Reflections on the Scottish Mental Health Law Review and Hopes for a Less Coercive Future
A Guest Post by Graham Morgan
Graham Morgan has contributed to the development of mental health legislation and mental health services in the UK as a service user and as an individual with lived experience of schizophrenia for more than 40 years. He has an MBE for services to mental health. He is currently detained under the very legislation he helped develop.
This guest post is adapted from a talk Morgan gave at the Third UK and Ireland Mental Diversity Law Conference in 2023.
The Scottish Mental Health Law Review (SMHLR) was commissioned in 2019 by the Minister for Mental Health in Scotland and tasked with considering ways to better realize and protect human rights through mental health legislation. The independent review, chaired by Lord Scott KC, was aimed at enhancing the rights and protections of people with mental illness, in line with developments in international human rights standards. The review also looked at ways to remove barriers to care and support for people currently covered by the legislation. The Review’s final report was published in September 2022 and recommended a series of changes to legislation. While recognizing the necessity to act without a person’s consent under certain circumstances, the review recommended providing people with more support to be able to make decisions for themselves, paying more attention to people’s feelings and wishes about their care, providing more supports in the community, taking steps to reduce the number of people who are being treated without consent, making sure people can access the support they need no matter their circumstances, and improving accountability and scrutiny of mental health services. (You can learn more about the government response here.)I joined the executive of SMHLR as a person with lived experience of compulsory treatment for schizophrenia and was later made joint vice chair. My background has principally been in the world of collective advocacy of people with experience of mental illness and, to a much lesser extent, of learning disability. I have worked for over forty years in this field. As part of this, I was a member of the Millan Review, which led to the 2003 Mental Health Act, and later of the McManus Review of that Act, which led to the 2017 amendments. While speaking with people with lived experience of mental illness, I have produced a number of reports on their views on detention, autonomy, and supported decision-making. I have contributed to articles published in academic journals such as the International Journal of Law and Psychiatry, the International Journal of Mental Health and Capacity Law, and Lancet Psychiatry, and have spoken extensively on the subject, including at the United Nations Committee against Torture. In 2012, I was made service user contributor of the year by the Royal College of Psychiatry and was also awarded an MBE by the late Queen Elizabeth II for services to mental health. I have written two memoirs based on my experiences, which are often used in the training of student mental health nurses and student mental health officers. I currently work for the Mental Welfare Commission for Scotland, where I regularly meet with people with lived experience of mental illness and detention.
I was the lead for the SMHLR’s coercive treatment workstream and vice chair of its economic, cultural, and social rights workstream, as well as a member of the Capacity and Supported Decision Making workstream. It is principally our work on coercion that I am giving a glimpse into here.
I am familiar with Scottish legislation, but less so with that of other countries. Just to set the context, I am on a Compulsory Community-based Treatment Order (CCTO) which means that I am legally obliged to accept my fortnightly injection of antipsychotics and to see psychiatric staff and let them into my house for my care and treatment. I go to a tribunal every two years when it is renewed, and so far, I see no prospect of that stopping.
First: the Scott review and coercive treatment. We cannot avoid the fact that treatment carried out against someone’s will, sometimes involving force, is by its nature coercive. This does not have to mean that the people doing this are carrying it out with malicious intent and with the wish to cause harm; in reality, we believe that the intent behind most forms of coercive treatment is to avoid much greater harm and that this is usually what happens in practice.
However, even though such actions are often carried out to save lives, they are not without harm of their own. I can still vividly remember running down corridors with nurses chasing me and alarms blaring, and I hate the memory of having a nurse follow me wherever I might go, even when I went to the toilet or the shower. I know it was done to stop me from harming myself, but when I visit a hospital nowadays and hear the alarm go off or see people on ‘constant observations’ it can bring me back to difficult times in the past. It is for these sorts of reasons that we agree with the Royal College of Psychiatrists that coercive treatment is often traumatic, and people need help with this trauma.
We agreed that forms of coercion will need to continue for the foreseeable future and that maybe it will never be possible to eliminate them. We base these opinions on the evidence provided by people with lived experience in Scotland, and on national and international evidence that we obtained as part of our review. But in keeping with Piers Gooding’s research, we think that we should work towards the eventual elimination of coercive treatment, if at all possible.
I have a terrible feeling that some people think that if people were just nice and kind to us and addressed a few inequalities that face us, everything would be ok. But the truth is that we can enter realms where our reality is not amenable to reason… it can be utterly disruptive and destructive even when we are begging and not begging for help at the same time.
