Independent advocates help patients understand their rights under the Mental Health Act. A patient can also apply to the court to have a nearest relative appointed to represent them, or the nearest relative can make that application.
"Being detained made me feel totally helpless". That's the message that comes from someone who was detained under the Mental Health Act 1983. Understanding the system is difficult enough, but challenging it can be next to impossible for a person with mental illness. This is where Independent Mental Health Advocates ("IMHA's") come in.
IMHA's were created in 2007 by an amendment to the Mental Health Act. This Act now obliges local authorities to provide IMHA's to "qualifying patients." Briefly, these are children and adults, who are:
- likely to be detained in a psychiatric hospital.
- put under the protection of a guardian.
- subject to a Community Treatment Order.
IMHA's can also be provided to people who are discussing their psychiatric treatment with a doctor.
A person can only act as an IMHA if they have satisfied certain requirements. They have to have the right experience, undergo approved training, be of good character and above all, they must be independent. Local authorities are also expected to ensure that advocates understand disability, cultural and ethnic issues.
Accessing information and understanding
The role of the IMHA is to provide an additional safeguard for patients in hospitals and elsewhere. In particular, they help patients obtain information about and understand the following issues:
- their rights under the Mental Health Act
- the rights that other people, such as a nearest relative, may have
- the legal basis on which they are detained, and which underpins their entitlement to an advocate
- any conditions or restrictions to which they are entitled
- any medical treatment, which they are receiving or might receive
- the reasons for that treatment
- the legal authority for the treatment, the safeguards and other requirements of the Mental Health Act, which apply to that treatment
There are certain situations where an IMHA can't help. These are where a patient is detained in an emergency, where they have already been detained in hospital or where they have been detained to a "place of safety" by the police.
An IMHA will have access to the unit where the patient is staying and they can meet with that patient privately. They can accompany a patient to meetings with professionals, see their records and discuss their case with anyone who is professionally involved with the patient's treatment.
In practice, an IMHA can make all the difference. One example provided by the Social Care Institute for Excellence concerns a young man with a serious brain injury, who was detained in hospital because of his aggressive behaviour. He couldn't communicate reliably with the staff, but repeatedly told the IMHA that he wanted to go home. The IMHA made sure that his request was written into his notes, but the staff kept saying that his aggression made home visits impossible. Nonetheless, the IMHA continued to mention his request and finally, staff prioritised the goal of working towards more regular contact with his family.
Those responsible for looking after a patient, have a legal duty to ensure that patient understands that they can get help from an IMHA, if they so wish. There are difficulties with this in practice; difficulties which the new Mental Health Act could help overcome. If a patient cannot decide for themselves whether to get help, then the responsible person should arrange for them to be visited by an IMHA.
The role of the 'nearest relative'
People detained in hospitals are also entitled to the support of a "nearest relative", who will generally be a husband, wife, civil partner or another member of their family. A patient can apply to the court to have a nearest relative appointed to represent them, or the nearest relative can make that application. If the patient doesn't have the capacity to take that step, or there's a problem with the nearest relative, then the hospital itself should make the application. These nearest relatives have certain rights under the Mental Health Act and in most situations, they should also be given information about IMHA's. They can also ask for an IMHA to step in. However, it's important to realise that the IMHA represents the patient, not the nearest relative.
The Mental Health Act also has its own Code of Practice. Chapter 6 of that Code provides an explanation of the role of IMHA's.
The Mental Health Act is now badly out of date. Society's view of mental illness has moved on a lot since the Act was first drafted. Mental Health Today is now campaigning to give individuals the right to know what treatment is planned for them, the right to nominate their nearest relative to be their advocate, and the right to a directory of advocates to be provided to them proactively. The government is at present reviewing the Mental Health Act, and it is hoped that they will put these recommendations into law.
Malcolm Johnson is a solicitor. His book, "An Advocate's Guide to Complaints in England", written with Muna Adam and Lynn Brady is due to be published by Pavilion soon and is available for pre-order.