5. Memorandum from the British Association of Social Workers Mental Health Special Interest Group
MHSIG is a national forum representing social work in mental health, which is constituted as a sub-committee of BASW. Its membership is, however, open to non-BASW members and includes non-affiliated Approved Social Workers, consultants, social researchers, academics and others who share the following aims:
to promote a partnership with user and carer groups in order to achieve better services in mental health;
to provide support for practitioners in the field;
to offer an opportunity to exchange information and ideas in the field of mental health, to provide a forum for discussion and identification of main areas of concern;
to provide informed comment on policy and practice issues for interested parties and to influence decision making; and
to develop anti-discriminatory policies and practice in mental health.
1. This submission restates the specific concerns about the human rights implications of the White Paper "Reforming the Mental Health Act" which were set out in MHSIG's paper "Reforming the Mental Health ActAlternative Proposals" which we submitted to the Department of Health in December 2001 and which is available, with a summary, on our website at www.basw.co.uk/mhsig. Scrutiny of the draft Bill and related documents confirms that the DoH has not addressed any of the human rights concerns expressed in that paper.
2. These concerns centre around the proposed procedures for examination and compulsory assessment which are now contained in Chapter 2 of the draft Bill; these are the entry point for the application of the civil powers. Under the present Act, these initial procedures require an application to be made by an Approved Social Worker (ASW) which is supported by two medical recommendations; this then gives the hospital the authority to detain and to treat the patient for up to 28 days before a fresh application is required. The patient or his or her nearest relative may appeal immediately or at any time during the first 14 days to the Mental Health Review Tribunal, which will then hear the case within the next seven days.
3. The draft Bill requires that after 28 days, any further detention must be authorised by a Tribunal, but up to this point it retains the present framework, with one very important exception. Under the present Act the ASW, in addition to being an experienced qualified social worker with an additional specialist qualification, must be an "officer of the local authority" ( Section 145(1)). This ensures that the ASW is clearly independent of the detaining hospital or Trust and of the qualified psychiatrist who must make the primary medical recommendation (the second recommendation usually comes from a GP). In effect, the ASW takes the place of a court in the initial process, in that he or she is an independent non-medical authority who makes the final decision on a proposal for compulsory treatment made by the psychiatrist and the hospital. In the draft Bill, however, the ASW is replaced by an "Approved Mental Health Professional' (AMHP.)
4. The govermnent's intentions with regard to the AMHP are clearly stated in the Consultation Document (page 22.) AMHPs "may be social workers (and are likely to be in the early years of the new legislation.) The aim, however, is to enable other mental health professionals such as mental health nurses, psychologists and occupational therapists to take on this role as well."
5. In practice this means the mental health nurses, since this is by far the largest professional group in the mental health services and the only one which is remotely likely to express a willingness to assume this role. Nurses are, however, not only NHS employees with a clear line of accountability to their employing Trust (ie the detaining authority), but they are also professionally bound to defer to doctors on clinical matters. The government therefore envisages the eventual replacement of the ASW with an official who will have very little if any scope for the exercise of independent judgement vis-a-vis the psychiatrist and the detaining authority.
6. It is also questionable whether social workers will, as the government believes, take on the AMHP role in any numbers in the early years of the new Act. The present-day ASWs regard their independence as the crucial element of the role, and are concerned that it is already being compromised by secondment of ASWs to NHS-managed joint services. However, with the transfer of local authority mental health services to Care Trusts, which is likely to be virtually complete by the time the new Act is implemented, they will themselves become NHS employees and will therefore become subject to the same managerial accountability as the nurses. Recruitment to ASW posts is already falling, as social workers perceive that they are shortly to be "written out" of the legislation, and this process will accelerate as the implementation date approaches, as social workers will see little point in seeking approval (or renewal of approval, which requires refresher training) for a role which is going to disappear.
7. It is therefore inevitable that the AMHPS, whether they be social workers, nurses or from any other health profession, will not be demonstrably independent either of the detaining authority or of the psychiatrist, who is very much the most powerful player in the initial detention process.
8. The government's only apparent concession to independence for the AMHP is contained in Clause 9(5)(b) of the Bill, which says that the AMBP "must not fall within a description of persons specified by the appropriate Minister in the regulations as being subject to a potential conflict of interest as regards acting in relation to a person of the patient's description." The meaning of this is unclear, but we suspect that it refers to nothing more than the provisions in the present Act which prevent doctors from acting together with their spouse, or professional or business partner, or where they have a financial interest in the patient. These provisions were not extended to ASWs since, as local government officers, for them to act in this way would in any case be a "corrupt practice" under local government law.
THE IMPLICATIONS OF THE DRAFT BILL
9. It is likely, therefore, were this Bill to pass into law, that within a few years at most, the majority of decisions to detain a patient for up to 28 days would be made by a consultant psychiatrist and a nurse who would both be employed by, and accountable to the detaining body, and who in the case of the nurse would be professionally bound to defer to the psychiatrist on clinical matters.
10. The government may argue that nurses are becoming less subservient to doctors, and this is indeed so and very welcome, but we are many years away from the point at which a nurse, other than one of great seniority, can realistically veto a consultant's decision to admit or to impose treatment on a patient, other than by refusing an unlawful instruction. If this were to be seriously proposed it would cause an upheaval throughout the entire NHS and would not necessarily be welcomed by the nurses themselves, since it would open them up to the legal liability which currently attaches to doctors (and to ASW's, who are being sued with increasing frequency.)
