Rapid Responses to:
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Rapid Responses: Rapid Responses published:
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![[Read Rapid Response]](/icons/misc/sectionDOWN.gif)
Detaining dangerous people with mental disorders: a Government U-turn?
- Philip A Sugarman (9 July 2002)
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Proposed New Mental Health Bill - bitter pill to swallow?
- Azlan Luk, Raymond Travers (14 July 2002)
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Re: Detaining dangerous people with mental disorders: a Government U-turn?
- Tony S Zigmond (27 September 2002)
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Philip A Sugarman, Medical Director NN1 5DG
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Sir Birmingham1 nicely summarizes the latest version of the proposed new Mental Health Act. I have been surprised, however, that it has attracted as much libertarian opposition as the several earlier announcements. The consultation document promises that now, a primary aim is to "bring the law more closely into line with modern human rights law". The Government had already adopted the phrase "medical treatment" in preference to the current "treatment in hospital", in order to achieve one of its key aims - compulsory care in the community. It has now embraced even further the wording of the leading European Human Rights case2, and as Birmingham notes, dropped completely the "detention to manage behaviour" approach. In the new draft Bill, compulsory treatment requires that a patient must suffer from a mental disorder "of such a nature or degree as to warrant the provision of medical treatment". In my view this is a much better treatability clause than the one in the current Mental Health Act. For surely a mental disorder can only warrant the provision of treatment if the patient is likely to benefit from it. If it be argued, as under the current Mental Health Act treatability clause, that treatment in a secure hospital will "prevent a deterioration" into serious offending, then the definition of medical treatment, which has become so central to the new Bill, is most helpful. Medical treatment covers care, nursing, and (re)habilitation - the latter "including education, and training in work, social and independent living skills". As absurdly wide a definition of medicine as this is, it explicitly does not include preventative detention. Birmingham alludes to the exclusion clause in the current law for substance dependance and sexual deviancy, which is missing in the new Bill. However instead we find a condition that "appropriate medical treatment is available in the patient's case". This "availability test" will, I anticipate, protect most psychiatric services from having to impose such specialist treatments. The media annoucement of the Bill of course made no mention of a U- turn, but we must allow the Government a graceful retreat. A few wisely- chosen words in Strasbourg almost a quarter of a century ago have saved British psychiatry from the most serious threat in living memory. 1.Birmingham, L. Detaining dangerous people with mental disorders BMJ 2002; 325: 2-3 2. Winterwerp v Netherlands (1979) 2 EHRR 387 |
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Azlan Luk, SHO Psychiatry Rampton Hospital, Retford DN22 0PD, Raymond Travers
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Editor – As Birmingham1 and Sugarman2 have alluded to, the proposed new Mental Health Bill3 has not received a favourable response and is seen as generally unpopular. The Bill, as mapped out in the introduction of the consultation document4 for the proposed New Mental Health Act Bill, is one of 3 key elements in the government’s strategy for modernisation of mental health services5. I do not think that many would disagree that the Mental Health Act 1983 is in need of modernisation to bring it more in line with current Human Rights Law and progress in mental health practices. Hence, the publication of a proposed new Mental Health Bill and a corresponding consultation document though timely, is a bitter pill to swallow….. or is it? The consultation document does invite opinions and views on legitimate concerns and issues on aspects of the proposed new Mental Health Act. However, what is intriguing about the consultation document is what is omitted from it. Certain issues seem not to be up for either consultation or debate. Amongst other things is that of Assessments. The proposed Bill will require patients to turn up for assessments at particular times and places and individuals colluding with patients’ avoidance of such assessments will be treated as if they have committed a criminal offence. The broad all encompassing definition of mental disorder is contentious as is the removal of the 4 categories including that of the “Treatability” clause for Psychopathic disorder. In a society concerned with dangerous personality disorder, Psychopathic disorder no longer exists. In time, case law will determine the validity of Sugarman’s view. However, there are potential advantages of the new Mental Health Bill. These include: 1. The New Mental Health act is probably more advantageous in the High Secure Setting, providing more robust powers of scrutiny and detainment of dangerous mentally ill offenders in relation to Restriction Orders. 2. The new provision of the Clinical Supervisor and the Approved Clinician, which have differing roles, may be advantageous. The role of the Approved Clinician is not automatically applied to that of the Psychiatric Consultant. This may free the Psychiatrist from the time consuming coordinating role currently held by the Responsible Medical Officer status and a return to true consultation and therapeutic practice. 