Where Will He Receive Better Care?


    When it comes to mental health law, England and Scotland are truly
    different countries. While the furore continues around the draft
    Mental Health Bill for England and Wales, the implementation of the
    Scottish act, while delayed for six months, is at least within
    sight.

     


    Right from the outset the Scottish Mental Health (Care and
    Treatment) (Scotland) Act 2003 has had an easier ride than its
    Westminster counterpart. While both the first and second drafts for
    England and Wales were criticised heavily, the Scottish bill
    enjoyed a warmer reception. For the most part, this has been
    attributed to the Scottish legislation simply being
    better.

     


    Campaigners south of the border have been open about their
    preference for the Scottish act and are keen for elements of it to
    be adopted in England and Wales. Why is this the case and where
    exactly have the civil servants in Whitehall gone wrong?


     


     


    DEFINITION OF MENTAL DISORDER

     


    Scotland:


    “Mental disorder” means any mental illness, personality
    disorder or learning difficulty. But the act makes it clear that a
    person is not mentally disordered solely on the grounds of: 


     


    • Their sexual orientation or deviance.

    •  
      Transsexualism.

    •   Transvestism.

    •   Dependence on or use of
      drugs or alcohol.

    •   Behaviour that causes or
      is likely to cause harassment, alarm or distress to another
      person.

    •   The fact that they are
      “Acting as no prudent person would act”.

     


    England and Wales:


    Much of the controversy surrounding the bill is down to the broad
    definition of mental disorder. It is defined in the bill as
    “an impairment of or a disturbance in the functioning of the
    mind or brain resulting from any disability or disorder of the mind
    or brain”. The fear is that such a wide definition will
    result in many more people being made subject to compulsory
    powers.

     


    Unlike Scotland, the draft bill does not list the circumstances in
    which an individual would be excluded from this definition.
    According to the Royal College of Psychiatrists, there is no other
    mental health act without exclusions in any other common law
    jurisdiction. Indeed, the Mental Health Act 1983 states that people
    cannot come under the act solely as a result of “promiscuity
    or other immoral conduct, sexual deviancy or dependence on alcohol
    or drugs”.

     


    The government has been urged to reconsider its stance on
    exclusions and to add certain clauses preventing the inclusion of
    people on the basis of their cultural, political or religious
    beliefs, promiscuity, or misuse of alcohol or drugs.


     


     


    PRINCIPLES IN THE LEGISLATION

     


    Scotland:


    Part one of the Scottish act lists a set of principles that those
    involved in implementing the act must take into account. These make
    it clear that the patient’s present and past wishes and
    feelings must be considered as well as the views of the
    patient’s carer, guardian or person they have chosen to
    support them and to protect their interests.

     


    Other principles cover the importance of patient participation, the
    provision of appropriate services, and the needs of the
    patient’s carer. The principles also set out how the
    functions of the act should be carried out, stipulating that any
    restriction on a patient’s freedom should be kept to a
    minimum.

     


    England and Wales:


    In the draft bill there are principles referring to the least
    restrictive environment, patient involvement in decision-making,
    and fair and open decision processes. But it is felt that these
    principles do not go far enough.

     


    The Mental Health Alliance, a coalition of more than 60
    organisations, which includes service users, health and social care
    practitioners, and lawyers, would like a set of general principles
    on the face of the bill. It believes that, as with the Scottish
    act, these principles “would give confidence to service users
    and act as guidance to practitioners and tribunals in applying and
    interpreting the act”.

     


    The alliance has developed 10 principles that it feels should be in
    place. These cover respect for a patient’s autonomy, the use
    of compulsory powers as a last resort and a holistic approach to
    treatment that includes social care needs as well as medical
    help.


     


    CONDITIONS REQUIRED FOR COMPULSORY
    TREATMENT


     


    1) Capacity


     


     


    Scotland:


    Under the Scottish act, compulsion is only permitted if a
    person’s ability to make a decision about medical treatment
    has been impaired by their mental disorder. Consequently, people
    who retain full decision-making capacity cannot be made subject to
    the act.

     


    England and Wales:


    Impaired decision-making is not a required condition for treatment
    to be enforced. Consequently, for example, someone who has capacity
    and chooses not to take their medication could be compelled under
    the act.


     


    2) Treatability


     


     


    Scotland:


    In order for a patient to be made subject to compulsory powers,
    medical treatment has to be likely to be beneficial. The act states
    that practitioners must be satisfied that medical treatment would
    either be likely to prevent the mental disorder from worsening or
    that it would alleviate any of the symptoms or effects of the
    disorder.

