DMH 195 Depression Alliance Cymru
Memorandum from Depression Alliance
Cymru
About Depression Alliance Cymru
1. Depression Alliance Cymru is
the Wales Branch of Depression Alliance, although we are in the
process of devolving to become an independent Welsh company and
charity[26]. We seek
to encourage self-help and mutual support, improve access to all
appropriate services, reduce stigma and discrimination and promote
research into the prevention, causes, identification, assessment,
treatment concordance and self-management of depression.
2. Depression Alliance Cymru works to promote
mental health and quality of life and to assist in the prevention
and relief of depression in Wales by:
- Bringing together a wide range of stakeholders
with an interest in depression and issues affecting people affected
by depression, with a view to initiating positive change
- The development of self-help and self-management
services and the provision of accurate and appropriate information
about all aspects of treating and managing depression
- Raising awareness of depression among the Welsh
people, and making information about depression readily available
to all interested parties
- Ensuring that the voices of people affected by
depression are heard and acted on by decision makers at local,
regional, national and UK level
- Promoting and conducting research into the causes,
prevention and treatment of depression and disseminating the results
of such research.
3. We look forward to a future in which depression
is recognised, understood and acknowledged to be a common preventable
and treatable condition, and where those affected are provided
with the information, support and understanding necessary for
optimal work/life balance.
A membership organisation with currently around 600
members and supporters in Wales, Depression Alliance Cymru acts
as a conduit for information both from policy makers and service
providers to users and carers, and from users and carers to policy
makers and service providers.
Introduction
Depression Alliance Cymru makes its response to the
Joint Committee on the Draft Mental Health Bill against a background
of historically under-resourced services within a socio-economic
and cultural environment that serves to undermine mental health,
and within a policy environment that prioritises acute health
care over mental health promotion and early (preventative) interventions.
Around 280,000 people in Wales are in receipt of
treatment for depression and related mood disorders at any one
time (Welsh Health Survey 1998). The overwhelming majority of
these people are treated in primary care, using only antidepressant
medication. In Wales there is much greater reliance on older,
Tricyclic antidepressants than in England - a particular concern
as these drugs are considerably more toxic than SSRIs, and have
provided suicidal individuals with the means to end their own
lives. Other services, such as cognitive behavioural therapy,
are limited to those with the most severe conditions, and are
available only after waits of anything from 6 months to 2 years.
Anecdotally, when Depression Alliance Cymru started
operating in 1998, most of our calls were from newly diagnosed
people wanting to know more about their condition. In the last
two years, we have seen a significant increase in the number of
severely ill individuals and/or their families who are being denied
services despite being at significant risk of serious neglect,
self-harm or suicide.
We note that, according to the Home Office (Safety
First, 2001), that 75% of suicides each year are by people
affected by depression. We also have a concern with homicide-suicides
in which people kill close relatives (often children) as part
of their own suicide.
We are concerned that with severely under-resourced
services in Wales, it is hard to distinguish those areas where
change to legislation is actually necessary from those where problems
stem from shortages. This is a particular problem in Wales, where
the National Service Framework for adult mental health has yet
to be implemented. Depression Alliance Cymru believes that a
new Mental Health Bill should not be enacted until mental health
services have been properly resourced, so that we can more properly
see where changes to legislation can be made.
While we acknowledge that there will always be a
case for detaining a relatively small number of people, whose
illness has severely impaired their mental capacity, because they
pose an immediate risk of suicide or serious self-harm, we do
not believe that this is a proper response to national suicide
figures (over 5,000 per year in England & Wales, ONS 26/6/02)
that are significantly greater than the number of road deaths
(over 3,500 per year in Great Britain, Times 25/6/04).
Rather, we believe that mental health promotion and early intervention
should be the basis of national policy and legislation.
With this in mind, Depression Alliance Cymru finds
nothing in this Draft Mental Health Bill 2004, which makes it
worth giving support to.
Is the Draft Mental Health Bill rooted in a set of
unambiguous basic principles? Are these principles appropriate
and desirable?
