Joint Committee on the Draft Mental Health Bill

Joint Committee on the Draft Mental Health Bill Written Evidence

DMH 21 DAVID HEWITT

THE DRAFT MENTAL HEALTH BILL

A SUBMISSION

TO THE

PARLIAMENTARY JOINT COMMITTEE

DAVID HEWITT

David Hewitt is a solicitor, and a partner in Hempsons, where he specialises in mental health law (and in particular, in the impact of the ECHR on the Mental Health Act).

NOTE

David Hewitt is a solicitor, and a partner in Hempsons, where he specialises in mental health law (and in particular, in the impact of the ECHR on the Mental Health Act).

For the last five years, David has represented NHS bodies and health care practitioners. However, for 13 years prior to that he represented mental health patients and their families.

Since 1995, he has been a member of the Mental Health Act Commission. He is also on the editorial board of the Journal of Mental Health.

This submission is made in a personal capacity.

David Hewitt

Hempsons Solicitors

Portland Tower

Portland Street

Manchester

M1 3LF

Tel: 0161 228 0011

Fax: 0161 236 6734

E-mail: d.hewitt@hempsons.co.uk

1. Is the Draft Mental Health Bill rooted in a set of unambiguous principles? Are these principles appropriate and desirable?

1.1 The Draft Mental Health Bill seems to be motivated by two distinct, even contradictory, desires: to create new rights while also addressing the perception that the public believes itself to be at risk.

1.2 The Government has not given a proper explanation of why a new Mental Health Act is necessary. Even before the new Draft Mental Health Bill, the Green Paper,[1] the White Paper[2] and the 2002 Draft Bill[3] suggested six motivating factors:

(a) There is a need to up-date the principles upon which mental health law is based.[4] The elimination of the Approved Social Worker ('ASW') will undermine one of the key principles of the Mental Health Act 1983 ('MHA 1983'): balancing the 'medical' and the 'social' models of mental illness.

(b) MHA 1983 no longer reflects the way mental health services are delivered.[5] If more patients are cared for in the community, that may be because there are too few beds for them. The Government has failed to explain why this reason makes it necessary to make the changes it has proposed.

(c) MHA 1983 has failed to protect patients and the public.[6] This reason is at the heart of the proposals. However, although it has asserted as much, the Government has not explained how the lack of a broad definition of 'mental disorder', for example, or the presence of the 'treatability test' have placed the public in danger. In fact, most of the (many) inquiries of recent years suggest that there are other reasons for patient suicides and homicides, reasons that the Draft Mental Health Bill does not address.

(d) Professionals have an inadequate knowledge of mental health legislation.[7] Why does it require a new Mental Health Act to cure this deficiency? Wouldn't the answer be to provide more and better training on the existing Act? The one group of professionals that does receive specialist training in mental health - ASWs - will see its role weakened under the next MHA.

(e) MHA 1983 has a too narrow conception of 'treatability'. See below.[8]

(f) The introduction of the Human Rights Act 1998 has created new obligations.[9] There is nothing in the ECHR to require all decisions to apply compulsion to be taken by an independent judicial body. Nor would the ECHR appear to require a broader definition of 'mental disorder' or 'relevant conditions' that are themselves broad and abolish the 'treatability test'.

1.3 The Government need not introduce a new Act; it could make all the truly necessary changes by amending MHA 1983. It did so before, when it introduced Supervised Discharge[10] and reversed the burden of proof in MHRT proceedings.[11]

2. Is the definition of Mental Disorder appropriate and unambiguous? Are the conditions for treatment and care under compulsion sufficiently stringent? Are the provisions for assessment and treatment in the community adequate and sufficient?

2.1 The definition is unquestionably broader than the one in MHA 1983. It does seem wide enough to cover epileptics and drunks. It might also cover those who have sustained traumatic damage to a fully developed brain (who are not caught by the current Act).

2.2 The Government believes psychopaths are escaping detention because they can't be treated.[12] It is wrong. If MHA 1983 is correctly applied, there are few circumstances in which those suffering from mental disorder (as currently defined) cannot be 'treated':[13]

(a) The current definition of 'treatment' is very wide,[14] and it is preserved in the Draft Bill.[15]

(b) The definition has been widened by the courts,[16] so that now, its purpose "may extend from cure to containment".[17]

2.3 Third Condition: Due to a shortage of resources, compulsory treatment has long been confined to those who suffer from serious and enduring mental illness, which they often manifest by harming or neglecting themselves or endangering others. Now and for the first time, compulsion will be confined to such people as a matter of law.

2.5 Fourth Condition: this says that a patient will be subject to the fewest restrictions consistent with his/her needs. However, it won't apply in the case of an adult "who is at substantial risk of causing serious harm to other persons." [19] This exception is justified neither by fact or experience, nor by the Government's own rationale.

2.6 The Fourth Condition and the proposal for 'non-resident' compulsion could be seen as examples of the 'least restrictive alternative' principle.[20] This is how the Government would like them to be seen. In its over-view document it says: "The intention of allowing patients to be under formal powers in the community is to provide greater flexibility to practitioners so that the principle of least restriction can be put into effect".[21] However, in the White Paper, the Government noted that under MHA 1983, "powers to require compliance with treatment are linked to detention in hospital". This, it said,

"does not […] support the processes of individual care planning that are needed to ensure that compulsory treatment will result in good health outcomes for patients and reduced risk. At the moment clinicians have to wait until patients in the community become ill enough to need admission to hospital before compulsory treatment can be given. This prevents early intervention to reduce risk to both patients and the public".[22]

The Government could be accused - not, perhaps, for the first time - of trying to appeal to two different, even antipathetic, constituencies.

