Joint Committee on the Draft Mental Health Bill Written Evidence


Independent Race Relations Health (IRRHC) Consultancy'

Matilda MacAttram's

response to the

 Draft Mental Health Bill 2004

 Department of Health

1. Preface

Matilda MacAttram's Independent Race Relations Health Consultancy (IRRHC) specialises in researching health issues in ethnic minority populations. The consultancy provides organisations with knowledge and understanding the need to develop products and services that truly meet the needs of the diverse communities that make up multi cultural Britain. IRRHC also plays a key role in developing and analysing race relations policy and legislation informed by the needs and concerns of Black groups in Britain. IRRHC is committed to Christian principles and aims to encourage positive social change and justice for all.

IRRHC is keenly aware of the need for both equitable and socially inclusive Mental Health legislation and welcomes the opportunity to contribute to the pre-legislative scrutiny process.

Historically, legislation based on compulsion and forced detention has been used against the black community. African Caribbean's are over represented in every custodial setting. Department of Health figures show African Caribbean people are over five times more likely to be detained in high security units and six times more likely to be sectioned than their white counterparts. This ethnic group is also far more likely to be over medicated, despite the prevalence of common mental health problems being fairly similar across different ethnic groups.[1]

While we appreciate that the Government faces the difficult challenge of protecting the public, the bill's emphasis on perceived risk means that people with mental illness have been unfairly singled out for preventative detention[2], including anyone who appears to be 'very dangerous' adding weight to the consensus that this is a law and order bill. This will inevitably infringe on African Caribbean's civil rights and is a provision that is unlikely to fully meet the requirements of the Human Rights Act.

IRRHC believes that legislation that aims to improve mental health service and delivery must be racially and culturally appropriate. We would like the draft Mental Health Bill to develop stronger and more visible links with relevant anti-discrimination legislation in line with joined up Government, in particular the Race Relations (Amendment Act) 2000, The Disability Discrimination Act 1995, the Children's Act 1989 and the Human Rights Act 1998.

  

This draft Mental Health bill will have a greater impact on African Caribbean's than any other group. We see it is vital that this new Bill should incorporate safeguards against the continuation of racial inequalities and disproportionate misdiagnosis where ever possible. It has been known for many years that African Caribbean patients suffer racial discrimination and this was highlighted in the Inquiry Report into the Death of David Bennett, published in December 2003. Secretary of State John Reid is expected to introduce a plan of action based on the Bennett Inquiry Report recommendations before the new year addressing the issue of institutional racism within the NHS which Sir John Bloefield said 'besmirched the good name of the NHS'.

NIMHE (The National Institute for Mental Health England) is also working to address widespread discrimination through its Delivery Race Equality Programme in BME Mental Health.

Legislation that protects the public, patients and service users is welcomed but the Bill's emphasis on perceived risk leans towards popularly held stereotypes of people with mental health issues as being dangerous and posing a threat. IRRHC would like to see the emphasis focused on provision and delivery of racially and culturally appropriate mental health services, protecting the public while caring for, rather than stigmatising, those who need help.

This consultation presents the only opportunity to voice African Caribbean concerns about this draft bill which is likely to last for another ten years. IRRHC sincerely hope that our calls for the changes that need to come out of this consultation are incorporated into the Bill.

2. General Principles

Part 1 Introductory

1 Code of Practice: General Principles and Guidance

We commend the general principles and guidance in this Bill made in the introduction under Part 1 and recommend that this bill be cross referenced with other Government initiatives and anti discrimination legislation. This should be done with regard to the Race Relations Amendment Act, The Disability Discrimination Act, The Children's Act and the Human Rights Act.

3. Definition of Mental Disorder  

Part 1

Section 2 (5) Mental disorder means an impairment of or a disturbance in the functioning of the mind or brain resulting from any disability or disorder of the mind or brain; and 'mentally disordered' is to be read accordingly.

IRRHC believe that the definition of mental disorder to far too wide and will invariably worsen the racial inequalities that are already the focus of concern for the African Caribbean community. As the definition stands it covers any condition such as drug or alcohol abuse. On canvassing a number of Black voluntary mental health services for research commissioned by the African Caribbean Mental Health Commission on this issues IRRHC's findings indicate that unless this bill is changed mental health services will lose whatever trust remains within the BME community. It will also make the work of professionals, who are for the most part making great strides toward providing non-racist, culturally sensitive care, very difficult. A definition suitable for a multicultural society of the 21st century needs to be applied. At the very least the definition should have specific exclusions, such as those in the current Mental Health Act 1983. Exclusions ensure practitioners consider carefully the basis for compulsory treatment; these exceptions also protect people from society's tendency to incarcerate its socially undesirable members.

4. Admission Criteria

Part 2 Examination, Assessment and Treatment

Chapter 1

Interpretation ect

Our consultancy is concerned at the addition of this provision to this draft Mental Health bill detailed below:

Paragraph 9 (7) "The fourth condition does not apply in the case of a patient aged 16 or over who is at substantial risk of causing serious harm to other persons.

Paragraph 9 (8) For the purposes of this Part, a determination as to whether a patient is at substantial risk of causing serious harm to other persons is to be treated as part of the determination as to whether all of the relevant conditions appear to be or are met in his case."

IRRHC notes that paragraph's (7) and (8) are new to the bill and strengthen the bias of the bill towards being a law and order bill. They emphasise the risk to the public rather than the provision of a service, which IRRHC sees as misplaced, the emphasis for the legislation needs to be on helping a patient recover from their illness.

