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Proposed changes to mental health law in England and Wales

The Suicide and Psychosis Service

The mental health system in the UK is in crisis. The resourcing and recruitment problems that it shares with the rest of the NHS are exacerbated by crippling bureaucracy and low staff morale.

The problems with the mental health service have reached such an extent that healthcare professionals have taken to referring to it as the "suicide and psychosis service", as these are now the only cases for which resources are available.

Recognising these problems, but also stinging from media criticism of the system following a number of high-profile murders committed by people with mental health problems, the government initiated a wide-ranging review of the laws and procedures covering mental health in England and Wales1. This led to the publication in June 2002 of the Draft Mental Health Bill2, designed to form the basis of a new act of parliament laying out procedures for the care, treatment and detention of mentally ill people.

Sectioning and postcode lotteries

At the heart of current law on these issues is the Mental Health Act 1983, which the new Act would be designed to replace. In the 20 years since its introduction, the Act has been widely criticised for placing an undue burden on the system while failing to protect vulnerable patients or the general public. Its emphasis on detention of patients against their will ("sectioning"), has led to the current situation where patients are often refused access to help when they ask for it, only for them to be sectioned and forcibly detained once their condition deteriorates. The emphasis is also very much on the use of drugs, with virtually no other forms of treatment available. In the rare cases where other treatments are available it is the familiar NHS postcode lottery that determines if a patient has access to it, based on the area someone lives rather than their need.

The proposed changes

The review of the law was widely welcomed by healthcare workers and mental health organisations, as a chance to address the failings of the current law. The Richardson Committee that was established to look into these matters published its report4 in 1999 with detailed recommendations to the government on changes that should be made to the law.

However, the draft bill that was finally published by the government provoked a storm of criticism from all quarters. Psychiatrists' organisations pointed out that the dramatic increase in responsibility put on them under the bill would only increase the numbers leaving the profession and make it even harder to recruit others to fill the existing vacancies. Civil liberties and patients' advocacy groups protested what they saw as gross curtailments of patients' rights, with many going so far as to say that it would likely infringe on the Human Rights Act and European Convention on Human Rights.

The criticisms

While the government's stated aim was to reduce the numbers of sectioned patients, the bill actually greatly widens the criteria in which compulsory detention or treatment can be applied. It broadens the definition of mental disorder, the core judgement in whether a patient can be forced to undergo treatment. Rather than a last resort, compulsory treatment is made the norm: a patient may be sectioned even if they are willing to consent to treatment. The bill could be interpreted as saying that such patients should be sectioned in preference to giving voluntary treatment.

In addition to the extentions of the powers of compulsory detention and treatment in hospital, the bill proposes a new means of compulsory treatment: the Community Treatment Order (CTO). These will apply to patients who are not in hospital, either because they are not ill enough to warrant sectioning or (as is likely) where space cannot be found for them. The order will specify what medication a patient is to take and also where they must live. They are one of the most worrying aspects of the proposed bill, as they effectively remove a patient's right to decide whether to take medication. They may be applied to patients who are perfectly capable of making decision themselves, as there is no test of mental capacity in the bill. The only condition as to whether they may be made is whether it is thought that it would be harmful for the patient to not have treatment.

It appears the assumption is being made that all mental illness renders a person unable to make informed decisions about their treatment, a stereotyping that is both inaccurate and dangerous. It is interesting that in no other cases may treatment be forced on a patient against their will if they have the capacity to make such a decision. A Jehovah's Witness may refuse a blood transfusion even if doing so endangers their life. A patient may check themselves out of hospital against the wishes of their doctors. A parent may refuse vaccination for their child. In all cases the patient must make an informed consent. The CTO removes this safeguard in the case of mental illness.

A UK mental health charity Mind, gives some examples5 of where powers under the proposed act could be applied:

  • the elderly confused man in a nursing home who refuses to take his medication because of the side effects.
  • the depressed woman who fails to keep her appointments with the psychiatrist because she doesn’t think he’s helping her.
  • the young woman with a pattern of self harming but who wants to travel with her boyfriend rather than reside as required by her CTO.
  • the young woman with learning difficulties whose lack of sexual inhibition worries her mother that she will become pregnant.
  • the lonely man with a personality disorder who is acting strangely and being threatening when challenged and the neighbours want him out of the way “just in case”
  • the teenager with attention deficit disorder who is disruptive but refuses to take his Ritalin.

Think of the children!

