Government publishes revised draft mental health bill

September 9, 2004

The government yesterday published its revised draft mental health bill to almost universal condemnation from bodies representing mental health professionals and service users.

Ministers insist the revised bill will provide improved safeguards for patients and better procedures for treatment to people with mental health problems who "need to be treated against their will".

However, the Mental Health Alliance, a coalition of more than 60 professional bodies, service user and carer groups and charities warned the revised bill "could bring mental health services to their knees".

The alliance said the revised bill risked driving thousands away from mental health services, for the sake of a tiny number of people who pose a risk to others.

Under the new proposals, it would be left to psychiatrists and other staff to decide whether it was "clinically appropriate" to order compulsory treatment. This might mean sectioning people who, it is judged, could not be treated for their diagnosis of personality disorder, but might benefit from treatment of depression or anxiety.

Professor Louis Appleby, the government's national director for mental health, said that there might be dangerous people diagnosed with personality disorder who would not benefit from care or treatment. If they posed a threat to society, they would have to be handled by the criminal justice system, not the NHS.

The revised bill also raises the threshold for compulsory treatment from that proposed in the 2002 draft bill of “for the health and safety of the patient” to “for the protection of the patient from suicide, or serious self-harm, or serious neglect by him or his health or safety”.

In addition, psychiatrists must be satisfied that appropriate treatment is available for the patient.

The revised bill is to be subject to pre-legislative scrutiny by an expert parliamentary committee which has been instructed to present a report by March next year.

It remains likely, therefore, that there will be not be sufficient time to bring forward a complete bill before the expected general election next year.

The revised draft bill would :

* Allow non-offending people diagnosed with personality disorder to be detained indefinitely "if clinically appropriate". This would replace the "treatability" test of current law.

* Introduce a change to the definition of mental disorder to emphasise that it is the psychological condition as much as the underlying diagnosis which is important before implementing compulsory detention.

* Introduce compulsory treatment in the community (CTO). This law would focus on patients who leave hospital only to return when they fail to take their medication. Patients would first need to be assessed in hospital before a CTO could be issued

* Raise the threshold for compulsory treatment to “for the protection of the patient from suicide, or serious self-harm, or serious neglect by him or his health or safety”

* Allow people to refuse electroconvulsive therapy if they retain mental capacity

* Increase maximum sentences for those convicted of ill-treating patients

* Establish a new independent tribunal to review every detention lasting longer than 28 days

* Provide an independent advocacy service to help patients assert their rights

However, the Mental Health Alliance believes the whole tone of the revised bill is flawed.

Its chair Paul Farmer said: "We are deeply disappointed that the government has still not listened to professionals, carers or people using services. Despite receiving 2,000 responses opposing its original plans, the government has pressed ahead with many of its most disturbing proposals.

"The most worrying of all is that the government's way of defining who qualifies for treatment against their will is far too broad. This will force professionals to bring too many people in for compulsory treatment, damage the trust that is so vital between doctors and patients and lead to a bureaucratic overload on an already overstretched system.

"We have a bill that is rooted in an out-dated, false stereotype that people with mental health problems are a danger to society and are unable to make their own decisions about care and treatment. The revised bill remains objectionable in principle and unworkable in practice."

Tony Zigmond, deputy president of The Royal College of Psychiatrists, said: "People who are capable of making choices about their healthcare should be entitled to do so. Those who are not capable should have the right to treatment that is in their best interests. These principles should not
depend on the patient's diagnosis. The equivalent laws in Scotland respect these principles. The proposals in this bill do not and are an affront to justice."

Jason Pegler, publisher and mental health service user, said: "Service users need to feel that they will be understood, respected and treated with compassion. Making them feel that they are more likely to be punished for being ill will mean fewer people coming forward to receive the care they need, when they need it. This bill could seriously violate innocent people's fundamental human rights."

The alliance has said that it will use the pre-legislative scrutiny process to present its own proposals.

Dr Zigmond has already urged his psychiatrist colleagues to write letters of objection to MPs.

Prof Appleby, however, emphasised that, ultimately, the decision to compulsory detain someone remains with mental health professionals.

He said the intention of the “clinically appropriateness” test, which will replace the “treatability” test, was to remove the dilemma of psychiatrists who found themselves unable to treat patients they thought they could help because they could not say with complete confidence that their symptoms would improve as a result.

“At the moment, clinicians have to be sufficiently confident there will be a direct benefit to the patient to use the act, otherwise they can’t use it,” Prof Appleby explained. “In the future, they will just have to be confident that they are doing the right thing.”

He said: "It will be for clinical and social care staff to decide whether, in their professional judgement, it is clinically appropriate to treat someone under the act. If they decide that they are not then compulsory powers cannot be used.

"The criteria for compulsory treatment under the [revised] bill are carefully drafted - to make sure that only people who need compulsory treatment receive it. Mental health services will have a duty to respond to requests for assessment and patients who are treated under the bill will have to have an individual care plan focussed on their individual needs."

Health Minister Rosie Winterton said: "Safeguards for patients will also be greatly strengthened with
choice of representative, access to advocacy and all use of
compulsory treatment beyond 28 days having to be authorised by a new independent mental health tribunal."

The government's revised draft mental health bill (pdf)

See also:
Feb 15, 2004: Revised draft mental health bill will not satisfy critics, admits government - "I think we will be able to give a lot of reassurance, but there will be some people who just want a different bill," says Health Minister Rosie Winterton
See also:
Jan 12, 2004: Mental health tsar indicates government to specify in more detail the conditions under which people can be detained - "There is no dark government intent behind the bill, says Louis Appleby. "It just did not feel in the end that we had got the right message about the criteria underwhich compulsion powers might be used."
Nov 26, 2003: Revised draft mental health bill to be scrutinised in parliament - ministers promise a code of conduct on how proposed new mental health law should be applied

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