Joint Committee on the Draft Mental Health Bill Written Evidence


Memorandum from the Manic Depression Fellowship (DMH 290)

  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 the condition.

  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 basic principles."

  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 consistent—otherwise 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 Bill.

2.A.  IS THE DEFINITION OF MENTAL DISORDER APPROPRIATE AND UNAMBIGUOUS?

  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.

2.B.  ARE THE CONDITIONS FOR TREATMENT AND CARE UNDER COMPULSION SUFFICIENTLY STRINGENT?

  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 achieve—will 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 treatment?

  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.

2.C.  ARE THE PROVISIONS FOR ASSESSMENT AND TREATMENT IN THE COMMUNITY ADEQUATE AND SUFFICIENT?

  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 the other?

  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 process.

    —  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.

4.  ARE THE PROPOSALS CONTAINED IN THE DRAFT MENTAL HEALTH BILL NECESSARY, WORKABLE, EFFICIENT AND CLEAR? ARE THERE ANY IMPORTANT OMISSIONS IN THE BILL?

  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.

5.  IS THE PROPOSED INSTITUTIONAL FRAMEWORK APPROPRIATE AND SUFFICIENT FOR THE ENFORCEMENT OF MEASURES CONTAINED IN THE DRAFT BILL?

  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.

6.C.  ARE THERE ENOUGH SAFEGUARDS AGAINST MISUSE OF AGGRESSIVE PROCEDURES SUCH AS 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 lacks capacity.

  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 at 16.

  We do not believe that psychosurgery—type A medical treatments—should 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.

7.  IS THE BALANCE STRUCK BETWEEN WHAT HAS BEEN INCLUDED ON THE FACE OF THE DRAFT BILL, AND WHAT GOES INTO REGULATIONS AND THE CODE OF PRACTICES RIGHT?

  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.

8.  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 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.

9.  IS THE DRAFT MENTAL HEALTH BILL IN FULL COMPLIANCE WITH THE HUMAN RIGHTS ACT?

  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.

10.  WHAT ARE LIKELY TO BE THE HUMAN AND FINANCIAL RESOURCE IMPLICATIONS OF THE DRAFT BILL? WHAT WILL BE THE EFFECT ON THE ROLES OF PROFESSIONALS? HAS THE GOVERNMENT ANALYSED THE EFFECTS OF THE BILL ADEQUATELY, AND WILL SUFFICIENT RESOURCES BE AVAILABLE TO COVER ANY COSTS ARISING FROM IMPLEMENTATION OF THE BILL?

  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.

October 2004





 
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