Joint Committee On Human Rights Sixth Report

77. Memorandum from Camilla Parker, Legal and Policy Consultant

  Thank you for giving me the opportunity to comment on the need to establish an independent body with powers to promote and protect human rights (a "Human Rights Commission").

  I work as an independent legal and policy consultant in mental health-my comments are given in a personal capacity, based upon my experience of working in this field for nearly 10 years.

  Given that mental health is one area in which the Human Rights Act 1998 ("the HRA") can be said to have already made a significant and positive impact on mental health, I think that this is an interesting perspective from which to consider the question whether a Human Rights Commission is needed.

  For the reasons I outline below, in my view, the impact on mental health, has been pretty much limited to the interpretation, or amendment of, the Mental Health Act 1983 ("the MHA")—I give more details below—and the question whether the HRA has led to the improvement of mental health care or has had a positive impact on the lives of people with mental health problems is less easy to answer. I believe that to achieve such goals it will be essential to have an independent body dedicated to the promotion and protection of human rights for all individuals and thus there is a clear need for a Human Rights Commission.

1.   Mental Health and Human Rights

  Mental health is an extremely complex area. Individuals with mental health problems may at times experience acute mental distress which can have a devastating impact on themselves as well as their friends and their family. In addition, people with mental health problems suffer from the stigma attached to "mental illness" and face widespread discrimination and prejudice.

  While many people with mental health problems are able to live in the community with varying degrees of support, some may in times of crisis find themselves admitted into hospital under the compulsory powers of the MHA. This decision, taken by mental health professionals should involve a considered approach where the rights and interests of all involved—the individual, his or her friends and/or family and in some cases the public—are taken into account.

  The MHA also provides powers to treat individuals who are detained under the Act for their mental disorder, without their consent.

  Issues such as the loss of liberty and the removal of the right to decide what, if any, treatment to receive, are clearly relevant to the HRA. However, for some people the experience of receiving mental health services leaves a feeling of "disempowerment"—where their views or wishes are not considered and they are allowed no part in the decision-making about their care. In the Mental Health Foundation's report—Something Inside So Strong—Strategies for Surviving Mental Distress, "RB", one contributor to the success stories, includes the following description:

    "From 1977 to 1984 I was mentally ill forever and I would need regular injections, if I were to stay alive. Or so I was told by caring professionals each time I attended outpatients. I believed it.

    I was also helpless, hopeless, I could not be trusted. I was dangerous if I did not religiously adhere to my appointments and medication regime. I would be an irresponsible patient by doing something to displease my multidisciplinary team. My psychiatrists were omniscient in relation to my situation. Such was the approved programme for people of my mental geography".[15]

  Thus the HRA is not just important because it provides a framework in which mental health professionals can make decisions which impinge upon an individual's rights and freedoms, by balancing the rights of the individuals involved. It also has a crucial role in ensuring that individuals who happen to have mental health problems are central to any decision making about their care and treatment and are treated with the same respect and dignity as other members of the care team.

2.   Convention articles relevant to mental health

Article 5—the right to liberty

  This article is crucial given that under the MHA, individuals can be compulsorily detained in hospital. The MHA sets out the criteria for admission to hospital and also provides for the regular review of detention by the Mental Health Review Tribunals (MHRTs).

  Article 5 is also possibly relevant to the so called "complaint incapacitated patients". The House of Lords decided in R v Bourne wood Community and Mental Health NHS Trust, ex parte L, [16]that individuals who lack the capacity to consent to their admission to hospital to receive treatment for their mental disorder can be admitted informally (ie without using the compulsory powers under the MHA) if they do not object to their admission. The House of Lords, decided by a majority decision that Mr L (the patient) had not been detained. However, a complaint has been lodged with the European Court of Human Rights and one of the points that the court will be asked to consider is whether Mr L was detained. Currently, none of the rights available to people detained under the MHA (such as the right to have an independent review of their detention) apply to "complaint incapacitated patients".

Article 8—the right to respect for private and family life

  This article covers a wide range of areas. For example it is relevant to the decisions to detain and/or compulsorily treat individuals and decisions to prevent a patient from receiving visitors. The European Commission made clear in the case of JT v The United Kingdom (2000) that article 8 is also relevant to the selection of the "nearest relative" under the MHA.

Article 3—prohibition of torture and inhuman and degrading treatment

  This article is likely to be relevant to complaints arising from the conditions of detention, seclusion, control and restraint.

