BMJ  2007;334:596-597 (24 March), doi:10.1136/bmj.39155.567535.BE

Editorials

New mental health legislation

A decade's deliberations result in confused proposals

Why after 10 years' effort has the latest Mental Health Bill published in November 2006 been damned as "stigmatising, illiberal and yet curiously timid ... a little like a dying wasp which still has a sting in it"?¹ In November 1999, the Richardson Committee² reported on the reform of mental health law in England and Wales. Patients' rights would be safeguarded by balancing guiding principles and the adoption of capacity—the legal ability to make decisions about treatment—as a determinant of whether compulsory detention and treatment should take place. New law mirroring these key proposals has been successfully introduced in Scotland,³ but in England and Wales the path to reform has been tortuous (table).

View this table: [in this window] [in a new window]   Development of mental health law proposals in England and Wales

 
The current bill⁴ bears little resemblance to the proposals set out by the Richardson Committee. There is provision, as in Scotland, for supervised treatment in the community, but without the safeguards found in the Scottish act. Certain exclusions to compulsory detentions are removed: promiscuity, immoral conduct, and sexual deviance. Whereas the government sees the first two exclusions as redundant, they identify the third as a category for which compulsory treatment should be expanded. The bill positively endorses the compulsory treatment of people with sexual disorders such a paedophilia.⁵ The only remaining conditions to be excluded are drug and alcohol misuse.

The professional background of who has the authority to be responsible medical officer and mental health officer for detained patients is to be widened to include psychologists, occupational therapists, and nurses. In the case of primary personality disorders, psychologists are identified as being particularly suitable to be the "responsible clinicians" in charge of patients, but the bill is unclear how this would work in practice. Medical practitioners are still required to instigate detention, but a wider group would be responsible for renewal of detention and ongoing monitoring.

There will also be a change to the treatability test, which states that for someone to be detained under the category of psychopathic disorder, treatment must alleviate or prevent a deterioration in the condition. Before the bill was introduced, this test was perceived as limiting the detainability of certain patients with personality disorder. The test will be replaced by a broader "appropriate treatment test," which will make patients with a psychopathic disorder detainable if appropriate treatment exists. The only new safeguard to patients in the bill is the amendment of legislation to restore the Mental Health Act's compliance with human rights after an adverse decision by the European Court on the Bournewood case.⁶ In this case an autistic man, who was unable to consent, was admitted to hospital informally and was not detained, which left his carers no legal structure to challenge the appropriateness of the admission. The European Court ruled that in these circumstances he should have been detained to afford him and his carers a legal structure to defend his human rights.

The fundamental flaw in the proposed legislation, as it was in the two preceding unsuccessful bills, is the government's belief that mental health law is a worthy vehicle to enhance public protection—a belief that has been extensively criticised.⁷ Legislation in Scotland has been successfully implemented because the Scottish Executive followed the advice of its expert group and that of wide consultation by keeping the focus of mental health legislation on care and treatment.

The paradox is that an overemphasis on public safety in mental health law increases risk to the public. The widening definition of mental disorder and treatability will place most prisoners within the ambit of compulsory psychiatric treatment. What prisoner will engage in an anger management course or a sex offender programme with the prospect of compulsory indefinite detention and transfer to a secure psychiatric hospital? What potential patient with a violent thought will dare seek help from a doctor? Medicalising violent and sexual offenders is unlikely to reduce relapse into criminal behaviour unless the aim is very lengthy preventative detention.

