DMH 289 Religious Society of Friends (Quakers)
Submission to Select Committee on the Draft Mental
Health Bill
Introduction
1. The Religious Society
of Friends (Quakers) has long-standing experience of working with
people who have suffered from emotional distress. We consider
that the values of Trust, Autonomy, Consent and Truth need to
underpin mental health legislation and that everyone has the potential
for psychological growth and development through loving relationships.
No one is born evil. Good mental health is rooted in loving and
supportive relationships and cannot be considered in isolation
from its social and cultural context. The Religious Society of
Friends has previously made submissions to the joint Home Office/Department
of Health consultation paper on 'Managing Dangerous People with
Severe Personality Disorders - Proposals for Policy Development.'
2. We consider
that there is a need for a sea-change in culture regarding mental
health. We remain concerned at the extent to which compulsion
rather than a right to mental health services is the cornerstone
of the present Draft Bill.
3. This submission will
not seek to address the whole range of the Bill and is confined
to your question three: "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?"
Human Rights
4. We have serious concerns
about the human rights compatibility of aspects of the Bill. Of
the ten Declarations of Incompatibility under the Human Rights
Act that have so far been made and upheld in the Higher Courts,
three relate to mental health legislation. [R (On the Application
of H ) v London and North and East Region Mental Health Review
Tribunal (Secretary of State for Health intervening ) [2001] EWCA
Civ 415 , breach of Article 5 (1) and (4), R (D) v Secretary
of State for the Home Department [2002] UKHL 46, breach of
Article 5 (4) and R ( On the Application of FM ) v Secretary
of State for Health [ 2003] ACD 389 ]. In the area of mental
health, it is vital that adequate checks and balances are in place
especially when people who may have committed no criminal offence
are nevertheless to be detained, whether for their own good or
that of others. Any legal framework for treatment needs to ensure
that the means of compulsion is proportionate to the ends that
it serves of personal and public safety.
5. We are particularly
concerned at the preventive detention of so called 'untreatable'
'personality disordered patients' where they have been neither
tried nor convicted of a criminal offence. In an appendix to the
Joint Committee on Human Rights' Twenty Fifth Report,[41]
the former Minister of State at the Department of Health, Jacqui
Smith considered that powers for the preventive detention of dangerous
offenders in Mental Health (Public Safety and Appeals) Scotland
Act 1999 were ECHR compatible, citing the House of Lords decision
in R v Secretary of State for Scotland 1999 SC (HL). As
acknowledged by the Minister however the "power of detention
applied only in respect of people who had been convicted of serious
criminal offences who were being treated for mental disorders
and were restricted patients." These limitations do not appear
to apply in relation to the present Draft Bill, which allows for
more extensive powers including the preventive detention of patients
who have not had contact with the criminal justice system. It
is hard to see how such powers would be compatible either with
Article 5 ECHR or with the spirit of proportionality that informs
the Convention.
6.1 We welcome certain
aspects of the revised Draft Bill that seek to maintain a sensitive
balance between human rights and public safety. In particular
we welcome:
6.2 The right of patients
with capacity to refuse Electro Convulsive Therapy;
6.3 The requirement for
individual written care plans for compulsory treatment;
6.4 The greater choice
of nominated person in the place of nearest relative once a decision
has been made to detain;
6.5 The strengthening
of safeguards in respect of children who are being subject to
treatment on the basis of parental consent.
6.6 Rethinking
of previous suggestions that compulsory treatment could be provided
in prison.
7 We remain concerned
at the extent to which the Bill is premised on a principle of
compulsion at the expense of a commitment to a 'right to treatment.'
By expanding the definition of both 'Mental Disorder'
and 'Treatment' the Bill provides the scope for the compulsory
detention of a far wider group of people for longer periods of
time than is the case under MHA 1983. The Bill also provides for
an open-ended compulsion for treatment in the community and has
the potential for co-opting psychiatrists into the role of public
control.
Definitions within the Bill
8. Clause 2 (5) 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:
9. Clause 2 (7) includes
in the definition of treatment:
(a) nursing,
(b) care,
(c) cognitive therapy, behaviour, counselling or
other psychological intervention,
(d) habilitation (including education, and training
in work, social and independent living skills), and
(e) rehabilitation (read in accordance with
paragraph (d)).