11. Alternatively, the government may argue that the second medical examiner already provides an independent element which makes the independent ASW redundant. However, as we argue in more detail in our "Alternative Proposals," this safeguard is largely illusory. The "second doctor" is usually a GP, without specialist psychiatric training or knowledge of mental health law, and due to the changes in general practice is much less likely than formerly to know the patient personally or to have any continuing responsibility for his or her care. In addition, of course, a non-specialist doctor is in much the same position as the nurse, in that professional protocol limits the extent to which he or she can properly disagree with the opinion of a consultant specialist, especially when he or she is not the patient's personal GP. As a consequence, whilst ASWs detain only 65 per cent of the patients referred to them for possible admission, a refusal by a second doctor to agree to an admission requested by a consultant is a very rare event.
THE GOVERNMENT'S VIEW
12. The response from the DoH to our concerns about the loss of the independent ASW is that ECHR compatibility will be ensured by the enhanced role of the Tribunal. However, the bald statement in the consultation document (page 6) that "in particular, the Bill will require all decisions to apply compulsion to mentally disordered people to be taken by an independent body" is blatantly untrue. A Tribunal hearing will not be automatic until 28 days, by which time, as the consultation document itself acknowledges (page 8) "as now, most patients will be discharged from compulsory treatment."
13. Prior to 28 days, patients will, as at present, have the right to apply for an "expedited hearing." The Bill does not lay down the timescalesthese are left to the Lord Chancellorbut it seems unlikely on logistical grounds that there will be much if any improvement on the present 7-day gap between application and hearing, so this is likely to be the minimum period during which someone will be detained (and treated) without recourse to an independent judicial body. This is, of course, a very much longer period than is allowed under the criminal law.
14. However, under the present Act the vast majority of patients do not in fact apply for a hearing. They are often distressed and confused, may well be heavily medicated on admission, and are often fearful of challenging the authority of the doctors and nurses upon whom they are totally dependent. In addition, of course, unlike detainees under the Police and Criminal Evidence Act, they are not accompanied by a solicitor when they are interviewed by the psychiatrist. Research has, not surprisingly, demonstrated that the likelihood of appeal is related much more to the patient's level of education than to the strength of their case.
15. The government has, to its credit, conceded that vulnerable patients need more support, and has included in the Bill (Clause 159) a statutory advocacy scheme. However, it remains to be seen how effective this will be, and we and others have questions, which the Bill does not answer, about the training of these advocates and their independence of the detaining Trust which will be acting as their host. Experience of comparable schemes already in existence suggests that whilst it will be of value for patients who are detained long-term, it will have a marginal effect on the number of applications for "expedited hearings."
16. The government may argue that, even if the patient is unable to apply for an expedited hearing, their "nominated person" (replacing the nearest relative in the present act) will be able to do so on their behalf. However, although we welcome the draft Bill's provisions on "nominated persons," which closely follow our own proposals, we would expect that in most cases the nominated person will be the person who would have been the nearest relative under the present Act, and there is no evidence that nearest relatives currently make a significant number of applications; in fact, in a great many cases the nearest relative is the person who requested the admission to hospital in the first place.
16. It is reasonable to expect, therefore, were the present Bill to become law, that most patients, having been detained initially by a process which contained no genuinely and demonstrably independent element, would not then have their case reviewed at all by an independent body, since they would not appeal and would be discharged before the end of the 28-day period. Even if they did appeal immediately, they would be subject to detention and to compulsory medical treatment for at least seven days. In fact, if present custom-and-practice, well-documented by the Mental Health Review Tribunal, is continued, a high proportion of patients will be discharged just a day or so before the automatic Tribunal hearing, ie at 26 or 27 days.
OUR VIEW ON ECHR COMPATIBILITY
17. Our view, as stated clearly to the DoH last December, is that the provisions in the Bill for examination and compulsory assessment are likely in the course of time to be deemed to be incompatible with Articles 5(4) and 6 of the ECHR, on the grounds, firstly, that the vast majority of patients will not have their detention reviewed by a court or similar judicial body, and secondly that even for those who do, the remedy will not be sufficiently "speedy." We also pointed out that the ECHR is 50 years old, that it was largely drafted by English lawyers at a time when the Lunacy Act was still in force in this country (and it borrows the language of that Act) and that it does not reflect. the development since that time of awareness of the rights of the mentally-disordered and is therefore likely to be modified by caselaw well within the lifetime of the new Act.
18. Current thinking is much better expressed in the Council of Europe White Paper "The Protection of Human Rights and Dignity of People Suffering From Mental Disorder" published in 2000, and the draft Bill would certainly not meet the standard set out in that document, which requires that the person or body making the decision to detain should be clearly independent of the person or body proposing the detention. The present Act does, however, conform to that standard, provided, that is, that ASWs seconded to joint services are still able to exercise demonstrable independence.
19. For the sake of brevity we will not describe in detail the alternative approach which we set out in December, and which essentially involves a redefinition and strengthening of the ASW role with a greater emphasis on its quasi-judicial elements (and which opens it up to other professions provided they can meet the test of demonstrable independence.) If the ECHR incompatibility of this part of the draft Bill is accepted, there may be more than one acceptable way of overcoming the problem. However, we think it essential that any process for initial assessment and treatment should conform to the principle that safeguards against unlawful or oppressive action should be comparable to those contained in other legal processes which result in a restriction or deprivation of liberty. In practice, this means that the yardstick should not be just the ECHR, but also the criminal law and the rights and safeguards afforded to those detained by the police.
26 July 2002