DMH 355
Memorandum from IMHL and Peter Edwards
Law - Solicitors
IMHL
Founded in 1992 by Dave Sheppard and Peter Edwards,
IMHL is dedicated to promoting a better understanding of mental
health law. We spend much of our time working directly with those
who provide mental health services. In addition, IMHL receives
valuable feedback as to the problems they are experiencing in
implementing the law.
Because we are neither a campaigning group or part
of any professional or statutory body we are free to provide a
dispassionate analysis of mental health law. Each month we publish
a Bulletin providing information on developments in the field.
An example of this can be seen at www.imhl.com
Our approach in this submission is to recognise that
the government is committed to modernise mental health legislation.
What we try to do therefore is to point out areas where, in our
experience, they may be difficulties in either implementation
or funding.
PETER EDWARDS LAW
Peter Edwards Law is a highly specialist solicitors
practice that primarily represents those who use mental health
services. The firm is one of the largest specialising
in representing clients at Mental Health Review Tribunals, and
litigation in relation to the civil rights aspects of mental health
law and human rights. It has been involved in many of the leading
mental health cases.
CV
Peter Edwards
is a solicitor and is the proprietor of Peter Edwards Law, He
has worked in this field since 1971. He is the chief Assessor
for the Law Society of the Mental Health Review Tribunal Panel.
He is a consultant to the World Health Organisation and is a member
of the human rights committee of the World Federation of Mental
Health. He is a founder member of the Law Society Mental Health
and Disability Committee, and is a member of the Law Society Mental
Health panel. He was previously a legal member of the Central
Policy Committee of the Mental Health Act Commission and was chair
of the mental health charity, Imagine. He was vice chair of the
Law Society Mental Health Committee and President of the Mental
Health Lawyers Association. He trains extensively in mental health
law.
Dave Sheppard
is an independent consultant who trains extensively on mental
law and practice. He left social work practice in 1989, having
worked for 17 years in a variety of settings, including 12 years
as a Mental Health Welfare Officer and Approved Social Worker,
and as a manager. He worked for the next 3 years in the Legal
and Parliamentary Unit of MIND. He has been a panel member on
three inquiries following homicide and is currently chairing an
inquiry. He has conducted independent case reviews for both trusts
and social services departments. He is a member of the editorial
board of the Journal of Mental Health Law and editorial consultant
to Mental Health Law Reports.
The views expressed in this document
represent the views of IMHL and Peter Edwards Law. We would like
to thank all those who took the time to contribute and enable
us to take a what we hope is a practical perspective.
1. Is the Draft Mental Health
Bill rooted in a set of unambiguous basic principles? Are these
principles appropriate and desirable?
1.1 From a legal and human rights based
perspective, it is not just the existence of principles
that matter, but their enforceability. The bottom line
is, what happens if people chose to ignore them? Clause 1 of the
Draft Bill states that principles must be set out in the new Code
of Practice which people 'must have regard to'.
1.2 In fact, existing case law is more
powerful than this. In the case of R v (Munjaz) v Mersey Care
NHS Trust and others. R (S) v Airedale NHS Trust and others 16th
July 2003. the Court of Appeal found that the Code should
be followed, particularly where it related to issues concerning
an individual's human rights.
1.3 It held that the Code was an integral
part of the protection of human rights. The Court stated: "where
there is a risk that agents of the state will treat patients in
a way which contravenes Article 3 the state should take
steps to avoid this through the publication of a Code of Practice
which its agents are obliged to follow unless they have good reason
to depart from it. Where there is an interference with the rights
protected by Article 8 the requirement of legality is met
through adherence to a Code of Practice, again unless there is
good reason to depart from it. The same will apply where the Code
deals with the deprivation of liberty within the meaning of Article
5".
1.4 There is however, a clear perception,
that matters contained in legislation carry much greater weight
than that placed in Codes of Practice.
Recommendation:
The Principles should be strengthened and clearly
set out in primary legislation. In addition, they should reflect
the current state of the law namely that the requirement of legality
is met through adherence to a Code of Practice unless there is
good reason to depart from it.
