| Mental health
legislation affects all the main social, medical and legal issues
arising in mental health care and shapes the services that deliver
that care. While its focus is regulation of the minority of mental
health patients who are placed under compulsion (commonly called
“sectioned”) it indirectly impacts on all who work or
are treated in the mental health system. Its reach extends to early
intervention services, to treatment after discharge, to prisons
and to nursing homes registered to receive detained patients. Even
the public has a legitimate interest in its scope.
That is why the law is so important.
The tortuous process of reform of mental health
legislation began 5 years ago with the Richardson Expert Committee.
The Government explained that the three main drivers for new legislation
were: the need to comply with the Human Rights Act, the need to
reflect changes in service provision since 1983, and public safety
following “high profile” killings by mentally ill men.
The Richardson Committee reported with a set of moderate and workable
proposals that should achieve the Government aims. However in the
subsequent Green and White Papers in 2000 and 2001 and two draft
Bills that followed in 2002 and 2004, the Government set out on
a contrary course.
This incurred the vociferous and united opposition
of all the stakeholders: service-user organisations; the professional
bodies of psychiatrists, lawyers, doctors, nurses, social workers,
psychologists, advocates, and police; statutory health sector providers,
charities and individuals. Most of these united to form the Mental
Health Alliance in 2002.
The degree of consensus among the different
professional sectors and between the professionals and service users
on the kind of legislation needed has been surprising given their
traditional inter-sector rivalries. Broadly speaking their proposals
conform to the recommendations of the Richardson Expert Committee
and the Scottish Mental Health (Care and Treatment) (Scotland) Act
2003 together with recent legislation in other common law jurisdictions.
However, the Government has remained outside
this consensus - in the latest draft, Mental Health Bill 2004, it
ignored yet again the advice it had so assiduously sought and presented
something with few changes, and even more poorly drafted and difficult
to understand than previous versions. In March 2005 a Pre-legislative
Scrutiny Committee, chaired by Liberal Democrat peer Lord Carlisle,
published a report damning this latest draft, and concluding that
overall the Government had failed to deliver a workable, ethical
and progressive alternative to the 1983 Act, even though some of
the new measures were welcome.
The fundamental defects of the Bill stem from
the excessively wide gateway into compulsory powers. This results
from the combination of a wide definition of mental disorder, the
lack of exclusions for people with learning disabilities, drug or
alcohol problems, and a set of broad conditions for compulsion.
These conditions also uncouple the need for
compulsion with the need to be in hospital thereby bringing in those
with milder symptoms than under the 1983 Act. Together with the
lack of discretion for professionals and Tribunal to decide whether
or not to section someone who meets the conditions, this will inevitably
lead to a substantial increase in the numbers of people sectioned
under the act and also make it more difficult for them to be discharged.
However, ethically compulsion should be the
last resort. Human rights principles should prevent a person from
losing their liberty and from being forcibly treated without the
strongest grounds for doing so. Compulsory admission to hospital
can be a traumatic experience for the person being admitted, and
for those close to them. Using coercion to treat a person may not
be therapeutic and, in driving them away from services, may hinder
recovery. Compulsion is seen by patients as humiliating and deeply
stigmatizing.
The compulsory process is resource intensive.
It takes front line staff away from voluntary patients and adds
to over-stretched health and legal aid budgets. Legislation that
sets a framework for an increase in compulsion can therefore exacerbate
problems in mental health for patients, staff and the public, rather
than diminish them.
There are many aspects to this Bill that cannot
be addressed in a short article. I shall confine my comments to
the central and most controversial issues involved in the gateway
- the test of capacity, the concept of treatability and the use
of compulsion in the community. In Mind’s view compulsory
powers should be tightly circumscribed covering only people with
a mental disorder whose illness poses a significant risk of serious
harm to themselves or others and who lack the capacity to make their
own decisions about their medical condition.
Capacity
The extreme case of Ms B highlights the issue.
Ms B, a 43 year-old woman, had become tetraplegic after haemorrhages
in her spinal column. She was being kept alive on ventilation. She
had already indicated in an advance directive that she wished not
to be treated in these circumstances and she continued to indicate
that wish.
After an exhaustive examination of her mental
competence the court agreed with medical experts that she had capacity
and her right to discontinue treatment and thus to die was upheld.
However this right of personal autonomy is denied to mental health
patients. When a person is detained under mental health legislation
it is usually in order to impose upon him or her treatment s/he
refuses to take. It is done irrespective of the patient’s
wishes when there is a risk to the health or safety of the patient
or another person.