     


    England and Wales:


    There is no such treatability clause in the draft bill stating that
    treatment must be beneficial to the patient. Instead, it states
    that medical treatment can be provided to protect a patient from
    suicide, serious self-harm, serious neglect of their health or
    safety, or for other people’s safety.

     


    There is widespread concern 
    about the absence of a treatability clause in the draft bill. Many
    people feel that patients should not be forced to accept treatment
    if they cannot benefit from it. Currently, under the Mental Health
    Act 1983, treatment must be likely to “alleviate or prevent a
    deterioration” of an individual’s condition.
    Psychiatrists are of the view that compulsory treatment should be
    of “therapeutic benefit” to a patient. The Royal
    College of Psychiatrists says that this means that medical
    treatment is likely to bring about an improvement in symptoms or
    prevent deterioration in a person’s mental or physical
    health.

     


    The absence of a treatability clause has a particular impact on
    people with personality disorders. Under the 1983 act individuals
    with an untreatable personality disorder could not be detained in
    hospital, and this remains the case in Scotland. But under the
    proposals in the draft bill, there is a danger that people with
    personality disorders could find themselves on a treatment order –
    and so possibly detained in hospital – for the rest of their lives,
    without any improvement in their condition.


     


    3) Public
    safety

     


    Scotland:


    An individual with a mental disorder can be subject to compulsory
    treatment if they pose “a significant risk” to the
    safety of another person.

     


    England and Wales:


    The proposed threshold is lower. The bill states that an individual
    with a mental disorder could be compelled “for the protection
    of other persons” – there does not need to be a significant
    risk to others. “For the protection of others” is a
    broad category, and certain categories of people such as those with
    learning difficulties who show aggression could find themselves
    included, even if they represent a minimal risk to
    others.


     


    4) Right to assessment


     


    Scotland:


    There is a duty on local authorities and health boards to respond
    to written requests for an assessment of an individual’s
    needs. The local authority or health board must respond to the
    request within 14 days saying whether or not they intend to carry
    out the assessment. If they decide not to they must give reasons
    for this. Written requests can come from the person with the mental
    disorder, their primary carer or their named person.

     


    England and Wales:


    There is no duty on local authorities to provide assessments of
    needs. Many people feel that this should be included in legislation
    as about a third of people who seek help for a mental health
    problem are turned away.


     


    AREAS TO INCORPORATE

     


    There are other elements of the Scottish act that campaigners would
    like to see incorporated into the bill for England and
    Wales.

     


    Advocacy:


    In Scotland all people with a mental disorder have the right to
    access independent advocacy services. There is a duty on local
    authorities and health boards to ensure availability.

     


    Advance statements:


    Patients in Scotland have the right to make a written statement
    setting out how they would like to be treated and how they would
    not like to be treated should they become unwell in the future.
    Those involved in implementing the act must take advance statements
    into account.

     


    Continuation of care:


    The Scottish act places a duty on councils to provide care and
    support services to people who have had a mental disorder once they
    have been discharged.

     


    Under-18s:


    In Scotland, health boards must provide appropriate services and
    accommodation to meet the needs of children and young people. The
    Scottish Mental Welfare Commission must ensure that child
    specialists are included on its list of suitably qualified
    practitioners.


     


    AREA OF CONTENTION

     


    The proposed use of community-based treatment orders – or
    non-resident orders as they are also known – is unpopular in
    Scotland, just as it is in England and Wales. Under these orders,
    rather than being detained in hospital, patients could be forced to
    adhere to certain conditions in the community such as living in a
    specified place or attending appointments for treatment. There is
    concern that community-based treatment orders will result in more
    people being subject to compulsion.

     


    Despite the opposition, community-based compulsory treatment orders
    are on the Scottish statute books. Chances are that they will also
    become law in England and Wales.


     


    PROTECTION OF LIBERTY


     


    The Mental Health (Care and Treatment) (Scotland) Act 2003 was one
    of the most complex pieces of legislation to go before the Scottish
    parliament. About 2,000 amendments were made before the bill was
    passed in March 2003, and, all going well, the  act is due to come into effect
    later this year.

     


    Meanwhile, the debate continues over the content of the draft
    Mental Health Bill for England and Wales. The parliamentary
    scrutiny committee continues to hear evidence from mental health
    groups, and is expected to give its report in the
    spring.


    Rumour has it that Whitehall civil servants have refused
    suggestions that they copy parts of the Scottish act.

     


    Friction between Scotland and England may be inevitable in certain
    aspects of life, but when it comes to individuals’ liberty,
    surely it’s time to admit that – just sometimes – things can
    be better north of the border?

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