Recent mental health legislation's impact on service users and carers

Mental Health Legislation

Critical Appraisal of Recent Mental Health Legislation and its Effect Upon Service Users and Carers

In recent years, we have seen a renewed government interest in public health. The everyday coming amendments and suggestions show that achievement of a healthy individual in society is not just related to medical treatment. It also shows that social, environmental and economic surroundings play an important part to determine levels of illness and disease (DoH, 1999). Before mid-twentieth century, majority of the moderate mental disorders were not taken seriously to treat and only people get assistance from their general physician and from family, friends, and clergy

." The care of people with serious mental illness was a state responsibility, provided in custodial mental hospitals for people who could not safely be cared for by themselves or their families...the segregation of such people in isolated custodial institutions probably contributed to the stigma associated with disorders of mental functioning. In addition, psychiatrists were separate from physicians in other medical specialties and commonly were held in low regard by their physician colleagues" (Mechanic D, 2003, p15).

This essay is aimed at exploring the impact recent mental health legislation has on carers and service users. Legislation has the potential to shape professional attitudes which can then be translated into positive or negative policy decision. For example, therapeutic jurisprudence is a relatively new approach to mental health law policy that envisions the construction of law as a therapeutic agent which positively impacts the emotional life and psychological well-being of individuals (Winick & Wexler, 2003). When mental health law policies are drafted in the context of a framework such as therapeutic jurisprudence, mental health consumers are more likely to assume an active and meaningful role in negotiating and designing treatment programs, collaborating with mental health and legal professionals, feeling are more likely to assume an active and meaningful role in negotiating and designing treatment programs, collaborating with mental health and legal professionals, feeling empowered, and having a more active role in their recovery process (O'Connell & Stein, 2005)

Medical model has been a contentious issue for some time and which therefore the autonomy takes account of service user's experiences. Cited in Barnes (2010, p1) "mental illness discourses linked to stigma and loss of rights, passive receipt of services, and interventions addressing biological rather than social causation, are viewed as presenting potential barriers to recovery and social inclusion" (Bailey, 2002; Rusch, 2005; Beecher, 2009). Their experience can be criticised to the point to significant of mental helath problems, "especially among people who encounter inequality" (Barnes, 2010, p1) and stigmatisation. Related to this, Barnes (2010, p2) claims that "people facing inequalities and disadvantage experience mental health issues at high rates" (Warner, 2003).

As Walton (1999, cited in Adams, 2002) states that the MHA 1983 provides the legislation for intervention but it does not assist the social worker as it is embedded with the psychiatry model of illness and medical treatment. Primarily medical support is given to patients as this can be far more cost effective than psychosocial models such as counselling or cognitive behavioural therapy. In most serious case reviews that have taken place a lack of joined working has been criticised heavily. Nevertheless, sole treatment does not always necessary give effective outcome, such as medication treatment often associated with the side effects and therefore many reviews claim that the effectiveness of the treatment for psychiatric patients could be possibly combined with psychosocial therapy, such as Cognitive Behaviour Therapy (CBT).

Related to underpinning influences and characteristics of the modernising health policy context within the models, Duggan et al. (2003) suggest that it should include; "the policy emphasis on partnership and collaboration, developments in service user involvement, the multi-factorial nature of the public health agenda, and evidence for the effectiveness of holistic interventions aimed at the root causes of ill health and health inequality" (p5). The reason is they (see Duggan et al., 2004) claim because of the complexity of health and illness within individual and communities increase inequality or unfairness to people who suffer with health in their everyday life. The government therefore try to support this combine process that has committed to make the links clear. Although these agreements may not adequate to the political, organisation, and culture barriers restrain to make it effective, however Maddock (2000) believes that the surroundings may carry on to be non-favourable to develop a partnership while national frameworks are determined at supervising the performance somewhat than progress, and where the dimension of partnership achievement is short-term. For example want for share considerate about the social nature of health itself, the roots of sickness and disability and a changeable promise to avoidance in addition to treatment can yet show the new strategy stress on partnership to be an unattainable delusion in practice (Duggan, 2003,). Consequently, the practice could make available the range of responses from both models to individual or community health needs that they require (Duggan et al., 2003).

2. The perspectives of mental health service users and their carers

The mental health service users and carers have their own concerning regarding services. Laws are created to reflect the beliefs and attitudes individuals hold regarding specific conduct. These laws can have major effects on the practice of psychiatry, the level of social control over the mentally ill (Gove, Tovo, & Hughes, 1985), and whether potential barriers in implementing these laws may be overcome (Fleishner, 1998). When legislation allows individuals to voluntarily and actively take part in their treatment choices and reduce potential coercion, attitudes can become a catalyst to legislative change (Wallsten & Kjellin, 2004).

