The case for removing intellectual disability and autism from the Mental Health Act

The Faculty of Psychiatry of Intellectual Disability of the Royal College of Psychiatrists welcomes the editorial by Professor Sheila the Baroness Hollins on the use of the Mental Health Act (MHA) in the care of people with intellectual disability.¹ It furthers the debate on the MHA, an issue about which the Faculty has remained concerned. The Faculty supported retaining the qualified criteria to detain people with intellectual disability at the time of the MHA Review. This was based on feedback from psychiatrists working in clinical services with first-hand experience of supporting people with intellectual disability with altered mental states and/or high-risk behaviours. We address specific points raised in the editorial.

On the issue of mental disorder, it is correct that people can be detained where a concern of severe and enduring mental disorder is evident. However, as the authors rightly assert, in people with intellectual disability it may be difficult to make a clear-cut diagnosis of mental disorder in the presence of high-risk behavioural challenges that could be further complicated by comorbid disorders for example, physical health disorders such as epilepsy, autism or other communication difficulties. In such circumstances, an assessment period under a supportive legal framework may be warranted to clarify the aetiological factors accounting for the presentation that include physical health, mental health and social factors.

In the absence of mental health legislative support for people whose behaviour is a challenge, or presenting with an altered mental state, there is a risk that the criminal justice system (CJS) would be used to process and support people. This would raise significant concerns for psychiatrists as skilled assessment may be difficult to achieve in the CJS. This could deny a vulnerable group of people, sometimes without advocacy, access to healthcare that all citizens deserve. Such an approach could potentially expose the most vulnerable to abusive treatment.

We fully concur that ‘all people with a learning disability are people first with the right to lead their lives like any others, with the same opportunities and responsibilities, and to be treated with the same dignity and respect’.² Thus it is our view they should have the same opportunities to avail of care that may, by necessity, be delivered under the MHA. Under the current proposal there is a lowering of the threshold in denying them such opportunities. The authors refer to people having ‘opportunities and responsibilities’ but this requires that they understand them in order to make an informed decision, which is not always the case. People with intellectual disability are a heterogeneous group for whom ‘one size does not fit all’. We have to be mindful of the most vulnerable, especially those without mental capacity, when designing services and appropriate legislation.

With respect to the issue of intellectual disability as a ‘lazy diagnosis’, the current Code of Practice highlights the need for clarity when assessing people under the MHA. It is recommended that clinicians skilled in working with people with intellectual disability are involved in decisions on detention. We are not assured that removing intellectual disability would safeguard the process of elucidating the aetiological reasons for high-risk behaviours that could lead to more punitive measures and the inappropriate use of medication in people who pose risks to themselves and others. Under the MHA, there are safeguards in place to protect the rights of the person and where practice and ‘appropriate treatment’ can be scrutinised to expose examples of ‘lazy diagnosis’ through the system of Mental Health Review Tribunals. No other legislation can provide such level of support when compared with the current MHA. We assert that ‘lazy diagnosis’ and ‘lazy practice’ could be more common without such safeguards to support people.

Behaviour can certainly be perceived as communicating distress but using the lengths of time that people spend in hospital as an argument is not justified since time spent in hospital can be related to factors beyond the control of the in-patient services for example, insufficient provision of support in the community for the person.

Although people with autism may currently be detained without ‘available treatment’, it may be because of the risks associated with their behaviour that cannot be supported positively by alternative approaches or that may not be available. The Transforming Care Programme has had some positive impact on practice as advocated by the authors where clinicians and social care agencies work together to seek non-medical alternatives to hospital admission.

The absence of a consensus of opinion to the MHA Review on removing intellectual disability and autism from the Act serves to highlight the complexity of the issues. No one approach, as suggested by the editorial, would be fitting for every person with intellectual disability currently satisfying criteria for detention. The ‘exploratory work’ needed, as acknowledged in the MHA Review, is a necessary step in considering the issues and with which all stakeholders, including psychiatrists, need to engage.

We agree with the authors’ point that it should be unnecessary to detain people with intellectual disability without mental illness for prolonged periods but with the caveat that due process of assessment might be required in in-patient settings under the MHA.

From a direct Human Rights perspective, we would agree with the authors but we are concerned about the consequences that exclusion from the Act and the inability of this vulnerable population to assert their Human Rights would lead to their not receiving effective care because of the absence of a suitable legal structure. We are keen to engage in debate in order to achieve the best support for people presenting with altered mental states and/or extreme challenging behaviour that cannot be assessed or supported safely in the community utilising usual resources.