Mental health legislation and human rights in England, Wales and the Republic of Ireland

In 2005, the World Health Organization (WHO) published its Resource Book on Mental Health, Human Rights and Legislation (Geneva: WHO) presenting a detailed statement of human rights issues which need to be addressed in national legislation relating to mental health. The purpose of this paper is to determine the extent to which revised mental health legislation in England, Wales (2007) and Ireland (2001) accords with these standards (excluding standards relating solely to children or mentally-ill offenders).Legislation in England and Wales meets 90 (54.2%) of the 166 WHO standards examined, while legislation in Ireland meets 80 standards (48.2%). Areas of high compliance include definitions of mental disorder, relatively robust procedures for involuntary admission and treatment (although provision of information remains suboptimal) and clarity regarding offences and penalties Areas of medium compliance relate to competence, capacity and consent (with a particular deficit in capacity legislation in Ireland), oversight and review (which exclude long-term voluntary patients and require more robust complaints procedures), and rules governing special treatments, seclusion and restraint. Areas of low compliance relate to promoting rights (impacting on other areas within legislation, such as information management), voluntary patients (especially non-protesting, incapacitated patients), protection of vulnerable groups and emergency treatment. The greatest single deficit in both jurisdictions relates to economic and social rights.There are four key areas in need of rectification and clarification in relation to mental health legislation in England, Wales and Ireland; these relate to (1) measures to protect and promote the rights of voluntary patients; (2) issues relating to competence, capacity and consent (especially in Ireland); (3) the role of “common law” in relation to mental health law (especially in England and Wales); and (4) the extent to which each jurisdiction wishes to protect the economic and social rights of the mentally ill through mental health legislation rather than general legislation.It is hoped that this preliminary analysis of mental health legislation will prompt deeper national audits of mental health and general law as it relates to the mentally ill, performed by multi-disciplinary committees, as recommended by the WHO.     

Treating the vulnerable in England and Wales: the impact of law reform and changing policy

This article considers the role of treatment in the provision of mental health care in England and Wales. The current legislative position with regard to the making of treatment choices following compulsory commitment will be examined. Consideration will also be given to the position of the informal hospitalised patient, as in the case of R v. Bournewood Community and Mental Health NHS Trust, ex parte L and finally, the role of the common law in establishing (in)capacity in relation to the non-consensual provision of treatment for physical conditions. Attention will then be given to the reform process, which is currently ongoing in England and Wales, and its likely impact on treatment provision. The Mental Capacity Act 2005 received Royal Assent on the 7th April 2005, while the draft Mental Health Bill 2004 underwent detailed examination by the Joint Scrutiny Committee, a report of which was published on the 23rd March 2005. On the 13th July 2005 the British Government outlined its response following the publication of the Scrutiny Committee's recommendations and despite it accepting many of the recommendations put forward, some significant areas of concern remain making the draft Mental Health Bill 2004 "a long way from acceptable legislation".     

What do NHS staff learn from training on the Mental Capacity Act (2005)?

Purpose. Many studies have reported that professionals have a limited understanding of mental capacity issues. Implementation (in England and Wales) of the Mental Capacity Act (MCA) (2005) presents a challenge to services. The aim of this study was to evaluate the extent to which National Health Service (NHS) staff benefited from attending MCA training courses. Methods. Participants were assessed before and after MCA training using a structured interview, which included three scenarios describing mental capacity dilemmas, four vignettes addressing the role of the Independent Mental Capacity Advocate (IMCA), and 16 true–false items. Results. Interview performance improved post‐training, but this could be largely ascribed to an increased awareness of mental capacity issues, with minimal improvements in the knowledge that would be needed to undertake the assessments. Nine areas were identified where there remained significant gaps in participants’ knowledge post‐training. Participants with experience of dealing with mental capacity issues performed better than those without. Conclusions. The results suggest that methods other than formal training events may be needed to prepare health staff to implement new legislation.     

The Law and Incapacity Determinations: A Conflict of Governance?

This article will consider the highly charged questions raised by two major sets of law reforms in England and Wales, the Mental Capacity Act 2005 and the Mental Health Act 2007, which, although applying to closely related clinical populations, proceeded along entirely separate legislative paths. By justifying its proposals for reform of mental health legislation on the grounds of 'risk', the Government failed to take into account the implications of enforced treatment on patients who may retain decision-making capacity.     

