Why I can’t support the Mental Health (Discrimination) Bill

Most people will be aware of the aphorism that ‘the road to hell is paved with good intentions’, fewer will be aware of the fact that there is quite a solid body of psychological research literature which suggests that there is considerable truth in that statement. In particular, studies by Peter Gollwitzer, Pascal Sheeran and Sheina Orbell, which examined the role of intention in task completion, indicate that our ability to judge our own intentions, and those of others, is subject to a number of cognitive biases, foremost amongst which is the tendency to ascribe good intentions to own own actions far more readily that when dealing with the actions of others.

This, as you might well imagine, has real world consequences, not least when measures are introduced in an effort to encourage people to behave in a more ethical manner. Attempts to legislate for improvements in ethical behaviour, for example, tend to backfire because people will tend to observe the letter of law rather than the spirit in which the law was originally intended, while studies of business ethics tend to indicate that most wrongdoing in business stems not from ill intentions at the outset but rather from from errors and unforeseen events and circumstances which the miscreant failed to consider and allow for in advance – i.e. the law of unintended consequences. The classic example of this is, of course, the ‘rogue trader’ whose scheme to get rich quick backfires spectacularly when the markets don’t perform as they expected and, like other gamblers with a supposedly foolproof ‘system’ the real damage is done by the well-intentioned but deeply misguided efforts to win back their losses with a stream of increasingly speculative and risky trade in the hope of making the one big score that will wipe out their losses.

Good intentions can often generate counterproductive result and I fear that this is likely to be true of a private member’s bill that was reintroduced into the House of Lords for its second reading in the last couple of days.

The Mental Health (Discrimination) Bill has been put together by Lord Dennis Stevenson and Charles Walker MP and has readily attracted the support of the mental health charity Mind – and, no doubt, other similar organisations – who describe the bill as being one which will:

… repeal and amend four pieces of outdated legislation that discriminate against people with mental health problems.

All those involved in developing and promoting the bill clearly have the best of intentions but, as always, the devil is in the detail and, having looked at the legislation that the bill is seeking to amend I can see a number of problems on the horizon.

Mind provides a description of each of the four clauses in the bill, which explains their purpose pretty well, so I’ll use their text as a springboard, starting with:

The Bill focuses on four pieces of legislation that prevent people with mental health problems from participating fully in society. The Bill will:

– repeal section 141 of the Mental Health Act 1983, under which a Member of the House of Commons, Scottish Parliament, Welsh Assembly or Northern Ireland Assembly automatically loses their seat if they are sectioned under the Mental Health Act for more than six months

S141 of the Mental Health Act is a fairly lengthy clause, which is mostly concerned with procedural matters, i.e. the ‘how’ of removing an MP if they’ve been sectioned for six months, and the procedure itself is fairly rigorous (i.e. second opinions all the way) but nevertheless does require MPs to vacate their seat if, after six months, they are still incapable of serving as an MP as a result of their having been sectioned.

Now, removing the automatic element of this clause – the six month time limit – may seem a laudable enough measure but, of course, what it fails to address is the issue of representation, i.e. the new bill creates a situation in which an MP’s constituents could be left without any parliamentary representation for an extended and, to a degree, open-ended period of time – anything up to five years* – because the MP has been rendered incapable of carrying out their parliamentary and other duties.

* If the MP is still sectioned when a general election then they will be removed automatically as they will not be able to stand for re-election.

And, of course, during this period, the incapacitated MP will still be able to claim their full parliamentary salary of more than £65,000 a year.

One can argue, reasonably, that the strict six month time limit is, perhaps, rather ungenerous – and I’d be inclined to agree – however, an open-ended commitment to keeping an MP on the public payroll for anything up to five years* while they’re incapable of carrying out their duties is something that many, if not most people, would consider to be excessive and untenable. Certainly, its highly unlikely than any other employer in a similar situation, i.e. with an employee whose unable to work because they’ve been sectioned, would be expected to keep their job open and pay their salary for such an extended period of time, even under general disability discrimination law. At the very least, most employers would be looking very seriously at dismissal/retirement on medical grounds once an employee had been off work continuously for a year if, by that time, there was clearly little prospect of the employee returning to work in the very near future.

