Reflections on the Joint Committee’s report on the Draft Mental Health Bill 2022 from Steve Gilbert and Professor J S Bamrah, co-chairs of the Observatory’s Mental Health Working Group.
We welcome the publication of the Joint Committee’s report on the Draft Mental Health Bill 2022, in particular its calls for the legislation to go further in explicitly tackling race inequality.
The role of systemic racism
Black people in this country remain significantly more likely to be detained under the Mental Health Act (MHA), and significantly more likely to be subject to a Community Treatment Order (CTO). Indeed, these latter figures have only grown worse in the five years since the Act was reviewed. This does not only reflect the inconsistencies of the current legislation, but highlights the existence and damage of deeply embedded systemic racism. Amending a single piece of legislation, important though it is, will only ever treat the symptoms of systemic inequity, and not the cause.
The Joint Committee’s report acknowledges that there are racial inequalities present throughout current processes and systems around the Act, and that these inequalities interact with those in education, housing, and the justice system. However, the report makes no explicit reference in its narrative to the existence of systemic and institutional racism. It is clear, based on evidence obtained and reviewed by the RHO, including the experiences of Black people impacted by the MHA, that only an integrated approach to tackling racism will have the required impact for marginalised communities. The first step towards this is a full acknowledgment of the existence of systemic and institutional racism and the resultant disparity in access to mental health services as well as experiences of and outcomes for Black people detained under the MHA.
It is acknowledged in the report that legal provisions already exist in the Public Sector Equality Duty and elsewhere that ought to protect individuals from racial inequity, and that these provisions are not enough. We must therefore look beyond legislative change and seek a cross-government approach to tackling racial inequality.
While we welcome many of the Joint Committee’s recommendations – including the partial abolition of CTOs, and the statutory right to advance choice documents – there are some areas where extra assurances and greater ambition would be welcome. One such area is accountability.
The report recommends that health organisations should be required to appoint a responsible person, ‘whose role will be to collect and monitor data on the number, cause, and duration of detentions under the MHA broken down by ethnicity and other demographic information.’ While this is, in principle, a welcome recommendation, its efficacy will depend on a proper process of accountability, and genuine consequences for a failure to appoint such a person. Likewise, it will be essential that the Secretary of State is held to account for publishing this data.
Similarly, the impact of a new Mental Health Commissioner will depend on the extent to which they are meaningfully empowered to advocate for the individuals and families impacted by the application of the MHA. It is vital that this role prove to be more than a gesture, and that a framework of accountability is established to ensure that this new office has real power to affect change. Moreover, we would like to see a more explicit role for the Commissioner in working with organisations such as the NHS Race and Health Observatory in tackling long-embedded race inequity in the application of the Act, going beyond the current proposal that the Commissioner will have an oversight role for the above mentioned ‘responsible person’.
We echo the Joint Committee’s call to embed the principles of the independent review – choice and autonomy, least restriction, therapeutic benefit, the person as an individual – in the legislation itself, as opposed to a separate code of practice. These principles are key to achieving a less coercive and more equitable system and should therefore be enshrined in law. However, strengthening the law is pointless without enforcement and accountability. Therefore, we would urge the Joint Committee to add these additional levers of change otherwise we are concerned that inherent biases within the system will have no incentive to make necessary changes to ensure the care and treatment of Black people is equitable and consistent with experiences of White people.