10. Memorandum from Mike Cox CQSW Social Work Practitioner
These observations and opinions are written from my own perspective and they are not representative of any other individual or organisation.
My background is that of a qualified (CQSW) social work practitioner with 30 years' practice experience in the field of mental health, that paralleled by experience as a Mental Welfare Officer under the Mental Health Act 1959 and an Approved Social Worker under the Mental Health Act 1983. I took disability early retirement in 1999 and since then have continued to be involved as a freelance voluntary advocate, writer and commentatormental health law, policy and practice being one of my continuing fields of interest.
THE DRAFT MENTAL HEALTH BILL AND HUMAN RIGHTS
My general concerns include potential human rights problems around the real intentions and objectives of this Bill. Firstly in its spurious use of a legislative framework for compulsory care and treatment for those suffering from conditions of mental ill-health to set up legislation which is primarily about social control. To do this those drafting the Bill have introduced a broad, all encompassing definition of mental disorder; a set of conditions with terms inviting some degree of ambiguity ("Such a nature or degree"; "as to warrant"; "substantial risk"; and "appropriate"); and the unscientifically invented quasi-diagnosis: "dangerous severely personality disordered (DSPD)".
The latter's origin is: "The phrase dangerous severely personality disordered (DSPD) is used in this paper to describe people who have an identifiable personality disorder to a severe degree, who pose a high risk to other people because of serious anti-social behaviour resulting from their disorder". (Managing Dangerous People with Severe Personality DisorderProposals for Policy Development. Home Office, July 1999). As we seedrawn out of a hat to suit proposals for social protectionnot rights to care and treatment for people with mental health problems.
In drafting legislation for dual purposes the government is potentially setting up legal conditions which will increase the ease by which coercion is imposed on people with genuine mental health problems and thereby eroding their human rights. That dual purpose also increasing the risk from the "catch-a11" definition of mental disorder (presumably the Government would not be able to take action on "DSPD" without it) of engulfing those with deviant, eccentric or socially atypical views; those with temporary and socially founded "disturbances of mental functioning" ("I suppose we will have to be careful about how we walk home from the pub in future" George commentedLawrence Pollock, "Proceed with caution" (about the Bill), in "Care and Health" July 17-30, 2002); and political and religious dissidents.
My other general concern is about the proposed legislative structure. I contend that leaving so much of the detail in the hands of the Secretary of Stateby Ministerial Regulation and through the Code of Practice opens the proposed legislation up to future abuse for political convenience. I am of the very firm opinion that all the detail should be in the proposed Act, including the Code of Practice. That would mean any possible future changes being fully scrutinised by Parliament.
If legislation to deal with what the Government terms "DSPD" is necessary then surely the only safe way to preserve and enhance human rights is to do this separately.
The areas where I see risks, beyond proportionality, of contraventions of human rights because of this draft Bill are:
ECHR Article 3 in the potential for the draft Bill promoting both "inhuman treatment" and "degrading treatment" because of its possible arbitrariness.
ECHR Article 5 for reasons outlined abovethe coercion of people who do not have mental health problems but are wrongly determined to have a "disability or disorder of mind or brain", are seen to "Warrant the provision of medical treatment"; and are determined to be of sufficient risk to necessitate the provision of medical treatment. "Appropriate medical treatment" is easily rationalised in a service which uses major tranquillisers as almost the sole "appropriate treatment" and which ignores other legitimate and effective forms. In my 30 years' experience I saw this happen numerous times, sometimes merely for the convenience of the clinician (the Approved Social Worker role of the 1983 Act has generally been a good and effective safeguard to this kind of misuse but if the "Approved Mental Health Professiona1" is a Nurse, with vested interests in not making waves in the NHS trust they are employed by and professional obligations which lean towards assent with the doctors, the chances of the "Approved Clinicians" of the Bill being challenged will steeply diminish)examination of the reports over the years of the Mental Health Act Commission will also evidence this kind of misuseinfinitely more possible under the proposals of the draft Bill. Yes, there are very positive advances in the Billnominated persons and advocacybut these are only operative after the fact; when the damage to human rights is already done.
There is another issue here, one which has always given me concern in the functions of the 83 Act but which has, certainly in my experience, been covered when necessary by good standards of practice. But which, in the draft Bill's proposals would seem to open up potential for some new breaches of Human Rights. This is the question of initial referral and, consequent upon that referral the initial intrusion into someone's privacy and liberty (for "initial examination"). I suppose the nearest analogy here (to ECHR) is the tenet that "Arrest is only lawful if it is based on a reasonable suspicion of having committed an offence" (Blackstone's Guide to the Human Rights Act 1998, John Wadham and Helen Mountfield). There are some extremely vulnerable people with mental health problems not warranting compulsion but who might become very disturbed at three people barging into their life to "examine" them, something which could become a self-fulfilling process. Additionally, the Bill's requirement of an examination "if requested to do so by any person" seems to risk an invitation to make malicious referrals.
ECHR Article 8for the reasons outlined above.
ECHR Article 9for reasons outlined above.
ECHR Article 9 if the possibilities of change by Ministerial Regulation for political convenience written into this draft Bill become a reality. This could also, in more extreme circumstances, be extended to Article 10.
18 July 2002