What does the Mental Health Act White Paper mean?
In January 2021 The UK Government published Reforming The Mental Health Act, a White Paper setting out proposed changes to the Mental Health Act 1983 which applies to England and Wales.. The consultation period ends at midnight April 21st 2021. What began as David Cameron’s legacy quest, which then became Theresa May’s Burning Injustices ends in what will eventually be an endless barrage of new laws passing through Parliament in the wake of brexit.
The road to this White Paper began some time back in the days before brexit, when David Cameron was looking to cement his legacy. David Cameron’s Life Chances strategy was a casualty of his premiership expiring on the morning of the EU referendum result on 24th June 2016, and was officially ditched by the May government in December 2016. Mental illness, however, remained as one of the burning injustices set out by Theresa May in first speech as Prime Minister on 13th July 2016.
The Independent Review of the Mental Health Act was announced in October 2017 in May’s first conference speech in the aftermath of the disastrous snap general election, under the eye of Health Secretary Jeremy Hunt. Matt Hancock became Secretary of State for Health and Social Care on July 9th 2018. The first minister for suicide prevention, Jackie Doyle-Price was appointed on 10th October 2018. The Independent Review reported back on 6th December 2018.
It isn’t clear to me who exactly is the champion of these proposed reforms.
May made it to June 7th 2019. Nadine Dorries was appointed Minister of State for Mental Health, Suicide Prevention and Patient Safety on 27th July 2019 by Boris Johnson. The 2019 General Election took place on 12th December 2019. The first lockdown of the coronavirus pandemic began on March 23rd 2020. Brexit occurred on 1st January 2021.
In a lot of ways, the ownership for the broader mental health improvement agenda lies with the folks who wrote the NHS Long Term Plan which came out in January 2019, and the NHS Mental Health Implementation Plan 2019/20–2023/24 which came out on 23rd July 2019, both of which arguably are the NHS’s own vision of where it’s going. The Community Mental Health Framework for Adults and Older Adults published in September 2019 by NHS England and NHS Improvement and the National Collaborating Centre for Mental Health completes the line-up.
In many ways, the budget for any of the stuff in these documents is part of the wider horsetrading between NHS England and the Westminster government. What the NHS wants is money, not a change to the law.
Local authorities are still waiting on a social care green paper, which as The House of Commons Library tetchily notes, “has been delayed several times: it was originally due to be published in “summer 2017”. The latest position, stated in September 2019, is that it will be published “in due course”.
- The unfinished revolution
The phrase ‘unfinished revolution’ is often used about mental health care in England. With the proposed changes, there is a chance that this revolution will continue to be half finished. There is also a broader question of what this revolution really aims to overturn and who will be final holders of power come the glorious day.
The question of who will hold greater power is an interesting one. In theory the increase in the status of the Advanced Statements is good news for our folks, in practice this may have less of an impact than we might expect. Given the increased power of tribunal as a legal process where the case for or against incarceration is heard, but where medical matters are not decided, there is perhaps a greater impersonal access to rights but whether that actually will translate into people being treated better is an open question.
Two things that influence this greatly is the final form that any expansion of Independent Mental Health Advocates’ role takes and how the power of oversight provided by the Care Quality Commission changes.
In some ways, what is actually happening is making Independent Mental Health Advocates a mirror ‘on the inside’ of the role Approved Mental Health Professionals play on the outside. I feel that the IMHAs, their funding and the construction of this role is one of our areas of focus.
2. It’s not really anyone’s birthday present
There’s little really in the White Paper that really is a punch the air moment for many people. There’s lots of great commitments to making sure that people with learning disabilities and autistic people aren’t detained under the Mental Health Act; that a less terrible job will be done of meeting Balck people’s mental health needs and more; but it’s very far from a wholesale redesign of the mental health system, and often quite far from what people would understand as the difficulties and challenges on an everyday level. The areas where it is most responsive to current concerns are around the people who really shouldn’t be held under section on psychiatric wards and the move away from mixed sex and dormitory accommodation. There isn’t a ‘war on woke’ within it terribly much, and it’s stayed very much on the target Theresa May set for it right back in January 2017, and delivered pretty much on time for when the end of the Parliament would have fallen.
The view that it is a pretty technical document is correct. My concern is twofold. Firstly, it concerns me that many of us who do or live with mental health stuff every day are struggling to get our heads around what much of it means, which means anyone not as dug into this stuff as us is likely to struggle. The grand prize to pursue would be to be able to extrapolate effects from the intended changes, but I’m not sure that we, or that many others, are in a position to do this. My second concern, allied to the first, is that either the final Bill scrapes though unscrutinised or that it gets through with some baffling and senseless amendments. Again, the grand prize is being able to say whether what the stated intention of a change will do is what it is described as doing and, if not, what the likely effect will be.