Regarding reducing coercion, I am going to fall into my idealistic ‘what if’ mode. I think mental illness, however we define it and however we see trauma and the social environment as a part of it, is a horrific experience. I have a terrible feeling that some people think that if people were just nice and kind to us and addressed a few inequalities that face us, everything would be ok. But the truth is that we can enter realms where our reality is not amenable to reason, and we can find we have emotions and behaviors that, far from being the grateful awkward response to the offer of support, are raw, wild expressions of grief and pain and anger. We do not always seek out help; sometimes all we feel is pain, and pain is rarely something that we can easily deal with; it can be utterly disruptive and destructive even when we are begging and not begging for help at the same time.
This is, I think, one of the key reasons why coercive treatment is sometimes needed and will continue to be needed. But at the risk of contradicting what I just said, I do believe that if we have a society and services where belonging and trust are ensured, then kindness, love, and compassion can prevent the experience of alienation and otherness in the provision of mental healthcare. If we had a society and services where people like me are not looked on with suspicion and fear, then maybe we would not look on society and services in turn with the same fear. Maybe our distress and disruption would not get to the point where coercion is necessary or the preferred route.
If we had services we could turn to in the community, such as community and peer support, as well as Wellbeing hubs and some alternatives to the hospital when we are in crisis; if psychiatric emergency plans were living documents, and the infrastructure of community services were truly in place; if hospital wards were designed such that we would want to be there and were made to feel safe, rather than the current sterile environment where we feel alienated and dehumanized; if, in the future, the designs of new buildings are informed by our lived experience…
If we have policies like ‘Safewards’ adopted in hospital, and if we can align with the human rights-based approach and the recovery approach to offer mutual support, hope, appreciation, being valued, having people ‘on our side,’ and having activities which we value; if we had the beds we needed when we needed them, and if our friends and relatives were listened to and supported; and if we anticipated crises and relapses with genuinely participative joint crisis planning which came into effect before we lost decision-making capacity…
If all this can happen, then maybe we will cope better for longer, have better lives, and when, as will always happen, life falls apart, maybe we will have safe places and people to go to without coercion becoming necessary, and if it does become necessary, maybe it will be less often, and for less time, and less traumatic, and more therapeutic. That is the hope.
All this is hugely idealistic, and quite rightly, we had many replies to our consultations saying that for these things to happen, we need resources and that this is less a matter of legislation and more about services. And yes, it is. It is all about resources…
As I said, all this is hugely idealistic, and quite rightly, we had many replies to our consultations saying that for these things to happen, we need resources and that this is less a matter of legislation and more about services. And yes, it is. It is all about resources, as is developing community and trust and knowing we are a part of our communities. It is more than investing in mental health services; it is about investing in our society, investing in and valuing staff, and investing in the elements of care that make some of the most isolated people feel welcomed and at home.
We discussed many international approaches that have been shown to reduce coercion in psychiatric settings, but rather than dictate what we want to happen years and years before anything is implemented in Scotland, we suggested that we have an improvement group with lived and carer experience central to it, which looks at and makes recommendations alongside the government about some of the approaches that may ultimately lead to less coercion in the future, but which also, in line with our economic, social, and cultural rights, help create a better quality of life for us. Alongside that, we need to invest in research into these issues, especially coercion, and encourage high-quality, lived-experience-led research.
In the context of detention, trust and belonging should extend to all communities of people. We should make sure that the treatment of people from diverse ethnic communities is without discrimination, such that all assessments have been made on the same basis as for all people. People should be offered the same level of support for decision-making as any other person. Their cultural, linguistic, religious, or belief needs should be identified, and professionals should show how these needs are being met. If concerns about racism or cultural insensitivity have been raised, we need to know that these issues are being addressed. We also want to be sure there is culturally appropriate collective advocacy that the government will resource and that the government will empower leaders of Scotland’s minoritized ethnic communities to lead on solutions that ensure access to mental disability services for their communities. Reforms should also address racial discrimination through an approach that develops the Patient Carer Racial Equality Framework with monitoring and enforcement by scrutiny bodies.
My personal opinion is that comparable actions should also happen with other marginalized communities, who, I imagine, future research might also reveal to be subject to comparable levels of discrimination in mental health services and coercive treatment.
Despite the considerable amount of research that has been done into rising rates of detention here and elsewhere, it is very hard to tell why a rise or reduction in detention rates has happened. It may be that a rise in detention reflects a rise in rates of mental illness and that, with austerity and economic hardship, crises and distress increase. Detention in these circumstances may be, strangely, a right and proper way to protect people from harm. Alternatively, with a shortage of community services, or perhaps with staff shortages and pressure on beds and services, a culture may develop where it is easier to detain than to give the sort of support people have a right to.
Ideally, further research would adopt the human rights approach we took with the review. There is almost no research around coercive treatment that uses a human rights framework as the basis of the research. Future research designs that aim to ascertain whether or not particular interventions improve a person’s human rights as well as how to strike the best possible balance between the rights to life and health, liberty and independent living, and other rights are required.