It is wholly unacceptable for Parliament to give
Ministers the right to create, and alter at will, the Code of
Practice setting out how the legislation should operate. Legislation
relating to the possible indefinite detention and compulsion of
UK citizens has to be governed by principles embedded in the legislation
itself, so that Ministers would be obliged to return to Parliament
in order to make further amendments.
This is especially so in the case of this Bill because
of the weakness of the few principles set out in the bill. "Involving"
patients (s1(3)(a)) is far from abiding by their wishes unless
they lack capacity and there is compelling medical reason to follow
an alternative course - one might argue that a pig is "involved"
in breakfast, but that it is hardly a guarantee of its best interests.
The issue here should be mental capacity - a patient with capacity
must have the absolute right to agree or refuse treatment, a patient
with impaired capacity should still have the right to refuse or
agree treatment, with practitioners being obliged to take all
necessary steps to ascertain his or her wishes, and with medical
necessity being the only reason for not acceding to the patient's
wishes. "Involvement" is simply inadequate.
Depression Alliance Cymru is further concerned with
clauses s1(4), s1(6) and s1(7) that seem to disapply the code
of practice and principles from unspecified persons, cases, or
on grounds of impracticality.
We are also concerned that an apparent requirement
to consult over the code of practice s1(8) is immediately (s1(9)
and s1(10))overturned.
We read the government's failure to have produced
a draft code of practice to accompany the Bill as evidence of
confusion within the Department of Health as to how the legislation
should operate. Without such a draft code of practice, we believe
it would be irresponsible for Parliament to pass this Bill into
law.
Is the definition of Mental Disorder appropriate
and unambiguous? Are the conditions for treatment and care under
compulsion sufficiently stringent? Are the provisions for assessment
and treatment in the Community adequate and sufficient?
We note that there has been a 100% increase over
the last decade in the number of people detained under the current
Mental Health Act in Wales (Royal College of Psychiatrists 2002).
We note that the only trend that correlates to this is a growing
public anxiety about risk in general, and about the risk of stranger-attacks
by people with mental illness. We are concerned that many of
the 12,000 or so "informal" patients within the Welsh
mental hospital system fall within the definition of mental disorder
and meet the criteria for treatment under the draft bill 2004,
and would become "formal" patients if they withdrew
their consent to treatment.
Depression Alliance Cymru takes as read that the
intention of any mental health legislation must be to limit the
use of compulsion to the smallest number of people. We do not
believe that this is achieved in this Bill. Indeed, we are concerned
that if this Bill were to be accompanied by increased resourcing
of acute mental health care in Wales, we would see a dramatic
increase in the number of people subject to compulsion.
Depression Alliance Cymru believes that the broad
definition of mental disorder would have to be accompanied by
a series of exclusions that, in and of themselves, could not be
treated as evidence of a mental disorder. These would have to
include:
Religious belief and activity
Political belief and activity
Cultural views and behaviours
Sexual practice and/or orientation
Criminal or antisocial behaviour
Drug/alcohol abuse
With these exclusions in place, a broad definition
of mental disorder is acceptable provided that the conditions
for compulsion are narrow. Unfortunately, in this Bill they are
not.
The only realistic restriction on compulsion is in
9(4) and 9(5), because treatment is now defined so broadly as
to stretch credibility - anyone with mild depression who could
benefit by an anxiety management course would meet the conditions
of 9(1) and 9(2).
9(5) effectively allows patients to volunteer to
be compelled. However, since, in practice, volunteering is done
in the knowledge that a failure to volunteer will result in compulsion,
it is hardly a restriction.
Were are concerned that "harm to others"
(s9(4)(b)) is potentially very broad, and may result in compulsion
in the community (non-resident orders) operating as a kind of
mental health ASBO system that is about social control rather
than appropriate treatment. If the government is proposing a
public right to an ECHR Article 2 (right to life) protection,
based on Osman v UK, then this should be explicit. That
is, the clause should state that the person presents a real and
imminent threat of homicide or serious physical assault to one
or more persons. If the government intends to use the harm to
others clause in ASBO terms, to proscribe antisocial behaviours,
we believe this is an illegitimate use of mental health legislation.
(although we have no objection to people experiencing mental
distress who infringe criminal justice provisions being dealt
with in the same way as an other member of the public).
