DMH 290 Manic Depression Fellowship
The Manic Depression Fellowship
Submission to the Joint Scrutiny Committee on the Draft Mental
Health Act
MDF is a national user led organisation
for all people who are affected by manic depression (bipolar disorder).
Set up in 1983, we have 4,500 members, a network of 126 groups
across England and Wales, and we provide information and support,
including our innovative user led and user facilitated Self Management
Training and Steady courses, to all those who are affected by
the condition.
MDF is one of the original core members
of the Mental Health Alliance, recognising the importance of working
with others in the field to develop a response to the government's
proposals for new mental health legislation. We support the Mental
Health Alliance submission to the Joint Scrutiny Committee.
Although we had some serious concerns
with the original Expert Committee report, on the whole we welcomed
the proposal to introduce new mental health legislation. In particular,
we were heartened by the introduction of the concept of capacity
as a part of the assessment for compulsion; the recognition of
advance agreements; and the involvement of advocates.
We have been successively disheartened
by the various responses to the Expert Committee Report, and the
draft bills. Our position following the publication of the latest
draft Mental Health Bill is that given the choice between the
current draft and the Mental Health Act 1983, we would prefer
to stay with the 1983 Act (as amended to comply with the Human
Rights Act) because we feel that this better serves the needs
of our members. We are profoundly disappointed to make this statement.
1. Is the Draft Mental Health
Bill rooted in a set of unambiguous basic principles? Are these
principles appropriate and desirable?
No, it is not. A guide is given about
what the principles should cover, which in itself is limited in
scope, and a power is given for any of the principles not to apply
to particular categories, which does not support the notion of
"unambiguous basic principles."
There should be a statement of general
principles on the face of the Bill. It is insufficient to have
these to a code of practice; the general principles should be
fundamental to the content of the Bill and consequently need to
be enshrined within the Bill to ensure that its provisions are
consistent - otherwise the code of practice must fit the provisions
of a published Act. The general principles must apply to everyone
who is subject to the Act; there should be no power to disapply
a general principle.
Please see the Mental Health Act submission
for a list of principles that any statement should include in
the Bill.
2.a. Is the definition of
Mental Disorder appropriate and unambiguous?
The definition of mental disorder is
too broad. As it stands, it could include people whose mental
functioning is impaired, but who do not have underlying mental
health problems. Exceptions need to be made clear to ensure that
practitioners are given sufficient guidance to focus on underlying
mental health problems in making assessments for compulsion.
The Manic Depression Fellowship supports
the exceptions proposed by the Mental Health Alliance in their
submission.
2.b. Are the conditions for treatment
and care under compulsion sufficiently stringent?
No, the conditions for treatment and
care under compulsion are not sufficiently stringent. The criteria
for compulsion are discriminatory, coercive and too broad. They
are discriminatory because they treat people with mental health
problems differently to those with physical health problems.
In the words of the Mental Health Alliance, "People who are
physically ill are not detained in hospital against their will
because they refuse to take the treatment that should improve
their condition; neither should people with mental illness."
If a person has capacity to make a decision about his/her treatment,
he/she should be allowed to do so.
They are coercive because they impose
compulsion on one category of patient regardless of their willingness
to take treatment. If people engage with their treatment, they
are far more likely to continue with it; if treatment is imposed,
people are far more likely to resent it and consequently try to
avoid it. It is bemusing that government apparently wants to
alienate those whose positive engagement would do much to reduce
risk.
They are too broad because: -
- mental disorder
has a very broad definition in the bill
- medical treatment
has a very broad definition in the bill
- "for
the protection of other persons" is not qualified or clarified
in any way so the breadth of scope is undefined and could be interpreted
very loosely
- the fifth
condition is likewise very loosely worded, so that it is unclear
what the purpose of "appropriate" medical treatment
is, and therefore makes it difficult for mental health practitioners
to determine what it is meant to achieve - will it stabilise a
person's condition? Will it improve it? What does "all
other circumstances of his case" mean? What bearing does
that have on the appropriateness (or otherwise) of any medical
treatment?
