Lucy Series / 1 day ago
The Mental Health Bill reaches its second reading in the House of Lords tonight. This is a quick post to explain why it won’t stop the detention of autistic people and people with learning disabilities. If you want all the footnotes and references, then please take a look at this briefing I wrote about it for the Joint Committee on the Mental Health Bill. If you read the evidence to the Joint Committee on the Draft Mental Health Bill you will also find lots of other people making the same arguments. There is also an excellent briefing note by the Parliamentary Office of Science and Technology (POST) on this topic.
Autistic people and people with learning disabilities could be detained on grounds of other mental health problems instead. The Mental Health Bill ‘removes’ learning disability and autism as potential grounds for longer-term detention for treatment under s3 Mental Health Act 1983. This is not the same as prohibiting the detention of autistic people or people with learning disabilities. It just means that when the paperwork is filled out, those seeking to detain them cannot use ‘autism’ or ‘learning disability’ as the mental disorder that justifies the detention. Statistics on the detention of autistic people and people with learning disabilities show that 50% of detained inpatients have other psychiatric diagnoses, which could potentially form the basis for detention. Statistics on ‘co-morbid’ mental health problems provided in the POST note I referred to above put this even higher.
Some people could still be detained long-term via forensic pathways, under Part III of the Mental Health Act. This point was made by several experts giving evidence to the Joint Committee on the Draft Mental Health Bill. Some autistic survivors felt this could be worse for them.
If you take people ‘out of scope’ of the Mental Health Act, they become potentially eligible for detention under the Mental Capacity Act instead. This is because of the way a complicated rule operates governing the interface between the two statutes. Ordinarily if a person could potentially be detained under the Mental Health Act and they are ‘objecting’ to their confinement in hospital or their treatment there, then you cannot use the Mental Capacity Act to detain them. This is presumably why most people with learning disabilities or autism are detained under the Mental Health Act at present. But if you remove them from the scope of the Mental Health Act, then you can potentially use the Mental Capacity Act to detain them instead, even if they are objecting. If they are under the Mental Capacity Act deprivation of liberty safeguards their protection against arbitrary detention, and the ‘levers’ available to them to challenge their confinement, are significantly weaker. They also lose eligibility for free after-care, which is linked to s3 Mental health Act. (See pages 4-5 of my evidence to the Joint Committee for more differences in safeguards between mental health and capacity law)
‘Removing’ people from the scope of the Mental Health Act does not address the underlying reasons they are in crisis and a hospital admission is being considered, and it does not address the inertia and lack of accountability in securing people’s discharge to an appropriate placement. It is well known that these problems are tied up with the ongoing crisis in children and adult’s social care. This crisis is in itself linked to years of under-funding, workforce shortages and market failure. Until social care is fixed, these problems will persist and people will reach a crisis point where nowhere else is willing or able to accept them.
Even if we removed all statutory powers – Mental Health Act and Mental Capacity Act – for detaining autistic people and people with learning disabilities in psychiatric settings, I believe that hospitals and courts would find a way to do it anyway. This is because if they are faced with a situation where there is literally nowhere else for a person to go, they are not going to simply discharge them. Instead, they are either going to grind on with an illegal detention (bearing in mind this is happening up and down the country anyway under DoLS) or they will seek authority from the courts under their inherent jurisdiction. We already know that the Family Court often has to approve totally inappropriate care plans involving deprivation of liberty for children for want of alternatives.
If you want to solve this problem, you need to solve children’s and adult’s social care. I think there are also changes that could be made to the Mental Health Bill that could enhance accountability and improve challenge mechanisms, but that’s a blog post for another day.