3. Sharing information to improve patient care provisions within the Bill would impose a general duty to co-operate in the supply of information in relation to risk management and assessment and for protocols to be developed between agencies carrying out statutory functions within the Act. This would enable easier access to other sources of information that maybe sometimes difficult to obtain currently such as those of independent assessments. It will also remove some of the current ethical dilemmas and difficulties related to patient confidentiality in relation to matters of risk. 4. The proposed provision of the compulsory treatment within prisons provided by NHS staff is a welcome initiative, as it would lead to an improvement of Mental Health Services to the prison population. Obviously many contentious issues will be aired during the consultation process which is perhaps why the Government has only given a short time frame. Where are the resources that will be required for the enactment of the Bill if it becomes Law? The Royal College of Psychiatrists asserts that it would require an expansion of Consultant Psychiatrist numbers by 600; it may be less of an issue if there is the utilisation of available Consultant Psychologists as Approved Clinicians as determined by the Bill. What is not in doubt is that the authority of the College is challenged. Since the later half of the last century, there has been a strong impetus for movement to “care in the community”. Following the enactment of the 1959 and 1983 Mental Health Acts, community developments left practitioners concerned with the apparent over emphasis with medical treatment in hospital. The Bill certainly changes this. To paraphrase Yeats, “a terrible beauty is born”. Hospital treatment has morphed into community treatment but the power to convey has remained unaltered. Will patients other than individuals with severe personality disorders really benefit? Azlan Luk Senior House Officer in Psychiatry Rampton Hospital, Retford DN22 0PD Raymond Travers Consultant Forensic Psychiatrist / Honorary Senior Lecturer Rampton Hospital References: 1. Birmingham, L. Detaining dangerous people with mental disorders BMJ 2002; 325: 2-3 2. Sugarman, P. Detaining dangerous people with mental disorders: a Government U-turn? 9 July 2002 Electronic Response. http://bmj.com/cgi/eletters/325/7354/2 3. Department of Health. Draft Mental Health Bill. London: Stationery Office, 2002 4. Department of Health. Mental Health Bill: consultation document. London: Stationery Office, 2002 5. Department of Health. The Journey to Recovery: The Government’s Vision for Mental Health Care. London: Stationery Office, 2001 |
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Tony S Zigmond, Consultant Psychiatrist Seacroft Hospital, Leeds. LS14 6WB
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Dr Sugarman (1), in his response to Birmingham’s article (2) states his surprise that over 50 organisations including the Royal College of Psychiatrists, the Law Society and numerous other professional bodies and user and carer groups object to the Draft Mental Health Bill. Let me explain. The definition of mental disorder in the Bill is so wide as to encompass, for example those with mild anxiety states or phobias, those addicted to nicotine and people suffering from multiple sclerosis or Parkinson’s disease or learning disability. There is no requirement for the condition to have limited the patient’s capacity or decision-making ability. Medical conditions may ‘warrant medical treatment’ according to doctors and may benefit from it, but most of us no longer wish to be so paternalistic as to make it a legal requirement that refusal by a patient should automatically lead to compulsion by the doctor (the Bill requires us to enforce treatment if the conditions are met, the discretion of the current Act is gone). There is no suggestion that the intervention should be in the patient’s best interest. No account is to be taken of the possible disadvantages of being made subject to compulsion. The definition of ‘medical treatment’ in the Bill is, as Dr Sugarman describes, meaningless. He believes that I will not be required to enforce compulsory treatment inappropriately because of the ‘availability test’. For me to argue that treatment isn’t ‘available’ on an ordinary psychiatric ward for 'dangerous people' is difficult if the definition of treatment includes ‘care’ (actually it is my view that real ‘care’ often isn’t available on acute psychiatric wards but I doubt the Courts would accept this)? When referring to a “few wisely chosen words” I assume he means the European Convention on Human Rights (2) now incorporated as the Human Rights Act 1998. The Convention groups together those of unsound mind with vagrants, alcoholics and drug addicts as people who may be locked up indefinitely even though they have committed no offence, without any requirement that the intervention is in their best interest or that it will deliver any therapeutic benefit. Not, I suggest, wholly satisfactory as the legal basis for 21st Century psychiatric practice. 1. Sugarman P. Detaining dangerous people with mental disorders. BMJ 2002;325:659 (21 September) 2. Birmingham L. Detaining dangerous people with mental disorders BMJ 2002; 325: 2-3 3. European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950. Competing interest: I am the RCPsych lead for response to the Draft Mental Health Bill. |
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