by Chauncey Tinker – 16 Oct 2019
On Sunday a rather alarming headline caught my eye from an article in the Express:
Mental Health Act: New reforms to law will help protect the detained
According to this article, ministers are apparently going to look into ways of reducing the number of ethnic minority offenders who are held under the Mental Health Act. There is also a plan to give mentally ill offenders more control of what happens to them when they are detained. Both of these objectives immediately alarmed me, because when our justice system has objectives other than applying the law firmly and fairly for all citizens, then the crucially important principle of equality before the law is necessarily jeopardized. To put it in simple terms, for example if you stab someone then the colour of your skin should not be in any way shape or form a consideration, you ought to be detained so that you are no longer a danger to the public. Finally the article mentions another spending splurge from Boris Johnson’s government, apparently £2.3 billion of taxpayer’s money will be allocated for mental health services:
a further £2.3billion a year is promised by 2023-24
Will the money be well spent? I’m really not sure about that.
Just as an aside, this “social justice” style reform agenda was set in motion by Theresa May’s government, it is not the new government’s initiative. However I think it’s the case that these things tend to take on a momentum of their own, and especially considering that the new government is heavily pre-occupied with Brexit at the moment I think this reform agenda may proceed as it were under its own steam. I also believe these are very serious questions and it is important to keep a close eye on further complications that our government is adding to our already (in my view) very over-complicated laws.
As recently as last week we have seen a mass stabbing incident in the UK, this time in Manchester, where the perpetrator was detained initially under suspicion of terrorism, but later the reports changed to say that he was being detained under the Mental Health Act. Mindful as ever of the fact that we are not supposed to talk about cases that are in progress, I mention this incident only in passing, in reference to the planned “reforms”. From the Manchester Evening News:
Manchester Arndale stabbing suspect detained under the Mental Health Act
The suggestion that such an individual might deserve to be given more control over what happens to him when he is detained is something that I find deeply alarming. Furthermore there seems to be something fundamentally irrational about the idea that someone who is deemed to be not of sound mind should be given more control over what happens to them. What’s more I am increasingly alarmed by the fact that successive governments keep meddling with the law and adding more and more complications to it. When there are innocent people in danger the priority should be simply to protect those innocent people from harm, and I am increasingly concerned that the law has other priorities or that the priorities that should be paramount are getting increasingly obscured by the complications. Having been alarmed by what I was reading then, I began searching for more information about these proposed “reforms”.
Health Secretary Matt Hancock is the man quoted with regard to these announcements. (Incidentally he is a Remainer, another point about the momentum of this “reform” agenda is that a lot of the people who favour a social justice agenda are still in positions of authority). A report was published by his government department in December last year, here is a link to the report:
Government commits to reform the Mental Health Act
Here are some quotes from the above linked page:
Those detained under the Act will be allowed to nominate a person of their choice to be involved in decisions about their care.
People will also be able to express their preferences for care and treatment and have these listed in statutory ‘advance choice’ documents.
In October 2017, the Prime Minister announced an independent review of the Mental Health Act 1983 to make improvements following rising detention rates, racial disparities in detention and concerns that the Act is out of step with a modern mental health system.
So it seems the above media report on these proposed “reforms” was at least partially accurate.
The above linked page also links to the full pdf report, which is 322 pages long and consequently I haven’t had the time to read it in full unfortunately. I could only search through the report for what might be relevant to the question, and I mainly focused on the recommendations at the end.
I did search in the report for any specific references to serious cases such as the stabbing incident mentioned above. Quote from page 6 from a section titled “Fear”:
Professionals are fearful that unless they adopt a cautious, risk averse approach to their patients, they will find themselves being publicly shamed for those occasions when those same people cause serious harm to themselves or others. Patients are often fearful not only of the consequences of such illness but of how they will be treated by society in general and the mental health system in particular. They do not always experience kindness, particularly where the state’s powers of coercion have been invoked.
The recommendations begin on page 296, I have selected some key points that I think are relevant to the question of serious incidents. Always bearing in mind of course that these are merely recommendations, no doubt after whatever is decided has gone through the mangling process of parliamentary scrutiny something somewhat different will eventually emerge.
I think a general problem with the recommendations is that law enforcement personnel would find they are tied up in knots with red tape when they arrest violent offenders who have either previously been, or are at the point of arrest are deemed to have, mental health issues. For example just a few points from Principle 1 (there are many more that suggest reams of red tape will be involved):
Principle 1 – Choice and autonomy
3. MHA regulations and forms should be amended to require professionals to record how the principles have been taken into consideration, and to enable local auditing and monitoring and CQC to consider this as part of their monitoring and inspection role
5. It should be harder for treatment refusals to be overridden, and any overrides should be recorded, justified and subject to scrutiny (see Annex on Treatment Choices).
6. Statutory advance choice documents (ACDs) should be created that enable people to make a range of choices and statements about their inpatient care and treatment. These should be piloted to identify the detail needed to inform/impact practice.
8. Patients should be able to request a SOAD review from once their care and treatment plan has been finalised or 14 days after their admission, whichever is the sooner; and again, following any significant changes to treatment.
9. Patients should be able to appeal treatment decisions at the Mental Health Tribunal following a SOAD review.
A lot of opportunities for the practitioners of lawfare there I fear (and I only quote a few as examples). If any of these points are not followed in an individual case then presumably lawyers may try to use such failures as leverage in subsequent trials.
