Unintended consequences of taking people with learning disabilities and/or autism out of scope of the Mental Health Act 1983

As some of you know I have been on maternity leave since November, and still am. So this brief blog post is brought to you from a heap of books balanced on a kitchen worksurface whilst I attempt to rock a baby to sleep in a sling. The baby is not on board with this plan, it would seem.

During maternity leave I have mostly disengaged from social media and the world at large to focus on things here, but I felt it was important to highlight a specific issue in the recently published white paper, Reforming the Mental Health Act 1983: the potentially serious unintended consequences of taking people with learning disabilities and/or autism out of scope of the Mental Health Act 1983 (MHA).

Removing people with learning disabilities and/or autism from mental health legislation has been a policy goal for organisations campaigning with and for these groups since the mid twentieth century, with roots in the late nineteenth century. There are, broadly speaking, two main reasons for this. Firstly, a sense that properly speaking mental health legislation is not properly ‘about’ this population; that the ‘mental disorder’ defined in s1 MHA refers to people with ‘mental illnesses’ such as schizophrenia, bipolar, depression etc, and not lifelong disabilities such as learning disability and autism. That it is therefore wrong to apply ‘mental health’ legislation, with all its stigma, to people who are disabled and not experiencing ‘mental health’ issues. The second concern is that too many people with learning disabilities and autism are still incarcerated in inappropriate hospital ‘care’ – ATUs like Winterbourne View and Whorlton Hall. Today, many of these people are detained under the MHA, so it is natural to assume that if people with learning disabilities and/or autism are removed from scope of the MHA, they might be free to leave.

On the first question – of whether mental health legislation does or should properly apply to people with learning disabilities and autism – it is important to note that the legislation itself explicitly includes ‘disability of the mind’ in its scope (s1(2) MHA). I am no philosopher, but the intent was clearly to include longer term disabilities as well as intermittent conditions. In fact, the Mental Capacity Act’s frameworks for detention use exactly the same term and definition – ‘mental disorder’ – to define the populations who could lawfully be detained under the deprivation of liberty safeguards (DoLS) and the Liberty Protection Safeguards (LPS). The belief that the MHA should not apply to people with long term developmental disabilities (or, similarly, people with brain injury or dementia) is cultural not legal. I argue in a book I am currently writing that this has deep historical roots in how these different populations were parsed and treated in the late nineteenth and twentieth century; one group deemed ‘curable’ and the other ‘incurable’ but perhaps ‘trainable’. Moreover many people diagnosed with ‘mental illness’ do not believe that mental health legislation should apply to them either; this is a major thrust of campaigns linked to the Convention on the Rights of Persons with Disabilities. Others take the view that whilst powers of compulsion might sometimes regrettably be necessary, they should apply to all regardless of the nature of their diagnosis. This universalism is one of the main arguments for ‘fusion law’ (combining mental health and capacity legislation to apply across all populations and all types of health and social care). Arguably therefore removing some populations from the scope of the MHA because it is associated with stigma is simply reinforcing that stigma for others without addressing the core problem.

I want to spend longer on the second assumption – that removing people with learning disabilities and autism from the scope of the MHA will mean that they are less likely to be detained in hospital settings like ATUs. I suspect a lot of organisations and individuals arguing that people with learning disabilities and/or autism should be removed from the scope of the MHA believe this to be the case. Whilst I absolutely support the intention here, I believe the opposite outcome might be true. That – odd as it might sound – removing people from the scope of the MHA will not actually prevent them from being detained in hospitals and ATUs, and might actually make it easier to detain them where they or their families object.

This is because – for complicated reasons which I will try my best to explain shortly – when you take people ‘out of scope’ of the MHA, they become eligible to be detained under the Mental Capacity Act 2005 (MCA) instead. The MCA has a framework for detention called the deprivation of liberty safeguards (DoLS), which applies in hospitals and care homes. This is widely acknowledged to be a rather crappy system of safeguards, so next year it will be replaced by a new framework called the Liberty Protection Safeguards (LPS). Unfortunately, as I have argued here, the LPS are full of problems as well. So although people with learning disabilities and autism might no longer be detainable under the MHA, they could very well find themselves detained in the same places, and subject to similarly restrictive regimes and treatment without consent, under the MCA instead. If they are detained under the MCA, they and their families will actually have fewer opportunities to object to or challenge their detention and treatment.

