DMH 268 Mencap
Mr Richard Dawson
Draft Mental Health Bill
Committee Office Scrutiny Unit
House of Commons
London SW1P 3JA
1 November 2004
Dear Mr Dawson
Mencap's submission to the Joint Scrutiny Committee
on the Draft Mental Health Bill 2004
Thank you for giving Mencap the opportunity
to respond to the Joint Committee's consultation. As the UK's
leading learning disability charity representing people with a
learning disability, and their families and carers, we are pleased
to be a part of this extremely important consultation.
Mencap is an associate member of the
Mental Health Alliance (MHA) and as such we fully endorse their
submission to this Committee. We are also a core member of the
Making Decisions Alliance which has been working on the related
Mental Capacity Bill. Our answers to the questions below all
have the necessary caveat that, like all people giving evidence
to this Committee, we do not yet know what will be in the final
Mental Capacity Act and this creates difficulties in making definitive
judgments about both Bills. However, we welcome and support the
reform of mental health legislation.
Given the response you have received
from the MHA, our submission concentrates on the core issues for
people with a learning disability associated with this Bill, namely,
the need for the Bill to concern only people with a mental
illness (question 2), the need for the Bill to be first and foremost
a health and social care Bill (question 3), the need for the Bill
to be understandable (question 4) and the need for the Bill to
work with the Mental Capacity Bill (question 8).
Mencap's stance on the Draft Mental
Health Bill is based firmly on a human rights perspective. The
detention of someone against his or her will is a serious breach
of their fundamental human rights and should only be allowed in
the most limited of circumstances. It is of particular concern
to people with a learning disability because, regardless of whether
they actually lack mental capacity or not, things are often done
for, or to, them against their expressed or unexpressed wishes.
It also has to be noted that people
with a learning disability have for too long been subject to inadequate
and discriminatory practices when trying to access all aspects
of health and social care services including mental health services.
This is despite clear evidence, as outlined in the Government's
Valuing People White Paper, that people with a learning
disability are more likely to have mental health problems than
the general population.[17]
The lack of access to the same quality of preventative care and
services often leads to the development of more serious mental
health conditions.
Q2. Is the definition of mental disorder appropriate
and unambiguous?
The Draft Mental Health Bill defines
mental disorder as "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". This broad definition
undoubtedly gives the potential for serious over inclusion of
people with a learning disability simply because they have a learning
disability. The Draft Mental Health Bill explanatory notes (page
11) confirm this stating "examples of mental disorder include
schizophrenia, depression or a learning disability".
A learning disability is not a mental illness. Mencap
believes that it is fundamentally wrong for someone with a learning
disability to come under mental health legislation unless they
also have a mental illness. If such a broad definition of mental
disorder is to be used, then it is essential that this be combined
with extremely tight conditions and limitations. As such, we
firmly support the Royal College of Psychiatrists' recommendation
that the final Bill should include the exclusion condition 'impairment
of intelligence'. If this is not included, then the definition
of mental disorder in the final Bill would include almost all
people with learning disability, who would then be liable to compulsion
at any time they declined medical treatment (including education
and training).
Such an approach is likely to lead to:
- The inappropriate detention of more
people with learning disability
- The growth of institutional care
(in stark contrast with the Government's stated aims in Valuing
People)
- The increased stigmatisation of
people with a learning disability
- The exacerbation of existing confusion
about mental illness and learning disability
- Increased fear among people with
a learning disability about voluntarily accessing mental health
services and hence a likely decline in early preventative treatment
Q3. 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?
While a balance clearly needs to be
struck between the rights of the individual and public safety,
Mencap believes any future Mental Health Bill must be first and
foremost a health and social care Bill and not a criminal justice
Bill. We do not believe the Draft Bill has got this balance right
yet. The Committee has already heard evidence that treatment
for mental illness nearly always begins with someone telling a
doctor or psychiatrist that they think they have a mental illness.
As such, neither someone with a mental illness nor the community
in which they live is best served by a law which prevents this
interaction or drives people away from seeking the help they need.
As well as further stigmatising people
with a learning disability and creating unhelpful and unnecessary
apprehension among those people with a learning disability who
do have a mental illness, it may well have knock on effects
for the treatment of other illnesses. As Mencap's Treat me
right! report demonstrated, people with a learning disability
are already the least likely group to seek or receive appropriate
medical care and treatment.[18]
The last thing that is needed to improve this already dire situation
and to encourage more people with a learning disability to seek
medical help is the message (however wrong in reality) that they
could be locked up simply for having a learning disability.