2a. Is the definition of Mental
Disorder appropriate and unambiguous?
2.1 We are sure that others will have drawn to your
attention concerns about the wide scope of the definition and
the removal of the exclusions from the 1983 Act. The government's
argument is that it will be the criteria that will be sufficiently
stringent to ensure that the powers of compulsion will be used
appropriately. We will examine this below.
2.2 We feel that the power of the current 'exclusions'
may well have been exaggerated. Section 1 (3) Mental Health Act
1983 states:
'Nothing … shall be construed as implying
that a person may be dealt with under this Act as suffering from
mental disorder… by reason only of promiscuity
or other immoral conduct, sexual deviancy or dependence on alcohol
or drugs.'
2.3 If therefore a sexual deviant had an underlying
psychopathic disorder they would come under the Act. In the case
of R v Mental Health Act Commission ex parte X (1988) BMLR
the judge, Stuart-Smith LJ said:
'In practice however, it seems likely that the
sexual problem will be inextricably linked with mental disorder,
so that treatment for one is treatment for the other..'
2.4 Lord Rix, in particular, will vividly remember
the debates about the possible exclusion of learning disability
when the current Mental Health Act was being debated. He will
recall the fudge that resulted in the compromise invention of
the term 'mental impairment'. The new definition of mental disorder
will of course mean that all those with a learning disability
will now come under the new definition of mental disorder. Bearing
in mind that guardianship under ss7 and 37 MHA 1983 will be abolished
together with supervised discharge (s.25A), it is likely that
many more people with learning disabilities will become non-resident
patients under the new Act. This may not be a bad thing but we
don't believe that it has been adequately thought through.
2.5 This also raises the difficulty set out below
(paragraph 8) with regards to when to use the Capacity Act and
when to use the Mental Health Act.
Recommendation:
That a set of exclusions are devised to ensure
that those whom parliament do not intend to be caught by this
legislation are not.
2b Are the conditions for treatment and
care under compulsion sufficiently stringent?
and
2c Are the provisions for assessment
and treatment in the Community adequate and sufficient?
2.6 With regards to 2b and 2c let us examine the
lowest threshold for the use of compulsion.
What is the least that has to be established for someone to lose
their liberty by virtue of their mental disorder?
2.7 A person must suffer from a 'mental
disorder' with its very broad meaning. (see 2a above)
2.8 It must be of a 'nature'
or 'degree'. This means that powers could be used
in the absence of any 'degree' if the nature (history) justified
it.
2.9 The nature or degree must warrant
the provision of 'medical treatment' This is defined at
clause 2(7) of the Bill to include:
'Nursing, care,
psychological interventions, habilitation (including education,
training in work, social and independent living skills) and /or
rehabilitation'
2.10 Legally therefore, the treatment
only has to amount to being cared for or being rehabilitated.
In the context of the non-resident patient how could they prove
this was no longer the case in order to show that the Mental Health
Act should not continue to apply?
2.11 The third condition involves the
need to establish that it is necessary to protect the patient
from:
Suicide or serious self harm or
Serious self neglect of their health or
safety or
for the protection of others
2.12 The minimum requirement is therefore
serious neglect to health. Bearing in mind that it has
been necessary to use compulsory powers in the first place, how
can the patient (especially when non-resident) establish that
this would not now be the case? Even if it isn't, it could be
argued that the improvement has been secured by the use of compulsory
powers and therefore they should continue.
2.13 There is a widely held myth, that
you have to be a risk to yourself or others before you can lose
your liberty. Indeed, in the Ministerial Forward to Improving
Mental Health Law, Rosie Winterton, Paul Goggins, and Don Touhig
share this confusion. They state:
'Providing a mentally disordered person
with treatment against their wishes raises difficult ethical issues.
But sometimes, as a last resort, we have to do this for the patient's
own safety, or, in a very small number of cases, to protect
others.'
