Discuss discrimination in respect to The Race Relations Act 1976 and the Sex Discrimination Act 1975.
Discrimination
3.6 The Race Relations Act 1976 and the Sex Discrimination Act 1975 make it
unlawful to discriminate directly or indirectly on grounds of race, colour, ethnic
origin, nationality, gender or marital status. Neither is it acceptable to apply
requirements or conditions which are disadvantageous to people of particular
racial groups or sex, and which cannot be justified. This will apply to all
employees of the Trust and those subject to the Trust's recruitment and selection
processes. In addition, it is also unlawful to apply pressure, instruct or aid
discrimination by another. Discrimination is the wilful or conscious decision to
exercise a personal prejudice against another person or persons.
3.7 Discrimination may exist in one of three forms :
a) Direct Discrimination - When a person or persons is deliberately treated less
favourably because they are within one of the groups defined in paragraph 2.3.
b) Indirect Discrimination - When a person or persons, whether intentionally or
not, is subject to a condition or requirement that cannot be justified legally and
may be for a reason associated because they are within one of the groups
defined in paragraph 2.3.
In 1997 when the current Government was elected into power one of their aims was to tackle the inequalities that existed within health and social care. Since then we have seen the publication of many policy documents which planned the way forward for health care, particularly in the way that care is delivered. Modern and Dependable (DOH, 1997), set out ways for national improvement in healthcare. Modernising Mental health Services (DOH, 1998a), set out the way on which mental health services would deliver care in the future. Safe, Sound and Supportive (DOH, 1998b), emphasized the involvement of service users in the planning and the delivery of care, offering choices and promoting independence for individuals. The National Service Framework for Mental Health (DOH, 1999), represented the first set of national standards for mental health, frameworks of how these standards would be achieved, standards which were based on up to date evidence of how to achieve the best possible care. It would be fair to say that all these policies were working towards social inclusion and better care for those with mental health problems.
However the same Government is now proposing changes within the Draft Mental Health Bill for England and Wales (DOH, 2002) which have serious implications for the human rights of those same individuals.
The Governments intentions throughout the policies previously mentioned were seen as a positive development within mental health services, developing services in a way that followed the morality of a caring society. Regrettably the Governments new proposals are seen as nothing more than the coercion and control of those with a mental illness. Compulsory treatment orders are one of the proposed developments. But are they really necessary in the context that has been proposed by the Government?
Through this piece of work the writer aims to explore the legislation which has, and still does, endeavour to provide an ethical framework to the unethical practice of the involuntary treatment of people with a mental illness. The fundamental dilemma is that of balancing the individual's autonomy and civil liberty with the need to protect both the individual and the public from perceived risk. But how far should mental health services go in maintaining a function of social control? Morrall (2000), believes that when a nurse does not acknowledge their role as an agent of social control, that fuel the public's misconceptions that surround mental illness. ( fear is real, so the public would feel more at ease knowing that the problem is being dealt with)
Mental health legislation is, and always has been an extremely controversial issue. Maintaining the necessary balance between care and control has always been problematic, even more so since the inclusion of the European Convention of Human Rights Act 1998 into the law of the United Kingdom (Bartlett & Sandland, 1999).
Compulsory treatment in the context now being proposed by the Government undermines civil liberties; this is an opinion which is shared by both the Royal College of Psychiatrists (2002), and the Law Society (2002), both of whom feel that the Governments proposals are unworkable and unethical. Thomas Szasz has argued since the 1950's that compulsory psychiatry is incompatible with a free society (Roberts, A. 1996).
It is felt by the writer that the Draft Mental Health Legislation currently proposed by the Government is nothing more than an attempt to rid society of what many feel to be a social nuisance or an economic burden. It is hard to believe that these proposals are based truly upon altruistic motives. Through this work the writer will examine the current proposals and look at the implications of such to society, and more so to the impact it will have upon the individuals it concerns.
