Mental Health Legislation Critical Appraisal of Recent

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

3. Differing professional roles and systems for communication and collaboration

The nature of public health practice requires a delicate balance between protecting the health of a population group on the one hand, and respect for the rights of the individual within that population group on the other. Measures needed for public health protection may result in the infringement of individual autonomy, and in extreme cases, restrictions on individual liberty. This is particularly the case in relation to communicable diseases such as tuberculosis and SARS, where the incidence of contagion can be considerably reduced by isolation of infectious persons. Given the 27 per cent increase in the incidence of tuberculosis in the UK over the last ten years,( Public Health Act 1984) and, in particular, the increase in multidrug resistant tuberculosis, public health powers continue to be necessary for protection of the public health ( Harris, A and Martin, R, 2004).

At common law, a competent person cannot be locked up just on the basis of dangerousness to himself or others,( Mental Health NHS Trust, 1999) and if lawful detention were to take place it must be authorised by statutory powers to avoid an action in trespass against the detaining authority. The Public Health Act 1984 contains powers of forcible removal to hospital and detention in relation to certain diseases made modifiable under the Public Health (Infectious Diseases) Regulations 1988. These powers were framed in early public health legislation (Coker, R, 2000)

In particular, the powers of removal and detention as they are framed in the Public Health Act can be implemented by a fairness of the peace acting ex-parte. Within common law it is not confirm as if a judge can hear an ex-parte request which engages a denial of freedom, (St. George, 1982) but more significantly Art 6 of the ECHR offers that every individual shall have the right to have a just public hearing as the fortitude of his civil rights. The plaintiff must have genuine and effectual admittance to a court, should be given time to organise a defence and a real chance to present of the case (Dombo Beheer BV v Netherlands 1993). In reality, many persons subject to detention orders have no such opportunity. Nor is there any provision in the Public Health Act for review or appeal in relation to detention for diseases such as tuberculosis. The right to apply for judicial review of an order for detention may not in itself amount to a sufficient opportunity for appeal where the original decision has been made in an ex-parte hearing and there has been no opportunity for review or appeal to an independent panel (Dorset County Council 2001 ). The power to detain under the Act need not be time limited, and this is of particular concern when comparison is drawn with provisions under the Mental Health Act 1983, where an initial application for civil confinement can only be made for up to 14 days. It is unlikely that human rights would support fewer rights to competent persons who refuse detention than to incompetent persons.

The powers of forcible detention might also contravene Art 5 of the ECHR which protects against unnecessary deprivation of liberty. While there is an exception to this provision in cases where deprivation is for the purposes of prevention of the spread of infectious disease, the onus is on the detaining body to justify the detention. It is arguable that the WHO (World Health Organisation)-recommended Directly Observed Therapy approach to tuberculosis is a less restrictive alternative to detention,( Department of Health, 1998) and, as the powers contained in the Public Health Act allow only for compulsory detention in a hospital and not at home or in any other appropriate place, such detention might be difficult to justify as proportionate to the public health objective. Equally, detention might be in breach of Art 8, the right to private and family life. The shortage of isolation units in hospitals may result in patients being detained far from home and family.

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.