DMH 223 Memorandum from the Mental Health
Team of the Gwent Association of Voluntary Organisations (GAVO)
Memorandum from the Mental Health Team
of
the Gwent Association of Voluntary Organisations
(GAVO)
together with the Monmouthshire Rural
Outreach Project
Introduction
Our team consists of three Mental Health Advocacy
Workers, one Rural Outreach Worker, two Mental Health Development
Officers, and one Manager / Supervisor for the team. We cover
five county areas in South East Wales, broadly covering the former
Gwent County:- Monmouthshire; Newport; Torfaen; Blaenau Gwent;
and Caerphilly.
As voluntary sector mental health workers, we have
several major concerns about the impact of this Bill, if enacted
without significant changes. Only a few minor aspects of the
draft Bill would be welcome and we question whether new legislation
is required at all.
We suggest that the current Mental Health Act
(1983) is better than that proposed, if it was resourced sufficiently.
Summary of major concerns
a) The Bill is difficult to understand. This
is acknowledged by recognised experts
b) No right of appeal to Tribunal except on point
of law
c) No mention of right to free representation
d) Loss of independence of social perspective,
(AMHP vs. ASW)
e) Trust between patient and medical carer could
be damaged
f) Reduction of existing services as resources
are absorbed by new compulsion duties
g) Erosion of important principles and definitions
h) Some principles may exist in Codes of Practice,
which can be changed
without reference to Parliament or National Assembly
Wales
i) Stigma will be raised
j) Contradiction of principles set out in National
Service Framework
k) Potential serious breaches of Human Rights
Major concerns
a) The Bill - as drafted - is very difficult
to understand. Courts will have difficulty in implementing justice
- especially important as personal liberty is at stake. The process
will be time consuming and expensive.
b) There is no right to appeal against a Mental
Health Tribunal decision, except on a point of law. This constrains
detainees' rights to be less than that of a criminal, and may
contravene their Human Rights.
c) There is no mention of whether a person may
have a right to free legal assistance or representation.
d) Potential loss of independence by changing
from requiring an Approved Social Worker (ASW) to the new "Approved
Mental Health Professional" (AMHP). That person could be
in same team as the Practitioner sanctioning detention, and may
feel conflicting obligations. If AMHPs are medical professionals
- even with training in social matters, their primary influence
could be the Medical Model of care, rather than - at present -
giving the essential balance of the social perspective.
e) If the AMHP is already involved in the patient's
care, this could severely damage trust and confidence between
patients and professionals.
f) Changes in compulsory powers will lead to
increased consumption of already stretched resources (especially
in Wales) and is likely to result in severely reduced services.
For example, Clinical Supervisors will be heavily involved in
Tribunal preparation and attendance; already limited in-patient
beds may be required for extra detainees; Doctors are likely to
safeguard themselves by seeking extended detention where there
is doubt about safety or relapse.
g) Poor and diluted definitions of important
principles.
The definition of "mental disorder" has become so wide
it is no longer useful - it is essentially a "catch all"
definition.
The words "Care Plan"; "Advocacy"; and "Assessment"
have been redefined to become so restrictive in the context of
detention, that their accepted usage is severely devalued.
A Care Plan normally means the core part of the Care Programme
Approach - but in the context of the Bill appears to be just enough
of a plan to justify that at the point of detention some treatment
is identified. What is done to the patient after the point of
detention is not constrained, in the Bill, to be therapeutic and
beneficial.
Advocacy is about speaking for - or enabling - a person, to help
them understand and pursue their rights in a wide context. The
Bill constrains this to the detained person being enabled to understand
why they are being detained. That is not Advocacy.
h) Too many important principles have been left
off the face of the Bill.
e.g. Equality. If principles are left to secondary legislation
there is too much scope for a future Secretary of State or the
National Assembly for Wales to alter how the Bill works without
full reference to Parliament or the democratic process. Principles
contained in the code of practice may be over-ridden [Section
1(4)]. There is scope for the abuse of vulnerable people. This
is not acceptable.
i) Stigma will increase.
j) There is contradiction of important principles
in the Welsh National Service Framework for Adult Mental Health
Services, e.g. the Empowerment of Service Users vs. new aspects
of Compulsion.
k) There is potential for breaches of Human Rights.
While the revised 2004 draft appears to have been
improved since 2002, significant danger areas remain.
Our team feel it would be better to commit to
resourcing the current legislation adequately, rather than to
introduce a new Bill, which is likely to fail to improve services.
The new Bill attempts to enable the detention of
a very small number of dangerous people (closing a "loophole"
in other legislation where those people cannot be detained).
There are many people in our society who could be classed as dangerous
to others; the vast majority are not mental health patients or
service users. The use of Mental Health legislation to detain
a tiny minority of these would result in increased stigmatisation
of people with mental health issues - effectively strengthening
the illusion that people with poor mental health are generally
dangerous to others. It is not appropriate to use Mental Health
legislation for this purpose, and would be contrary to the Government's
claim to be taking measures to reduce stigma.
Response to the Scrutiny Committee's 10 Questions.
1
- Not enough Principles are set out on the face
of the Bill - too much left to be addressed in the regulations
/ Code of Practice - providing scope for ambiguity and manipulation
in the future
- Part 1 Section 1 (4) is an open exclusion clause
- where the setting of principles is left to the Code of Practice,
these can be selected to not apply for vague reasons
- Principles must have a practical relevance and
be resourced
- Part 1 Section 1(3). To what extent will users
be "involved"? Should assert "active participation"
(infers sharing).
- Stigma will be increased.
2 The definition of Mental Disorder is so wide that
it has become almost meaningless. It is not appropriate in that
it encompasses those with learning disabilities; people who abuse
substances; people who may be temporarily upset e.g. a diabetic
who displays irrational behaviour whilst suffering low blood glucose;
and also many others who would not presently receive a mental
illness diagnosis.
