DMH 59 Memorandum from the Welsh Assembly
Government's Learning Disability Implementation Advisory Group
The Welsh Assembly Government established
the Learning Disability Implementation Advisory Group to advise
it on implementation of the All Wales Strategy for People with
Learning Disabilities. It has
wide membership representing stakeholder
interest groups, including people with learning disabilities,
family carers, statutory agency professionals, voluntary bodies.
It has two Co-chairs, Professor David Felce from Cardiff University
and Mr Glayne Walker from Caerphilly People First. The LDIAG considered
many aspects of the Bill together with related legislation including
the current Mental Health Act (1983) and the Mental Capacity Bill
in a recent meeting. The following summarises the main concerns.
1. The need for reform of mental health
legislation is understood and supported. It is important that
such reform is fit for our current times and represents an advance
in providing opportunities for better treatment and protection
for people with mental health problems. A Mental Health Act does
not stand alone in this, greater investment in the provision of
a wide range of skills and services together with work on public
awareness, reduction of stigma and tackling some of the contributory
factors to mental health such as poverty, discrimination and employment
are all essential.
2. For people with learning disabilities,
as with anyone else, new legislation must represent a step forward
and must be fair, ethical, practical and effective. In our view
this Draft Bill is none of these. We believe that it is unfair,
discriminatory, potentially stigmatising and unworkable.
3. Under present legislation, people
with learning disabilities may come under the remit of the Act
if they are suffering from mental disorder i.e. mental illness,
mental impairment, severe mental impairment or psychopathic disorder.
The category of mental impairment requires not simply that a person
has a learning disability (impairment of intelligence and / or
social functioning) but that it is also associated with "abnormally
aggressive or seriously irresponsible conduct". While this
terminology is not perfect, the development of a body of case
law over time has enabled a focussed, needs-based use of the Act
for people with learning disabilities.
4. The Draft Mental Health Bill has
a single definition of mental disorder, "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
encompasses a wide range of causes of dysfunction of the brain,
including intellectual impairment. If there was any doubt that
this would be the case then one only has to consult the Explanatory
Notes (page 11) where it states that "examples of a mental
disorder include schizophrenia, depression or a learning disability".
More starkly still, in the section on "What the words mean"
in the Easy-Read version of the Bill (page 25) Mental Disorder
means "having a mental health problem or illness, this includes
having a learning disability". Having a learning disability
is not equivalent to having schizophrenia or depression
(though some people with learning disabilities may suffer from
these mental illnesses). Learning disability (intellectual impairment
) is not in itself a mental health problem, nor is it necessarily
an illness.
5. If there is a broad definition of
mental disorder then we would have hoped that the criteria for
compulsion under this Bill would have been narrow in order to
prevent the unnecessary and inappropriate detention of a large
number of people. This is not the case and we are particularly
concerned that there is no longer a clear requirement of therapeutic
benefit arising from treatment in order to detain someone under
the Act. This has the potential to lead to a greater number of
people being detained for longer.
6. Part 4 of Clause 9 (describing the
conditions to be satisfied before someone can be brought under
the formal powers in Part 2 of the Bill) requires that "medical
treatment cannot lawfully be provided to the patient without the
patient being subject to Part 2 of the Bill". We are aware
of the progress of the Mental Capacity Bill, under which health
and social care could be provided to people who lack the capacity
to decide for themselves. Many people with learning disability
requiring medical treatment (and treatment as defined in the Draft
Bill) would lack such decision-making capacity and, provided there
were adequate safeguards could be treated appropriately under
the provisions of the Mental Capacity Bill once enacted.
7. This leads us to conclude therefore
that the Draft Mental Health Bill is only concerned with the compulsory
treatment of people who have the capacity to decide for themselves
on whether or not to accept treatment. In our view, no distinction
should be drawn between consent to treatment for a mental illness
and to treatment for a medical illness where the individual is
capable of making that decision. Compulsion to treatment against
the person's wishes is unethical and unfit for modern legislation.
