Providing the right to challenge disorder diagnosis 'would confront racial bias in sectioning'

Black Caribbean people are sectioned more than any other ethnic group under the Mental Health Act. As a psychiatrist of colour who has studied and written extensively on race and culture issues in our mental health system I was pleased to see that tackling this was confirmed as a top priority for this year’s ongoing review of the legislation.

"There is no objective criteria to estimate or measure disorder seriousness. An unintended consequence of this space for decision-making is that cultural misunderstandings and any racial bias that practitioners may hold have no checks or balances."

Mental health hospitals can and should be therapeutic places. However, to avoid unfair outcomes and discriminatory practice, more stringent measures are needed—and legislation can play a part in this.  In my recently published book (Institutional Racism in Psychiatry and Clinical Psychology) I have outlined the evidence for institutional racism in professional practices that inform the mental health system.

A mental health disorder is a prerequisite for being detained in hospital against your will. But, none of the diagnostic categories designating disorder have objective criteria to estimate or measure their seriousness. As a result, there is much discretion left in the hands of practitioners to diagnose patients. An unintended consequence of this space for decision-making is that cultural misunderstandings and any racial bias that practitioners may hold have no checks or balances, and service users have no means of challenging diagnoses.

Challenging diagnoses

The Mental Health Act should be amended to include a clause that makes it explicit that a diagnosis for a ‘mental disorder’ must always take account of the patient’s social and cultural background. The person making the diagnosis should be aware of the influence of stereotypes and other anomalies that influence judgements made by professionals and others.

• See also: Breaking down racism in mental health care
• See also: 'Over 1,000 people who have been detained have a voice in the new Mental Health Act'

Additionally, an amendment to the Mental Health Act should be made that allows for appeals (by the alleged patient) against diagnoses via Tribunal (or similar legal process), with a panel that includes experts from BAME backgrounds and a supporting family member, preferably nominated by the alleged patient.

There is much concern among many service users, especially BAME people, who often feel that their psychological states have been misunderstood and/or interpreted in a context of institutional racism. Once a diagnosis is given, it often follows them for the rest of their lives. And, since many diagnoses carry a stigma — especially the diagnosis of psychosis or schizophrenia that are given disproportionately to black people — a diagnosis may have widespread disadvantages for the rest of their lives.

• Someone who is black or black British is four times more likely to be detained under the Mental Health Act than someone who is white.

To minimise the risk of injustice arising from cultural misunderstandings and institutional racism, myself and colleagues from Race on the Agenda (ROTA) and the Race Equality Foundation recommend:

(a) that rigorous standards are drawn up in consultation with appropriate people from BAME community organisations on the process of giving diagnoses

(b) introducing a system of appeal (by the patient concerned or their advocate) whenever a new diagnosis is applied and/or continued, to a tribunal-like body that has the ability to call evidence from outside sources in hearing an appeal, together with the right of the patient concerned to have legal representation at the hearing.

Skills and training

In order to work effectively and humanely in a multicultural society where institutional racism is endemic, mental health professionals should have the skill to appreciate:

(a) cultural diversity in the meaning of ‘mind’ and ‘mental disorder’;

(b) diversity of interventions and therapies appropriate for patients of various backgrounds; and

(c) the pervasive influence of stereotyping arising from sexist and racist perceptions of people that are widely held.

Legislation is necessary to ensure professionals working in mental health services have the skills necessary to carry out their obligations fairly and without bias. An amendment to the Act should carry an explicit definition of how this is to be implemented (e.g. through training or supervision of junior staff). Approved Mental Health Professionals make applications for detention following recommendations from doctors. Wherever the ‘AMHP’ or Responsible Clinician (RC) is mentioned in the Act, there should be a clause stating that the person should have ‘those skills that are appropriate for working with patients with protected characteristics’.

The training available for professionals does not sufficiently address the needs of BAME patients. Whilst stereotypes synonymous with institutional racism, such as ‘big black and dangerous’ (SHSA, 1993) and unconscious biases are well documented, many professional bodies that are supposed to supervise and regulate training standards do not pay adequate attention to its pervasiveness.

The Mental Health Act should have provision for the regulation of training instituted by professional bodies concerned with mental health services. Statutory bodies with legally enforceable obligations should be formed and a full annual review of their training procedures carried out. They should promote better knowledge of the culturally diverse ways in which ‘mind’ and mental health issues are understood in different cultural traditions and ensure that training deals with issues of racial bias and cultural competence. Alternatively such statutory bodies may be regularly inspected by bodies carrying out the responsibilities of the Mental Health Act Commission (at present the CQC).

Community Treatment Orders & community-based supervised treatment

Compulsory admission rates are almost three times higher for black patients than white patients. Community organisations noted their apprehension about Community Treatment Orders (CTOs require people with mental health needs to comply with medical appointments or face detention) and their potential disproportionate use in 2007 but their warnings have not been heeded (CQC, 2015).

In July 2014, commissioners of mental health services were provided with practical guidance to ensure that inequalities were monitored and addressed. The guidance promotes co-production with patients and carers to achieve a values-based model for commissioning, procuring, and delivering services. Providers should work with local commissioners to consider how they can apply these suggestions in their local area (MHA Code of Practice, 2015; CQC, 2015).

However, this has not brought about change in detention outcomes for black patients. Black patients are nine times more likely to be given a CTO than a White patient (NHS Digital, 2017). The National Survivor User Network (NSUN) highlights the lived experience of CTOs on black people. They felt stereotyped as criminals and this hindered their recovery (NSUN, 2014).

The amendments referred to in earlier sections may alleviate this problem to some extent. An urgent review of Community Treatment Orders is vital. Randomised controlled trials have demonstrated that, despite substantial curtailment of individual freedoms, they confer no benefits to those affected, even after a long term (four year) follow-up. All mental health service providers should be set targets to reduce the use of CTOs, monitored by the CQC in inspections. Specific amendments in relation to supervised treatment in the community should be made to ensure this is statutory.

Mental Health Review Tribunals

Tribunals are perceived by many service users as failing to protect BAME people from unjust sectioning and prolonged detention. The amended Act should make it obligatory for membership of the Mental Health Review Tribunal to include people from diverse cultural communities and/or people with knowledge or experience in race relations and anti-discriminatory practice.

An amendment to the 1983 Act should ensure that:

(a) the legal persons appointed by the Lord Chancellor should have experience in the race relations field

(b) the non-legal, non-medical persons appointed by the Lord Chancellor should have experience in antidiscriminatory practice.

An amendment to Section 72 (Power of Tribunal) should enable a Tribunal to direct the detaining authority to seek additional information on cultural background of the patient. An amendment to Section 78 (Procedure of Tribunals) should state that the Tribunal, in arriving at their decision, takes account of cultural diversity and institutional racism.

Advocacy

The Mental Health Act allows for patients to have access to independent mental health advocates. Currently, people detained compulsorily can only access this after sectioning. Further, the advocates available sometimes do not have the cultural understanding necessary for BAME patients. We recommend that access to advocates should precede sectioning, that advocacy should be a right embodied in law, and advocates must be appropriately trained for working in culturally diverse settings.

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