A new review

Last week's edition of the New Law Journal carried the following review of my essay collection, A Tendency to Laugh and Sing, after which this blog was named. It was written by Tim Spencer-Lane, who is a lawyer with the Law Commission

Dr David Hewitt will be a name familiar to most NLJ readers, especially mental health lawyers. As well as being a prolific writer and commentator, he is a mental health solicitor, visiting fellow of Northumbria and Lincoln Universities and a judge of the mental health tribunal.

This book is a collection of articles and lectures written by Dr Hewitt between 1995 and 2007, including several that appeared originally in NLJ. Some are short and sweet (for example, a one page letter to the editor of the British Medical Journal on the landmark Bournewood case) others are lengthy and academic.

The book is divided into five chapters. The first looks at the impact of the European Convention on Human Rights on mental health law. The second deals with significant issues in mental health case law during the period. The Bournewood case and subsequent legal developments in the field of mental incapacity are covered in the third chapter. The fourth looks at the previous government’s lengthy attempts to overhaul mental health legislation, including the aborted draft Bills of 2002 and 2004, which ended with the amending of the Mental Health Act 1983. The final chapter is described as a “ragbag of articles” which do not fit easily into the other chapters—such as the definition of a hospital in mental health law and risk assessments in relation to violent sexual offenders.

Poignant
The poignant title of the book is taken from an official report on a 19-year-old Mexican-American woman who was arrested in Arizona in 1912 and who was subsequently confined involuntarily for over 50 years. But Dr Hewitt often does good titles; my personal favourite being “Bournewoodn’t” for an article where he argues that the new deprivation of liberty safeguards introduced by the Mental Health Act 2007 may not have protected Mr L, the original Bournewood patient. The period covered ensures that the book provides a fascinating historical record of a tumultuous era in mental health and incapacity law reform.

Civil & human rights
However, the real strength of the book is to showcase Dr Hewitt’s impressive body of work and unique writing style. He presents intellectual analysis in a down to earth and readable style, and is not afraid to explore original and independent lines of argument. For example, while other lawyers condemned on civil rights grounds the previous government’s proposals to reform mental health law, Dr Hewitt claimed that the reforms were unnecessary since they had already been introduced via case law. In a series of articles contained in the book, he argued that the criticisms should not just be aimed at the government but at the deep flaws within existing mental health legislation which had already, for example, diluted the strength of the “treatability test” and allowed the introduction of compulsion in the community via long term leave from hospital. Perhaps his arguments lacked the passion of the human rights lobby but nonetheless they raised significant intellectual challenges for the then government.

Furthermore, in several other articles also contained in the book, Dr Hewitt develops an intriguing line of argument on the distinction in law between a “detention” and a “deprivation of liberty”, with only the latter, he suggests, eligible for the Art 5 safeguards under the European Convention on Human Rights. The devastating implication of Dr Hewitt’s argument is not only that the deprivation of liberty safeguards are otiose but that Art 5 is not engaged where patients are detained under the Mental Health Act 1983 in their best interests. If correct, this situation requires urgent remedial attention since it strikes a lethal blow potentially to the legal rights of many mental health patients. The book does have its faults. Many of the articles may now be of academic interest, the substantive legal issues and case law have since been settled, and some articles repeat each other. But overall this book sets out an impressive body of work. Dr Hewitt’s work has always appealed primarily to mental health specialists, and if you fall within this camp, this will be compulsive reading.

Mental health hospitals are failing in their statutory duties

www.boingboing.net

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.

A second edition ...

A second edition of my book, The Nearest Relative Handbook, will be published in January.

The book is intended to be a lucid, concise guide the role of the nearest relative and the way it might fall - or be given - to an individual. It should be of use not only to nearest relatives themselves, but also to Approved Mental Health Professionals, Responsible Clinicians and other practitioners; to patients, their families and carers; and to hospital managers, police officers, lawyers, academics and policy-makers.

The Nearest Relative Handbook sets out and explains the complex criteria by which a nearest relative is to be identified and the grounds upon which he or she may be displaced by the court, and it does that not only for adults, but also for children. The book also considers the duty of consultation that some professionals owe to nearest relatives, and other, associated issues, such as Mental Health Review Tribunal rights and information-sharing.

