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New Law Could Lead to More Autistic and Disabled People Being Locked Up, Government Warned

The Mental Health Bill may have negative unintended consequences, Saba Salman reports

Photo: Ievgen Chabanov/Alamy

New Law Could Lead to More Autistic and Disabled People Being Locked UpGovernment Warned

The Mental Health Bill may have negative unintended consequences, Saba Salman reports

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Planned reforms to mental health laws could unwittingly lead to more autistic or learning disabled people being locked up, the Government is being warned.

The draft Mental Health Bill aims to modernise the Mental Health Act 1983, proposing changes to the grounds on which someone can be detained for assessment and treatment. A parliamentary committee scrutinised the proposals, with its recent report prompting headlines about failures to tackle racial disparities in the use of detentions.

But the bill also impacts people who are autistic or have learning disabilities, with campaigners and experts raising concerns about its unintentional, negative consequences.  

Current mental health legislation defines learning disabilities and autism as mental disorders, allowing people in this group to be detained as inpatients for assessment or treatment. 

They are sectioned, despite not having mental health issues, usually because community-based support is inadequate or has broken down and left them at crisis point. Secure inpatient care usually involves physical and chemical restraint, sedation and seclusion, often for years and miles from home.

Under the new draft bill, learning disabilities and autism would still be classified as mental disorders but would not be included in a new category of psychiatric disorders. As only those with psychiatric disorders can be detained, autistic or learning disabled people would not be held unless they also had a coexisting psychiatric disorder.

The committee report states there are “concerns that the removal of autism and learning disability as grounds for detention… may lead to more detentions under different legal powers, with fewer safeguards, or diversion into the criminal justice system instead” and that “this would be the opposite of what the change is intended to achieve”.

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Additional concerns are that the new bill would mean that people with complex needs would be given an alternative mental health diagnosis to justify longer-term detention, and the draft law still allows someone to be detained for assessment for up to 28 days.

Alexis Quinn, who was previously detained in secure hospitals for more than three years and is now a manager at charity Restraint Reduction Network, says the current law “provides a safety net for inadequate community services” and “given that these community services are unlikely to improve, we need to ensure that something exists”.

“People like me, so-called ‘high-functioning autistic people’, could end up in prison, others could get a bogus mental health diagnosis to justify detention and still others might be detained under the capacity act with fewer safeguards,” she told Byline Times.

As previously reported by this newspaper, more than 2,000 autistic people and people with learning disabilities are locked away in mental health facilities. This is despite repeated promises to phase out these modern-day asylums after BBC Panorama broadcast horrific undercover footage of staff abusing inpatients at Winterbourne View ATU in South Gloucestershire in 2011.

In 2015, autistic people made up 38% of the number in secure hospitals, now it is 61%, according to NHS figures. People with learning disabilities or autistic people have an average stay of more than five years (with the average stay under the existing Mental Health Act in 2020–2021 27 days).  

Quinn describes her time in inpatient mental health services as a “sensory nightmare” due to the noisy, bright and busy environment. This triggered frequent meltdowns, leading to repeated restraint, sedation and seclusion for several hours at a time.

She is especially concerned that the new bill allows detention “for assessment” or if someone is found to have “a psychiatric disorder”.

“In the time it takes to assess people under [the Mental Health Act], even as soon as the doors close, autistic people will experience sensory overloaded. Too often overload is not understood and people deteriorate into meltdown. I then got stuck in a cycle of overload, meltdown, restrictive practices, repeat. I looked mad and this justified my detention. In reality, I was just reacting to the environment. So again, ‘assessment’ will result in people getting stuck [in secure hospital units].” 

Quinn says that learning disabled or autistic people remain “in danger” unless services respond differently and community-based support improves.

Dawn Cavanagh believes better community support would have prevented her son Jack from being detained. The 20-year-old, who is autistic and has a learning disability and epilepsy, has been in a psychiatric mental health unit in Wales for six months – his third secure place in as many years.

Jack needs the kind of round-the-clock, bespoke care that is not available near his home. His mother, an academic specialising in learning disability, says: “Who else would be detained in a mental health hospital when they don’t have a mental health condition? He’s there because there’s nowhere else for him to go. That happens to no other group of people.”

Cavanagh says that the legislative overhaul would make little difference to her son: “If this bill came in, because Jack doesn’t have a mental health condition or psychiatric disorder. he’d be free to go, But where? What would the law do as he has no home? We need places for people to live, support that stops people from going into these places.”

She also warns that talk of reform is misleading: “Actually, not a lot is changing. People could still be detained for assessment or if they have a co-occurring psychiatric disorder.”  

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Lucy Series, a Bristol University lecturer specialising in mental capacity law and human rights, is also concerned that the proposals do little to change the status quo. “Removing autism and learning disability as grounds for detention under section three of the Mental Health Act 1983 will not mean that people cannot be detained in psychiatric settings,” she told Byline Times. “They could be detained in other ways instead.” 

Series describes the Mental Capacity Act as an “overflow container” for the Mental Health Act; people who are not detained under the latter can come within scope of the former. As Series and fellow experts warn, other routes to detention include the diagnosis of an alternative psychiatric condition or the criminal justice system, resulting in imprisonment. 

There are solutions to the potential unintended consequences of the bill. The most obvious and long-called for is proper social care funding, so there is less need to admit people to mental health facilities in the first place. Another option, as the parliamentary committee report states, is to impose a power under the Mental Health Act so that complex cases where detention could be warranted are considered by a specialist tribunal right from the outset.

“What’s needed is an appropriately resourced statutory regime that finds better solutions,” Series says. “All these legal frameworks do is ‘authorise’ the solution that has been found by professionals on the ground, who likely feel it to be the best one in the circumstances.” 

Focusing only on the legal routes to detention misses the wider issue. We need not only more high quality support in the community, but clear rights for people to live there. Without this, the state will continue to lock up autistic or learning disabled people who have not committed any crime simply because there seems nowhere else for them to go. 

“The question is less about ‘what legal frameworks can detain people?’ than ‘what legal regime would give strong enough social rights to build stable alternatives in the community so that people don’t fall into crisis in the first place, or we can get them out of hospital quickly if they do?’” Series says.

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