Memorandum submitted by the United Kingdom's Disabled Peoples Council (MH 59)

 

The United Kingdom's Disabled Peoples Council (formerly, British Council of Disabled People) is an umbrella organisation representing over 140 organisation run and controlled by disabled people with a variety of health conditions and impairments. The UKDPC represents organisations which are run and controlled by disabled people including those who describe themselves as mental health system survivors. UKDPC has a particular interest because there is a much higher prevalence of mental health conditions developing amongst disabled people than the population as a whole. 1 in 2 [1] disabled people will be affected by having a mental health condition compared to 1 in 4 of the population as a whole.[2] This is not unsurprising, factors such as traumatic events in childhood, for example abuse, traumatic events in adulthood, not having enough control over their own lives, not having enough stimulating things to do in their own lives, social isolation, bullying and discrimination and difficulty expressing emotions, or not having anyone to express them to[3], institutionalization and restriction of social role performance all will take a toll on one's mental health and emotional well-being.[4]

 

Any Mental Health legislation must effectively deal with the causes of mental health conditions in addition to treating its symptoms. To this aim, the UKDPC supports the Joint Parliamentary Scrutiny Committee on the Mental Health Bill which concluded that:

 

"The primary purpose of mental health legislation must be to improve mental health services and safeguards for patients and to reduce the stigma of mental disorder"[5]

 

We agree with this view but the focus on eliminating the adverse affects of mental health conditions must also be the responsibility of both mental health and social care services and society as a whole.

 

Mental Health Bill Aims

The UKDPC sees the aim of mental health legislation should be equally focused on disabled people's rights to receive appropriate assessment and support to prevent and alleviant adverse affects of mental health conditions. We see the aim of mental health legislation must be to:

Promote disabled peoples autonomy and choice in their lives in order to prevent social isolation and adverse affects from a mental health condition through provision of appropriate social care, communication facilitation and equipment.

To increase emotional wellbeing as well as preventing mental condition deterioration.

Provide a range of talking therapies so that disabled people can be supported to understand their emotional states and mental health conditions which may rise from adverse childhood and life experiences in a 'disablist' society.

Provide a range of services and treatments in a timely manner to encourage voluntary take up by disabled people.

Compulsion should be last resort after all other options have been tried.

 

The 1983 Mental Health Act is the major legislative framework for treating disabled people with mental health conditions without their consent. The Mental Health Act provided some legal safeguards to ensure there is a balance between patient's rights against the need for compulsory treatment. In accompanying Code of Practise, compulsory treatment should only be considered after other options have been tried. Hospital detention was only possible if a patient would receive therapeutic benefit from any prescribed treatment. These decisions could only be made by 2 doctors and an approved social worker in order to avoid any medical basis when detaining a patient.

 

Mental Health Bill 2006

The draft Mental Health Bill was presented before a Joint Committee who was extremely critical of its content. Despite widespread criticism the Government has introduced the 2006 Mental Health Bill which in the main seeks to amend the existing 1983 Mental Health Act. The 2006 Mental Health Bill will

Increase the range of individuals who can be treated for a mental disorder.

 

To have a separate category for people with learning difficulties whose disability is associated with abnormally aggressive behaviour or engages in serious misconduct.

 

Replace 'treatability' with appropriate treatment where no longer there is a 'therapeutic' benefit requirement.

 

Increase the range of healthcare professionals who will be given the power to detain patients.

 

To provide healthcare professionals the power to compel patients to undergo treatment programmes in the community.

 

To include civil partnerships in nearest relative as the person who can represent the detained patient.

 

A legal framework for making decisions on behalf of persons lacking capacity whose freedom will be restricted either in a psycratric hospital or residential care home (Bourewood Gap).

 

Government's Reasons for Mental Health Bill

The Government proposed a new Mental Health Bill so that it easier to administer treatment for a very small number of individuals with dangerous personality disorders labels who may pose a danger to public safety. Without evidence the Government have advocated a need for a change in the Mental Health legislation to tighten up the perceived Mental Health Act's legal loop holes. Inquiries into homicides involving disabled people with mental health conditions have concluded that such incidents happen when[6]

Services communicate poorly with one another.

Community Services are inadequate or early intervention does not occur.

Overstretch healthcare professionals who do not respond to their patients.

Care Planning is poor or not implemented properly.

The 1983 Mental Health Act is misinterpreted by healthcare professionals (i.e. the law is not inadequate; it is just inadequately used).