Therapeutic jurisprudence and mental health tribunals: changing patterns of demand and its impact

For decades the mental health system has been ‘in crisis,’ with too little funding, too much demand and fragmented services. In England and Wales, decisions made concerning the care and treatment of those suffering from a mental disorder is governed by the Mental Health Act 1983 (as amended) (MHA 1983). Detention under the legislation is fraught with conflict; patient and clinical views are often at odds. Mental health tribunals enable patients to seek a review of their case and the legality of their detention. This paper argues that with the increased use of formal detention under the MHA 1983, the caseloads of mental health tribunals have similarly risen. Whether it is possible to advance therapeutic benefit to psychiatric patients attending tribunals is open to question. While mental health tribunals have a role to play in generating a positive psychological impact on an applicant, there is a risk that time and resource pressures may inhibit the adoption of a therapeutic approach. This paper considers the key drivers that are currently pushing detention rates up, the impact this is having on mental health tribunal caseloads and whether it is possible to bring therapeutic jurisprudence to the patient.     

The management and supervision of Approved Social Workers: Aspects of law,policy and practice

This article reports on the first extensive survey of Approved Social Worker (ASW) activity in Northern Ireland. It begins with a review of literature that identifies the complexity of legal and professional functions expected of ASWs, in the context of mental health legislation in the UK. Findings include high levels of perceived competence reported by practitioners, but diversity in the management of the service, and some problems in multi-disciplinary working. The emergency, out-of-hours duty teams in which many ASWs were employed appeared to vary in organization and operation. Service users and carers were generally dissatisfied with the responses to crisis services and appealed for adequately funded community supports. At a time when the review of the Mental Health (England and Wales) Act, 1983, is taking place, the authors suggest that ASWs can still perform an important statutory role, on condition that there is a more consistent approach to training, re-approval and funding of community-based services.     

The age of risk: risk perception and determination following the Mental Health Act 2007

Reforms to the mental health law framework for England and Wales, which were introduced by the Mental Health Act 2007, are now having a practical effect on day-to-day mental health decision-making. The 2007 Act amends the Mental Health Act 1983, which governs the compulsory hospitalisation and treatment of people with mental disorder; and represents the culmination of a protracted and controversial reform process which has spanned much of the last 15 years. One of the key foci in the 2007 Act is the question of the risk posed by the patient, primarily to others; a result of both the social and political impetus behind the reform process and mounting public anxiety at the management of the mentally disordered. The new Act seeks, as with past legislation, to find the elusive balance between protecting and facilitating the individual's autonomy while also providing an effective framework for the wider public right to protection. The 2007 Act solidifies the dominance of risk by providing a legitimating framework in which risk can be assessed, monitored, and managed. This attitudinal change is demonstrated by the gradual and almost insidious adoption of risk terminology within the practical decision-making setting and the increasing use of risk assessment and management tools. This article is informed by an empirical study which examined individual professional and institutional responses to the mental health legislation in relation to risk. It examines whether the amended legislative framework amplifies risk as an increasingly dominant concern within decision-making. The paper then goes on to consider how decision-makers use risk to assist with their daily roles. Extrapolated from data obtained through the study, several models of risk determination are then discussed. Finally, some thought is given to whether the extension of the risk concept has the potential to become more fundamental within the organisation and legitimisation of mental health care.     

论我国“精神卫生法”的称谓

我国2013年5月实施的《精神卫生法》以“精神卫生法”命名,这一称谓无法涵盖该法的全部规范、立法目的,容易将该法的社会法性质误解成行政法,还可能影响法的实施,与其他国家立法称谓的变化趋势相脱节.因此,基于明确立法目的,保护精神障碍者基本权利的社会法性质,顺应当今全体国民的精神健康追求,以及我国加入的国际人权公约等因素,我国现行“精神卫生法”宜正名为“精神健康法”.     

The nearest relative in the Mental Health Act 2007: still an illusionary and inconsistent safeguard?

Abstract

The role of nearest relative (NR) is intended as a safeguard in the Mental Health Act 1983 (as amended in 2007) to curb the excesses of professional discretion and protect patients from unwarranted compulsory hospitalisation. It is unique to the mental health compulsory detention process in England and Wales. There are, however, evident tensions in the role and a lack of clarity surrounding the precise functions of the NR. There is also some uncertainty and confusion among practitioners about the scope of the NR involvement, and government plans announced recently to review mental health legislation will include a focus on the role of family and carers in the care of detained patients. Despite long-standing concerns about the role, there is remarkably little published research available to date on its use and effectiveness, in so far as evaluating the extent to which it provides an adequate safeguard for patients, as intended by the legislation. This article will briefly explore the background to the role, highlight some of the difficulties and tensions within it and conclude with some observations about where further research and reform may be needed to provide greater protection and clarity for patients, relatives and health and social care practitioners.     

