YOUR HUMAN RIGHTS UNDER SECTION OF MHA 1983

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How to Get Redress

The Right to Privacy

The Right to Know

The Rights of Suspects

The Rights of Defendants

The Rights of Prisoners

The Rights of Victims and Witnesses

The Right of Peaceful Protest

The Right of Free Expression

The Right to Receive Equal Treatment

The Rights of Immigrants

The Rights of Travellers

The Rights of Workers

The Rights of People Detained under the Mental Health Act 1983

The Rights of Children and Young People

The Rights of the Bereaved


> Rights of People Detained Under the Mental Health Act > Rights in Hospital
Rights in Hospital
Property and Finance

Under existing law, all adults are presumed to have the capacity to manage their own affairs unless the contrary is shown. The fact that a person is detained in hospital under the Mental Health Act does not mean that he or she is incapable of managing his or her personal or financial matters. If a person is considered to be incapable of managing his or her own financial affairs, an application can be made to the Court of Protection to appoint a receiver to do so.

The Right to Receive Visitors

Detained patients have the right to be visited by their friends and family. The Code of Practice makes it clear that visitors should only be excluded in limited, and clearly documented, circumstances. Such circumstances could include cases where the visit is likely to cause a deterioration of the patient’s mental health or where there are concerns that the visitor may bring illicit drugs into the hospital.

Where such visits are refused, this must be justified under Article 8 of the Convention on the ground that the refusal is in the interests of public safety, preventing crime and disorder and protecting the health, rights and freedoms of others.

Correspondence

The MHA provides that if there has been a written request by the recipient, postal packets sent by a detained patient may be withheld.

For patients detained in the high security hospitals (Broadmoor, Rampton and Ashworth) the MHA provides for further potential restrictions on correspondence. Postal packets sent by such patients may be withheld from the addressee if the managers of the hospital consider that the postal packet is likely to cause distress to the addressee or others (not including members of staff of the hospital) or danger to any person. The MHA also states that post sent to such patients may be withheld from them if it is necessary to do so in the interests of the safety of the patient or the protection of other persons. These restrictions do not apply to correspondence between the patient and certain recipients, such as a Member of Parliament, the patient’s legal adviser and the MHRT.

Voting

The Representation of the People Act 2000 removed the bar on the use of a psychiatric hospital address for registration purposes and thus the bar on detained mental patients voting. The removal of this restriction enables both voluntary and detained civil patients to register to vote either at that address or another address with which they have a local connection. However, this Act also introduced a ban on voting for those detained in hospital via the criminal courts.

Complaints

Detained patients who are not happy with their care and treatment can make a complaint under the National Health Service (NHS) complaints procedure. If they are not happy with the hospital’s response they can ask the MHAC to investigate their complaint.


Definition of Mental Disorder
‘Mental disorder’ is defined as:

‘mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of the mind.’

Mental illness is not defined in the Mental Health Act and the courts have considered a definition unnecessary, suggesting that the test should be what the ordinary sensible person would decide on a case-by-case basis. The conditions which are generally accepted as falling under the category of ‘mental illness’ include schizophrenia and mood disorders. Most admissions under the MHA requiring the category of mental disorder to be specified are admissions of individuals with a diagnosis of a mental illness.

The MHA defines three other forms of mental disorder:

* Severe mental impairment: ‘a state of arrested or incomplete development of mind which includes severe impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned.’
* Mental impairment: ‘a state of arrested or incomplete development of mind (not amounting to a severe mental impairment) which includes significant impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned.’
* Psychopathic disorder: ‘a persistent disorder or disability of mind (whether or not including significant impairment of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the person concerned.’

The European Court of Human Rights (ECHR) in the case of Hutchison Reid v United Kingdom recently established that detention could be lawful even where the patient is suffering from a psychopathic disorder that cannot be treated in hospital.

The Mental Health Act states that a person cannot be treated as mentally disordered solely on the grounds of ‘promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs.’

The terms used in the Mental Health Act are legal, not medical, categories. While recognising these terms have no legal meaning in the context of the Mental Health Act, many people, in particular people who use mental health services, prefer terms such as ‘mental health problems’ and ‘mental distress’ when describing their experience.


Your Rights to Protection
Following a crime, various forms of protection are available to victims, witnesses and their families.

Where there is victim or witness intimidation or a history of repeated offences, the police can decide to provide protection through provision of panic alarms, mobile phones, telephone link lines from your home direct to the police station, increased police patrols or 24 hour surveillance. In extreme cases they can provide protective custody, short or long term relocation or even a change of identity.

There are a number of recommendations in Speaking up for Justice - the Report of the Interdepartmental Working Group on the Treatment of Vulnerable or Intimidated Witnesses in the Criminal Justice System published by the Home Office in June 1998 - which relate to protection for vulnerable and intimidated witnesses, including developing protocols regarding witness intimidation and witness protection, the use of bail conditions and ensuring witnesses know of these, the installation of panic alarms, security lighting or home-based CCTV and the opportunity for a temporary or permanent housing transfer.

