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 persons
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
Governments 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
Governments 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.
more on mental health