New Coronavirus Act may increase the mental health detention of ethnic minority people

April 14th, 2020

Since 16^th March 2020, the UK government has introduced a series of social distancing, social isolation and ‘lockdown’ measures intended to reduce the impact of the Covid-19 pandemic on the NHS by protecting its capacity to provide care for people who become seriously ill as a result of a Covid-19 infection.

These measures have been supported by new legislation, the Coronavirus Act 2020, that received Royal Assent on 25^th March 2020. However, the measures are acknowledged to have extremely negative economic, social and psychological impacts that, on average, are judged to be worth the estimated direct health benefits. Inevitably, these economic and social impacts will, in turn, have a negative impact on health.

As the timeline indicates, this legislation was drafted and enacted with minimal opportunity for any debate or scrutiny. Due to the quick turnaround, one element of the legislation that has received almost no comment is the reduced protections provided for patients who are detained under the Mental Health Act [1,2].

In essence, this significant legislative change now:

Enables a patient to be detained on the judgment of only one approved doctor, rather than needing a second opinion
Allows a detention to be continued for a greater length of time in emergency situations; and
Reduces opportunities for the rationale for the detention and treatment to be examined by a full Mental Health Tribunal.

The justification for this step, and for other reductions in the rights of those receiving health and social care[1], was an anticipated (and as yet unrealised) crisis in staffing. This would mean that the people needed to provide oversight for the initial detention, and to be members of Mental Health Tribunals, wouldn’t be available because they were either in social isolation, or had been redeployed to carry out other health care duties.

The rationale behind this justification must be that mental health care and the rights of patients detained under the Mental Health Act, and the resulting loss of liberty and reduction of checks on coercive treatment practices, are less of a priority than acute medical care. The substantial investments being made in beds, equipment and staffing for acute medical care are not being matched by a commitment to even maintain existing standards for mental health care.

From the perspective of ethnic minority people experiencing a severe mental illness, existing standards are already demonstrably insufficient. Research conducted by Synergi has shown that ethnic minority people with a psychosis related illness are substantially more likely to be detained under the Mental Health Act (more than three times as likely in the case of Black Caribbean and Black African people), and more likely to experience adverse pathways into care [4,5].

Synergi’s, and others’, careful research has identified the ways in which these substantial inequalities are driven by structural, interpersonal and institutional racism [6,7,8]. The removal of existing safeguards around the use of the Mental Health Act will inevitably aggravate these inequalities. All of which goes against the greater protections for ethnic minority people promised by the recent review of the Mental Health Act.

Although enacted, these legal changes have yet to be implemented. The triggering of these measures in England will be done by the Secretary of State for Health and Social Care on the basis of assessing staffing pressures. How these assessments will be made, and what would be required to trigger this implementation, has not been identified. Nor is there any information on how variations in staffing pressures across regions in the UK will be considered. Will local implementation be the responsibility of relevant Medical Directors and, if so, how will they make decisions on this?

Significantly, no guidance has been issued on what criteria would lead to these changes being implemented in a specific circumstance. So, while there might be an aspiration for these new powers to be used cautiously, and only where appropriate to the circumstances of an individual, we are left with no clarity on what circumstances would make it ‘impractical’ to involve a second approved doctor in the implementation of Sections 2 or 3 of the Mental Health Act, or what ‘a considerable delay’ in implementation might be.

Similarly, while there may well be an ambition not to increase existing inequalities faced by ethnic minority people, there are no provisions in place to mitigate this very real risk, nor to monitor relevant outcomes. Indeed, there are no proposed mechanisms to monitor the use of any of these powers.

Against this worrying backdrop, Synergi is calling for three actions:

For the Secretary of State for Health and Social Care not to implement these changes and for local Medical Directors not to trigger them. Instead, we ask for adequate staffing levels for mental health care services to maintain, at the very least, the current level of protections afforded to patients who are, or who are at risk of being, detained under the Mental Health Act.
That additional efforts are made to ensure that service users have access to free legal advice, advocacy and support from appropriate agencies during the periods of social distancing and ‘lockdown’.
If these additional powers are used, that their use is closely evaluated through the collection of robust data, with a specific focus on their potential to aggravate ethnic inequalities, and that this evaluation is used to scrutinise each use of these powers and to shape policies on their appropriate future implementation.

Finally, it is important to state that while the economic, social and psychological harms ensuing from government policies to manage the Covid-19 pandemic have been judged to be, on average, acceptable, the situation facing ethnic minority people, particularly those who experience a severe mental illness, is far more precarious than ‘the average’.

The harms will undoubtably be greater for those who, because of their racialised identities, have longstanding experience of poverty, poor housing, poorer educational outcomes, uncertain and insecure employment and social marginalisation [9]. These factors should be urgently considered if we are to mitigate, rather than aggravate, existing ethnic inequalities.

_____________________________

[1] It is also concerning that the Coronavirus Act has effectively suspended the Care Act 2014 duties in England to assess and arrange services to meet the needs of adults with disabilities and their carers [3].

References