Finally, the clear emphasis of the conditions
for compulsion appears to be on safety of others, rather than
the well-being of people with serious mental health problems as
evidenced by c. 9 (8), "a determination as to whether a patient
is at substantial risk of causing serious harm to other people
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."
This reinforces the already considerable distrust that people
with mental health problems feel towards the proposed new legislation,
that their needs are not paramount, that fears about the well-being
of others are more important, and that they remain second class
citizens in the eyes of the state.
MDF believe that no one should be forced
to have treatment against their will if they have capacity. Compulsion
should only be used where it is necessary to effect treatment;
and the person lacks capacity; and there is a risk
of serious harm to the person himself or to others if treatment
is not given. If treatment is given under compulsion, there should
be a therapeutic benefit for the patient ie. an improvement in
the mental disorder, or preventing or reducing deterioration in
the person's mental or physical health.
2.c. Are the provisions for assessment
and treatment in the Community adequate and
sufficient?
No, they are not. There is much concern
amongst our membership, and service users in general, about the
potential to be subject to a non-residential treatment order (NRO).
These concerns arise from the fear that personal autonomy outside
hospital will be eroded, so that disagreements with mental health
professionals about treatment can now be overridden by use of
an NRO. This in turn will reinforce the perception of being a
second class citizen, one who does not have the same rights and
choices as other members of society; and that defensiveness and
the blame culture will lead mental health professionals to use
NROs as a means of protecting themselves in case anything should
go wrong.
If a person is seriously unwell and
is unwilling to take treatment to improve his/her condition, hospital
provides a contained and controlled environment where that person's
condition can be monitored, managed and improved. It is difficult
to see how an NRO would provide that person with the best support.
If a person is seriously unwell, but wants to take treatment
to improve his/her condition, there is a choice between hospital
and community but 1) that does not involve compulsion and 2) it
rests on what the person would prefer and the assessment of the
mental health professionals, in consultation with those who know
the person well. If agreement cannot be reached or the situation
deteriorates compulsion may then need to be considered. However,
treatment under compulsion should always be in hospital, because
it should only ever concern those who are seriously unwell and
who present a high risk of serious harm to themselves or others.
MDF does not support any compulsory
treatment in the community. Manic depression is an episodic condition,
which means that people experience episodes of mania or depression
interspersed with periods of stability (which may last for years).
Our members are understandably concerned that they could be subject
to compulsion in the community at times when they are well, as
a precaution against an episode in the future. This will militate
against individual efforts to live successfully with manic depression
because personal autonomy is effectively removed. A key part
of our self management programme is taking responsibility for
your condition; an NRO takes this away.
The Mental Health Alliance has carried
out an analysis of the evidence about the efficacy of community
treatment orders in other jurisdictions, and we refer you to their
submission for more detailed information about this. However,
our understanding that one of the key pre-conditions necessary
for compulsory treatment in the community to have any benefit
for users is for the appropriate services to be high quality,
well developed and widely available. This is certainly not the
case in England.
3. 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?
No, it does not. We have said above
that the bill is discriminatory against people with mental health
problems. It lacks reciprocity, creating scope for many more
people to be subject to compulsion whilst failing to ensure that
they will be supported to make their beliefs, views and judgements
known and taken into account as a part of the clinical decision-making
process. To achieve a more effective balance: -
- Advance agreements
should be included in the bill and accepted as a part of the clinical
decision-making process.
- People should
have access to an independent advocate if they are: liable to
compulsory treatment; at the point of examination for assessment;
under assessment; during periods of compulsory treatment; experiencing
a mental disorder but do not need the exercise of compulsion;
under aftercare arrangements.
- The nominated
person should have enhanced powers, similar to those of the nearest
relative under the current 1983 Act. Health professionals should
not be allowed to judge the suitability of the nominated person
and impose their own choice. We support the Mental Health Alliance
recommendations in connection with the nominated person.