It is also worth noting here that a "harmful"
person has no right to volunteer for treatment because of the
exception in 9(7). This may well deter potentially dangerous
individuals from seeking help at an early stage, and may result
in more assaults and homicides of the kind that this law sets
out to prevent.
9(4) appears to restrict the numbers subject to compulsion.
It does not. It relies on psychiatric science being capable
of identifying risk, when day-to-day practice shows that this
is not possible. Similar conditions operate under the current
Mental Health Act. However, the driver for compulsion is public
perception of risk, not of risk itself, while the factor restricting
compulsion remains the shortage of beds. Genuinely suicidal people
are routinely turned away from hospital. Safety First (2001)
found that 40% of suicides were by people with mental illness
who were discharged as not being at risk within the 7 days before
their deaths.
Depression Alliance Cymru believes, sadly, that the
reason for this is that hospital authorities are more concerned
about the hostile media coverage that accompanies stranger-homicides
than by the muted media response to most suicides.
Does the draft 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?
Probably not: simply broadening the definition of
"mental disorder" and "treatment" is unlikely
to prevent successful cases being brought under ECHR Articles
5 and 8.
If Professor Appleby is to be believed, it is the
mentally ill who need protecting from the public. If you have
a mental illness, you are 6 times more likely to be the victim
of homicide than the public at large! Homicides by people with
mental illness (including those with alcohol problems) are less
than 3 percent of all homicides. A growing proportion of these
are suicide-homicides in which individuals kill nearest relatives
as part of their own suicide. We see nothing in this draft bill
that will improve this.
While recognising that democratic governments have
to be cognisant of public opinion, in a representative government,
when the public are simply misled and ignorant, their leaders
should be setting the record straight, not producing legislation
that, in public protection terms, simply will not work.
Are the proposals contained in the Draft Mental Health
Bill necessary, workable, efficient, and clear? Are there any
important omissions in the Bill?
Depression Alliance Cymru does not accept the need
for this Bill at this time. We note the almost unanimous opposition
to the numerous variants of these proposals since 1998, and we
remain unconvinced that there is a lack of mental health legislation
in Wales. We believe that the issues that government is attempting
to resolve using legislation are largely the product of historical
under-resourcing of mental healthcare in Wales.
We note that government has had to make alterations
to the working of tribunals and to the "nearest relative"
clauses within the current Act. However, we believe that these
are better resolved by amending the 1983 Act rather than by sweeping
change.
The first question here (if we accept the government's
view that the purpose of a new Mental Health Act should be to
cut the numbers of homicides, suicides and assaults by people
with mental health problems), is whether this legislation will
result in a lowering of homicides, assaults and suicides by people
with mental health problems. In the absence of adequate resources
to fund modern mental health care in Wales, the most likely outcome
of this legislation is almost all of the resources being channelled
into managing the new system. The kind of preventative care,
crisis interventions, assertive outreach etc services that act
to prevent homicides, assaults and suicides on a daily basis will
be removed from those who need them most. This, coupled to the
natural desire on the part of patients to avoid a more coercive
mental health system, will make things much worse.
Depression Alliance Cymru believes that investment
in mental health promotion, preventative early intervention services
and appropriately funded aftercare promise a considerably better
impact on homicide, suicide and self-harm than compulsion legislation
based on risk that will most probably deter those most at risk
from seeking help.
Is the proposed institutional framework appropriate
and sufficient for the enforcement of measures contained in the
draft bill?
The proposed institutional framework is based on
a managerialist approach to processes that will result in most
of the mental healthcare resource being diverted away from non-compulsory
treatment.
We are particularly concerned with the proposal to
disband the Mental Health Commission, and subsume its functions
within the general, quality assurance functions of a new super
Commission for Healthcare Audit and Inspection. The apparent
justification for this move is that the government wishes to cut
the number of health agencies and quangos; i.e., the drive is
to avoid being seen to be spending too much on bureaucracy, not
to provide the best outcome for patients at risk of considerable
coercive state powers.