We are particularly concerned by clause 9, sub-section
4, of the Draft Bill which states that it is necessary that medical
treatment be provided to the patient:
a) For the protection of the patient
from -
(i) Suicide or serious self-harm, or
(ii) Serious neglect by him of his health
or safety, or
b) For the protection of other persons
Mencap believes that the threshold for
protecting the patient under (a) is acceptable but that the threshold
for protecting other persons under (b) is too low. We are very
concerned that people with a learning disability who might be
displaying challenging behaviour - behaving noisily or being a
nuisance for example - may fall foul of this condition. We believe
that the threshold for the protection of other people should be
raised.
Q4. Are the proposals contained in the Draft Mental
Health Bill necessary, workable, efficient, and clear? Are there
any important omissions in the Bill?
While endorsing what the MHA has said
in response to this question, we would simply like to highlight
that experts with many years experience in the mental health field
are having great difficulty understanding the complexities of
this Draft Bill. As the Mental Health Act Commission said in
its evidence to this Committee: "The likelihood of the Bill
being misapplied is greatly increased in proportion to the opacity
of its construction. Mental health law must be accessible to
persons without legal qualifications for it to be effective."[19]
People with a learning disability will have great difficulty
attempting to understand this piece of legislation. We are grateful
that the Government has produced an accessible version of the
Draft Bill and recognise that the full Draft Bill's complexities
are, to some extent, a necessary evil. However, we feel that
the need for this Bill to be widely understood adds weight to
the argument for there to be clear principles on the face of the
Bill. The introduction of clear principles in the Mental Capacity
Bill did assuage some of the initial fears held by people with
a learning disability about that Bill. We feel similar clear
principles on the face of the Mental Health Bill will have a similar
effect.
Q8. Is the Draft
Mental Health Bill adequately integrated with the Mental Capacity
Bill (as introduced in the House of Commons on 17 July 2004)?
Mencap feels that it is wholly unsatisfactory
to be trying to assess whether the Draft Mental Health Bill is
sufficiently integrated with the Mental Capacity Bill when we
do not yet know precisely what will be in the Mental Capacity
Act. At the time of writing, it seems unlikely that the Government
consultation following the European Court of Human Rights Bournewood
judgment H.L. v United Kingdom will be finished by the
time the Mental Capacity Bill has completed its passage through
Parliament. We are concerned that if Bournewood is dealt with
under the Mental Health Bill, it could be two years or more before
appropriate legislation is finally on the statute book.
Wherever the Bournewood issue is dealt
with, fundamentally, the rights and safeguards should be the same
under both Bills. The current provisions in the Mental Capacity
Bill are woefully inadequate and, in our opinion, will not prevent
another 'Bournewood' type situation. The following safeguards
must be put in place to protect the estimated 50,000 patients
who may be affected by the Bournewood ruling:
- A care plan which is subject to
independent review
- The appointment of a Nominated Person
who would be consulted about treatment and discharge and who could
apply to the Court of Protection
- Access to the Court of Protection
together with no-strings legal aid
- Access to mental health / legal
/ independent advocates as appropriate who should also have an
automatic right to apply to the Court of Protection on the patient's
behalf
- Special authorisation for ECT and
serious non-emergency treatment should also be required before
approval of the treatment plan is given.
Clearly, even when the issue of informal
incapacitous patients has been properly dealt with, there is going
to be considerable scope for overlap between the two Bills and
for psychiatric patients to be subject to both regimes - a fact
which is likely to cause confusion and dilemmas for professionals
and service users alike. However, we feel this is a reflection
of the complexities of the issues involved rather than poorly
considered legislation.
Thank you for giving Mencap the opportunity
to contribute to this consultation and we hope you find our response
helpful.
Naturally, if you would like to discuss
any of the issues raised in further detail please do not hesitate
to contact me directly on 020 7696 5556 or David.Congdon@mencap.org.uk.
Yours sincerely
David Congdon
Head of External Relations
17 Valuing People: A New Strategy for Learning Disability
for the 21st Century, March 2001, p59 Back
18
Treat me right! Better healthcare for people with a learning disability,
June 2004 Back
19
Memorandum from the Mental Health Act Commission, 12 October 2004,
p1 Back
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