Service users and carers have run-ins in with the civil and criminal justice system for numerous reasons including disagreement of treatment decisions made on their behalf under a doctor's recommendation (Starson v. Swayze, 2003), denial of having a mental illness, and drug induced states or paranoia which can impair judgement (Roth, Appelbaum, Salle, & Huber, 1982). Diversion practices encouraging appropriate medical treatment require collaborative dialogue across medical and legal disciplines.

In the United Kingdom (UK), patients have right to express their treatment preferences outside of the legal framework through 'crisis cards' (patients state their preferences without reference to the service provider) or 'joint crisis plans' (a discussion between the patient, service provider, friends, care coordinator and an independent facilitator regarding acceptable forms of treatment in the event of relapse) (Szmukler & Dawson, 2006). As in the U.K. case of Bournewood (N. Eastman and G. Peay, 1998) which drew attention to the widespread practice of admitting to psychiatric hospitals as voluntary patients people with autism, learning disabilities or Alzheimer's disease who are incapable of giving consent.

According to census results 2010 (Neighbourhood Statistic, 2011), around 62 million population in the United Kingdom (UK), and according to Carers UK (2011) there are around six million people in the UK provide unpaid supportive care for a friend, relative, or neighbour due to old age, disability, or illness, from this result they also tells us that the carers have saved £119 billion a year of the economic value contribution. This saving is a beneficial for the government budget, however the contribution of value gives the impact to the carers as individual whom have to give it up of work, social life and even many of them according to Carers UK (2011) "likely to suffer ill health (p.2)."

Consequently, this affects an individual in many ways, including financial burdens, exclusion and discrimination at work, interference with the ability to work, to seek higher education, and to participate in leisure activities. Considering the amount of the population that engages in caring, it is vital to account for the experience of the carer as well when formulating policy and drafting legislation that concerns service users.

Similarly there is mental capacity act (2007) for carers in which cares can make decision for patients with lack of mental capacity but making sure that the decisions are in their best interest. This is a new act that was introduced in 2007. There are many people who have mental problem like, dementia, learning disability, stroke, substance misuse, confusion, drowsiness and unconsciousness because of any illness. They cannot make decisions at their own. Under this law the mentally ill persons can chose a person as their attorney (one who is eligible by law to make decision for them) or in case they are unable to make a choice the court of protection will appoint an attorney for them. (Mental Capacity Act, 2007)

Carers have legal right that social services while assessing a community case must ask if there is a carer attached to the mentally ill and if yes they must consult with them and try to reach an agreement with the carers (Community Care Assessment Directions, 2004). In this regard, Department of Health issued a policy guidance in 1990 which advises that while assessing a community case the views and preferences of mentally ill and their carer's must be considered. It clearly states that the care plan for a disabled person must be a combination of views and preferences of "service user, carer, social service and between service user, carer, social services staff and those of any other agency involved"

Recently acts for protection of carers rights have been introduced like;

The Carers (Recognition & Services) Act 1995.

The Carers and Disabled Children Act 2000.

The Carers (Equal Opportunities) Act 2004.

The Carers Recognition & Services Act (1995) compacts in a straight line with the requirements of carers, it consists of the major legal duties. Through the 2000 Act carers rights were extended. They were given right to impede support services and to get payment for these services. The 2004 goes one step ahead. It impends a legal obligation on social services to notify carers about their rights. It also give carers the right to acquire education or training if they wish to work and take part in the assessments

4. Relevant Legislation

The laws are present for the protection of rights of service users and carers, and to hold liable the public health authorities for any harm exercised to the patients. For example, Case law since Barrett v Enfield District Council (2001, 2 AC 550)

( Wright, J,2004).

Harm resulting from negligent health advice may well be foreseeable, but satisfying the 'proximity' arm of the test for duty of care (Caparo v Dickman, 1990) will not be easy. It may be possible to argue that where an individual member of the public is invited to seek advice about a specific identifiable medical condition, with the expectation that they will act on the advice given without seeking face-to-face advice from a primary or secondary health care provider, then proximity can be predicated on an assumption of responsibility, (White v Jones, 1995) and reliance by the patient on the advice given (Smith v Bush, 1989).

