Committed: Is it time we stopped ‘sectioning’ people?

Arguably the most important ethical principle in medicine is autonomy – the right of patients to decide for themselves what treatment they want.

However, we also recognise that being very ill sometimes makes it hard for patients to make sound decisions about their own care. Therefore, we have laws that allow doctors to make decisions on behalf of patients who are unwell.

The laws that psychiatry uses in this respect are quite different to the laws the rest of medicine uses – and I’m becoming firmer in my belief that this may be a bad thing.

Mental Capacity Act (2005)

Before 2005, if you developed a ‘physical health’ problem which interfered with your ability to make sound decisions, doctors would have decided whether to treat you against your will using common law – the accumulated results of past legal cases.

People sometimes seem to think psychiatrists are the only doctors who treat people against their will, but many types of doctor do this fairly frequently. Hospitals are packed with semi-conscious and delirious patients who object to crucial treatment in a state of confusion.

In the modern climate of accountability, the uncertainty of common law gradually became unsustainable. The Bournewood case illustrated the difficulties well – it brought to light the case of a young man with autism who was admitted to hospital and not allowed to leave or have visitors for months without any legal recourse.

We needed a more solid framework with which to decide if we could treat someone against their will. In 2005, we found that framework in the Mental Capacity Act.

This Act states that doctors can treat someone against their will if they lack capacity. Everyone is assumed to have capacity to make decisions until you test them.

To lack capacity, a patient has to have “an impairment of, or a disturbance in the functioning of, the mind or brain” and to be unable to do one of the following:

  • to understand the information relevant to the decision
  • to retain that information
  • to use or weigh that information as part of the process of making the decision
  • to communicate his decision (whether by talking, using sign language or any other means)

If a patient is found to lack capacity to make a decision, doctors can treat them in their best interests, by weighing up opinions from different sources (including, of course, the patient).

Capacity is also seen as dynamic. Just because a patient lacks the capacity to make a decision about one thing (i.e. do I want to go into hospital?) it doesn’t mean they don’t have the capacity to make decisions for themselves about other, smaller issues (i.e. do I want to take my tablets?).

An addition to the MCA was made in 2009 to allow patients to be deprived of their liberty (for example, moved into a locked nursing home) for long periods if they lack the capacity to make that decision, if the deprivation is in their best interests. This is called a Deprivation of Liberty Safeguard (DOLS).

Most people see the Mental Capacity Act as a huge forward step in patient-led care.

Mental Health Act (1983)

However, if you have a mental health problem and don’t want treatment, something entirely different may happen. Psychiatrists use the Mental Health Act (1983) to treat people who don’t want to be treated. This is the Act under which we can ‘section’ people.

There are lots of different types of shorter sections, but the most important ones are Section 2 and Section 3. These give the legal power to detain a patient for 28 days and 6 months respectively.

This Act states that to be treated against their will, a patient must have ‘any disorder or disability of the mind’ that is ‘of a nature or degree which warrants the detention of the patient in a hospital’ and detaining him must be in the interests of:

  • The patient’s health or
  • The patient’s safety or
  • The protection of others

A patient’s ability to make a decision about treatment for themselves is not taken into account. If two doctors and a social worker agree that detaining a patient is the best thing for their health or safety, or for the protection of other people, they can detain the patient. That’s all there is to it.

The patient will have the right to appeal and state his case to a tribunal, but even at that point, their ability to make up their own mind isn’t taken into account.

Is using a different legal framework a bad thing for psychiatry?

The question of whether using the Mental Health Act, instead of thinking like the rest of medicine, could be counterproductive for psychiatry has been debated for decades.

There are certainly some good things about the Mental Health Act – it demands documentation in black and white about why the decision to treat a patient against their will was made, and gives the patient a legal right to appeal by tribunal – whereas with the Mental Capacity Act, assessments can be less formal.

