Lord Carlile of Berriew
DMH 382 Mental Health Alliance
House of Lords
London
SW1A OAA
22/11/2004
Mental
Health Alliance
C/o
Mind
15-19 Broadway
Stratford
London
E15 4BQ
Dear Lord Carlile,
Thank you for the opportunity to put
Mental Health Alliance views to the Joint Scrutiny Committee on
3rd November. During the session you invited us to
present any further information, as well as the answers to questions
we had insufficient time to address and clarification on some
of the points raised during that session. Accordingly I have outlined
in this letter some of these issues.
Introductory statement
You requested us to not make an introductory
statement to the committee. I would have liked to explain the
nature of our submission and the reason for its length. As you
are aware we have 67 member organisations, may of whom took part
in providing text and comments for our submission, on the basis
that they would not themselves submit their own individual written
evidence, or if they did so, it would be short and limited. I
discussed this with one of the clerks of the committee. With
that in mind you may find it useful to hear oral evidence from
members who did not represent us on 3rd November, on
issues that are covered in the MHA submission (but not necessarily
in their own). I am thinking for instance of the Mental Health
Nurses Association, the Royal College of Nursing, the Manic Depression
Fellowship, Maca, the British Psychological Society, Turning Point,
Independent Mental Health Advocates, the Black and Minority Ethnic
Network and Young Minds who have all taken leading roles in our
work.
ADMISSION TO COMPULSORY POWERS
Mr Loughton, Baroness Mcintosh and Mr
Prosser all raised the issue of making the relevant conditions
tight enough to prevent abuse. It is important to recognise that
the law can be made much tighter as a result of the cumulative
effect of several changes. In summary the Alliance recommends
that the exclusions are reinstated in the Bill and that the conditions
are made tighter by:
- Requiring as now that the patient
be in hospital for assessment;
- Requiring in all cases that the
patient shows an impaired decision making capacity;
- Specifying that treatment must be
demonstrated to be of the therapeutic benefit to the patient;
- Raising the threshold for people
who are seen to be a risk to other to require "serious harm"
to others. This would replace wording that the patient needs
treatment for the "protection" of another person:
- Requiring in all cases that
compulsion must be necessary to provide treatment, thus ruling
out the possibility that someone who was prepared to accept treatment
could be detained.
COMPULSION IN THE COMMUNITY
If there is to be compulsion in the
community extra criteria would be required. In our view
it should only be ordered by the Tribunal if extra criteria were
met. These should include
- demonstration that appropriate services
are available in the community to meets the needs of the patient
- the patient has the ability to comply
with the conditions for treatment and supervision provided in
the order;
- and a history of previous compulsory
admissions to hospital and relapse upon release has occurred (the
Saskatchewan legislation for instance mentions three previous
episodes as one criterion).
The Alliance position on community treatment
orders or non-resident orders is set out in our submission. We
do not approve at all of community orders while the definition
and conditions are as broad as they are now. As we state in our
submission we do not believe the case has been made for their
introduction but are aware that the government is committed to
them and so feel we need to engage with the issue. We would only
see a place for them if the extra criteria we specify, or some
like them, were already defined in the Bill.
OVERSEAS JURISDICTIONS
We have examined the law in some Australian states
(New South Wales, Victoria, Western Australia, South Australia
and the ACT), in New Zealand and in most Canadian provinces.
We have consulted the Irish and Scottish Acts and read some comparative
research on 15 EU jurisdictions. We find however that the common
law jurisdictions provide more fruitful comparisons because of
the similarity of approach and of legal enforcement mechanisms.
We would be happy to provide the Committee with more detailed
provisions if they would be helpful to you.
I enclose two documents, a paper on
community treatment orders and one on advance directives - both
papers done by Alliance members. The latter may be useful to explain
the legal position of advance directives under the current Mental
Health Act.
RESOURCES
We did not have a chance to answer the
question on resources but I am aware that these issues were addressed
by the Kings Fund and Sainsbury Centre and do not have anything
to add to their oral evidence.
Yours sincerely,
Rowena Daw,
Chair, Policy Group
Mental Health Alliance
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