Article 2—the right to life

  The positive obligation on states to safeguard the lives of individuals under this article is likely to be relevant when considering deaths of individuals who had been under the care of psychiatric services.

3.   Why is a "Human Rights Commission" needed?

  The Executive Summary of the recent report "Something for Everyone: the impact of the Human Rights Act and the need for a Human Rights Commission[17] provides four key reasons why a Human Rights Commission is required:

    (i)  Awareness of the Act has not in general spread outside the legal field.

    (ii)  Individual members of staff in public services have no understanding of their responsibility under the Human Rights Act.

    (iii)  There is little or no understanding of the Act as a useful means for public service providers within which problems can be solved and risks assessed, and within which the needs of individuals in the provision of services can be considered.

    (iv)  There is no single authoritative source of advice and information that could help to shape the development of a human rights culture in the absence of a Human Rights Commission.

  I would endorse all these points. Over the last two years I have provided training on mental health and human rights to mental health professionals and from my discussions with participants—my impression is that there is a limited amount of training on the HRA and that many people working in the mental health field, particularly front-line staff, have received no training whatsoever. Given the lack of training and promotion of the HRA, it is perhaps not surprising that there is still a perception (amongst mental health professionals and individuals receiving mental health services) that the HRA falls solely within the domain of "the lawyers" and has no relevance to day to day mental health practice.

  The lack of single authoritative body to provide advice and information means that the dissemination of the important cases which have a direct bearing on mental health practice tends to be on an ad hoc basis. The provision of summaries of relevant cases and guidance on how such cases impact upon best practice would be a crucial area of work for the Human Rights Commission.

4.   The impact of the Human Rights Act on mental health

  The HRA has been hugely influential in the development of mental health case-law and has introduced significant changes to the Act.

  In H v Mental Health Review Tribunal, North East London Region and the Secretary of State for the Department of Health (2001) the Court of Appeal held that the MHA was incompatible with the Convention as it placed the burden of proof on the patient to show that the conditions for detention were no longer met. As a result of the Court issuing a declaration of incompatibility, the Government amended the MHA so that the MHRT is required to direct the patient's discharge if the MHRT is not satisfied that the conditions for detention continue to exist.

  In R on the application of SSG and Liverpool City Council and the Secretary of State for Health (October 2002) the High Court issued a Consent order confirming that in the light of the HRA section 26 of the MHA should be read so that it accommodates same sex partners. Thus "the homosexual partner of a patient within the meaning of section 145 of the Mental Health Act 1983 can be treated as a "relative" within section 26(1) of the Mental Health Act 1983."

  Whereas these above two cases illustrate the importance of the HRA as a means of ensuring that the MHA complies with the Convention, the HRA has had less success in initiating positive change in other areas. For example, although the Court of Appeal was highly critical of the delay in convening MHRTs in R (on the application of KB & others) v (1) Mental Health Review Tribunal (2) Secretary of State for Health (April 2002) finding that article 5 of the ECHR had been infringed, delays are still occurring.

  Another area of concern is the delays in discharge faced by patients due to lack of adequate support and/or accommodation in the community and/or problems in obtaining the funding for these services. (This can apply to both patients detained under the MHA and informal patients). In the case of Stanley Johnson v The United Kingdom the European Court of Human Rights stated that the unreasonable delay of a patient who has been found to no longer need to be detained is a breach of that patient's rights under article 5. Although similar cases have come before the courts under the HRA, the courts are not generally equipped to deal with problems arising from inadequate support and accommodation in the community.

  It would be wrong to suggest that the pursuit of legal challenges does not play an important role in developing better mental health services and protecting the rights of people with mental health problems. However they only play a part—for example training and guidance is essential to ensure that the impact of the legal decision are understood and acted upon and that its wider implications can be considered.

  The following case illustrates this point. In R on the application of Wooder and Dr Feggetter and the Mental Health Act Commission (2002) the Court of Appeal held that fairness demands that Second Opinion Appointed Doctors (SOADs) should give, in writing, the reasons for their opinion when certifying under section 58 of the MHA that a detained patient should be given medication against his/her will. These reasons should be disclosed to the patient unless the SOAD or the patient's RMO considers that such disclosure would be likely to cause serious harm to the physical or mental health of the patient or any other person.

