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Presidential Blog

Does current mental health care contravene the Human Rights Act?

07 December 2016 | by Peter Kinderman

Our President gives his views on an important question

This week we learned that detentions under the Mental Heath Act have reached a 10-year high, with over 60,000 cases a year.

I believe that these tragic and shocking, but not terribly surprising events are largely due to cuts to health budgets, combined with widening inequality, social turmoil and economic austerity, which place an ever tighter squeeze on vulnerable people.

It’s been 10 years since we last reformed the Mental Health Act, and the Mental Health Alliance, a coalition of over 75 organisations united by a common interest in a fair Mental Health Act, has launched an important survey on the Act.

The survey is designed to gather your views on the principles of the Mental Health Act, how people's rights are currently protected, where this is working well and what could be changed. This includes how the Act integrates with the Human Rights Act and the Mental Capacity Act.

Over 4000 people have already completed the survey. Your help is needed to ensure the survey represents a range of views, including the views of psychology. This is a great opportunity for you to help us influence the government and other stakeholders in future reform of the Act. The survey should take around 15 minutes. Just click here.

I believe that reform is badly needed. The 2007 revision of the Mental Health Act brought in some welcome changes, including something of a welcome shift towards a more psychosocial, and less biomedical, approach to mental health legislation. In my opinion further reforms are needed.

In my view, we should see full integration of the Mental Health, Mental Capacity and Human Rights Acts – with personal autonomy (and its corollary, lack of capacity) the core principle of legislation.

To be precise, we have a duty to make valid decisions, in their best interests, on behalf of people who cannot make decisions for themselves, but if people retain capacity, their autonomy must be respected (as, indeed, the law states in Scotland).

More generally, key principles – an obligation to respect informed consent, the need to pursue least restrictive alternatives, the FREDA principles of fairness, respect, equity, dignity and autonomy, the obligation always to act in the best interests of the individual, and decision-making based on risk and need rather than presumed pathology – should be on the face of the Act.

In my opinion, we would be wise to introduce greater judicial oversight; for example, if mental health professionals were no longer given blanket license under the Mental Health Act, but instead were obliged to present evidence to magistrates in order to obtain warrants for detention of people in need of care.

I have argued for a long time that much of our present mental health care fails the test of Article 3 of the Human Rights Act, which gives us a protection from ‘inhumane or degrading’ treatment. Equally, people who have been detained should, in my opinion, be offered decent aftercare.

The survey from the Mental Health Alliance is timely and welcome. We are clearly using the extreme powers of the Mental Health Act with increasing frequency as a desperate response to the institutional challenges faced by vulnerable people in our society.

It is right, then, that we take the opportunity to suggest reforms in the legislation itself. This survey is one route to doing that.



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