 

These inquiries highlight the increasingly difficulties for disabled people to access appropriate services especially at a time where PCTs and Local Authority's Social Services are constantly under financial pressure to reduce the quantity and range of services for those with mental health conditions. This will have an adverse affect when disabled people with mental health conditions will not come along for assistance. It is likely that the public will be at greater risk if disabled people with mental health conditions are not willing to seek assistance from health and social care services. Any attempt to increase compulsory treatment will have the adverse affect, that being disabled people will be driven away from receiving services in order to avoid any compulsory treatment by healthcare professionals.

 

The House of Lords have amended the Mental Health Bill -

 

Provide exclusions to the Mental Disorder definition so that no one is detained solely on the basis of substance or alcoholic misuse, sexuality, disorderly acts and cultural, religious or political beliefs.

 

Doctors will not be able to impose treatment onto anyone who can make their own decisions.

 

Reinstate the 'Treatability' test so that treatment can only be administered if there is a therapeutic benefit for the individual.

 

Any renewal of detention and Community treatment order must be approved by medical opinion.

 

Community Treatment Orders can only be authorised for 'revolving' door patients where repeated refusal to treatment has occurred.

 

To ensure that children and young people are only treated in an age-appropriate settings by qualified professionals dealing with children and young people.

Why the House of Lords Amendments Are Necessary

UKDPC welcomes the House of Lords Amendments to the 2006 Mental Health Bill. The amendments would reintroduce the balance between legal protections for patients against the need for compulsory treatment under the 1983 Mental Health Act. We have attempted to engage constructively with Government and their officers about our major concerns which the UKDPC has with the Mental Health Bill if left unammended.

 

Mental Health Disorder Clause 1 -3

The Mental Disorder definition is open to a very broad interpretation so it is essential there are exclusions in place in order to be sure only individuals with a genuine mental health conditions can only be treated under this legislation. The UKDPC thinks it is necessary to have the following exclusions so that the mental disorder definition does not cover substance misuse of drugs or alcohol, sexual orientation or identity, cultural, religious or political beliefs or commissioned or likely to commission disorderly or illegal acts in order to avoid detaining individuals for social control reasons[7]. This is particularly so for disabled people from ethnic minorities where their behaviour can be severely misunderstood as a mental illness rather than thoughts arising from their cultural, religious or political beliefs.[8] These provisions will ensure better checks and balances are in place so doctors are only detaining patients for clinical reasons.

 

UKDPC supports the House of Lord's amendment which provides similar legal safeguards for individuals in the Scottish Mental Health (Care and Treatment) Act 2003[9], New Zealand Mental Health (Compulsory and Assessment) Treatment Act 1992[10] and North South Wales Mental Health Act 1990[11]

 

 

In addition to the six Mental Disorder's exclusions the House of Lords had voted on, UKDPC would have liked learning disabilities to be included.[12] Currently, doctors only need to focus on the nature of an individual's behaviour rather than the cause of it. This allows doctors to detain and treat people with learning difficulties without considering the source of their behaviours. Disabled people with learning difficulties are subjected to inappropriate and over prescribing of psychotic drugs with quite severe side effects where other less intrusive and humane treatments would have been preferred.[13] The Cornwall NHS Trust's inspection found drug treatments were inappropriately used.[14] Medication was used instead of establishing more 'acceptable' forms of communication and increase stimulation in the environment. UKDPC considers such practises could be avoided by simply removing learning disabilities as a separate Mental Health Disorder category. The only legal requirement currently under the Mental Health Bill is to consider the individual's severity of behaviours rather than the cause of it and therefore leads to inappropriate use of drug treatments and hospital detainment. Too often the causes of a disabled person with learning difficulties abnormal behaviour or serious misconduct is a result of lack of control over one's environment and routines in one's life or support to facilitate different forms of communication with disabled people with learning difficulties are often over- looked. The UKDPC sees no reason why Disabled people with learning difficulties could still be treated under the Mental Health Bill if they have a genuine mental health condition as well.

 

The UKDPC will be seeking amendments to remove learning disabilities as a separate category under the Mental Disorder clause.

 

Impaired Decision Making Clause 4

No one who can make their own decisions should have treatment imposed upon them This is clearly the case when disabled people make decisions for treatment of a physical condition. Mental Health legislation should not be used for doctors to impose any medical treatment onto an individual like in the case involving a patient whose doctor thought it would be in his best interests to have an amputation as his leg was going gangrene. This amendment would avoid treatment being imposed onto an individual simply because there is a disagreement with a doctor's opinion.

Appropriate Treatment Clause 5 and 8

Doctors have a long tradition of only offering treatment where there is a therapeutic benefit for the patient. This was enshrined in the 1983 Mental Health Act and case law for physical healthcare decisions being made on behalf of patients lacking capacity[15]. Within the Mental Health context, doctors must demonstrate that compulsory treatment must alleviate or prevent a patient's mental health deterioration. There should be no discrimination on how healthcare treatment decisions are made for mental health or physical conditions on behalf of individuals without their consent.

