Memorandum submitted by the Disability Rights Commission (MH 64)
1. The Disability Rights Commission works for a society in which all disabled people can participate fully as equal citizens. Our statutory duties are to eliminate discrimination and promote equality. Our perspectives on the Mental Health Bill derive from this and from an appreciation of human rights principles and standards. They are also informed by available evidence and, crucially, the lived experiences of mental health service users and survivors.
2. We believe mental health law should be rooted in a strong human rights framework, geared towards maximising opportunities for independent living and social inclusion for people with mental health problems, should avoid discrimination and promote equality, autonomy, dignity and respect.
3. As currently drafted - and even taking account of the positive amendments made in the Lords - we do not believe the Mental Health Bill yet satisfies these criteria. Indeed it could serve to reinforce and perpetuate stigma and exclusion.
4. We share many of the concerns of the Mental Health Alliance and the Commission for Racial Equality (concerning the inadequacy of measures in the Bill in relation to the need to eradicate the inequalities and institutionalised discrimination confronting people from BME communities) in relation to the Bill. The full range of our concerns are outlined in a briefing on our website at:
5. This memorandum, however, focuses on three issues yet to be debated in Committee where we have particular concerns: the absence of any rights for people with mental health problems to assessment, support and treatment for their mental health needs, the pressing need to establish statutory rights to independent advocacy for mental health service users and the need to repeal Section 141 of the 1983 Act.
Rights to assessment, treatment and support
6. The opportunity must be taken to give people with mental health problems in England and Wales a right to holistic assessment, treatment and support - rights currently only available to people who live in Scotland under their Mental Health (Care and Treatment) Act 2003. This would ensure people get help before they reach a crisis point, reduce the need for compulsory treatment under the 1983 Act, promote early intervention (the cost-effective option) and enhance people's social/economic participation and wellbeing. It would also implement the Joint Committee on the Mental Health Bill's recommendations on assessment and provision of support. The Government cannot afford to delay legislating for such rights since the current system is a costly failure for mental health services users, their families, society and the economy.
7. Further it is only right that in a law under which a person can be deprived of their liberty, separated from family and friends, detained against their will and otherwise subject to compulsion on grounds of their mental disorder, a counterbalancing right to receive support and treatment is provided to prevent the need for compulsory detention and treatment arising. That principle - the principle of reciprocity - was strongly articulated and endorsed by both the Expert Committee and the Joint Committee.
8. Currently people with mental health problems have no right to assessment or support for their mental health needs. Under the Care programme approach people in contact with secondary mental health services may be provided with a care plan and programme of support but this is not an enforceable right. Most people with moderate mental health needs are told they will have to pay if they want psychological therapy and will not be able to access treatment and support until their situation has deteriorated. Only after discharge from a psychiatric institution are people legally entitled to support under section 117 of the Mental Health Act. Moreover, people with mental health problems are (unlawfully) refused access to social care services unless they meet a very high threshold of severe mental illness.
9. The absence of strong rights to early, appropriate support has very serious consequences for people's human rights, life chances and for our social wellbeing and economic prosperity. Inspite of recent improvements in mental health services driven by the National Service Framework, among other things (some of which risks being undone by the current NHS financial crisis where mental health services have been particularly affected) there are very serious flaws in the system. These can be summarized as follows.
10. People receive too little of what is often the wrong kind of help, too late:
· People can end up subject to compulsory powers because of the lack of available support services to meet their needs; either the services do not exist or people are turned away when they ask for help or people avoid the services on offer because they consider them harmful or irrelevant to their needs. (Mind)
· According to Rethink 50% of people who end up being treated without their consent have previously asked for help and been turned away. Yet treatment that people ask for is known to be much more effective than treatment given without someone's consent.
· Most mental health problems go untreated. In 2000 less than a quarter of people assessed as having a neurotic disorder were receiving treatment of any kind (Singleton et al 2000).
· 51 per cent of mental health service users do not have access to crisis care out of hours (Healthcare Commission)
11. This, in turn, has serious consequences for their social and economic participation:
· Just 20 per cent of people with mental health problems are working. In 2005 the largest group of people claiming Incapacity benefits were people with depression; 40 per cent of IB claimants have a mental health problem. Three out of five employers say they wouldn't employ someone with a mental health problem.
· People with long-term mental health problems have a lower life expectancy and are more likely to have problems with their physical health. (DRC, Health Inequalities Formal Investigation)
· In 2000 1.5 million people were caring for relatives with mental health problems (Arksey 2002). Carers of people with long term mental health problems also have a greater risk of experiencing mental health problems themselves and caring impacts on their social and economic opportunities. A survey in 2000-2001 found that those who reported that caring affected their employment were more likely to experience mental health problems (ONS 2002). Carers of people with mental health problems are more likely to work fewer hours and receive lower wages in work and lower pensions on retirement (Seddon et all 2004, Evandrou and Glaser 2003).
· "Mental health problems are estimated to cost the country over £77 billion a year through the costs of care, economic losses and premature death. (Sainsbury Centre for Mental health; SEU, 2004)
12. Rights to holistic assessment, treatment and support would force gaps in services to be addressed and ensure people receive help that they want when they ask for it, thus preventing needless expenditure and high personal/social economic costs further down the line. It would force a focus on delivering improved outcomes and break the circle of fear that prevents people from black and minority ethnic communities experiencing mental distress seeking the help and support they need when they most need it.
