81 Memorandum from MIND
Mind is the leading mental health charity in
England and Wales and works for a better life for everyone who
experiences mental distress. Mind works by:
advancing the views, needs and ambitions
of people with experience of mental distress;
promoting inclusion through challenging
influencing policy through campaigning
inspiring the development of quality
services which reflect expressed need and diversity, achieving
equal civil and legal rights through campaigning and education.
Mind has a federal structure with 211 local
associations providing a wide range of services to users of mental
health problems. National Mind has a membership unit of service
users and survivors of mental health problems, a unit devoted
to diversity issues, a legal unit which gives legal advice, an
information unit and helpline and policy and campaigns units.
Its policy and campaigns work is directly informed by these networks,
which provide frontline knowledge, advice and opinion. We have
in recent years completed several reports and surveys based on
users' experiences that have revealed human rights issues.
We welcome the opportunity to contribute to
the debate around the need for a Human Rights Commission (HRC)
but regret that in the time available we are unable to address
all the issues that the Committee has raised. The following sections
of this paper set out gaps that we see in the human rights protection
of people with mental health problems and functions that a HRC
could usefully fulfil. Mind acknowledges that it would not be
possible for all of these to be achieved.
One in four people in Britain will have mental
health problems at some time in their lives; 70% of GP consultations
have a mental health component. One in three individuals who approach
the health service for assistance are turned away because of lack
of resourcesa situation which in itself leads to personal
suffering and tragedya situation which we believe would
not be tolerated for physical illness. The numbers of those who
lose their liberty and become detained under mental health legislation
continues to rise.
We would estimate that at least a million people
have significant mental health problems at any one time and many
are likely to encounter difficulties with housing or employment
as a result. Around 50% percent of homeless people have mental
health problems, 90 per cent of young offenders have mental health
problems and while there are no statistics mental health problems
are prevalent among refugees.
1. The need for an independent watchdog for
institutional abuse or malpractice
The Biennial Report of the Mental Health Act
Commission (MHAC) provides
a useful insight into the human rights issues that may arise in
the course of institutional care of people with mental health
problems. The remit of the MHAC is restricted to patients who
are detained or liable to be detained under the Mental Health
Act but some of its conclusions will apply to those who are informal
or voluntary patients since they are treated in the same establishments.
It is safe to assume that similar deficiencies in practice may
also affect those who receive out patient treatment.
The MHAC undertakes a rolling programme of visits
to all hospitals and nursing homes that hold detained patients.
They meet patients, inspect records examine policies and systems
which relate to patients. They produce a Biennial Report on their
findings and conclusions. In their latest Report (1999-01) they
drew attention to many general problems:
failures to observe procedures for
obtaining consent to medical treatment and persistent illegality
as a result; unsafe practices in administering medication;
lack of bed spaces leading to very
inappropriate mixing of patients (eg mixed sex wards, young and
lack of minimum standards for privacy,
safety and security of belongings;
inadequate access to fresh air, recreational
facilities, educational and therapeutic leisure;
lack of information about treatments;
excessive and inappropriate use of
The Report was particularly critical of the
conditions in high secure facilities, which could in extreme cases
amount to breaches of Article 2, 3 and 8 of the ECHR. Nearly 400
inmates of high security institutions were due to be discharged
but remained under high security because of lack of suitable accommodation
in medium or low secure units. They found unduly harsh restrictions
of possessions, children's visits, use of educational equipment,
a lack of protection for women and lack of culturally appropriate
services and facilities for those of minority ethnic backgrounds.
The Report shows the numbers of human rights
issues affecting people with mental health problems and the need
for bad practices to be challenged and rights enforced. The Government
intends to abolish the MIHAC and absorb some of its functions
into a new health inspectorate. This is causing disquiet in the
mental health community, as inevitably the MHAC's detailed work
on this area of mental health will not be replicated.
While a HRC could not take over the role of
the MHAC it could use its investigative powers on selected issues.
Furthermore its remit would not be confined to detained patients
and would therefore assist the majority of patients in in-patient
Environmentally Friendly, a survey by
Mind of in-patient care in 2000, drew attention to some of these
problems for voluntary patients. Lack of access to fresh air and
recreation and inappropriate use of restraint and seclusion were
highlighted. There is little evidence of improvement, except in
the reduction of mixed sex wards.
2. Legal advice: an unmet need
The Legal Unit in Mind deals with in excess
of 50 cases per week in which human rights issues arise directly.
