I wrote the following article for the Parliamentary Monitor
MENTAL HEALTH LEGISLATION - WHERE ARE WE NOW?
By Lynne Jones MP, June 2006
Faced with major criticisms from the Joint Commons/Lords Scrutiny Committee and the Mental Health Alliance, the UK Government has finally abandoned its second attempt at a Mental Heath Bill. Instead it is now just proposed to amend the 1983 legislation. In contrast, new Scottish mental health legislation, described in an editorial in the British Medical Journal as ethically sound, with principles supported by most stakeholders, has been successfully introduced.
Why the difference?
The Government wanted new legislation to respond to developments in mental health services and to be compatible with the human rights law. A major reform was to be the provision for compulsory treatment “within the community” on the basis that this would be the least restrictive alternative.
Also, a specific problem with the ‘83 Act that needed revision is the “treatability” loophole for people deemed to have a personality disorder. Unlike those diagnosed as mentally ill or with severe mental impairment, treatment for such patients must be likely to alleviate or prevent deterioration of their condition and without such treatment, they cannot be detained.
The solution proposed by the expert committee set up to review mental health legislation, and agreed by the Government, was to adopt a broad definition of mental disorder based on behaviour rather than diagnosis. The scrutiny committee agreed. However, like the expert committee previously, they recommended the scope should be narrowed by means of specific exemptions and by the conditions for the use of compulsory powers, crucially that they should not be used without a patient demonstrating significantly impaired judgement and that the treatment should benefit the patient. These recommendations were rejected by the Government despite the fact that the excellent National Service Framework for mental health emphasised non-discrimination and the need to combat stigma. An important legal principle is that a competent patient has an absolute right to refuse consent to medical treatment.
The fundamental difference between the Scottish legislators is that they accepted recommendations from their own review body on these matters but the Westminster Government has been obsessed with the idea that public opinion requires government action to deal with dangerous psychopaths - as the Prime Minister put it: “The public worry that some people, who tragically have a severe mental disorder, can pose a danger and threat to the public, so we need to strike a balance”. Considering that the vast majority of mentally ill people are not dangerous and that a person’s future dangerousness cannot be reliably predicted, the logical consequence of this approach would be that far more people would have to be incarcerated and, perversely, people would not seek help when they need it. Given that the trend in the number of homicides committed by mentally ill people is downwards, rather than pandering to stigma, a better approach would be to give an even higher priority to the need for better care for the one in four members of the public that will experience mental illness. It is a scandal that a quarter of those subject to compulsory treatment have previously been refused care when they requested it.
In the end, what finally killed off the last Bill was the Government’s acceptance of that they could not proceed without demonstrating that they have provided sufficient resources, both financial and human, for the proposed system of mental health tribunals, which would have more than trebled the number of hearings compared with the current, already overburdened system.
The decision to abandon some of the more controversial plans is to be welcomed. The decision to limit compulsory treatment outside hospital to those already detained on a treatment section of the Act will retain the current de facto limit on the level of compulsion that a hospital bed has to be available but help resolve the problem of frequently relapsing (“revolving door”) patients. There will also be little objection to the proposal to introduce protection for patients who lack capacity but because of their illness do not object to treatment (filling the “Bournewood Gap”) nor to a simplified definition of mental disorder. The Government’s decision to keep exclusions for drug and alcohol dependency (except where there is “dual diagnosis”) and preserve the effect of the current Act as it relates to people with learning difficulties is welcome. Unfortunately the Government is still refusing to include an impaired decision-making criterion and the proposal to replace the “treatability” test with a test that appropriate treatment must be available is not acceptable without provision that compulsory treatment must be in the best interests of the patient. The Royal College of Psychiatrists gives the example of a patient with depression who recognises that he is at increased risk of suicide but feels safe at home with the support of his family and wants to be treated with cognitive therapy. Because of the long waiting time for such therapy, he is forced to have medication.
There is also concern that plans to give recognition to advance directives and to provide advocacy for patients subject to compulsion will not now be enshrined in legislation.
The arguments on the reform of mental health legislation are set to rumble on.
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