SURVEY BY COMMISSION ON EQUALITY AND HUMAN RIGHTS AND
THE COLLEGE'S RESPONSE
The CEHR has recently conducted a survey among government
and public service organisations to guage the extent of knowledge
about Human Rights that exists in these organisations. We are
publishing the some of the questions and the College's response as
it gives a valuable insight into knowledge and problems within the
mental health services.
Human rights inquiry
Call for evidence response form for representatives of
service users/equality groups
We need your help!
We are carrying out an inquiry to find out how public
authorities are using the Human Rights
Act in Britain.
Under the Human Rights Act, 'public authorities' include both
those bodies which would usually be thought of as public
authorities (like local authorities) but also private or voluntary
organisations when they are carrying out public functions (for
example, a private company running a prison). Our inquiry applies
to all the public authorities covered by the Act.
We want to hear from you about any examples of public
authorities using human rights to improve services or about
situations where they have failed to do so.
Do you know of any such organisation that treats its customers
with dignity and respect or tailors its services to suit the needs
of different individuals?
Have you represented public service users who feel that a public
authority has treated them unfairly or in a way that potentially
breached legal requirements under the Human Rights Act?
Please tell us about your
experiences – positive or negative – using the call for evidence
form.
...
2. What do you
think would help individuals using the Human Right Act to challenge
poor public services?
Individuals with a mental illness ( and who are unwell at the
time )and people with learning disabilities have great difficulty,
because of their condition, in challenging poor public services .
This is particularly acute for those who are in hospital or
residential care. Advocates are essential to help people to
formulate their views and to take them forward.
3. What is your experience
of how the Human Rights Act has been used by public
authorities?
Mental health patients are amongst
the most vulnerable in our society and we look upon the application
of human rights principles as vital to ensuring that their care is
provided in a safe and respectful environment which protects their
dignity and autonomy and promotes their recovery.
Discrimination and
stigma:
Stigma, manifested primarily as
discrimination, stands at the centre of the problems of unequal
service provision for people with mental illness. In one sense it
gives rise to those with mental health issues not being treated
with the dignity and care they have a right to expect; in a second
way it is reflected in the inadequate funding for, and inadequate
access to, health service provision in vital areas. For instance
the government policy to restrict access to effective new services
such as crisis resolution and home treatments to people of working
age is now understood to be an example of age discrimination not
found for people with physical ill health. Another example is the
lack of specialist care for mental patients who present at A&E
departments. This is despite the fact that cases of deliberate self
harm through poisoning, cutting or attempted strangulation etc.
account for a fifth of all A & E patients.
The report on Social Exclusion and
Mental Health cited stigma above poverty, isolation and
homelessness as the main source of social exclusion for people with
current or previous mental health problems. The
College strongly feels that stigma is the chief barrier to
effective mental health care and so is addressing concerns of
stigma and discrimination in mental health services forcibly in its
“Fair Deal for mental health” campaign which will build on the
successes of our previous anti-stigma campaigns.
The College understands that there
is no provision for the right to healthcare in either the European
Convention on Human Rights or the Human Rights Act. However the
provision of mental health services is not up to the same level as
that of physical health services, showing a clear level of
institutional discrimination against mental health services. The
clear injustice of this situation is particularly acute for
patients detained under the Mental Health Act. However the
intention behind this enforced treatment, the alleviation of a
severe mental disorder, is hindered by inadequate resources such as
a lack of skilled professionals and qualified psychologists to
deliver specific treatment. Without the allocation of adequate
resources the duration of detention is likely to be prolonged and
insufficient as well as leading to the added problem of inadequate
treatment increasing the risk of relapse and so further
admission.
The situation is arguably more
acute in prison settings. Many members of the College, including a
number who sit as members of the Parole Board, report seeing
prisoners who have passed their tariff date but have no foreseeable
prospect of progress because of inadequate resources to provide the
treatment programmes deemed necessary before release can be
contemplated.
