Jeremy Dixon is a Lecturer in Social Work in the Department of Social and Policy Sciences at the University of Bath. His research interests focus around the sociology of mental health and illness, and the sociology of risk and uncertainty.
Julie Bevan is an expert by experience having used secondary mental health services over the past 30 years. She worked in Voluntary Sector mental health services as a support worker, and has been working as a mental health trainer for various organisations including Avon and Wiltshire mental health partnership.
Detention under the Mental Health Act can be traumatic for service users and their families. Whilst most people with mental health problems are treated in the community, they may be detained under the Mental Health Act 1983 in the interests of their own health, their safety, or for the protection of other people. The decision about whether to detain an individual is made by an Approved Mental Health Professional and two doctors. Such decisions are ethically challenging because they involve removing a person’s autonomy, allowing them to be detained and given medication against their will.
The Government sees detention under the Mental Health Act as necessary for the protection of people with mental health problems and the wider public. However, they have also expressed concerns that professionals are over-using their powers. In 2017, the Prime Minister highlighted that detentions under the Mental Health Act had grown steeply, with 50% more people being detained in 2015-16 than ten years previously. These concerns led the Government to commission an Independent Review of the Mental Health Act which reported in 2018. A key task of this review was to determine whether the Act included the correct checks and balances to protect patient’s rights. An important finding was that the Government needed to do more to protect the rights of detained patients. Specifically, the report noted that the mental health system needed to be,
"more responsive to the wishes and preferences of the patient, to take more account of a person’s rights and to improve the ability of patients to make choices even where their own circumstances make this far from easy” (2018, p. 12).
The Independent Review of the Mental Health Act argued for a ‘re-balancing of treatment decisions’ so that greater weight is given to the wishes of the patient. They recommended that patients should be helped to complete a Statutory Advance Choice Document (ACDs) stating their wishes and preferences about treatment. An ACD would include information about a person’s treatment preferences, what treatments they do not want, who should be consulted if they were detained, and communication and cultural preferences. The ACD would also include the person’s views about what behaviours might signal a relapse in their mental health problems and their views on the type of crisis care they would like to receive.
Under these proposals, people who are detained under the Mental Health Act 1983 would still be able to be treated against their will. However, clinicians would need to show that they had taken reasonable steps to find the ACD, and that they had taken account of its contents or would need to give written reasons for not doing so. In addition to this, Mental Health Tribunals, who hear patient appeals against detention, would be able consider how far the ACD had been taken into consideration, which would inform their view about whether further detention was warranted.
Following the review, the Government has accepted that people should be able to express their wishes and preferences through ACDs, and has stated that they will change the law accordingly. Although, there is some danger that this decision will be kicked into the Brexit ‘long grass’ with ministers stating that this will happen ‘when parliamentary time allows’.
We welcome the new proposals for ACDs, however ACDs are not entirely new. There have been measures in place for some time to promote ‘advanced statements’ – a statement to record a person’s wishes, treatment preferences, and beliefs - although, there have been several drawbacks with this. Advanced statements are often not known about by mental health staff, and the use of advanced statements across mental health trusts has also been patchy. Additionally, advanced statements are not legally enforceable, meaning that they can easily ignored by clinicians.
The proposal by the Independent Review to make ACDs visible to clinicians and enforceable is welcome, however there are several potential difficulties. The Government has a record of encouraging people to plan for the future whilst they have mental capacity, but the public is often reluctant to do this on the grounds that they find it difficult to think about managing unpleasant events. The issue of how ACDs come to be considered by clinicians and Tribunals will also be crucial. It is currently easy for clinicians to dismiss the views of individuals who are detained under the Mental Health Act, because the Mental Health Act allows for compulsory treatment, even when the person has mental capacity. In our experience, there is a danger that clinicians can reject the views of people with mental health problems on the grounds that they ‘lack insight’ due to their mental illness. This response can be invalidating for the person in hospital, especially when they have gone through the often-difficult process of writing an advanced directive in the first place. This can then lead to a lack of trust between the person detained and mental health services in the future.
Several things may be done to overcome these difficulties. We acknowledge that people may find it difficult to plan for the future. One way to overcome this would be to encourage key workers or Independent Mental Health Act Advocates to help people complete ACDs, as the review suggests. Reviewing ACDs regularly may also increase engagement. This is because it may be difficult for people to anticipate their wishes and preferences when they are new to the mental health system. Reviewing ACDs after admission should also enable individuals to reflect on their experience and to record which treatments were helpful and what they would want to be done differently in the future. Measures may also be taken to assure individuals that their views will be respected. ACDs should be completed where individuals have the mental capacity to make decisions about their future treatment, and key-workers should sign ACDs to confirm that the individual had capacity at the time of making the plan. Whilst compulsory treatment could still be given, this could no longer be justified on the basis that the person ‘lacked insight’ into the relevant treatments.
Lastly, we would acknowledge that key workers in mental health services are extremely stretched and advocacy services are patchy. Therefore, if ACDs are to have a reasonable chance of success, ring-fenced resources will need to be provided to help people with mental health problems create them.