The current Mental Health Act allows anyone deemed risky with a 'mental disorder' to be detained, regardless of their capacity to make decisions about healthcare. Additionally, anyone with a mental disorder who commits a serious crime can be placed under a Restriction Order control when people can leave hospital. Restriction Orders can only be lifted by the Justice Secretary or a tribunal, not by treating clinicians, which can result in lifelong detention of someone who does not require further treatment.
The Labour Government extended Restriction Orders to be automatically for life unless an Order is lifted by a Tribunal or Justice Secretary, rather than the courts or Justice Secretary specifying a time period for a Restriction Order, before considering its renewal if needed.
This motion proposes replacing the current test with a mental capacity test, and allowing individuals with capacity to make advance decisions to refuse treatment for mental health disorders. The motion also calls for a review of Restriction Orders, which would examine whether the automatic lifelong presumption of detention is discriminatory, and whether changing the burden of proof from the patient to the Justice Secretary or tribunals may be more in keeping with modern attitudes to imprisonment and mental illness.
Conference notes that:
- In May 2017, the Prime Minister described the 1983 Mental Health Act as "outdated", "discriminatory" and "unfit for purpose", and promised to repeal it and replace it with new legislation; and in October 2017, the Government established a review of the Act, including "rising rates of detention" and "the disproportionate number of people from black and minority ethnicities detained".
- Under the Act, one of the conditions for a person to be forcibly detained is that they have a 'mental disorder' (which includes Asperger's Syndrome and learning disabilities); this applies even if they have capacity (the ability to make their own decisions) and in some cases, having a childhood diagnosis of Asperger's has allowed people to be forcibly detained for months despite having capacity.
- Mind, a mental health charity, has argued that detaining people based on disability is discriminatory, and in breach of the UN Convention on the Rights of Persons with Disabilities; it has called for replacing the 'mental disorder' test with a 'mental capacity' test, as defined in the 2005 Mental Capacity Act.
- A person with a 'mental disorder' who commits a serious crime can be placed under a Restriction Order, which restricts them to hospital for their whole life unless it is lifted by the Justice Secretary or a tribunal; this applies even if their treatment team consider them to be clinically safe, resulting in people potentially being detained, rather than treated, for their whole lives.
Conference believes that:
- A person with a 'mental disorder' should not have fewer rights than a person without one.
- Everyone has the right to control their own body - a person should not be forced to receive treatment unless they don't have the capacity to make that decision.
- Detaining people on the basis of 'mental disorder', rather than capacity, is discriminatory, contributes to stigma and discourages people from being open about their mental health.
Conference reiterates its support for the Liberal Democrat policy of ensuring that mental health services are fully funded and given parity of esteem with physical health services, so that people can be given care without unnecessarily having to be detained. Conference welcomes the establishment of the Wessely Review into the Mental Health Act and the opportunity it provides to reform mental health law.
Conference calls on the Government to reform the Mental Health Act to ensure that:
- The 'mental disorder' test for involuntary detention and treatment is replaced with a 'mental capacity' test, so that a person cannot be involuntarily detained or treated unless they lack capacity, as defined in the Mental Capacity Act.
- Advance decisions, as defined in the Mental Capacity Act, can be applied to mental health conditions, including an advance decision to refuse detention and/or treatment, provided that this decision is regularly renewed by the individual, with a formal assessment of capacity required on each renewal.
- Restriction Orders are not used unjustifiably to detain, rather than treat, patients; in particular, the Restriction Orders' presumption for lifelong detention should be reviewed to ensure it is not unduly discriminatory against individuals with mental health conditions.