The UK Federation of Smaller Mental Health Agencies


REVIEW OF MENTAL HEALTH ACT 1983

DRAFT OUTLINE PROPOSALS
OF THE SCOPING STUDY COMMITTEE


THE UKFSMHA RESPONSE


APRIL 1999



Please address queries and comments to:-

Katy Axford, Information Officer

UK Federation of Smaller Mental Health Agencies
68 Sackville Gardens, Ilford, Essex IG1 3LJ
Tel: 0181 554 0498 email: katy@axford.clara.co.uk











Contents


GENERAL REMARKS

KEY CONCEPTS

DETAILED COMMENTS

Introduction

I. General Principles

II. Entitlements

III. Framework for Compulsion

GENERAL REMARKS

UKFSMHA has a dispersed membership but a strong underlying philosophy that its policies and priorities should be determined by its Members. However, the time scale imposed for this consultation has made it impossible for the following response to be based on full discussion of Members' views and we urge the Scoping Study Committee to use its influence with Government, to ensure that future timetables are more realistic and allow for involvement in the dialogue of all those who will be affected by the recommendations being considered.

In drawing up our response, we adopted the following approach:-

·All Members were sent a copy of the Executive Summary of the proposals and the opportunity both to ask for more detailed explanation and to submit comments.

·All Members were invited to a meeting in London to discuss the Draft Proposals. The meeting considered the proposals in the light of the UKFSMHA's earlier survey of Members' opinions (January 1999).


KEY CONCEPTS

UKFSMHA welcomes the thoroughness of the Committee's approach and the systematic way in which it has laid out its underlying thinking. We, therefore, feel it a pity that discussion of the two crucial concepts of 'incapacity' and 'best interests' was not given more prominence at the beginning of the report, along with the General Principles. We think it unlikely that more than a minority of those reading the proposals will be familiar with the work of the Law Commission in these areas and yet the whole moral and philosophical justification of compulsion rests on an acceptance of their validity. Such validity is not self-evident to many users of mental health services, including a number of our Members.

We do not think it is realistic to expect that definitions can be arrived at which are acceptable to all. However, we consider that every attempt should be made to achieve as high a degree of consensus as possible, in support of clear and workable definitions which have been thoroughly debated i.e. consultation needs to go beyond agreeing definitions 'with which professionals are at ease' (Paragraph 155).


DETAILED COMMENTS

Introduction

Although the Committee's reasoning is understood, there is still some concern being expressed in our organisation that it is not proposed to include general issues of quality and service provision in any recommendations.


I. General Principles

A. Principle of Non-Discrimination

UKFSMHA is pleased to see explicit recognition in Paragraph 13 of 'the high levels of discrimination which currently exist against those who suffer from mental disorder' and that the Committee has felt it appropriate in Paragraph 14[ii] to make recommendations which go beyond its immediate remit.

However, although the intention underlying this principle is incontrovertible, we suspect there may be people (those who reject the bio-medical model of mental 'illness'), who would find its operation in practice to be something of a double-edged sword. This is a different difficulty from the one referred to by the Committee in Paragraph 14!

B Other Principles
Paragraphs 15 - 21 are broadly welcome, though some disappointment has been expressed that it is not proposed to give at least some of these principles the full backing of the law. One Member commented in relation to Paragraph 18, 'In our experience, the interpretation of legislation, codes of practice and organisational policy are themselves at the heart of injustice, discrimination and the disempowerment of people with experience of mental distress.' Another felt strongly that, although obtaining informed consent might be regarded as good practice, it was currently a requirement that was 'widely flouted' and that doctors should now be obliged by law to provide written information on both drugs prescribed and on other treatments.

Paragraph 17 is a clear expression of the necessary parameters.

Paragraph 19[vii] is considered to be of basic importance. However, see fuller comments on the principle of reciprocity below.

Paragraph 20, whether intentionally or not, could be construed as confrontational by some family carers. Carers' concerns do not just relate to their own needs and interests and comments put forward by a Member representing relatives indicate considerable apprehension that, under these proposals, the opinion of those who are likely to know the user best will carry less weight, even than at present.