  Clearly this is an important decision. However, as this case relates only to SOAD decisions, without training and guidance, the case is unlikely to have an impact outside this specific area. Issues around consent to treatment and the provision of adequate information on the type of treatment proposed, its possible side effects and alternatives to such treatment are of crucial importance to informal patients as well as those who are detained under the MHA.

  The importance of giving relevant information is stressed in the Code of Practice to the MHA ("the Code"). The Code makes clear that the patient's consent to treatment must be sought even if the compulsory treatment provisions under the MHA apply. The Code provides a definition of "consent"—"the voluntary and continuing permission of the patient to receive a particular treatment, based on adequate knowledge of the purpose, nature, likely effects and risks of that treatment including the likelihood of its success and any alternatives to it. Permission given under any unfair or undue pressure is not consent." Despite such a clear definition, the Mental Health Act Commission regularly highlights the failure of doctors to record their discussions with the patient about the proposed treatment while lack of information about the proposed treatment is a frequent complaint made by service users. Thus while Wooder raises an important principle that individuals should be told why their wishes in respect of treatment are being overridden, the wider issues of ensuring that people are given the necessary information to ensure that they can make informed decisions about their care and treatment also need to be addressed—and training and guidance for mental health professionals is likely to be more effective than launching further legal challenges.

5.   The role of the Mental Health Act Commission and Human Rights

  As the Joint Committee is aware, the role of the Mental Health Act Commission (MHAC) is to safeguard the interests of detained patients, ensure that the powers and duties of the Act are used properly and fairly, and that the care and treatment of detained patients is as good as it can be. Having worked as a Mental Health Act Commissioner for five years (1995-2000) I am fully aware of the MHAC's commitment to safeguarding the rights of detained patients.

  While the MHAC provides an important safeguard to individuals detained under the Act, it has a limited role in the protection and promotion of human rights of people with mental health problems and/or learning disabilities:

    (i)  The MHAC's remit is limited to those individuals who are detained (or liable to be detained—for example individuals who are on leave from hospital under section 17 of the Act). Thus individuals who lack the capacity to agree, but do not object, to their admission to hospital in order to receive treatment for their mental disorder fall outside the MHAC's responsibility. (This is referred to below.)

    (ii)  Although the MHAC clearly takes the HRA seriously (see for example the MHAC's memorandum to the Joint Committee on Human Rights, dated April 2002) when exercising its function in reviewing the implementation of the Act, the MHAC does not approach the issues from a human rights perspective. For example, the MHAC's 9th Biennial Report (1999-2001) [18]does not appear to make any reference to the introduction of the HRA and its significance to mental health services (although the report does make reference to relevant ECHR cases, such as JT v The United Kingdom in relation to nearest relatives, see paragraph 2.53). Further the report identifies areas of concern on a range of issues but fails to mention their significance in relation to potential human rights violations. For example:

—  the report includes a section on the provision of information to patients, highlighting concern that in almost a quarter of facilities visited by the MHAC there were examples of staff being unable to identify when and by whom individual patient's rights were explained. The report also states that 49 per cent of the facilities visited by the MHAC had no leaflets available in any language other than English. No reference is made in the section to the requirement under article 5(2) to provide individuals with the reasons for their detention, in a language that the person understands;

—  the report provides an example of "poor practice" in relation to patient confidentiality: "One ward was found to use a "patient information whiteboard" in the nursing office, which was clearly visible to the ward through office windows. The Board displayed personal information about patients, including unflattering assessments of their presentation and propensities. Commissioners insisted that this practice be discontinued." No reference is made to the potential breach of article 8 in relation to the patients involved.

  The Government proposal to merge the MHAC into a new general "health care inspectorate" suggests that the MHAC's successor body's remit is unlikely to be extended to promote and protect the human rights of people using mental health services. In fact the proposal to remove the MHAC's current function of meeting with patients in private, save where "there is cause for concern" suggests that then successor body will have less opportunity to consider pursue matters on behalf of individual patients.

6.   The role of the Human Rights Commission

  I would endorse the criteria for a future Human Rights Commission set out by the British Institute of Human Rights in Something for Everybody, save that I would see the provision of training by the Commission as an essential criterion.

January 2003

15   Extract from RB's success story, Something Inside So Strong, page 33, The Mental Health Foundation, 2001 Back

16   [1999] 1 AC 458 Back

17   British Institute of Human Rights, 10 December 2002 Back

18   The Mental Health Act Commission, Ninth Biennial Report, 1999-2001. The Stationery Office, 2001 Back

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