The Mental Health Commission, like so much else in
mental healthcare, has suffered from a history of under-funding,
and has many faults as a result. Nevertheless, its role is very
different to the quality assurance bodies being set up by the
Department of Health, in that its role is to ensure that Mental
Health Act legal standards are met and improved. As such, it
is one of the few bodies that exists to protect patients from
the arbitrary use of coercive state power (the new Tribunal cannot
do this because it lacks an inspectorate, and because its powers
are limited to either upholding or overruling the use of coercion).
Given the extension of powers of compulsion, coupled
to the large degree of power handed to the clinical supervisor
over the Tribunal, the scope for abuses of power within the new
proposals is even greater than that in the existing arrangements.
With this in mind, rather than disbanding the Mental Health Commission,
we should be strengthening its role and guarding its independence
We are concerned that the proposed tribunal is only
empowered to approve or overturn compulsion. Affording the "clinical
supervisor" a veto over treatment and conditions of compulsion
in the community in the face of the wishes of patients and/or
their carers affords a degree of faith and trust in the judgement
of the medical profession which should not be relied on in law
- medical practitioners do not always have their patients' interests
at heart (e.g., Shipman, Allitt, et al) and may, on occasion,
display frightening feats of incompetence (see Dr Goel and Mr
Roberts recent removal of the wrong kidney from a Welsh patient).
The tribunal must be required to ascertain patients'
treatment preferences (including the use of advance directives),
and must be empowered to overturn or amend the care plan put forward
by the clinical supervisor. Without these safeguards, there is
considerable scope for the lawful abuse of thousands of patients.
We doubt whether resources exist in Wales to allow
the institutional framework to operate in practice. We are particularly
concerned about the effects on mental health services provided
to voluntary patients if this measure is not accompanied by significant
increases in resources.
Are the safeguards against abuse adequate? Are the
safeguards in respect of particularly vulnerable groups, for example
children, sufficient? Are there enough safeguards against misuse
of aggressive procedures such as ECT and psychosurgery?
The proposals to restrict the use of certain treatments
appear, at first reading, to be a step forward. However, on careful
reading of the clauses relating to ECT, we discover that in an
"emergency", ECT may be administered compulsorily in
the face of a refusal from a mentally capable person. It is far
from clear what government is thinking here. Although we are
concerned that the "emergency" exclusion will lead to
many more cases being defined as emergencies in order to force
an unwanted treatment on a non-compliant patient.
First, we have a real difficulty with the concept
of a mental health "emergency", since it would be extremely
rare for a mental health condition to become so severe as to equate
to a physical health emergency (perhaps a heart attack, stroke
or serious accident), within which the patient retains mental
capacity.
Second, it is far from clear under what circumstances
ECT would be a reasonable response to an "emergency".
In the case of a person who is at immediate risk of suicide,
for example, removal to a place of safety and, possibly, sedation
would be a more appropriate response than ECT.
Again, this confusion seems to relate to the focus
on risk/dangerousness rather than capacity. Quite simply, as
with physical health care, if a patient has mental capacity, no
matter how reckless the medical practitioners may believe their
choice to be, if they choose to refuse a course of treatment,
then that should be the end of the matter.
Depression Alliance Cymru believes that patients
with mental capacity should enjoy the same rights as patients
with physical illness, and that the draft mental health bill should
make clear to practitioners that if they use any treatment without
the consent of a competent patient, they will be guilty of assault.
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 Practices right?
Health, including mental health, is a devolved area
of policy from the UK government to the National Assembly for
Wales. The use of codes of practice and regulations within the
draft bill has a particular resonance within Wales, because it
through this mechanism that the current devolution settlement
is achieved.
It is widely believed within Wales that the Codes
of Practice and regulations should be as broad as possible, to
allow the National Assembly for Wales to use them to give legal
force to its mental health strategies and National Service Frameworks.
However, the result of using codes of practice and
secondary legislation to allow devolution to operate is that far
too much power within a very coercive piece of legislation is
devolved to Ministers. This is seen to benefit Wales, insofar
as the current National Assembly for Wales takes a considerably
more liberal approach to mental health care than does the UK government.