Paragraph 21 has attracted considerable interest. Our earlier survey indicated a strong wish among Members to see a range of treatments being made available. Although naturally users wish treatments to be effective, there is concern that if too narrow criteria are adopted as to what constitutes 'evidence' of effectiveness, some treatments which users increasingly claim to be helpful, may be denied them. Obviously, this area requires a degree of discussion and research, which goes beyond the scope of this consultation. However, we urge the Committee to be cautious in the wording it adopts to express this principle.

C. Monitoring the Act

We support the recommendations in Paragraph 22. We suggest that ways should be explored of formally involving users and carers in such monitoring, especially in relation to (ii)
e.g. completion of short questionnaire on discharge, for direct return to MHAC.

D. The Code of Practice

Our Members would be likely to support all measures taken to ensure that the Code of Practice remains a comprehensive and effective tool for defining and ensuring adherence to good practice. We particularly welcome Paragraph 24, as we consider it essential that its requirements are the outcome of broad consultation.

II. Entitlements

A. Introduction

See above (Detailed Comments - Introduction)

B. Consequences of the Principle of Reciprocity

This is a crucial issue for UKFSMHA, which represents many small agencies providing informal services within the field of mental health and social care.

We fully accept that the principle of reciprocity should apply to those who have been subject to compulsion. (One of our Members suggests this should be backdated - 'They owe us')!!

However, we are only too fully aware of the danger recognised by the Committee in Paragraph 28, that implementation of the principle could lead to an exacerbation in the unevenness of service provision, which already exists. Resources presently are directed towards acute care, diagnosed illness and into services provided by statutory bodies or covered by statutory frameworks. Small voluntary organisations offering services which may complement statutory provision or provide for needs which would otherwise remain unmet are generally excluded from the planning process and have great difficulty in accessing funding. However, their work may prevent the development of more serious illnesses, which would ultimately require more costly packages of care.

We, therefore, think it essential that all possible measures are taken to ensure that informal patients also receive appropriate levels of care and that, in addition to the various possibilities
mentioned in Paragraph 30, more effective mechanisms need to be established to ensure funding for people seeking voluntary sector services and to provide the resources which will enable small mental health agencies to operate effectively.


C. Rights which Flow from Compulsion

UKFSMHA welcomes this proposal. Further comments below (III K).

D. Access to Services

UKFSMHA would welcome the introduction of a right to assessment, residing in the user. For comments on the possible extension of this right, see below (III C 1)

E. Duty to Establish Local Arrangements

UKFSMHA supports the imposition of a general duty on all agencies to work together. However, our Members would wish this to be complemented by safeguards, covering the exchange of confidential information about individual service users. See also below (III M).

III. Framework for Compulsion

A. The Diagnostic Criterion

We have no further views to put forward at this stage.

B. Exclusions

Paragraphs 38-40 are consistent with the view expressed by the majority of our Members in each case.

B1. Personality Disorders

It was also the majority view of Members that people with personality disorders should be included within the legislation.

We support the implication of Paragraphs 42 [ii] and [iii] that psychological therapies may be helpful to such people and that they should, therefore, be available and the focus of more research.

We feel Paragraph 43 offers some reassurance that people with this diagnosis would be safeguarded from arbitrary detention.

2. Learning Disability

We support the recommendations of Paragraphs 45 - 50.

C. Assessment

C1. Right to Assessment

As indicated above, we support the recommendations of Paragraphs 51 - 53.

In respect of Paragraph 54, we suspect there is likely to be a division of opinion within the Federation. A majority of Members indicated earlier that they thought carers should be involved in the decision making process but our recent consultation elicited a view which we think would be shared by others, that giving carers a right to demand assessment (as opposed to a right to put forward their views), would undermine user autonomy. On the other hand, some carers are likely to argue that giving them this right is an important safeguard against professional misjudgement. Giving the right to an authorised representative, chosen by the user, might allow the possibility of compromise on this issue.

UKFSHMA is presently consulting about the use in a policy document of the following definition:-

'A carer is someone close to the user, who provides practical or emotional support. The term encompasses a range of relationships and degrees of involvement and a carer may or may not live with the user and may be a friend, partner or family member (though not necessarily the nearest relative, as defined by the Mental Health Act 1983).'

We have not yet been able to consult Members about the proposal in Paragraph 56.