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Psychiatric drugs
can often involve horrible side effects - weight gain, impotence,
dribbling, loss of control over movements - and a patient with full
understanding should be entitled to choose whether to take them.
The recent Wilkinson R. (on the application of) Broadmoor Hospital
RMO (2002) illustrates the reality of forced treatment. Wilkinson,
an elderly patient with a poor heart condition, had to be held down
to be injected because he so strongly opposed the drug in question
and protested so vigorously. In fact there was a difference of view
between doctors as to the efficacy of the drug being forced upon
him and the case turned upon the nature of the role of the second
opinion doctor. The judges expressed their disquiet with the process
and observed that it could be a breach of Article 3 of the European
Convention of Human Rights (inhuman and degrading treatment) to
act in this way.
Compulsion in the community
The Bill will permit compulsory treatment in the community largely
at the discretion of the clinical supervisor. Service users and
most professionals oppose this extension of coercive powers into
the community as unsafe for patients, burdensome for their families,
unnecessary if there are adequate community services, and contrary
to human rights. There is also no doubt a practical problem with
requiring a patient to take treatment at home or to attend a clinic
for treatment as the only remedy for disobedience is to return the
person to hospital. The Scrutiny Committee has proposed strict limits
to the use of compulsory community treatment for that small group
of patients with multiple entries to hospital who lapse on discharge
because they fail to take their medication. In practice if a capacity
test were to be introduced and a threshold of risk raised it is
unlikely that people who were well enough to be in the community
could be detained.
Public safety
The protection of the public from dangerous people with a mental
disorder is the major driver for this legislation. The Bill permits
(or indeed requires) the detention of a person with a “disorder
of mind or brain…for the protection of others”. If there
is “appropriate” treatment available, and if they are
considered to pose a significant risk of serious harm to others,
they will be detained even if they voluntarily accept treatment.
“Treatment” includes basic nursing and care and, while
it must be appropriate, it need not be shown to benefit the patient
concerned. These are sweeping powers that enable a person to be
kept in hospital as a form of preventive detention. It is based
on a prediction of future behaviour that research shows to be notoriously
unreliable. It has been said for instance that in a group of 100
that could be called dangerous because of their history of violence,
statistically only one of those people will harm another but there
is no way of predicting which one it will be. The Bill is so over-inclusive
as to be unworkable, given the pressure on hospital beds, and is
clearly contrary to human rights.
We believe these wide powers are unnecessary and stigmatising .
We do not lock up people who have driven dangerously in the past
on the statistical likelihood that next time they will kill someone.
We believe the Bill should stipulate that treatment must be shown
to be of therapeutic benefit; this would still allow the sectioning
of “DSPD” patients, that is dangerous people with personality
disorder, so long as there were psychological therapies from which
they could benefit. Furthermore improvements in the current provision
of mental health services for this much neglected group would have
a more positive impact for them and for public safety than the overuse
of compulsion.
Despite admitted improvements in recent years mental health patients
continue to be poorly served within the NHS and by community care.
Mental health service funding has increased, but below the rate
for the rest of the NHS . Mental health care remains difficult to
access. People are frequently turned away when seeking help in the
early stages of their illness: those developing a psychosis typically
wait 12-18 months for specialist care. Those developing more common
mental health problems may get no specialist help at all. As a result
it is likely that a patient’s health will deteriorate and
their first experience of specialist help will be under compulsory
powers – an experience that may poison relationships with
the professionals s/he depends on for care. Follow-up care for those
admitted to psychiatric hospitals is patchy and inadequate.
The existence of powers to compel individuals to accept treatment
against their will without matching powers to secure the help they
need has distorted mental health care. English Mental Health law
should tackle this problem by following the example of the Scottish
Mental Health (Care and Treatment) Act which gives patients positive
rights to an assessment of their mental health needs, and authorities
a duty to provide for those needs. The Bill fails to do this. It
should also guarantee that those patients who do end up under compulsory
powers have corresponding rights to care and treatment once they
are released. While this is the case at present, proposals in the
new Bill would drastically curtail this to a period of 6 weeks.
If these central issues were addressed and the existing patient
safeguards retained (for instance the powers of the nearest relatives
to discharge a patient), if advocates were readily available, and
if the Bill provided for a robust inspectorate, we might indeed
have cause for celebration that here is an act fit for the twenty
first century.
Rowena Daw is Head of Policy Development, Mind
(National Association for Mental Health)
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