Report on the Review of the Mental Health (Scotland) Act 1984

Chapter 17

CIVIL AND SOCIAL RIGHTS

1. We heard evidence that people with mental disorders can face specific disadvantages in respect of their civil and social rights.

Voting rights

2. In our first Consultation, we sought views on what effect, if any, treatment for mental disorder should have on the right to vote. Respondents made a number of criticisms regarding the voting system, particularly the fact that there were restrictions on the rights of detained patients to vote. These turned on the fact that, after a period of detention, such patients were deemed not to be resident at their home address, and the hospital could not be treated as a home address for voting purposes. Criticisms were also made concerning the additional procedures which voluntary patients in learning disability and psychiatric hospitals had to undergo in order to be allowed to vote.

3. We felt that these restrictions were unjustified, and made representations to the Home Office Working Party which was, at the time, considering a number of issues concerning electoral procedures. We were pleased that the Working Party shared our general concerns, and recommended that such restrictions be removed.⁴²

4. Since then, the UK parliament has passed the Representation of the People Act 2000. This makes provision for voluntary and detained patients (other than detained offenders) to register to vote. Such patients will be able to register either at the hospital where they are living or at their former address, or some other place where they have a local connection⁴³. The requirement for a 'patient's declaration' is removed. The Act also makes new provision for assistance to people with physical disabilities, or who are unable to read. As a result, we need make no further recommendation on this issue.

Housing and benefits

5. People with mental disorders often rely on public services, and are affected by housing, social work, health and welfare benefit legislation. This other legislation may not pay sufficient regard to the needs of people with mental disorder, or the interaction between different pieces of legislation may disadvantage some people. People with mental health problems can also have difficulty using mainstream information and advice agencies.

6. It has not been possible for us to consider every aspect of the law where people with a mental disorder, amongst other vulnerable groups, may not receive adequate support. We consider that particular areas, which impact adversely on people with a mental disorder, include welfare benefits legislation and housing policy.

Housing

7. The Disability Discrimination Act 1995 gives disabled people rights not to be discriminated against in access to housing. However, many landlords are reluctant to have people with mental health needs as tenants. We were also told that some public sector landlords impose conditions on people with community care needs by insisting that they agree a care package before granting a tenancy.

8. Respondents to our consultation also highlighted the detrimental effect of the practice of housing vulnerable people in hard to let accommodation. This practice compounds the difficulties of community integration. We were advised that allocation systems for housing often award priority on the grounds of physical ill health but may not adequately recognise mental illness.

9. These concerns should of course be set against the general background of the difficulties that local authorities face, for financial and other reasons, in meeting the demand in their area for good quality housing.

10. People who move in and out of hospital often face particular difficulties in maintaining tenancies. Sometimes this relates to problems with welfare benefits, but there may also be difficulties with the policies of some landlords regarding the recovery of properties.

11. We were not able to consider these problems in detail, but we consider that they are of relevance to our remit. The recommendations we make regarding compulsory measures are designed to reflect the aim of current mental health policy in supporting more people within their own homes, and it is important that this is not frustrated by problems in obtaining and retaining suitable housing. We believe that further action to address the issue of the housing needs of people with mental disorders is necessary.

12. In July 2000, the Scottish Executive issued proposals in relation to social housing⁴⁴. These include several proposals which bear on the issues described above.

13. It is intended that Scottish Homes should be superseded by a regulatory body for all social landlords, including local authorities and housing associations⁴⁵. This would appear to offer scope to develop best practice guidance in relation to meeting the housing needs of people with mental illness, in collaboration with mental health organisations.

14. It is also proposed that a single social tenancy be created, but that for some tenancies, this will be a 'short tenancy' which can be terminated after six months⁴⁶. Such tenancies are stated as possibly covering certain types of special needs housing where there is sharing of common facilities, or services are provided to all tenants, or both. People with mental disorder may be affected by such tenancies, and we would be concerned that they should not be overused. We strongly agree with the comment in the Paper that, in general, tenants with particular needs should have full tenancies wherever this is possible. While in our view, the short tenancy would be a better alternative than the current practice of granting 'occupancy agreements' with no security of tenure, we would expect their use in relation to people with mental health needs to be limited.

