Over the last few months mindfulness has received considerable press and public attention as a means of improving people’s mental health and wellbeing. It is also promoted as, and campaigned for, as a treatment for people with mental ill health.
Indeed, it was the subject of the Mental Health Foundation’s campaign for its Mental Health Awareness week in May.
With a YouGov survey revealing that 29% of British adults report always or often feeling stressed, MHF has suggested GPs “prescribe” mindfulness and argue the practice should become widely available in hospitals, schools, prisons and at work.
Mindfulness techniques and exercises are said to promote wellbeing and help people of all ages manage mental and physical health problems. Treatments such as mindfulness-based stress reduction and mindfulness-based cognitive therapy have been developed to help people cope with stress and recurring depression. One of the many virtues extolled is that mindfulness can be practised by anyone, anywhere to enable them to change how they manage and react to stressful situations.
So, what is the link between mindfulness and the law? Are there legal barriers to its use as a preventative measure or treatment? No. Recent changes show how the law is being used to require focus on wellbeing with the individual at its centre. In April 2015, the Care Act 2014 (the Act) and the Mental Health Act 1983 Code of Practice (the Code) came into force in England. Both require consideration of preventative or early intervention measures to promote wellbeing and avoid health deterioration.
The principle at the core of the Act, now at the heart of the care and support system, is wellbeing promotion. Local authorities must promote wellbeing when doing any care and support functions for people. The Act also sets out the areas to which wellbeing relates and other matters LAs should consider in promoting wellbeing - the starting point being that an individual is best placed to judge their own wellbeing. The Act also shifts LAs’ duties to provide particular services to a duty to “meet needs” - LAs will have to consider how to meet each person’s specific needs rather than just considering into what service they will fit.
The Code provides statutory guidance for nurses, medical practitioners and other professionals about the medical treatment of patients with mental disorders. Five main principles are set out and should always be considered when making decisions about care, support or treatment provided under the MHA 1983. This includes the principle of least-restrictive option and maximising independence.
The Code is clear that if someone can be treated safely and lawfully without detention they should not be detained. Wherever possible, the focus should be on promoting their recovery and independence. It also states that commissioners, providers and others should work together to prevent mental health crises and, where possible, cut detention use via prevention and early intervention by commissioning services that are accessible, responsive and as high quality as other health emergency services.
The MHA 1983 defines medical treatment for mental disorder as including nursing, psychological intervention and specialist mental health habilitation and rehabilitation and care, the purpose of which is to alleviate, or prevent the worsening of, the mental disorder or one or more of its symptoms or manifestations. This is inclusive, not exhaustive, and includes interventions not ordinarily considered “medical”. It means mindfulness can be a prescribed model of care for prevention or early intervention, to avoid deterioration of people’s mental health to the point that detention or crisis intervention is required.
Eve Piffaretti is partner at Blake Morgan LLP