The long awaited Mental Heath Bill has finally been published. The Bill, which will amend the 1983 Mental Health Act rather than replacing it, has been widely criticised. The Government’s approach to reforming the Act has been opposed by professionals, service users, carers and charities since ministers first rejected their own Expert Committee’s recommendations for a new Act in 1999.
The Mental Health Act governs the use of compulsory assessment and treatment for people with mental health problems: it states who can be brought under the scope of compulsion, at what times and in what ways.
The conditions in which a person can be subject to compulsion are the vital starting point for mental health law. In the new Bill, the Government is proposing to get rid of the current ‘treatability’ test with a much looser criterion that ‘appropriate treatment’ is available. This is highly controversial. By asking practitioners to detain a person without hope of having their condition either improved or alleviated, there is a big risk that, in the defensive environment mental health services work under, health legislation will be used in ways that do not benefit people’s health.
Coupled with the proposed broadening of how ‘mental disorder’ is defined in the Bill, by doing away with the current list of exclusions that includes ‘sexual deviancy’ and ‘immoral conduct’, this is extremely worrying. The Mental Health Act that gets passed next year could last for 20 years and be used a million times. It is vital we get it right and do not open it up to the wrong kind of use.
The issue of compulsory treatment outside hospital has caused more worry and anger among service users and their families than any other aspect of the Bill. It proposes that, for the first time, people can be put on community treatment orders (CTOs), with conditions such as taking prescribed medications, living in a certain place, even limiting their behaviour: for example banning them from visiting pubs.
There are big concerns that people will end up on CTOs for long periods of time: under the threat of being taken straight back to hospital by the police. It is essential that CTOs are only used where and for as long as they are the least restrictive alternative for the person, and that the support they and their families get is of the highest quality.
As well as being controversial for what is in it, the Bill is also a missed opportunity for a truly modern mental health law in England and Wales. Three years ago, the Scottish Parliament enacted a Mental Health Act that most agree represents the right approach to balancing human rights and public safety.
In England and Wales, the Government has not made independent advocacy a statutory requirement. It has also declined to give any legal status to advance decisions and continues to oppose a right to assessment for people who need it. All of these provisions are now in place in Scotland.
As in Scotland, we believe that a set of clear and binding principles should be placed at the top of the Bill. This would help to inform practitioners’ decisions and help to tackle the huge racial disparities that currently blight the use of the Act.
The Government reasonably states that mental health law should strike a balance: between what it portrays as the opposing forces of civil rights and of public safety. What was laid before Parliament last month is not, in our view, a truly balanced Bill. The additional powers of compulsion are not matched by an equivalent increase in safeguards for the person nor of reciprocal rights.
The Mental Health Bill is in urgent need of very significant improvement. If it is not amended radically, an opportunity in a generation to tackle the social injustices faced by many thousands of people with mental health problems will have been missed.