DMH 298 Church of England
Memorandum from the Mission & Public
Affairs Council of the Church of England
The Mission & Public Affairs
Council of the Church of England is the body responsible for overseeing
research and comment on social and political issues on behalf
of the Church. The Council comprises a representative group of
bishops, clergy and lay people with interest and expertise in
the relevant areas, and reports to the General Synod through
the Archbishops' Council. The Mission & Public Affairs Council
is an associate member of the Mental Health Alliance. This submission
was prepared with the assistance of the Church of England's Mental
Health Interest Group, whose members have professional and ministerial
experience in the field, and reflects the Church's extensive involvement
through its network of mental health chaplains.
Summary
On the basis of our convictions about human dignity
and potential, we believe that mental health care should accord
as far as possible with principles of non-discrimination, patient
autonomy, consent and reciprocity. We are anxious that the definition
of mental disorder and the relevant conditions for formal powers
could lead to excessive and inappropriate use of compulsion (though
we recognise the difficulty of dealing with a small number of
people who are judged to be both dangerous and untreatable).
We are concerned that the provisions for assessment and treatment
in the community will prove counter-productive in alienating service
users and placing extra pressure on staff. We end by expressing
a number of reservations on particular issues: the composition
of Tribunals, the role of AMHPs, the rights and powers of nominated
persons, independent advocates, care of mentally ill people in
prison, provision for aftercare, independent monitoring of detained
patients, conditions for ECT and neurosurgery, and resources.
Submission
1. The Church's approach to mental health issues
is decisively shaped by its conviction that all human beings are
created in the image of God and endowed with inalienable dignity.
We also believe, because of the ministry of Jesus Christ, that
God's purpose for humanity is the restoration of the outcast,
the healing of the sick and the liberation of the oppressed.
It is our experience that people with mental health problems can
offer to others much that is profound, challenging and life-giving.
2. We believe that mental health care should offer
to those who suffer compassion and acceptance, protection from
stigma, restriction and exclusion, and the hope of freedom and
fullness of life. These priorities are consonant with widely-supported
principles such as those advanced in the Richardson Report: non-discrimination,
as far as possible, between mental and physical health care; recognition
and enhancement of patient autonomy; consensual and informal care
where possible, with compulsion as a last resort; respect for
diversity; and reciprocity between patient and health care obligations.
3. We emphasise the importance of people with mental
health problems participating in their own care, treatment and
support. Although the term 'service user' has been adopted for
good reasons, it does not adequately characterise the identity
of human beings as 'subjects of their own history' who must be
allowed and enabled to become subjects of their own healing, personal
development and growth in relationships.
Is the Draft Mental Health Bill rooted in a set
of unambiguous basic principles? Are these principles appropriate
and desirable?
4. The general principles set out - patient involvement
in decision-making, fairness and openness in decision-making,
and minimum interference and restriction in medical treatment
compatible with protection of the health and safety of the patient
or others - are unexceptionable, but their force is neutralised
by their relegation to codes of practice and their broad liability
to be declared inapplicable. More robust general principles should
appear on the face of the Bill to provide guidance and reassurance.
It would also be helpful for draft codes of practice to be published
alongside the Bill.
5. The operative principles to be inferred from the
detailed provisions of the Bill show the marks of its origin in
anxiety about protection of the public from people with dangerous
severe personality disorders. While public safety remains an
inescapable consideration in a relatively small number of cases,
allowing the risk posed by a minority to mould legislation for
the majority carries the danger of excessive and inappropriate
resort to compulsion.
Is the definition of mental disorder appropriate
and unambiguous?
6. We remain anxious about the breadth of the definition,
and seek assurance that it will not embrace people with learning
disabilities. We believe that the exclusions in the 1983 Act
(preventing diagnosis of mental disorder based solely on substance
or alcohol abuse or sexual behaviour) should be retained as a
defence against using formal powers as a means of social control.
Are the conditions for treatment and care under
compulsion sufficiently stringent?
7. We are concerned that the effect of the conditions
will be to bring under formal powers many who ought to be treated
informally, particularly when the criterion of 'the protection
of others' is invoked. The removal of the requirement to show
the necessity of compulsion when a person over 16 is at substantial
risk of causing serious harm to others seems to undermine the
possibility of that person receiving treatment voluntarily.
The option of compulsion must be available but, if the patient
consents, alternatives ought not be discounted solely because
of risk.
8. The condition that appropriate treatment is available
is at first sight welcome, but we believe that to avoid compulsion
without an adequate clinical rationale treatment should normally
be required to be of therapeutic benefit to the patient. Intensely
difficult dilemmas of human rights and professional ethics arise
when patients are judged to pose a substantial risk of harm to
self or others but their disorder is considered to be untreatable.
Any special provision for compulsion to meet this situation should
take account of the need to explore richer forms of treatment
for intractable conditions, which would probably not be effective
without consent and co-operation.