3. 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?

3.1 The definition of 'carer' may not be sufficiently precise to avoid confusion or argument.

3.2 Even when selected without controversy, a patient's carer might come into conflict with his/her Nominated Person ('NP'). There would appear to be nothing in the Draft Bill to indicate how any such conflict is to be resolved.

3.3 The Draft Bill purports to compel the sharing of information about patients who are subject to compulsion. However, it provides no new powers - or protections - in that regard and (particularly in the case of the police) may raise expectations it cannot fulfil.

4. Are the proposals contained in the Draft Mental Health Bill necessary, workable, efficient, and clear? Are there any important omissions in the Bill?

4.1 The Draft Bill of 2002 contained detailed and robust safeguards for compliant, incapable patients who were not subject to compulsory powers.[23] Those safeguards have been omitted from the 2004 Draft Bill. The Government says this is because they have been shifted to the Mental Capacity Bill, but that is not so: the Mental Capacity Bill does not provide for the appointment of a NP for such patients,[24] nor does it give them the right to a care plan[25] or to apply to a tribunal.[26]

4.2 Following HL v United Kingdom, this deficiency must be addressed. The common law does not provide a lawful basis upon which incapable patients can be admitted to hospital.[27] In fact, the safeguards that the European Court of Human Rights ('ECtHR') held to be necessary to comply with ECHR, Article 5 - and which it found to be lacking in the common law - resemble those set out in the 2002 Draft Bill.[28]

6. Are the safeguards against abuse adequate? Are the safeguards in respect of particularly vulnerable groups, for example children, sufficient? Are there enough safeguards against misuse of aggressive procedures such as ECT and psychosurgery?

6.1 The proposals concerning ECT beg at least two significant questions:

(a) Is the requirement for consent (in the case of a capable patient) motivated by concern over the efficacy or effects of ECT? If so, is it appropriate that ECT may be administered to in-capable patients without their consent? Is it appropriate for ECT to be administered at all?

(b) Why are capable patients fit to refuse ECT but not anti-psychotic medication?

7. Is the balance struck between what has been included on the fact of the draft bill, and what goes into Regulations and the Code of Practices [sic] right?

7.1 It is unfortunate that so much has been left to documents that have not yet been published. For example:

(a) It is not possible to comment conclusively upon proposals for the appointment of the NP without knowing whom the relevant regulations will 'disqualify' and why.[29]

(b) There are several areas of mental health practice in which staff are in need of clear, comprehensive guidance. One of those areas is seclusion. However, there is no indication that such guidance will be provided in the Code of Practice.

9. Is the Draft Mental Health Bill in full compliance with the Human Rights Act?

9.1 The ECtHR has declined to give a definitive interpretation of what it means to be of "unsound mind".[30] Nevertheless, it should not be assumed that every use of compulsion on a person who is thought to meet the new, broad definition of 'mental disorder' will comply with ECHR, Article 5(1)(e).

9.2 The Draft Bill would diminish the force of the Code of Practice. It provides that the Code may be dis-applied in certain circumstances[31] or in the case of certain patients,[32] and that hospitals and practitioners need only "have regard" to it.[33] This represents a very different view of the status of the Code than the one put forward by the Court of Appeal in the Munjaz case.[34] The Court held that the Code must be respected unless there was "good reason" for departing from it. The Code must have such force, the Court decided, so that the interventions it covered could be said to be "prescribed by law" and so comply with ECHR, Article 8. If the Code is stripped of such force, there is, once again, the prospect of challenge under the HRA 1998 (and not just in respect of the practice of seclusion).

9.3 At first sight, the proposals for the appointment of the NP seem sensible. However, a patient's choice of NP may be disregarded by the AMHP if the person chosen is 'unsuitable'.[35] The Draft Bill does not suggest that this loaded word will be explained, or that guidance as to 'unsuitability' will be given, in rules, regulations or the Code of Practice. It gives the AMHP far too great a discretion; so much, in fact, that there might be a breach of undertakings the Government gave to the ECtHR.[36]

David Hewitt

11 October 2004

1 Department of Health, Reform of the Mental Health Act 1983: Proposals for Consultation, November 1999, Cm 4480 Back

2 Department of Health and Home Office, Reforming the Mental Health Act - Part I: The new legal framework, December 2000, Cm 5016-I; Department of Health and Home Office, Reforming the Mental Health Act - Part II: High risk patients, December 2000, Cm 5016-II Back

3 Department of Health, Draft Mental Health Bill, June 2002, Cm 5538-I; Department of Health, Draft Mental Health Bill: Explanatory Notes, June 2002, Cm 5538-II; Department of Health, Draft Mental Health Bill: Consultation Document, June 2002, Cm 5538-III Back

4 Green Paper, para 1.3 Back

5 Green Paper, paras 2.5-2.7; White Paper, para 2.6 and Executive Summary, para 4 Back

6 White Paper, Foreword, Executive Summary, para 2, and paras 1.14 & 1.15, 2.6, and 2.13 & 2.14 Back

7 Green Paper, para 2.8; White Paper, paras 1.14 and 2.6 Back

8 See para 2.2, below Back

9 White Paper, paras 2.9, 3.8 and 5.1, and Executive Summary, para 7; Draft Mental Health Bill 2002, Consultation Document, para 2.2, Annex, and Partial Regulatory Impact Assessment, Option 1, number 1 Back

10 Mental Health (Patients in the Community) Act 1995, c 52 Back