2.14 Finally, that the appropriate
medical treatment is available. As we have established, the
definition of treatment at clause.2(7) means that the provision
of appropriate 'care' or 'rehabilitation' is sufficient to meet
this test.
2.15 When asserting that the 'criteria'
is the gatekeeper of compulsion perhaps the gatekeeper may at
times be asleep. We suggest that the criteria is not as robust
as it looks and does not justify the loss of the exclusions.
Recommendation
Parliament needs to be aware that
it is creating a process that could be used to indefinitely control
a person's life in the community as a non-resident patient. This
could include those with learning disabilities and the elderly.
3. 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?
3.1 The Bill is, of course about the
mentally disordered, not just the mentally ill.
Does the draft bill enhances the rights of users?
3.2 The Bill removes some of the rights of the current
Mental Health Act. This would not matter if they were replaced
by more effective rights and safeguards. But does it achieve this
goal?.
3.3 Some of the 'rights' or protections that will
disappear are:
1. The role of the Approved Social Worker (ASW)
2. The Role of the Nearest Relative
3. The concept that discharge from hospital usually
means discharge from section under the Mental Health Act
4. The right to free aftercare ,until the patient
is no longer in need of after care services'. (s.117)
5. The independence of the Mental Health Review Tribunal
6. The overarching responsibilities of the Hospital
Managers
The Role of the Approved Social Worker (ASW)
3.4 The loss of liberty and compulsory treatment
are clearly necessary and human rights compliant in some circumstances.
Indeed, in order to protect the human rights of the user it may,
at times, be necessary to use compulsion. When the current structure
was conceived in the mid 1950's (that led to the Mental Health
Act 1959) it was recognised that there needed to be a balance
between the 'medical model' and the 'social welfare' model. Just
because your doctor thought that you were ill and needed treatment,
that was not, of itself, sufficient to justify loss of liberty.
3.5 Our common law recognises the right of the competent
patient to refuse treatment and refuse admission to hospital even
if death would be the consequence. The power to section under
the Mental Health Act was, and should continue to be, seen as
an exception to normal principles.
3.6 The idea that doctors could not apply for compulsion
was an important part of this concept. The vast majority of applications
to detain are currently made by ASW's. (Nearest relatives have
this power but rarely use it).
3.7 The new Approved Mental Health Professional (AMHP)
could well be a nurse. The nurse is clearly and understandably
aligned with the medical model. The delicate balance is potentially
broken.
Recommendation
The title and responsibilities of the ASW should
be retained.
The Role of the Nearest Relative
3.8 A critical moment for those who may lose their
liberty by virtue of their mental disorder is the moment when
compulsion is applied. For that reason, there has been an obligation
on the ASW to establish whether or not the nearest relative would
object. If the application to section was for treatment (s.3)
or guardianship (s.7), then an objection would prevent the use
of compulsion until a county court judge had decided whether the
objection was reasonable or not. The judiciary were called upon
to adjudicate.
3.9 Under the new proposals, at the point of loss
of liberty, the patient has no-one. The new nominated person is
not appointed by the AMHP until the person is under compulsion
and neither is their advocate (IMHAA).
3.10 The time when patients would want an advocate
would be at the time of their loss of liberty. This is a loss
of rights because in the Code of Practice currently it states
at 2.13:
If the Patient wants or needs another person (for
example a friend, relative or an advocate) to be present during
the assessment and any subsequent action that may be taken, then
ordinarily the ASW should assist in securing that person's attendance
unless the urgency of the case or some other reason makes it inappropriate
to do so.
3.11 Currently therefore, at the time of potential
detention, the patient has protection available from both their
nearest relative and from an advocate. In contrast to the process
of detention under the Mental Health Act, when a person is suspected
of committing a criminal offence, the Police and Criminal Evidence
Act sets out a protective framework.
3.12 The role of the nominated person at clause
238 indicates that it is 'to assist in understanding the wishes
and feelings of the patient'. It is a great shame that in order
to ensure the right of the patient to confidentiality (following
the case of JT v UK European Court of Human Rights 2000),
the nearest relative's role has been abolished. The nominated
person is but a pale shadow of the nearest relative. One wonders
whether all the work involved in creating this role was justified.
