Ken Stapleton: A law that leaves people locked up

Mental health law and the professionals who implement it are breaching people’s rights when it comes to compulsory detention and treatment in hospital, says Ken Stapleton.

Cawston Hall

The Mental Health Act discriminates against people with learning disabilities.

I argue this as a social worker involved in care and treatment reviews (CTRs), having become increasingly concerned about the grounds for admission, detention and involuntary treatment under the 1983 law.

My role as a clinical adviser involves working as part of a team that includes a senior commissioner from a clinical commissioning group and an expert by experience (someone who has used mental health services).

CTRs were established as the NHS and governmental response to the significant physical and emotional abuse suffered by people diagnosed with learning disability and/or autism at the hands of care staff at Winterbourne View hospital in 2010-11.

They arose from Margaret Flynn’s report and recommendations into the events at Winterbourne published in 2012.

When to challenge admission

There are two important stages in a person’s journey when the need for compulsory admission must be critically challenged.

The first is at the point of an early referral or serious concern when the use of the compulsory powers of the Mental Health Act is being considered as a last resort to manage or control a critical situation.

The second is at compulsory admission. The evidence of the lawfulness of a such an admission, its consequences and how it is in the interests of the person who is soon to become a patient have become increasingly interesting to me.

In the introduction to his 2017 book, Men In White Coats: Treatment Under Coercion, George Szmukler, an emeritus professor of psychiatry and society at the Institute of Psychiatry, notes: “The grounds for involuntary treatment have been long lived; first that the person has a ‘mental disorder’, a list of which appears at para 2.5 of the act’s code of practice, and second that the person needs to be treated in the interests of his/her safety or for the protection of others.” (See box at end of article).

What Szmukler observes as the qualifying criteria have been at the heart of mental health laws for more than 150 years. Mental disorder and risk continue to underpin the modern legislation.

In respect of people with a learning disability, the qualifying criteria must be clinically evidenced by a psychiatrist and an approved mental health professional, usually a specialist social worker with additional training.

This must be done to lawfully justify the curtailment of the person’s human rights: autonomy, choice and the right to refuse treatment and liberty, including the freedom to leave.

Although classified as an intrinsic mental disorder under the act, learning disability in itself cannot, no matter how complex the cognitive impairment, stand alone as a qualifying criterion under which an individual can be lawfully admitted and detained. This is important for a number of reasons.

If a person with a clinical diagnosis of learning disability is to be deprived of liberty and autonomy lawfully, they must, in addition to this diagnosis, exhibit “abnormally aggressive and/or socially irresponsible conduct”.

But I have concerns about how thoroughly psychiatrists conduct the necessary assessments, and how accurately they interpret the behavioural criteria for admission.

In deciding if it is appropriate to use the act, in many situations it will be in the person’s interests to try to prevent compulsory admission, detention and treatment, rather than setting them on a clinical pathway to a cure – the aim of such compulsory admissions.

Since events at Winterbourne View in 2011, notwithstanding the government’s response via Transforming Care, incidents of significant and gratuitous abuse or neglect, sometimes resulting in deaths, have continued.

I have concerns about how thoroughly psychiatrists conduct the assessments, and how accurately they interpret the behavioural criteria

The long list includes the death of Connor Sparrowhawk while detained by Southern Health in 2013, the abuse of adults with learning disabilities at Whorlton Hall in 2019 and three deaths at the private Cawston Park hospital in Norfolk.

The author of the 2021 report into the three Cawston Park deaths was Margaret Flynn, chair of the adult safeguarding board in Norfolk, who was also author of the Winterbourne View report.

In her press conference to launch the report, she deliberately referred to patients who were detained more accurately as “prisoners who were incarcerated”.

Questions for professionals

There are questions we must ask of professionals involved in the admission of people with learning disabilities under the Mental Health Act, specifically psychiatrists, approved mental health professionals and psychologists.

These questions must not be shirked because of the potential harm that can arise from the significant decisions such people make.

First, when does “aggression” morph into “abnormal aggression”? Who has the right to decide this, when the results are potentially momentous and life changing? Are we content to leave this to the responsible clinician?

Second, when does “irresponsible conduct” morph into “seriously irresponsible” conduct? Arguably, such perceptions are more culturally determined in the eyes of the beholder than clearly demarcated within the law.

To what extent can the responsible clinician involved in admitting a learning disabled person make an appropriate, accurate clinical judgment – in a frequently highly charged encounter – that the “abnormally aggressive and/or seriously irresponsible conduct” is directly attributable to that individual’s identified clinical condition, in this particular case their learning disability?