* So far I’ve found nothing to indicate what MP’s sick pay terms are, although the cynic in me doubts very much that its anything like the usual ‘x months full pay, x months half pay, then SSP’ that us plebs with normal jobs have to put up with.

On the whole, I think the removal of any provision for the removal of MP’s on grounds of incapacity – mental or otherwise – is a step too far and, politically-speaking, will be seen as another example of MP’s voting themselves one – very generous – rule for themselves and another – extremely stingy – set of rules for everyone else, particularly at a time when the current government is planning to reduce worker’s rights in employment even further than they already have.

Balance, I think, demands that there should be some means of removing an MP from office if they are rendered incapable of performing their duties as an MP for an extended period of time,  for any reason (and not just where they’ve been sectioned) but with rather more discretion in terms of timescales via process which comes into effect after a year, rather than six months, and which allows the Speaker – who is ultimately responsible for all this – to afford an MP a bit more recovery time if their prognosis supports such a course of action.

As things stand, I expect this clause to founder on public perception that it amounts to MP granting themselves much more favourable employment terms than everyone else, unless the bill is amended to include some provision for removal from office on grounds of incapacity.

– amend the Juries Act 1974 to remove the blanket ban on “mentally disordered persons” undertaking jury service

The intention, here, is to replace (a) and (b) in the first part of the following ineligibility clause:

A person who suffers or has suffered from mental illness, psychopathic disorder, mental handicap or severe mental handicap and on account of that condition either—

(a) is resident in a hospital or other similar institution; or

(b) regularly attends for treatment by a medical practitioner.

A person for the time being in guardianship under section 7 of the Mental Health Act 1983. A person who, under Part VII of that Act, has been determined by a judge to be incapable, by reason of mental disorder, of managing and administering his property and affairs. (In this Group—

(a)“mental handicap”means a state of arrested or incomplete development of mind (not amounting to severe mental handicap) which includes significant impairment of intelligence and social functioning;

(b)“severe mental handicap”means a state of arrested or incomplete development of mind which includes severe impairment of intelligence and social functioning;

(c)other expressions are to be construed in accordance with the said Act of 1983.

with

A person for the time being liable to be detained under the Mental Health Act 1983.

So, at the moment you cannot serve on a jury if you’re hospitalised due to mental health problem or receiving regular treatment for mental health problem and the bill will amend this so that, in future, people will not be eligible for jury service only if their condition is serious enough to render them liable for detention.

Okay, so the current clause is clearly too broad in scope; the provision for rendering anyone receiving regular treatment would, for example, disbar someone from jury service simply for receiving regular treatment for a common phobia that would, in no way, impair their ability to serve as a juror. That said, the existing clause is also not without its unfortunate loopholes, particular in regards to personality disorders where some individuals who probably should be ineligible for jury service would be able to bypass the rules by virtue of their not receiving regular treatment because their condition is considered to be untreatable, and the revised clause, which limits ineligibility only to those whose condition is sever enough to make them liable for detention does nothing to address this particular loophole.

The intention here is clearly that the system should not disbar people from serving on juries simply because their are receiving regular treatment for a mental health problem which does not affect their ability to serve as a juror, which is a laudable enough aim and yet anyone with even a passing knowledge of mental health will see that defining eligibility purely in terms of liability for detention under the Mental Health Act will result, over time, in some people sitting on juries when their condition genuinely does render them unsuitable for taking on such a role.

If the old clause is too restrictive, the proposed replacement is too open, raising the possibility of mistrials and appeals predicated on the psychiatric condition of individual jurors, should this come to light after a conviction and the only equitable way to mitigate these risks is to deal with mental health problems that fall outside the ‘liable for detention’ criteria on an individual, case by case, basis, which inevitably means increased bureaucracy and expense to the taxpayer.

I think it unlikely that this clause will be accepted by Parliament as I expect strong objections to it to come from both the Home Office and Crown Prosecution Service due to the risk of mistrials/appeals, while the Ministry of Justice will undoubtedly baulk at the potential cost of a system which triages potential jurors on an individual basis, this being the only viable solution.

