Religion & Spirituality

Mental Health and Human Rights

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Research into some of the circumstances through which a person with a mental disorder can be detained and treated against their will under the laws of England and Wales. In light of the Human Rights Act 1998, this paper critically evaluates whether
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  G91.03 Explain the circumstances when a person with a mental disorder can be detained and treated against their will under the laws of England and Wales. In light of the Human Rights Act 1998, critically evaluate whether or not the law adequately protects the interests of such persons. 1. Introduction In the decade between 2005 and 2016, the reported number of uses of the Mental Health Act (MHA) 1983 rose by 40% 1 and the number of detentions specifically rose by 47%. 2 This steep rise in the use of compulsion does not sit well with modern approaches to mental health care provision, where there is a general consensus that the least restrictive care is not only legally preferential in terms of protection of fundamental rights, but is also therapeutically preferential. 3 This essay will limit itself to considering civil detainment under the MHA 1983, the statutory framework by which England and Wales cares for persons with mental disorders. The aim is to explain how and why people can be detained and treated against their will, and thereby elucidate why it is that so many are currently calling for reform. 4 Part 3 will analyse and assess the influence of the Human Rights Act (HRA) on this legal regime. Part 4 will contextualise foregoing critical evaluation within a broader political and comparative frame of reference and identify avenues for further research. 2. Detention in England and Wales Detention under s.2 e;hpowers professionals to admit someone to hospital for assessment, or assessment followed by treatment, for up to 28 day~ S.3 provides for civil detention for up to 6 months. It can be renewed for another 6 months and then every 12 months ereafter. .2 Care Quality Commission, 'Mental Health Act: the rise in the use of the MHA to detain people in England', January 2018. Online at https://www.cqc.org.uk/publications/themed-work/mental-health-act-rise-mha-detain england (last accessed 21/05/2018) 2 N. Glover-Thomas, 'Decision-Making Behaviour under the Mental Health Act 1983 and Its Impact on Mental Health Tribunals: An English Perspective' Laws, 7, 12, 2018, p. 5 3 For example, see Mental Health Alliance, 'A Mental Health Act fit for tomorrow', June 2017. Online at http://www.mentalhealthalliance .o rg.uk/news/2017-a-mental-health-act-fit-for-tomorrow.html (last accessed 21105 12 018); also supra notes 1 and 2 4 G. Szmukler and S. Weich, Has the Mental Health Act had its day?' Head to Head, BMJ 2017, online at hllo:;:.   /\ 1   din; •;l1n: / rnnkn t/3 591 b i i:5 2 f 8 (last accessed 22/ 05 /2018) 1 Summer 2018 - GDL Research Project   / applications cannot be used consecutively but can transition to s.})For both, the application must be based on the opinion of tw6'medical practitioners. S . 4 = described by Brenda Hale as the shortcut version of S.2 6 - allows for emergency admission - / / for assessmenJ. The applicant (usually an approved mental health practitioner, or AMHP) must have seen. he patient within the last 24 hours and certify that getting a second doctor would · ° ne~essit te undesirable delay (s.4(5)). Whilst it does not empower clinicians to compel treatment, and it only lasts for 72 hours, it can also lead to ss.2 or 3. Whilst detention rates have . generally risen, the use of s.4 has fallen considerably. 7 / For both sections, patients can be discharged by their responsible clinician, hospital manager or the llearest relative. An application for detaining someone will only be successful if the provisions of s.2 and s.3 are met (see Part 2.2). 8 2 1 Mental Disorder \ In W v L~; the court was faced with what Denning LJ saw as a mixed legal and medical problem . Psychiatrists could not agree if the patient had a 'mental illness' under the MHA 1959 (which did not provide a definition). f he did, he could be detained and treated despite his and his wife's wishes to the contrary. 9 Lawton LJ ruled that 'mental illness' should be construed from the perspective of ordinary sensible people . 10 Lady Hale describes this as the man-must-be-mad test , and it reflects the fundamentally social -as opposed to medical -essence of mental illness. 