In order to fully understand the nature of the dilemma, it is felt that an understanding is needed of how mental health care and also the legislation that governs it, has evolved over the past forty years.
Since the 1960's we have seen a move away from the old asylums, which had been at the heart of institutionalised and coercive mental health care, towards care in the community. Care in the community was seen by many to be a more humane treatment of those with mental health problems.
There were many changes around this time. Societal attitudes towards mental illness changed. The minister of health at that time, Enoch Powell had described the asylums as nothing more than prisons, which prevented people from living ordinary lives (Johnston, 2000).There were new 'wonder' drugs introduced, which allowed less restrictive treatment to take place, and there was the advent of the so called 'anti-psychiatry' movement which was the cause of grave political unrest. Two of the main advocates for this movement were Szasz and R.D. Laing. Laing took the view that psychiatric diagnoses were no more than a licence for coercion and the exercise of psychiatric power (Rogers, 2001). However Johnston (2000), suggested that there were many others who thought, that the main appeal of care in the community was the opportunity it provided for cutting costs under the pretext of humanitarian reform, irrespective of the impact it had on client wellbeing.
The Mental Health Act of 1959 revoked all previous legislation and many marked it as a key example of social welfare legislation (Johnston, 2000). Jones (1991) has since described it as the 'medically orientated Act' (cited in Johnston, 2000). Individuals were no longer to be committed through the courts, and, when ever possible admissions to hospital were to be voluntary, and safeguards were introduced to protect individual rights. There were frameworks of time set for compulsory treatment and the rights to tribunal hearings were established. It came to light in the 1970's through public enquiries, that compulsory treatment was still being abused. The safeguards that had been established were not enough to protect the rights of the individual with a mental illness. It was through recommendations from the Percy Commission that the Law was reformed; new legislation governing mental health being enacted in 1983.
The Mental Health Act of 1983 was based on the premise that compulsory treatment was only to be provided in hospitals. It was thought that those not sufficiently ill enough, to require admission to hospital, should not lose their civil liberty and autonomy (Johnston, 2000). The Act of 1983 was intended to safeguard the rights of the individual in hospital. Since the 1983 Act came into force more patients than ever were being treated in the community. During the 1990's the public began to become sceptical of care in the community following several high profile incidents involving people ...
This is a preview of the whole essay
The Mental Health Act of 1983 was based on the premise that compulsory treatment was only to be provided in hospitals. It was thought that those not sufficiently ill enough, to require admission to hospital, should not lose their civil liberty and autonomy (Johnston, 2000). The Act of 1983 was intended to safeguard the rights of the individual in hospital. Since the 1983 Act came into force more patients than ever were being treated in the community. During the 1990's the public began to become sceptical of care in the community following several high profile incidents involving people with mental health problems. Ben Silcock, a diagnosed schizophrenic made the media headlines by jumping into the lion's den at London Zoo. Then there was Christopher Clunis, who was diagnosed as a paranoid schizophrenic, who stabbed to death Jonathon Zito in 1992 (Rogers, 1999).
Looking back, cases such as these led to public concern which in turn led to a gradual change in the nature of the legislation which governs mental health care. As time has gone on we have seen the introduction of more stringent guidelines. The introduction of the Care programme Approach in 1991, which aimed to improve and standardise care (MIND, 1998), Supervision registers in 1993, and the Patients in the Community Act of 1995, all of which emphasised the need for good risk assessment (Knowles, 2003).
It was in June 2002 that the Government published the Draft Mental Health Bill for England and Wales (DOH, 2002). Its publication was preceded by a White paper (DOH, 2000), a Green paper (DOH, 1999), and a report which had been prepared by an Expert Committee, chaired by Professor Richardson (Expert Committee, 1999). The Government had commissioned the Expert Committee, to put forward proposals for a revised Mental Health Bill. Within the report presented to the Government the Expert Committee recommended that the whilst the principles of autonomy and non-discrimination for patients with a mental illness should be included, they also felt that ,legislation was needed that placed 'lack of capacity' as a key test in determining the justification of compulsory treatment (Expert Committee, 1999). It appears that the Government rejected the latter recommendations, with the focus of the Bill being on risk management and compulsion. Holloway (1996) feels that the risk emphasis within mental health policy and legislation, (since the era of deinstitutionalisation), reflects a 'moral panic' about the dangers posed to the public by people with a mental illness.