精神卫生法的理想与现实

《精神卫生法》的立法经历了一个极其漫长的过程,最终出台的法律文本仍然存在非常严重的问题,其立法所要解决的问题所要达到的目的非常高,而与中国的现实严重脱节。《精神卫生法》立法的三大理想中,保护精神病患者的合法权益是核心,并希望立法来解决包括被精神病等一系列的社会现实问题。但是,立法脱离现实,相关的内容甚至出现了错误,表现在精神病患者的收治、实施导致人体器官丧失功能的外科手术、急诊急救、基层医疗机构的精神卫生保障等方面。由于存在不切合中国实际国情的规定,《精神卫生法》在我国的实施将会大打折扣。建议《精神卫生法》重点关注严重精神疾病患者得不到治疗、肇事肇祸的严重精神疾病患者得不到强制医疗的现象,关注财政投入不足、强制收治不规范等方面的问题。     

Justice and equality in mental health law: the European experience

This is the text of a lecture delivered at the World Conference of the International Academy of Law and Mental Health in Sydney in September 2003 on the occasion of the award to the author of the Prix Philippe Pinel. Its theme is the potential of the European Convention on Human Rights to secure the human rights of people with mental disorders and disabilities, viewed in the context of the legislation on mental health and mental incapacity in England and Wales. Its conclusion is that the Convention is better at protecting them from unwanted or unnecessary treatment and care than it is at securing for them equal access to the treatment and care they want or need. The lecture has been updated to reflect developments in the United Kingdom since 2003.     

Transfers from prison to hospital under Sections 47 and 48 of the Mental Health Act between 2011 and 2014

In England and Wales, prisoners with mental disorder of such severity as to warrant inpatient treatment may be transferred to hospital under the Mental Health Act. UK Government guidance recommends that this process should be completed within 14 days; however, evidence suggests that in many cases it can take much longer. This retrospective service evaluation of 64 male prisoners, who were transferred under Section 47 or Section 48, aimed to evaluate transfer durations. The mean time from referral to admission was 76 days. Prisoners with a psychotic disorder were admitted more quickly. Remand prisoners were admitted more quickly than sentenced prisoners. Findings suggest that, in the UK the transfer time of prisoners under Sections 47 and 48 of the Mental Health Act continues to far exceed the 14-day target which raises concern about equivalence of care for prisoners. Our findings support arguments for fundamental amendments to the admissions process.     

Detention under the Mental Health Act: balancing rights,risks and needs for services

Mental health law has to balance considerations of both justice, and health and welfare. In the political climate of the 1990s mental health services have become targeted on those with serious mental illness, to address the objectives of containing risks and limiting service expenditure. This paper identifies that increasing rates of detention under the Mental Health Act through the 1990s in a particular region, disproportionately involve longer-term detentions (under section 3), men, and people with serious mental illnesses. Those detained are likely to experience social difficulties. Changes in legislation are imminent, and the paper concludes that thought should be given to the amount of statutory intervention in the lives of seriously mentally ill people, and to the principle of reciprocity in relation to those coerced for lesser periods. Services should seek to address the issues of social exclusion which are reflected in the circumstances of those detained.     

"Chartering" the limits of involuntary psychiatric treatment in Victoria: interpreting the Mental Health Act 1986 (Vic) in the age of the Charter of Human Rights and Responsibilities Act 2006 (Vic)

The Mental Health Act 1986 (Vic) allows for individuals with a serious mental illness to be treated on an involuntary basis either in a psychiatric hospital (on an involuntary treatment order) or in the community (on a community treatment order). The Act also establishes the Mental Health Review Board with the authority to review these orders within eight weeks of those orders being made and at least once every 12 months thereafter. This article analyses a recent decision of the board, Re Appeal of 09-085 [2009] VMHRB 1, in which the appellant challenged a decision of a psychiatrist to extend his community treatment order for a further 12 months. The appellant argued that aspects of his involuntary treatment under the Act amounted to "cruel, inhuman or degrading" treatment and therefore breached his right to freedom from "cruel, inhuman or degrading" treatment under s 10(b) of Victoria's recently enacted Charter of Human Rights and Responsibilities Act 2006 (Vic). Thus, the board was asked to consider whether the definition of "treatment" under the Act was compatible with the rights and freedoms enacted by the Charter. This was the first time that a Victorian court or tribunal had considered the impact of the Charter on involuntary psychiatric treatment. The decision was also a prelude to the Victorian Government's announcement that it would comprehensively review its mental health legislation, now the oldest in Australia. As this case highlights, in determining the future direction of mental health legislation and policy in Victoria, the Charter has been crucial.     

