The Mental Health Bill

The Draft Mental Health Bill was published in September 2004 and is currently undergoing pre-legislative scrutiny by a parliamentary Joint Committee

Together is part of the Mental Health Alliance - www.mentalhealthalliance.org.uk - a coalition of 66 organisations with shared concerns about the Bill.

We have also produced a 16-page booklet, Treatment Not Mistreatment, which explains why we are campaigning for better mental health law, and sets out some of the key problems with the Government's proposals. You can order free copies by emailing info@maca.org.uk or download a copy through the link at the bottom of this page.

Here is an introduction to some of the key issues in the Bill:

DEFINITION OF MENTAL DISORDER
We are concerned that the definition of mental disorder – ‘an impairment of or a disturbance in the functioning of the mind or brain resulting from any disability or disorder of the mind or brain’ – is too broad, and could in principle cover almost anyone. In particular, there are no exclusions, unlike in the 1983 Act, for ‘promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs’. Furthermore, people with learning disabilities, and brain disorders such as epilepsy and autism, appear to be covered by the definition.

PREVENTIVE DETENTION
A key motivation for the new Bill was the so-called loophole in the 1983 Mental Health Act which meant that people with untreatable mental health problems, who had committed no crime, could not be detained even if they were considered to pose a threat to public safety.

The Government is now arguing that the Bill does not introduce a new power of preventive detention (although see the Sun’s report on 9 September, ‘Maniacs To Be Caged’, and leading article, ‘Safety First’, which suggests that preventive detention is the whole point of the new Bill and supports it on that basis). However, although simple preventive detention without treatment would not be permitted by the Bill, detention accompanied by non-therapeutic treatment would be (see below).

'APPROPRIATE TREATMENT'
This is a key phrase which allows the Government to deflect accusations that this is a piece of criminal justice legislation masquerading as a Mental Health Bill.

National director for mental health Louis Appleby has responded to claims by the Royal College of Psychiatrists that many people will be unnecessarily detained by saying that the College ‘should have more confidence in its members’ (Guardian, 13 September), making it clear where he thinks the responsibility lies – if people do get detained unnecessarily, this will be the fault of psychiatrists (and, if people are released and then prove to be dangerous, this will be psychiatrists’ fault too). Three mental health professionals, including two psychiatrists, will have to be satisfied that appropriate treatment is available before detention is allowed.

However, ‘treatment’ is very widely defined in the Bill, and includes ‘(a) nursing, (b) care, (c) cognitive therapy, behaviour therapy, counselling and other intervention, (d) habilitation (including education, and training in work, social and independent living skills), and (e) rehabilitation (read in accordance with paragraph (d))’. Patients could therefore be forced to receive ‘treatment’ which has no therapeutic benefit to them.

The responsibility for detaining people whose mental disorders make them potentially dangerous remains with mental health professionals. This means that psychiatrists are likely to be under pressure to detain, and therefore to find ‘appropriate treatment’, consistent with the list above, which can take place in a secure setting. Risk assessment is not the same as clinical judgement about appropriate treatment, but a risk assessment cannot be acted on without finding appropriate treatment. There remains a danger, therefore, that psychiatrists will practise defensively and feel pressured to use compulsion in more cases than strictly necessary.


Community Treatment Orders (CTOs) were among the most controversial elements of the 2002 draft Bill.

The plans have now been somewhat watered-down, and the term CTO dropped: people who have never been admitted to hospital before will now not be allowed to be given compulsory treatment in the community, and the Government says that it envisages compulsion in the community to be used mostly with so-called ‘revolving door patients’, who are well known to services and who are prone to cycles of discharge, relapse and readmission to hospital.

However, community compulsion will be allowed in other cases as well. Since the number of available beds places a limit on the number of people who can be treated in hospital at any given time, the introduction of compulsory powers in the community threatens to increase the overall number of people subject to compulsion. The Government has said that it expects the majority of patients under compulsion at any given time to be in hospital, but this would still allow for a substantial increase in the overall numbers.

Plans for community compulsion are among the most alarming for mental health service-users, who have expressed concerns that the threat of future detention will be used to enforce compulsory treatment in the community. Increased use of compulsion in general may make people with mental health problems more reluctant to seek treatment from mental health services.

The provision that nobody can be given compulsory treatment in the community without having been previously admitted to hospital may not be a strong safeguard: it seems that a patient could still be admitted to hospital briefly and then released to receive compulsory treatment in the community.

APPROVED SOCIAL WORKERS (ASWs)
Under the 1983 Mental Health Act, an ASW has to agree with two doctors before a person can be sectioned. The draft Bill replaces the role of the ASW with that of an Approved Mental Health Professional (AMHP) – this could include specially trained mental health nurses or psychologists. The Government has said that it expects the majority of AMHPs to be social workers. We believe that the decision to give someone compulsory treatment has social as well as medical implications, and no case should be placed exclusively in the hands of medical professionals.

ADVOCACY
The Bill provides patients with the right to an independent Mental Health Act advocate for the first time. This provision is welcome, but the Government’s own estimate that 140 advocates will be needed seems low, given that there were 45,000 detentions in England in 2002-03. Advocates will not be allowed to be present during an examination, but only once the process of compulsion is underway.

NOMINATED PERSONS
This role replaces the role of the nearest relative in the 1983 Act. We welcome this change in principle, as a patient’s nearest relative is not always the best-placed person to make decisions on their behalf. However, the nominated person has little role in the process, and fewer powers than under the current law.

AFTER-CARE
Under the 1983 Act patients discharged from compulsory powers have a right under S.117 to the services they need, ‘until such time as the [Health Authority] and the local social services authority are satisfied that the person concerned is no longer in need of such services free of charge’.

Under the new Bill, following discharge from hospital, a patient will be entitled to free aftercare services for only six weeks. This is a substantial change, which is likely to have a major impact on the many people who need continuing long-term care on leaving hospital. We believe that free continuing care should remain available for as long as a patient needs it.

ELECTRO-CONVULSIVE THERAPY (ECT)
Electro-convulsive therapy may now be refused by patients over 16 who have capacity, except in emergency cases. This is an improvement on the 2002 draft Bill, but we would prefer patients to be able to refuse ECT in all cases, even in an emergency.

PRISONS
In the 2002 draft Bill offenders could be subject to treatment orders in prison irrespective of whether they posed a risk to themselves or others. Following pressure from the Mental Health Alliance and others this has been dropped. We welcome this, as we do not believe prison is a suitable environment for treatment.

Click below to download Together's formal reponse to the draft Bill, submitted in October 2004 to the parliamentary Joint Committee scrutinising the legislation, as well as Treatment not mistreatment, our easy-read guide to the Bill.