C2. Formal Assessment

We think our Members would be likely to welcome the proposed reduction in time allowed for compulsory assessment (Paragraph 57).

According to our survey, a good majority would consider it appropriate for mental health workers from other professional backgrounds (specifically community psychiatric nurses) to take on the role of applicant, previously restricted to approved social workers
(Paragraph 61 [I]).

We accept, albeit with some caution, that it may sometimes be possible and appropriate for compulsory assessment to take place in the community (Paragraph 64), especially since the Committee is recommending the continuation of strict limits on the medical treatments which could be imposed during the period of assessment (Paragraph 70).

We welcome the range of issues which would have to be included in the assessment (Paragraph 69).

UKFSMHA Members would like the involvement of the police to be minimal, unless unavoidable, and we welcome Paragraph 80, which would help ensure that a wider choice of certified places of safety would be available in the future.

D. The New Tribunal

It is difficult to gauge the likely response of our Members to this proposal, which we have not yet discussed in detail. Those answering our questionnaire did not envisage any significant variation in the type and role of tribunal which exists at present.

Our preliminary view is that the introduction of an independent decision-maker to approve compulsion would add significant safeguards and should improve clinical practice. We hope there will be a further opportunity to comment on this proposal.

E. Compulsory Order

A majority of UKFSMHA Members accept the need for compulsion in some circumstances and we consider the criteria have been carefully circumscribed (Paragraph 104).

We are interested in the approach which considers first the central question of whether compulsion is justified and then deals, as a secondary consideration, with the setting in which this might occur.

Although generally Members would want treatment and services to be available in a variety of settings, the majority in our survey associated compulsion with a need to be in hospital. We think this is the only realistic position to adopt. The complicated nature of the proposals described in Paragraphs II0-II9, indicate that compulsory treatment in the community is never likely to be a practical alternative in the overwhelming majority of cases and would be quite likely to result in further stigmatisation of the user.

F. Ending of Order

Although we accept that additional safeguards have been introduced at the beginning of the process, concern has been expressed that detained patients have only one right of appeal during a possible six month period of compulsion.

G. Treatment

UKFSMHA welcomes proposals to increase the safeguards covering the use of a number of controversial treatments.

However, especially in relation to ECT, these proposals still fall short of what Federation Members consider desirable. Although just over half our respondents thought ECT should continue to be available as a treatment, the overwhelming view was that it should not ever be given without fully informed consent.

We are interested in the idea of involving specialist pharmacists in the process for approving some treatments (Paragraph 144).

H. Incapacity

Our comments above (Key Concepts) apply here.

However, we recognise the importance of Paragraph 156, which notes the role of the Tribunal in reviewing the judgement made about capacity in any individual case.

We have not received comments from any Member who felt that a finding of incapacity would be particularly stigmatising but we did uncover in discussion some confusion about the use of the term, which might well arise elsewhere. Incapacity is also a term used in the benefit system and concern was expressed that in future the payment of benefits might depend on a finding of incapacity in this 'new' sense.

An overwhelming majority of Members responding to our survey thought that risk of injury to self, aswell as others, was justification for compulsory treatment. However, it is not clear how these views would be affected by introducing consideration of the dimension of capacity or in the particular case of a person deemed capable.

I. Best Interests

There is an indication in our survey that Members would be opposed to anyone other than professionals determining what would be in their best interests, if they were not able to decide this for themselves. However, this position is put forward with some caution, as the original question was not couched in the same terms and it appears to be at variance with other stated views.

J. The protection of remaining civil liberties

UKFSMHA welcomes the proposal to provide more statutory guidance on these issues.

K. Addition of Positive Rights

We approve the proposed addition of positive rights but are unclear as to the limits of their application. There seems to be some inconsistency with the recommendations of other parts of the report. For example:-

·Does the right to independent medical advice (Paragraph 186[a]) constitute the right to a second opinion, as discussed below (N2).
·Does this right commence after compulsory detention and/or treatment has been approved or while it is being considered'
·Why are the right to independent legal advice and the right to an 'authorised representative' considered possibilities and not the right to advocacy'

We are concerned that the recommendations of Paragraph 187 on the right to aftercare for a specified period, may lead in practice to a diminution of the authorities' obligations under sII7 of the present Act.

