Memorandum submitted by Hafal (MH 12)


1. About Hafal

Hafal (meaning "equal") is a patient- and carer-led organisation working with people with severe mental illness and their families in Wales. Many of Hafal's membership of nearly 1000 have extensive personal experience of the Mental Health Act 1983. Hafal operates over 60 projects across Wales providing a range of services for people with severe mental illness: these include employment/training projects, supported accommodation, resource centres, club activities, befriending schemes, advocacy and carers' support services. Over 700 people use a Hafal service every day. In addition Hafal campaigns vigorously through research and publications to remove the stigma and isolation associated with severe mental illness.

2. Summary of this response

Hafal acknowledges that there are some improvements to the 1983 Act contained in the Amending Bill. However, there remain fundamental weaknesses in relation to:

Reciprocal rights

Compatibility with Welsh Policy and Services

We also support the amendments to the Bill voted for by the House of Lords.

Hafal is a member of the Mental Health Alliance and shares their general concerns about the Bill: we have not attempted to repeat these here but rather we reflect on specific issues for our members in Wales.


3. Reciprocal Rights

Reciprocal rights are frequently argued for as "compensation" - offering something in return for the invasion of individual rights which compulsion necessarily involves. This is a valid argument but Hafal's members seek legal rights to treatment for much more concrete reasons. Typically patients and families who seek help at the early stages of illness receive too little help too late: subsequent deterioration frequently leads to the use of compulsion. It is staggering to note that 50% of people with psychosis find compulsion their first experience of specialist care. More than a third of patients who are treated under the 1983 Act have previously been refused treatment which they sought voluntarily. Long experience tells our members that the quality of support (if any) when it counts at the early stage never matches the methodical and relatively consistent application of legal compulsion (which of course will always also win the case for resources.)

Rights to early treatment would create a more humane and cost-effective service, steering patients quickly towards recovery and social integration and reducing the need for compulsion.

Reciprocity of this sort was initially recommended in the Richardson report "Review of the Mental Health Act 1983: Report of the Expert Committee" (DoH 1999.)
Hafal agrees with their diagnosis and does not see why this principle should be abandoned. Reciprocity within mental health legislation is the key to creating a humane and effective framework to support people with a mental illness. Reciprocal rights would give patients back their dignity because the law would be based on agreement between government and patients: both would be required to act in a particular way at a particular stage of an illness; responsibility and obligation would be shared; and it would reduce the stigma of mental illness because the legislation would be seen by all as a genuine result of negotiation between government and patients.

Reciprocal rights would ensure access to early treatment. From our own experience we are convinced that this would prevent much suffering, improve safety for all, and significantly reduce the need for compulsion which the Bill so emphatically focuses upon. We believe that a new Mental Health Act should incorporate:

A core statement of principles on the face of the Act which opens with a new principle of law: compulsion which compromises a patient's rights must be balanced fairly with legal rights to treatment and care

A stipulation that Codes of Practice are based on that balance between compulsion and patients' rights.

A right to assessment on request within a set time

A further right to defined treatment and care including access to a psychiatrist when a basic threshold (for example the occurrence of delusional behaviour) is reached - a threshold well short of that required for compulsion to be applied
Mechanisms for legal rights to be increased over time by the Secretary of State in England or the National Assembly in Wales - for example, statutory timescales for the assessment of patients could be reducible and specific new rights to care and treatment made legally enforceable.

It is crucial to stress the importance of reciprocal rights in Wales where we have a sound and empowering strategy agreed between patients and the Welsh Assembly Government. Legal rights to treatment would ensure services are put in place where they are needed - in the early treatment of a mental illness.

The Draft Mental Health Bill is a lost opportunity to improve treatment and care, improve safety for all, and give people with a mental illness the rights they deserve. By creating law with reciprocal rights at its core, the opportunity for positive change could instead be seized.


4. Compatibility with Welsh Policy and Services

One of the key issues for people in Wales is how the amendments would affect the Assembly Government's plans for improving mental health services in Wales. The Assembly Government's Adult Mental Health National Service Framework provides plans to create services that are "effective, comprehensive and responsive" (Standard 6) and that promote "service user and carer empowerment" (Standard 2).

Reciprocal rights in the Bill would take forward these goals.

However, a compulsion-led Mental Health Bill that skimps on patient and carer rights contradicts these aims.

Hafal would like to highlight the Mental Health Act 2003 introduced by the Scottish Parliament. Their legislation was developed in careful liaison with patients and other interested parties and guiding principles are included in the Act. These include the principles of reciprocity (compulsory treatment and care in return for safe and appropriate services) and benefit (whereby any intervention under the Act should be likely to produce a benefit to the service user which could not reasonably have been achieved without compulsory intervention). The Scottish Act includes a statement establishing ten guiding principles which should be 'taken into regard' in all decisions relating to the use of compulsory powers under the Act. Many in England and Wales support guiding principles, and the joint scrutiny committee on the draft 2004 Bill called for them to be incorporated into English and Welsh legislation. The Scottish Act requires decision-makers in mental health to 'have regard' to the guiding principles. In practice this means that whilst the guidelines should be considered in every instance, there is potential and freedom to depart from them if appropriate and necessary.

April 2007