DMH 343 Memoranda from User Voice
1. Introduction
1.1 User
Voice is a project promoting user participation in Birmingham
and Solihull mental health services. All of its workers have
either experienced mental ill health themselves, or worked or
cared for those affected by it. This response has been written
as part of a workshop on the Draft Mental Health Bill attended
by service users and survivors from the Birmingham area as well
as User Voice workers. We have experience of using mental health
services and of being at the receiving end of mental health law.
We therefore feel that our views on the subject of the Draft
Mental Health Bill currently undergoing scrutiny should be regarded
as being vitally important. If it becomes law, it will affect
our lives, and the lives of fellow service users and survivors,
for at least another 20 years. It is crucial that the direct
service user voice along with our expertise and experience is
taken into account when scrutinising this legislation, to ensure
that it will help rather than harm our mental wellbeing. We would
also like to be given the opportunity to provide oral evidence
to the Committee, and hope that you will read our evidence with
due care and consideration.
1.2 The
subjects that we shall be writing about in this response are:
- The definition of Mental Disorder
- The conditions treatment and care
under compulsion
- The provisions for assessment and
treatment in the Community
- The balance between protecting the
human rights of the mentally ill and concerns for public safety
- Omissions from the Draft Bill
- The Draft Bill's integration with
the Mental Capacity Bill
2. Is the definition of Mental Disorder
appropriate and unambiguous?
2.1 We
do not believe that the definition of Mental Disorder is either
appropriate or unambiguous, because it is too broad and unclear
in the cases of people with learning disabilities, neurological
disorders and people with substance misuse issues. It might not
be appropriate for these people to be subject to the Mental Health
Act, even though they may be considered "Mentally Disordered"
by this definition.
2.2 The
definition of Mental Disorder in the Draft Bill is based on cause,
rather than effect as it is in the current Mental Health Act.
This means that people who exhibit behaviour indicative of mental
distress, even if this behaviour is not caused by a mental disorder,
can potentially come under compulsory powers. This may affect
many different groups of people, for example: people with diabetes
who don't take their medication leading to impairment in their
mental functioning, and even people who become distressed due
to excessive alcohol intake. The definition must be amended to
clarify who it includes and who it excludes.
2.3 In
our opinion, there should be two tests to determine whether or
not a person is Mentally Disordered. The first test would be
to verify that there is an impairment of disturbance of the mind.
Professionals able to verify this should be specified in the
legislation. The second test should be to confirm that the consequences
of this mental impairment are of legitimate concern to
the person or to others. We feel that these tests would reduce
the number of people who could potentially detained under mental
health law inappropriately without who present a serious risk,
either to themselves or to others.
3. Are the conditions for treatment
and care under compulsion sufficiently stringent?
3.1 We
do not believe that the conditions for treatment and care under
compulsion are sufficiently stringent because it is not clear
what safeguards will be put in place to prevent abuse of the powers
available to forcibly treat those with Mental Disorders.
3.2 Treatment
as defined in the Draft Bill includes psychological intervention,
habilitation and rehabilitation. Currently, there are not enough
resources to provide these forms of treatment to those who want
them, let alone those who do not. In reality, compulsory treatment
will amount to more forced medication and increased use of aggressive
procedures such as ECT.
3.3 A
statutory duty must be put in place to provide funding for all
forms of treatment and care as set out in the Draft Bill. We
are concerned that without this, clinical supervisors will be
unable to give the most appropriate treatment to each patient
due to human and financial resource implications.
3.4 We
believe that forced treatment compounds mental distress because
for many patients it is an abusive experience, and for some can
repeat past or current patterns of abuse. It should be the aim
of the clinical supervisor and their team to involve the patient
at every stage of the assessment and treatment process, and to
do their best to ensure that the patient's wishes and concerns
with regard to these processes are acknowledged and taken into
consideration, with compulsory treatment given as a very last
resort. We do not believe that the Draft Bill supports this point
of view.
3.5 We
are concerned that, because the treatment given to patients has
to be appropriate rather than beneficial, this gives
scope for treatment being provided that could be deemed appropriate
but is of no therapeutic benefit to the patient.
4. Are the conditions for assessment
and treatment in the Community adequate and sufficient?