10. The breadth of the
definition of "mental disorder" and the more expansive
definition of "treatment" beyond its conventional psychiatric
sense to include "rehabilitation" and "training
in work" expands those detainable beyond the scope of MHA
1983. The proposed definition opens the prospect that "personality
disordered" people could be subject to preventive detention
even where the personality disorder is not serious and they have
been neither tried not convicted of a criminal offence. The widening
of the current role of Approved Social Worker to include psychiatric
nurses further erodes independent safeguards against detention.
While high profile cases such as that of Christopher Bland have
been cited in support of the need for stronger powers for the
detention of dangerous patients, a more coercive mental health
system is not necessarily the best guarantee of public security.
Christopher Bland had in fact recently requested and been refused
treatment. The more coercive a system becomes the less likely
it is that potential patients will seek help. The most pressing
need within the Mental Health system is not for greater compulsion
but for greater resources and for a right to treatment. Greater
use of compulsion can be no substitute for adequate public funding
and high quality public education in relation to mental health.
11. We also detect a degree
of circularity in the definition in Clause 2 (5). The test of
disability or disorder of the mind or brain is presumably
evidence of an impairment of or a disturbance in the functioning
of the mind or brain. But who is to judge the extent to which
the subject's mind or brain is impaired or disturbed? In the absence
of any completely objective test for mental impairment or disturbance,
we should be very careful indeed about the powers that we delegate
to practitioners in the mental health field. Associated with this
is the concept of "cure". It is well known, for example,
that episodes of clinical depression can reoccur: is a person
who was treated for clinical depression ten or twenty years ago
and who has not experienced a relapse still suffering from a disability
or disorder of the mind or brain? We must be very careful
indeed before curtailing the liberty of someone simply on suspicion.
12. We are particularly concerned at the philosophy
inherent in the concept of personality disorders that some people
are untreatable. We do not consider that medicine should be used
as a substitute for criminal justice. We consider that dynamic
assessment procedures can be for safer and more therapeutic than
a static approach to the assessment of patients. It cannot be
right that people that people who have not been convicted of a
criminal offence and are not considered treatable, in the conventional
medical sense, should be liable to indefinite treatment under
Mental Health Act powers.
13. Clause 9 of the Bill
provides that each of the following criteria should be met for
compulsory treatment:
9 (3) …the mental disorder is of such a nature
or degree to warrant the provision of medical treatment to him.
(4) …that it is necessary -
(a) for the protection of the patient from
-
(i) suicide or self-harm, or
(ii) serious neglect by him of his
health or safety, or
(b) for the protection of other persons,
14. The disjunctive construction
"nature or degree" in relation to mental disorder, further
expands the breadth of those who could be considered 'sectionable.'
The intention of providing powers to treat people for their own
health or safety, even where such people clearly have "capacity
to consent" undermines the principle of informed consent.
The power to provide for compulsory treatment "for the protection
of other persons" without any qualification of the level
of that risk sits uneasily within a framework of medical ethics.
15. The increased use
of compulsion to cover those living in the community conflicts
with the clinical principle of consent. While we welcome an approach
to mental health that seeks to adopt the least restrictive alternative,
it is important that this must be genuinely voluntary and it would
appear that the safeguards for compulsory treatment in the community
are inadequate. Where compulsion is used to ensure a patient`s
taking of medicine to prevent readmission to the hospital, the
patient is faced with a reverse onus of proof for ending the compulsory
order, an onus that would be effectively impossible to discharge.
16. Free Treatment
While free treatment is current available to those
discharged under MHA 1983 so long as it is required, Clause 68
of the Draft Bill would limit this to a period of six weeks. It
is invidious that treatment in the best interests of the patient
should be unavailable free of charge if it is likely to prevent
a relapse of a patient and his/her subsequent readmission to hospital.
17. Prison
It is axiomatic that imprisoned patients retain
all those rights that are not taken away as a necessary result
of their imprisonment [Raymond v Honey [1983]
1 AC 1]. There are still for too many people in prison whose mental
ill health goes unrecognised and far too many voluntary patients
whose standard of care falls substantially below that in the NHS.
A right to good quality health care cannot be taken away simply
by virtue of detention.
Recommendations
18. We would recommend in particular:
- Rethinking of the grounds for coercion on
the basis of a philosophy that compulsory treatment should always
be a last resort
- An emphasis on the increasing availability
of treatment without stigma as medical right
- Right for after care treatment as long as
is necessary
- Greater resources for preventive work especially
with young offenders and at the earliest age
Parliamentary Liaison Secretary, Religious Society
of Friends (Quakers), Friends House, 173 Euston Road, London NE1
2BJ
41 11th November 2002 Back
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