1 1 This approach came under pressure from the ECtHR when they ruled that mental disorder must be evidenced by objective medical expertis   12 S.1 (2) MHA 1983 now defines mental disorder as any disorder or disability of the mind , and the latest MHA Code of Practice echoes the ECtHR's ruling, instructing that 'relevant professionals' should decide if a disorder exists or not. 13 Whilst 5 R v Wilson Exp. Williamson [1996] C.O/D. 42 6 B. Hale, 'Mental Health Law' Sweet Maxwell, sixth edition, 2017, p 140 7 Ibid. ( From nearly 1,600 in 1997/98, admissions [under s.4] fell to 405 in 2015/16. ) 8 Mental Health Code of Practice, 14.1 9 [1974] Q.B. 711 10 Ibid. p 719 11 B. Hale, supra note 6, p 54 2 Winterwerp v Netherlands 6301/73 [1979] ECHR 4 13 MHA Code of Practice, 2.4 2 /  evidencing the impact of regional human rights jurisprudence on the English legal system, does this transition to a more medicalised model for mental disorder equate to better protection of mentally-disordered people's interests? Unlike most somatic problems, diagnosis of mental ill-health has been criticised for lacking robust, quantifiable criteria. 14 More so than other branches of medicine, the relatively subjective experience and opinions of clinicians are decisive. 15 Judgement is driven by recognition of socially abnormal symptomatic behaviours which, internationally, are treated on basis of one of the two main 'nosologies' (classification systems): either the World Health Organisation's International Classification of Diseases (WHO-ICD) or the American Psychology Association's Diagnostic and Statistical Manual of Mental Disorders (APA-DSM). A detailed discussion of the differences between the two nosologies is beyond the scope of this essay. 16 What is important is that, when combined with the critiques to which they have both been subjected, these differences suggest a lack of forcefulness in medical decision-making which could be unfavourable for patients.17 After all, the DSM and ICD are as much products of negotiation [reflective of] diverse interests and political factors as they are of scientific consensus. 18 Whilst it is difficult to measure, industrial interests have surely had a profound effect on psychiatry. 19 As the categories of mental disorder have proliferated, so too has the number of 14 See for example, E. Maisel, 'The New Definition of a Mental Disorder: Is it an improvement or another brazen attempt to name a non-existing thing ? Psychology Today, 2013, online at hltps \'\\'\ . Js\ · 1 ..:ho I 02. lLKl~l\ . (:on1/u s/b ;~/r\   :l hi n k H . rncn tai-hca 1th /10 i 307/t h 1   · n .:: \ \·-def n. i i un-rn·  ·n Lai ~d isord ~- (last accessed 22/ 05 /2018) 15 L.A . Clark et a l. 'Three Approaches to Understanding and Classifying Mental Disorder: ICD-11, DSM-5, and the National Institute of Mental Health's Research Domain Criteria (RDoC)' Psychological Science in the Public Interest2017, Vol.18(2),p. 75 16 For a detailed discussion, see ibid 17 For example, E. Maisel supr note 14 ; for a somewhat less controversial critique, see T. Inset 'Post by Former NIMH Director Thomas Insel: Transforming Diagnosis National Institute of Mental Health hll;)s:/hn\ 1\. ni 111 h.11ih. 20\ /about/ L i ·co <.:lors/thomas-i ~e l/lllo 2i21J l 3/ trn11s lrn 1 i n2-dia1.rnosis.shtrnl (last accessed 22/ 05 /2018) 18 P. Bartlett and R. Sandland, 'Mental Health Law: Policy and Practice' Oxford University Press, fourth edition, 2014, p. 14 19 See for exampl e, L. Cosgrove, S. Krimsky, 'A Comparison of DSM-IV and DSM-5 Panel Members' Financial Associations with Industry: A Pernicious Problem Persists' PLoS Med 9(3) ( Psychiatry has been at the epicentre of these concerns [regarding the influence of pharmaceutical companies], in part because of high-profile cases involving ghostwriting ... failure to report industry-related income ... and studies highlighting conflicts of interest in promoting psychotropic drugs ... The revised [DSM] ... has created a firestorm of controversy because of questions about undue industry influence. ) 3 /  people taking psychiatric medication. 20 Yet the effectiveness of psychoactive drugs has not been conclusively linked to the states they induce. 21 Instead, there is strong evidence to suggest that variance in therapeutic outcomes is more strongly linked to extra-medical issues such as the patient-doctor relationship than the psychiatric-paradigm or medication prescribed. 