The Legal Advice Line has limited opening hours and is aware that
there is a greater unmet need for legal assistance in this area.
The following are some of the recurrent issues:
forced treatment (Article 3 and 8;
access to treatment in the community
to prevent deterioration of health and danger to self or others
confidentiality and the right to
the process of implementing a detentiondelays,
fair hearing, lack of notice and information;
nearest relative provisions;
de facto detention of elderly
peoplelocked wardssafety and liberty balance.
Other recurrent themes brought to our attention
(although not generally to the Legal Unit) include inappropriate
exercise of restraint and use of seclusion, problems with coroner's
system, and suicide while in institutional care.
In some instances a HRC might usefully bring
a test case or intervene in a case, which is generally beyond
the resources of voluntary organisations.
The "nearest relative" provisions
are a good example. In a friendly settlement in JT v UK
in 2000 the UK Government agreed to amend the relevant sections
of the Mental Health Act. Despite this no action has yet been
taken. Some patients continue to undergo hardship or suffering
as a result of the fact that the person appointed by operation
of law to act on their behalf may not have the patient's best
interests at heart, or indeed may be their abuser. An application
for a declaration of incompatibility in the High Court would be
directly beneficial to those patients.
However in Mind's view there is a compelling
need for similar support to that provided by the Disability Rights
Commission (DRC) on disability discrimination issues. The kinds
of human rights issues mentioned above might well be addressed
through a low level response rather than through court action.
So for instance immediate problem solving, alerting the responsible
authority to their legal responsibilities, providing information
and guidance as to how to obtain redress or a change of practice
would all benefit the individual. It would also educate and promote
a human rights culture within public authorities such as the NHS,
social services, the police and the prison service.
3. Prospective leglis1ation: providing authoritative
advice and comment
The need for a Human Rights Commission is aptly
demonstrated by the recent Draft Bill on Mental Health and the
responses to the government consultation on the Bill. It is legislation
of major importance to all users of mental health services. It
is also unique in having united service users, psychiatrists,
doctors, nurses, social workers, academics and lawyers in an alliance,
the Mental Health Alliance, in opposition to it.
The Bill raises many concerns on human rights
grounds, but to our knowledge human rights was seldom raised in
the responses to the Bill. Even the DRC response related only
to the discrimination aspects of the Bill, as is proper considering
their mandate to eliminate disability discrimination. Few submissions
were received by the JCHR when they called for evidence on the
compatibility of the Bill with the European Convention on Human
In our view this indicates, among other things,
a lack of confidence in using human rights arguments. Far from
a human rights culture being created, human rights are seen as
difficult technical issues beyond the expertise of overstretched
policy and campaigns staff in the many organisations who work
for people with mental health problems.
The Joint Committee on Human Rights Report on
the Draft Mental Health Bill has highlighted some key areas of
concern and potential incompatibility with the ECHR. While this
is most welcome the Joint Committee cannot carry a watching brief
on major new health initiatives as a full time Human Rights Commission
could do. A HRC could have given the Committee a more informed
analysis and detailed response to the Billpresenting several
issues that go to the heart of the unified opposition to the Bill
but which the JCHR Report failed to take up (for instance the
overriding of the consent of the patient to treatment when that
patient retains capacity to make his or her own decisions; police
powers; places of safety etc.)
While government lawyers may heed the Report,
in the meetings with government officials it has been made clear
that these are issues for the specialists. Despite their relevance
to the definition of mental disorder and conditions for the exercise
of compulsory powers, for instance, human rights arguments go
unnoticed or are not seen as central to policy formation. A HRC
could, as the equality commissions do on key equality issues,
engage with government on equal terms as authorities on human
rights. In short our experience with several government departments
leads us to conclude that the "culture of human rights"
is yet to emerge. A HRC could change this.
4. An independent critic and contributor to
policy and practice of public authorities
Mental health services have been greatly neglected
in recent decades. The Government has made their improvement a
prioritythe National Service Framework for Mental Health,
the formation of mental health trusts and the increase in budgets
for mental health services, should have significant implications
for the mental health of the population. The government has also
introduced the Homelessness Act and strategy; the Suicide Prevention
Strategy; Womens Mental Health Strategy. There remain real concerns
in the voluntary sector of how these will be implemented.
The strategies lack a prominent human rights
dimension. They would have been strengthened by the input from
a HRC who could have added different issues and commented from
a human rights angle on the recommendations. Besides the findings
and recommendations in these reports are not necessarily to be
matched by the funding for change or the monitoring of progress.