One of the considerations that the government has taken into account in the draft bill was the criticism levelled at them for not protecting the public from "dangerous mentally ill people". The particular case that had the tabloid press most vocal was that of Michael Stone, who was convicted of the attempted murder in 1996 of 11 year old Josie Russell and the murder of Lin and Megan, her mother and sister. At the time of the attack, Stone had been released from hospital because psychiatrists had deem his personality disorder as untreatable. Under the 1983 Act, someone may only be sectioned if they can be treated, as treatment is what these provisions were designed for for.

In response to these criticisms, the new bill seeks to broaden the purpose of sectioning from a clinical one, imposing treatment on those too ill to consent to it themselves, to take in a broader remit of protecting the public from potentially dangerous individuals. Mental health professionals would have a duty under the new laws to lock up anybody who they suspect may commit a violent crime. This is even if they have not yet committed any crime, and may never do so. This would be the only case in UK law where someone may be imprisoned simply because it is suspected that they may commit a crime in the future.

As well as putting a huge responsibility on already over-stretched mental health professionals, this introduces a disturbing anomoly into the system. Why are these people to be locked up? Because they may be more likely to commit a crime. How much more likely? Much more violent crime is associated with alcohol than with mental illness. Will they start locking people up on Friday afternoons so that they cannot get drunk over the weekend and get into a fight? How about young men? Boys and men in their teens and early twenties account for a disproportionate level of crimes committed, so perhaps we should be locked up to prevent us starting on a life of crime.

If these examples seem absurd, it is because they are. The concept of prophylactic imprisonment totally does away with the vital concepts such as the presumption of innocence and right to a fair trial. How can you prove your innocence if you are being locked up for something that you have not yet done and probably never will. By pandering to a vocal and indignant press, the government has opened the doors to a Minority Report world of preventative imprisonment, and the mental health tribunals certainly won't have any precognitive abilities.

The worst of the rest

In a writeup of this length I can only scratch the surface of a long and complicated bill, but as well as the concerns covered above, some of the other worrying measures include:

  • The 1983 Act says that no one should be considered mentally ill merely because they engage in "promiscuity, immoral conduct, sexual deviancy or drug/alcohol dependency". This safeguard is gone from the new bill. This removes an important protection against abuse of the mental health laws to persecute those whose lifestyles are disapproved of by society.
  • Introduction of a right for police to enter private property without a warrant in order to detain patients.
  • Compulsory treatment of offenders in prison. Currently they must be trasferred to a hospital if treatment is to be given.
  • New power of courts to order psychosurgery such as lobotomy against a patients wishes. It seems absurd to be introducing new powers to perform such archaic, dangerous procedures at this time.

It's not all bad

With the number of criticisms that I have outlined above the reader would be forgiven for thinking that there was nothing positive about the draft bill. This would not be a fair assessment. While flawed in many ways, the bill does have many welcome measures that address some of the failings in the 1983 Act.

Some of the provisions for oversight in the bill are to be welcomed. A new framework of Tribunals is to be introduced, which, while they may quickly become bogged-down by the caseload that they have to deal with, may be able to provide useful scrutiny of the powers exercised in the Act.

The lowering of the age at which patients are considered fit to consent to treatment to 16 from 18 is welcomed, though younger teenagers should be able to also make such decisions if they are deemed to be capable.

The bill introduces the concept of the "Mental Health Advocate", a trained professional who is available to act on behalf of patients who are subject to powers under the Act. This seems like a good idea if sufficient resources are made available.

The response to the criticism.

The criticism to the draft bill came from many quarters, from healthcare professionals to patients groups. Even the Church of England's General Synod recently passed a motion roundly criticising it. The government recieved over 2000 official responses to the bill. Criticism of the bill notwithstanding, most interested parties agree that there is an urgent need for reforms of the current laws.

Recognising the points made by the critics, the government appeared to climb down in November when the bill was omitted from the Queen's Speech detailing legislation planned for the next session of parliament. However, the Health Secretary Alan Milburn promised that a new bill would be brought before parliament in the coming months. It remains to be seen whether it adresses the many concerns raised.

  1. Law in Scotland and Northern Ireland on these issues are respectively set by the Scottish Parliament and Northern Ireland Executive (or Northern Ireland Office following the Executive's suspension).
  2. Draft Mental Health Bill: http://www.doh.gov.uk/mentalhealth/draftbill2002/
  3. Mental Health Act 1983: http://www.doh.gov.uk/mhact1983.htm
  4. The Richardson Committee Report: http://www.doh.gov.uk/pub/docs/doh/mhareview.pdf
  5. Mental Health Alliance Briefing: http://www.mind.org.uk/take_action/MHA_draft_mental_health_bill.htm

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