The book has been completely re-written for its second edition, and now includes a wealth of material on the changes made by the Mental Health Act 2007, which have particularly affected the process and grounds for displacement. It also has nearly 50 per cent more practical scenarios.

Review of the first edition were very favourable. They include:

An excellent, comprehensive and thoughtful guide to the rights, powers, and duties of nearest relatives under the Mental Health Act. This is the definitive work on the subject - Phil Fennell, Professor of Law, Cardiff Law School

This intelligent and comprehensive analysis is a welcome addition to the currently scant literature in this area - Journal of Mental Health Law

The rules are comprehensively worked through and the examples clear - Tony Eaton, Solicitor, Brent Community Law Centre

There can hardly be a professional concerned with the Mental Health Act 1983 and its practical application who will not benefit from having this book to hand - New Law Journal

The second edition of The Nearest Relative Handbook will be published by Jessica Kingsley Publishers at £17.99. Further details, together with an order form, may be found here

Who pays the boatman

Book Collector, from the Narrenschiff by Sebastian Brant (1494)

When someone is to receive health care or social care, it is important to know how that care is going to be funded. In the past, the question could be a difficult one to answer, and delay – and occasionally litigation – was often the result. This was especially so in the case of mental health patients (see, for example: R v Mental Health Review Tribunal, ex parte Hall [1999] 3 All ER 132.) As ever, Michel Foucault has shed an interesting light on the question.

The responsible commissioner
Where care is concerned, funding responsibilities are set out in secondary legislation (see: National Health Service (Functions of Strategic Health Authorities and Primary Care Trusts and Administration Arrangements) (England) Regulations 2002, regs 3(7)-(10)). And now, there is even detailed official guidance (see: Department of Health, 2007, Who Pays? Establishing the responsible commissioner). Amongst other things, the guidance attempts to ensure that a patient who is discharged from detention under the Mental Health Act can gain access to the after-care services he or she needs (see: ibid, paras 84-87). Rival commissioners – usually, Primary Care Trusts – should not compete to rid themselves of responsibility for funding the patient’s care. Whether or not the problem will be solved by the guidance, it is clearly one of great vintage.

The ship of fools
In his magisterial work, Madness and Civilization (1961, Librairie Plon), Michel Foucault writes at length about the stultifera navis or ‘ship of fools’ (ibid, chapter 1). This was typical of an allegorical device, used particularly in literature and painting, which depicted an often pilot-less boat, whose passengers, oblivious and ignorant, symbolised human weakness and vice. For Foucault, such boats came increasingly to represent the fear of unreason. Foucault argued that the origin of the ship of fools might be found in the Argonaut cycle or even the myth of Tristan and Iseult. In fact, the idea might even derive from Book VI of Plato's Republic.

Renaissance Europe exhibited a particular fondness for allegorical ships. There were, for example, Jacob van Oestvoren’s Blauwe Schute of 1413; the Stultiferae naviculae scaphae fatuarum mulierum published by Josse Bade in 1498; and the Ship of Princes and Battles of Nobility and the Ship of Virtuous Ladies, both of which were created by Symphorien Champier in 1502-03. But the ship of fools stood apart from the rest, because it was more than merely allegorical; Foucault, somewhat controversially, asserts that it actually did exist. He notes, “Often the cities of Europe must have seen these ‘ships of fools’ approaching their harbours.”

The ship of fools was the creation of Sebastian Brant (1457-1521), an Alsatian theologian and lawyer, who, at Basel in 1494, published the Narrenschiff, a monumental satire on humankind and its condition. Brant’s work was, and remains, hugely popular. It is likely, for example, to have influenced Heironymous Bosch’s own famous painting, The Ship of Fools, which dates from circa 1500. Brant’s ship was populated, in particular, by the deranged, who, Foucault says, were often “entrusted to mariners because folly, water, and sea, as everyone then ‘knew’, had an affinity for each other.” Such vessels “criss-crossed the sea and canals of Europe with their comic and pathetic cargo of souls.”

The reasons for this great exodus are numerous and complex, but, as Foucault explains: “The towns drove [madmen] outside their limits […] The custom was especially frequent in Germany; in Nuremberg, in the first half of the fifteenth century, the presence of 63 madmen had been registered; 31 were driven away; in the fifty years that followed, there are records of 21 more obligatory departures; and these are only the madmen arrested by the municipal authorities. Frequently they were handed over to boatmen: in Frankfort, in 1399, seamen were instructed to rid the city of a madman who walked about the streets naked; in the first years of the fifteenth century, a criminal madman was expelled in the same manner from Mainz.”

