How can we start increasing patient autonomy and independence under the Mental Health Act?

Whatever your view of the Mental Health Act, what it does is restrict freedom and choice in a way that those of us without mental health problems, or who have never experienced a mental health crisis, do not have to worry about.

What happens during your time on a ward?

My first experience of the Mental Health Act was working as a solicitor for detained patients. One of the things that struck me was that it gives a detailed process for how people get into hospital and how they get out, but there really isn't much in there about what happens during your time on a ward.

If you wanted to be discharged I could represent you at a tribunal hearing, but there really wasn't anything I could do about the many other things that are incredibly important to you while you are detained: whether you got to go to your mum's funeral, that you were in a hospital six hours from home, which medication you were prescribed, whether or not you can have your mobile phone, etc.

No choice, no voice

I doubt that those of us who have not been detained can fully understand the extent to which you are controlled. No choice, no voice?, a report by the charity Rethink Mental Illness (pdf), gives some insight:

"These people, doctors, who are supposed to be fair had control over my clothes, shoes, bedding. Everything. 

I was reflecting back on it and I realised how weird it was that I had to earn back my shoes."

Increasing autonomy within the confines of the terms of the Act means giving back as much power as possible to the people who are most impacted by it. It means allowing people to make decisions for themselves whenever they can and supporting them to do so whenever they cannot.

Independent Review of the Mental Health Act

The final report from the Independent Review of the Mental Health Act published in December 2018 sets a high ambition with its title: Increasing choice, reducing compulsion. And yet the Mental Health Act does exactly the opposite:

• it allows people to be medicated against their will
• detained for crimes they have yet to commit
• have their freedom restricted, even after they've left hospital.

So, how do you increase autonomy within a piece of legislation that was essentially designed to take it away?

What the Review suggests as ways to do this:

• The creation of a statutory support plan that will record patients' views

• More guidance on shared decision-making in the Code of Practice, particularly around medication

• More access to second opinion doctors who review medication decisions and a limited right to challenge treatment decisions at the tribunal

• Allowing patients to choose their own 'nearest relative'

• Advance Choice Documents that allow people to say how they want to be treated in the future and require doctors to record why treatment preferences are not followed

The Government accepted the latter two following publication. We are yet to see change. The Government must urgently get on with a response to the rest of the Review.

What is important is that these recommendations take two key steps. First, in order to give more weight to people's wishes, you first need to know what they are. They encourage people to say what they would want in advance and require professionals to find and record them when making decisions.

The second step is to improve transparency by requiring decision-makers to record when and why they don't follow what someone wants. Crucially, this enables people to challenge decisions they disagree with. The recommendations in the Review also cover this to some degree, giving people limited appeal rights over treatment.

But would this really all signify a shift in the balance of power? I'm not convinced. To do that you would need to increase the number of decisions in which the patient has the final say. These remain very, very few. Others even advocate for a capacity-based system, in which a person's assumed ability to make decisions is the starting point.

Transparency is a good first step, but it is just that, a first step.

For those in practice

We need solicitors representing detained people to make the most of these new avenues for challenge, in particular the new tribunal powers. For example, the Mental Health Act Review has recommended that the tribunal have 'a limited power to direct the provision of services in the community'. Depending on how limited it is, this could be a game-changer for people stuck in hospital because of the absence of support in the community.

These recommendations are a way-off being a reality. In the meantime mental health lawyers need to be live to areas of illegality and willing to take challenges outside of the usual tribunal application for discharge. This is easier said than done; the current legal aid system rewards a high volume of bread-and-butter tribunal applications. But there are other things out there, including:

• Restraint and seclusion: do trusts have policies in place? Are they compliant with the Code of Practice and NICE recommendations? Has your client's treatment crossed the Article 3 threshold?

• Aftercare: does your client have an aftercare plan? NICE guidelines and the Code require all eligible patients to have one, but our Leaving Hospital report found that only about one in five eligible people have one. Has your client been refused a social care needs assessment?

• Police involvement: has your client been detained for longer than the Policing and Crime Act 2017 allows? Were they kept in an inappropriate 'place of safety'?

Pursuing issues other than discharge is not straightforward, but these things really matter to people and if we don't challenge them areas of terrible practice will continue.

Views expressed in our blogs are those of the authors and do not necessarily reflect those of the Law Society.