Death of the Nearest Relative? Carers’ and Families’ Rights to Challenge Compulsion under Current and Proposed Mental Health Legislation

Victoria A. Yeates(1)

The Mental Health Bill 2004(2) has recently undergone pre-Parliamentary scrutiny(3) and the Government has now published its response.(4) The Bill has a number of worrying implications for carers and families of psychiatric service users. It contains extensive discretionary powers to detain people with a wide range of mental disorders, including alcoholism and addiction, as well as to impose conditions on service users(5) in the community, including a condition that the service user must desist from any specified conduct. The Bill places inordinate emphasis on public safety, which is likely to foster rather than reduce stigma.(6) Given that the powers are so wide, and that many service users liable to compulsion may be vulnerable or lack mental capacity, it is of great concern that carers and relatives will lose significant rights to resist detention or compulsory treatment of a family member or partner suffering from a mental disorder. The Scrutiny Committee has recommended that some of these rights should be retained, including the right to direct discharge a service user who is not dangerous to self or others. The Government’s response to these recommendations is disappointing though no great surprise given its avowed commitment to the risk management / public safety agenda.

Footnotes:
(1) Senior Lecturer, Law School, University of Glamorgan
(2) Department of Health, Draft Mental Health Bill 2004 and Explanatory Notes TSO 2004 Cm 6305-l and ll.
(3) House of Lords, House of Commons, Report of the Joint Committee on the Draft Mental Health Bill Session 2004–2005 HL Paper 79(1), HC Paper 95(1).
(4) Government response to the Joint Committee’s report on the draft Mental Health Bill 2004 [HL Paper 79-1 HC95-1]
(5) Patient is the legal term for service user.
(6) The anti-stigma agenda is reflected in the National Service Framework for Mental Health: Modern Standards & Service Models Department of Health; September 1999, accessible at www.doh.gov.uk/pub/docs/doh/mhmain.pdf, and the Welsh Assembly Government, Strategy Document for Adult Mental Health Services in Wales: Equity, Empowerment, Effectiveness, Efficiency (2001). See also the report of the Social Exclusion Unit on Mental Health and Social Exclusion (9 June 2004) Office of the Deputy Prime Minister), where the Prime Ministerial foreword notes the need for ‘determined action to end the stigma of mental health – a challenge not just for Government, but for all of us.'

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