Equal before the law?

Within the wider range of NHS development, mental health care
appears to be a priority for the government. One of the most
thought-provoking and controversial developments was the release of
the draft mental health bill in 2002. The groundwork for this began
in 1998 with the appointment of the Richardson Committee and the
publication of its report in 1999.

The bill was released for consultation in June 2002 but has yet to
be enacted. Despite its omission from the Queen’s Speech in
November a new revised version is expected to be published this
year.

The issue of equal opportunities in mental health is a
long-standing concern. Since 1995, the Mental Health Act Commission
has identified significant communication issues and culturally
insensitive care, as well as racial harassment, within mental
health care provision.

Many observers are concerned about the draft bill’s implications
for equal opportunities. They believe the definition of mental
disorder and medical treatment and the criteria for compulsion are
cumulatively too broad and that there is no sufficient safeguard
against inappropriate use of compulsion.^{1, 2}

The definition of mental health is also controversial. There is
little agreement of what is meant by the terms “mental health” and
“mental disorder”. Arguably, the bill’s broad definition of mental
disorder will have a disproportionate impact on women, working
class people and ethnic minorities.

Furthermore, the ideology that underpins the bill is of serious
concern. Hannigan and Cutcliffe argue that the policy and legal
framework that surrounds the provision of mental health care is
becoming more coercive.³

They say the “medical” or “disease” model is dominant in
contemporary mental health policy development. The “problem” is
therefore located in the individual and the solution takes the form
of medical and often coercive intervention.

The Department of Health (DoH) needs to make the following changes
to the draft bill to enhance the prospects of securing
implementation that is based on fairer and more equal opportunities
for all.

• Include a reference to existing anti-discrimination and equal
  opportunities legislation and of relevant principles in the bill
  itself rather than only in the code of practice, which seems likely
  to have, as now, advisory status. This will ensure that safeguards
  for equal opportunities are placed in primary legislation, where
  they could be used as the basis for any legal challenge.
• Scrutiny of the implementation of the future act must include
  monitoring at organisational level and with individual patients to
  determine whether there will be any discriminatory impact.
• Regulations must include the clearest possible statements about
  risk assessment and mental health assessment that take full account
  of cultural, racial, religious and other differences.
• Strengthen advocacy requirements so that all patients wishing
  to have an advocate can choose whether they have access to one from
  their own or from another culture.
• Ensure that interpreting and translation services with written
  or taped information in appropriate languages and in
  age-appropriate formats are readily available to patients and their
  nominated person.
• Advocacy provision must include models that are appropriate to
  local communities, and not simply a model developed from mainstream
  models. In other words, we need to take account of models of
  advocacy found predominantly in ethnic minority communities, such
  as that of “community development” workers.
• Strengthen assessment and care planning to show that the
  clinical supervisor has taken full account of the cultural,
  spiritual and ethnic circumstances of every patient.

Many involved in the mental health field await a revised bill
with interest. It is suggested in some quarters that significant
changes have been made following the consultation process.

Even if this were the case, the question remains as to why the DoH
released such a controversial draft bill, especially after much of
its own evidence highlighted significant inequalities in mental
health care delivery.

It is to be hoped that these will be dealt with to avoid any new
mental health act having an inadvertent and disproportionate impact
on equal opportunities and diversity. In the final analysis, the
act must be seen to complement existing anti-discriminatory
policies as well as other developing strategies and initiatives in
the overall arena of health care provision.

Bias against women   

Arguably, the broad definition of mental disorder in the bill
will have a disproportionate impact on women.   Clinicians are more
likely to use physical treatment such as electroconvulsive therapy
on them and they are more likely to be detained – and for
longer.⁴    According to the eighth and previous
biennial reports of the Mental Health Act Commission, women are
already over-represented in the mental health system and are more
likely to receive medication than males.   Indeed, the environment
within which they are treated is also less conducive to their
mental health.

Bill’s proposals

Some of the proposals outlined in the draft bill, which is in
three parts, are:  

• There will be one broad definition of mental disorder.  
• Individuals with some personality disorders will have access to
  mental health services and the draft bill guarantees safeguards for
  those individuals who are subjected to compulsory treatment. 
• All detained patients will have a care plan. 
• The mental health tribunals will ensure independent scrutiny of
  treatment. 
• New specialist independent mental health advocacy services will
  be available to everyone who is being treated under the act.  
• Medical treatment is defined as treatment provided under the
  supervision of an approved clinician and includes nursing, care,
  education and training in work and social and independent living
  skills.  

The Mental Health Act Commission, in its response to the draft,
says the definition of mental disorder and medical treatment and
the criteria for compulsion are cumulatively too broad and there is
insufficient safeguards against inappropriate use of
compulsion.²  

The Sainsbury Centre for Mental Health agrees and is concerned
that the draft’s conditions for compulsion are over-inclusive and
ill-defined.   Further, the definition of mental health is a highly
contested area. There is little agreement of what is meant by the
terms “mental health” and “mental disorder”.   

Madhun Kumar Foolchand is senior lecturer, School of
Health, University of Wolverhampton. E-mail
M.K.Foolchand@wlv.ac.uk 

References

¹ Mind, Draft Mental
Health Bill. Responding to the Consultation, London, Mind
Publication, 2002 

² Mental Health Act
Commission, The Mental Health Act Commission Response to the
Draft Mental Health Bill Consultation, Nottingham,
2002 

³ B Hannigan and J
Cutcliffe, “Challenging contemporary mental health policy: time to
assuage the coercion?” Journal of Advanced Nursing, 37(5),
477-484, London, Blackwell Science, 2002 

⁴ D Pilgrim and A Rodgers,
A Sociology of Mental Health and Illness. 2nd Edition,
Buckingham, Open University Press, 2001