Practical and Legal Guidance for Assessing Capacity
Jul 20 2023
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It is a fact well established that black adults are more likely than adults in other ethnic groups to have been sectioned under the Mental Health Act 1983 ("MHA") (Race Disparity Audit, 10 October 2017). Indeed, it has been shown that detention rates for the black and minority ethnic ("BME") category "any other black background" – including black European or black American, are over ten times the rate of the white population group (NHS Digital, Mental Health Act Statistics, Annual Figures, 2016-17, 2017). Similarly, the Race Disparity Audit estimated that around 3% of black men had suffered a psychotic disorder in the past year; more than ten times the amount of white men. The key question for commissioners and providers to consider is why black individuals are more likely be detained and diagnosed as suffering from mental health issues.
The independent review of the MHA set out to explore how MHA legislation is used, and how practice can improve. In particular, there have been concerns that detention rates are too high, and are rising year on year – with last year seeing on average 180 people sectioned per day. Part of the purpose of the review is to look at how people from black and ethnic minority populations are disproportionately affected.
The interim report of the independent review was published on 1 May 2018. It acknowledges that the use of the MHA varies widely between ethnic groups. As well as people from black Caribbean, black African and mixed black ethnicity being more likely to be sectioned, black Caribbean people are also more likely to come into contact with mental health services through the police (under s136 MHA), to be re-admitted under the MHA, to be given CTOs, to be admitted to a secure hospital, and to have poorer outcomes over time.
The report suggests that these differences are down to issues such as:
Focus groups of BME communities consulted as part of the review stated they "overwhelmingly… felt there was a lack of cultural awareness in staff and a need for culturally appropriate care". Concerns around racism, stigma, stereotyping and overmedication were also raised. The significant difference between the use of the MHA for BME people, may therefore be partially due to the behaviours of staff that section and admit people – which the report does acknowledge, albeit briefly.
Some of the above factors echo the findings of the 2017 Lammy Review. This was an independent review of the treatment of, and outcomes for, people from BME backgrounds in the justice system. The Lammy Review stated that the causes of similar problems in the justice system lie outside the system, and start long before individuals ever enter that system. The CQC, in its publication Monitoring the Mental Health Act in 2016/17 suggests that this is likely to also be true to for mental health services.
Work therefore needs to be done to tackle the fear of mental health services which has developed amongst BME people, due to their past experiences. This, in and of itself, could be a barrier to the update of earlier inventions, and subsequently increase the risk of detention at a later date. The report therefore acknowledges that work needs to be done to show that experiences can be changed for the better, and to restore confidence in services. This is reflected in data which has shown that black adults in the general population were the least likely to report being in receipt of any treatment (medication, counselling, or therapy), and white adults experience better outcomes from psychological therapies than other ethnic groups.
The report also states that culturally-acceptable alternatives to detention need to be considered, such as primary care and community-based solutions. The report interestingly remains silent on any comment on considering the patient as an individual and the balancing of any cultural differences which may impact on an assessment of mental health, despite the "overwhelming" view of focus groups of a lack of cultural awareness and need for culturally appropriate care.
The report confirms that there will be several dedicated groups examining issues relevant to BME communities. An African and Caribbean Group has already been set up in order to review evidence, consult with service users, and identify gaps regarding how outcomes for this particular group can be improved.
Further consideration is due to be given to:
Although the independent MHA review seems to be looking closely at black men and detention rates, little is said about black women, or indeed, men or women from other ethnic minority communities. It remains to be seen therefore whether this review will precipitate a beneficial change for all BME individuals, or changes concentrated at only one minority demographic which may only serve to open up or highlight gaps in service provision/delivery for others.
Whilst the final report is awaited, guidance can be sought from the Joint Commissioning Panel for Mental Health's document Guidance for commissioner of mental health services for people from black and minority ethnic communities.
For further information or to discuss any aspect of this article, please contact Sumayyah Malna, Solicitor.