~ Domestic Violence

~ Human Rights Act Implications for Protection


Mental Health Act 2007



Mental Health Bill: latest newsletter, 27 June 2007

As promised, I am writing again now that the Bill has completed its passage through the Commons. I can best summarise the experience as being interesting but frustrating. The second reading debate was, in many ways, similar to debates in the Lords. The College submitted a briefing to MPs which is on the College website. The debate was uneventful.



Committee stage in the Commons has recently changed. Since January 1st all Public Bills are put through what is called a “public bill” committee. These committees are permitted to take written and, if they wish, oral evidence. Prior to this, committee consisted solely of the discussion of the Bill by selected members of parliament. We were somewhat surprised when it was announced that the Mental Health Bill would go before such a committee because it was introduced in November 2006. Again the College submitted evidence which is on our website. The committee did not take oral evidence.



The committee consisted of twelve Labour MPs, six Conservatives, two Liberal-Democrats and one Plaid Cymru. The MPs are hand-picked by their parties. In the Lords the opposition is permitted to have its own advisors on the floor of the chamber, so that all parties have access to advice and briefing in support of their side’s amendments. There is no such equality in the Commons. “In-flight refuelling”, as it was described by one MP, is only readily available for the government. It was very frustrating sitting a few feet from MPs as they discussed, for example, an amendment to reduce the ‘3 month rule’ (in relation to medication) to 2 months. They exchanged views on how long it takes for anti-depressant medication to work, from an acknowledged position of ignorance, whilst I had to sit mute (not a strength of mine at any time). Even more frustrating was the fact that the debates appeared to be largely pointless. There were twelve sessions of committee taking up significant parliamentary time (not to mention the time of those of us watching the proceedings) and yet when it came to voting every MP, no matter what views they had expressed, voted along with their party. In terms of bringing about change to the provisions of the bill it could all have been done and dusted within an hour. I was reminded of a line from the operetta Iolanthe (Gilbert and Sullivan) “they leave their brains outside and vote just as their leaders tell them to”. Actually that’s rather unfair, points expressed sometimes formed the basis for further debate and amendment.



Amongst many other amendments, we joined the BMA in tabling what is called a ‘probing amendment’ to explore issues relating to whether or not the Responsible Clinician needs to be able to provide objective medical expertise of mental disorder (in order to be able to keep under review whether or not the detained patient meets the criteria for detention as set out in Winterwerp v the Netherlands). The government majority defeated it.



The bottom line, as they say, is that the only changes made during this time were to remove every one of the Lord’s amendments and return the bill to its original provisions.



It was at the end of committee that five organisations (out of eighty) suspended their membership of the Alliance. I have previously posted a statement about this on the College website and so will not repeat the issues here.



The Bill then went to Report stage and Third reading. For the first time all MPs have a chance to vote. And it was around here that I really began to struggle. An amending Bill is very difficult to read. New clauses (clauses are what sections are called before the Bill becomes an Act) are relatively easy, apart from the convoluted legal language and their length (the new clause on victims’ rights is 10 pages long). The amendments however read something like this “Page 32, Line 4 (Clause 32), leave out from ‘subsection’ to line 5 and insert ‘(1A)(inserted by section 28 of this Act) insert- “(1B) ‘. Unless you know every word of the Act you need to look this up. Now amendments tabled during the passage of the Bill obviously amend the Bill, not the original Act. So, when you turn to the Bill you find, “page 14, line 42 leave out ‘36A’ and substitute ‘may make provision subject to specified conditions’ (this is a fictional, but realistic example). To make matters worse the Bill is reprinted after each stage, incorporating any changes made in the previous stage. It is, therefore, essential to have the latest version of the Bill, and the original Act alongside you when trying to get to grips with what the amendments mean. For Report stage the government alone tabled 60 amendments (the total tabled was double this, along with nearly 30 new clauses).



Enough chatter. The headline changes:

1. All the Lords changes, except those introduced by the government (of course), have been reversed. Exclusions, impaired decision-making, ‘treatability’, renewal, age appropriate services and personnel (CAMHS) and the restrictions to CTOs were all removed in committee.



However statements were made in committee and negotiations have taken place. There have been numerous small changes made. The big issues are:



1. Appropriate treatment will be defined in section 145: Any reference in this Act to medical treatment, in relation to mental disorder, shall be construed as a reference to medical treatment the purpose of which is to alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or manifestations.



1. All patients on a substantive section will have the right to the help of a mental health advocate.
1. Ensuring the patient receives medical treatment
2. Preventing risk of harm to the patient’s health or safety
3. Protecting other persons
2. Victims rights enhanced (Chapter 2 of Part 3 of the Domestic Violence, Crime and Victims Act 2004 amended).



And so back to the Lords on July 2nd. The potential for further change is now reduced. The Lords are only permitted to amend clauses which are new, or have been amended, since the Bill left their Lordships house first time round. If the Lords change anything it’s back to the Commons – and so on, until both Houses agree. This part of the parliamentary process is called ‘ping-pong’.



I have been asked several times if I think the Bill will complete its passage through Parliament. Because the Bill started in the Lords, the Parliament Act can’t be used. Furthermore, the Bill can’t be carried over to the next session (i.e. beyond the Queen’s speech in November. In other words the Bill could, in theory, fall. However I think this extremely unlikely. We will have a ‘Mental Health Act 2007’ (as it will be called).