Mental until proven innocent

The UK government’s draft Mental Health Bill is the latest attempt to reform mental health legislation (1).

A previous version of the Bill was published in 2002, and attracted widespread criticism from psychiatrists, service users, campaign groups and civil libertarians. The government claims that it has addressed many of the concerns about the previous draft, with health minister Rosie Winterton saying that ‘Patients in the community who are ill and vulnerable or at risk will now be able to get the treatment they need’ (2).

Two proposals attracted most criticism in 2002, with the recent modifications unlikely to appease critics: plans to allow compulsory community treatment orders, and measures that would allow those with a personality disorder who are considered dangerous to be detained indefinitely, even if they had not committed a crime. According to Winterton, the aim is to ensure that ‘The small minority of people with mental health problems who need to be treated against their wishes…will get the right treatment at the right time’ (3) – something that the government believes the present Mental Health Act (MHA) is failing to do.

Under the present Act, patients can be given medication against their will if they are detained under the Act in hospital. However, once discharged they regain the same right to refuse medical treatment that most of us take for granted. And given the often severe side-effects anti-psychotic medication can cause, many patients unsurprisingly exercise this right and stop taking their medication. It is argued that patients’ failure to continue with medication allows them to become ill again and commit acts of violence. The new Bill will grant professionals powers to ensure ‘non-resident’ patients take their medication after discharge from hospital.

Prolonged involuntary detention in hospital, as the law currently stands, requires that the patient’s mental disorder is deemed ‘treatable’. Many psychiatrists view personality disorder as untreatable, the patient being ‘bad’ rather than ‘mad’ and therefore unresponsive to medical input. According to the government this ‘loophole’ leaves dangerously disordered people free to roam the streets committing random acts of violence and homicide. The case of Michael Stone, jailed for the murder of Lyn and Megan Russell, is often cited. Considered dangerous and severely personality disordered but untreatable, Stone fell outside of the remit of the current MHA.

The new Bill will close this loophole with a masterstroke of New Labour speak. Rather than the patient’s mental disorder being deemed ‘treatable’, professionals need only think it ‘clinically appropriate’ to instigate proceedings allowing indefinite detention.

Not surprisingly, such moves have sparked fierce criticism from service users and mental health campaign groups. But many psychiatrists are also hostile to the new Bill. According to the president of the Royal College of Psychiatrists: ‘the Bill will extend use of compulsory powers to a wider group of patients than is medically necessary, thus putting pressure on psychiatric services, and infringing human rights.’ (4) The Law Society shares these concerns about human rights, and is also worried that the definition of mental disorder in the new Bill is too broad, containing as it does the potential for epilepsy or even being drunk to be counted as mental disorders (5). Angela Gregory of the Sainsbury Centre for Mental Health believes that mental health professionals were being put under pressure to ‘detain many more people and compel them to take treatments that do not benefit them’ (6).

The human rights and civil liberty implications of the new Bill are concerning. Take indeterminate detention. While convicted murderers are already subject to an indeterminate ‘life’ sentence, it is an entirely different matter to impose such a sentence on someone merely on the basis that mental health professionals think they will offend at some point in the future. The proposal would allow people to be locked up indefinitely, not for what they have done but for what they might do – not for treatment but because it is deemed ‘clinically appropriate’.

With risk assessment and the prediction of dangerousness notoriously unreliable, how many people who may never harm anyone need to be detained to ensure one Michael Stone is caught? And if people are considered well enough to be discharged from hospital, surely they are well enough to make decisions as to what, if any, medical treatment they receive?

As I have pointed out previously on spiked, a diagnosis of major mental disorder is less of a predictor of violence than being young, male, substance abusing or substance dependent – and non-compliance with medication is over-emphasised as a contributory factor in acts of homicide (7). Nevertheless, the government seems set to push through the mental health equivalent of the pre-emptive strike.

With so much opposition to the plans, and so little evidence that the measures will work, it is worth questioning how such a situation has arisen.

The government is responding, at least in part, to several high-profile tragedies involving ex-patients. Campaigning groups such as the Zito Trust, set up by Jayne Zito after her husband was killed by a psychiatric patient, have lobbied extensively over what they perceive to be the failings of care in the community. Given the current high status accorded to victims today, the government finds itself under increasing pressure to respond.

However, the government’s ability to push through legislation that would have been unthinkable 10 or 15 years ago is also partly due to those groups campaigning against the current proposals. It is groups such as the Mental Health Foundation and MIND that have exaggerated the extent of mental health problems – arguing for a broader range of issues to be seen as psychological problems, and opening up our personal lives to professional scrutiny and intervention. And while mental health organisations may abhor its more extreme manifestations, they have played a major part in extending psychiatric control from the hospital to the community.

Ken McLaughlin is a senior lecturer in social work at Manchester Metropolitan University. He writes here in a personal capacity.

Read on:

spiked-issue: Mental health

(1) Draft Mental Health Bill

(2) Press release, 8 September 2004

(3) Guardian, 9 September 2004

(4) Guardian, 9 September 2004

(5) Thelawyer.com, 9 September 2004

(6) Independent, 9 September 2004

(7) A mad approach to mental illness, by Ken McLaughlin