Page 24 - Community Living Magazine 36-1

human rights
A law that leaves people locked up

Mental health law and the professionals who implement it are person’s interests to try to prevent
breaching people’s rights when it comes to compulsory compulsory admission, detention and
treatment, rather than setting them on a
detention and treatment in hospital, says Ken Stapleton clinical pathway to a cure – the aim of
such compulsory admissions.
Since events at Winterbourne View in
he Mental Health Act discriminates What Szmukler observes as the 2011, notwithstanding the government’s
against people with learning qualifying criteria have been at the heart response via Transforming Care, incidents
Tdisabilities. of mental health laws for more than 150 of significant and gratuitous abuse or
I argue this as a social worker involved years. Mental disorder and risk continue neglect, sometimes resulting in deaths,
in care and treatment reviews (CTRs), to underpin the modern legislation. have continued.
having become increasingly concerned In respect of people with a learning
about the grounds for admission, disability, the qualifying criteria must be
detention and involuntary treatment clinically evidenced by a psychiatrist and I have concerns about how
under the 1983 law. an approved mental health professional, thoroughly psychiatrists
My role as a clinical adviser involves usually a specialist social worker with
working as part of a team that includes a additional training. conduct the assessments, and
senior commissioner from a clinical This must be done to lawfully justify the how accurately they interpret
commissioning group and an expert by curtailment of the person’s human rights:
experience (someone who has used autonomy, choice and the right to refuse the behavioural criteria
mental health services). treatment and liberty, including the
CTRs were established as the NHS and freedom to leave.
governmental response to the significant Although classified as an intrinsic The long list includes the death of
physical and emotional abuse suffered by mental disorder under the act, learning Connor Sparrowhawk while detained by
people diagnosed with learning disability disability in itself cannot, no matter how Southern Health in 2013, the abuse of
and/or autism at the hands of care staff at complex the cognitive impairment, stand adults with learning disabilities at Whorlton
Winterbourne View hospital in 2010-11. alone as a qualifying criterion under Hall in 2019 and three deaths at the private
They arose from Margaret Flynn’s report which an individual can be lawfully Cawston Park hospital in Norfolk.
and recommendations into the events at admitted and detained. This is important The author of the 2021 report into the
Winterbourne published in 2012. for a number of reasons. three Cawston Park deaths was Margaret
If a person with a clinical diagnosis of Flynn, chair of the adult safeguarding
When to challenge admission learning disability is to be deprived of board in Norfolk, who was also author of
There are two important stages in a liberty and autonomy lawfully, they must, the Winterbourne View report.
person’s journey when the need for in addition to this diagnosis, exhibit In her press conference to launch the
compulsory admission must be “abnormally aggressive and/or socially report, she deliberately referred to patients
critically challenged. irresponsible conduct”. who were detained more accurately as
The first is at the point of an early referral But I have concerns about how “prisoners who were incarcerated”.
or serious concern when the use of the thoroughly psychiatrists conduct the
compulsory powers of the Mental Health necessary assessments, and how Questions for professionals
Act is being considered as a last resort to accurately they interpret the behavioural There are questions we must ask of
manage or control a critical situation. criteria for admission. professionals involved in the admission of
The second is at compulsory admission. In deciding if it is appropriate to use the people with learning disabilities under the
The evidence of the lawfulness of a such act, in many situations it will be in the Mental Health Act, specifically
an admission, its consequences and how
it is in the interests of the person who is
soon to become a patient have become ‘Not to challenge a psychiatrist is no longer an option’
increasingly interesting to me.
In the introduction to his 2017 book, My journey to This has significantly on which the admission is
Men In White Coats: Treatment Under understand and critique affected my own practice founded. I will ask for
Coercion, George Szmukler, an emeritus potential unlawful in how I will conduct care evidence of how this was
professor of psychiatry and society at the compulsory admissions and treatment reviews. deemed to be directly
Institute of Psychiatry, notes: “The of learning-disabled I will insist not only linked to clinical status,
grounds for involuntary treatment have people to hospital has that I examine admission not the outcome of some
been long lived; first that the person has a been given added paperwork signed off by stimulus unconnected to
‘mental disorder’, a list of which appears impetus by George the responsible clinician the disability.
at para 2.5 of the act’s code of practice, Szmukler’s general but also that I am given Not to challenge a
and second that the person needs to be examination of mental written evidence to psychiatrist is no longer
treated in the interests of his/her safety health legislation. illustrate the behaviour an option.
or for the protection of others.”

24 Vol 36 No 1 | Autumn 2022 Community Living www.cl-initiatives.co.uk