The 1983 Mental Health Act's 'treatability' clause is replacing by 'Appropriate treatment' so that doctors will be required to consider all the circumstances of the case including public safety when deciding to administer treatment. There is absolutely no requirement for a patient's treatment to be of a therapeutic benefit. This overrides the "therapeutic benefit" principles where previous Governments and the courts have established for all patients regardless of their mental or physical health condition. The UKDPC does not think it is ethical to impose a duty upon doctors to consider treatment and hospital detainment if there is no benefit for the individual concerned.

 

UKDPC supports the House of Lords Amendment to replace 'appropriate treatment' with the 1983's 'treatability' clause.

 

It is not just whether the treatment is of a therapeutic nature that the UKDPC has concerns about. 93% disabled people with mental health conditions were only offered drugs whilst 59% had a choice of talking therapies.[16] This often happens because drugs rather than talking therapies were only available at the time to doctors[17]. With the financial pressures on both PCT[18] and Social Services departments the only form of treatment on offer maybe drugs which some disabled people with mental health conditions refuse to take. If the goal of mental health legislation is to improve well-being and avoid risk to public safety then a wider range of services and supports need to be available in order to encourage greater voluntary take up. Such choices should be explored before imposing compulsory hospital treatment onto an individual. And further equal consideration must be given to social care support and assisting the person gain greater control over their life. Providing social support may well reduce social isolation and adverse affects of a person's mental health condition.

 

The UKDPC will therefore be seeking amendments to ensure disabled people have a holistic assessment followed by a range of options which will assist with preventing a person's mental condition from deteriorating and increase his/her emotional wellbeing.

Fundamental Principles (Clause 10)

The UKDPC welcomes the Government's amendment to include fundamental principles in the Code of Practise. However, these principles should be in the Bill for guiding healthcare professionals' practises and how courts interpret the law. This is essential as the Scottish Mental Health Act includes principles on the front of their legislation. UKDPC welcomes the Government's amendment to impose a duty upon the Secretary of State to provide Mental Health Bill's principles in its Code of Practice.

 

UKDPC does not think this goes far enough and would like principles to be specified in the mental health Bill itself.

 

Healthcare Professionals Powers to detain patients (Clauses 11-18)

Under the Mental Health Act only two doctors and an approved social worker could detain a patient. This ensured that decisions were not made simply on medical grounds. Before acquiring such powers professionals were required to undertake a period of approved training and have worked with mental health service users/survivors. The Mental Health Bill will give local and health authorities greater power to approved a wider range of professionals who would be permitted to be involved in detaining patients. The list would include Psychologists, Occupational Therapists and Community Mental Health Nurses. With an increasing number of professionals having the ability to detain patients will undermine the therapeutic relationship between the parties. This is likely to increase the likelihood of individuals not seeking assistance when needed and undermine their therapeutic relationships with healthcare professionals that have traditionally been trusted. The affect of increasing the types of professionals having the 'power' to section and regard for others interests will undermine both health and social care professionals to act in the patient's interests. We expect healthcare professionals to become the 'psycratric' police force where their job is to 'round up' patients who do not take their medication or do not comply with the CTO's restrictions. The UKDPC will be seeking amendments so that only doctors and approved social workers have the power to authorise hospital detainment for patients.

 

The UKDPC will be seeking amendments so that only doctors and approved social workers can authorise hospital detainment

Nearest Relative Clauses 26-29

The Nearest Relative (who can represent a detained patient) will include civil partners alongside other family members. Disabled peoples' inability to displace their family members as 'nearest relative' has been ruled as being incompatible with the Human Rights Act by the European Court of Human Rights.[19] Government choose to include a court process for disabled people to remove their nearest relative rather than giving them the automatic right to appoint whoever they wish to have this role. UKDPC thinks this provision is severely inadequate as it is stressful enough going through the sectioning process without having to apply to a court to remove the nearest relative.

 

UKDPC sees there is a missed opportunity for ensuring that anyone who is threatened with or undergoing the sectioning process should have a right to independent advocacy and choose who the appointed person ought to be.

UKDPC are seeking amendments to replace the nearest relative with an appointed independent person together with the right for independent advocacy support.

 

 

Compulsory Treatment and Community Treatment Orders (Clauses 32-34)

Under the 1983 Act compulsory treatment could only be administered whilst being a hospital patient. This clause ensures any patient who is subjected to compulsory treatment will be monitored by qualified doctors on a regular basis within a supervised environment. Deprivation of liberty is restricted to the time as a hospital patient. However, under the Mental Health Bill, the Community Treatment Order is in place to extend deprivation of freedom for disabled patients on discharge from hospital. CTOs can specify where a patient lives, where and when to attend for treatment, daytime activity and alike. CTOs go much further than hospital detainment and we think this is unnecessary. There is no evidence that CTOs are effective which are often dubbed as the psychiatric Antisocial Behaviour orders[20].

