Memorandum from the Manic Depression Fellowship
MDF is a national user led organisation for
all people who are affected by manic depression (bipolar disorder).
Set up in 1983, we have 4,500 members, a network of 126 groups
across England and Wales, and we provide information and support,
including our innovative user led and user facilitated Self Management
Training and Steady courses, to all those who are affected by
MDF is one of the original core members of the
Mental Health Alliance, recognising the importance of working
with others in the field to develop a response to the Government's
proposals for new mental health legislation. We support the Mental
Health Alliance submission to the Joint Scrutiny Committee.
Although we had some serious concerns with the
original Expert Committee report, on the whole we welcomed the
proposal to introduce new mental health legislation. In particular,
we were heartened by the introduction of the concept of capacity
as a part of the assessment for compulsion; the recognition of
advance agreements; and the involvement of advocates.
We have been successively disheartened by the
various responses to the Expert Committee Report, and the draft
bills. Our position following the publication of the latest draft
Mental Health Bill is that given the choice between the current
draft and the Mental Health Act 1983, we would prefer to stay
with the 1983 Act (as amended to comply with the Human Rights
Act) because we feel that this better serves the needs of our
members. We are profoundly disappointed to make this statement.
1. Is the Draft Mental Health Bill rooted
in a set of unambiguous basic principles? Are these
principles appropriate and desirable?
No, it is not. A guide is given about what the
principles should cover, which in itself is limited in scope,
and a power is given for any of the principles not to apply to
particular categories, which does not support the notion of "unambiguous
There should be a statement of general principles
on the face of the Bill. It is insufficient to have these to a
code of practice; the general principles should be fundamental
to the content of the Bill and consequently need to be enshrined
within the Bill to ensure that its provisions are consistentotherwise
the code of practice must fit the provisions of a published Act.
The general principles must apply to everyone who is subject to
the Act; there should be no power to disapply a general principle.
Please see the Mental Health Act submission
for a list of principles that any statement should include in
The definition of mental disorder is too broad.
As it stands, it could include people whose mental functioning
is impaired, but who do not have underlying mental health problems.
Exceptions need to be made clear to ensure that practitioners
are given sufficient guidance to focus on underlying mental health
problems in making assessments for compulsion.
The Manic Depression Fellowship supports the
exceptions proposed by the Mental Health Alliance in their submission.
No, the conditions for treatment and care under
compulsion are not sufficiently stringent. The criteria for compulsion
are discriminatory, coercive and too broad. They are discriminatory
because they treat people with mental health problems differently
to those with physical health problems. In the words of the Mental
Health Alliance, "People who are physically ill are not detained
in hospital against their will because they refuse to take the
treatment that should improve their condition; neither should
people with mental illness." If a person has capacity to
make a decision about his/her treatment, he/she should be allowed
to do so.
They are coercive because they impose compulsion
on one category of patient regardless of their willingness to
take treatment. If people engage with their treatment, they are
far more likely to continue with it; if treatment is imposed,
people are far more likely to resent it and consequently try to
avoid it. It is bemusing that Government apparently wants to alienate
those whose positive engagement would do much to reduce risk.
They are too broad because:
mental disorder has a very broad
definition in the bill;
medical treatment has a very broad
definition in the bill;
"for the protection of other
persons" is not qualified or clarified in any way so the
breadth of scope is undefined and could be interpreted very loosely;
the fifth condition is likewise very
loosely worded, so that it is unclear what the purpose of "appropriate"
medical treatment is, and therefore makes it difficult for mental
health practitioners to determine what it is meant to achievewill
it stabilise a person's condition? Will it improve it? What does
"all other circumstances of his case" mean? What bearing
does that have on the appropriateness (or otherwise) of any medical
Finally, the clear emphasis of the conditions
for compulsion appears to be on safety of others, rather than
the well-being of people with serious mental health problems as
evidenced by c. 9 (8), "a determination as to whether a patient
is at substantial risk of causing serious harm to other people
is to be treated as part of the determination as to whether all
of the relevant conditions appear to be or are met in his case."
This reinforces the already considerable distrust that people
with mental health problems feel towards the proposed new legislation,
that their needs are not paramount, that fears about the well-being
of others are more important, and that they remain second class
citizens in the eyes of the state.
MDF believe that no one should be forced to
have treatment against their will if they have capacity. Compulsion
should only be used where it is necessary to effect treatment;
and the person lacks capacity; and there is a risk of serious
harm to the person himself or to others if treatment is not given.
If treatment is given under compulsion, there should be a therapeutic
benefit for the patient ie. an improvement in the mental disorder,
or preventing or reducing deterioration in the person's mental
or physical health.
