| The Draft Mental Health Bill, if enacted, would be
counterproductive to the Government’s aims of reducing compulsion in mental health
provision and combating stigma. It is based too much on the perception that public opinion
requires government action to deal with people with a mental disorder that "can pose
a danger or threat" (Prime Minister’s Questions, 23 October 2002) and diverts
attention from the need for better care for the one in four members of the public that
will experience mental illness. This is not to say that new legislation is not needed.
The 1983 Act is based on the outdated assumption that the most seriously ill sufferers of
mental illness are in hospital. The Government has argued that people who need mental
health intervention, but refuse it, have to be left until they become so ill that
compulsory admission to hospital becomes necessary. There are also justified concerns that
the "treatability" requirement in the 1983 Act means that people with a
personality disorder for whom services are poorly developed are denied help and, if they
pose a risk to others, may not be detained in hospital because of uncertainty as to
whether treatment would be likely to alleviate or prevent deterioration in their
condition. Reform has been mooted since the setting up in 1998 of an expert committee,
chaired by Genevra Richardson.
The Committee proposed a broad definition of mental disorder that does not exclude, for
example, personality disorder and this definition is used in the Draft Bill. Crucially,
however, the Government rejected the Expert Committee’s strict criteria for
compulsory treatment which emphasize patients’ rights and the necessity of an
adequate level of services. This is one of the main criticisms of the Bill. The Committee
concluded that new legislation should permit compulsory treatment only within the context
of certain principles. These include respect of patient autonomy; the provision of care
within the least restrictive environment and by the least invasive treatment (which could
therefore include community treatment orders); and "reciprocity" ie that if
individuals are to be treated against their will, they are owed an obligation to ensure
services are adequate and in their best interests. The Committee also supported mental
health campaigners’ demands for a legal right to an assessment of needs to ensure
people receive services before the need for compulsion arises and for statutory
recognition of "advance directives". These allow patients to agree what
treatment they would wish to receive should they lose capacity.
The Richardson Report was published in November 1999 concurrently with a Government
Green Paper. The subsequent consultation overwhelmingly supported the emphasis given by
the Richardson Committee on patients’ rights and the necessity of an adequate level
of services. The Health Select Committee agreed. If my postbag is anything to go by, the
consultation on the Draft Bill will yield similar results. The broad definition of mental
disorder and removal of the "treatability" criterion and other structural
changes in mental health legislation proposed by the Expert Group is only acceptable
within the value structure proposed by Richardson. Provisions in the Bill for automatic
referral of decisions to detain to a Mental Health Tribunal only safeguard against
detentions beyond an initial period. Furthermore there are concerns about the ability to
cope with the number of referrals, given the delays that occur with the much smaller
caseload currently considered by the Mental Health Review Tribunals.
The sad fact is that, had the Government accepted the Richardson recommendations, many
of the concerns over the content of the Draft Bill would have been alleviated.
The Bill has been written on the premise that there is a problem of people refusing
mental health intervention when it is offered, so that the powers of compulsion need
extending. The reality is that we have an inadequately resourced system which frequently
denies access to services or gives treatments that involve distressing and debilitating
side effects resulting in non-compliance. The best way to reduce risks is to ensure that
people and their families get the good quality help they need as early as possible.
Despite the excellent National Service Framework, we are a long way from achieving this.
Hopefully, the failure to include a mental health bill in the Queen’s Speech,
demonstrates understanding that considerable redrafting will be necessary if there is to
be legislation that will command widespread support. There are welcome signs that this is
the case. For example, at a recent conference organized by the Zito Trust, the National
Mental Health Director, Louis Appleby, said that the Government would look at the criteria
for detention in light of the criticism that they are too broad.
Equally welcome is Alan Milburn’s commitment to bring forward a Mental Health Bill
later this session. We do need new legislation - but we must get it right!
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