More generally the Disability
Rights Commission (DRC) 2007 report Equal Treatment: Closing
the Gap Report, found clear cases of inequality in the health
care of people with mental health problems and learning
disabilities that contribute to lower life expectancy and higher
morbidity for these groups. The DRC found that these groups are
less likely to get some standard, evidence-based checks and
treatments (such as health screening or statin treatment for heart
disease) and face huge access and attitude barriers in using health
services. The report Equal Treatment: Closing the Gap - One
Year On; Report of the Reconvened Formal Inquiry Panel of the
DRC’s Formal Investigation into the inequalities in physical health
experienced by people with mental health problems and learning
disabilities reinforces the continued inequalities towards those
with mental health problems:
It is clear to us that not enough
strategic change or prioritisation has yet taken place for us to be
confident that the stark inequalities the original DRC
Investigation highlighted will be significantly reduced in the
foreseeable future. This is extremely disappointing. We cannot
over-emphasise the need for greater urgency. Accusations of
institutional discrimination are not unfounded given the level of
inaction to tackle the significant health inequalities evidenced.
For many people with learning difficulties and mental health
problems this is quite literally a matter of life and death.
Detained
Patients:
The Mental Health Act Commission
(MHAC), whose role is to monitor and inspect the care of detained
patients, is particularly concerned with the application of human
rights principles, primarily because these patients are
involuntarily deprived of their liberty.
In the 12th Biennial
MHAC Report 2005-7 the Commission stated that
wards: “appear to be tougher and scarier places than we saw a
decade ago.” This is also reinforced by patient experience
especially amongst particular groups. Many female patients reported
fear for their safety and actual incidents of physical or sexual
abuse. In many mixed units, women will be in a minority. Bed
management can frustrate attempts to segregate sleeping areas in
mixed units. We also have some concerns over the placement on acute
mental health wards of older patients, including some suffering
dementia, who have complained to us of feeling vulnerable and
unsafe. They felt anxious witnessing the volatile behaviour of some
of the more acutely ill younger patients and by the constant loud
noise.
The MHAC reports an environment
that would be unthinkable in a physical disability ward:
We have found wards that are
unventilated and hot in summer but cold in winter; wards where
there is little natural light; noisy and smoky wards; broken, worn
and stained furniture, sticky floors and bad smells; vermin and
cockroach infestation; peeling paint and graffiti; non-existent or
broken lockable storage for patients’ belongings. We have had cause
to comment on broken and dirty toilet facilities, and on inadequate
numbers of toilet and bathroom facilities.
Many detained mental health
patients had broken or intermittent contact with their families
which is not only detrimental to their recovery and rehabilitation
but also calls into question their right to private and family
life. The lack of attention to child friendly or child appropriate
visiting facilities is an exacerbating factor in some instances.
This state of affairs is especially concerning considering that
unlike other patients they have no choice in whether and where they
are admitted and the hospital is, for long periods of time, their
home.
The College and its members have
placed the theme of safety and suitable ward environments at the
centre of its new campaign “Fair Deal for mental health”, as it is
so central to the well-being of our patients.
Restraint:
The College is particularly
concerned about the lack of guidance concerning the use of
restraint on children and young people. Restraint includes the use
of medication as well physical restraint and both can have
unexpected and unacceptable consequences. The use of inappropriate
restraint without guidance to protect either the patient or staff
member is extremely dangerous and potentially fatal. Children and
young people’s recovery can be seriously jeopardised by the
inappropriate use of restraint at a time when they need as much
support as possible. We understand that under extremely rare
circumstances the use of control and restraint may be acceptable as
a last resort. We welcome The Joint Committee on Human Rights’
recommendations that there is increased monitoring by the
Government and Youth Justice Board to ensure that any use of
restraint is strictly necessary and proportionate and that
techniques which involve the deliberate infliction of pain are
abolished. However the fact that the issue of the use of restraint
on children and young people is not addressed in the Mental Health
Code of Practice is alarming, as the NICE guidelines on violence do
not apply to children, young people under the age of 16 or adults
with learning disabilities either. This particularly vulnerable
group needs the extra security of express regulation and guidelines
of practice to protect their human rights, and it is inexcusable
that they have been overlooked in this controversial area.
