Mental Health Bill will not prevent unjustified detention of autistic people

The Joint Committee on Human Rights (JCHR) has raised concerns that new proposals in the Mental Health Bill do not go far enough to prevent autistic people or people with learning disabilities from being detained for these conditions alone.

Following legislative scrutiny of the Bill, the Committee said that unjustified detention could still occur due to an absence of effective community support.

The Committee, made up of twelve members appointed from both the House of Commons and the House of Lords, welcomed the Government’s commitment to provide annual updates to Parliament on the implementation of the Bill to ensure detention doesn’t occur where community support is lacking.

Yet it said the Bill could still go further to ensure that mental health needs are identified before they reach crisis point. The Government should also consider introducing the right to a mental health assessment in England, as is applicable in Wales.

Lack of therapeutic benefit from detentions for autistic people

The JCHR’s role is to examine matters relating to human rights within the UK and scrutinise every Government Bill for its compatibility with human rights. It said that there are currently 2,050 autistic people and people with a learning disability detained in mental health hospitals in England, and it continues to hear worrying stories of abuse and an overall lack of therapeutic benefit arising from these detentions.

The average detention period is around five years, and during this time, people can be subject to overmedication, the inappropriate use of restraint, and solitary confinement.

The report added that it is widely recognised that learning disabilities and autism are lifelong conditions, not mental illnesses that can be removed through treatment. As a result, there is an inherent lack of justification for detaining a person for treatment based only on their learning disability or autism, making such detention vulnerable to challenge under Article 5 of the European Convention on Human Rights.

Lord David Alton, chair of the Joint Committee on Human Rights, said: “There is little question that the existing Mental Health Act needs to be updated. Detention on mental health grounds is too easily imposed and with too few safeguards for fundamental human rights.

“The Joint Committee on Human Rights welcomes the broad thrust of the Government’s proposals but there is still room for improvement. We have brought forward constructive proposals that we believe will strengthen the bill, helping to ensure that the human rights of people with mental health issues are properly respected.”

Detention under the Mental Health Act

Under the Mental Health Act (MHA), autism and learning disabilities currently fall under the definition of “mental disorder”. This means that people with learning disabilities and autistic people can be detained for assessment under section 2 MHA and for treatment under section 3 MHA.

A person with a learning disability can only be detained under section 3 where their learning disability is “associated with abnormally aggressive or seriously irresponsible conduct”.

Clause 3 of the Bill would introduce into the MHA the term “psychiatric disorder”, meaning a “mental disorder other than autism or learning disability.” Detention for treatment under section 3 MHA would only be available for those with a “psychiatric disorder”, but persons with a mental disorder could still be detained for assessment under section 2 MHA.

The effect of this amendment would be to leave open the possibility of detaining autistic people and people with learning disabilities to assess whether they need treatment, but it would remove the ability to detain them on the basis of their learning disability or autism for compulsory treatment.

A person with learning disabilities or an autistic person would only be able to be detained for treatment under section 3 MHA if they have a co–occurring psychiatric disorder which meets the detention criteria.

Responses to the report

Dr Rhidian Hughes, Chief Executive of the Voluntary Organisations Disability Group (VODG), said: “VODG has supported the Mental Health Bill from the outset, but further reform is essential to ensure it truly protects the rights of autistic people and people with learning disabilities.

“We welcome the JCHR’s recommendations and key findings, including the requirement to identify mental health needs earlier, enhance protections for children and young people, and address long-standing inequalities and human rights gaps in the system.

“The JCHR report rightly highlights the urgent need for properly funded community support to prevent unnecessary and often protracted detention of autistic people and people with a learning disability in assessment and treatment units (ATUs). Inappropriate detention is fundamentally a human rights issue. We continue to hear disturbing accounts of overmedication, excessive restraint, lack of communication with family members and prolonged solitary confinement in mental health settings.

“The government has been clear in its support to end this human rights scandal but without urgent action to ensure robust plans and strategy are in place to support the development of community support, the commitment to address the growing numbers of autistic people and people with a learning disability wrongfully detained in these settings, will continue to stall.”

Alison Bloomer

Alison Bloomer is Editor of Learning Disability Today. She has over 25 years of experience writing for medical journals and trade publications. Subjects include healthcare, pharmaceuticals, disability, insurance, stock market and emerging technologies. She is also a mother to a gorgeous 13-year-old boy who has a learning disability.

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