The crime of being ill

2nd April 2007
By Roderick Crawford

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In a few weeks time MPs will be voting on the second reading of the Mental Health Bill. This is a major piece of legislation affecting the rights, health care — and health outcomes — of what are perhaps the most stigmatised and vulnerable group in England and Wales. The Bill is highly controversial and has, whatever ministers may say, been railroaded through without proper debate despite a committee of experts’ report, green and white papers, and two draft bills.

It is widely perceived to be a missed opportunity and a disappointment, informed more by tabloid hysteria than those with experience in the field. Although the Lords has made improvements, the government intends to reverse their main changes to ‘restore the balance of the Bill’. If the government succeeds it will, in the words of one expert, ‘propel mental health care rapidly back in time’.

The Lords made six main amendments that the Commons will need to consider carefully. All but one, on the protection of children, concern the powers in the Bill to bring people into, and keep them in, detention and compulsory medication.

Most mental health patients are voluntary. Mental health legislation concerns patients refusing to enter hospital or take medication as their doctor requires. It allows the doctor to override a patient’s refusal and force medication upon him. Confined to circumstances where this is really beneficial to the patient or others this can be helpful. Used too broadly it can cause immense damage.

The first amendment concerns who is subject to this legislation. Since you must have some form of mental illness or dysfunction to be detained under mental health legislation, defining these categories is fundamental. The new definition proposed by the government — any disorder or disability of the mind — is much broader than that used at present; indeed it is so broad that it covers virtually everyone at some point in their lives.

This definition needs to be drawn more closely. The 1983 Act excluded various categories of people from the Act, but the government has chosen to delete all but one of these exclusions. Yet it is essential that people should not be detained under the legislation solely on account of their misuse of drugs or alcohol, committing disorderly acts, sexual behaviour, sexual identity, or for cultural, religious or political beliefs. These exclusions are important protections. Examples abound of discrimination, prejudice and ignorance by clinicians; with 44 per cent more black people sectioned than white there are clearly problems. The Lords has reintroduced exemptions and they deserve to stay.

The Bill broaden the circumstances under which you can be detained and forcibly medicated in other ways. To balance this, the Lords introduced two amendments to the changes the government wants to make to the 1983 legislation.

The government intends to change the 1983 Act’s wording of ‘treatability’ which, it believes, is often interpreted too narrowly as meaning ‘to cure’; this results, it claims, in too many people with serious personality disorders being rejected for sectioning because personality disorders cannot be cured. Its proposal is merely that a patient can be detained if ‘appropriate treatment’ is available to them — it would not have to be likely to improve their health. This is a catch-all meant to allow preventive detention and would ensure that there are no excuses not to detain patients who are a risk to the public.

The government’s target is really a very small sub-section of the people with personality disorder, who are themselves a subset of those with a mental disorder. Under pressure from the tabloid newspapers, the government has decided to act decisively by wielding the law as a blunt instrument, and if that means providing the wrong legislative framework for tens of thousands of vulnerable, ill people, then so be it.

This is highly controversial. The Lords were convinced by the evidence given by many professional groups, including the Royal College of Psychiatrists and experts like Alan Franey, former head of Broadmoor Hospital, that this measure would decrease public safety because it would drive people away from the services that are meant to help them.

The Lords voted that if you are going to detain somebody you should only be able to do so if there is a likely health benefit which they defined as treatment that ‘is likely to alleviate, or prevent a deterioration in his condition’. They have not committed a crime; after all, they are just ill.

The government intends to restore its original wording in the Commons. Its reason is to protect the public, yet the cases it puts forward do not justify this position. For example, the Michael Stone inquiry demonstrated that his presence in the community was due to a lack of services for dangerous people, not the inadequacy of the law, a typical finding of such inquiries.

What would make a difference to public safety is proper resourcing of mental health services, not least to ensure access to new forms of psychological treatments that have therapeutic benefit for patients with personality disorders. The NHS has received a huge increase in resources under New Labour, but these have not fed through to mental health services.

The second safeguard the Lords put in place was to restrict detention and enforced medication to those with impaired decision-making. In order to be detained, a patient’s ability to make decisions about their treatment needs to be significantly impaired. It is not hard to prove: doctors and nurses do it all the time.

This condition is essential if we are to apply the recognised principles of health care equally across mental and physical disorder, and thus reduce discrimination. It should be noted that this amendment would not apply to those who have come into the mental health system after being charged with a criminal offence.

Detention for any patient often has significant ill-effects. Once detained, patients can lose their job and their accommodation, and employers prefer to take on staff who have served time for criminal acts than to employ people who have been sectioned. The insecurity that this brings is not conducive to recovery — added reason for detention to be used only when really necessary.

The Lords’ amendments would mean that no-one could be locked up under the legislation without both these conditions, ‘therapeutic benefit’ and ‘impaired decision-making’, being met. Along with the restored exclusions to the application of the definition of mental illness, these provide a basic framework that not only protects civil liberties but protects patients from the trauma of enforced medication unless truly necessary.

