Page 8 - Community Living Magazine 34-4

legal: mental health
Perils of mental health law reform

Taking people with learning disabilities out of mental health I argue in a book I am writing that this
law under government plans could increase their risk of being has deep historical roots in how these
different populations were parsed and
detained and make it harder to resist, says Lucy Series treated in the late 19th and 20th century,
with one group deemed curable and the
other incurable but perhaps trainable.
emoving people with learning from the scope of the MHA, they might be Arguably, removing some populations
disabilities and/or autism from free to leave. from the scope of the MHA because it is
Rmental health legislation has been a On the first question – whether mental associated with stigma is simply
policy goal for organisations campaigning health legislation does or should apply reinforcing that stigma for others without
with and for these groups since at least – it is important to note that the addressing the core problem.
the mid 20th century. legislation itself explicitly includes On the second assumption, I suspect
This is now being proposed in a “disability of the mind” in its scope many will argue that removing people
government white paper, Reforming the (section 1(2), MHA). The intent was clearly with learning disabilities and autism from
Mental Health Act 1983. to include longer-term disabilities as well the scope of the MHA will mean they are
There are, broadly speaking, two main as intermittent conditions. less likely to be detained in hospital
reasons for campaign bodies to support settings such as ATUs. While I absolutely
the move. support the intention here, I believe the
First is a sense that, properly speaking, Detention under the Mental opposite outcome might result.
mental health legislation is not about Capacity Act could mean fewer Odd as it might sound, removing people
this population; the “mental disorder” from the scope of the MHA will not
defined in section 1 of the Mental Health independent professionals will actually prevent them from being
Act 1983 (MHA) refers to people with be scrutinising admissions and detained in hospitals and ATUs, and might
“mental illnesses” such as schizophrenia, even make it easier to detain them where
bipolar and depression, not lifelong the frequency of reviews they or their families object.
conditions such as learning disability and This is because – for complicated
autism. It is therefore wrong to apply reasons that I will try my best to explain
mental health legislation to people who In addition, the Mental Capacity Act shortly – when you take people out of the
are disabled and not experiencing mental 2005 (MCA) frameworks for detention use scope of the MHA, they become “eligible”
health issues. exactly the same term and definition of for detention under the MCA instead. The
The second concern is that too many “mental disorder” to define the DoLS are a framework for detention
people with learning disabilities and/or populations who can lawfully be detained within the MCA that apply in hospitals
autism are still incarcerated in under the Deprivation of Liberty and care homes.
inappropriate hospital “care” – assessment Safeguards (DoLS) and the Liberty
and treatment units (ATUs) such as Protection Safeguards (LPS). Inadequate new safeguards
Winterbourne View and Whorlton Hall. The belief that the MHA should not Given the acknowledged inadequacy of
Today, many of these people are apply to people with long-term these safeguards, next year the DoLS will
detained under the MHA, so it is natural developmental disabilities (or, similarly, be replaced by a new framework, the LPS.
to assume that if people with learning people with brain injury or dementia) Unfortunately, the LPS are full of problems
disabilities and/or autism are removed is cultural, not legal. as well.
So although people with learning
disabilities and autism might no longer be
Risks and alternatives to Mental Health Act changes detainable under the MHA, they could
very well find themselves detained in the
l l Moving people out of the scope of the l l If we want to prevent people from same places, and subject to similarly
Mental Health Act 1983 (MHA) will being detained in hospitals and ATUs, restrictive regimes and treatment
not mean they cannot be detained in we need to address both laws. A (without consent) under the MCA instead.
hospitals or assessment and possibility is to pair a prohibition on If they are detained under the MCA,
treatment units (ATUs); it will mean detention under the MHA with a rule they and their families will have fewer
they can become detainable – in these requiring authorisation by the court opportunities to object to or challenge
same places – under the Mental of protection for admission. This their detention and treatment.
Capacity Act 2005 (MCA) instead could be a strong deterrent and The interface between the MHA and the
l l The MCA’s structures and safeguards ensure families and patients are MCA is so horribly complicated that a
are widely considered to be weaker in able to challenge any admission and senior judge described it as like putting
terms of independent scrutiny and explore alternatives your head in a washing machine and spin
rights of challenge, so patients and l l A preferable option would be to rip up dryer. Another judge observed that
families could end up finding it even both the MHA and the MCA and come people who find themselves entangled in
harder to prevent admission or up with a unified legal framework that this legal interface will have an incredibly
effect discharge grants effective rights to everyone hard time understanding and exercising
their rights.

8 Vol 34 No 4 | Summer 2021 Community Living www.cl-initiatives.co.uk