I hate having to explain this area of law, known as the interface between the MHA and the MCA. It is so horribly complicated that a senior judge described it as like putting your head in a washing machine and spin dryer. Another judge observed that people who find themselves entangled in this legal interface will have an incredibly hard time understanding and exercising their rights. So please bear with me here…

Let’s try an analogy. Imagine I have a jug of water, representing people who might potentially be involuntarily admitted to hospital. The MHA is a cup which can ‘capture’ a certain proportion of these. The MCA is a large mixing bowl which the cup sits inside, and this can also ‘capture’ people in hospital. If you make the cup smaller, then the water spills over into the larger mixing bowl instead. The MCA is basically a legal overflow system for populations who have for various reasons been ousted from the MHA. This includes some people with learning disabilities (and autism, if this proposal is adopted), but it can also be true for other groups. For example, people with dementia are sometimes thought to be less ‘risky’ than people with mental illnesses, and not to meet the risk-based criteria for detention under the MHA. But for whatever reason clinicians might deem it as being in their ‘best interests’ for them to be in hospital, even if they cannot consent to that, so the MCA DoLS can be used to detain them instead. Many clinicians consider brain injury outside the scope of the MHA.

Another example, is suggested by Richard Jones – author of the biblical-status Mental Health Act Manual and Mental Capacity Act Manual. A person who has been detained under the MHA and then discharged by a mental health tribunal because they don’t meet the MHA’s criteria for detention cannot then be re-detained under the MHA. The reason for this is obvious: the whole point of a discharge mechanism like a tribunal is to uphold the legislative and policy intention of a law which says you should only be detained if certain criteria are met. But Jones argues, and I think he’s correct on this as a point of law, that since a person discharged by a tribunal is no longer ‘within the scope’ of the MHA, they therefore become ‘eligible’ for detention under the MCA DoLS instead. So the same person could then be (re)detained in the same place, just under a different law. I cannot fault Jones’ legal analysis here, but I it seems perverse that you could set up a law precisely to discharge people from detention when they do not meet certain criteria, only for them to be detained again under a different law.

The statutory provisions and vocabulary for this are slightly different under the DoLS, and under the LPS system which will replace the DoLS next year, but the basic mechanics are the same. I explain this in more detail in my own response to the MHA consultation (below). Basically, the rule is that a person is ‘ineligible’ for detention under the MCA if they are both ‘within scope’ of the MHA (i.e. an application for detention under the MHA ‘could be’ made) AND they are objecting. The point of this provision was presumably to ensure that people who are objecting to detention or treatment in hospital are given the more rigorous legal safeguards of the MHA and not the weaker safeguards of the MCA. It also maps onto a historical view of mental health legislation, which emerged in the mid-twentieth century, that properly speaking it should only be used for people who are resisting detention. In fact the Independent Review of the MHA and the white paper also propose tightening up this distinction, so that only people who are objecting to their detention or treatment can be detained under the MHA, and everyone else would be subject to the MCA instead. (There are other problems with this proposal, which I’ve outlined in my consultation response, because it also involves expanding the scope of the MCA to include ‘risk to others’ grounds for detention, which potentially clashes with its foundational ‘best interests’ principle).

The problem is – and I am not altogether sure the independent review or the white paper have picked up on this – that if you take people ‘out of scope’ of the MHA then the objections rule loses its traction. This is because the rule is set up as a logical proposition that if you are both ‘within scope’ and ‘objecting’, then you are ineligible for detention under the MCA. So therefore if you are either a) not objecting, or b) not within scope, then you are not ineligible for the DOLS/LPS. Or – to remove all the double negatives – if you not ‘within scope’ of the MHA then you are eligible for detention under the MCA whether you are objecting or not. I’m not sure writing that in italics and bold made that any clearer. If logic isn’t your bag and you feel like you’ve just put your head in a washing machine and spin dryer then I refer you to the above point about how crappy it is to have two pieces of legislation doing essentially the same thing, and how easily rights can get mangled and lost in this interface. If you would like to check my working (and please, please do), then check out the provisions of Schedule 1A Part 1 (case E) for the DoLS version of the rule, and Schedule AA1 Part 7 s51 for the LPS version of the rule.