4.1 We
do not believe that the conditions for assessment and treatment
in the Community are adequate or sufficient. We feel that there
should be some defined burden on somebody to prove the need for
a Community Treatment Order, and that there should be a defined
standard of proof. We are concerned that without this, more people
will be subject to these Orders than is necessary.
4.2 We
also note with alarm the obvious similarities between Community
Treatment Orders and Anti Social Behaviour Orders, for example,
in a CTO the clinical supervisor can stipulate certain behaviours
that the patient is not allowed to engage in, just as a judge
can with an ASBO. People with Mental Disorders should not be
treated in the same way as criminals just for being unwell. We
feel that in many cases, being subject to a CTO could be very
stigmatising for patients because it is likely to interfere with
their family and private life, contravening Article 8 of the Human
Rights Act 1998.
5. 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?
5.1 We
do not believe that the Draft Bill achieves the right balance
between these two considerations. In our opinion, the clauses
in the Draft Bill relating to the risk people with Mental Disorders
pose to others are a reaction to a handful of high-profile cases
where someone with a Mental Disorder has murdered or seriously
assaulted a member of the public. New legislation should be drafted
on the basis of need, not on the basis of scare mongering
by the tabloid press.
5.2 We
feel that the Draft Bill takes the issue of risk posed to others
by people suffering mental distress out of perspective. The vast
majority of people with a Mental Disorder are far more of a risk
to themselves than they would ever be to other people - around
6,000 people a year commit suicide, yet there are about 40 murders
each year committed by people with a Mental Disorder, and this
figure has been falling year on year.
5.3 On
the rare occasions when someone with a Mental Disorder has gone
on to commit a murder, the subsequent Inquiries have found that
the patient's care in the Community was unsatisfactory and often
fragmented. We do not believe that compulsory treatment, either
in hospital or in the Community, will help such patients or protect
the public if there is still no continuity of care. The Care
Programme Approach should be in place before a person becomes
seriously ill so that forced treatment, which could potentially
lead to the patient mistrusting their mental health team, is less
likely to be needed.
5.4 We
are of the opinion that criminal acts should be dealt with in
a Criminal Justice Bill, not a Mental Health Bill. To achieve
a balance between the rights of an individual with a Mental Disorder
and the rights of the general public, the Criminal Justice and
Mental Health systems need to remain distinct but work closely
together to promote the individual's rehabilitation and mental
wellbeing.
6. Are there any important omissions
in the Bill?
6.1 We
feel that there are many important omissions in the Draft Bill.
We are especially disappointed that Advance Directives or Statements
were not included, because not only would these make the jobs
of the Tribunal panels and clinical supervisors a lot easier when
faced with the difficult decision of how to treat someone, they
would also allow people with Mental Disorders the chance, whilst
they are well, to plan ahead in case they become unwell again.
Advance Directives would allow individuals to remain more in
control of the assessment and treatment process, which would hopefully
remove the abusive and/or punitive aspect of compulsory treatment
which many people experience.
6.2 We
are concerned that, in light of point 3.2 above, there
is no provision in the Draft Bill for medication withdrawal programmes.
Many psychiatric medications can produce quite severe side effects
and withdrawal symptoms, so patients need specialist help and
support when trying to come off them. We fear that without setting
out a duty in the Draft Bill to provide this, the physical and/or
mental health of many patients will deteriorate due to the side
effects and withdrawal symptoms of these medications.
6.3 We
also feel that the Draft Bill needs a safeguard with respect to
clinical supervisors prescribing doses of psychiatric medications
higher than the recommended therapeutic or safe dose. We believe
that the clinical supervisor should seek approval from a Tribunal
before prescribing high doses, unless the patient can give informed
consent. We also believe that prescribing should be more closely
monitored, especially in cases of polypharmacy or where high doses
are being prescribed.
7. Is the Draft Bill adequately integrated
with the Mental Capacity Bill (as introduced in the House of Commons
on 17 July 2004)?
7.1 We
do not believe that the Draft Bill is adequately integrated with
the Mental Capacity Bill. Firstly, the Mental Capacity Bill allows
people to make provisions for the future when they may lack capacity,
in the form of an Advance Directive for example, whereas the Draft
Bill does not. Secondly, the Mental Capacity Bill introduces
more provisions parallel to those for people who are physically
disabled, whereas the Draft Mental Health Bill further widens
the gap between the rights enjoyed by people with physical disabilities
and illnesses and those that people with Mental Disorders have.
Becky Derham
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