A consequence of the Human Rights Act 1998 has been an erosion of the immunity of public bodies from liability for failure to meet the responsibilities they have assumed. Indeed Art 2 (see Sch 1 of the Act) imposes a positive duty to promote and safeguard life, a duty which lies with those public bodies with responsibility for infectious disease. The fact that the number of litigants who suffer harm in a disease outbreak might be large need not in itself suggest that a duty of care should be denied. Most of the current successful proceedings against public bodies had not requisite assessment of the policy arguments close floodgates of applicants,( Phelps v Hillingdon Borough Council, 2001) but it appears that the likelihood of a floodgate of actions effecting on public resources will not in itself cancel out a duty of care where other pointers of duty exist (Z v UK, 2001)

The power to charge is given to social services in respect of services to be provided to carers under the Carers and Disabled Children Act 2000 which received Royal Assent on July 20, 2000. That Act goes far beyond the Carers Recognition and Services Act 1995 which gave the right to carers to ask for an assessment but not to receive any services as a result. The 2000 Act gives a power, not a duty it appears, to local authorities to supply services to help a carer care for a disabled person and to make direct payments to carers, rather than to service users, to meet those carers' own assessed needs. These services can be charged for. The Act also introduces the concept of a voucher scheme to allow carers to take breaks from their caring roles although quite how this would operate in practice is not entirely clear.

Voucher schemes are not new; it may be remembered that in relation to their duties to asylum seekers, local authorities were prevented from making cash payments and as a result devised voucher schemes with local retailers in order to allow asylum seekers to purchase their own food and toiletries. The law in relation to asylum seekers has undergone considerable change in the past year but the disinclination to give them cash remains. The Immigration and Asylum Act 1999 attempts to remove the obligation on Social Services Departments to provide for asylum seekers under section 21 of the National Assistance Act 1948 by inserting into section 21 a new sub-section 1(A) which provides that local authorities may not provide accommodation for people where the only reason for their requiring it is that they are destitute or suffering from the physical effects of destitution. The plan is that responsibility for asylum seekers should be transferred from local authorities to the Home Office subject to transitional arrangements.

Finally, it is likely that the attempt to display the in relation to asylum seekers may be just that -- an attempt. There is currently no answer to the question which arises when an individual reaches the end of the asylum process. At that point there will be no duty on either the Home Office or the Social Services Department under the Immigration legislation to provide for an individual but the truth of the matter is that they are extremely unlikely to be deported for at least a year and possibly much longer. What is supposed to happen to that individual in the intervening period? The question is answered to some extent by the decision of the Court of Appeal in O. v. London Borough of Wandsworth (Court of Appeal, 2000) where the Court determined that a person's immigration status is irrelevant to humanitarian considerations of whether they should receive a service. To that extent, the fact that a person may arguably be here illegally is no bar to their receiving a service. The Court went on to say that notwithstanding the new section 21(1A) of the National Assistance Act there may well be circumstances where a person's need is due to factors other than destitution and therefore must be met. It is surely inconceivable that Courts will countenance a situation whereby an individual, by virtue of being destitute and on the street, has become ill but nobody has a duty towards him or her.

Conclusion

Overall there is need to reconsider the current legislation. The existing mental health legislation in most jurisdictions does not help, and the House of Lords was widely thought to have avoided the problem in its pragmatic judgment, which avoided the expense of formal detention by relying on the common law doctrine of necessity. In a dissenting opinion, Lord Steyn commented: "there can be no justification for not giving to compliant incapacitated patients the same quality and degree of protection as is given to patients admitted under the Mental Health Act."

The problem may be even more extensive ( Law Commission, 1995). Following on the movement to "normalise" the care of those with learning disabilities and dementias, most are cared for in residential units which are not hospitals, and most of the carers are not formally qualified as nurses, so detention under mental health law is not possible. However, it is not uncommon to hear of the use of seclusion, restraints, psychoactive medication, anti-androgens and other treatments in such settings.

As can be seen from the above, there are busy times ahead for Social Services Departments but there is little relief. The Care Standards Act gained Royal Assent in July this year and its substance operates to transfer regulatory functions from Social Services Departments to a new National Standards Commission. It is anticipated that the Commission will be established in October 2001 and that full transfer will take place in April 2002. For those who believe that social services should be provided by locally accountable social services authorities, it is only to be hoped that, despite the possibilities under the Health Act and the somewhat draconian powers of the Secretary of State under section 15 of the Local Government Act 1999, we will not be looking at a far wider reaching transfer of responsibilities in the near future.