Inching toward incrementalism: federalism, devolution, and health policy in the United States and the United Kingdom

In the United States, the recently enacted Patient Protection and Affordable Care Act of 2010 envisions a significant increase in federal oversight over the nation's health care system. At the same time, however, the legislation requires the states to play key roles in every aspect of the reform agenda (such as expanding Medicaid programs, creating insurance exchanges, and working with providers on delivery system reforms). The complicated intergovernmental partnerships that govern the nation's fragmented and decentralized system are likely to continue, albeit with greater federal oversight and control. But what about intergovernmental relations in the United Kingdom? What impact did the formal devolution of power in 1999 to Scotland, Wales, and Northern Ireland have on health policy in those nations, and in the United Kingdom more generally? Has devolution begun a political process in which health policy in the United Kingdom will, over time, become increasingly decentralized and fragmented, or will this "state of unions" retain its long-standing reputation as perhaps the most centralized of the European nations? In this article, we explore the federalist and intergovernmental implications of recent reforms in the United States and the United Kingdom, and we put forward the argument that political fragmentation (long-standing in the United States and just emerging in the United Kingdom) produces new intergovernmental partnerships that, in turn, produce incremental growth in overall government involvement in the health care arena. This is the impact of what can be called catalytic federalism.     

Reforming the Mental Health Act 1983: an approved social worker perspective

The government green paper, 'Reform of the Mental Health Act 1983', was published in November 1999, for consultation by end of March 2000. This article offers comment on the operation of the Mental Health Act 1983 and the proposals for change, from an approved social worker perspective. Under the Mental Health Act 1983, approved social workers undertake social assessments of mental health crises, deciding upon the need for compulsory admission and treatment. To the debate on legislative change they bring a detailed social perspective on the processes and outcomes of statutory mental health intervention. Approved social workers' main concerns relate to the social context of mental health need, the availability of social resources, civil liberties, protections for people subject to statutory mental health interventions and the effective regulation of practice and services. Current proposals include options that would significantly reduce approved social worker involvement in decisions about compulsory admission and treatment; the implications of this are discussed.     

The ‘Hybrid Order’: origins and usage

The hospital direction (Hybrid Order) was inserted into the Mental Health Act (MHA) in 1997 (Crime (Sentences) Act, 1997). It enables higher courts to direct hospital admission for offenders, whilst still imposing a prison sentence. The origins of the ‘Hybrid Order’ and its patterns of usage are examined. Comparisons are made with its Scottish equivalent, Section 59A of the Criminal Procedure (Scotland) Act 1995. Both the ‘Hybrid Order’ and Section 59A have been used infrequently. This may reflect the fact that they were strongly resisted on ethical grounds at their point of inception and that they force the psychiatrist into the position of ‘punisher’, rather than ‘treater’. Since the 2007 Amendment of the MHA in England and Wales which expanded the remit of the ‘Hybrid Order’ to include all legal categories of mental disorder, not solely psychopathy, its use has unsurprisingly increased – this article delineates the considerations that need to be given in its recommendation.     

Autonomy, guardianship and mental disorder: one problem, two solutions

The law in England and Wales governing both the provision of medical care in the case of adults with incapacity and the provision of care and treatment for mental disorder presents serious problems for the principle of patient autonomy. The adult with incapacity has no competence either to consent to or refuse medical treatment but the law provides no statutory structure for substitute decision making on that adult's behalf. On the other hand the law does allow a person with mental disorder to be treated for that disorder despite his or her competent refusal. The nature of these inconsistencies is considered and the implications which flow from the singling out of mental disorder are examined with reference to experience in two Australian jurisdictions. The current proposals for reform of the Mental Health Act are then considered in the light of the conclusions drawn.     

论精神障碍患者强制住院异议机制的完善

以维护精神障碍患者的合法权益为立法宗旨、经过27年反复斟酌的《精神卫生法》终于出台，填补了精神卫生领域立法的空白，也将人权保障写入法律。精神障碍患者以自愿住院为原则，强制住院为补充，减少了“被精神病”的发生，但是对于强制住院的异议机制规定甚少且可操作性不强，不利于维护精神障碍患者的权利。在借鉴国外精神障碍强制住院异议制度的基础上，从提出异议的主体、异议机构以及异议程序方面，结合我国国情，对强制住院异议机制进行完善。     

Psychological models of mental disorder, human rights, and compulsory mental health care in the community

Recent amendments to the 1983 Mental Health Act in the UK (Mental Health Act 2007) include the controversial provision for: “supervised treatment in the community for suitable patients following an initial period of detention and treatment in hospital”. This provision is widespread, and more formal, in other English-speaking jurisdictions. Reviews of the international literature, human rights considerations and the perspective of psychological approaches to mental health care suggest that proposed ‘supervised community treatment orders’ are valuable, lawful, and compatible with the European Convention on Human Rights if certain specific conditions are met. Provisions for ‘supervised community treatment orders’ in the UK should be supported, but with the provisos that: the powers of the Mental Health Act are limited as in Scotland, to persons whose “ability to make decisions about the provision of [care] is significantly impaired”, that each order is time-limited and subject to review by a properly constituted Tribunal, and that the use of such orders should represent a benefit to people in terms of more appropriate treatment, or be a least restrictive alternative, or better preserve the person's private and family life.