Joint Committee on the Draft Mental Health Bill Written Evidence


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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