Mental Health Bill: a U-turn for the worse
There is little to celebrate in New Labour's change of mind.
Mental health campaign groups have welcomed reports that the government has decided to drop its controversial Mental Health Bill. But is it really anything to get excited about?
The decision follows a protracted period of consultation that produced a Green Paper, a White Paper, two draft Bills, an expert committee and extensive parliamentary scrutiny – all at a reported cost of £8million.
At each stage of the eight-year process the planned reforms attracted widespread criticism, which mostly centred on two areas with huge implications for civil liberties. The bill would have allowed the compulsory treatment of patients in the community, and also authorised the indefinite detention of those diagnosed with personality disorders and considered dangerous, even though they may not have committed an offence.
Under current mental health legislation, enforced treatment only applies to those sectioned in hospital, and prolonged detention for people with personality disorder can only be authorised if their condition is deemed ‘treatable’. Many psychiatrists view personality disorder as untreatable, so it therefore falls outside the remit of the current Mental Health Act. Another concern was that the draft bill’s definition of mental disorder was too broad, and could have led to those who misuse alcohol or drugs being subject to the new powers (1).
The government’s decision to abandon its major overhaul of mental health legislation is surprising. As recently as July 2005, health minister Rosie Winterton rejected criticism of the plans, stating that she was confident that the legislation was robust and workable (2). So what caused this u-turn? It is likely that it was influenced by the government’s reduced parliamentary majority: ministers realised that the bill was unworkable, and unlikely to get through the parliamentary process.
But the government’s decision to shelve the bill is no cause for celebration. In fact, the alternative proposal, to amend or add to the current Mental Health Act, appears to maintain the more negative parts of the draft bill while dropping the positive parts.
For example, reports suggest that the existing Mental Health Act will be amended to include the most controversial aspects of the draft bill, such as compulsory community treatment orders. It will also include the indefinite detention of those with severe personality disorders who are considered dangerous, not if they will respond to treatment (the ‘treatability test’) but only that ‘appropriate treatment’ is available.
The government argues that it is better to intervene in the community than to take someone to hospital for medication. Given the choice between taking medication in the community or on a psychiatric ward, many would opt for the former. Nevertheless, in terms of civil liberties it is important to hold on to the idea of community citizenship. Coupled with the introduction and rise of anti-social behaviour orders, sex offender registers and curfew and tagging orders, CTOs are another example of the way the government is reconfiguring the community into a kind of open prison.
Meanwhile, the more positive aspects of the draft bill are apparently being shelved. For example, someone can currently be sectioned for up to six months without any representation (they can appeal to the Mental Health Review Tribunal on day one, but in reality it can take three months before their case is heard).
The draft bill proposed that a tribunal hear all cases where long-term detention was being sought, with the patient and their representative being allowed to cross-examine the psychiatrist and social worker. It was hoped that this would happen within seven days, although it could have taken up to four weeks. Officials have now suggested that the time period will be extended to 42 days (3). Plans to establish a right to independent advocacy for patients, a move virtually all mental health groups welcomed, may also no longer be part of mental health law reforms.
One thing is clear in this whole mad affair. The government is primarily responding to the decline in its parliamentary authority, as it battles to get bills through and faces rebellions from its own MPs. It may also be responding to the realisation of the resource implications of its proposed reforms. The bill is certainly not being dropped out of any concern with the rights of those in need of psychiatric help.
Ken McLaughlin is a senior lecturer in social work at Manchester Metropolitan University, England.
spiked-issue: Mental health
(1) See Mental until proven innocent, by Ken McLaughlin
(2) See Ministers reject concerns over mental health law, David Batty, Guardian, 13 July 2005
(3) BBC News, 23 March 2006
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