The Mental Health Act also demands that three people assess a patient to make a decision, whereas with the Mental Capacity Act it may only be one person making a judgement call.

But in my opinion, these benefits aren’t enough. The use of a different system is harmful.

By using a different framework, I feel psychiatry is stigmatising its own patients. Though people with mental disorders caused by a ‘physical health’ problem can be ‘sectioned’, the vast majority have purely mental health problems. Subjecting them to a law that doesn’t take into account the possiblity that they could make their own decisions, when patients with other types of illness are listened to and facilitated to make their own decisions, is dehumanising.

‘Sectioning’ people with mental health problems also does nothing to further the drive for parity between mental and physical health. Philosophically, the mind is the product of the brain – there is no real difference between mental and physical, except the divide we create in procedures like sections. We need to be more similar to the rest of medicine to promote our cause, not more different.

By using the Mental Health Act, psychiatrists are led to focus on the wrong question when they see a patient. Instead of thinking about what this patient wants and if I can help them get it, they’re thinking is this patient sectionable? This damages potentially therapeutic relationships.

Facilitating the choices of patients who do agree to come into hospital without being ‘sectioned’, but who still lack the capacity to make big decisions about their care, may be forgotten in this atmosphere of paternalism.

Using the Mental Health Act also perpetuates the general myth that psychiatric patients are dangerous, and sometimes need to be removed from the streets at all cost.

Would change be so hard?

If psychiatrists started to use the Mental Capacity Act instead, it wouldn’t actually change the group of patients we admit to hospital against their will all that much. A 2008 study published in the BMJ reported that of 150 patients sectioned to a psychiatric hospital, 86% didn’t have the capacity to make a decision about being in hospital anyway.

In another related study published in the BJPsych in 2009, only 6% of 200 psychiatric inpatients were found to be both under a section and to have the capacity to decide whether to be in hospital or not for themselves. Most of this small group had either been too unwell to decide for themselves at the time of their admission, or had deliberately faked being unwell to get admitted – so they would’ve come into hospital anyway.

This tallies with my own experience. Most of the time, if we think someone needs to come into hospital but they don’t agree, they’re almost always too unwell to make that decision for themselves anyway. By helping patients make choices for themselves, and only making choices for those who can’t, instead of forcing treatment on people we think need it, we wouldn’t be treating different people – but we’d be treating them differently!

Some may say that psychiatrists have a duty to protect the public – that we should be able to remove ‘dangerous’ patients from the streets whether they can decide for themselves or not. Mostly, again, the vast majority of patients who pose a risk to the public are so unwell that they lack the capacity to decide for themselves about admission. They’d still have to come into hospital.

As for the few patients who are a risk to themselves or others, but do retain the capacity to decide for themselves about hospital care – we should allow them to make their own mistakes. We couldn’t section a mentally healthy but dangerous person, like a careless pilot. We couldn’t section a person with ‘physical health’ problems who poses a risk to themselves but can make up their own mind (i.e. a diabetic patient who sometimes drops his blood sugar through erratic insulin use and becomes aggressive). So we shouldn’t be able to do it to mental health patients.

Ability to weigh up the risks of harm befalling yourself or other people if you relapse should form part of the assessment of capacity. Just like it does in the rest of medicine.

The way forward

Adaptations to the Mental Capacity Act might have to be made to make use in psychiatry possible. We don’t have the manpower to check the capacity of every patient who wants to leave every single day, so we’d need a law that says we only have to check it every week, for instance, to make sure the patient hasn’t regained the ability to decide rationally that discharge would be best. The provisions made for DOLS inform us that this kind of legislation is entirely possible.

If we ever want to be seen as truly equal with other branches of medicine, we should start valuing and empowering the choices of our patients as highly as they do.

After publication of this blog I was alerted to a lecture given by Professor George Szmukler, which summarises these issues extremely well. A video of the lecture can be found here.

