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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