DMH 324 Revolving Doors Agency
Draft Mental Health
Bill 2004 - Consultation Response
Introduction:
This document is the consultation
response to the Draft Mental Health Bill 2004 (the Bill) from
Revolving Doors Agency. Revolving Doors Agency is a member of
the Mental Health Alliance.
The Agency:
Revolving Doors Agency works with people
who are in crisis. Our clients have mental health problems and
have come into contact with the criminal justice system - generally
through arrest or imprisonment. The Agency offers practical and
emotional support to this client group through its Link Worker
Schemes. The schemes help clients engage with support services
to resolve problems such as homelessness, poverty and drug addiction
which contribute to their offending behaviour.
What we learn from our practice is shared with other
charities, Government and local service providers. Our research
into the client group, carried out in conjunction with partners
such as the London School of Economics and the Institute of Psychiatry,
demonstrates levels of social exclusion among this group and effective
ways of helping them. This approach enables us to link policy,
practice and research in order to highlight client need and an
appropriate response.
Consultation Response:
1. Increasing Crime - Inadvertent
Consequence?
S2(5) provides
a very broad definition of "mental disorder". Such
a definition will allow many Revolving Doors clients to be diagnosed
with a recognized "mental disorder", who are currently
excluded. For example, one third of Revolving Doors' clients
are assessed by Link Workers as having a yet undiagnosed personality
disorder. Most of these clients would now fall within the s2(5)
definition of "mental disorder". This move is welcomed.
However, the broad definition of s2(5) does not address the separate
problem that many Revolving Doors' clients face gaining access
to appropriate mental health services. While s9(3) provides
that the conditions for examination and assessment include this
requirement in the form that such action is necessary for the
protection of the patient or others from suicide, self-harm or
serious neglect, there is no comparable requirement under s116.
This may have the inadvertent consequence of suggesting that
committing a criminal offence is the quickest and most effective
way to gain access to mental health services.
93% of Revolving Doors clients
were in contact with no services, when referred to one of our
Link Worker Schemes, despite the fact that 34% of referrals need
to see a GP; 23% were sleeping rough; and 99% were unemployed.
All Revolving Doors' clients suffer from some form of mental
illness, whether diagnosed or undiagnosed. With this reality
in mind, throwing a brick through a police station window, for
example, may seem a shortcut route to assessment and examination
and, potentially, treatment. Desperate clients should not be
led to feel that committing a criminal offence is the only way
to draw attention to their mental health problems. Providing
a positive right to assessment and examination in the community
would avoid this problem.
2. Mental Health Orders: Discrimination
Article 6, European Convention
for the Protection of Human Rights and Fundamental Freedoms (ECHR)
provides everyone with a right to a fair trial and Article 7,
ECHR provides that no one shall be found to be punished for an
act or an omission with is not an offence in law. Under s114(2),
to be eligible as the subject of a Mental Health Order, the court
need only establish that the person did the "act or omission
constituting the offence" and, therefore, the court does
not establish whether the defendant had the mental element (mens
rea) for the offence. With the exception of strict liability
offences, not establishing the mental component of the offence
prevents the founding of the defendant's guilt. Following Article
6(2), ECHR, the defendant is presumed innocent until proved guilty
and, therefore, cannot be held to be criminally responsible for
the offence.
Despite the fact that the defendant
is not found criminally responsible, the conditions for compulsory
mental health treatment applied under Part 3 are less rigorous
than those applied to patients who have not been charged with
an offence (contrast s116 and s9). In s116, all of the provisions
in s9(4) relating to risk to self or others are absent. We favour
that the same criteria should be applied throughout the Bill as
in Part 2, Chapter 1, s9. As neither those falling within Part
2 nor Part 3 have been found guilty of an offence, any difference
in criteria for compulsory treatment seems to lack rationale and
be a potential breach of human rights law.
A further point of discrimination
may be found in a comparison of the application procedures for
a medical treatment order (s39) and a mental health order (s115).
Under s39(5), the obligations placed on the applying clinician
to give reasons for his recommendations are much more extensive
than those demanded by s115. S39(6) demands that the applying
clinician must consult the patient (his parents, if under 16),
his nominated person and carer. There are no comparable obligations
under s115, providing a wholly unsatisfactory level of patient
involvement in the process.
3. Applications to Mental
Health Tribunals and the Courts - Part 3
We welcome the increased use
of Mental Health Tribunals in Part 2. However, under Schedule
2, s4, panels can comprise only one person which, when combined
with the increased powers of those tribunals, places a heavy burden
of responsibility on that individual which may be vulnerable to
abuse or weak judgment .
Under Part 3, the court makes
the decisions regarding assessments, examination and treatment.
Following s86(4), the court may require a clinician to
prepare a mental health report. It is not an obligation. Neither
is preparing a risk assessment {s86(5)}. We are concerned that
there is limited scope for the role of a mental health professional
under this arrangement. Revolving Doors recommends that a court
should be obliged to hear the evidence of a multi-agency panel
of mental health experts. This would allow a comprehensive appraisal
of the patient's needs to be made and enable the court to reach
a fully informed conclusion.
4. Community Sentence Framework
As the patient is not found criminally
responsible by the court, no conviction or sentence are imposed.
Consequently, it is logical that those subject to s120(1)(b)
cannot be given a community sentence while on a mental health
order. However, the new Community Sentence Framework (Custody
Plus / Minus - Part 12, Criminal Justice Act, 2003) has been designed
to ensure that vulnerable people who would currently be imprisoned
and released without condition, are awarded a sentence with a
short prison sentence followed by community-based support. This
is intended to ensure that offenders are linked into community
services on release. There is a need to ensure that the more
holistic service provision approach provided under the Community
Sentence Framework is not denied to those subject to a mental
health order. For this reason, it must be clearly specified in
the Bill or accompanying Code that a non-resident Mental Health
Order is to be enforced by the Community Mental Health Teams.
5. "Impracticable"
A general point of concern is
the use of the language of practicality. It is highly subjective
and poses a series of difficulties for the agencies that will
be working with the patients - e.g. s228(1)(c) "Urgent Removal
to a Place of Safety". In addition, the use of subjective
language provides an inadequate defense for the human rights of
the patient, particularly Article 5 of the ECHR - e.g. Section
11 where the mental health professional does not have to consult
with the parents of a patient aged under 16 if 'it would be impracticable
to do so'. Clear minimum standards must be included in the Codes
of Practice to ensure that the human rights of patients are protected.
6. Advocacy
Much valuable work has been done
with our client group through advocates and arrest referral teams
based in police stations. Where a police station or psychiatric
hospital is a 'place of safety', we suggest that specialist mental
health advocacy provisions are available on arrival.
Also, the Mental Health Alliance
estimates that 2000 people are currently involved in advocacy
work for this client group. The Bill makes provision for 140.
We are concerned that this is an unrealistic figure to cover
England and Wales and more resources should be dedicated to ensuring
this is an effective service. The Bill could also make provision
for minimum standards of training for advocates.
If you require any further information,
please contact Emma Jones or Nick O'Shea on 020 7253 4038.
O'Shea, Moran and Bergin, Snakes
and Ladders: Finding from the Revolving Doors Agency Link Workers
Scheme, (2003), p53
O'Shea, Moran and Bergin, Snakes and Ladders: Finding
from the Revolving Doors Agency Link Workers Scheme, (2003), p46.
p.41.
p.46
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