Bamford Review of mental health & learning disability

A Law Centre (NI) response

June 2006

Response to the Bamford Review of Mental Health and Learning Disability – Human Rights and Equality of Opportunity Consultation Report

1. Introduction

Law Centre (NI) welcomes the work of the human rights and equality of opportunity working group and hopes that its recommendations will be central to the whole review. This response highlights some of the key recommendations particularly welcomed by Law Centre (NI) and notes some areas which merit further attention.

2. Law Centre (NI)

Law Centre (Northern Ireland) is a voluntary organisation providing legal and other support services including training, publications and information to 80 full time members and over 400 associate members.  Full time members consist of local Citizens Advice Bureaux and independent advice agencies and other voluntary organisations who provide advice as part of their overall function, such as Rethink and MENCAP.  Associate members include solicitors, trade unions, political parties, probation and social services offices and community based organisations. The Law Centre provides an advice line and casework service on referral to its members in the areas of social security, community care, immigration and employment law.

The community care work of the Law Centre is funded by the four health and social services boards in Northern Ireland. The two legal advisers working in this area have developed a specialist knowledge of the law affecting people with a learning disability and/ or mental health problems while living in the community or in residential care. They are also in a position to comment on the common difficulties faced by these clients.

To date, the Law Centre has not been in a position to represent people detained under the Mental Health (NI) Order. However, Atlantic Philanthropies have recently agreed to fund a specialist mental health legal representation service and the Law Centre is currently recruiting two legal advisers.  The need for this service was established in research commissioned by the Law Centre: ‘Unmet need – a study of mental health legal advice and assistance in Northern Ireland’ by Jim Campbell and Debra Wilson of Queen’s University, Belfast (2004).

Human rights law has been a strategic focus for Law Centre (NI) since the introduction of the Human Rights Act 1998. The Law Centre has made human rights and equality based arguments in courts and tribunals on many occasions, as well as in policy and campaign work.

3. Structure of response

Comments are made under each chapter heading following the structure of the consultation document.

4. Chapter Two – Law, Standards, Policy and Practice

Law Centre (NI) agrees that expenditure on mental health and learning disability services needs to be substantially increased. It will not be possible to ensure protection of rights without allocating additional resources.

5. Chapter Three – Access to rights

Law Centre (NI) supports the recommendations in this chapter but suggests that the second recommendation on human rights and equality training could be stronger. In order to ensure compliance with their own legal obligations, public sector bodies should require human rights and equality compliance in contracts with other service providers.

6. Chapter Four – The right to vote, to found a family and to life

A clear view on the need to retain, amend or dispense with the provisions of article 122 of the Mental Health (NI) Order (offences – sexual relationships with women with severe mental handicap) would be welcome. It is perhaps inherent in the fourth recommendation that it should be left out and protection / rights dealt with through capacity assessment but it would seem to be an obvious area for specific comment.

7. Chapter Five – Education rights

Law Centre (NI) welcomes the explicit recognition of the right to education. We have particular concerns, arising from casework experience, about the lack of stimulating and appropriate day time activities available to those young people with a learning disability who leave school.  In many cases the issue is a lack of resources to fund activities and projects.

8. Chapter Six – Capacity, incapacity and human rights

Recommendation 6 is welcome but more specific recommendations would be helpful. The group’s attention is drawn to the recommendations contained in chapters 5 and 7 of the NI Human Rights Commission’s report , ‘Connecting Mental Health and Human Rights’ (2003). The group’s views on these recommendations would be helpful in understanding how it recommends the Review as a whole deals with key issues such as compulsory treatment.  In particular, a view on the circumstances when substitute decision making can be lawful in relation to someone who is capable is essential. The Law Centre’s view is that the circumstances should be very limited, be relevant to the individual concerned rather than relate to a time period in which compulsory treatment is acceptable and be clear from the face of the legislation.

9. Chapter Seven – Involuntary detention

Recommendation 8 concerns a broadening of the basis for detention to cover psychological harm. It would be helpful to see the evidence of the need to widen the scope of the detaining power. If it is to be included, then the safeguards mentioned in the paper should not be in a code of practice but be contained in the legislation itself.

The other recommendations in this section are welcome.  The principle of reciprocity of needs to be applied to all those detained.

Chapter Seven notes the intervention power in the Health and Personal Social Services (NI) Order 1972 but does not comment on whether it is an acceptable legislative provision in terms of the protection of human rights. A clear recommendation on whether this provision should be amended/ retained/ removed is needed.

10. Chapter Eight – Representation at Mental Health Review Tribunals

Law Centre (NI) agrees with the recommendations in this chapter. The group may wish to consider the wider human rights and equality issues in relation to the operation of the Mental Health Review Tribunal system, as noted in Chapter 3 of the NIHRC report, ‘Connecting Mental Health and Human Rights’ (2003). In particular, the group should consider recommending an automatic review by a tribunal, greater transparency in the role of the medical member and amendment of the rules on withholding of documents from patients.

11. Chapter 9 – Advocacy

Law centre (NI) endorses these recommendations. We particularly welcome the recognition that there is the need for a range of advocacy support including self advocacy and legal advice

12.  Mental Health/ Learning Disability and the Criminal Justice System

The paper does not address the human rights and equality issues arising from legislation or practice in relation to those people with mental health problems and/or a learning disability in the criminal justice system. It is important that human rights/ equality based recommendations for legislative change in this area are made. Chapter 6 of the NIHRC report, ‘Connecting Mental Health and Human Rights’ (2003) is relevant here.

Maura McCallion, Law Centre (NI) 30 May 2006