No, they are not. There is much concern amongst
our membership, and service users in general, about the potential
to be subject to a non-residential treatment order (NRO). These
concerns arise from the fear that personal autonomy outside hospital
will be eroded, so that disagreements with mental health professionals
about treatment can now be overridden by use of an NRO. This in
turn will reinforce the perception of being a second class citizen,
one who does not have the same rights and choices as other members
of society; and that defensiveness and the blame culture will
lead mental health professionals to use NROs as a means of protecting
themselves in case anything should go wrong.
If a person is seriously unwell and is unwilling
to take treatment to improve his/her condition, hospital provides
a contained and controlled environment where that person's condition
can be monitored, managed and improved. It is difficult to see
how an NRO would provide that person with the best support. If
a person is seriously unwell, but wants to take treatment to improve
his/her condition, there is a choice between hospital and community
but (1) that does not involve compulsion and (2) it rests on what
the person would prefer and the assessment of the mental health
professionals, in consultation with those who know the person
well. If agreement cannot be reached or the situation deteriorates
compulsion may then need to be considered. However, treatment
under compulsion should always be in hospital, because it should
only ever concern those who are seriously unwell and who present
a high risk of serious harm to themselves or others.
MDF does not support any compulsory treatment
in the community. Manic depression is an episodic condition, which
means that people experience episodes of mania or depression interspersed
with periods of stability (which may last for years). Our members
are understandably concerned that they could be subject to compulsion
in the community at times when they are well, as a precaution
against an episode in the future. This will militate against individual
efforts to live successfully with manic depression because personal
autonomy is effectively removed. A key part of our self management
programme is taking responsibility for your condition; an NRO
takes this away.
The Mental Health Alliance has carried out an
analysis of the evidence about the efficacy of community treatment
orders in other jurisdictions, and we refer you to their submission
for more detailed information about this. However, our understanding
that one of the key pre-conditions necessary for compulsory treatment
in the community to have any benefit for users is for the appropriate
services to be high quality, well developed and widely available.
This is certainly not the case in England.
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
No, it does not. We have said above that the
Bill is discriminatory against people with mental health problems.
It lacks reciprocity, creating scope for many more people to be
subject to compulsion whilst failing to ensure that they will
be supported to make their beliefs, views and judgements known
and taken into account as a part of the clinical decision-making
process. To achieve a more effective balance:
Advance agreements should be included
in the bill and accepted as a part of the clinical decision-making
People should have access to an independent
advocate if they are: liable to compulsory treatment; at the point
of examination for assessment; under assessment; during periods
of compulsory treatment; experiencing a mental disorder but do
not need the exercise of compulsion; under aftercare arrangements.
The nominated person should have
enhanced powers, similar to those of the nearest relative under
the current 1983 Act. Health professionals should not be allowed
to judge the suitability of the nominated person and impose their
own choice. We support the Mental Health Alliance recommendations
in connection with the nominated person.
The concerns for public and personal safety
from people experiencing mental health problems are disproportionate
to the reality. Taylor and Gunn's research showed that the public
are at risk from 600-700 offences per year recorded as homicide,
compared with about 40 homicides by the mentally ill per year
(and that number was shown to have reduced since the 1950s). Moreover,
the common underpinning factor in homicide by the mentally ill
has been service communication failures, not the inability or
failure to use compulsion.
The emphasis in the Bill on safety and the protection
of others simply perpetuates the myth that there is a link between
dangerousness and mental health, and reinforces the stigma faced
by people living with mental health problems.
We agree with and refer you to the Mental Health
Alliance submission on this question. However, we particularly
would like to focus on the omission of advance agreements. There
is a strong interest within our membership in using advance agreements
as a means of communicating, when well, wishes and needs for treatment
and wider care issues when unwell. These are as wide-ranging as
treatments, whom should be notified about an episode and in what
way, who looks after any children, pets, pays any bills etc. Our
highly successful self management programme (recognised as a model
of excellence in the Chief Medical Officer's Expert Patients Report)
uses advance agreements as a means of planning for the future.
A part of their construction is that the agreements must be communicated
with relevant mental health professionals, and one of the many
benefits of the programme is that participants often report improved
communication with their psychiatrists, which in turn results
in greater concordance with medical treatments. This is consequently
one example of how supporting people to work in partnership with
healthcare professionals is positive for both parties.
Including advance agreements in the Bill as
a part of the clinical decision-making process will give service
users greater confidence that their interests will be respected
under compulsion. Properly supported, they could help to build
positive partnerships with mental health professionals, and consequently
help to reduce levels of compulsion because interventions will
be made on a timelier basis.