8. People with learning disabilities,
their families and carers, knowing that an individual with a learning
disability can be subject to a Mental Health Act without a clear
requirement that they have a treatable mental health problem are
likely to regard it as something to be feared rather than something
to protect. There are already difficulties in interpreting the
aetiology of challenging behaviour and its relationship to psychiatric
diagnosis among people with learning disabilities. Such difficulties
and those relating to appropriate medical and non-medical treatment
could be exacerbated without a narrower definition of mental disorder
within the proposed Bill.
9. In this context, we are concerned
about the proposal for who can apply to the appropriate authority
for an assessment of whether the relevant conditions are met for
application of the provisions of the Bill. Currently, this is
restricted to an Approved Social Worker or the patient's nearest
relative. Opening the possibility that any individual can make
such an application is worrying as it could provide opportunity
for members of the community to object to the presence of neighbours
with learning disability on prejudicial grounds.
10. We are concerned about the abolition
of the Approved Social Worker in favour of Approved Mental Health
Professionals, a role that does not necessarily have to be filled
by a social worker. We believe that the ASW role in the past provided
an important link between health and social services, ensuring
that the latter maintained an ongoing commitment to the social
care of people subject to the Mental Health Act. If the AMHP were
not a social worker, we fear that it would be easy for the local
authority to reduce their commitment to these individuals.
11. Many people with learning disability
have long established and effective working relationships with
an advocate. Were they to be detained under the new Act as it
is proposed, our understanding is that they would have to be represented
by a different, mental health advocate. This is an unhelpful disruption
to good advocacy relationships. It may take advocates a long time
to get to understand and know an individual with learning disability,
their past, their family, their own wishes and those of others.
We find it difficult to imagine how a mental health advocate would
be able to fulfil this task adequately and effectively without
a clear requirement for working alongside already established
advocates.
12. In conclusion, we would strongly
urge you to consider our view, that learning disability, or intellectual
impairment alone, should be excluded from the definition
of mental disorder within the Bill and as a ground in itself for
the application of the provisions of the Bill. This would pave
the way for a Mental Health Act, subject to many other improvements,
to be used only where an individual with a learning disability
has a co-existing mental illness. (We are aware that this is the
case in New Zealand ). The foundation of a credible, ethical and
integrated piece of Mental Health Legislation, that is consistent
with human rights, lies in the issue of an individual's ability
to make their own decisions about their care and treatment. The
tone and implications of this proposed legislation are entirely
inconsistent with the fundamental principles and values underlying
the All Wales Mental Handicap Strategy (Welsh Office 1983)*, a
strategy that was rekindled and endorsed in the Welsh Assembly
Government's recent response to the Learning Disability Advisory
Group's report "Fulfilling the Promises".
13. As currently drafted, we consider
the provisions of the Bill to be contrary to the principles of
the All Wales Strategy in applying to the complete population
so labelled without distinction. The overly broad definition of
mental disorder is unjust in establishing a legal framework for
a pre-determined sector of the population in the way that would
be unthinkable if it were done on the grounds of ethnicity, religious
belief or colour. The Bill is discriminatory in establishing this
group of people as more vulnerable to its provisions than other
people. It is stigmatising in equating learning disability with
mental illness and mental disorder and with issues of public safety.
More needs to be done to establish a positive reputation for people
with learning disabilities consistent with the first and third
principles of the All Wales Strategy*. The Bill will not help
in this regard and represents a regressive step in legislation
for people with learning disabilities.
* The three principles of the All Wales
Mental Handicap Strategy established the rights of people with
learning disabilities:
(i) to normal patterns of life within
the community (including as full a range of life opportunities
and choices as others, and the opportunity to become respected
members of the community and not devalued because of their intellectual
impairment)
(ii) to be treated as individuals (including
the recommendation that no universally applicable formula or pattern
of service should be prescribed for all their needs), and
(iii) to receive additional help and
support from the communities in which they live and from professional
services in developing their maximum potential.
October 2004
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