The use of restraint on adults has
also led to too many deaths in recent years. These
are often caused by the patient being held face down and
suffocating: a technique that not only borders on the inhumane but
is often fatal due to inadequate training of staff. This is doubly
unacceptable since the solution of better training and increased
awareness are widely available.
Deaths in
Custody:
The JCHR report “Deaths in
Custody” demonstrates a culture of
poor monitoring and adherence to the spirit if not the letter of
the Human Rights Act. It notes that mentally ill people are
sometimes kept in a prison environment due to a lack of beds in NHS
facilities. A majority of deaths in custody are self-inflicted but
a significant number are caused by either inappropriate doses of
medication or disproportionate restraint methods. Either of these
causes are unacceptable since guidelines exist for suitable medical
doses and training exists for safe restraint methods.
Prisons:
The College believes that the
mental health problems of people in prisons are serious and
urgently needs addressing. We draw the Commission’s attention to
the following extract from the JCHR report on Deaths in
Custody:
We are profoundly concerned that
the prison population contains some of the most vulnerable and
troubled people in the country, many of whom have a history of
having attempted suicide. Prisons, however well-resourced or
well-intentioned, cannot be an effective environment in which to
care for mentally ill or disturbed people who have been failed by
mainstream public services.
More than this, the evidence we
have gathered suggests that prison actually leads to an acute
worsening of mental health problems. By sending people with a
history of attempted suicide and mental health problems to prison
for minor offences the state is placing them in an environment that
is proven to be dangerous to their health and well-being. Positive
promotion of a person’s right to life requires that vulnerable
people in the state’s care are closely supervised and adequately
treated. It is a sad reflection on our society that we appear to be
using prison as a place to offload the individuals that are classed
as too difficult for mainstream public services. By criminalising
their mental illness through unnecessary imprisonment we are
creating a situation where far too many people take their own
lives. This is a clear example of how the Human Rights Act has not
been taken out of its legal context and made relevant to courts and
mainstream service provision through awareness raising of the
implications for service provision that the positive obligations of
Article 2 give.
In its evidence to the Committee
the Royal College of Psychiatrists stated that:
The risks to mental health … remain
high. Separation from family and friends, entry into an alien
environment, sudden withdrawal from drugs and alcohol, an uncertain
future, loss of job and income, the rupture of many social
relationships and supports, all induce mental distress and
disorder. It follows logically from this that the reduction of the
prison population may be the single most effective means of
improving the mental health of prisoners, and thereby reducing the
levels of self-inflicted harm.
The report noted that:
Research by Dr Alison Liebling at
the Cambridge Institute of Criminology, which used the General
Health Questionnaire to assess levels of mental distress in
prisons, has found that in the majority of prisons the rate of
distress was far above that which would be found in the
community.
The report also described the
impact of overcrowding in prisons which exacerbates the grave
vulnerabilities of many prisoners with mental health problems
including their susceptibility to self-harm and suicide. They also
reported that:
…rising prison numbers were
significantly impacting upon the ability of prisons to adequately
risk-assess prisoners when they enter a prison, and also on the
time that could be spent meeting the individual needs of prisoners.
In turn, this appears to be leading to a situation where prisoners
are becoming more vulnerable, more isolated and more prone to
self-harm and suicide. During our visit to Feltham YOI we were told
that overcrowding had led to problems retaining
Listeners—Samaritan-trained prisoners who support distressed
prisoners—as they had been transferred on overcrowding drafts to
other establishments.
They recommended:
It is an unavoidable conclusion
that until overcrowding is significantly reduced, prisons, despite
their best efforts, will find it extremely difficult to make any
real inroads in reducing deaths in custody. This is a matter of the
most serious concern and one which requires the utmost effort on
the part of everyone involved in the criminal justice system to
address.
Overcrowding results particularly
from a sentencing policy which is over-reliant on prison. It
results in people with mental illness and drug and alcohol
dependencies being in “a system that is at breaking point and
unable to meet its duty of care”. (Paragraph 120 of the JCHR
report). The College feels strongly that this is a very serious
issue as mental health service provision in prison is not up to the
national standard and so results in those with mental health issues
not receiving the care and treatment they require and that would
facilitate greater rehabilitation.