13. The right to access treatment and support in the critical early phase of illness will have a profound effect on outcomes. Early treatment has been shown to improve the long-term course of psychosis. As Rethink states:
"If left untreated, there is greater disruption to the person's family, friendships, study and work. Other problems may also occur or intensify, such as unemployment, depression, substance abuse, breaking the law and causing injury to him/herself. In addition, delays in treatment may lead to a slower and less complete recovery.
Statutory right to independent Mental Health Advocacy
14. The Commission believes that independent advocacy is an extremely important safeguard for those subject to compulsory powers and that a statutory right to advocacy needs to be established in the Mental Health Act. Our recent, extensive consultation on advocacy confirmed widespread support for this among all stakeholders. At committee and report stage in the Lords the Government said it was considering how best to make advocacy services available and we eagerly await further announcements.
15. Without rights to independent advocacy access to such a vital service will remain a postcode lottery and at the discretion of mental health professionals. Without such rights the Bill will not, in our view, provide effective protection for the human rights of mental health service users in situations where they risk being deprived of their liberty and right to family life. Advocacy forms a vital safeguard against the improper use of power against a person denied their liberty. It is also fundamental to communicate the interests of patients and provide them with a way to exercise their rights to appeal against decisions about their care and their treatment when they lack the capacity to do this for themselves. These basic human rights should be upheld in law.
16. We believe that all patients subject to compulsory powers under the Act should have a right to an independent mental health advocate. There should also be an independent mental health advocacy service tailored to the needs of children and young people. Independent Advocacy for people from black and minority ethnic communities must be culturally appropriate.
17. People need to be informed of their right to this advocacy when significant decisions need to be made regarding their care or treatment, or if they wish to make allegations of abuse. The definition of a qualifying patient needs to be extended beyond the groups that the Government identified in the 2004 Draft Bill. We believe that the legislation must ensure that patients under section 135 or 136, those undergoing serious medical treatment (ECT, psychosurgery and hormonal implants to reduce male sex drive) and patients under seclusion have a right to independent advocacy. The Bill also needs to establish a right for the patient to meet with their advocate in private.
18. The Government included rights to independent advocacy in the 2002 and 2004 Draft Bills precisely because they recognised that to fail to do so could risk infringing the human rights of patients under the ECHR:
"The right to independent advocacy is drafted to comply with the positive duties imposed by Article 8 of ECHR to ensure that mentally disordered persons are protected... This is a significant safeguard that will protect the rights of patients subject to compulsory care and treatment under new legislation. Not having this safeguard could result in additional ECHR challenges."
(Draft Mental Health Bill Explanatory Notes and Partial RIA, Department of Health 2002)
The case for repeal of Section 141 of the 1983 Act
19. Under Section 141 of the 1983 Act an MP can be removed from his/her seat after 6 months if he is suffering from a mental illness and authorised to be detained. No such provision applies if an MP is unable to attend Parliament or hold constituency surgeries because of hospitalisation for a physical illness or for any other reason. Baroness Wilkins proposed an amendment repealing this blatantly discriminatory provision during Committee stage in the Lords. Peers of all parties expressed support and even the Government admitted that s141 was, on the face of it, discriminatory and stigmatising.
20. Under the Disability Discrimination Act it is unlawful under the employment and office-holder provisions to simply sack someone because of a period of hospitalisation. If someone is experiencing mental distress the correct approach is to make reasonable adjustments - for example by giving them time off and allowing a gradual return to work. MPs are excluded from the office-holder provisions of the legislation but one would expect that the same principles should be applied.
21. Section 141 is not only discriminatory, it also makes it harder for MPs to be open about experiences of mental health problems, which reinforces stigma.
22. Fortunately section 141 and previous provisions in the 1959 Act and 1886 'Lunacy (Vacating of Seats) Act' have never been used. The only record of earlier use of such a provision is from 1811 and 1861. We contend that, quite apart from the discriminatory nature of the provision, it is hardly appropriate to include in 21st century mental health legislation something that was last used in the mid 19th century in the era of privately run lunatic asylums.
23. The Government have raised two issues with repeal. First they say that detention under the Mental Health Act is a special case because a person's freedom of movement is reliant on their being granted leave. But someone's freedom to come to Parliament could also be curtailed by physical ill-health - a severe brain injury for example. Second they raise the rights of constituents to seek alternative representation if their MP is detained which cannot happen unless the seat is vacated. Could that not be dealt with by other means that do not single out and stigmatise those with severe mental health problems? Could generic, non-discriminatory provisions in the Representation of the People Act be considered covering situations when an MP is unable to attend Parliament or otherwise carry out their duties for a prolonged period of time?
24. We contend that Section 141 with its anachronistic and stigmatising message that those with severe mental health problems are not fit to hold public office simply must go.
 See 'Delivering the Choice and Voice Agenda: The role of independent advocacy services', Disability Rights Commission, August 2006. (available on our website at http://www.disabilitydebate.org/docs/Delivering_the_Choice_and_Voice_Agenda.doc)