We do not think users should have to pay for services received under this right and we would consider it totally unacceptable (as well as impractical) for anyone to have to pay for a service they were receiving under compulsion. It has been pointed out by one of our Members that many people who have been detained in hospital already face considerable financial difficulty when they return to the community, due to the reduction in benefits which occurs after a certain duration of stay.

L. Common Law/Statute

We do not have any specific comments to make on Paragraphs 192 -195, other than general agreement with the recommendations of Paragraph 195. (See also Q below.)

M. Information Sharing

When consulted, a significant majority of UKFSMHA Members agreed that information needed to shared between agencies. It was felt that this should be on a 'need to know' basis and, unless risk to the user or others was involved, should be with the written consent of the user. However, a recent comment also indicated considerable concern on the part of some service users, 'One of the greatest fears for our self-autonomy at the moment is the widespread misuse of information about us and the resultant implications of such breaches of confidentiality in housing, employment and many other aspects of our lives.'

We think that Paragraph 198[iv], [v] and [vi] describe the relevant parameters in a systematic and helpful way but, bearing the above in mind, suggest that more emphasis should be given to the recommendation in [iii].

We support the recommendations of Paragraph 198[vii].

N. Safeguards

N1. Hospital Managers

In our survey, UKFSMHA Members favoured the retention of a right of appeal to Hospital Managers and we assume would also approve a continuing, if different role for this body. (But see comments on MHAC below.)

N2. Second Opinion Appointed Doctors

This issue seems to involve some degree of misunderstanding.

The Committee's considerations throughout refer to the place of second opinion appointed doctors, or their equivalent under the proposed new structure (the medical member of the tribunal). In this sense, we understand why the Committee has seen fit to recommend that it would not be necessary to maintain a separate structure of trained doctors, although we support the proposal in Paragraph 204 that monitoring of the medical member's role is essential. We agree that this would be an appropriate task for the MHAC successor body.

We also think our Members would welcome the extra safeguards reiterated in Paragraph 203 and introduced in Paragraphs 205 and 206.

However, we suggest that when service users, carers and others cite 'right to a second opinion' as an important safeguard (88% of Members in our survey wanted this), they have in mind an entitlement such as that offered by the Patient's Charter, to review by a doctor of their choice. However 'tight' the rules, doctors who are part of the system will always be open to suspicion of collusion.

N3. The Mental Health Act Commission

We support the extension of the inspection, monitoring and other specialised roles of the MHAC and consider that it should retain some role in relation to complaints.

One of our Members has put forward a case for 'Locality Commissioners' and we assume the extended body would need to operate through a regional structure. Could the present Hospital Managers, given their changing role, be incorporated into this structure at local level'

N4. Advance Directives

We believe the overwhelming majority of our Members would welcome a move to give statutory force to advance directives. Logically, there would not seem to be much point in drawing up a directive which could subsequently be overturned. However, dissenting opinions have been expressed and we think there are issues which require clarification
For example:-

·Would a directive remain in force indefinitely or would it lapse after a period of time, unless renewed'
·An advance directive would 'freeze' someone's opinion in time. Would a user who was judged to lack capacity be able to change their mind'
·Would the legal force of a directive be absolute or would there be some limit to allow for flexible response to an unexpected crisis or turn of events'

N5. Nearest relatives and advocates

A significant majority of UKFSMHA Members in our survey believed that a user should have the right to choose who they wanted to represent them and the proposals in Paragraphs 217 - 219 are, therefore, welcome.

Consideration should be given as to how the interests of family members/carers might be protected, in the light of these proposals, as well as those above (4).

We are disappointed that the Committee has not seen fit to recommend a statutory right to independent advocacy, which many Members see as a fundamental safeguard and a means of supporting user autonomy and user choice. We do not understand why resource implications are specifically mentioned here and not in other parts of the report, where recommendations are also going to be costly to implement.

O. Offenders

UKFSMHA has no comments to make on Paragraphs 222-236

P. Children

UKFSMHA has no comments to make on Paragraphs 237-240

Q. Bournewood

UKFSMHA accepts the need for a separate, legislative framework to safeguard the interests of people with long term incapacity. We have no specific views relating to Paragraphs 241-242 to put forward at this stage.