There are two other issues with regard to detention: the terms under which detention can be renewed and the treatment of children. Patients are detained initially for six months, with extensions of first a further six months with subsequent twelve month terms, until a discharge is ordered by the responsible clinician or a tribunal orders the patient’s release.

Although the average compulsory stay in hospital is three-and-a-half months, some patients have been detained for decades, and there are mistakes and abuses; the Lords has strengthened the protection for patients.

Children are admitted onto adult wards regularly — over 90 under-18s in Cumbria and Lancashire alone last year. This is contrary to the UN Convention on the Rights of the Child which insists that children deprived of their liberty must be separated from adults. This reduces the trauma of detention and protects children from abuse. The government intends to overturn both of these safeguards.

The government expresses the view that unless patients are under compulsion they cannot be properly treated. Yet the vast majority of doctors, nurses and psychiatrists, and their representative bodies, want patients to come to them without fear of being locked up and forcibly medicated in just the same way that a doctor would receive a patient suffering from a physical illness.

Fear of compulsory treatment is so severe that it keeps many patients away from mental health services; by the time they do access them they are often more seriously ill and potentially more dangerous to themselves and to others. Early intervention works, and is demonstrated unambiguously by the evidence base; the Joint Parliamentary Scrutiny Committee Report Vol. 3 confirms this.

The compulsory system is also resource intensive in an already overstretched and under-resourced system. It involves public money for tribunals and legal aid lawyers, and takes away the time available to doctors and psychiatrists to spend with their patients.

Compulsion stretches resources, delays engagement with services and undermines the patient/clinician relationship. These are all negative contributions to improved patient outcomes.

The extension of compulsion is not limited to increased detention. The most significant new element of mental health legislation is the introduction of Supervised Community Treatment (SCT).

This, in essence, changes the powers of supervision for discharged patients brought in by the 1995 amendment to the 1983 Act into the power to compel a patient to take medication, tell him where to live and prohibit him from doing various things. It is quite a different system, and has huge implications for users and practitioners.

As significant, the criteria for eligibility has been broadened not only beyond the scope of the 1983 Act, but beyond the criteria of jurisdictions operating similar schemes elsewhere.

Under the 1983 Act, patients are only discharged under supervision if there is ‘substantial risk of serious harm to the health or safety of the patient or the safety of other persons, or of the patient being seriously exploited’. The government wants to change the eligibility to those who pose a risk to ‘the health and safety of the patient or for the protection of other persons’. This is unnecessarily wide and will bring under compulsion several thousand more patients than at present.

The Lords has amended the eligibility, so that it applies only to those suffering mental illness who have been compulsorily detained in hospital, but who on discharge fail to comply with their treatment and relapse, causing a danger to others; so-called ‘revolving door’ patients. They will be made subject to a Community Treatment Order (CTO) which will require them to abide within certain conditions, including compliance with their therapeutic regime.

Does it matter if the application of CTOs in England and Wales is over-inclusive? The down side of such a regime is that it skews resources towards people under CTOs and away from the main patient body. More significantly, it changes the ethos of mental health care.

The very real threat of detention and enforced treatment not only discourages patients from accessing services, it undermines patients’ trust in the clinicians who are there to help them get well. It is a real blow to the development of a co-operative therapeutic relationship in which clinician and patient work together to improve the patient’s health. And the evidence shows that it is the effectiveness of this relationship, not compulsion, that is the key to improving recovery for patients with mental health problems.

Choice is the hallmark of reform for other public services. However, a patient’s choice in where and with whom he lives, and whether or not he stays on medication that may have damaging side-effects — uncontrollable body movement, dribbling, significant weight-gain and grogginess — or instead chooses other coping mechanisms, is restricted through the threat of detention for non-compliance with a clinician-determined treatment regime.

Yet, as in other areas of health, people recover their health better when they have choice and control over their recovery. More interestingly, recent evidence from Mind demonstrated that people do as well under regimes that they choose as ones that they do not. Doctors were unable to predict who could come off their psychiatric drugs successfully. People who came off their drugs against their doctor’s advice were as likely to succeed as those whose doctors agreed they should come off.

The effectiveness of CTOs is very much in question. A government commissioned review of studies on the effectiveness of CTOs elsewhere, published at the insistence of the authors, but only after the Bill had left the Lords, shows that there is little evidence to show that CTOs work. Writing in the February edition of this magazine, Simon Lawton-Smith of the King’s Fund reviewed the evidence of effectiveness and it is clear that the impact is either slight or imperceptible.

Apart from these shortfalls, the Bill will further stigmatise those with mental health problems, and increase the inequalities which they suffer. Their rights and welfare, and the wider public good, now lie with the Commons.

Roderick Crawford is editor of Parliamentary Brief.

Filed Under: Health, NHS, Legislation, Mental Health, Law
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