When ‘must’ becomes ‘should’

Well, when DOES ‘must’ become ‘should’?   You should stop at a red traffic light?  You should stop when people are using a pedestrian crossing?   You should not open the door of a moving train?   This could go on for a long time – but the reality is that if people are allowed to operate choice in these types of situation, then things will go wrong, and the people involved, and their families, may well suffer seriously.

Last Monday, 28th January, was the last day for responding to the Welsh Assembly Government’s request for comments of the draft Code of Practice for the Mental Health Act.  (The draft Code of Practise now reflects the Mental Health Act 1983 as amended by the Mental Health Act 2007).  Hopefully many people – receivers of services, carers, professional workers, voluntary agencies and others with an interest in mental health in Wales – did so.  The document itself is large – 219 pages including appendicies – and being written in ‘document speak’ is not the easiest read.  But it needs to be read as it is important for everyone who may be treated under the MHA 2007 and their relatives.      So important that Edwina Hart, AM,  Minister for Health and Social Services has apparently said that she intends to read every response to the Consultation.    But to my mind there is a basic problem with the advisory words and phrases used throughout the Code in that there are many ‘shoulds’ and few ‘musts’.   Just taking the pages 3 – 7, which contain the guiding Principles 1 – 28, there are 33 ‘shoulds’ and five ‘musts’.    Yet, taking just a couple of examples for the purpose of this post, (chosen only because they are relatively brief and save me work)  it is hard to understand why ‘should’ was used instead of ‘must’.   1.25 reads:  Decisions under the Act should be taken with a view to minimising the harm done by mental disorder, by ensuring the safety and wellbeing (mental and physical) of patients and protecting the public from harm.    1.29 reads:  Where patients are in transition from one service to another, for example from adolescent to adult care or from adult to older adult services, practitioners should ensure that patients are receiving the most appropriate service to meet their needs and, where practicable, delivered in line with their expressed wishes.        Surely these two ‘shoulds’ ought to be ‘musts’?   Why would you NOT want the ‘must’ word here?     Well, I can think of reasons, such as service weaknesses and lmited budgets, but therein lies the problem for the service receivers and carers.  

Does this matter?   Yes, it does.   The intention of the Code is to guide practitioners in the discharge of their duties and also to protect the service receivers and their carers and families.   Never mind the ‘should’ protect them – it ‘must’ protect them.  The Code is the protection for both those who provide services and those who receive them – but on present reading it appears weak in relation to those who receive.  What has also surprised me is that although service users and chosen voluntary agencies have been involved throughout the drafting process, they seem to have missed this essential point – in law ‘must’ is protective and ‘should’ is not.   It is difficult to understand how the discussions were able to progress without this basic understanding having been resolved.  In fact, I don’t understand.  Along with some other professional colleagues I raised this issue at one of the WAG consultation events – and the hesitant response was far from convincing.  I become concerned when, in matters which may restrict an individual’s liberty and encroach their Human Rights they are not firmly protected – maybe because to guarantee such protection and properly recognise individual Human Rights would require major alterations to current mental health services – and attitudes?  Time is running out if implementation is to take place in October 2008.    But should the service users, carers and particularly the Voluntary agencies that were involved in this process have been prepared to admit any flexibility on such important issues?   I think not, and I would like to know why they did?

All comments, explanations, clarifications and any other ‘tions’ will be welcome. 

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