Joint Committee On Human Rights Sixth Report


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 discrimination;

    —  influencing policy through campaigning and education;

    —  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.[121]

  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.

BACKGROUND

  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 resources—a situation which in itself leads to personal suffering and tragedy—a 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.[122]

  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) [123]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 very elderly);

    —  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 seclusion.

  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 units.

  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; Wilkinson's case);

    —  access to treatment in the community to prevent deterioration of health and danger to self or others (Clunis);

    —  confidentiality and the right to medical information;

    —  the process of implementing a detention—delays, fair hearing, lack of notice and information;

    —  nearest relative provisions;

    —  de facto detention of elderly people—locked wards—safety 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[124] 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 Rights (ECHR).

  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 Bill—presenting 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.)[125]

  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 priority—the 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 issue.

  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 rights—the 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 professionals—for 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 problems.

WORKING IN PARTNERSHIPS

  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 pursued.

  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.

February 2003


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

122   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

123   The Biennial Report of the Mental Health Act Commission (1999-01) Back

124   2000 1 FLR 909 Back

125   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


 
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