3 It is unbalanced in that public safety is held
in higher esteem than people suffering with mental health problems.
An ill patient detained for treatment under the proposed Bill
could be at life threatening risk from being held with people
detained because they are dangerous to others. This could represent
a two-tier Rights situation which would be contrary to Article
2 Rights under the European Convention on Human Rights ( ECHR).
There is a strong criminal justice and public order
element throughout, as though the government wants to be able
to lock up dangerous people who cannot conveniently be detained
by other legislation, by labelling them mentally disordered -
even though there is no therapeutic treatment for them.
This could result in a raising of social stigmatisation
of people in genuine need of care - the public and press could
well link "dangerous people" being detained with all
sufferers of mental health problems - the vast majority of whom
are of no danger to others. Sufferers would then be less likely
to seek treatment voluntarily, for fear of being labelled in this
way.
There is no relationship with the essential need
for appropriate treatment.
4 The Bill makes significant changes to the rules
for detention. The capacity of the Mental Health system to detain
people is already stretched, so the changes may not be workable.
It would be better to properly resource the operation of the
current Mental Health Act (1983), and make some minor amendments
to include some good aspects of the proposed new Bill e.g. allow
the detained person to nominate his/her representative, but for
that person to have similar rights to the existing "nearest
relative". Or better still retain nearest relative, but
give the patient the right to appeal for another nominated person
- extending or transferring the rights that relatives have at
present to the nominated person.
5 It is considered that the Bill could significantly
increase the number of detainees. The framework, with the resources
so far proposed, may well be insufficient to accommodate this
expansion.
Carers, parents and family, and community workers
may feel obliged to take the role of policing / jailer in the
case of a non-resident patient. This is not appropriate to maintaining
essential relationships, and recovery.
The National Service Framework has not yet been implemented
in Wales, as it has in England. In Wales many locations are rural
and remote from services - thus it is often hard to access the
few therapeutic resources due mainly to transport difficulties
/ distances, and costs.
6 There appear to be no safeguards against inappropriate
assessment, which now involves a greater range of people. Approved
Social Workers are to be replaced by Approved Mental Health Professionals
- who may not be independent from clinical / medical team personnel
and management. There is concern that they may not be as well
trained in the social perspective, which is an essential aspect
when considering withdrawal of liberty.
The Advocacy role (Wales NSF) has been very severely
devalued. The Bill supports only the patient's right to understand
why they are being detained. This serves merely to take that
responsibility away from the health service and pass it on to
the advocacy service. This will result in the much broader service
currently available to patients being weakened, in order to provide
the restricted service required under the new Bill. This would
represent a major backward step, and would be contrary to the
Wales NSF.
Advance Directives - it is unclear if the Mental
Capacity Bill would adequately addresses this right of choice.
Undefined "emergency" - why would a patient
need emergency ECT rather than e.g. sedation. Section 182(2)
- Is there any evidence that ECT saves life?
Section 183(1-4) Unclear as to whether 1 or more/all
conditions to be met. Should include Choice + appropriate treatment
depending on personal histories - in line with current Welsh NSF
proposals
7 As no code of practice exists or any draft has
been made available, this is impossible to determine.
Please see response to Question 1 on this matter,
to save repetition.
A fundamental example of a Principle could be Equality.
8 Need to see the Mental Capacity Bill in action
before deciding.
Inherent danger in having two separate definitions of Mental Disorder
and Mental Capacity.
Mental capacity should be the default until proven
otherwise. Having a mental disorder should not be the default.
Advance Directives - it is unclear if the Mental
Capacity Bill would apply or adequately addresses this right of
choice within the context of Mental Health e.g. choice about whether
or not to have ECT, or to choose a previously successful medication
and reject one which previously had unpleasant or dangerous side
effects.
9 Appears to contravene Articles 2, 3, 5 & 8
of the ECHR.
An example of recent case law is ECHR Judgment (Strasbourg 5th
Oct 2004)
CASE OF H.L. v. THE UNITED KINGDOM (Application no.
45508/99)
New "Right" to nominate can be over-ruled
by professionals - seems to be a pseudo-right.
10 It is already difficult to obtain treatment, and
particularly appropriate treatment in the community, in Wales,
which is predominantly rural.
The Wanless report, examining the Welsh situation,
stated that there is currently a £65M deficit in Health Services.
How then can the extra costs of this MH Bill be delivered?
The RCP estimate the need for an extra 70 Psychiatrists
to implement the current proposals. There are already unfilled
Consultant vacancies.
The Bill seems likely to swallow up existing monetary
and professional resources, and consequently further reduce baseline
services.
There is likely to be irrecoverable damage to trust
within the relationship between mental health professionals and
the patient (policing / jailer).
Stigma will increase - contrary to the NSF intention.
According to recent research on rural mental health, high levels
of suspicion and stigma colour the perception of mental health
services by people in rural areas
(University of Exeter Rural Stress Review). Rural
people with mental health needs already find it difficult to seek
help, despite efforts from workers to break down barriers in local
communities.
The proposed Bill is likely to cause potential patients
in all areas to avoid seeking help, and could exacerbate disengagement
from services, with consequences for community health.
The experience of Social Stigma is one of the factors
which adds greatly to the suffering of patients, and to the un-necessary
fear of the public. It serves the insensitive and agitating elements
of the media, and associated cynical political manipulation.
____
Submitted by Richard Johnson, Mental Health
Development Officer
Gwent Association of Voluntary
Organisations
8 Pentonville
Newport NP20 5XH
01633 213229
richard.johnson@gavowales.org.uk
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