DMH 7 Memorandum received from Dr Michael
Cavadino
1. Dr Michael Cavadino is Reader in Law in the
Sheffield University Centre for Criminological Research, Department
of Law, University of Sheffield, author of several works on mental
health law including
Mental Health Law in Context: Doctors' Orders?,
Dartmouth, 1989; Community Control?', Journal of Social Welfare
and Family Law [1991] 482-493; 'Commissions and Codes: A
Case Study in Law and Public Administration', Public Law
[1993], 333-345; 'A Vindication of the Rights of Psychiatric Patients',
Journal of Law and Society, 24 (1997), 235-51; 'Death
to the Psychopath' (Editorial), Journal of Forensic Psychiatry,
9 (1998) 5-8; 'New Mental Health Law for Old: Safety-Plus
Equals Human Rights Minus', Child and Family Law Quarterly,
14, (2002) 175-89.
2. My article 'New Mental Health Law for Old:
Safety-Plus Equals Human Rights Minus', Child and Family Law
Quarterly, 14, (2002) 175-89, is appended. This article contains
my overall views and arguments concerning some of the main proposals
in the draft Bill, which also appeared in the 2000 White Paper
Reforming the Mental Health Act (Cm 5016). I also append
my article 'A Vindication of the Rights of Psychiatric Patients',
Journal of Law and Society, 24 (1997), 235-51.
3. I wish to respond briefly to questions 1 to
4, 6, 8 and 9.
4. Q1. Is the Draft Mental Health Bill rooted
in a set of unambiguous basic principles? Are these principles
appropriate and desirable?
In my opinion, no. I have set out the principles
which I argue are appropriate and desirable in the article 'A
Vindication of the Rights of Psychiatric Patients', appended.
I argue here that the right to autonomy should not be infringed
unless there is a 'vivid danger' of serious harm. The draft Bill
would allow much greater infringement than this.
5. 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)?
The philosophies of the two Bills appear to be seriously
at odds with each other. The Mental Capacity Bill attempts to
give effect, as far as is possible, to the autonomy and will of
the individual patient, including in respect of their decisions
to accept or refuse medical treatment, stating specifically that
a patient's right to choose will not be infringed simply because
his or her actual decisions are believed to be unwise. The draft
Mental Health Bill seems to be operating on a different principle
in allowing, for example, compulsion in cases where self-neglect
is feared.
6. Q2. Is the definition of Mental Disorder
appropriate and unambiguous?
I would argue that legislation of this kind should
only be concerned with mental illness and not 'personality
disorder'. Variations in personality should not be regarded as
medical disorders, especially when there is little good evidence
or agreement about the nature and aetiology of such 'disorders'
and over whether there is any appropriate treatment. If legislation
is thought to be required to deal with non-mentally ill dangerous
persons, it should be framed in terms of their verifiable dangerousness
rather than on what can only ever be a highly contentious diagnosis.
7. Q2. Are the conditions for treatment and
care under compulsion sufficiently stringent?
No, specifically clause 9(4), which allows compulsion
provided it is thought
'necessary -
(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,
that medical treatment be provided to the patient.'
Ground (a) should contain the requirement that there
is a substantial risk of the serious harm occurring in
the absence of compulsion.
Ground (b) should require that there is a substantial
risk of serious physical or psychological harm to another
person or persons. As (b) stands, compulsion could be 'justified'
on the basis that there is a small risk of nuisance to others,
since it does not say how great the risk needs to be, nor does
it define what others need to be 'protected' from.
8. These are not legal nuances but vital distinctions
in a liberal society. The freedom of the individual should not
be invaded unless there is good evidence of a significant risk
of a serious nature.
9. Furthermore, in conjunction with the broad
definition of mental disorder in cl. 2(5) and other provisions,
the Bill would allow people with diagnoses such as 'personality
disorder' to be detained indefinitely on the grounds that it is
'necessary for the protection of others' even if they have never
committed a violent or dangerous act. The 2000 White Paper (Cm
5016, Part II, para. 2.13) claimed that it would be 'highly unlikely
that any individual without a long track record of increasingly
serious offending will be affected by these new powers'. If this
is the intention, then the Bill could easily be amended to give
effect to it. It could for example state that long-term detention
for the protection of others (whether via civil or criminal proceedings)
may only be ordered where the patient has been convicted on two
or more occasions of offences of serious violence.
10. Q2. Are the provisions for assessment
and treatment in the Community adequate and sufficient?
Compulsory treatment in the community is an unjustified
infringement of liberty: see my article 'A Vindication of the
Rights of Psychiatric Patients' (appended). Note also recent Australian
research indicating that such community treatment orders, far
from acting as a less intrusive and more effective alternative
to hospital admission, actually lead to a higher number
of admissions (S. R. Kisely, J. Xiao and N. J. Preston,
'Impact of compulsory community treatment on admission rates:
Survival analysis using linked mental health and offender databases',
British Journal of Psychiatry (2004)
184: 432-438).
11. 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?
Q4. Are the proposals contained in the Draft Mental
Health Bill necessary, workable, efficient, and clear?
No, see above, paras. 4-10.
12. Q6. Are the safeguards against abuse adequate?
In cases where the Bill allows treatment to be imposed
on an unwilling patient, clear criteria should be spelt out. These
should include that the patient's refusal is unreasonable and
is a result of mental disorder. (It is probably more common at
present for a doctor providing a second opinion to ask, not whether
the patient's refusal might be reasonable, but whether the doctor
wishing to treat is reasonable in wishing to do so. This is the
wrong question. It is not the doctor's autonomy which is at stake,
but the patient's.)
13. Q9. Is the Draft Mental Health Bill in
full compliance with the Human Rights Act?
I doubt it: see my article 'New Mental Health Law
for Old' (appended) and above, paras. 4-12.
Dr Michael Cavadino
Reader in Law
Sheffield University Centre for Criminological Research
Department of Law
University of Sheffield
7 October 2004
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