Recommendation
The current powers of the nearest relative should
be given to the nominated person and the patient should be allowed
to nominate their own nearest relative
The concept that discharge from hospital usually
means discharge from control under the Mental Health Act
3.13 From a legal perspective we are drawn to consider
in what circumstances the new Mental Health Act might cease to
be applicable. When might a person regain their liberty?
3.14 Currently, the most common reason for an MHRT
discharge is that the patient no longer needs treatment in
hospital for their mental disorder. In other words treatment
can be given in the community.
3.15 With the distinction between 'resident' and
'non-resident' patient this becomes more problematic.
3.16 Take the typical example of D at 2.11 of 'Improving
Mental Health Law'.
D is 42 years old and has been under
the care of the Community Mental Health Team for the past 3 years
since moving into the area. She has a 20 year history of contact
with mental health services. For the past few weeks the AMHP (a
former approved social worker), has been visiting D at home, and
has become concerned that she is becoming increasingly unwell.
3.17 If compulsion is used she will
be admitted to hospital. It is likely that she will be converted
from resident to non-resident status by her clinical supervisor.
Once she is living at home what will have to happen to enable
the clinical supervisor or Mental Health Tribunal to decide that
the criteria for compulsion no longer apply? If her compliance
with medication is the goal and this is achieved by her fear that
she would be taken back to hospital if she refused, surely she
is likely to be a non-resident patient for life?
The right to after-care, free of charge, until
the patient is 'no longer in need of after-care services'. (s.117
Mental Health Act 1983)
3.18 Currently there is a statutory duty imposed
jointly on health and social services to ensure that those who
have been detained on long term sections (3,37,37/41,47 and 48)
are offered the extra support that they require when discharged.
This is a legal obligation. It is ongoing until the person is
considered by both health and social services to be no longer
'in need of after-care services'.
3.19 In the new Bill this duty disappears if a person
is discharged from compulsion by their clinical supervisor. If
they are discharged by a Tribunal then it lasts for six weeks.
S.117 establishes an element of reciprocity. By removing a person's
liberty the state is committed to ensuring that an appropriate
level of after-care will be available. Further, it is unjustifiable
to draw a distinction between the right to after-care if discharge
is by clinical supervisor, as opposed to Mental Health Tribunal.
Recommendation
The duties under s.117 should be retained
The independence of the Mental Health Tribunal
(MHT)
3.20 Currently, the duty of the MHRT is to be an
independent judicial body deciding whether the grounds for using
compulsion continue to apply.
3.21 In the new Bill the Tribunal appears to combine
two roles. They, in effect, become the 'detaining authority' for
compulsion beyond 28 days. This is in place of the role currently
exercised by the hospital managers.
3.22 The Tribunal are also the independent judicial
body to whom the patient appeals against the use of compulsion.
3.23 The Bill stresses the importance of the tribunal's
role of approving the care plan. Indeed, many patients
represented by Peter Edwards Law at mental health review tribunals
would very much like to discuss their medication and treatment
plans. Tribunals rightly point out that this is currently beyond
their remit.
3.24 It was surprising and disappointing to read
in 'Improving Mental Health Law' that this power of the Tribunal
over care plans is apparently only an illusion.
'We think that it is not appropriate
for the Tribunal to be able to impose a care plan without the
agreement of the practitioner responsible for the care and treatment
of the patient. This is because it is not accountable for the
use of resources to provide local services. The Tribunal will
weigh
the evidence put before it and will need a good reason,
such as the expert panelist or the patient expressing concern
or doubt about the content of the care plan, in order to suggest
amendments to the content of the care plan proposed by the clinical
supervisor. If the Tribunal is otherwise satisfied that the conditions
for treatment under the Bill are met, it will be possible for
the Tribunal to adjourn and ask the clinical supervisor to reconsider
and to bring forward an amended care plan.'