Faculty
Concerns:
The College’s Faculties have raised
numerous concerns over the years about the treatment that patients
in mental health wards receive and about mental health as service
within the NHS. We have put in responses to the Joint Committee on
Human Rights and are pleased to note that our suggestions are often
adopted by the committee in their final reports. However many of
our points, and those of the JCHR, are still relevant and so we
feel that it is right to continue to raise them and achieve reform
in the following areas:
The Old Age
Faculty highlighted the following issues in a consultation
to the Joint Committee on Human Rights (House of Lords, House of
Commons Joint Committee on Human Rights The human Rights of
Older People in Healthcare eighteenth report of session
2006-07):
-
The abusive infringement of human
rights experienced by older people in care homes. This report made
the point that this situation would be totally unacceptable in the
care of children and the elderly remain amongst our least protected
individuals.
-
There continue to be concerns
raised over the privacy and dignity of care in hospitals and
residential care homes.
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Older people with mental health
problems are excluded from certain categories of care home even
when these would best meet the person’s needs.
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Many older people have no
alternative but to enter a care home because the local authority
does not have the financial resource to fund the care that would
enable them to remain in their own homes as they would choose.
-
If older people suffer from
dementia and other forms of mental disorder their condition will
deny them the opportunity to voice their opinions and they may have
no other advocate.
The Learning Disabilities
Faculty raised the following issues in a consultation to
the Joint Committee on Human Rights (House of Lords, House of
Commons Joint Committee on Human Rights A Life Like Any Other?
Human Rights of Adults with Learning Disabilities seventh
report of session 2007-08). College members continue to report
problems about the quality of psychiatric care for adults with
learning disabilities. The main issues raised are: national
variations in the quality of care; lack of specialist psychiatric
provision or appropriate supported accommodation locally (leading
to individuals being placed in accommodation distant to their home
area family and social network); and a lack of resources to deliver
quality of care. We welcome the statements from the Healthcare
Commission and the Commission for Social Care Inspection that
“National Minimum standards for health and social care are key to
the protection of the rights of adults with learning disabilities.”
(Pg 55 of the JCHR report).
The Faculty of Forensic
Psychiatry raised the following concerns:
-
There has been a massive increase
in the use of Indeterminate Sentences by the Courts often on the
basis of poor quality risk assessments. The use of indeterminate
sentencing for people whose crime was relatively minor and sentence
short raises human rights issues. Despite short tariffs they may
then remained detained for public protection for long periods of
time. This will be on the basis of risk assessment tools that
research reliably demonstrates are relatively poor at predicting
violent events. This practice could be
challenged as a form of preventive detention that is
disproportionate to the crime. Many of these people have mental
health problems.
-
Prisoners do not have equality with
those in the community with respect to health assessments and
treatment. It appears unusual for prisoners to have confidential
consultations with doctors, as it is routine for other staff to be
present.
-
Psychiatrists assessing prisoners,
particularly for reports for Court continually experience
difficulty in arranging suitable accommodation for interviews, with
compromises on privacy, time available and access to clinical
records.
-
Increased prison overcrowding
threatens issues of safety, dignity and mental health for all
prisoners.
The Faculty of Eating
Disorders raised the following concerns:
-
From the faculties collective
clinical experience, they note that ‘eating disorder’ sufferers
continue to experience various forms of disability discrimination
in both public and private sectors, such that the interpretation of
Human Rights legislation requires close scrutiny. This should be
done in close conjunction with the main ‘service user’ group, BEAT
(formally the Eating Disorder Association) which is formally
represented in our section.
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Along with many other psychiatrists
in the United Kingdom, the faculty members are concerned that the
Mental Health Act (2007) sits uneasily with the Human Rights Act.
For example, we understand that the Mental Health Act (2007) is the
reason the UK is the only European country unable to be a signatory
of the Council of Europe’s (2000) White Paper on Recommendations on
Legal Protection of Persons Suffering from Mental Disorder
Especially Those Placed as Involuntary Patients. We believe this
may have the unintended consequence of increasing the perception of
stigmatisation among the patients whom we treat.