If enacted the changes which have been proposed by the Government pose serious implications for the rights of people with mental health problems. Compulsory treatment orders would allow individuals with a mental illness to be compelled or even detained, if they refused to take prescribed medication that had been deemed for their benefit. It's quite easy to see how many perceive this proposed legislation as shifting the essence away from care towards control. Another key change proposed by the Government is the amendment of the definition of mental disorder. The new definition to be; 'any disability or disorder of mind or brain, whether permanent or temporary, which results in an impairment or disturbance of mental functioning' (DoH, 2002). A much wider definition than before, with no included exclusions. Under the new definition it would be possible to include such behaviours as promiscuity, immoral conduct, sexual deviancy, alcohol or drug abuse, which under the old definition were omitted (Mullen, 1999). It also seems that 'dangerous people with severe personality disorders' are also to be included within the scope of the new Act (DOH, 2002). The new Act has omitted the 'treat ability' requirement. This is another controversial issue but falls outside the scope of this essay.
Two important questions that need to be answered are whether the Governments proposals are necessary, and can they be justified in the context proposed by the Government within the Draft Mental Health Bill (DOH, 2002).The existing legislation is based on compulsory treatment being provided solely in hospital. According to the Government this has allowed severely ill people to remain in the community and to drift out of contact with services. They feel that it does not adequately protect society from the significant risk posed by a minority of patients (DoH, 2000).
An individual may have a mental illness and may go on to commit a violent act, but having a mental illness does not subsequently mean that the latter will occur. The association between mental illness and deviance is extremely contentious. Public perceptions of mental illness are often what they have been 'spoon fed' by the media (Taylor, 1993). But how accurate are these portrayals? Media reporting about mental illness tends to focus on dangerousness and the lack of mental health care provision (Condren & Byrne, 2000).
'Mentally ill stalker gets life' (Vasagar, 2001). Media representation such as this does little to clarify the public's perception of mental illness (mad or bad). The above headline related to an individual with diagnosed with a 'personality disorder' (undetainable under current legislation). The media always appear happy to make assumptions about an 'evil' assailant's medical state, it is doubtful they would make the same assumptions regarding a good samaritan as such. Only recently we see media coverage relating to a former psychiatric patient (as told in the headlines), who was released from hospital just weeks before he murdered three prostitutes (Taylor, 2003). But on further examination of the situation it becomes apparent that the investigating officer had at no time believed that the suspect had any form of mental disorder, when the murders were committed. He subsequently described the man as;
'...a dangerous, devious and manipulative man...'
(Detective Chief Inspector Ken Ball, cited by Taylor, 2003)
Articles like these only further exasperate the perceived link between mental illness and violent crime. Popular tabloids sensationalize, leading the public to believe that those individuals with a mental illness are dangerous.
But was does the evidence tell us about this perceived link between mental illness and 'dangerousness'? Some groups of people with mental health problems (dual diagnosis), are arguably more likely to be violent than others within society. Studies show that people with severe mental illness commit only a small proportion of serious violent acts within society (Swanson, et al 1990). Statistics show that whilst recorded violent crime amongst the general public has increased four fold in the last 30 years, there has been no increase in violence by people with mental health problems (Taylor, 1999). We are also aware that there are more individuals diagnosed as having a mental illness now, than there were thirty years ago.
