakeholders, many of whom represent her community and interface both with the Department of Health and Social Care and with other organisations and arm’s length bodies, have been fully engaged in the White Paper for the reform of the 1983 Act and in the consultation. I stand to be corrected, but I think we have accepted 124 of Sir Simon Wessely’s 127 recommendations. We meet him regularly to look at how we can enhance and implement those recommendations.[Official Report, 17 June 2021, Vol. 697, c. 4MC.]

I want to thank and reassure the hon. Lady. I absolutely understand why we are reforming the Mental Health Act and the reason why we supported and assisted the enactment of Seni’s law. It is because we are absolutely committed to improving the experience of mental health in-patient detention for all, and especially the communities she represents. We are very aware of the fact that black men are four times more likely to be detained under the Mental Health Act, and we very much want to change that. That is why we have accepted so many of Sir Simon Wessely’s recommendations.

I thank you, Ms Nokes, and I thank the hon. Lady for securing this debate. I always look forward to an opportunity to speak about mental health, particularly the reform of the Mental Health Act, which I very much look forward to championing later in the year.