Improving Mental Health Law para.
3.66
Recommendation
The power of the Tribunal to review and approve
the care plan must be a genuine and effective one.
The overarching responsibilities of the Hospital
Managers
3.25 The central core of the use of compulsion under
the Mental Health Act 1983 was built around the role of the hospital
mangers. Indeed, a person is not sectioned until they have been
accepted by the managers.
3.26 The term 'manager' is used to describe the non-executive
directors of the Trust. The need for modernisation was widely
accepted. However, from the perspective of the service user, the
importance of their role was that it was an ongoing one. With
the MHT they will only have a limited role at certain points in
the process. Some patients will have no right of application at
all. (see para 4.29 below)
The new role of the Independent Mental Health
Act Advocate (IMHAA)
3.27 This, in principle, is much welcomed. However,
we have a number of concerns.
3.28 At s.247(3) it states that the role includes:
(a) Help in obtaining information about and understanding
(1) what medical treatment is being provided
to the patient
(2) why it is being provided
3.29 Peter Edwards Law has been providing legal advocacy
to patients for over 30 years. It has been a strong part of our
belief that our legal advocates are not qualified to discuss symptoms
or medication with clients. This is a dangerous area that can
result in misinforming patients and perhaps reflect the ignorance
or personal preference of lay advocates.
3.30 E.g. A patient might ask for reassurance that
they are not ill. If out of politeness the advocate agreed then
the patient may see that as a valid reason to terminate medication.
Advocates are not qualified to explain what treatment is being
provided and why. This is a professional responsibility of those
caring for the patient.
3.31 We have a real concern which
is described at paragraph 4.27 of the Explanatory Notes to the
Draft Bill. It states:
IMHA advocates can also help patients to exercise
their rights, either by way of representation (e.g.
at a Tribunal hearing) or otherwise.
3.32 It is hoped that this is not a backdoor way
of reducing the rights of those who come under Act bearing in
mind the words of the European Court of Human Rights in the case
of Megyeri v Germany (1993) 15 EHRR (para 23)
…it follows from the foregoing that where
a person is confined in a psychiatric institution… he should
- unless there are special circumstances - receive legal assistance
in subsequent proceedings relating to the continuation, suspension
or termination of his detention. The importance of what is at
stake for him, personal liberty, taken together with the very
nature of his affliction - diminished mental capacity compel this
conclusion.
3.33 And the words of Mr Justice Brooke
(now Lord Justice Brooke) in R v Legal Aid Board ex parte Mackintosh
and Duncan (2000)
'Reading the report of a psychiatrist,
identifying its areas of weakness,
commissioning evidence from the appropriate expert to challenge
it and representing a client at a Tribunal requires expert professional
skills borne, as we have said, of education and practical experience.
It is not like going down to the Magistrates Court as a Duty
Solicitor, arduous though those duties are.'
Recommendation
The IMHAA should not have the power of representation
at MHT's
Does the Bill strike the right balance?
3.35 The Bill introduces the concept of indefinite,
preventative detention even for those who have not committed
criminal offences. How might this be?
3.36 We would refer you to the minimum criteria for
compulsion as set at paragraph 2.6 - 2.14 above. A person suffers
from a personality disorder (a form of mental disorder). There
is a fear that they might in the future do something 'causing
serious harm to other persons'. They have not committed a crime
and indeed might never do so.
3.37 It may be that the only form of 'treatment'
available is being 'cared for' in a secure environment. This could
meet the fourth criteria at clause 9 (5). The person may then
find that they have to prove to a tribunal that they will not
do in the future, what they have not done in the past, and bearing
in mind that whilst they have been detained they have not received
treatment other than care! That might be very difficult to do.
It is not a satisfactory response to this anxiety to say that
it most probably wouldn't happen in practice. It is the responsibility
of parliament to foresee the effects of legislation.
Concerns for public and personal
safety on the other?
3.38 See our comments below (4b), The new Mental
Health Act will not achieve it's goals unless it results in a
change of attitude by planners, managers and practitioners.