The available evidence therefore tells us that the violence in society, committed by those with mental health problems, has shown no increase since the closure of the asylums. Evidence such as this does not support the Governments proposals for the compulsion of such individuals. It is a relatively small number of individuals who are actually dangerous, but it appears that it is from these few individuals that an action is planned that will effect all of those who use mental health services. Any decisions that are made to detain an individual, have to be made upon careful assessment of risk. Not only the risk that others may suffer physical harm, but also the risk to the rights of the individual to be detained. We have already established that those with a mental illness pose only a small risk, so why do the Government feel such coercive legislation to be necessary? It has been said that such proposals are an easy political and economic option (Rogers, 1999). Mental health is not a main concern for most politicians, and it would seem that policy is largely influenced by public opinion, not in the best interests of all concerned. We have already established the effect that the media can have on the publics perceptions of mental illness.
But whose civil liberties must we respect above all? This is not an easy question to answer. It is true that we all have the right to live without the fear of being attacked or murdered, but does this give us the right to remove another's freedom on the pretence they may attack or murder?
If we are to believe that we live in a fair and just society, how can we allow the preventative detention of an individual with a mental illness on the assumption that they may commit an act of violence? If we were to apply Rawl's Theory of Justice (Robinson, 1999), we would see that we are openly discriminating against those in society deemed to have a mental illness. If preventative detention is to be allowed for those deemed to have a mental illness, solely on account of their assumed risk to others then that is clear discrimination. If we are to assume that we are all equal within society, fairness could only be achieved with a generic legislation towards risk. No one should be treated differently unless there is a relevant difference between them which justifies such treatment. We have already established that those with a mental illness are only responsible for a small proportion of violent crime within society (Taylor, 1984). So therefore the evidence tells us that the problem of violence is not confined to those with a mental illness. So how can we justify their detention on these grounds, without detaining everyone within society deemed to pose a risk? It is under our own judicial law, that individuals are innocent until proven guilty of a crime committed. No one is able to accurately predict that someone may commit an act of violence that will warrant their detention.
By the inclusion of ''dangerous people with severe personality disorders', it will become true that society will be more at risk from those with a mental illness, than if they were to be excluded. Also if the definition of a psychopathic disorder requires aggressive behaviour, as it does under the current mental health Act (DOH, 1993), it is inevitable that these people will pose a higher risk of violence towards others. But to include the latter when assessing the risk currently posed by individuals with a mental illness would be false and unjustified.
As a society we strive to improve both ourselves as people and the society in which we live. Although the Governments proposals are based on good intentions, it appears that the implications of their actions have not been fully thought through.
To some it appears that we may be taking a retrograde step, back to where we started, with regards the legislation surrounding mental illness. The 1890 Lunacy Act stated that if an individual posed a risk to another, they could be committed, often for life. According to Foucault (1967) the act of committing to institutions in which 'unreasonable' people were housed, was not a progressive or medical venture, it was simply a crude act of social exclusion.
It is very easy to speculate whether an action is right or wrong, but by applying an ethical theory and examining the fundamental principles such as autonomy, beneficence, non-maleficence, and justice, we are then able to build a moral argument to our speculation.
A utilitarian would support the Governments proposals, viewing them as a good thing. When considering a course of action utilitarian's would take into account society's happiness, the action that would be perceived as being right would be the one that created the most happiness for the greater number of people. The principle of utility (Thonpson, 2000). A utilitarian would state that by allowing the preventative detention of those that pose a risk to society, they are making society a safer place for others, ultimately increasing the happiness of the majority. There are many objections that can be raised to this theory. It can impose severe deprivations on the few, for the sake of gains to others, resulting in an unequal distribution of happiness. Even the greatest loss to the minority can be justified by a utilitarian; by focusing on the consequences of an action utilitarianism can evade the means by which it is achieved (Warburton,1999).
On the other hand a deontologist would have a duty to obey moral principles, regardless of the consequences of such actions. The moral law of duty (Thompson, 2000). A deontologist would not be able to support the Governments proposals as they impinge on basic human rights of the individual. They would have a duty to do the utmost to respect an individual's autonomy. The principle of autonomy provides that the values of an individual be respected. If an individual with a physical illness was to refuse treatment, we would respect their wishes. But if that same individual had a mental illness, under the Governments new proposals we may compel them to comply. As to why the indivual may refuse treatment is rarely explored. Yet we are fully aware of the side effects of many psychiatric medications. This is a further example of how we discriminate against those with a mental illness.
