DMH 313 Memorandum from the African &
Caribbean Mental Health Commission
Introduction
The African & Caribbean Mental Health Commission
(ACMHC) is an independent London-wide strategic forum which works
to promote coherence in mental health service planning, provision
and delivery and aims to reduce health inequalities in relation
to people from black and minority ethnic communities, and in particular,
those from African and Caribbean Communities.
We welcome the opportunity to comment at this
stage of the Bill's progress through Parliament. We believe
that the issues raised by and the implications in relation to
its proposed enactment make it imperative that the views of people
from African and Caribbean communities are able to influence its
development.
It is well documented that people in
our communities fare worse under the mental health system - including
being subject to greater instances of compulsory treatment under
the Mental Health Act 1983; treatment in locked wards; being subjected
to instances of control and restraint - which has resulted in
the deaths of a number of African and Caribbean service users,
tragically highlighted by the death of David Bennett; and by being
subjected to high and multiple dosages of medication.
Given the historical and generally negative and disadvantageous
position in relation to the experiences of people from African
and Caribbean communities who use mental health services, we feel
we have a huge stake in trying to ensure that our communities
are not further disadvantaged by new legislation.
General Comments
With regard to changes in the Bill from the 2002
version, ACMHC believes there has been some improvement in some
areas. Specifically, these include:
- Advocacy - provision for independent advocacy
- (though see below)
- Nominated person - provision for nominated person(s),
which the patient can chose and who must be consulted at key stages
throughout the treatment process (though see below)
- Treatment options - the inclusion of non-pharmaceutical
options including cognitive therapy, behaviour therapy, counselling
or other psychological interventions;
- Treatment - the requirement that treatment should
be appropriate for the patient (though see below)
- Care plans - in preparing care plans - there
must be consultation with the patient or parent (if applicable),
the nominated person or carer
- Part 3 (relating to the Criminal justice system)
- allowing for treatment of mentally disordered offenders in the
community
- ECT - no ECT without consent for those with
capacity
- Greater safeguards for children
That said, however, as representatives (service users,
carers and professionals) of people from African and Caribbean
communities, we feel there are a number of major issues and concerns
which remain.
We will frame our remarks in relation to these issues
and concerns in the format of the themes outlined by the scope
of the Committee's Inquiry.
Summary of Proposals
- Inclusion of a comprehensive statement of basic
principles grounded in equality of opportunity, and which embrace
race relations, disability and human rights legislation
- Greater number of exclusions under the definition,
including for those whose only disability may be the abuse of
drugs or alcohol
- A right to increased access to a range of health
care options
- A right to assessment which specifically takes
account of social, cultural and environmental influences
- Increased safeguards against mis-directed compulsory
treatment based on stereotypical perceptions of risk
- Increased protection against compulsory treatment
in the community
- A right to increased access to earlier treatment
in primary care
- Greater balance between protecting the rights
of the individual and protection of the public
- A re-think of the 1983 Act to focus on localised
adjustment rather than wholesale change
- A right to greater safeguards and rights of review
against medical decisions, including early access to advocacy
and legal advocacy
- Widen the definition of abuse to include over-medication,
use of seclusion and other potentially abusive interventions
- A right to safeguards in the use of medication
which conform to British National Formulary limits
- A right to age-appropriate care and treatment
for children
- Greater linkage and cross-referencing to the
Mental Capacity Bill
- A right to greater safeguards against breaches
of the Human Rights Act
- A right to more diverse representation on Mental
Health Tribunals
- Increase the role of the nominated person to
the equivalent role of the nearest relative to make the role more
constant, and with equivalent powers in relation to discharge
and admission
- A right to after care arrangements in the community
Q1. Is the draft Mental Health Bill
rooted in a set of unambiguous basic principles? Are these principles
appropriate and desirable?
1. A more comprehensive statement of basic principles
On the face of it, the principles are not objectionable
- as far as they go. However, we do not feel they go
far enough. There is no mention or cross-referencing of race relations
or disability legislation. We believe this is a glaring omission
and wish to make the point that it is important to explicitly
refer to these key policy areas so that there is less scope for
ambiguity and mis-interpretation at local levels.
We have particular concerns in relation to sub-paragraph
(4) which dis-allows application of the general principles:
(a) In circumstances in which its application
would be inappropriate or impracticable;
In our view, this loophole makes it
too easy to ignore or over-ride the principles. Some principles,
we believe, should not be subject to being subverted by processes
and structures which lack robustness or conviction in promoting
equal opportunity and fair play for all.
We would prefer to have incorporated
into the legislation, a more comprehensively stated set of principles
such as that adopted by the Mental Health (Care and Treatment)(Scotland)
Act 2003.