We support and refer you to the Mental Health
Alliance submission on this question. In particular:
We do not agree that the Tribunal
must have a clinical member, because that expertise can be provided
from the Expert Panel. The presence of a clinical member may mean
that the evidence at the Tribunal may be heavily weighted towards
the medical model of mental health care
Mental Health Tribunals should explicitly
include people who have experienced mental health problems to
ensure that this valuable perspective is obtained. It may also
help to build trust with service users that they are respected
as individuals and their views will be taken into account. We
know of someone with a mental health diagnosis, who worked at
a senior level in a mental health charity, who applied to sit
on a mental health tribunal and whose application was turned down
without interview on the grounds of insufficient experience. Without
a specific inclusion, we risk perpetuating this kind of response.
care plans should be comprehensive,
including all treatments and relevant social issues.
ECT AND PSYCHOSURGERY?
No, there are not. We welcome the fact that
ECT cannot be used for someone with capacity if s/he refuses.
However we are concerned that a capacitous refusal can be overturned
if the situation is classified as an emergency. There may be an
argument for this if it is "immediately necessary to save
his life" (c.182 (2), but not otherwise. In particular the
inclusion of "alleviate serious suffering by him" as
an emergency condition is worryingly wide
We believe that the values of advance agreement
come strongly to the fore here. Advance agreements can set out
clearly whether and in what circumstances someone would be prepared
to accept ECT (including naming someone that they trust to make
a decision for them, if they are unable to do so themselves).
This will support a clinical decision-making process where someone
We are concerned that the age limit over which
ECT can be given is too low. We support the Mental Health Alliance
recommendation that 18 should be the lowest age, given that young
people have not necessarily completed their physical development
We do not believe that psychosurgerytype
A medical treatmentsshould be permitted at all, since there
is no evidence base as to its purpose or effectiveness. If it
is included as an aggressive treatment, it should only be given
to those with the capacity to make the decision who consent. It
should never be given to anyone who lacks capacity.
We are concerned that any other aggressive treatments
are not defined in the Bill and are simply categorised as "type
B . . . as may be specified as such in regulations." We believe
that doses in excess of British National Formulary limits, and
cocktails of medications (ie combinations of 4 or more medications)
require additional safeguards before they can be used.
We are concerned that the Bill is insufficiently
precise in defining key concepts, and that too much that is vague
is being for definition in the Code of Practice. We refer to and
support the Mental Health Alliance submission here.
17 JULY 2004)?
The Draft Mental Health Bill does not appear
to be well integrated. The Mental Health Bill should "sit
on top" of the Mental Capacity Bill, but given that the Mental
Health Bill does not consider capacity at all, or the implications
for someone who is subject to the Mental Capacity Bill, or for
either, what happens for people whose capacity fluctuates, which
can certainly be the case for our members, integration does not
appear to be sufficient. There appear to be grounds for confusion
for professionals and service users in their combined operation.
We do not have the expertise to answer this
question, but we understand that there may well be compliance
issues for the Draft Mental Health Bill, in particular concerning
the risk of preventive detention and the lack of counterbalancing
rights for people who are subject to compulsion.
The Draft Bill will increase stigma for people
experiencing mental health problems. It will damage relationships
between service users and their mental health professionals, because
the wide ability to use compulsion will make it very difficult
to develop trusting relationships. Fear of being caught by the
provisions of the proposed Bill will drive people away from services.
The roles of professionals will be changed because
the emphasis in the Bill is the safety and protection of others,
rather than the health and the therapeutic treatment of those
subject to its provisions. The change in roles may well be at
odds with the underlying purpose of those professions (ie to support,
to heal), which will undoubtedly create tensions. It is significant
that so many professional bodies have chosen to join the Mental
Health Alliance, to demonstrate that the concerns about the Bill
are as much about the impact on the professionals as they are
on the people who are affected by the new legislation.
We find it difficult to see that the expanded
Tribunal system will be sustainable, given the difficulties with
the current, narrower Tribunal system. Consequently, there are
grave concerns about the overall workability of the new system,
given that Government has not identified how any shortfalls in
human resources will be met.
Fundamentally, though, we have to come back
to people with mental health problems, who will be caught by the
provisions of the Bill. Already a vulnerable and stigmatised group,
who are currently let down through poor, patchy and under-resourced
service provision, the proposals in this Bill appear to do nothing
to redress the balance. Instead, the limited resources in the
system are likely to be diverted to meet the proposed system of
compulsion, when the cheaper and more supportive option is to
invest in primary and secondary care to ensure that fewer people
become so ill that compulsion is necessary.
Whatever legislation comes in now is likely
to be in operation for around 20 years. Parliament needs to consider
very carefully the full impact of the proposals both on those
it will directly affect, and on the stigma attached to mental
illness. Currently one in four people will experience mental health
problems at some stage in their lives, and the incidence of some
conditions, eg depression, are predicted to rise, so the numbers
of people who could be affected by this legislation are huge.
The strength and breadth of the opposition to the proposals from
both service users and healthcare professionals alike is sending
a very clear message to Parliament as legislators. We urge you
to take notice of it.