22 Whilst social attitudes regarding mental ill-health have never been exactly admirable, Timimi argues that the medical-model (which is encouraged by the MHA and European human rights law after Wintwerp 23  does not serve mentally-disordered patients' interests either, and that the stigma it carries may in fact hamper prognosis: Nearly all studies that have looked at public attitudes towards mental illness have found that the medical model ... is associated with increased negative attitudes, greater fear of patients, and a greater likelihood of wanting to avoid interacting with them. 24 2.2. ompulsion nd treatment f therapeutic outcomes are dependent on strong relationships and flexible care, the use of compulsion seems illogical. Indeed, evidence suggests the clinical and social benefits patients experience following involuntary admission and subsequent treatment are on average rather limited . 25 Thus, whilst s.63 MHA provides the basic rule that consent of a patient shall not be 20 R. Bentall, N. Craddock, Do we need a diagnostic manual for mental illness?' The Guardian February 2012. Online at https://www.theguardian.com/commentisfree/2012/feb/l f diagnostic-manual-mental-illness (last accessed 22/05/2018); see also D. Brown and N. Triggle, 'Mental health: 10 charts on the scale of the problem', BBC News, September 2017, online at https://www.bbc.co.uk/news/health-4 l l 25009 (last accessed 22/05/2018), The number of medicines dispensed for anxiety, depression, obsessive-compulsive disorder and panic attacks has more than doubled in the past 10 years. I 2 S Timimi, No more psychiatric labels: Why formal psychiatric diagnostic systems should be abolished' International Journal of Clinical and Health Psychology 14, 2014, p. 210, 211 W B. Stiles et al. 'Effectiveness of cognitive-behavioural, person-centred, and psychodynamic therapies in UK primary-care routine practice: replication in a larger sample' Psychological Medicine, 2008, 677--688 (a study of more than 5000 cases across different NHS setting throughout the UK which found that theoretically different approaches [to psychotherapy] tended to have equivalent outcomes , a fact referred to as psychotherapy's equivalence paradox .) 23 Supra, note 12 4 S Timimi, supra, note 21, p.211; this should however be compared with results from National Attitudes to Mental Illness Survey, which evidenced a rise in the numbers of people who say they're willing to live with, work with and live nearby sufferers of mental ill health , reported in D. Brown and N. Triggle, supra note 20 5 Priebe, S et al. 'Predicators of clinical and social outcomes following involuntary hospital admission' Eur Arch Psychiatry Clin Neurosci 2010 p. 8 4  required for any medical treatment (deemed necessary by the responsible clinician for a specific patient's mental disorder), the Code of Practice encourages the empowerment and involvement of patients throughout their care. 26 The overall policy of the Act is treatment, rather than mere containment. 27 But what is the scope of treatment? The MHA defines it widely to include everything from nursing and psychological intervention to mental health habilitation, rehabilitation and care (s.145(1)). It must have alleviation, or the prevention of a worsening of the disorder or one or more of its symptoms or manifestations as its goal (s.145( 4 )). The Code of Practice affirms that having a mental disorder is not in of itself grounds for compulsion. 28 Thus, admission under s.2 (for assessment) or s.3 (for treatment), as well as transfer of a convict to hospital from prison to hospital, must be warranted by the nature or degree of the patient's disorder. 29 Summarising the case law, Lady Hale instructs that ' nature' refers to the type of disorder ... while 'degree' refers to its current severity. 30 The risk patients pose to themselves and others is therefore of primary importance. In M v Mersey Care NHS Trust the court decided that risk was an influential factor for what counts as treatment. 31 In M v Nottinghamshire Health Care NHS Trust the upper tribunal ruled that 'treatment' includes the milieu therapy of simply being on a ward and left the distinction between treatment and containment for case-by-case determination in the Mental Health Tribunal. 32 In Reid v Secretary o State for Scotland the only 'treatment' the patient was receiving was high security detention. The court agreed with his doctor that in light of his anger management issues, the structured environment of the ward combined with watchful eye of the clinician amounted to treatment. 33 26 MHA Code of Practice, 1.1 , l. 7 -l.12 27 S. Robinson, 'Mental Health Act 1983', Westlaw, 2017 28 2.6 MHA Code of Practice 29 S.2(2)(a); s.3(2)(a); ss.36(l)(a), 37(2)(a)(i), 45A(2)(b), 47(l)(b), 48(1)(a) MHA 1983 30 B. Hale, supra note 6 p. 65 3 [2013] UKUT, paras 7 17 32 [201 ] UKUT 59 (AAC) para. 34, 35 33 [1998] UKHL 43 5
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