– amend the Companies (Model Articles) Regulations 2008 which states that a person might cease to be a director of a public or private company “by reason of their mental health”

There is, sad to say, a degree of dishonesty in this description of the bill’s intent as the specific clause that it seeks to remove from the Model Articles is one which states that a person will cease to be a company director:

by reason of that person’s mental health, a court makes an order which wholly or partly prevents that person from personally exercising any powers or rights which that person would otherwise have;

Although, somewhat interestingly, the preceding clause, which removes people from the same position if they become physically or mentally incapable of acting as a director and that this will last for more than three months remains untouched.

It should be noted that what the articles provide for is not just the removal of a director by reason of mental health but their removal on mental health grounds where a court has determined, in whole or in part, that they are sufficiently incapable of exercising their rights and powers as a director to require the court to grant a power of attorney to the third party.

Notwithstanding the disingenuous presentation, there are one or two problems here that the bill’s authors have evidently failed to consider.

For starters, these are Model Articles, which are fully open to amendment within the constraints of company law, so removing this particular clause from the regulations in no sense amounts to a change in law that will prevent [alleged] discrimination because taking out the clause does nothing to prevent the putative directors of a soon-to-be formed companies, or their lawyers. putting that clause right back in place when drafting their Articles of Association or, indeed, adding it to their Articles at a later date if this is deemed necessary.

To illustrate a second major problem with this aspect of the bill, consider this scenario…

Several years ago I was called in to work with a local user-led learning disabilities organisation which wanted to incorporate as a limited by guarantee company and register as a charity. The organisation’s key stipulation in all this was that its member’s, all of whom had learning disabilities (of varying degrees), should have full legal control of the company/charity by holding a clear majority of the seats on its board of directors/trustees.

Now it took several months to walk this organisation through the company formation process, in part because there was a need to take things slowly and ensure, at every stage, that the member’s who were to become the organisation’s first directors fully understood what they were getting into, the legal responsibilities they were taking on-board. and that the organisation has robust systems in place which ensured that its members would not be put into situations in which the disabilities would affect their ability to cope with the responsibility of running the organisation and handling its key business decisions. Out of all this work came a number of important amendments to the Articles of Association of the organisation; a rule was added that allowed disabled members to become a director of the company only if they were capable of independent living, this being the group’s basic test of competence. Rules were included to ensure that board meetings were only deemed quorate if a clear majority of disabled members were present at a meeting and to limit the authority of non-disabled board members – the articles allowed for a minority group of non-disabled members to be appointed to the board to support disabled members but included a number of safeguards to prevent them taking over the group.

And an explicit clause was inserted into the articles which ensured that a director was automatically deemed to have been removed from the board if, for any reason, a power of attorney over their affairs was granted to a third party.

Discrimination?

No, an essential safeguard for a group that wished to retain full control of its own affairs.

You see, one of the biggest hurdles facing some people with learning disabilities who desire to live independently can be over-protective parents/family members. Although things have been improving steadily over the last 20-30 years, there are still some people with learning disabilities whose biggest fight, when it comes to asserting their own independence, is with parents and family members who simply cannot let go and trust the disabled individual to make decisions for themselves.

This is a complex issue, and so one that I won’t go into in detail, but in working with the group one of the clear concerns that emerged from its disabled member’s, as I walked through the company formation process, was a perceived risk that the organisation could effectively hijacked, against their wishes, by the parents/families of board members if there was nothing included in the articles that would prevent a non-disabled person using a court-ordered power of attorney to take over and control a disabled member’s position on the board.

And so, a ‘discriminatory’ clause that automatically removed board members if they ceased to exercise full control over their personal affairs was included in the organisation’s articles – at the express request of its disabled members.

To be honest, it’s not clear to me quite what this clause intends to achieve, although I suspect that what it will achieve will amount to either (a) very little or (b) a muddying of the waters that creates fertile ground for board in-fighting and expensive litigation. What is clear is that those putting this bill forward clearly haven’t thought through the potential implications of this change and, for that reason, I think its unsupportable as written.