15. We welcome the proposed introduction of succession rights for carers⁴⁷.

16. New arrangements are proposed for funding extra support for vulnerable people⁴⁸. We are not in a position to comment in detail on these arrangements, but we note the comment⁴⁹ that the new grant should not be spent on services funded under existing mechanisms, including 'services which deprive people of their liberty (such as detention under mental health legislation)'.

17. Our proposals for compulsory measures will mean that people may be subject to a range of compulsory measures, in a range of settings. We believe that any new funding arrangements should take account of this, and should facilitate more flexible and innovative forms of offering care and support to people with mental disorders, including those who are under some form of compulsion under mental health law.

Housing Benefit and DSS Benefits

18. While many people with mental health problems or learning disabilities are in employment, others are unable to work, or do not receive the necessary support to maintain employment. As a result, the benefits system is of considerable importance.

19. Respondents to our consultation exercises felt the system needed to be improved, and highlighted the following inadequacies in particular among those that they felt needed attention:

• Housing benefit restrictions apply to those in hospital for over 52 weeks.
• Patients on leave of absence can be disadvantaged by housing benefit regulations because they are still treated as hospital inpatients.
• Hospital in-patients forfeit the right to the mobility component of Disability Living Allowance, on the basis that the NHS can meet the cost of any transport needs they have.
• The low level of benefit payments paid to people in hospital and supported accommodation inhibits integration and community participation. Many people in such settings receive no more than an inadequate 'personal allowance' for their own needs.

20. DSS benefits were also of major concern to respondents to the consultation carried out by the Scottish Executive Learning Disabilities Review. This Review has recommended that the Scottish Executive should consider raising, with the Department of Social Security, specific areas of concern related to benefits and support for people with learning disabilities⁵⁰.

21. We feel that the issues we highlight above also require to be addressed.

Stigma

22. We have heard a great deal of evidence to suggest that the stigma associated with mental disorder is a major problem for many service users.

23. Stigma arises from a lack of awareness of and misconceptions about mental disorder. We firmly believe there is a need for action to address this. However, we do not believe that a new Mental Health Act would be the most effective vehicle to address stigma. This requires shifts in public perceptions and attitudes, which are unlikely to be affected significantly by any change in mental health legislation.

24. Respondents to our consultation also generally felt these issues would be more appropriately tackled through wider human rights legislation, such as the Disability Discrimination Act 1995 and the Disability Rights Commission Act 1999, rather than through mental health legislation.

25. We agree with this general approach, although we feel that such legislation could be strengthened. We heard evidence in particular of the great deal of harassment experienced by people with mental disorders. We note that, in 1998, an offence of racially aggravated harassment was introduced⁵¹. We believe that consideration should be given as to whether it would be desirable to introduce similar protection for people with mental disorders.

26. We also believe there is a need to develop a strategy to address the complex issues of public attitudes and understanding of mental health and to foster more accepting attitudes within society as a whole. The review of services for people with learning disabilities recommended a long-term programme to promote public awareness about people with learning disabilities⁵². We support this recommendation. We also feel that similar action is needed in relation to mental disorder generally. While initiatives such as the 'Changing Minds' campaign run by the Royal College of Psychiatrists, and others initiated by voluntary organisations are important, we feel that the problem demands action by government, and by agencies such as the Health Education Board for Scotland.

27. Any such campaign should seek to promote positive mental health, but should not be restricted to this. It should take particular account of the need to promote better public attitudes towards people with mental disorders, including those with more severe and enduring disorders, who may be subject to compulsory measures.

Visiting rights

28. Patients who are detained have no formal rights to receive visitors. It was pointed out to us that the denial of visits could be subject to challenge under the European Convention on Human Rights. This may not only apply to visits generally, but to conjugal visits, perhaps including in secure establishments.

29. This is not a matter which the Committee was able to consider in detail. We believe however, that it should not be possible to deny visits to a detained patient, where the patient wishes such a visit to take place, unless there is a clinical justification, or there are justifiable concerns regarding security, or the interests of children have to be taken into account.

30. All establishments with detained patients should have a written policy on visits which should be subject to monitoring by the Mental Welfare Commission. Guidance could appropriately be contained in the Code of practice.

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