Select Committee on Health Appendices to the Minutes of Evidence


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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