4. Are the proposals contained in the Draft
Mental Health Bill necessary, workable, efficient, and clear?
Are there any important omissions in the Bill?
4a Necessary?
4.1 Regrettably, the message that the Mental Health
Bill risks sending to the general public and the media is that
those with mental health problems need to be controlled. In the
Forward to the White Paper Alan Milburn and Jack Straw stated:
'The current laws have failed properly to protect
the public, patients or staff.'
4.2 In reality, it was a failure to understand
the Mental Health Act 1983, not a failure of content, which let
people down. Indeed the emphasis on protection of the public as
a justification for legislation does not help. The public makes
no distinction between those with a personality problem (including
psychopathic personality) and the mentally ill (perhaps someone
who is depressed). The press coverage of the Bill emphasises the
need for control. Indeed your own questions reinforce the point.
'Are the provisions for assessment and treatment
in the Community adequate and
sufficient'
' Is the proposed institutional framework appropriate and sufficient
for the enforcement of measures contained in the draft
bill?' and
'Are the conditions for treatment and care under compulsion sufficiently
stringent?'
4.3 This will tend to reinforce the fear of the
mental disordered and thereby promote social exclusion.
4.4 Some change is necessary. It is unfortunate
that some of the old language from the current Mental Health Act
has not been updated. At clause 227 of the draft Bill there is
a reference to people being 'kept otherwise than under proper
control'. How do you keep someone under proper control? We are
not talking about dogs.
4b Workable?
4.5 We were told by the then Home Secretary
Jack Straw when introducing the Human Rights Bill
'In time the language of the Convention
will be the language in which many of the key disputes will be
settled; the language you need to speak to win an argument. And
that's the real cultural change.'
4.6 In September 2003 the Audit
Commission (Human Rights Improving public service delivery) stated:
"The challenge for public services
is to adopt a systemic approach to complying with the Act. This
should start by raising awareness of frontline staff and building
human rights considerations into the decision making processes.
Reacting to complaints and case law when they happen is not an
appropriate response and will not bring about service development,
particularly for those who are most vulnerable and are heavily
dependant upon public services."
4.7 In his 3rd anniversary speech November
2003) on the Human Rights Act David Lammy MP stated:
"Public authorities need
to realise that frontline staff are crucial to delivering on this
challenge. That means that there needs to be a programme of training
and awareness raising. Even for those bodies that did train their
staff during implementation of the Act, natural staff turnover
means that a good proportion will have moved on: the newcomers
need to be brought up to speed.
4.8 The reality is that the Human
Rights Act has not changed attitudes. The relevence of this is
clear. It is not sufficient to pass new legislation to 'modernise'
mental health law unless you can also modernise the attitude of
the staff who will implement it. This will be a considerable challenge.
The Mental Health Tribunal System
4.9 One major area that needs to be considered
are the practical implications for
setting up tribunal hearings that must be heard within the first
28 days.
4.10 At some point the clinical supervisor will
have to make a decision that an order is required from the tribunal
because they wish to continue assessment or treatment beyond 28
days. That is, unless the patient or their nominated person has
made an application to the tribunal first.
4.11 When the clinical supervisors' views are
notified to the tribunal office the patient will be informed.
4.12 The patient will request a legal advocate,
4.13 The tribunal will request reports from the
those responsible for the patient and will appoint an member of
the expert panel. This doctor will visit the patient, interview
relevent people and prepare a written report which will be sent
to the tribunal office.
4.14 In the meantime the patient's solicitor will
be preparing the case and perhaps instructing an independent psychiatrisrt,
psycologist or social worker.
4.15 All those preparing reports will send them
to the tribunal office who will then dispatch them to all parties
and to the tribunal members.
4.16 All parties would have the right to ask that
the member of the expert panel be called to give oral evidence
if they wished to challege any aspect of the report.
4.17 The patient has the right under Article 6
to a 'fair trial' which means that some time must be available
for the preparation of the case.
4.18 Finally a date needs to fixed for the hear | 