There is recent research by the Mental Welfare Commission into the length of short-term detentions, which seems to show that the length of detention does not always reflect the need for detention and may instead reflect the organizational requirements of those that detain us. Following this, we have proposed pilot projects into the length of such sections.
Regarding community-based orders, we are also aware that the evidence of their effectiveness is very weak, with contradictory findings from different studies. Some studies in Scotland show they provide protection for life and reduce days spent in hospitals, while others show no effect. We suggest that more research be carried out into them to help determine future policy, again looking at their value through a human rights lens, including our economic, social, and cultural rights, but also trying to work out why they have been rising, how they can be best used, and who they may or may not be effective with.
We should make sure that CCTOs will ensure access to recovery-focused, trauma-informed, community-based services and that from the beginning there are revocation strategies built in to ensure they are being used for the right reasons and to the best effect.
Finally, what may seem to be throw-away points, but which are important to me and that I believe are relevant to this discussion:
It is often those we love most who are witnesses to the worst of our distress and are most affected by it. I will never forget my brother’s voice cracking with anger when I last talked about how I looked forward to stopping my medication, and he said that each time that happened, the whole family was on standby for the time I finally succeeded in killing myself. Those around us need to be listened to and respected and supported.
I constantly meet people who are told that they have the capacity to decide whether to live or die when they are seeking help and that this is their choice. It is utterly insulting and depressing.
Sometimes I wonder at our definition of mental disability and feel for those who are dismissed as ‘just’ being unhappy and told to take a walk or run a bath when they cannot imagine living another moment, and sometimes I am aghast when people say they get better treatment from the police when they are in crisis than from the NHS. I am fed up with hearing stories about people told to go home at three in the morning with no money in their pockets, freezing temperatures, and despair in their hearts; when they are returned to A&E by the police or ambulance a couple of hours later, we should hang our heads in shame.
And although our rights to freedom are crucial issues, I think just as crucial are rights to life and health; needing just as much debate and legislation are the people who die, end up homeless, in prison, or just alone, scared, and isolated because they are denied support, care, and services. This is fundamental too—the rights we lose and the horror we experience when society seemingly couldn’t care less what happens to us.
Once I lived in a toxic relationship, and getting sectioned was a frequent occurrence. Now, although I am on a CCTO, I haven’t been in a hospital for ten years. I now live with a family where respect is a given, as is laughter, giggles, and cuddles. I walk by the sea with the curlews, seals, and terns. I go to Argyll and Bute Rape Crisis and the difference in approach is incredible and liberating. I work, and I write books. I go to Jeans Bothy, which is a mental health and wellbeing hub in the nearby town where I can be me without hiding my reality. I have found a life where, every day, I feel treasured. Maybe my medication is vital despite my wish not to take it, but so are Wendy, my partner, James and Charlotte, the twins, and Dash, the dog who sleeps on my bed. Most people in my situation do not have anything approaching this. Why not?
It is no wonder we end up sectioned when our lives are close to unlivable. We may need advance statements, care plans, depot clinics, and tribunals, but above all, we need to shift our societal focus to how people like me can find friendship and love. How do we get to find security in where we live, or glimpses of beauty when we walk out of the house, someone who wants to kiss us every day, enough money to afford a treat, or to heat the house?
It is no wonder we end up sectioned when our lives are close to unlivable. We may need advance statements, care plans, depot clinics, and tribunals, but above all, we need to shift our societal focus to how people like me can find friendship and love. All these things that have enabled my well-being did not come from the NHS; they came from my partner, my family, my friends, and people believing I had the skills to work and speak.
Having this in my life means I am less convinced when I say out loud that ‘I want to die’ whenever no one is near me. I get my jag every two weeks; it’s irritating. I sometimes get fed up with the nurses, and sometimes I like them, but they are a tiny part of my life.
The laws, services, and policies we obsess about for our freedom and rights are important, but equally important is to recognize that even though I miss the feeling of color in my life, I have everything I could ever want, and that other people could have similar.
All these things that have enabled my well-being did not come from the NHS; they came from my partner, my family, my friends, and people believing I had the skills to work and speak. They came from knowing that when I get home, I will sit on the beach and look out at the mud flats with a book in my lap, the breeze on my face, crows picking at the seaweed, and herons standing still. They came from having a home that I look forward to returning to. Such things as these are just as important as the formal clinical help I am meant to be given. With these, the can of petrol or the train tracks become less of an obsession, and I can dare to dream of something different altogether.
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Graham thank you so much for writing this and all the work you've done. I'm so sorry you're in hospital at the moment, I hope you will be back at home again soon and if it is helpful to you to write about this experience and how things have changed over the last decade you will have an audience of willing readers.