3. It’s the ________ stupid
I think one of the challenges of scrutinising the White Paper is there is a broad sense that it is a step forward. It may or may not be. Where it has landed with wider public opinion is that it has some good headlines and that must be positive, yeah? With our folks it’s a bit more ambivalent, with it not hugely hitting any massive buttons and there being a fair bit of cynicism or something akin to ‘it doesn’t matter who you vote for the government still gets in’. It’s a bit hard to work out what this White Paper is actually *about* in terms of what it proposes for law. It feels to me that the most charitable way of seeing many elements of it is that they indicate a direction of travel. The challenge with that is, direction of travel or not, if passed into law they will be the law until the next update of the mental health act. It’s being sold as a long overdue overhaul, which it is, but the narrative of what is being overhauled is less clear. We’re close enough to this to see that ‘mental health’ is an umbrella term under which many different things can be happening all at once.
It’s possible to argue that it’s the ‘freedom’ white paper, making such a thing of the intention of detaining fewer people for less time for reasons subject to more scrutiny. This you could see as being very much an Enoch Powell ‘water towers’ moment which is intended to usher in a new Care in the Community era. If that’s the case, the questions are: is it realistic to expect everything else to change for this work? Has the pandemic and brexit blown whatever this was supposed to be off course?
You might argue that this is the ‘equality’ white paper, where issues of inequality are addressed in the law surrounding detention and treatment. There are certainly measures in place that attempt to remove disparities or tweak practice in favour of not being massively racist or sexist. If so, then, the questions are: what does equality mean in this context? Are the measures enough?
If this, as I said above, is the ‘justice’ white paper, then the questions are about whether the paper delivers rights or justice in a meaningful way.
I think it’s also worth noting that the white paper, and any reform agenda within it, currently has no parent in government. It’s an orphan of another political age (2017 to be precise). A lot has happened since then. Seen through this lens, the parents nursing this through are not politicians but wonks and a load of NHS England people and civil servants. In that sense, you could call it the ‘tidying up loose ends’ white paper. But the questions here are which loose ends and which are left hanging? Mental health is certainly not a centrepiece concern, if the most recent budget has any pointers of future direction of travel.
The White Paper is also out of step with the wider developments in policy related to social care, the NHS and other bits and pieces. How what is suggested for policy, and what some of the changes depend upon to be able to be realised, will affect the delivery of things that cannot be decreed by a stroke of a pen leaves a number of proposals in it somewhat up in the air. So much of what happens to the stuff legally mandated by the paper depends on the work of local authorities and more.
4. Think of this as the rules, not the board
I’ve been playing a lot of boardgames during lockdown, and the White Paper reminds me very much of an updated rule set to a boardgame. Some of the pieces might move a bit differently, the turn sequence might have been tweaked, but overall the aim of the game and the victory conditions haven’t really changed. One of the major shifts in the paper is to introduce more checks into whether someone can continue to be held under the act, but that doesn’t necessarily mean that individuals who find themselves subject to the act will feel that they have greater day-to-day control over what happens to them. I’d like to ask a few people what they feel about the White Paper in answer to this question: ‘do you feel the White Paper would lead to more discharges of people who aren’t ready or fewer?’
5. The bits that people are interested in won’t be decided by the White Paper, unless significant amendments are made
Most of the stuff that people are really interested in (police, community, ambulances, places of safety) all fall beyond the scope of the White Paper and the current Act and require outside strategies and outside spending commitments. If those things don’t happen externally to this White Paper and Act revision, then some of the things planned will not happen. Put in this context, the driver for other change is ‘without these other things happening, it will be impossible to operate in ways compliant to the new law’. Either this can be a positive in that it anchors intended changes or negative in that it makes these things a hostage to fortune.
I think it’s legitimate to question whether any of the associated changes required will actually come into action in the ways intended, especially looking at the budget decisions made in the most recent budget and the immense task for the NHS and other bodies in catching up on ground lost during the pandemic.
6. Conclusion: Two prime ministers, one brexit, one pandemic later
It is undeniable that a lot of work has gone into developing the White Paper, and that it includes many tweaks to the way in which law functions. As I found hosting a panel discussion about the White Paper, expert opinion isn’t so much divided on the proposed changes as it is ‘something needs to change, but is it this?’.
Beyond the headlines, the first question to ask is ‘do these proposals stand to increase good care and reduce bad care? The questions beyond that are more slippery, as they depend on the starting point of someone’s view of the legitimacy of spending someone’s human rights to provide them care. The White Paper talks about ‘only if therapeutic benefit can be delivered’ but defines therapeutic benefit very hazily.
I think it’s legitimate to frame further questions in terms of legal nature, so ‘what is the recourse to justice for an individual?’ is important. The White Paper isn’t a bill of rights for people detained. Two supplementary questions to this are: ‘will what is proposed in the White Paper enable individuals to change their individual care?’; and ‘will what is proposed enable individual or collective action to change the care available?’
It can seem that lots of more important stuff needs to be done right now, what with pandemics and brexit and everything, but changes to law are massive things. Rather than framing discussion of the White Paper in terms of better or worse, the actual way of looking at it is ‘how different?’ and ‘more or less desirable?’
The last revision to the Mental Health Act happened in 2007, with the process of that revision taking at least seven years of backwards and forwards. Perhaps this one will be quicker, but I wouldn’t bet on it. As a White Paper with few parents in government, I think there’s a strong chance that what is in the White Paper is only the outline of a recipe that will take a different form depending on the ingredients available and who, if anyone, is minding the stove.
