Mental health, learning disability and social care: protecting human rights in the austerity crisis

This conference held in Cardiff on 24 June, was organised by the Centre for Health and Social Care Law and Hafal, Wales’ leading charity for people with serious mental illness and their carers.

The aim was to bring together service users, carers, policy-makers, health and social care practitioners, lawyers and academics to discuss the current environment for people who are trying to access mental health and social care support.

The law in Wales is gradually diverging from that in England, increasing the need for opportunities to exchange information and views on rights to support and how to get it. The Social Services and Well-being (Wales) Act 2014 and the Mental Health (Wales) Measure 2010 have radically changed the legal and policy landscape.

This post highlights some of the issues that emerged from the day. It was the morning after the EU referendum vote, so the atmosphere as we began was somewhat subdued. Nevertheless, whatever the future holds, fundamental international principles in United Nations and European conventions on human rights still underlie the law in Wales.

The conference was chaired by Richard Jones, an honorary Professor with the School of Law and Politics, and the author of authoritative practitioner works, the Mental Health Act Manual and the Mental Capacity Act Manual. He introduced the day by emphasising the difficulties for professionals and the public in accessing the law about health and social care, as this is not published in an up-to-date format, except on expensive legal databases. He welcomed the opportunities this conference would offer to examine rights to services.

The first session was about services supporting the mental health and emotional wellbeing of children and young people. This topic has received considerable public attention in recent weeks. For example the Centre for Mental Health ‘Missed Opportunities’ research review found that children waited an average of ten years between starting to have difficulties and receiving treatment, and three-quarters of parents who sought help were not getting any.

Earlier this year, a parliamentary committee in England reported that children in care were particularly poorly served by child and adolescent mental health services (CAMHS), despite high rates of mental disorder in that group.

In Wales, these problems are well known and have led to the establishment of the ‘Together for Children and Young People’ programme (T4CYP), a multi-agency service improvement programme working to consider ways to reshape, remodel and refocus the emotional and mental health services provided for children and young people.

Speakers who took part in this session were mental health campaigner, Mair Elliott; Jane Williams of Swansea University; and Camilla Parker and Julie Doughty from Cardiff University. Mair is a trustee of Hafal and co-author of the Making Sense report, which is a response by young people to the T4CYP. She has been giving evidence and working with Welsh Government since 2012 on identifying what needs to be improved in provision of services for young people.

She pointed out the proportionately low spend on CAMHS, although it is in childhood that many people’s problems start, and the lack of data on whether local health boards are fulfilling their remit. The Making Sense report also notes that the heart of the problem lies in the doubling of referrals to CAMHS between 2010 and 2014, although not all these children are best served by those specialist services. The report’s recommendations include:

• expanding/creating high-quality support provided by non-mental health professionals
• not medicalising growing-up
• embedding emotional intelligence and healthy coping mechanisms in the school curriculum
• introducing an absolute time scale for referrals and reviewing practice within CAMHS
• reorganising the transition to adult services, so to avoid ‘falling off a cliff’ at 18
• supporting carers
• listening to young people.

Jane Williams then explained how the Wales Observatory on Human Rights had contributed to the Making Sense report by aligning its findings and conclusions with human rights law. Julie Doughty provided a briefing note on support for children in Wales who are, or have been, in care. Camilla Parker gave an insight into the situation in England, where new money is being invested in CAMHS by government, but there are still serious resource shortages.

The ensuing discussion with the audience included the dilemmas and tensions between wanting to keep a child close to home, but not in an adult ward. Sian Richards, who is leading the T4CYP, was a delegate, and gave us a useful update on its progress.

The next theme tackled was that of securing service users’ and carers’ entitlements under the Social Services and Well-being (Wales) Act 2014, presented by Alison Tarrant, a PhD researcher at the School of Law and Politics, whose particular interest is independent living. She described the Act as ‘phenomenally ambitious’ in its placing a duty on local authorities to promote the wellbeing of people who need support (whether adults or children) and their carers. Amongst the ongoing questions that she highlighted was the four-stage eligibility test which the Act has brought in. It is still unclear how this will work in assessment of individual needs.

Alun Thomas, the Chief Executive of Hafal and Andrea Gray, Mental Health Legislation Manager with Welsh Government, then spoke about the outcomes of the Mental Health (Wales) Measure 2010. This introduced the right for all mental health service users to have an individual care and treatment plan and extended their rights to advocacy. Research by Hafal and a government review both indicated that the Measure has brought about improvements but that consistency is hard to achieve. Audience discussion highlighted the practical problems posed by delays and the structural divisions between primary and secondary care.

The final contribution by Professor Phil Fennell on the tangled legal web of the deprivation of liberty safeguards (DoLS). Heavily formalistic procedures are now required for anyone living in supported accommodation, where they are under continuous supervision and not free to leave. Following a Supreme Court ruling last year, such an arrangement amounts to a deprivation of that person’s liberty and, to be lawful, is subject to approval by the Court of Protection. Law reform is currently under review by the Law Commission.

In the meantime, the unsustainable burden on public bodies recently culminated in the judge in charge of the Court of Protection calling for the Lord Chancellor and the Secretary of State for Health to attend court to explain who was taking responsibility.

Although no-one attending the event was in doubt that the challenges to providing timely and effective services for adults and children in the current economic climate are not going away, there was no shortage of energy and commitment to continuing the conversations about improving access to the right service at the right time.

(Post script: A few days after the conference, the new Mental Health Act Code of Practice was published, and the Children’s Commissioner for Wales published a report on the wellbeing of children in residential care.)

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Julie Doughty, Lecturer in Law, and deputy director of the Centre for Health and Social Care Law, School of Law and Politics. She receives funding from NISCHR (Welsh Government) and the Nuffield Foundation.