Frankly Minister, mental health deserves better

8th January 2007
By Andy Bell

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The long-awaited Mental Heath Bill has finally been published by health services minister Rosie Winterton and is now being debated in the House of Lords. The Bill, which will amend the 1983 Mental Health Act rather than replacing it, has been widely criticised. The government’s approach has been opposed by professionals, service users, carers and charities since ministers first rejected their own expert committee’s recommendations for a new Act in 1999.

The Mental Health Act governs the use of compulsory assessment and treatment for people with mental health problems: it states who can be brought under the scope of compulsion, at what times and in what ways. In addition it sets out the range of safeguards available to ensure that people subject to compulsion are properly treated.

The conditions in which a person can be subject to compulsion are the vital starting point for mental health law. In the new Bill, the government is proposing to get rid of the current ‘treatability’ test with a much looser condition that ‘appropriate treatment’ is available. This is highly controversial. In the defensive environment in which mental health services work, the risk is that psychiatrists and others will be under pressure to detain people in NHS beds without hope of helping them.

The reason for replacing ‘treatability’ with ‘appropriate treatment’ is the widely held belief that psychiatrists currently reject people whom they judge ‘untreatable’ for compulsory care.

There is little evidence to support this view: indeed case law has made the definition of ‘medical treatment’ exceptionally broad since 1983. Nonetheless, the Mental Health Alliance believes that a more modern test to replace treatability would be one of ‘therapeutic benefit’: that there is a likelihood that by detaining a person they would receive some kind of health benefit from what can be offered.

In addition, the Bill will broaden the way ‘mental disorder’ is defined by doing away with the current list of exclusions (of things that do not constitute a mental illness) that includes ‘sexual deviancy’ and ‘immoral conduct’. This is extremely worrying. The Mental Health Act that gets passed this year could last for 20 years and, even at the current rate, be used a million times. It is vital we get it right and do not open it up to the wrong kind of use.

The issue of compulsory treatment outside hospital has caused more worry and anger among service users and their families than any other aspect of the Bill. It proposes that, for the first time, people can be put on community treatment orders (CTOs), with conditions such as taking prescribed medications, living in a certain place, even limiting their behaviour. The use of CTOs or their equivalent is not new. Many states in the US and parts of Australia have equivalent powers, as now does Scotland. But the CTOs drafted in the Bill have wider powers than any of these jurisdictions.

As a result, there are real concerns that people will end up on CTOs for long periods of time: that once one has begun it will be difficult to prove that the need for it no longer exists. And throughout that time the person will remain under the threat of being taken straight back to hospital by the police. It is essential that CTOs are only used where and for as long as they are the least restrictive alternative for the person. The support they and their families get will need to be of the highest quality. And there should be limits on what restrictions can be placed on people subject to CTOs so that requirements beyond where the person lives and their compliance with medical treatment are not brought to bear.

As well as being controversial for what it contains, the Bill is also a missed opportunity. Three years ago, the Scottish parliament enacted a Mental Health Act that gives everyone subject to compulsion an independent advocate to speak up for them. It gives statutory force to advance decisions that people can make when they are well about how they would like to be treated when they are unwell and a right to request help when they need it. And it gives patients the right to choose their own ‘nominated person’ rather than the automatically chosen nearest relative to be consulted when they are under the Act. None of these provisions are proposed in England and Wales. This represents a serious imbalance in the Bill.

The Bill also does nothing to tackle the massive race inequality in the use of the Act. At present, African and Caribbean people are 44 per cent more likely to be treated compulsorily than white people in England. While this cannot be wiped away by legislation overnight, a Bill with clear principles such as non-discrimination and respect for diversity would help to set a better direction of travel.

The government reasonably states that mental health law should strike a balance between what it portrays as the opposing forces of civil rights and of public safety. What was laid before parliament last month is not, in our view, a truly balanced Bill. The additional powers of compulsion are not matched by an equivalent increase in safeguards for the person nor of reciprocal rights. Much of the debate about the Bill has focused on a small number of tragic homicides by people with severe mental health problems. It has largely ignored the facts about those incidents: in almost all cases they have resulted from under-resourced systems going wrong and from practitioners not listening to patients and their families when they ask for help. The Mental Health Bill will make no real difference to this.

The Mental Health Bill is in urgent need of major improvement. If it is not amended radically, an opportunity in a generation to tackle the social injustices faced by many thousands of people with mental health problems will have been missed.

Andy Bell is Chair of the Mental Health Alliance, a coalition of 78 organisations including the Royal College of Nursing, the Royal College of Psychiatrists, Mind, the British Association of Social Workers and the British Medical Association, working together to secure better mental health legislation. For further information see www.mentalhealthalliance.org.uk

Filed Under: Health, Legislation, Mental Health
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