– amend the School Governance (Constitution) (England) Regulations 2007 so that individuals who have been detained under the Mental Health Act are no longer prevented from being school governors.

Again, the description given by Mind doesn’t fit well with what the bill proposes to do, which is simply revoke the following clause entirely:

A person is disqualified from holding or from continuing to hold office as a governor of a school at any time when he is detained under the Mental Health Act 1983(1).

The key phrase here seems to be ‘when he is detained’ – you can’t become a school governor, or continue to hold a position as a school governor while you’re actually detained under the Mental Health Act, but otherwise it has nothing whatsoever to say about preventing people who have been detained under MHA, in the past, becoming school governors if they’ve recovered and are no longer subject to detention.

If the beef here is that disqualification is automatic and immediate when someone is sectioned while they are a school governor, i.e. no provision for a recovery period, then fair enough – the law could reasonably be amended to allow for a suspension during detention that can revoked if an individual recovers within a reasonable period of time. Under the existing law, MPs get six months ‘grace’ before losing their seat, so there’s no reason I can see not to extend the same courtesy to school governors, and if the recovery period allotted to MPs were to be extended then there would no obvious reason why one shouldn’t offer parity to school governors or, indeed, others who hold similar positions.

However, the wording of Mind’s explanation of this clause, in talking about people who have been sectioned being prevented from becoming a school governor seems to imply that detention under MHA results in a permanent disqualification from holding such a position when that it is clearly not what the law actually says – the regulations provide only for disqualification during the period of detention, not afterwards, and although a sitting member would lose their position there is nothing in law that would appear to prevent them being reappointed, or taking up a position as a school governor at a different school, at a later date.

I suppose that it could be that schools and LEAs are, in practice, treating the disqualification as a permanent thing, in which case they are acting outside the scope of the current law, but if that is the case then one has to wonder why that hasn’t been challenged under existing equality law. However, as currently written, the only thing the law seems to actively prevent is the appoint of someone to the position of school governor while they’re detained under MHA, and a struggle to see quite how that amounts to unfair discrimination as, by definition, if they’re detained they can’t take up their position in any meaningful sense anyway.

Overall, despite its good intentions, the bill seems to be ill-thought out with, seemingly, little or consideration having been given to the legal and practical implications of most of the changes its proposing.

Being somewhat more cynical for the moment, perhaps its most striking feature is that the only change that wouldn’t be fraught with major legal and administrative difficulties is the one that gives MPs a free pass to stay on the public payroll for an extended period of, hypothetically, up to five years, while they’re incapacitated and incapable of carrying out their role as an MP, creating the unfortunate impression that the bill might, ultimately, be not much more than a Trojan horse which permits MPs to vote themselves another perk that not available to Joe Public.

To be fair, Private Members’ Bill are often introduced merely to provoke a public debate, with no real expectation that they’ll actually become law, and if that’s what the author’s of this bill intend then fair enough – we should be looking, again, at the assumptions that underpin legislation which provides for the automatic removal or disqualification of people with mental health problems from holding particular positions or undertaking particular public duties and working through them to ensure that such provisions operate only where they can be fully justified and applied in a fair an equitable manner that clearly takes into account people’s individual circumstances. Preventing someone from undertaking jury service simply because they’re receiving regular treatment, such as counselling, for a phobia or other relatively mild mental health problem is manifestly absurd and unfair, but then it is equally absurd that the law, as currently written, would permit someone with a serious, but untreatable, personality disorder which clearly affects their judgement, to sit on a jury provided that their condition does not render them liable to detention under MHA.

Do I support that debate?

Yes, absolutely and I would have hesitation in supporting well thought out, rigorously drafted, legislation that clear addresses the issues I’ve identified here, but support this particular bill?

No, definitely not – it’s a complete dog’s breakfast of a bill that, if enacted, will create far more problems than it will solve.  While the authors of this bill, and its supporters, may have the best of intentions, good intentions are no substitute for properly thought out and rigorously drafted legislation and that, sadly, is the one thing that this particular bill fails to provide.