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Why we should treat immigrants without extra charge

In expectation of an onslaught of inaccurate, hate-filled xenophobic media reports on Monday, I thought I’d write a quick piece on why we should treat migrants without extra charge.

Before we get started though, let’s be clear about the situation as it stands.

Don’t let the Daily Mail fool you. The vast majority of migrants work hard and pay tax. On average, they actually put 34% more into our economy than they take out, roughly £22 billion a year – compared with native Britons who contribute 11% less than the amount they take out. They fill vital holes in our workforce including, ironically, more than 4,500 nursing positions each year. Recent immigrants are 21% less likely to be receiving benefits than native Britons, and because they tend to be young and fit (and less well linked in with GPs) they access healthcare less frequently.

True “health tourism” – people who visit the UK only to access free medical care – doesn’t cost us £2 billion a year. It costs us £70 million. As documented by The New Statesman amongst others earlier this year, that’s only 0.06% of the NHS budget. Jeremy Hunt’s transparent bending of that statistic made him look rather foolish in October, but I wouldn’t be surpised if he tried it on again. Smoking and alcohol, by the way, cost the NHS at least £3 billion a year each, and the recently abandoned NHS computer system has cost £10 billion so far – 140 times more than a year of health tourism.

So we’re not facing an oncoming army of begging, scrounging low-lives. We’re facing an influx of largely skilled people who are keen to work and contribute, with a smaller cohort of refugees. Of course, there will be exceptions – as indeed there are with “native” British people – but we’re thinking of making laws for a population here.

So if the reality that they mostly pay tax, work hard and cost fairly little isn’t enough to convince you – why else should we treat immigrants without extra charge?

Health is an inalienable human right. I’m not ashamed to say that I think healthcare should be free at the point of delivery, as Nye Bevan said. It shouldn’t matter if you’re rich or poor, if you’re black or white, if you’ve been here your whole life or for five minutes. We even treat murderers, thieves and rapists without a second thought because withholding healthcare is a punishment that no crime deserves, let alone the simple fact of having the wrong passport.

If someone is in the UK legally, it becomes our duty to ensure they receive this most basic human right using the fair methods we already have in place – taxation according to income and provision according to need. If we aren’t comfortable with that, we shouldn’t allow the person in.

If they are residing in the country illegally, proper legal proceedings should begin and healthcare should be given freely during this time. This is a civilised country that doesn’t make people choose between their health and a large debt, and I’m proud of it. Simply because other countries make their citizens pay for the misfortune of becoming ill doesn’t mean we should do the same when they arrive here.

Charging them would rip our society to pieces. Like we’ve already mentioned, a large proportion of people who live in Britain are migrants. To tell them that they can come over here, work to keep this country economically active and raise their families, but still have to pay extra to remain healthy, would force a racial divide through society which would be catastrophic.

Either we’re happy to let them in and treat them as equals, or we don’t let them in at all. There should be no half-measure of letting someone in but denying them fair healthcare.

Imagining checking to see how “entitled” someone is to something as essential as healthcare conjures up deeply unsettling feelings in me.

It’s for our own good. Not just simple things like vaccinating migrants against diseases that could become epidemics and kill a lot of British people, like TB and measles. If you don’t treat people early, they get sicker – sick to the point where you can’t deny them help because they’re on death’s door. And that costs way more. Some will go to unscrupulous back-street quacks, and dealing with the complications of that will make things even trickier. Refusing to treat drug addiction will lead to increased crime and unemployment. Not surprisingly, healthy people work more and pay more tax.

Even people who don’t pay tax contribute in ways that aren’t immediately obvious. Tourists buy items high in tax like petrol, alcohol and cigarettes as well as ploughing their foreign money into hotels and restaurants. Students pay thousands of pounds in tutition fees.