There is a real need for an independent watchdog to examine and
assess progress in implementing these strategies.
5. Holding inquiries into key issues
An HRC would have the power to undertake inquiries
in order specifically to uncover systemic human rights violations.
It is hard to overemphasise the importance of this approach in
helping to change culture, to combat stigma and to enhance the
dignity and autonomy of the individual. This would be particularly
so at times when the political climate is hostile or indifferent
to these values.
At present a key issue is the shocking conditions
for juvenile offenders and the related problem of the steep rise
in suicides of young males. An astonishing 90 per cent of young
male offenders have mental health problems. Many of these are
not detected and not treated and the conditions in the institutions
lead to greater ill health. Another much neglected issue is that
of the mental health of children and young people. Specialist
services are inadequate and legislation to protect their rights
not in place. Attempts to have this attended to in the Mental
Health Bill are unlikely to succeed partly because of lack of
expertise in government. Children's rights and mental health are
also linked directly to policies and practice on homelessness.
A HRC would be well placed to take a holistic approach to this
In some instances it might be appropriate to
investigate a single policy. For instance in 1996 the Home Office
restricted the Prison Governor's discretion to give early release
to adult prisoners. In effect they have lost their right to have
leave in the last weeks of their sentence to find housing and
to seek employment. This change of policy has led to increased
homelessness and poverty and been linked directly to increased
rates of reoffending since then. Given the links of prison and
of homelessness with mental health this is of particular concern
to Mind and raises Article 8 issues. Changes to the prison drugtesting
policy that inadvertently increased serious drug dependency and,
indirectly suicide rates are another example of a policy that
may need human rights investigation.
A recent case of a triple suicide when three
voluntary patients in a psychiatric unit were allowed out for
a walk highlighted a common dilemma for staff and a difficult
human rights issue, that of confusion around the balance of human
rightsthe right to privacy, the right to liberty, the right
to life. A HRC could well give advice or guidance to deal with
this issue. There are many other situations where the balance
of one right against other and the boundaries between them cause
misunderstandings for individuals and difficulties for mental
health professionalsfor instance the right to confidentiality
and the right to receive information; the rights of mental health
service users and rights of carers, the limits to the right to
control correspondence. In all these instances the expertise and
guidance from a HRC would give much needed help with day-to-day
In short the importance of human rights to individuals
and mental health practitioners could hardly be overestimated.
At Mind we are regularly confronted with issues of the kind outlined
above from the service user perspective either as a result of
an individual request for information, advice or support or in
the course of general policy work. There are limits to our ability
as a charity to undertake the intensive work required to influence
the law, policies and practices of public authorities. We feel
the lack of a body with whom these issues may be more thoroughly
The contrast with discrimination is instructive.
As our survey Sticks and Stones found, people with mental
health problems face immense discrimination, particularly in employment.
Mental health problems are poorly understood, feared and stigmatising
for the individual. In the field of disability mental illness
is recognised as the most disadvantaged ground of disability,
as was confirmed by the DRC's recent unpublished study of employment
discrimination cases in the Employment Tribunal. We work in tandem
with the Disability Rights Commission to tackle these issues eg
through proposed amendments to the DDA. They benefit from our
unique contacts with users of mental health services and we can
benefit from their resources, their links with government and
their authority. The DRC's mental health action group keeps an
ongoing brief. The partnership with a Commission is a productive
way of increasing impact and producing results. The same could
be the case with a HRC.
Finally, in the context of mental health, we
question how it can be seen as vital to have a body to protect
people from discrimination but not to protect their human rights.
121 Environmentally Friendly? Patients' Views
of Conditions on Psychiatric Wards (2000); Creating Accepting
Communities (2000); Respect-Older People and Mental Health
Problems (1999); Yellow Card Report (2001); Shock Treatment:
a survey of people's experiences of ECT (2001); Mixed Sex Wards
(unpublished 2002); Mind the Law (2000) Back
There has been an upward trend of detentions since 1991 although
official policy is to reduce the numbers of people detained. DOH
Statistical Bulletin, In-patients formally detained in hospitals
under the Mental Health Act 1983 and other legislation, England:
1991-1992 to 2001-02 Back
The Biennial Report of the Mental Health Act Commission (1999-01) Back
2000 1 FLR 909 Back
Professor Genevra Richardson highlighted other issues at her BIHR
lecture, December 2002 in particular the retention of the Secretary
of State's power over leave and transfer Back