9. The relevant conditions, unlike the Scottish Mental
Health Act, take no account of capacity. We think there are moral
and practical objections to compelling someone to undergo treatment
if they are in a position to understand what is involved and decide
to withhold consent - except where there is substantial risk of
harm to self or others. The place of capacity and autonomy in
the conditions for compulsion should be reconsidered, not least
to ensure consistency with the Mental Capacity Bill. We favour
advance decisions on treatment when people are willing and able
to do so. Such decisions should be capable of being overridden
on specific grounds, by professionals or by a Tribunal, but not
as an automatic result of compulsion as at present.
Are the provisions for assessment and treatment
in the community adequate and sufficient?
10. There are two possible approaches to these provisions:
one, adopted by the Government, is to regard them as implementing
the 'least restrictive' principle: milder interventions, to be
applied primarily to those who have previously been treated in
hospital. The other is to see them as lowering the threshold
of compulsion, inducing fears and negative responses among service
users, and thereby compromising co-operation and the success of
treatment.
11. The provisions are designed for 'revolving door'
patients - those prone to cycles of discharge, relapse and readmission
- to reduce disruption to their lives and relationships. This
is commendable in theory, but we agree with the Mental Health
Alliance that in practice there may be considerable problems.
From the patient's viewpoint, compulsory treatment in hospital
may often be less restrictive and more supportive than compulsory
treatment in the community.
12. Although compulsory treatment will not be enforced
at home, troubling elements of coercion remain. Police powers
of entry into premises and conveyance to a place of safety threaten
to increase fear and stigmatisation, and require safeguards in
their application to private property, e.g. the need for a warrant
(compare Section 135 of the 1983 Act). Mental health staff therefore
face heightened conflict between responsibility for care and 'policing'
of patients' compliance with imposed requirements.
Are the proposals in the Bill necessary, workable,
efficient and clear?
13. Some proposals either build on
the strengths of the 1983 Act or remedy its weaknesses. The use
of Tribunals to determine longer periods of detention is a welcome
reinforcement of patients' rights, provided that the system is
adequately resourced and efficiently operated. It is a matter
of grave concern that Tribunals may sometimes be reduced to one
member with legal expertise and no access to clinical input.
14. The principle of multi-disciplinary decision-making
at the point of assessment in order to review a patient's total
circumstances is good, but it entails that the contribution currently
made by Approved Social Workers must be preserved. While the
preference for 'competence-based' qualification over fixed roles
is justified, it is vital that Approved Mental Health Professionals
should be able to assess social care needs and to exercise judgment
in independence from employers or clinical staff.
15. The replacement of the 'nearest relative' by
the 'nominated person' corrects a defect in the 1983 Act but we
consider that the rights and powers of the nominated person in
respect of assessment, admission and discharge fall short of what
is desirable. Restrictions on appointment on grounds of 'suitability'
should be formulated very carefully.
16. The affirmation of independent advocacy is good,
but we deprecate any tendency to distance advocates from the perspectives
and interests of service users by professionalising them. Advocates
should be involved as early as possible in decisions about assessment,
treatment and discharge.
17. We welcome the framework in Part 3 for dealing
with offenders through mental health orders and hospital directions,
and are relieved by the abandonment of proposals to extend formal
powers to prisons. However, it is essential that people in custody
should have access to care equal in quality to that enjoyed by
civil patients.
18. Best practice indicates that independent monitoring
of detained patients is a crucial element of mental health care.
We believe that the transfer of the Mental Health Act Commission's
functions to the Healthcare Commission and the abolition of managers'
hearings would greatly weaken the monitoring system.
19. We are seriously concerned by the removal of
the duty of health and social services under Section 117 of the
1983 Act to provide free aftercare for as long as it is needed,
and by its limitation, where it is offered, to six weeks. Should
this destabilise patients' recovery, it will prove a false economy.
Are there enough safeguards against misuse of
aggressive procedures such as ECT and psychosurgery?
20. We welcome the provision for patients with capacity
to refuse consent to ECT. We believe that where capacity is lacking,
a Tribunal should authorise ECT only in case of urgent need. The
safeguards relating to psychosurgery should be more stringent.
Despite the argument from best interests, we believe that Type
A treatment (psychosurgery/NMD) should never be undertaken without
informed consent.
Conclusion
21. We consider it essential that the impact of
the legislation should be carefully and publicly monitored. High
quality services cannot be achieved without adequate resources.
It will be a test of the Government's seriousness in reforming mental
health law whether it is able to make available the financial
and human resources necessary to deliver the services required.
The Rt Revd Tom Butler
Bishop of Southwark
Vice-Chair (Public Affairs)
Mission and Public Affairs Council
Church House
Great Smith Street
London SW1P 3NZ
October 2004
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