The holes in our mental health law you need to know about

We should all care about the law governing what happens to us if and when our mental health takes a crash. Any of us could be hospitalised for our mental health at any time and yet the Mental Health Act remains woolly at best and medieval at worst.

• Mental Health Act Section 57: ‘Surgery shall not be carried out unless… it is appropriate for the treatment to be given… to prevent the patient from behaving violently.’
• Mental Health Act Section 58: ‘A person shall not be given electroconvulsive therapy unless… it is appropriate… and there has not been an advance notice given [before they were hospitalised, refusing consent to said therapy, which involves electric shocks permeating through the brain].'

Research by the homelessness charity Shelter established that one in three families are just one pay cheque away from losing their homes. It’s a statistic that emphasises how precarious life can be. Our mental health is contingent on how safe and secure we feel. Circumstances can change for any of us, at any time. We are perhaps all just one big life event away from losing our minds too, however transiently.

It is often said that one in four of us will experience a mental health ‘episode’ in any given year but our mental health is as unpredictable as our physical health. Who is to say whether you will be the 3 or the 1? Though we can take steps to maintain our health, none of us knows what is around the corner or what impact changes to our social circumstances (relationships, work, physical health, discrimination, money, trauma…) will have on our mental equilibrium.

• The basics: The Mental Health Act 1983

With this in mind, we should all care about the law governing what happens to us if and when our mental health takes a crash. Any of us could be hospitalised for our mental health at any time. Hospitals are of course populated by good people who have protective mentalities. In the UK, as with the rest of the world, there has always been a culture of protecting the majority from any perceived threat from an individual, or the individual from any perceived threat to themselves, at all costs.

"We are perhaps all just one big life event away from 'losing our minds', however transiently."

The existing law is lowest-common-denominator pragmatic. ‘Liberate all other than those in risk of losing their liberty…’ In environments of such pragmatism, empathy with the individual – when they most need compassion, when they most need to be treated with dignity and respect – can be lost. This risk is amplified when hospitals are creaking under the weight of demand. “There are no beds left”, we were told again on New Year’s Day.

Changing the law this year

Ethical values could be safeguarded behind a mental health law that took autonomy away from clinicians and made mental health responses a true partnership. That’s not what’s happening at the moment. Cultural views towards people with mental health needs are now far more enlightented in the UK than they were even ten years ago, as Professor Simon Wessely told Mental Health Today recently, but the law hasn’t caught up. The current law is humbled, shamed even, by progress enshrined in the Equality Act and the Convention on Rights of Persons of Disabilities in particular, which explicitly states that 'the existence of a disability shall in no case justify a deprivation of liberty'. The UK has claimed to be aligning with both for several years now.

Look again at these clauses from the Mental Health Act, which applies in England and Wales, and how they are qualified in such a way that clinicians are given freedoms – freedoms unwanted by the clinicians themselves – to act without consent in such a way that most would consider medieval:

Section 57: ‘A person shall not be given surgery unless… it is appropriate for the treatment to be given… to prevent the patient from behaving violently.’

Section 58: ‘A person shall not be given electroconvulsive therapy unless… it is appropriate… and there has not been an advance notice given [before they were hospitalised, not consenting to the therapy, which involves electric current being transmitted through the brain]

The Mental Health Act is worded in such a way that it gives clinicians autonomy they don’t want, to do whatever is most pragmatic in the tortuous constructs they have to work within. This does no favours to patients or clinicians. Both groups want to be involved in the highest standards of care and both groups agree, Mental Health Today polling has established, that the patient should shape responses to their mental health needs. We all agree, of course, that the NHS needs more resources.

Deprivation of... information

Currently, too often, responses are pragmatic rather than compassionate and co-produced. Mental Health Today is currently engaged in a freedom of information request dispute with NHS Digital, in which we are receiving support from the Information Commissioner’s Office. We want to know how many patients received electroconvulsive therapy (ECT) and surgery under section last year. In 2012/2013 there were 1,447 patients who received ECT. A year later the number jumped by 32 percent to 1,904. A year later, the NHS stopped publishing the data in a publicly accessible format. The NHS have told us they will give us updated figures, but say they now charge £1,000 per application for this data.

• Join MHT Wales to learn more about crisis care and the mental health act review

Mental Health Today feels let down by this response, behaviour and concealment that plainly confounds our readers’ interest and the public interest as a whole. Being hospitalised for our mental health is something that can happen to any of us. We will keep pushing for the data and expect to receive it and share it with you in February, when we will also be sharing our latest polling and our latest In Our Right Mind campaign asks. The campaign is crowdfunded and we are grateful to everyone who has contributed their own donations or expert insights to date.