The concerns for public and personal
safety from people experiencing mental health problems are disproportionate
to the reality. Taylor and Gunn's research showed that the public
are at risk from 600 - 700 offences per year recorded as homicide,
compared with about 40 homicides by the mentally ill per year
(and that number was shown to have reduced since the 1950s).
Moreover, the common underpinning factor in homicide by the mentally
ill has been service communication failures, not the inability
or failure to use compulsion.
The emphasis in the bill on safety and
the protection of others simply perpetuates the myth that there
is a link between dangerousness and mental health, and reinforces
the stigma faced by people living with mental health problems.
4. Are the proposals contained
in the Draft Mental Health Bill necessary, workable, efficient
and clear? Are there any important omissions in the Bill?
We agree with and refer you to the Mental
Health Alliance submission on this question. However, we particularly
would like to focus on the omission of advance agreements. There
is a strong interest within our membership in using advance agreements
as a means of communicating, when well, wishes and needs for treatment
and wider care issues when unwell. These are as wide-ranging
as treatments, whom should be notified about an episode and in
what way, who looks after any children, pets, pays any bills etc.
Our highly successful self management programme (recognised as
a model of excellence in the Chief Medical Officer's Expert Patients
Report) uses advance agreements as a means of planning for the
future. A part of their construction is that the agreements must
be communicated with relevant mental health professionals, and
one of the many benefits of the programme is that participants
often report improved communication with their psychiatrists,
which in turn results in greater concordance with medical treatments.
This is consequently one example of how supporting people to
work in partnership with healthcare professionals is positive
for both parties.
Including advance agreements in the
Bill as a part of the clinical decision-making process will give
service users greater confidence that their interests will be
respected under compulsion. Properly supported, they could help
to build positive partnerships with mental health professionals,
and consequently help to reduce levels of compulsion because interventions
will be made on a timelier basis.
5. Is the proposed institutional
framework appropriate and sufficient for the enforcement of measures
contained in the Draft Bill?
We support and refer you to the Mental
Health Alliance submission on this question. In particular: -
- We do not
agree that the Tribunal must have a clinical member, because that
expertise can be provided from the Expert Panel. The presence
of a clinical member may mean that the evidence at the Tribunal
may be heavily weighted towards the medical model of mental health
care
- Mental Health
Tribunals should explicitly include people who have experienced
mental health problems to ensure that this valuable perspective
is obtained. It may also help to build trust with service users
that they are respected as individuals and their views will be
taken into account. We know of someone with a mental health diagnosis,
who worked at a senior level in a mental health charity, who applied
to sit on a mental health tribunal and whose application was turned
down without interview on the grounds of insufficient experience.
Without a specific inclusion, we risk perpetuating this kind
of response.
- care plans should be comprehensive, including
all treatments and relevant social issues.
6.c. Are there enough safeguards
against misuse of aggressive procedures such as ECT and psychosurgery?
No, there are not. We welcome the fact
that ECT cannot be used for someone with capacity if s/he refuses.
However we are concerned that a capacitous refusal can be overturned
if the situation is classified as an emergency. There may be
an argument for this if it is "immediately necessary to save
his life" (c.182 (2), but not otherwise. In particular the
inclusion of "alleviate serious suffering by him" as
an emergency condition is worryingly wide
We believe that the values of advance
agreement come strongly to the fore here. Advance agreements
can set out clearly whether and in what circumstances someone
would be prepared to accept ECT (including naming someone that
they trust to make a decision for them, if they are unable to
do so themselves). This will support a clinical decision-making
process where someone lacks capacity.
We are concerned that the age limit
over which ECT can be given is too low. We support the Mental
Health Alliance recommendation that 18 should be the lowest age,
given that young people have not necessarily completed their physical
development at 16.
We do not believe that psychosurgery
- type A medical treatments - should be permitted at all, since
there is no evidence base as to its purpose or effectiveness.
