Annex A
Response to the Government's Green Paper
by the Law Society
REFORM OF THE MENTAL HEALTH ACT 1983: PROPOSALS
FOR CONSULTATION
1. INTRODUCTION
1.1 The Law Society welcomes the opportunity
to comment on the Government's proposals for Reform of the Mental
Health Act 1983 put forward in the Green Paper published in November
1999[33]
This response has been prepared by the Mental Health and Disability
Committee, which has responsibility for the Law Society's work
on legal issues affecting elderly people and people with any form
of mental or physical disability or disorder.
1.2 The Mental Health and Disability Committee
is concerned not only with the provision of legal advice and representation
to enable people with mental health problems and learning disabilities
to safeguard and enforce their rights, but also to assist them
to obtain the care and treatment they need from both health and
social services. Membership of the Committee includes solicitors
in private practice and local government with considerable expertise
in mental health law, a Chairman of the Mental Health Review Tribunal,
a QC, a District Judge, a legal academic, a consultant psychiatrist,
and representatives of voluntary organisations. The Committee
has also been able to draw on the expertise of members of the
Mental Health Review Tribunal Panel who have been approved by
the Law Society as competent to represent patients at the Mental
Health Review Tribunal.
1.3 The Government is keen to set the proposals
for reform of the Mental Health Act in the context of its programme
to "modernise" the nation's mental health services.
The Law Society welcomes the introduction of clinical governance,
the promotion and implementation of the national service framework
and other initiatives designed to improve the range and quality
of mental health service provision and to raise its status within
both health and social services. However, the Society believes
that these initiatives should be backed by legislation which promotes
and reinforces issues of service quality and provision, which
is accessible and enforceable by service users, rather than legal
powers which merely impose on them greater controls, restrictions
and compulsion.
1.4 The Law Society is therefore disappointed
that the Government has decided to limit its proposals to legislation
providing a framework for compulsion, where the primary focus
is to control and minimise risk to public safety. While a more
limited remit for mental health legislation was also proposed
by the Expert Committee,[34]
at least the Committee recognised that whatever its precise scope,
a Mental Health Act "must primarily be seen as a health measure
and must be consistent with the professional ethics of the health
services" (para 2.3).
1.5 The Expert Committee was faced with
an impossible task to carry out a comprehensive, thorough review
of mental health legislation and deliver workable proposals for
reform within a nine-months period. Their well-argued and thoughtful
report reflects considerable expertise not only in considering
the impact and effectiveness of legislation, but also its practicable
implementation affecting both professionals and service users.
Even so, the Committee acknowledged their inability to complete
the task, and urged the Government to engage in extensive further
consultation.
1.6 The Green Paper, by contrast, lacks
any coherent framework. The absence of detail reflects the considerable
haste in which the paper was prepared, containing proposals which
the Law Society considers to be legally unworkable and ethically
unacceptable. In the next section, we set out those issues which
give us the most cause for concern. In the following sections
we put forward our detailed comments on the proposals which appear
in the correspondingly numbered chapters in the Green Paper.
2. PRIMARY CONCERNS
2.1 The Law Society agrees that many patients
are more appropriately treated and cared for in the community.
It therefore welcomes the Government's promise of increased resources
to improve the range and quality of services on offer and to encourage
the provision of services appropriate to the age, gender and culture
of individual patients. However, the Society believes that rather
than imposing coercive powers similar to those exercised over
people in hospital, compliance with treatment in the community
is more likely to be achieved by enshrining in the legislation
positive rights and entitlements to health care and social support
for people with mental health problems. Compulsory powers should
only be considered if there is evidence that suitable services
and treatments have been offered and made readily available, but
have been refused.
2.2 If the Government is intent on extending
compulsory powers, the Law Society has some major concerns about
the proposals for reform of the Mental Health Act 1983 as set
out in the Green Paper. These are summarised in the following
paragraphs.
2.3 The Government's proposals are primarily
aimed at controlling risk to ensure public safety, rather than
benefiting people with mental health problems. This reinforces
the mistaken public perception which links mental disorder with
dangerousness, while also giving unrealistic promises that the
law can be effective in managing risk, and controlling behaviour.
2.4 While accepting the proposal that statements
of principles underlying the aims of the new Act and guiding its
interpretations should be included in the Act itself, the Green
Paper puts forward a set of limited objectives concerned only
with practical effect rather than clearly defined principles.
2.5 While paying lip-service to the principle
of non-discrimination on grounds of mental disorder, the Green
Paper makes no attempt to justify why the law should apply differential
and discriminatory treatment of people with mental disorder, particularly
those who retain capacity to decide whether or not the treatment
proposed is acceptable.
2.6 The definition of mental disorder as
the diagnostic criterion for the use of compulsion is far too
broad, particularly in the absence of rigorous and restrictive
entry criteria. This will allow compulsion to be used on people
previously excluded from the scope of the Mental Health Act, particularly
those with learning disabilities.
2.7 The lack of criteria for compulsory
assessment, and the absence of any independent review of the use
of the compulsory powers of assessment would appear to breach
the provisions of the European Convention on Human Rights. The
right to an expedited tribunal hearing, at which more lengthy
powers of compulsion can be imposed, fails to provide patients
with an appropriate remedy by which their loss of liberty can
be challenged.
2.8 The entry criteria for compulsory care
and treatment are enormously broad and open to wide interpretation.
When combined with a broad diagnostic criterion, this will lead
to increased and unwarranted use of compulsion, and could also
have the effect of driving people with mental health needs away
from services for fear of being subjected to compulsory treatment.
2.9 Powers affecting mentally disordered
offenders, particularly prior to conviction, should reflect those
available in civil proceedings. Where, following conviction, restrictions
are imposed, powers must be made available to the tribunal to
direct the transfer or trial leave of restricted patients, and
to oversee and enforce after-care arrangements particularly in
cases of deferred conditional discharge.
2.10 Better safeguards are needed to protect
the interest of people with long-term incapacity, in order to
fill the "indefensible gap in our mental health law"
identified in the Bournewood case, and to ensure compliance
with the Human Rights Act.
2.11 The Law Society strongly endorses the
Expert Committee's plea that
"we urge government to recognise the complexity
of the context in which it is proposing to legislate. If it wishes
to produce mental health legislation for the twenty-first century
which can compare in terms of vision and durability to its real
predecessor, the Act of 1959, then both time and extensive consultation
are required" (para 1.26).
March 2000
33 Department of Health Reform of the Mental Health
Act 1983: Proposals for consultation TSO (November 1999). Back
34
Report of the Expert Committee: Review of the Mental Health
Act 1983, Department of Health (November 1999). Back
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