Sunday, 27 September 2009

Mental health hospitals are failing in their statutory duties

A new survey suggests that when they are admitted to hospital, many people with mental illness are being denied their rights.

More than 7500 former-patients told the Care Quality Commission (CQC) about their experiences of acute inpatient care. Some were broadly happy, but a significant minority were not.

The CQC has now reported its findings. What many patients were concerned about was simple good practice. A quarter of patients, for example, had not had the talking therapies they wanted, and that NICE says can be helpful; and a similar proportion said they had been less involved in decisions about their care than they wanted to be.

In many cases, however, hospital shortcomings might actually have broken the law:

* Many patients who responded had been detained in hospital, and more than a quarter of them said their rights had not been explained to them in a way they could understand. This is a clear breach of the Mental Health Act (albeit one that has long been suspected to be occurring).
* The position was similar when it came to medication, with another quarter of patients saying the purpose of the medication had not been properly explained and almost a half saying its potential side-effects had been ignored. Some of these patients were detained, of course, and could therefore be forced to have their medication, but the law says this should make no difference.

The CQC’s recent findings are worrying, not least because they suggest that in a large number of cases, hospitals and practitioners are failing to comply with their statutory duties.

The law doesn’t always recognise transsexuals

A recent High Court decision has been hailed as a significant advance for transsexuals. The judge said their autonomy and dignity were now unassailable, and he ordered that the claimant, a male-to-female transsexual who is currently in custody, be transferred to a female prison so as to qualify for gender reassignment surgery. (R (AB) v Secretary of State for Justice and The Governor of Manchester Prison [2009] EWHC 2220 Admin)

But is this case quite the victory it seems?

The claimant, AB, is keen to have her penis removed, but the hospital concerned says it will not perform surgery until she has lived as a woman inside a women’s prison. The judge said that in those circumstances, to deny transfer would infringe AB’s private life and so breach both Article 8 of the ECHR and the common law. It would deny her rights that even imprisonment could not remove. Too little attention had been paid to the effects of keeping her in a man’s prison, and to the fact that she would have to be segregated from other prisoners.

The hospital’s stipulation was perhaps surprising, given that AB has a gender recognition certificate, proving that she has lived as a woman for at least two years. The Gender Recognition Act says that certificate makes AB female “for all purposes”. Now, it seems, we must read that as “all purposes bar one”.

The judge acknowledged the Act but said, “the actual physical characteristics of a post-certificate, but pre-operative, female may remain relevant for some purposes”. The prison authorities were, in short, entitled to take account of the continued existence of AB’s penis. But doesn’t that contradict the Act?

In fact, the obstacles placed in AB’s way in fact gave her something to kick against, and it would have been interesting if her case were somewhat more direct; if, for example, she had sought transfer merely because the law now regarded her as a woman. There are only two situations in which women can be imprisoned in facilities intended for men, and this case had neither of them. At the moment, when we look at the phrase ‘for all purposes’, we have to ask, what does ‘all’ really mean?