The problem of violence in the mentally disordered is much more about how society manages violence generically than how it manages mental disorder. The rate of violence in people with mental disorder mirrors the rate of violence in the societal group they come from.⁸ The association between mental illness and serious violence is modest and easily obscured by weightier predictors of crime.⁹ Mental health services concentrate on serious mental illness, yet the proposed legislation is so broad that it potentially includes most violent offenders. The best way for mental health to protect the public is the provision of comprehensive services, but there needs to be a realistic appraisal of what can be offered. This was summed up by Nigel Eastman in his evidence to the Joint Scrutiny Committee of parliament on the marginal contribution psychiatry can make to public protection. He said, "It is not that you can predict if somebody is going to kill somebody; it is that you intervene for their mental health care, and one out of goodness knows how many would have gone on to kill but you have intervened."¹⁰

The bill's proposers have been too sensitive to individual high profile tragedies. Yet inquiries into homicide committed by people in recent contact with mental health services rarely comment on a deficiency of law in their recommendations. Politicians and the media may highlight that one homicide a week is perpetrated by someone with a mental illness¹¹ and the failings in mental health care associated with the manslaughter of Denis Finnegan by John Barrett.¹² However, evidence that any of these tragedies would have been prevented by a change in mental health law is lacking. Results from the National Confidential Inquiry identified only 12 cases, 6% of a sample, where respondents involved in the care of a mentally ill perpetrator believed different legal powers may have made a homicide less likely.¹¹ The rate of homicide associated with mental illness has not been affected by earlier changes in the law or the introduction of community care—the proportion of homicides perpetrated by those with mental illness has changed little during the past 50 years.¹³ Psychiatry aims to increase autonomy not to force a competent patient always to choose what is right.

New mental health legislation in England and Wales has faltered because of a confusion of purpose. The Mental Health Alliance is a remarkable coalition of interested parties, which correctly focuses the need for legislation on the care of patients.¹⁴ Where mental disorder does not reduce the ability to make moral choices it is not for mental health legislation to intervene. Criminal justice agencies and legislation should lead in the case of a personality disordered or sexually deviant offender, appropriately supported by mental health services. Efforts for reform will fail if mental health legislation is wrongly identified as a principal mechanism for enhancing public safety.

Orchard Clinic, Royal Edinburgh Hospital, Edinburgh EH10 5HF

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Competing interests: JC was recently medical director of the State Hospitals' Board for Scotland and Forensic Mental Health Care Services Managed Clinical Care Network; he sits on several Scottish Executive expert committees and provided expert evidence in the Bournewood case. RD was seconded to the Scottish Executive mental health law team and sits on several executive expert committees.

Provenance and peer review: Commissioned; not externally peer reviewed.

References

1. Murphy E. Mental health bill. Second reading. House of Lords official report (Hansard). 2006 Nov 28: vol 687, part 8, col 718-9.
2. Department of Health. Report of the expert committee: review of the Mental Health Act 1983. London: DoH 1999.
3. Darjee R. Crichton J. New mental health legislation BMJ 2004;329:634-5.[Free Full Text]
4. . House of Lords. Mental Health Bill 2006.www.publications.parliament.uk/pa/cm200607/cmbills/076/2007076.pdf
5. Minister of State (Lord Warner), Department of Health. Mental Health Bill second reading House of Lords official report (Hansard)..
6. H L v UK [2004]. European Court of Human Rights.
7. Coid J, Maden T. Should psychiatrists protect the public? BMJ 2003;326:406-7.[Free Full Text]
8. Walsh E, Fahy T. Violence in society. BMJ 2002;325:507-8.[Free Full Text]
9. Crichton J. Correlation, coincidence or cause: the relationship between mental disorder and crime. J Forensic Psychiatry 1999;10:659-77.
10. Eastman N. Volume two oral and written evidence. Joint Committee reports. Draft mental health bill 2005. HL79-II/HC 95-II Q 492.
11. Centre for Suicide Prevention. National confidential inquiry into suicide and homicide by people with mental illness. Five year report. Manchester: University of Manchester, 2006. www.medicine.manchester.ac.uk/suicideprevention/nci/
12. Robinson R, Chairperson. Report of the independent inquiry into the care and treatment of John Barrett. London: National Health Service, 2006. www.london.nhs.uk/resourcelib/SL%20Confidential.pdf
13. Taylor PJ, Gunn J. Homicides by people with mental illness: myth and reality Br J Psychiatry 1999;174:9-14.[Abstract/Free Full Text]
14. Mental Health Alliance. Briefing for the second reading of the Mental Health Bill in the House of Lords. 2006 London: Mental Health Alliance.

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