 

The UKDPC does not support CTOs and believes any compulsory treatment should only be administered in a hospital not in the community so therefore UKDPC will be seeking appropriate amendments.

 

Safeguarding People without Capacity (Bournewood) Clauses 48-49

UKDPC are pleased that the Government are now having to review the Bournewood Gap and put into place legal safeguards for individuals lacking capacity to make a decision on becoming a voluntary patient or living in a residential care placement. However, the legal safeguards are too insufficient, allowing health and local authorities to police themselves. It is unlikely a Health or Local Authority is going to find that one of their psycratric hospitals or commissioned residential care service providers are unnecessarily restricting an individual's liberty.

 

UKDPC feels there is insufficient independence in overseeing the justification of a psycratric hospital or residential care home provider from imposing restrictions upon an individual without capacity's liberty and will be seeking appropriate amendments.

 

UKDPC would like the House of Commons to uphold the Mental Health Bill's amendments and where possible to strengthened the provisions. The House of Lords amendments only brings back some balance between patient's rights and the need of compulsory treatment which exist in the 1983 Mental Health Act. UKDPC would like further improvements so there is a greater emphasis of encouraging disabled people with mental health conditions to participate rather than relying on coercive measures to take up services and treatments. A successful Mental Health Act will promote disabled peoples emotional well-being.

 

April 2007

 

 

 

 



[1] Department of Health, 2005 "Towards Equality and Access for Disabled People", NHS Public Institute 2003, "Needs of People with ASD", Journal of Intellectual Disability, 2002, "People with Intellectual Disability. Sensory Impairments and Behaviour Disorder - A Case Series", Services for People with Learning Disabilities. Challenging Behaviour or Mental Health Needs, Rowntree Foundation 1993, "Services for People With Physical Impairments and Mental Health Support Needs"

[2] ONS 2000, "Psychiatric morbidity among adults living in private households in Great Britain".

[3] Mencap Website, www.mencap.org.uk

[4] Rowntree Foundation 2004 "A critical Review of the Literature - People with Physical Impairments and Mental Health Support Needs"

[5] Report of the Joint Committee on the Draft Mental Health Bill 2005

[6] Mental Health Alliance's House of Commons briefing March 2007

[7] Being Gay was considered as a mental illness until the World Health Organization removed this from their Disability and Illness classifications

[8] Commission for Healthcare Audit and Inspection, 2005, "Count me in, Results of a national census of inpatients in mental health hospitals and facilities in England and Wales."

[9] Scottish Mental Health Act 2003 Mental Disorder excludes sexual orientation, sexual deviance, transsexuals; transvestism, dependence on drugs and alcohol, behaviour that causes or is likely to cause harassment, alarm or distress to any other person; and actions that no prudent person would undertake.

[10] New Zealand Mental Health (Compulsory Assessment and Treatment) Act provides exclusions for people's religious, cultural and political beliefs and criminal or delinquent behaviours

[11] New South Wales Mental Health Act will provides exclusions for a person's political opinion, or belief; religious opinion or belief; a philosophy; sexual preference; political activity; or religious activity.

[12] New Zealand Mental Health (Compulsory Assessment and Treatment) Act provides exclusions for people with learning disabilities who do not have a mental health condition.

[13] Journal of Intellectual Disability Research, December 2000, Volume 44 Issue 6, J. Robertson, E Emersom, N Gregory, C Hatton S Kessissoglou and A Hallam
"Receipt of psychotropic medication by people with intellectual disability in residential settings"

[14] www.healthcarecommission.org.uk/yourlocalhealthservices/nhsa-zbyorganisationname.cfm?widCall1=customWidgets.content_view_1&cit_id=2370

[15] Re F[Mental Patient :Sterilization] 1990 2 AC

[16] Health Commission's 2006 survey of Mental Health Service Users

[17] [17] http://www.mentalhealth.org.uk/publications/?EntryId=46839

[18] www.amicustheunion.org/default.aspx?page=4479 - 16k Amicus September 2006 reported that 76% PCT Mental Health Trusts were facing a budget deficit whilst 56% were considering cuts to mental health services

[19] JT v United Kingdom [2000] 1 FLR 909

[20] http://www.cochrane.org/reviews/en/ab004408.html The Cochrane Collaboration, 2005, "Compulsory community and involuntary outpatient treatment for people with severe mental disorders (Review)" Leading research (1) found no evidence of any advantages of compulsion in the community, instead recognizing that it might detract from interventions that would help