Charging them would be a bureaucratic nightmare and cost a lot of money. We would need an entirely new database to check and re-check immigration statuses (and we know how slick our governments have been with bringing in new IT). The database would need to link in with a system of ID cards, which would need to be applied for and distributed. Everyone would need an ID card, including UK citizens to tell us apart. Staff would need to be hired to design and implement this system and manage payments at a local and central level. It would cost far, far more than it would save, especially as if we decided to charge only those who weren’t contributing, we’d be targeting the very people who are least likely to be able to pay anyway. Faced with a choice between spending money on treating people or on building a system to stop them being treated, I’d go with the former.

Charging them would be the first stop to privatisation. First we’d make migrants pay, then another seemingly less deserving portion of society, then another. Until healthcare is entirely paid for in addition to our taxes, with the excess ending up in the pockets of someone already far richer than you or I. We must keep a completely zero-tolerance policy on this.

So that’s my opinion on the matter. The act of letting someone into this country, as a working person, tourist or refugee, should be an acknowledgement of our duty to provide that person with healthcare costing no more than the contribution that is expected from ourselves. If someone is here illegally, we should care for them humanely until the matter can be resolved, because health is a right, not a reward for being born in the right place or having enough money to afford it.

I am a doctor. I am trained to keep people healthy, not judge who should be.

The chronic underfunding of mental health care is a stigma proving hard to reverse

This article has also been published by Community Care and can be found here.

The pain, incapacity and losses involved in being ill can pose the biggest challenge many of us will ever face, but if your illness happens to be mental, the associated stigma is often what hurts the most.

This discrimination can take many forms. Recent high-profile examples of stigma being peddled by the media and elsewhere show that we’re actually seizing the opportunity to counter attack some forms of discrimination on the public stage.

Tackling high-profile stigma

Take the response to The Sun’s vile ‘1,200 killed by mental patients’ headline. Mental health charities stood on the shoulders of the misleading headline’s bigotry to provide context – that people with mental illness are five times more likely to be assaulted than average and more than 50 times more likely to kill themselves than someone else. Though The Sun’s eventual “apology”, a small clarification buried inside the newspaper, was cowardly, no newspaper will be publishing a similar headline again soon.

Likewise, Tesco and Asda were forced to withdraw offensive ‘mental patient’ fancy dress costumes after triggering a large-scale public backlash which showed that mental illness is not for anyone’s amusement anymore. Overall, that was a good day for mental health.

Granted, the victories aren’t always instant. Thorpe Park showed staggering ineptitude and insensitivity in defying calls to close or rename its offensive ‘Asylum’ attraction (where customers are chased by ‘patients’) despite a petition backed by over 5,000 signatories and a collection of mental health bodies.

Clearly the park is better at building rollercoasters than gauging public opinion, but ultimately, opposition to the attraction will continue to grow exponentially. Eventually I believe the theme park will cede their position along with a significant chunk of their reputation and through their ignorance they will have given mental health some valuable publicity.

The problem of chronic underfunding

These glaring examples are an important sign that superficial shows of stigma perpetrated in the public eye can, ultimately, be used by us to combat discrimination. Yet there is a very different, pervasive factor driving stigma that is proving harder to combat – namely the chronic lack of resources for mental health services that would be an embarrassment in any other area of health and social care.

Mental illness accounts for 23% of the total illness burden in the UK, but receives only 13% of NHS funding (added to the fact that investment in mental health has fallen in real terms for two consecutive years). Services have been so conditioned to receive barely half of what our patients deserve that we don’t even realise what a travesty it is. We’ve just learnt to put up with it.

Couple this with a pressured economic climate that is driving a growing demand for care and you’re left with a widespread crisis.

We learnt recently that nine per cent of all psychiatric beds in the UK have been closed in the past two years – more than 1,700 beds – despite rising demand. These pressures mean that the remaining NHS psychiatric wards are running at 101% occupancy – way above the recommended 85% level, with some individual wards running at up to 138% occupancy.

