Fri Oct 18, 2013, 10:52 AM
Ghost Dog (15,348 posts)
... This month one of the country’s most senior judges, Lord Neuberger, president of the Supreme Court, praised the Mail for exposing the secret jailing of Mrs Maddocks by the court, which was set up in 2007 under Labour’s Mental Capacity Act.
It gave the State draconian powers to intervene in the lives of those deemed unfit to look over their own affairs.
The Mail highlighted Miss Maddocks’s shock when police arrived at her father John’s care home to ‘cart her off to jail’. She had been sentenced in secret for disobeying court orders by trying to remove him from the home. She served six weeks.
The case forced Lord Chief Justice, Lord Judge, to order that no one else should ever be jailed in private without the sentence and reasons for it being announced outside the closed courtroom...
...(T)he mid-1980s closure of the mental hospitals by Thatcher was a key pathway change, opening up the possibility for a more responsive ‘third wave’ post asylum system with enhanced social and participative rights. While this possibility was initially signalled by the 1990 NHS and Community Care Act, there was quickly an assertion of controlling imperatives in the wake of high profile ‘carnage in the community’ cases of killings by mental health users such Christopher Clunis (1996) and Michael Stone (1996)... New Labour measures have had a contradictory impact. Though elements of a third wave emphasis on social and participative rights can be detected, this is countered by a coercive communitarian approach that has produced the 2007 MHA. Since the 1998 Human Rights Act (HRA) is restricted largely to CP rights, the denial of which is actually sanctioned by the ECHR, it does not offer enormous scope for improving mental health...
... The Mental Capacity Act (MCA) 2005 created real difficulties for the government as it emphasises that treatment should be voluntary where people have capacity. It enshrines principles such as self-determination and informed consent, and enables people to state future treatment wishes in advance of losing competency. The Mental Health Foundation had wanted this to be incorporated in the Act, but instead it is simply referred to in the Code of Practice. While competent patients may refuse treatment for physical ill health, treatment for mental ill-health may be legally imposed, subject to second opinion procedures. There is a strong case to be made that separate mental health legislation is inherently discriminatory, and some propose a merger with incapacity legislation to ensure consistent ethical principles across medical law (Dawson and Szmukler, 2006). A systematic review of research into mental capacity found that a majority of psychiatric in-patients have capacity (Okai et al., 2007).
Finally, debates around mental health and human rights have primarily focused on those compulsorily detained. This arguably diverts attention away from two other groups. First, those who may be informally treated, but as we have seen are subject to discrimination and even abuse in the mental health services and wider society (Thornicroft, 2006). Second, the expansion of prisons in a law and order society has arguably led to ‘reinstitutionalisation’, with ONS statistics suggesting that 90 per cent of prisoners have at least one mental disorder (APPGPH, 2006)...
/... http://wrap.warwick.ac.uk/2533/1/WRAP_Carpenter_third_Wave.pdf (.pdf)
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