If it is included as an aggressive treatment, it should only
be given to those with the capacity to make the decision who consent.
It should never be given to anyone who lacks capacity.
We are concerned that any other aggressive
treatments are not defined in the bill and are simply categorised
as "type B … as may be specified as such in regulations."
We believe that doses in excess of British National Formulary
limits, and cocktails of medications (ie. combinations of 4 or
more medications) require additional safeguards before they can
be used.
7. Is the balance struck between
what has been included on the face of the Draft Bill, and what
goes into Regulations and the Code of Practices right?
We are concerned that the Bill is insufficiently
precise in defining key concepts, and that too much that is vague
is being for definition in the Code of Practice. We refer to
and support the Mental Health Alliance submission here.
8. Is the Draft Mental Health
Bill adequately integrated with the Mental Capacity Bill (as introduced
in the House of Commons on 17 July 2004)?
The Draft Mental Health Bill does not
appear to be well integrated. The Mental Health Bill should "sit
on top" of the Mental Capacity Bill, but given that the Mental
Health Bill does not consider capacity at all, or the implications
for someone who is subject to the Mental Capacity Bill, or for
either, what happens for people whose capacity fluctuates, which
can certainly be the case for our members, integration does not
appear to be sufficient. There appear to be grounds for confusion
for professionals and service users in their combined operation.
9. Is the Draft Mental Health
Bill in full compliance with the Human Rights Act?
We do not have the expertise to answer
this question, but we understand that there may well be compliance
issues for the Draft Mental Health Bill, in particular concerning
the risk of preventive detention and the lack of counterbalancing
rights for people who are subject to compulsion.
10. What are likely to be the
human and financial resource implications of the draft bill?
What will be the effect on the roles of professionals? Has the
Government analysed the effects of the Bill adequately, and will
sufficient resources be available to cover any costs arising from
implementation of the Bill?
The Draft Bill will increase stigma
for people experiencing mental health problems. It will damage
relationships between service users and their mental health professionals,
because the wide ability to use compulsion will make it very difficult
to develop trusting relationships. Fear of being caught by the
provisions of the proposed Bill will drive people away from services.
The roles of professionals will be changed
because the emphasis in the Bill is the safety and protection
of others, rather than the health and the therapeutic treatment
of those subject to its provisions. The change in roles may well
be at odds with the underlying purpose of those professions (ie
to support, to heal), which will undoubtedly create tensions.
It is significant that so many professional bodies have chosen
to join the Mental Health Alliance, to demonstrate that the concerns
about the Bill are as much about the impact on the professionals
as they are on the people who are affected by the new legislation.
We find it difficult to see that the
expanded Tribunal system will be sustainable, given the difficulties
with the current, narrower Tribunal system. Consequently, there
are grave concerns about the overall workability of the new system,
given that government has not identified how any shortfalls in
human resources will be met.
Fundamentally, though, we have to come
back to people with mental health problems, who will be caught
by the provisions of the Bill. Already a vulnerable and stigmatised
group, who are currently let down through poor, patchy and under-resourced
service provision, the proposals in this Bill appear to do nothing
to redress the balance. Instead, the limited resources in the
system are likely to be diverted to meet the proposed system of
compulsion, when the cheaper and more supportive option is to
invest in primary and secondary care to ensure that fewer people
become so ill that compulsion is necessary.
Whatever legislation comes in now is
likely to be in operation for around 20 years. Parliament needs
to consider very carefully the full impact of the proposals both
on those it will directly affect, and on the stigma attached to
mental illness. Currently 1 in 4 people will experience mental
health problems at some stage in their lives, and the incidence
of some conditions, eg depression, are predicted to rise, so the
numbers of people who could be affected by this legislation are
huge. The strength and breadth of the opposition to the proposals
from both service users and healthcare professionals alike is
sending a very clear message to Parliament as legislators. We
urge you to take notice of it.
Manic Depression Fellowship
October 2004
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