IRRHC is completely opposed to paragraph (8). 'Substantial risk' should not be part of the determinations as to whether a patient suffers 'mental disorder' and/or requires treatment. There are no reliable objective grounds on which a doctor or any other professional can estimate 'substantial risk'.

These two paragraphs confirm the consensus among human rights and race equality and mental health specialists that this is a 'Public Order Bill'. IRRHC request that both of these provisions be removed from the bill.

5. Treatment

Part 1 paragraph 2 (7) states:

"References to medical treatment are references to treatment for mental disorder provided under the supervision of an approved clinician; and for this purpose 'treatment' includes -

(a)  Nursing

(b)  Care

(c)  Cognitive therapy, behaviour therapy, counselling or other psychological intervention,

(d)  Habilitation (including education, and training in work, social and independent living skills, and

(e)  Rehabilitation (read in accordance with paragraph (d))"

IRRHC sees this definition of treatment as too wide compared with the draft Mental Health Bill 2002. The inclusion of therapies listed under (c) are not justified. These therapies cannot be on a compulsory basis. We are hopeful that unethical practice is unlikely to be carried out under these provisions but as this bill is likely to last for another ten years it should protect people from possible misuse of psychiatric power in the future. IRRHC's view that it is drug therapy that would require compulsion. All other forms of therapy would require the patient's co-operation. It would be unethical to detain someone on the basis of requiring therapy that they need to co-operate in receiving. IRRHC believes that it is not necessary to include therapies listed in (d) and (e) as they are not therapies that justify compulsory detention and requests that they be deleted from the bill. If paragraphs (7) and (8) referred to above were used in conjunction with (d) and (e) it would allow for abuse of sectioning, detaining people on apparently 'medical' grounds which are tantamount to preventative custody for social reason.

In line with joined up government and the Race Relations (Amendment) Act 2000 and anti discrimination legislation IRRHC recommend that wherever treatment is mentioned, the need for it to be 'culturally appropriate' is inserted into this Bill. This wording should be applied in all instances of treatment.

6. Advocacy

Chapter 2. Independent Mental Health Advocates.

IMHA advocates

Access to independent advocacy is essential for people liable to compulsory treatment. IRRHC welcomes section 247 on Independent Mental Health Act Advocates. That said, we feel that it is imperative that the right to an advocate is at the initial examination stage rather than the assessment stage as specified in the bill.

The examination stage of the process can last up to five days (or maybe seven) and the Bill specifically excludes the involvement of an advocate during this period, but it is this initial stage, when a patient's cooperation or non cooperation will be likely to determine whether compulsory power will need to be invoked that an advocate is needed. Research indicates that mental health professionals invariably perceive African Caribbean's as 'big black and dangerous'[3], this evidence makes the presence of an advocate essential, as they will play a vital role in interpreting and conveying the patients wishes and negotiating between the parties and assisting a resolution to avoid compulsion.

IRRHC is calling for the right for all patients detained under this Bill to have access to an independent advocate trained in cultural diversity at the initial examination stage, IRRHC requests that this provision be embodied in the draft Mental Health Bill.

IRRHC cannot emphasise enough the importance of appropriately trained advocates who are well schooled in cultural diversity given the disproportionately high numbers of African Caribbeans currently in the mental health system. We would like to flag up a concern about the figure of 140 advocates which we feel is too small and raise the question of who will train them.

The right of an advocate at the initial examination is particularly important in the case of BME communities and it is appropriate for such a right to be incorporated within the Mental Health Act itself.

7. The removal of Section 117.

The removal of Section 117 of the Mental Health Act 1983 which places duties on both health and local social services to provide free aftercare services until they are satisfied that the discharged patient is no longer in need of support is deplorable. The six week period for free continuing care does not take into account individual's needs or local gaps in service provision.

When discharged from a compulsory order people often need intense support. Making people pay for their care after six weeks may prevent many from continuing to engage with services and seriously endanger recovery. Again the change will disproportionately affect African Caribbean's leaving the mental health institutions because of over representation within the system.

IRRHC recommends a clause that includes a duty on authorities to provide continuing care services following discharge from an order, equivalent to Section 117 including the provision of free care until such time as the care is no longer required.

8. Tribunals

Schedule 2 Section 4

Constitution of Mental Health Tribunals for England and Wales

Schedule 2 of the draft Bill states that the new Tribunal should consist of a legal members, a clinical member and another member with such experience who is not a legal or clinical member. IRRHC believes as a matter of principle that wherever possible be from the BME community, preferably with experience of mental health services so that the Tribunal is reflective of the client group it has been set up to serve.

IRRHC would like to be consulted on the make up of Tribunals.

9. Expert Panel

 Part 1, Introductory, Section 7

Paragraph 7:

BME mental health agencies should be approached to give nominations for membership for the expert panel. In order to be in line with the Race Relations Act our Consultancy recommends that the Department for Constitutional Affairs actively recruits BME members to so there is a healthy reserve of BME member for consideration to the Panel membership.




1   Mental Health Social Exclusion Report, Office of the Deputy Prime Minister June 2004  Back

2   Taylor & Gunn, 1999 Homicides by people with mental illness: myth and reality: British Journal of Psychiatry 174. 9-14 Back

3   Breaking the Circles of Fear Report, The Sainsbury Centre for Mental Health. Back


 
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Prepared 13 December 2004