Protecting the rights of individuals who face both mental health and public health restrictions

Psychiatrists are familiar with the need to weigh up an individual’s right to liberty against the risk that the individual might pose to themselves, or others, as a result of mental ill health. Detention of individuals under the Mental Health Act 1983 represents a significant deprivation of liberty.

The public health restrictions from the covid-19 pandemic also cause significant deprivations of liberty in wider society. Being detained as a result of mental ill health during a wider national “lockdown,” compounds the deprivations of liberty that are already imposed on the whole of our society.

Detention of individuals disproportionately affects already marginalised groups—with Black men being more likely to be detained under the Mental Health Act than their white peers. This disproportionate detention is also reflected in the enforcement of “lockdown” legislation, with Black and other ethnic minority individuals being more likely to be fined than other members of society.  

This can result in more privileged communities, which perhaps have an easier relationship with the police, being able to take a more liberal interpretation of the lockdown rules than other communities. This inequity is then compounded in mental health hospitals, where, if detained, individuals will have no ability at all to decide for themselves how to interpret the public health restrictions. The consequence of this is that there is a greater incidence of Black and other ethnic minority groups being penalised by police enforcing “lockdown” legislation, of being detained under the Mental Health Act and, when detained, subjected to enforcement of even stricter “lockdown” restrictions in hospital.

In this context, where individuals are detained for reasons of mental ill health, it is of fundamental importance that there is clarity regarding the limits of the power of detention with the Mental Health Act. We must ensure that the Mental Health Act is not misused to detain people for public health reasons. This means that, for example, the detention under the Mental Health Act legal framework is rescinded as would normally be the case when less restrictive treatment options (including voluntary admissions) become possible. If a patient is exposed to covid-19 while admitted to hospital, it is an inappropriate use of the Mental Health Act to continue the detention in order to ensure that the patient remains isolated on the ward and does not return home.

Mental health trusts have taken different approaches to managing risk of covid-19 transmission in new admissions. Some have taken the drastic step of isolating all new admissions in their bedroom for the first seven days of their admission, while others have prevented any patients from having Section 17 leave. This has meant that there have been further restrictions of liberty beyond what would normally take place in an inpatient admission.  

Furthermore, inpatient mental health treatment would normally involve a multidisciplinary programme, which would include participation in a group programme of occupational therapy, and other types of therapy. Many mental health units have suspended their group programme during the pandemic, and for those patients who are in “involuntary isolation” in their rooms, it means they are unable to access any non-pharmacological treatment at all.  A key aspect of the Mental Health Act is that the necessary treatment must be available at the location where the patient is detained. Given that occupational therapy, psychological therapy, and therapeutic groups, make up a key part of inpatient treatment, it is a legal and ethical necessity for psychiatrists to consider whether the intended treatment is still available—and if it is not, a detention may not be justified.

Covid-19 has exposed many of the inequalities that are already present in our society. Patients with severe mental illness are at increased risk of severe illness and death from covid-19. The social isolation associated with the lockdown restrictions are likely to increase the risk of relapse in mental illness. The closure of community third sector services with lockdown restrictions makes the provision of support even more challenging. The severe deprivation of liberties faced by the whole society has been compounded even further for those detained under the Mental Health Act. The detentions are more restrictive than usual, and people with severe mental illness risk having the public health restrictions enforced incorrectly and inappropriately by the Mental Health Act. Furthermore the restrictions decrease the therapeutic value of admissions as a result of the reduction in the types of treatment available.

In this context, psychiatrists have a particular legal and ethical duty to ensure that inpatient treatment is available, that restrictions on liberty are kept as minimal as possible, take into account patient autonomy, and are proportionate to clinical risk.

This may mean that particular training is needed in the intersection of the Mental Health Act and the coronavirus restrictions, such that patients are not detained for reasons of viral transmission with the Mental Health Act, and that blanket restrictions—such as isolating all new admissions in a single room or removing all leave—are avoided. 

Robert Freudenthal, ST6 psychiatry, London

Hannah Campling, CT2 psychiatry, London

Competing interests: none declared.