Wednesday, 10 July 2013

Bang to Rights

There’s a recurring trope in police and procedural dramas. After the chase, the bending of the rules, the adrenalin charge and the (inevitably) emotional arrest, someone starts to intone, “You have the right to remain silent….”. It’s not only about a grounding in the real world. It’s a signifier. The crisis is over, normal service has been resumed, justice has retaken its natural guise. Even in these hyper-charged dramas, you’ve got to tell people their rights, right? Right.

Now, imagine that you’re in a psychiatric hospital. You’re scared, but you’re not a criminal. You’re ill or at least perceived as being ill. If you’ve been detained against your will you are now experiencing the effects of  the Mental Health Act (MHA) one of the most powerful pieces of legislation on the statute books – and you’re on the wrong end of it. Unless you’re somehow working in the mental health area you probably won’t know what the powers mean. But now that the drama’s over you’ll be told your rights, right? Well, sometimes.

Giving people information about their rights is one of the obligations of those using the Mental Health Act. For that reason, it’s one of the areas examined in the CQC report, Monitoring The Mental Health Act. The data in the last report suggests that people are often not told their rights, showing that  10% of people appear not to have been given information about their rights under the Mental Health Act at the start of their detention. It stated that,

“MHA Commissioners reported a lack of evidence of staff discussions with patients about their rights on 458 visits overall. In some cases discussions had taken place but they were not recorded; in others patients were unaware of or unclear about their rights. In a number of cases the relevant forms (section 132) were missing or incomplete.”

Unsurprisingly, the area where the least information was given was on people’s right to access an Independent Mental Health Advocate (IMHA). One of the roles of the IMHA is to help people understand and realise their rights. There was no evidence of telling people of this right in 21% of records. There was often no effort to contact an IMHA service for the person if that person was unable to do so themselves. But I want to come back to rights in a wider sense, so I’m going to do something unusual. I’m not going to bang on about advocacy. I’m going to talk about outsourcing instead.

The hospital has the legal duty to tell people their rights. Usually this is delegated through ward staff, but the duty remains. That’s why I was alarmed to read the following section of the MHA report:

“The Code suggests that it will usually be appropriate for professionals working with the patient to provide the information about rights required by statute. In some instances, CQC is concerned to see this role delegated to IMHAs. Although IMHAs also have a statutory role to give patients information about their legal status, their rights and how to exercise them, this duty is described in the Code of Practice as an “additional safeguard”. It does not relieve nursing staff or other professionals who work under the direction of the hospital management of their duties under section 132.”
Well, quite.

Mental health staff can not outsource the provision of information about their own curtailment of people’s rights. That would be an abrogation of responsibility. It could be seen as part of a package where involvement, treating people with respect and dignity, supporting people to make their voice heard and ensuring person centred care is somehow seen as someone else’s job. Obviously this would never happen, it’s just hyperbole. Probably some glitch in the system led to a belief that discussing rights was the IMHA’s job, right? Erm,…

I’d be more inclined to believe that were it not for a long standing problem in mental health, one which prompts me to remind you what a psychiatric ward is. It’s part of a hospital – you know, the kind of place you go to for care and treatment. The combination of media portrayals of mental illness and the weight of the MHA can sometimes obscure this fact, but it’s important. So, not everyone on a psychiatric ward is detained under section. That means they can leave any time they want, right? Well, yes, but, only in theory.

In reality many people who are voluntary patients hit a barrier when they try to leave. They’re told that they will be sectioned if they go out of the door. So, you’re free to leave unless you try to. This piece of logic is so deliberately perverse it deserves the name Catch 23. And it is not legal. Yet anyone who has worked in mental health knows that this happens with depressing regularity. The powers which are regularly used by staff on psychiatric wards, to detain and to treat without consent, do not inherently arise out of a professional status. Nor is the loss of rights an inherent consequence of mental health problems. Both come from the MHA, a piece of legislation of that is meant to protect the rights of people. Using the Mental HEalth Act as a threat suggests a system too used to the concept of coercion, of enforced compliance. A system that has forgotten where its powers end.

The Mental Health Act Code of Practice could not state the law more clearly.

“4.12 The threat of detention must not be used to induce a patient to consent to admission to hospital or to treatment (and is likely to invalidate any apparent consent).”
I agree with the twitter commentator Ermintrude (Registered Social Worker, ex-AMHP and ex-Best Interests Assessor) this piece of information should be on an poster in every mental health ward in the country.

Because the thing about rights, the important thing, is that you can’t use them if you don’t know you’ve got them. And if your only means of finding out about your rights is through the very people most likely to infringe them, I’m not convinced that will work. It would be like asking someone to open a box with the crowbar contained inside it. Or like delegating the provision of information to an IMHA service you’ve not told the person about. Frankly, it would be madness.

So back to illegally coerced treatment.  How many care professionals have forgotten the meaning of informed consent, and the legal liabilities that attach to treating people without this consent? What legal options would you take if someone gave you powerful medication that can have serious side effects without your consent? I doubt I’d want to put it down to experience or accept it as the natural way that a system works. Yet every person who has been subject to the coercive threat of detention has experienced just that thing. It’s a wrong that is well known, and it needs to change.

I believe that it is vital that people know what their own rights are in care and treatment so that they can make use of them; so they can hold remind care professionals of their duties and protect their own rights.

So this is where I ask for your help. What are the common wrongs that you know about? What information should everyone have available? Either leave a comment below or email and I’ll see what I can put together.

Next time, a question of accountability.

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