The pressure on beds means that, daily, doctors like myself and other mental health professionals are forced in desperation to send patients hundreds of miles away from their families to find a bed, often to private hospitals that are making millions of pounds a year from the arrangements. To someone in the depths of crisis, being sent so far from home can feel like exile, not care.

I’ve also heard of patients having to sleep on ward sofas or camp beds due to a lack of beds. Such poor care would be unthinkable in any other branch of the 21st century NHS. Even worse, in some instances, patients in crisis have been turned away from inpatient units to face their illness at home, sometimes with tragic consequences.

A crisis that demands action

In any other speciality this crisis would be worthy of front page media coverage and meaningful action by the government. Instead, all I hear of from colleagues up and down the country is talk of more cuts. This month, frontline staff in Norfolk and Suffolk have started a campaign against planned ‘cost-savings’ that they say will lead to a 20% cut in beds and caseloads rising to levels that will make safe care impossible.

When beds are closed, we’re often told that the cost savings will be invested in community teams. Yet whatever investment in community services is happening, it isn’t stemming the increase in demand for crisis care – Mental Health Act detentions topped 50,000 for the first time in 2012/13. It feels like the pressure on beds is forcing the premature of discharge of patients who simply relapse in the hands of overwhelmed community teams.

The ‘institutional bias’ against mental health in the NHS, as the care minister Norman Lamb eruditely calls it, is no less apparent in outpatient care.

The government didn’t include mental health when they decreed that 18 weeks was the deadline for seeing a consultant, making psychiatric waiting lists a low priority for commissioners. And despite the fact that depression affects two to 10 per cent of us at any one time and costs the UK nine billion pounds a year in lost productivity, access to talking therapies remains limited. Official figures show only a third of areas are meeting their 28 day target, leaving 80,000 people still waiting – many for over a year.

Trying to reduce the stigma surrounding mental illness while grossly underfunding psychiatric services during a time of growing demand is like asking children to play nicely but dressing one of them in rags.

How can we announce that mental illness is worthy of equal respect, care and understanding, when the meagre resources allocated to services by those in control of budgets perpetuate the notion that mental health care is less deserving, an optional extra that can muddle along on a pittance?

If mental health was funded as deservingly as physical health, maybe people would start treating it as such.

Why mental health bed cuts make me ashamed to work for the NHS

This is a piece I wrote for The Guardian, published earlier this week, about the mental health bed crisis. I’m pleased to say that the piece appears to have kept the issue in the public consciousness for a little while longer – here’s hoping it helps.

You can of course also read it on The Guardian website, here.

Imagine that a family member becomes critically unwell. You anxiously accompany them to A&E and the opinion of the doctor is clear – an emergency hospital admission is needed to avoid potentially devastating consequences. But unfortunately, says the doctor, the hospital happens to be full. And so are all the other local hospitals. So either your relative can take a trip to a private hospital in a town more than 200 miles away for their life-saving treatment, or you can take them home and have a go at nursing them yourself.

Surely if this ever happened, people would notice. But it does happen, every single day. It seems to be acceptable because the illnesses are psychiatric.

The profound suffering of people who attend A&E with psychiatric issues is almost impossible to underestimate. Be it the suicidal despair of depression, the terror of paranoia and hearing persecutory voices or the exhausting disinhibition of mania, mental illness is unconditionally deserving of the same level of comprehensive care as a physical ailment. But when somebody with a mental health problem needs to be admitted, doctors like me have to ring the bed manager and cross our fingers.

Too often my luck is out and I am forced to have a torturous conversation with a patient and their relatives about why they will need to sit in the back of an ambulance for four hours to get a resource as straightforward as a bed when they live 10 minutes from a psychiatric hospital. To go through this would be hard enough if you had a routine medical problem, but to our patients it feels like purgatory. They are at their most vulnerable and need care and attention, but what they actually get is exile. I had never felt ashamed to work for the NHS before I worked in these situations, but now a sense of pride is hard to come by.