So to summarise then, the smaller you make the ‘cup’ of the MHA – by raising risk thresholds, by removing people with learning disabilities and/or autism from its scope altogether – the more people overflow into the MCA’s provisions for detention, including people who might actually object to being detained. For some people this still sounds ok. I have heard it argued that since it self-evidently would not be in a person’s ‘best interests’ for them to be detained in hospital, the MCA will protect them against that possibility. The trouble is, the concept of ‘best interests’ is inherently vague and subjective. I doubt there is a doctor in the country who would detain a person in hospital where they believe it is not in their ultimate best interests (albeit they might see it as the least bad outcome for that person from the available options). Perhaps the only exception to that is if they are detaining a person because they are considered to present a risk to others. Here’s the thing – the independent review and the white paper also proposes that ‘risk to others’ should become a new ground for detention under the MCA, to enable more people to be shunted from the territory of the MHA to the MCA. So even in a ‘not in the person’s best interests’ scenario, they could potentially still be detained under the MCA. In fact if anything the cuddly-sounding concept of ‘best interests’ can accommodate more potential reasons to detain than the MHA, as it is less tightly linked to risk. For example in the case of Northamptonshire Healthcare NHS Foundation Trust & Anor v Ml (Rev 1) [2014] EWCOP 2 (16 May 2014) a judge in the Court of Protection concluded it was in the best interests of a young man with learning disabilities and autism to be detained for up to two years in an ATU in order to help him fulfil his ‘potential’, notwithstanding that he had been discharged by a tribunal for posing less of a risk to himself and others, that (as the judge acknowledged) the outcome was uncertain, and this admission might make him unhappy and damage his relationship with his parents. So whilst you might believe it would never be in a person’s best interests to be admitted to an ATU, do not assume that those responsible for making such decisions will think the same way.

Let’s take a hypothetical example to work this through. Imagine a person – Ella – has autism and her care in the community is breaking down. She is currently considered by clinicians to pose a risk to others and they want to bring her into hospital for assessment and treatment. At present, they could make an application for detention for assessment under s2 MHA. She would not be eligible for detention under the MCA DOLS (or the LPS as presently drafted) because she is both ‘within scope’ of the MHA (that means an application under s2 could be made and she could be detained under the MHA) and she is objecting. But if the white paper’s proposal to remove people with ‘autism’ from the powers of detention of the MHA were adopted, then Ella would no longer be ‘within scope’ of the MHA: no application could be made under s2, or if it were it could not be granted. So even though Ella is objecting, she is now eligible for detention under the MCA – the DOLS at present and the LPS as of next year.

What does this mean for Ella and her family?

Well as things stand, at the present an Approved Mental Health Professional and two clinicians would have to agree that the thresholds for detention under s2 MHA are met. If Ella was detained under s2 MHA she or her nearest relative could appeal to the tribunal and they could get a hearing within weeks. Her odds of a successful appeal under s2 are reasonably high. After 1 month a new application for a longer term detention for treatment under s3 would have to be made. Her nearest relative could block this application by objecting, and the clinicians would have to ask a court to remove them from this role if they wanted to go ahead. Her nearest relative could also discharge her, and if clinicians want to prevent this they would need to issue a certificate that an even higher risk threshold for detention was met. If Ella were detained for longer than three months there would be an independent assessment of any medication she was taking that she does not consent to. And if she were detained under s3 MHA she would be eligible for free after-care to facilitate her discharge back into the community. If the other proposals of the white paper are adopted, she would also have a host of new rights to challenge treatment, to advocacy, to discharge planning etc.

I know that in reality things often don’t work out like this. Many families do not understand their rights as nearest relative, or they are reluctant to exercise them because there simply isn’t an alternative care plan in place. Being detained under the MCA instead will not fix that. In fact, it will potentially reduce the number of independent professionals scrutinising the admission, reduce the frequency of reviews. Whereas under the MHA a tribunal will automatically be convened for Ella after 6 months to review her detention, the odds of Ella having a court review of detention under the DoLS are 1% and projected (by the government) to fall to 0.5% under the LPS. She would no longer be eligible for free after-care. There would be no statutory discharge planning processes of the kind proposed in the MHA white paper. The white paper proposes that tribunals should be able to direct that proper care is provided in the community, but the MCA’s Court of Protection has no such powers. There are good reasons to believe Ella and her family might have a harder time preventing her admission, or getting her out, under the MCA than the MHA.

Would Ella be any less stigmatised for being labelled as ‘lacking capacity’ and detained under the MCA instead of the MHA? I honestly do not know, but I am pretty sceptical about this. My suspicion is that the stigma attaches to the location and the public perception of detention altogether, rather than the specific piece of legislation. If the MCA doesn’t yet carry the same stigma as the MHA I suspect that is because the public are largely unaware that it exists, or at least that it operates in this context.

So, my point is this – taking people with learning disabilities and autism out of scope of the MHA will not stop them being detained in ATUs unless we also fix the MCA. The baby is fractious now so there is not time to explore all the options here in any detail, but two possibilities are:

• We could argue for an absolute prohibition on hospital detention for this population, or a requirement for court approval for this.
• We could argue that the MCA should carry equivalent safeguards to the MHA. This would entail a major review of the LPS, which were only passed by Parliament a couple of years ago. I doubt government would want to revisit that turbulent exercise any time soon, but it is worth asking ourselves why someone should be entitled to lesser protection under the MCA for detention in the same kind of setting.

Read my response to the white paper consultation on the MHA here: l-series-reforming-the-mha-consultation-march-2021Download