However, none of us can know what the government after next will
do. Given the broad definitions and lack of exclusions within
the draft bill, there is considerable scope for a future Home
Secretary, Secretary of State for Health or Welsh Assembly Government
to use mental health law as a means of internment. This cannot
be acceptable.
A piece of legislation designed to allow for the
detention of people who have committed no crime, and the compulsory
treatment of competent patients against their will, it is wholly
unacceptable that parliament allows this power to fall into the
hands of individual Ministers.
This may work to undermine devolution. However,
Depression Alliance Cymru believes that the devolution settlement
would be better served by disapplying those sections of the Bill
where devolution is an issue, so that they only operate in England.
A separate section of the Bill could then be used to enable the
National Assembly for Wales to create its own "secondary"
legislation within a clear set of principles established by Parliament.
Is the Draft Mental Health Bill adequately integrated
with the Mental Capacity Bill (as introduced in the House of Commons
on 17 July 2004)?
In short, no. Since the Mental Capacity Bill is
still subject to amendment by Parliament, we cannot know what
it will look like, or how, if at all, it will relate to the Draft
Mental Health Bill.
This said, we note that during the pre-legislative
scrutiny of the Mental Capacity Bill, Ministers expressed their
opposition to the provisions extending to those subject to the
(current and future) Mental Health Act. We take this to mean
that government wishes to reserve the right to treat people with
mental illness against their will, even where they have mental
capacity.
This, we believe, amounts to state sponsored assault;
not least because the usual reason for declining treatment concerns
the side effects and impact on quality of life of many of the
drugs used for the treatment of mental illnesses.
There is no reason why patients with mental illnesses
who have capacity should not enjoy the same rights as those with
physical illnesses. For this reason, Depression Alliance Cymru
believes that patients with mental illnesses should, at a time
when they have capacity, be able to make advance directives, and
that these should be given the same legal force as those for physical
illness in the Mental Capacity Bill.
Is the Draft Mental Health Bill in full compliance
with the Human Rights Act?
This will be a matter for case law. However, Depression
Alliance Cymru sees scope for cases to be brought under ECHR Articles
2, 3, 5 and 8 if the Draft Bill is enacted as currently drafted.
We do not see that simply changing the definitions for "mental
disorder" and "treatment" would change the material
basis of an improper detention. Nor do we believe that compulsion
in the community would necessarily escape the definition of "imprisonment"
in human rights terms.
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?
The draft bill has been presented as if it were addressing
a mental health vacuum. The state of mental health services (especially
in Wales) does not seem to have figured highly. Nor has much
account been made of the performance of existing services.
This is of concern because two, apparently paradoxical,
phenomena may be occurring. First, we are witnessing shortages
in just about every area of mental health care. Second, those
mental health services that are available to voluntary patients
may actually be highly effective at preventing the problems of
homicide, assault and suicide by people with mental illness, that
government claims this legislations is required to address.
The resources issue is a particular concern in Wales.
It will be for English organisations to confirm or deny the UK
government's assertion that new services created out of the English
NSF will allow the draft bill to pass into law without severely
impacting on services. In Wales, where the NSF has yet to move
from the policy to the implementation phase, services are simply
not available to prevent increased use of compulsion.
But shortages of services do not necessarily equate
to poor quality services. Depression Alliance Cymru has concerns
that too many people are unable to access services at an early
stage in the process of their illness. However, with one of two
exceptions, mental healthcare services appear to be highly effective
in treating those who do receive them.
The new proposals set up a series of new functions
for mental health practitioners. They also change the relationship
between therapist and patient from one of cooperation to one of
coercion. Depression Alliance Cymru believes that these changes
will alter the quality as well as the quantity of services available.
That is, we believe that they will make the protective elements
of mental health care (to prevent harm to patient and others)
much harder to achieve.
In other words, we believe that there is a real danger
that the transfer of staff to new functions, coupled to the destructive
effect on therapeutic relationships, could result in more instances
of harm to patients and/or others. Depression Alliance Cymru
has yet to see any convincing government analysis to the contrary.
Tim Watkins
Depression Alliance Cymru
October 2004
26
Depression Alliance Cymru will be formally launched as an independent
Welsh company and charity in April 2005. Back
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