A health select committee report published in August gave a clear indication that the lack of beds had become dangerous and that some doctors had started to section patients, who wouldn’t usually be regarded as unwell enough to fulfil the criteria, because that is the only way to force the provision of a bed. And an investigation by the BBC and Community Care magazine last week cast an even more detailed and human light upon the tragedy affecting those who need inpatient psychiatric care. Based on freedom of information requests, the bed occupancy of 28 mental health trusts in England and Wales was found to average 101%, far above the advised level of 85%, with some individual wards found to be running at an astonishing 138% capacity. The root of these startling and seemingly impossible figures is the practice of being forced to admit patients to a ward and into a bed belonging to a patient who is on a short trial period of home leave or, even worse, being forced to admit patients with no bed being available for them at all. It doesn’t take much effort to find someone who has had to sleep on a ward sofa – would this be acceptable for someone with a physical health problem?

The Victorian-style overcrowding sounds bad enough, but the alternative – being turned away – can be even more damaging. One patient, Lucy Bowden, reported how she wandered around the grounds of her emergency department until the police picked her up, locked her in their van and used an emergency section of the Mental Health Act to make finding a bed a legal necessity. Another, Mandy Peck, jumped to her death a day after being told that there were no beds available to ensure her safety. These instances are just the tip of a very disturbing and shaming iceberg.

The parity of esteem between physical and mental health endorsed this summer by this government reflects neither their decisions, nor how we react to them. When Jeremy Hunt drew the downgrading of Lewisham A&E out of his tombola of terrible decisions, there was uproar; televised marches and petitions signed thousand-fold. Yet between 2011 and 2012, we lost at least 1,711 psychiatric beds. That’s roughly 80 individual wards, or 9% of our beds. Astonishingly the closures continue, and our “ringfenced” budget has been cut for a second consecutive year. Yet hardly a whisper.

Reducing the number of psychiatric beds comes with a built-in spin mechanism: “we’re moving further towards care in the community”. What was long ago the laudable endeavour of a new psychiatry, chiming the death knell of the asylums, has since been hijacked as a mitigating tagline for a detrimental and bafflingly flawed reallocation in services. As part of “care in the community”, we somehow manage to pay private hospitals £25m a year by outsourcing psychiatric admissions because our own NHS beds are full – a rise of 32% in the last year alone.

As misguided and reprehensible as the practice of sectioning patients to get a bed may be, the very fact that doctors are endangering their careers to obtain a resource as basic as an admission to hospital should not be lost on those that criticise their professional conduct.

The select committee highlighted that community treatment orders (CTOs), introduced in England and Wales in 2007, appear to have done nothing to ease the pressure on beds. The Department of Health had estimated that 10% of patients on long-term inpatient sections would be diverted to CTOs, allowing them to continue their coercive treatment out of hospital. This was an interesting prediction, considering that a review funded by the DH noted that international research had consistently shown CTOs to be ineffective in preventing readmission to hospital. The number of sections has actually increased from 42,208 in 2008-09 to 44,894 by 2011-12, and a further large research trial of CTOs has all but confirmed their uselessness. CTOs grant psychiatrists just one power, in essence, to order a patient to return to hospital if they stop taking their medication or otherwise deteriorate. In practice this is barely easier than simply sectioning the patient again, so it is not hard to see why a growing band of detractors view CTOs as little more than a toothless appeasement to distract us from bed closures with more “care in the community”. Their administrative upkeep and paternalistic ethos create a futile sinkhole for time, money and, far more importantly, patient liberty.

Let’s be clear about this – psychiatric patients are among the most vulnerable that the NHS sees. They are a soft target for cuts. The very nature of mental illness makes it difficult for our patients to maintain supportive relationships and fight against the theft of the resources they need and deserve. To our discredit, we don’t support them enough to speak up or listen closely enough when they do.

I make no apologies for directly comparing standards of care in physical and mental health. If this were physical health, there would be outrage.

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