Is it inconceivable that the genesis of the perceived “abnormal” aggression might lie elsewhere and not be directly attributable to the learning disability?

The cause may lie in some other intense and powerful source, such as severe pain caused by a medical condition such as kidney stones. Or it could be caused by some unknown trauma that has not been identified because of the person’s complex communication needs.

In such cases, any compulsory admission would be unlawful, as would any mandatory treatment under the act.

There is a substantial body of literature, practice and evidence in the field of learning disability that derives from the social model of disability (in which people are seen as being disabled by barriers in society). This is continuing to grow around the role of what is labelled “challenging behaviour” in the communication strategies of cognitively impaired people.

Many require the skills of specialist speech and language therapists to minimise misunderstandings and reduce the possibilities of aggressive conduct being interpreted incorrectly. Such interventions might prevent a breach of human rights because of an unlawful admission.

I regard the criteria under the Mental Health Act for the lawful admission of a person with a learning disability into compulsory psychiatric care as discriminatory.

This becomes clear when one compares how the “abnormally aggressive and/or seriously irresponsible” conduct criteria in this act and its code of practice are applied to people with learning disabilities and those who are not legally defined as having a mental disorder.

Should a non-learning-disabled person exhibit such behaviour, his – for the person is highly likely to be male – outcome will be very different from our potential patient with a learning disability.

If apprehended by officers of the state, our unfriendly male may find himself initially arrested, detained, possibly briefly deprived of his liberty in a police cell, then cautioned or released on bail to appear in court at a later date.

Quite simply, abusers do not value, respect or like those they are charged to care for and support. They appear to revel in the power of control

However, there will be no significant hindrance to his human rights. Depending on various contextual factors, he may receive a custodial sentence, the length of which will be specified by the court.

The outcome is likely to be a very different outcome for a learning-disabled person who, from the point of admission, will experience significant effects on their human rights through detention.

Also, I would like to examine some of the factors that over time have contributed to the gratuitous violence and neglect inflicted upon patients with a learning disability who have been “lawfully” detained in assessment and treatment units and in private and NHS hospitals.

On each occasion, some of the most appalling abuse has been perpetrated on vulnerable, dependent human beings by other human beings deemed professional or given the status of carer by someone or other.

Government action ineffective

CTRs were the governmental response to the findings of the serious case review into abuse at Winterbourne View.

Events since then have proved that CTRs have not produced the desired outcomes of significantly reducing the population of people with a learning disability compulsorily detained by the state.

They have also not led significantly to people having access to a good quality of life in the least restrictive placements in the community commensurate with their own and others’ safety.

Instead, institutional abuse of vulnerable people continues. Following the Cawston Park review, the government’s response has been to add yet another layer – safe and well reviews – to an already-crowded area.

Additional key lines of enquiry have been added to an already extensive list in CTRs, with an increasing focus on more detailed interviews with inpatients and their relatives. External investigators have been allowed dedicated time to observe activities on wards.

As critical as it is to spend time with patients, families and advocates in their living environment, this does not address the question: what is key factor that enables certain staff to bully, physically and verbally abuse and humiliate vulnerable people?

Quite simply, abusers do not value, respect or even like those they are publicly charged to care for and support. They appear to revel in the power of being able to control people.

Finally, what role – if any – do psychiatrists and psychologists play in setting, reinforcing and challenging the attitudes and practice that collectively make up the culture within which the powerless are detained?

Where were the psychiatrists and the psychologists at Winterbourne View, Whorlton Hall and Cawston Park?

Is the model of leadership open and transparent? Is the model of care under the Mental Health Act still appropriate, given the concerns that have emerged in relation to people with learning disabilities?

In every case of institutionalised abuse, the issue to urgently address is the culture operating within a closed system. We need to be more intrusive to explore the culture operating the institutions and who sets or defines it, as well as how cultures change for good or ill and how they can be reinforced or challenged.

‘Not to challenge a psychiatrist is no longer an option’

My journey to understand and critique potential unlawful compulsory admissions of learning-disabled people to hospital has been given added impetus by George Szmukler’s general examination of mental health legislation.

This has significantly affected my own practice in how I will conduct care and treatment reviews.

I will insist not only that I examine admission paperwork signed off by the responsible clinician but also that I am given written evidence to illustrate the behaviour on which the admission is founded. I will ask for evidence of how this was deemed to be directly linked to clinical status, not the outcome of some stimulus unconnected to the disability.

Not to challenge a psychiatrist is no longer an option.

Ken Stapleton is a social worker