The Act replaced the 1984 Mental Health (Scotland)
Act which was broadly similar to the 1983 Mental Health Act. The
1984 Act was reviewed by an expert committee, the Millan Committee.
The review was broadly welcomed by the Scottish Executive with
some significant exceptions. There was then scrutiny by the Scottish
Parliament and major changes were made so that the Act now broadly
reflects the Millan Committee recommendations.
The Act is prefaced by a statement of principles
that should apply whenever a person is carrying out functions
under the Act. The principles were set out by the Millan Committee
to represent good practice, and include the following:
1) non-discrimination - people with mental disorder should
, wherever possible, retain the same rights and entitlements as
those with other health needs.
2) equality - powers under the Act should be exercised
in a non-discriminatory manner.
3) respect for diversity - care and treatment should take
into account users age, gender, sexual orientation, ethnic group
and social, cultural and religious background.
4) reciprocity - parallel obligation on health and social
care authorities to provide safe and appropriate services including
ongoing care following discharge from compulsion
5) informal care - care and treatment and support should
be provided without recourse to compulsion.
6) least restrictive alternative - any compulsion used
should be the least restrictive alternative
7) participation - attempts to ensure service users are
as fully involved as possible in all aspects of their care, treatment
and support.
8) respect for carers - a corollary to the above
9) benefit - any intervention under the Act should be likely
to produce a benefit that cannot reasonably be achieved other
than by the intervention
10) child welfare - welfare of a child with mental disorder
should be paramount in any intervention imposed on the child
Q. 2a. Is the definition of mental disorder appropriate
and unambiguous?
ACMHC believes that the definition of mental disorder
is unambiguous.
2. Greater number of exclusions under the definition
We do not believe it is appropriate,
especially in relation to people from African and Caribbean communities.
While we welcome the emphasis on the effect
rather than the cause of people's mental health problems,
we feel there is too much scope for mis-application in terms of
how people from our communities present to services. We would
wish there to be more exclusions under this provision to ensure
that e.g., people who may be in a confused state; or who are angry
or afraid are not inappropriately subject to this legislation.
In addition, ACMHC believes that people from African
and Caribbean communities will be adversely affected because of
the likelihood that they will be regarded as under suspicion for
alcohol or drug problems. The application of the diagnosis of
'ganja psychosis' is much more likely to
be applied to young black men - with possible adverse consequences
for care and treatment. Widely documented application of the
'sus' laws in relation to African and Caribbean communities, combined
with the institutional racism which accepts a stereotypical view
of young black people, means that increasing numbers of our young
people will become subject to detention under this provision of
the proposed legislation.
We propose that any consideration of this provision
must be made within the context of human rights and race relations
legislation, with a view to protecting people's rights.
2.1 Greater access to a range of health care options
We also feel that it is important that people who
are under the influence of drugs or alcohol should be referred
to appropriate treatment - which should include a range of care
options, including:
- Individual & group counselling, as part of
a prevention and treatment programme, that examines issues of
harm minimisation, relapse prevention and general health
- GP treatment partnerships for community prescribing
and detoxification
- NHS specialist services (e.g. specialist outpatient
clinics, residential, rehabilitation and day care units)
- Community care partnerships with Social Services,
providing access to residential treatment, rehabilitation and
day care
- Needle/syringe exchange scheme, available in-house,
through local community partnerships and the local Accident &
Emergency Departments
- Health promotion information and advice; and
- Dedicated family worker offering family therapy
and support.
2.2 A right to assessment in a social, cultural
and environmental context
Finally, on the issue of cause, we would urge that
this is also assessed, as necessary, within a context of social,
cultural and environmental circumstances.
Q2b. Are the conditions for treatment
and care under compulsion sufficiently stringent?
2.3 Greater safeguards against mis-directed
compulsory treatment based on stereotypical perceptions of risk
Again, we question whether behaviour which may be
considered culturally appropriate in African and Caribbean communities
can be mis-interpreted within the context of this legislation.
ACMHC has particular concerns about paragraph 9 (7)
and (8). These provisions will require clinicians to place consideration
of substantial risk as the overriding feature in any assessment
of the need for compulsory treatment under the legislation'
The key issue for African &
Caribbean communities is will this tackle the issue of over-representation
of black people in the mental health system or will it make it
worse? In our view it will make it worse; and we would wish
to seek reassurance that there will be safeguards to ensure that
people from African & Caribbean communities are not disproportionately
subject
to these exempted categories (i.e., made more subject to compulsion);
on the basis of stereotypical views and institutional racism.
Q2c. Are the provisions for assessment and treatment
in the community adequate and sufficient?
