Ambivalence, Contradiction, and Symbiosis: Carers’ and Mental Health Users’ Rights

• Date: 01 October 2007
• Published date: 01 October 2007
• DOI: http://doi.org/10.1111/j.1467-9930.2007.00262.x
• Author: VICTORIA YEATES

LAW & POLICY, Vol. 29, No. 4, October 2007 ISSN 0265–8240

© 2007 The Author

Journal compilation © 2007 Baldy Center for Law and Social Policy

Blackwell Publishing LtdOxford, UKLAPOLaw & Policy0265-8240© 2007 The Author Journal compilation © 2007 Baldy Center for Law and Social PolicyXXX

Original ArticlesYeates AMBIVALENCE, CONTRADICTION & SYMBIOSISLAW & POLICYOcotber 2007

Ambivalence, Contradiction, and Symbiosis:

Carers’ and Mental Health Users’ Rights

VICTORIA YEATES

This article explores the emergence of separate rights for carers and psychiatric

service users. Although political rhetoric and policy documents largely assume

symbiosis between carer and cared-for person, increasingly the law reflects that

their rights and interests may conflict and operate in opposition one to another.

This article examines the social and policy factors that lie behind these developments

and disentangles some of the ambivalences, contradictions, and symbioses that

characterize this area of law. While service users’ rights in relation to decisions

about their care have emerged from the shadow of family rights, carers’ rights to

community support services have emerged as an adjunct to service users’ rights.

The article explores the development of the rights paradigm in promoting the

welfare of mentally disordered people and their carer, and the current limits of

separation between their respective entitlements.

I. INTRODUCTION

Over the past 150 years, the system of care of mentally disordered people

has undergone a recasting of rights, powers, and duties of increasing sop-

histication and complexity. This article concentrates on the rights of unpaid

caregivers (“carers”) in relation to the mentally disordered people they care

for. Although political rhetoric and policy documents largely assume a symbiosis

between carer and cared-for person, the law increasingly indicates that their

rights and interests may conflict and operate in opposition to each other.

Increasingly, the courts are called upon to resolve disputes between carer

and service user rights, often arising under the Human Rights Act 1998. But

what are carers’ rights and responsibilities in relation to the use of compulsory

powers under mental health legislation? What ambivalences does the

requirement to “manage risk” reveal within the ideology of partnership?

What social and policy factors have shaped the various legal powers, rights,

and role expectations attached to the status of unpaid carer of a mentally

Address correspondence to Victoria Yeates, University of Glamorgan, Glyntaff Site, Treforest,

Pontypridd, Mid Glamorgan, CF37 1DL, Wales, UK. Telephone: 01443 483046. E-mail:

vayeates@glam.ac.uk.

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LAW & POLICY October 2007

© 2007 The Author

Journal compilation © 2007 Baldy Center for Law and Social Policy

disordered person? What are carers’ social welfare rights to support services

in the community? How effective are the mechanisms available to enforce

these rights?

II. WHO IS A CARER?

Unpaid carers tend to be family members—parents, spouses, siblings,

partners—or just good friends. The essence of the legal status of carer

under English law is not kinship or emotional ties, but the care-giving

relationship, a carer being defined as a person who “provides or intends to

provide a substantial amount of care [to a disabled person] on a regular basis”

(Carers (Recognition and Services) Act 1995, s. 1). Historically, however,

decision-making rights to object to or challenge detention have been

conferred on the basis of family relationships rather than the caring role.

For example, carers acquire rights to challenge the detention of mentally

disabled persons if they are the patients’ “nearest relative” for the purposes

of mental health legislation (Yeates 2005).

However, this is changing. The Mental Health Act 1983 recognizes that a

person who is not related to the patient may become the “nearest relative”

by virtue of having cared for the patient for five years. The Mental Health

(Scotland) Act 2003, goes a step further, giving priority to carer status over

blood or family ties when it comes to deciding who is entitled to challenge

detention. The Mental Capacity Act 2005 gives carers rights and powers in

relation to adults who lack capacity to make personal welfare decisions

themselves.

III. CARERS’ ROLES AND CARERS’ RIGHTS

According to Keywood (2005), under English mental health and mental

capacity legislation, carers act as (1) gatekeepers to the specialist services

(for example seeking admission to the hospital when the carer can no

longer meet the care recipient’s needs); (2) proxies (taking action in the best

interests of a person who lacks mental capacity including restraining that

person (Mental Capacity Act 2005, ss 5 and 6); and (3) advocates (for

example giving an opinion about what is in an incapacitated person’s best

interests—Mental Capacity Act 2005, s. 4). As Keywood (2005: 357) notes,

the “varied and overlapping roles anticipated by carers highlight the

tensions and conflicts inherent in the caring role as it is currently construed,

yet offer no obvious solutions as to how these may be resolved.”

Carers’ rights fall into two broad groups: decision-making rights and

social and economic rights. Decision-making rights (conferred under mental

health and mental capacity legislation, which authorize treatment without

consent) enable family carers to (1) apply for compulsory admission, (2)