Another principle is that of beneficence, and supports the obligation to do good. This can often lead to conflict with the principle of autonomy, although the conflict is easily settled. If it is thought that a patient is at risk to themselves through the exercise of their autonomy, lacks capacity it is possible to override their autonomy with beneficence in the clients wellbeing. This course of action would be acceptable to a deontologist, as the action is in the best interests of the individual. Perhaps if legislation was to place 'lack of capacity' as a key test in determining compulsory treatment (Expert Committee, 1999), it may be found that compulsory treatment is more. acceptable.
So if we try to predict the consequences of the proposed changes, how might it affect those which it concerns? We would hope that any changes would have a positive impact on client-wellbeing. The principle of non-maleficence tells us to do no harm (Edwards, 1997).
From a survey undertaken by MIND (2003), it is now feared that under the proposed legislation, one in three individuals with a mental illness, would not seek medical help. With this in mind, we would therefore have more mentally ill in the community who may pose a risk if they are left untreated. What is more concerning is that we may be driving the problem underground in that we would not know the full extent of persons with a mental illness living in the community.
But what about those individuals, that do approach services for treatment? Are they to be coerced or cared for? Are the two compatible? Peplau (1989) regarded the relationship between the nurse and the client to be the key to the nursing process, and considered that the quality of such a relationship determined how effective the nurse could be in helping a patient. If we are to believe that this relationship plays any part in the caring process, how is it possible, for a relationship that is built on trust to coexist with such coercive legislation?
Those with a mental illness should not be subjected to treatment under compulsory powers unless they either lack capacity to consent or are known to be a danger to themselves or others. It is accepted that external control over another can be beneficial, (this is where the principle of beneficence is concerned) but that external control should only be maintained for a limited period of time, with a goal of returning the individual to autonomy (Barker, 1991)
But what may happen if Parliament is to enact a law that a significant number of people found objectionable? There still lies a risk that it may not be enforceable in practice, people may choose not to enforce such legislation. The relationship between law and morality is not an easy one to understand. But if a law did not assume a certain amount of morality, there would be no easy explanation for the duty to obey such law. Therefore moral rules and legal rules must share the values and beliefs of the society to which they apply; every law is strongly influenced by moral considerations (Warburton, 1999). At the next general election a change of Government may occur , by bringing about a change of Government there is hope that the proposals may be withdrawn. Although legislation is enacted by parliament there are many people and organisations that influence the development of such. I hope it has become clear that the body of professional opinion opposed to this legislation has yet been ignored by the Government.
When the common morality of society changes, the law must also change. It is not possible to predict what will happen in the future. The revised Draft Mental Health Bill (DOH, 2002) may be amended so that it is seen to be acceptable and preserves the rights of those involved. There is widespread belief that freedom is a right to which everyone is entitled, so therefore any law that impinges on an individual's right to freedom must be justified (Warburton, 1999), .
After looking at the different points of view and the evidence for them, it is felt by the writer that the Governments proposals are based on good intentions, but this is not the way forward. Although right in the quest for a society that is safer for future generations the current proposals are misguided, why the Government are proposing such legislation is open to debate. May it be because in line with the European Convention on Human Rights (ECHR, 1998), we can only justify the detention of an individual if they are of unsound mind? By medicalising deviance, we manage to evade the ethical concerns of removing an individual's liberty. (Heller, 1996). Maybe this is a knee jerk reaction by the Government to public pressure following media coverage of high profile cases previously referred to. Or maybe this is a cost saving option to deal with the problems of those individuals with a mental illness. Mainly those with a personality disorder who are deemed a nuisance to society, rather than providing the financial resources which are needed to provide adequate treatment and facilities.
Footnote: Since this essay has been written the Government have failed
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