In this regard, we would underscore the importance
of independent advocacy at the earliest opportunity (i.e., when
sectioning under the Act is being considered) to enable people
to effectively challenge assessments which may be inappropriate.
Also, in our view there is no objective criteria
for assessing substantial risk. We believe the emphasis should
be on helping people to recover from their mental distress - however
it is defined .
2.4 No compulsory treatment in the community
Compulsory treatment - Finally, we wish to strongly
emphasise that ACMHC is opposed to the use of community treatment
orders because we feel it will disproportionately affect African
and Caribbean service users, because of the reasons stated above.
We believe it is important to protect people's
rights to make informed choices about their place of treatment;
and that if they lack the capacity to do so, they should have
access to a comprehensive advocacy service which enables treatment
to be carried out with a minimum of coercion.
2.5 Increased access to treatment in primary care
We also feel that people with mental health issues,
in particular those from our communities, should be enabled to
access primary care services at a much earlier stage, in order
to reduce the risk for compulsory treatment. Treatment options
in primary care should encompass a holistic approach, including
alternative therapies; taking account of people's spirituality;
and an incorporation of ways of communicating which encourages
reflection in a culturally appropriate context.
Q3. Does the bill achieve the right balance between
protecting the personal and human rights of the mentally ill on
one hand, and concerns for public and personal safety on the other.
3. More balance between the rights of individuals
and the protection of the public
In ACMHC's view it does not. We believe the legislation
is heavily balanced in favour of protecting the public from risk.
Q4. Are the proposals contained in the draft Mental
Health Bill necessary, workable, efficient and clear? Are there
any important omissions in the Bill?
4. Localised adjustment vs. wholesale change
On the issue of whether the proposals are necessary,
ACMHC is not convinced there is sufficient evidence that the 1983
Mental Health Act needed to be changed. We query whether this
is change for change's sake.
To our knowledge, none of the numerous Inquiries
into homicides by people with mental health problems has cited
the need for a change in the legislation.
In a report by the mental health charity Mind
, "Key Issues From Homicide Inquiries" (Mind, 1999)
the authors identified 12 key issues arising from 14 major mental
health contact/homicide Inquiries in roughly descending order
of importance or frequency - as: poor risk management, communication
problems, inadequate care planning, lack of inter-agency working,
procedural failures, lack of sensible accommodation, resources,
substance misuse, non-compliance, involvement of carers, ethnic
minority issues and lastly the need for (legal) reform - though
there was no consistency on that point. In essence, in most
inquiries the conclusions are that had professional carers foreseen
what was about to happen, they already had the power under the
present law to intervene. That they did not intervene was not
due to lack of legal powers but to the fact that they did not
foresee what was about to occur.
ACMHC believes that no amount of legislation can improve foresight;
and while the 1983 Act may require some adjustment (e.g. more
stringent guidelines on the use of control and restraint; limitations
on dosage and types of medication; and the importance of involving
black families and communities in the care and treatment of service
users, where this is appropriate). We do not believe the wholesale
change which the current legislation represents is required.
4.1 Workability - We believe the current legislation
is unworkable because we do not believe that sufficient thought
has been given to resource, including workforce, implications.
4.2 Efficiency - We believe this depends on the
intended outcome. If the aim is to make more people subject to
the legislation based on their perceived risk to the public, then
it is efficient. However, we are more inclined to accept the
view of the Royal College of Psychiatrists - i.e., that it is
not possible to predict risk - in which case, it is inefficient
and unjust.
4.3 Omissions - As stated earlier, we feel it
is an omission that the basic principles do not explicitly refer
to race relations, disability or human rights legislation. In
addition, we feel it is an omission not to acknowledge or have
greater recognition of the diversity which we regard as one of
Britain's strengths. This in effect means that the disparities,
which this legislation has the potential to visit onto black and
minority ethnic communities, have been completely ignored in the
Bill as drafted.
Q5. Is the proposed institutional framework appropriate
and sufficient for the enforcement of measures contained in the
draft bill?
5.0 Greater safeguards and rights of review against
medical decisions, including early access to advocacy and legal
advocacy
ACMHC acknowledges and applauds the apparent shift
away from the medical model of mental health care, but we question
how it will work in reality. For example, in relation to the
clinical supervisor, although we welcome the multi-disciplinary
ethos, in reality, what safeguards will there be against the medical
view being paramount in assessment? What training will there
be for clinical supervisors and will they be drawn from as wide
a population base (i.e., people from differing backgrounds) as
possible? Why is there a change from the use of approved social
workers (ASWs) in favour of the approved mental health professional
(AMHP)?
5.1 Early access to advocacy and legal advocacy
Finally, again, we believe it is important to
ensure that there is adequate provision and resources to offer
people advocates at the earliest opportunity. The explanatory
notes to the bill put a figure of 140 extra advocates. This does
not seem sufficient.
