ARGYLL MENTAL HEALTH OFFICER FORUM
SCOTTISH MENTAL HEALTH LAW REVIEW
PROGRESS AND OUR POSITION TO DATE
GRAHAM MORGAN
AUGUST 2021
Hello everyone;
Thank you so much for inviting me to your meeting today, it is lovely to be here. You are maybe privileged or unfortunate in that this is the first talk and consultation we have carried out since we published our interim report in July.
My name is Graham Morgan, I am joint vice chair of the Scott Review. We are reviewing all the different types of mental health legislation in Scotland. We started this process well over a year ago and will be producing our final report in September of 2022.
I will talk a bit about myself, set the context of the review and work to date and then concentrate on the key conclusions we think we have reached so far.
I have a diagnosis of schizophrenia and have been treated under a CTO for the last ten years or so. XXX is my MHO and to make this easier for all of us I am happy for any of my experiences to be discussed by her and you after I finish speaking.
I worked in collective advocacy for about 25 years and have worked for the Mental Welfare Commission for five years as an engagement and participation officer. I was a member of the Millan Committee and then the McManus Review and in the Commission have carried out a number of consultations around detention, capacity and will and preference involving a few hundred people.
I have also talked about my own experience at the United Nations Committee against Torture and the Kings College International Summit on Human Rights and the Law as well as writing a book called START which describes my life under compulsory treatment.
Right to set the scene – in recent years many organisations, especially the Mental Welfare Commission have been calling for a review of mental health legislation. The principle reason for this is that the current act came into being before the United Nations Convention on the Rights of People with Disabilities came into being.
The committee of the UNCRPD have said that as the convention says that all people with disabilities should be given equal recognition in the law, and should be able to exercise legal agency then compulsory treatment because of mental disorder must be discriminatory and that the existence of compulsory treatment (or substitute decision making) inevitably stops people exercising their legal agency.
They say that compulsory treatment and other forms of substitute decision making should stop and be replaced by supported decision making where our will and preference is of most importance.
This of course, has major implications for our domestic legislation which allows for compulsory treatment and will have even more implications following the recent decision of the Scottish Parliament to incorporate the UNCRPD, the United Nations Convention of the Rights of the Child and the Convention on Economic Cultural and Social Rights into Domestic law.
Just how we manage to do this is a major issue as no other jurisdiction in the world has managed to stop compulsory treatment although some have reduced it. These issues of course will affect your daily lives and the lives of people like me
Alongside the United Nations many other international bodies are calling for legislation and practice that progressively moves towards the elimination of compulsory treatment on the basis of mental disorder.
And as a note, remember that bit ‘on the basis of mental disorder’, the various bodies do not say that all compulsory treatment should stop just compulsory treatment that is justified by the existence of a disability.
I am going to concentrate on the two key parts of our interim report, which deal with the purpose of the law and that which deals with the principles of the law as these will be key to our future thoughts and discussions and I would love to know some of your thinking on this.
But first of all some background to the review – we have reached our present position through exercises to gather evidence at the beginning of the review and consultations throughout the review with people with lived experience and practitioners and through the work of our advisory groups, which have been looking at capacity and supported decision making, children and young people, social economic and cultural rights, compulsion and also engagement. We now also have two reference groups, one of practitioners and one of lived experience that we refer to help refine our thoughts in the executive.
In accordance with our human rights based approach to this work, we endeavour to have fifty percent involvement of people with lived experience in all aspects of the review.
So where has our thinking got us to so far?
First of all I will address compulsion. Although we know that the UNCRPD wants a stop to compulsion we do not think this is presently possibly and possibly will not be in the foreseeable future. We have heard from practitioners and from people with lived experience and know that the great majority of people believe that compulsory treatment is sometimes needed to save life and protect people. What we would like to do though, is to make changes that mean that supported decision making becomes the norm in practice and that we increasingly place the will and preference of people with lived experience foremost in our practice.
I am not entirely sure how we will do this and I am not entirely sure how we can make compulsion non-discriminatory but we intend to try to find ways of making this a reality.
One possible way of doing this which we are considering in our capacity and supported decision making workstream is to remove disorder as a criteria for compulsion and make the key gateway to compulsion that of capacity to make decisions which may mean that other people who do not currently come under the remit of our legislation may in the future be subject to it, such as people with addiction problems or people whose judgement has been impaired by the coercive and exploitative actions of other people in their lives.
As I said I am on a CTO and have been sectioned many times in the past. The fact that I am here speaking to you is testament to the value of compulsory treatment. I am alive, working and enjoying life. I don’t think I should be alive and fully expect to be put down one day as government realises their mistake in keeping me alive. But for the moment I revel in the daily joy I get from being able to walk Dash the dog by the Clyde with the curlews seals and oyster catchers; to get a good night hug from wee Charlotte and a ‘woof, woof’ good night from James who usually speaks to me in dog language and to cuddle up with Wendy who brings joy into my life every day.
But I will never forget the experience of rushing down long hospital corridors with Nurses pouring out of the wards while the alarm blared and I sought freedom. I will not forget being frogmarched back to the ward while my friends looked on from the sidelines, or having the lights on 24 hours a day for 7 weeks or having to go to the toilet in front of the people protecting me.
