CRITICAL MENTAL HEALTH’S RESPONSE TO THE DRAFT MENTAL HEALTH BILL
"Choice not compulsion"
The government's proposals in the draft Mental Health Bill represent severe challenges to human rights. Despite the government's stated wish for consultation they have ignored many of the recommendations of the Richardson committee, consultation on the original Green Paper and following the White Paper last year. We see the current process of consultation as phoney. If anything the government's proposals have got worse over time. Our concerns are:
- Over-emphasis on risk. Most studies show that the proportion of homicides committed by people with mental health problems is very low when compared to the overall homicide rate. You are more likely to be attacked on a Saturday night by someone without a mental health problem. It is likely that services will become even more defensive and less responsive to the needs of those who use them.
- Risk prediction: A dangerous fantasy. There is no disputing that the very small number of such homicides (compared with the overall total) committed by people with mental health problems are both tragedies and frightening but there is no evidence that mental health professionals can accurately predict who will be violent before an offence is committed. The government's criteria for compulsory powers are broad so as to 'catch' people before they offend. This is a dangerous fantasy. One estimate suggests that to prevent one homicide by a person with psychosis you would need to detain 5,000 people. Does the government want to return to the days of the warehousing of the mentally ill? Do we want to hear of numerous cases of miscarriages of justice in the future? David Blunkett's recent proposals to introduce indeterminate and reviewable sentences for violent and sexual offenders would give the government powers to detain offenders still considered a serious risk so there is no reason to introduce mental health legislation that would mean detention without trial or even an offence.
- Removing loopholes or attacking human rights? The notion that someone shouldn't be compulsorily detained in hospital if they were not considered 'treatable' was introduced in the 1983 Mental Health Act to prevent widespread indefinite detention in hospital. The government wants to remove this (they call it a 'loophole') but with no adequate safeguards. Under the government's proposals it could be considered treatment simply to lock someone up in a hospital. That's the job of a prison, not a hospital.
- The Human Rights Act should be a floor below which rights shouldn't drop, not a ceiling. The government will claim that much of what it is proposing is in line with the Human Rights Act (which incorporated the European Convention on Human Rights into UK law in 1988). The problem is that this provides relatively little protection for those with mental health problems. For example, under Article 5 people of 'unsound mind' can be detained without committing an offence along with other outcast groups. But this was written in the late 1940s when attitudes to mental illness were more conservative. People with mental health problems should be accorded more, not less rights now in a Mental Health Bill which should be aiming for 21st century standards. The Human Rights Act should be a floor below which rights should not drop, not a ceiling.
- The emphasis on risk leads to discrimination which contradicts stated government policies on reducing discrimination. In the National Service Framework for Mental Health (DoH, 1999) the government's first standard was to 'combat discrimination against individuals and groups with mental health problems, and promote their social inclusion'. Rather than addressing this and providing leadership, the government's talk of 'dangerous patients' simply panders to inaccurate and discriminatory stereotypes.
- The numbers of people treated without their consent will increase. Despite evidence from a number of bodies the government have deliberately left the criteria for compulsory treatment broad. As a result it is likely that the numbers of people treated compulsorily will increase despite the government's stated intention to reduce the numbers. At the moment the number of hospital beds acts as a 'cap' on numbers but allowing compulsory treatment in the community would remove this cap.
- Continued over-reliance on physical treatments. Despite this being the 21st century the government have refused to outlaw psychosurgery (in fact its use is to be extended to those who are not able to give consent). Similarly electroshock treatment is to be allowed without consent. There are to be no sanctions against doctors who prescribe drugs over recommended limits. There is continued implicit reliance on these treatments when the evidence shows that at least 30% of patients are not helped by them -- there is a need to provide people with a real choice of alternatives.
- The dangers of extending compulsion into the community. Research into recovery from mental distress suggests that people benefit most when they have a good therapeutic relationship with their helpers. Increasing the compulsory powers that mental health professionals have is likely to undermine the potential for trusting collaborative relationships between helpers and patients. Whilst forcibly medicating people living in the community may seem like an easy option it would ultimately harm people's potential to live independent and fulfilling lives. These proposals are likely to harm people's chances of receiving beneficial treatment and care. They would infringe people’s rights to genuinely helpful mental health services.
- There is nothing to move compulsory treatment from being a first to a last resort. There is little in the government's proposals to make compulsion more of a last resort. We would like to see much more choice offered to those who use services rather than the government's emphasis on compulsion.
We would like to see:
- Risk: The removal of provisions relating to risk from the Mental Health Act and the introduction of separate criminal justice legislation to address this.
- Discrimination: Leadership by the government on addressing discrimination against people with mental health problems (eg in government policies and in the media).
- Stopping hospitals from becoming prisons: The maintaining of safeguards like 'treatability'.
- Physical treatments: The outlawing of psychosurgery and ECT. Much tougher sanctions against doctors who prescribe over recommended limits (eg to make it a criminal offence). Better provision of alternative treatments.
- Community treatment orders: Preventing the extension of compulsory powers into the community.
- Sanctuary: 24 hour access to a (non-medical) place of sanctuary/asylum for people during mental health crises that do not use compulsory medical treatments.
- Narrower criteria: Compulsory treatment only to be considered for those judged as not having the 'capacity' to make an informed decision about their treatment at the time.
- Compulsion as a last not a first resort: For health services to have a duty to show they have both offered a choice of and actually tried other kinds of treatment such as psychological support and non medical respite care before compulsory drug and other physical treatments are considered as an option.
- Choice not compulsion: When compulsory treatment is used this should adhere to the wishes of the service user as detailed in an 'advance statement' (a statement about how one wishes to be treated in a crisis made when one is 'well') which should be legally binding.