Q6. Are the safeguards against abuse adequate?
Are the safeguards in respect of particularly vulnerable groups,
e.g., children, sufficient? Are there enough safeguards against
misuse of aggressive procedures such as ECT and psychosurgery?
6. Widen definition of abuse to include over-medication,
use of seclusion, etc.
We welcome the increased penalties for professionals
who abuse patients (Part 11).
However, we feel the definition of abuse should
be widened to include safeguards against over-medication; use
of seclusion and other potentially abusive situations, which are
particular issues for people from African and Caribbean communities.
6.1 A right to keep within BNF medication limits
We would urge, e.g., to include within the Bill
the requirement to adhere to British National Formulary limits
on medication; and the inclusion of a legal obligation for clinicians
to report any breaches to managers.
6.2 Age-appropriate care and treatment for children
Children - We support the view of the Mental Health
Alliance on the need to ensure age-appropriate accommodation and
treatment, which takes account of all of the needs of children,
including their educational needs.
In addition, we feel the Bill would be strengthened
by reference to the Children Act.
6.4 ECT - We welcome the change of no ECT without
consent, but would like clarification about what constitutes 'an
emergency' for its use. If this is cast too widely, it can
still mean that many people are subjected to ECT against their
will.
We believe ECT for children should only be authorised
by a Mental Health Tribunal, which is subject to lay review through
an Expert Panel.
6.5 Psycho-surgery - the Bill contains no safeguards
against psycho-surgery.
Q7. Is the balance struck between what has been
included on the face of the draft bill, and what goes into Regulations
and the Code of Practice right?
No. We believe the omissions in relation to the
guiding principles (as stated above) are too open to mis-interpretation
and local resolution. Important issues such as human rights
and equality are too important to be left to guidance; and therefore
should be included in the legislation.
Q8. Is the draft Mental Health Bill adequately integrated
with the Mental Capacity Bill (as introduced in the House of Commons
on 17 July 2004)?
8. Greater linkage with the Mental Capacity Bill
We concur with the view of the Mental Health Alliance
that this is a problematic area because people can be subject
to both sets of legislation which can cause confusion. In addition,
the problems of people with fluctuating capacity has not been
addressed.
Q9. Is the draft Mental Health Bill in full compliance
with the Human Rights Act?
9. Greater safeguards against breaches of the Human
Rights Act in relation to Mental Health Tribunal hearings
No. We believe the bill is open to challenge
in respect of Articles 5 and 6 of the Human Rights Act which call
for access to a fair hearing within a reasonable place and time.
The bill makes no mention of safeguards against time limit breaches
(delays) in relation to Mental Health Tribunal hearings, which
to our knowledge, are widespread.
Q10. What are likely to be the human and financial
resource implications of the draft bill? What will be the effect
on the roles of professionals? Has the government analysed the
effects of the Bill adequately, and will sufficient resources
be available to cover any costs arising from implementation of
the bill?
10. Workforce - more resources for training
Workforce - we do not feel sufficient account
has been taken of the need to have an adequate workforce, suitably
trained, in carrying out the provisions of the legislation.
10.1 A right to more diverse representation on Mental
Health Tribunals
How will the government ensure there
is diverse representation on Mental Health Tribunals, given that
currently there is very minimal representation/involvement by
black people in the current Mental Health Act Review Tribunals?
ACMHC also believes it is imperative to establish
a pool of qualified people from black communities who can inform
the decisions that Tribunals make.
10.2 Nominated persons - more constant and
equivalent role to nearest relative
Under the bill, this role now ends after detention,
as opposed to current provision in relation to the nearest relative,
who has a constant role. We would wish a similar arrangement
for nominated persons under the new bill. In addition, the nominated
person should have equivalent powers as the nearest relative to
order discharge or prevent admission.
10.3 Professionals - we query whether professionals
will become agents of compulsion and control; e.g, what are the
rights of review to decisions made by the clinical supervisor?
10.4 Restoration of After care arrangements
Costs - Section 117 - Aftercare arrangements - this
has been removed from the bill entirely. Why has it been removed
and what are the safeguards to ensure that people are able to
get the care and treatment in the community which has been identified
in their care plans?
Conclusion
Finally, ACMHC would like to point out that we do
not see how the legislation, as drafted, will help the over-representation
of people from African and Caribbean communities in the mental
health system.
On the contrary, we think it can make this worse,
by making people more subject to stereotyping, stigma and discrimination.
In a wider sense, we feel this will help to prejudice
the future of race relations in Britain because of the inequity
enshrined in this legislation.
African & Caribbean Mental Health Commission
October 2004
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