So while we can see a need for compulsion, where we can do so safely, we want to reduce it but at the same time we want to acknowledge that for nearly everyone, being sectioned is a traumatising event. We want to find out ways of reducing the trauma, of introducing love and compassion into the act and of finding ways of minimising the use of restraint and seclusion – we know there are places where such things are practiced far less than in Scotland and we want us to start to focus in this country on finding safe and humane ways of reducing these traumatic and humiliating interventions.
As you can see I have been concentrating on detention – I do so because that is our mind set in this country when looking at the legislation around mental health but we are hoping we change that completely:
– with the coming incorporation of the Convention of Economic Social and Cultural Rights into legislation we want our legislation to support people to have the best possible lives, if you look at our interim report you will see a quote from Gerard Quiin:
“Transformation of mental health service provision must, however, be accompanied by significant changes in the social sector. Until that happens, the discrimination that prevents people with mental health conditions from leading full and productive lives will continue.”
Gerard Quinn, UN Special Rapporteur on the Rights of Persons with Disabilities.
We agree with this – without the services and resources we need, we will never be able to reduce compulsion – this extends to being able to look at the sorts of services that might have an immediate effect which might be such things as early intervention or open dialogue, or crisis intervention or safe houses or just by implementing the Mental welfare commission guidance on emergency care planning but it extends much wider than this –for instance by providing the mental health services that optimise our lives – in my case I already have this through places like Jeans bothy – being able to go to the creative writing, the book club, photography and by contributing to the newsletter I find a sense of belonging and connection and laughter that I do not get elsewhere.
We also think that we can look at other rights issues where we are already disadvantaged and by putting in place positive measures to enable us to be free from discrimination in benefits, employment, education and so on we will have better and more fulfilled lives– in other words getting the law to give us the chance to be equal members of society with the accompanying changes that will need to come with that in attitude and culture.
This leads to some changes in thinking – if we all have a right to optimal health care then how important is the principle we currently have of reciprocity? We are considering the idea that the tribunals may have more powers to insist on the services that reciprocity implies but might that in the future lead to compulsion being used perversely to ensure service provision? We have these and many more issues to consider.
So to summarise I will quote from our interim report:
We believe the purpose of the law should be to ensure that all the human rights of people with mental disabilities are respected.
Our approach reflects three key insights, drawn from human rights principles and the evidence we have received.
First, human rights are indivisible.
Second, current legislation focuses too strongly on binary choices which determine what services can and should do and on authorising and placing limits on non-consensual interventions.
Finally, reducing the use of non-consensual interventions is likely to depend in large part on improving prevention and early support and intervention. Rights need to make a difference when they can be meaningful and effective, not when the harm has already been caused.
Moreover, existing mental health law currently has little to say about the economic, social, and cultural rights which we believe need to be part of the legal framework.
It also leads to a re-examination of the principles that underlie future legislation –
Currently we could amalgamate the principles that underlie our current forms of legislation such as the Millan principles – and I have a great affection for them but they are principally concerned with times in which we are at risk of compulsory measures and, as you have seen, we want legislation that is far more wide reaching than that so at the moment we are suggesting that we use the UNCRPD to inform our thinking and again I will quote from our interim report:
In short, we want legislation to be more about helping people with a mental disability to live and enjoy their lives without stigma or prejudice. The principles of this new framework need to reflect this wider aim.
We are aiming for a small set of core principles which can be expanded upon in the legislation itself and in guidance. That implies some streamlining of the eight principles in Article 3.
Our initial suggestion for core principles is:
Respect for dignity
Respect for autonomy
Non-discrimination and equality
Inclusion.
These may on occasion clash but then so do many of the rights we already have.
I will finish with a return to the personal.
I have a wonderful life – some people might say it is because I am on a CTO but that is such a crude way of looking at life and one of the reasons I get so fed up with research that looks at their effectiveness is because they need to be looked at in context.
Without a CTO I would probably be dead but without all the other elements that I currently have in my life I would also probably not be functioning and would not have the life I do at the moment.
I have work, and considering it is part time work, a reasonable income, I do not worry about the heating, or petrol for the car. I can buy the occasional luxury, go on the occasional holiday. And saying I have work I not only have work, I have work that is accessible for someone with my diagnosis and saying I have work it is also the sort of work that gives me a sense of value and purpose.
I am no longer lonely; I no longer sit alone in my house and ache for someone to call me or ask me round to their house, in fact I often crave moments for peace and silence because I am in a busy house with noise and excitement and love, with daft dogs, hopping rabbits, un mowed lawns unwashed dishes and mini adventures every day.
I have friends and I have a place to go to where I feel accepted, where I feel I belong. I get benefits that reflect the needs of my disability. I have an active life where I walk the dog, write books, trawl the charity shops, visit my Mum, my brother and sister and so on.
These are the bedrock that give me the life that I wish all of my friends and peers had too and this is what we mean when we say that legislation needs to change radically
– maybe not hugely in terms of the mechanisms of detention (but perhaps that too) but definitely hugely in terms of the sort of society people like me live in, with the supports on offer and the belonging we feel, having the opportunity to live the lives so many of us crave and which are so distant from so many people I know and care for, having the services we need delivered in a caring respectful optimistic way – this would change so much for us; not least the level of detention we currently experience.
That of course needs a completely different approach not only to mental health services but to the society we live in.
Thank you.
Now hopefully we will be able to have discussion:
(Photo: a day of thunder storms: Ardmore August 2021)
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