Abstract
The government is planning its third attempt to change mental health law in England and Wales, but the concerns of professional and legal groups about civil liberties and the rights of mentally ill people remain
The government is steeling itself for a struggle to push through controversial reforms to mental health legislation in England and Wales. The plans, unveiled last week in the Queen's speech, are strongly opposed by mental health and legal organisations, opposition parties, and many of the government's own backbench MPs.
The Mental Health Bill, which will allow preventive detention of people with dangerous and severe personality disorders and compulsory treatment in the community, is the government's third attempt to get such legislation passed. Two previous tries to replace the existing Mental Health Act 1983 with a new act were dropped in the face of opposition.
Andy Bell, chairman of the Mental Health Alliance, which embraces 78 organisations and charities, declared the bill “flawed” and said that campaigners would be “profoundly disappointed.”
He said, “The legislation falls far short of what is needed and does not truly reflect the needs of those who have to live and work with it. It introduces new powers for services without the necessary safeguards for patients.”
Reform of the law concerning treatment of patients who are a danger to themselves or others has been under consideration since 1998. Concern was triggered by the case of Michael Stone, who was convicted that year for the murder of Lin Russell and her daughter Megan. He was considered to have a dangerous and severe personality disorder and to be untreatable under the 1983 act's criteria for detention, although a later inquiry showed that psychiatrists were divided about his diagnosis.
The bill will apply to anyone with “any disorder or disability of the mind” who needs to be detained for his or her own health or safety or the protection of others and will abolish the “treatability” test for detention: that the treatment given under detention should be “likely to alleviate or prevent a deterioration” in the patient's condition. Instead the bill simply requires that “appropriate medical treatment” be available for the patient. This includes “nursing, psychological intervention, and specialist mental health habilitation, rehabilitation and care.”
Explanatory notes to the bill say that this could include counselling and services designed to improve patients' social functioning.
Dependence on drugs or alcohol will continue to be excluded from the definition of mental disorder, but paedophilia will now be included. People with learning disabilities will not be subject to detention unless they exhibit abnormally aggressive or seriously irresponsible conduct.
Another controversial provision creates a new regimen of supervised community treatment to alleviate the problem of “revolving door” patients—those released from hospital who fail to take their drugs, relapse, and have to be sectioned again to be readmitted. The new provision would apply to patients released from detention in hospital whose mental health problem makes them a risk to themselves or others. An appropriate package of support and treatment would have to be put in place before the patient was released.
Patients undergoing supervised community treatment who fail to comply with the conditions of release will not be forced to take treatment in the community without their consent but could be recalled to hospital for treatment without being sectioned again. Doctors would not have to wait until they relapsed but could readmit them much earlier, if they stopped taking their drugs or flouted other conditions.
The bill also closes the “Bournewood gap”: the lack of protection for patients who lack capacity to consent but are admitted to hospitals or care homes in their own best interests.
The move follows a 2004 ruling from the European Court of Human Rights in Strasbourg that an autistic man's right to liberty was breached when doctors invoked the common law doctrine of necessity to admit him to Bournewood Hospital in Chertsey, Surrey, against the wishes of his carers, and to keep him there for four months.
A new provision amending the Mental Capacity Act—a law that is not due to come into force until April 2007—introduces safeguards for these patients, most of whom have dementia or serious learning disabilities.
The Mental Health Bill requires admission to be authorised by a supervisory body—in England the local authority (for care homes) or the primary care trust (for hospitals) and in Wales the Welsh Assembly—and allows for the decision to be challenged in the Court of Protection.
The bill was published a day after a report found that the murder of a man in Richmond Park in London by a paranoid schizophrenic man with a known history of violence could have been avoided. The inquiry into John Barrett's care and treatment found that serious failures by a mental health trust had allowed him to walk out of a secure unit.
However, the report said that the remedy “lies not in new laws or policy changes” but in “sound clinical practice and organisational management.” Mental health groups said that the report could not therefore be considered as ammunition in the government's struggle to change the law.
Supporting the proposed changes, Louis Appleby, England's national director for mental health, said of the new treatability test: “It's still essential that care has a therapeutic purpose, but you don't have to say that recovery is expected.”
But Sheila Hollins, president of the Royal College of Psychiatrists, said the college was “particularly concerned that any compulsory treatment should have a clear clinical purpose and be of benefit to the patient.”
The Mental Health Alliance vowed to continue campaigning for legislation that ensured that:
All treatment under compulsion benefited the health of the patient
Community treatment orders were limited to a small number of people who really needed them and did not impose unnecessary conditions
Everyone sectioned under the act was given the right to an advocate, and
Patients and carers were given the right to an assessment when they asked for it, before a crisis point was reached.
The Law Society said its main concern was that “the legislation fails to uphold the human rights of patients and provide access for care for people with mental illness, with compulsory treatment used only as a last resort.”
Tony Calland, chairman of the BMA's medical ethics committee, said: “It is essential that anyone with a mental health disorder can only be compulsorily treated if there is some clear health benefit linked to this action. Mental health legislation cannot be used to detain people whom the authorities simply want locked away. If people are deemed a danger to others then criminal proceedings need to be implemented, if appropriate.”