For Foucault, all this had a symbolic, almost a purifying, function. But it also had a very practical effect: “We may suppose that in certain important cities – centers of travel and markets – madmen had been brought in considerable numbers by merchants and mariners and ‘lost’ there, thus ridding their native cities of their presence.” The ship of fools was, Foucault tells us, “a general means of extradition by which municipalities sent wandering madmen out of their own jurisdiction”, for “to hand a madman over to sailors was to be permanently sure he would not be prowling beneath the city walls; it made sure that he would go far away.”

The reports of the Health Ombudsman contain no mention of barges full of mental health patients cast adrift on the unforgiving waters of the Manchester Ship Canal. But that shouldn’t blind us to the truth. Isn’t the problem to which the ship of fools was apparently the solution one for our age too? Isn’t it because too many cities tried to ensure that ‘madmen’ were no longer prowling beneath their walls that, more than half-a-millennium later, we needed the responsible commissioner guidelines?

Another book you might find useful

The Nearest Relative Handbook
The role of nearest relative is complex and often misunderstood. This handbook offers an expert legal analysis of the role, the powers it carries and the limits of those powers. When a person is subject to the Mental Health Act 1983, many of his or her principal rights are taken away. It is the function of the nearest relative to compensate for that loss. This very accessible book explains how the nearest relative is identified and what the role can involve, and it contains a wealth of case examples and illustrative scenarios. The book provides a succinct discussion of each significant case, and it incorporates all the very latest changes to the Mental Health Act and looks at areas where further changes might be made. The Nearest Relative Handbook is the first full-length reference work to tackle this subject systematically and comprehensively. It will be an invaluable aid to those who find themselves in a professional relationship with a nearest relative, to those who are or wish to be a nearest relative, and to anyone needing to make sense of the relevant statutory provisions. This book is published by Jessica Kingsley Publishers. If you would like more information about the book, or if you would like to order a copy, please go here or contact me at tendency@btinternet.com

Reviews

“An excellent, comprehensive and thoughtful guide to the rights, powers, and duties of nearest relatives under the Mental Health Act. This is the definitive work on the subject.” Phil Fennell.

“Hewitt looks first at the development of the role of nearest relative, where it is now, the problems it presents and how these are likely to be resolved … The rules are comprehensively worked through and the examples clear.” Tony Eaton, International Psychogeriatrics.

“This intelligent and comprehensive analysis is a welcome addition to the currently scant literature in this area.” Robert Brown, Journal of Mental Health Law.

“There can hardly be a professional concerned with the Mental Health Act and its practical application who will not benefit from having this book to hand.” B Mahendra, New Law Journal.

Announcing … a new book

A Tendency to Laugh and Sing is also the title of my new book, which will shortly be published by the Northumbria Law Press. The book, whose sub-title is Some Notes on Mental Health Law, will collect together many of the articles and papers I have published, and one or two of the lectures I have given, over the last few years. In thematic chapters, and with a plethora of original and new notes, it will cover such things as the effect of the European Convention on Human Rights and reform of the Mental Health Act. It will range over a wide legal landscape, from the basis for seclusion to the true meaning of the word ‘hospital’, and from Bournewood to the ‘long leash’. In doing so, the book will address the most significant controversies in mental health law of the last few years. A Tendency to Laugh and Sing will be of assistance to anyone who is subject to or works with the Mental Health Act, and to those with an interest in social policy and the process by which it is applied or reformed. If you would like more information about the book, or even to pre-order a copy, please contact me at tendency@btinternet.com

This blog

As its description suggests, this blog will be about law, society and some things in between. In fact, its main focus will be on mental health and mental capacity law, and on other facets of the law that impact upon those who have mental disorder or lack capacity to make decisions. There will, of course, be discussion of the Mental Health Act and the Mental Capacity Act, but from time to time, the blog will also look at such subjects as inquests, ASBOs and the sharing of confidential information. This won’t however, be the place for a systematic analysis of those subjects. There will be no sub-paragraph by sub-paragraph dissection of the latest statute or regulations. That sort of thing can be found elsewhere. Any postings on this blog will be occasional and erratic, and they will often take an oblique, not to say idiosyncratic approach to their subject.