Points highlighted by the above media article are found in the “Family and carer involvement” section:
13. Patients should be able to choose a new Nominated Person (NP) to replace the current Nearest Relative (NR) role under section 26 of the MHA.
15. Patients should have greater rights to choose to disclose confidential information to additional trusted friends and relatives, including through the NP nomination process or advance choice documents.
22. The statutory right to an Independent Mental Health Advocate (IMHA) should be extended so that it includes:
a. all mental health inpatients, including informal patients;
b. patients awaiting transfer from a prison or an immigration detention centre;
Clearly if patients are “awaiting transfer from a prison” then they have been at least suspected of involvement in criminality, so it does begin to look as if yes, serious offenders such as our example perpetrator above will benefit from these protections.
From the section titled “Principle 2 – Least Restriction” :
Tackling the rising rates of detention
37. The Government should resource policy development looking into alternatives to detention, and prevention of crisis.
On the first point, seeking alternatives to detention in order to “tackle rising rates of detention” I think that is a deeply misguided goal. If mentally ill people are running around stabbing innocent members of the public I want them to be locked up; I don’t care about “rising rates of detention”, I care about the law being enforced in order to keep people safe. If we discard the prism of political correctness when we study what is happening in our society we soon realize that there are more people running around stabbing people today, because our leaders have allowed (and even brought) large numbers of people into our society from backward places where there are high rates of such criminality. Furthermore such a policy goal is likely to encourage law enforcement personnel to let violent offenders go more often in order to meet targets of “reducing rates of detention”. There was a case of this just the other day in Germany where a knife wielding migrant lunatic was released after just a day with the excuse that he only intended to frighten people. In a sane world, if there is more offending, then there would be correspondingly greater rates of detention.
On the second point, I don’t have any objection to the principle of “prevention of crisis”, it’s a good idea. The problem is that governments tend to have at best a poor track record in preventing crises, and in the Western world increasingly have a good track record of CREATING CRISES. I am not at all sure therefore that I want the government to attempt to prevent crises in individuals’ lives, especially not at the expense apparently of billions of pounds of taxpayers’ money.
On page 308 we find the section titled “The experiences of people from ethnic minority communities”. Some points from this section:
100. Culturally-appropriate advocacy should be provided consistently for people of all ethnic backgrounds and communities, in particular for individuals of black African and Caribbean descent and heritage.
101. Safeguards should be created so that patients are able to continue religious or spiritual practices while detained in hospital. These should prevent the use of restrictive practices that limit a person’s access to religious observance.
102. In line with the NHS Workforce Race Equality Standard programme, greater representation of people of black African and Caribbean heritage should be sought in all professions, in particular psychology and occupational therapy.
103. People of black African and Caribbean heritage should be supported to rise to senior levels of all mental health professions, especially psychiatry and psychiatric research, psychiatric nursing and management.
104. Behavioural interventions to combat implicit bias in decision-making should be piloted and evaluated
More “positive discrimination” targets then, and pandering to the followers of a particular religion, at taxpayers’ expense.
I could go on and on, there is plenty more to object to in this report, which a sane government would put in the waste paper basket where it belongs, for example see the section titled “A statutory Care and Treatment Plan” on page 302. The only positive thing I can see about it is that it is at least trying to redress some of the imbalance in previous versions of the mental health legislation which has led to unreasonably “risk averse” decisions. However this single point is so blindingly obvious that it scarcely needed all these supposedly learned people to spend such a long time compiling the report just to make that single point.
I did some further searching and came upon this article from the Guardian from July last year, regarding Supreme Court President Baroness Hale’s comments on the subject of the report mentioned above (Professor Sir Simon Wessely led the review):
Judge calls for Mental Health Act reform over rising detentions
“There is a real need for the Wessely review,” [Baroness] Hale said. “It is time for yet another Mental Health Act.”
Incidentally Baroness Hale has spoken out in the past to promote the so-called “social justice” and diversity agendas, for example she wants to see the appointment of more ethnic minority and female judges.
Time and time again governments will put forward legislation that is flawed, the flaws will be pointed out, and instead of ditching the whole bill the bill is amended so that we end up with a convoluted mess. No doubt we would find the previous attempts at Mental Health Acts to be examples if we looked into it, the evidence in any case is right here before us because now apparently the quite recent previous attempts need to be “reformed” already. Let’s hope this misguided “reform” agenda doesn’t get as far as that stage, but I rather fear that it will for the reasons I mentioned above.
My possibly rather controversial view on all this is that the priority should simply be with those who are guilty of stabbing others (etc) that they should be arrested and kept in detention until they are no longer a danger to the public. Obviously quite how we determine when and whether a person is not a danger to the public is a complicated topic and merits a separate discussion.
If some offenders cannot be handled by the normal prison system then there should be separate facilities that are capable of handling those more difficult offenders. I don’t really care if our muddle headed legal system decides whether they are mentally ill or not, the same principle should apply across the board, based on the seriousness of the offence and NOTHING ELSE. I also think that our prisons should not be lethally dangerous places to be, not least because it is inevitable that sometimes the authorities will get it wrong and lock up an innocent person.
Oh, and jihadis should be put in prison where they belong, preferably in a separate facility where they are not a risk to those who don’t share their peaceful religious beliefs.
The Principle of the Thing – Equality Before The Law
What do you think? Please leave a comment below.