Detaining dangerous people with mental disordersBMJ 2002; 325 doi: https://doi.org/10.1136/bmj.325.7354.2 (Published 06 July 2002) Cite this as: BMJ 2002;325:2
New legal framework is open for consultation
- Luke Birmingham, senior lecturer in forensic psychiatry. ()
- University of Southampton, Community Clinical Sciences Research Division, Knowle, Fareham, Hampshire PO17 5NA
The draft mental health bill published last week introduces a new legal framework for the compulsory treatment of people with mental disorders in hospitals and in the community.1 On the day it was unveiled the bill was condemned and labelled as little more than a detention plan for dangerous mental patients.2 The white paper on reforming the Mental Health Act that preceded the draft bill attracted a great deal of attention because of its over-riding emphasis on public safety.3–5 The fact that it was not well received is hardly surprising given that it was born from an unpopular green paper and proposals for managing dangerous people with severe personality disorder described as glaringly wrong and unethical.6–10
Rather than continuing the theme of public protection,3 the ministerial foreword accompanying the draft bill seeks to reassure us that the new law will promote patients' rights and protect them.11 The term “dangerous people with severe personality disorder” used in the white paper does not receive a single mention in the draft bill. This may offer some reassurance, but it does not mean that dangerous people with personality disorders or any other forms of mental disorder are excluded—far from it.
The procedure for compulsion is very similar to that described in the white paper. This involves a single pathway with three distinct stages: a preliminary examination, a period of formal assessment lasting up to 28 days, and then treatment under a Mental Health Act order. Four conditions must be satisfied before any compulsory powers can be used: there must be a mental disorder (as defined below); this must be of a nature or degree warranting medical treatment; treatment must be necessary for the health or safety of the patient or the protection of others; and appropriate treatment must be available for the disorder.
“Mental disorder” is defined as “any disability or disorder of mind or brain which results in impairment or disturbance of mental functioning.” In contrast to the current act, there are no specific exclusion criteria. The broad definition of mental disorder not only means that dangerous people with severe personality disorder are included, but it also raises the possibility of compulsory treatment for sexual deviancy and dependence on alcohol or drugs. The “treatability test,” which has been used to exclude some patients with psychopathic disorder and mental impairment from treatment under the current act, is also conspicuous by its absence. The draft bill does not go as far as the white paper in advocating compulsory powers to manage behaviours arising from the disorder, but a broad definition of “medical treatment” probably includes treatments amounting to this.
For patients other than offenders, a new mental health tribunal will authorise compulsory treatment beyond 28 days. The bill clearly says that in the case of orders authorising medical treatment in hospital, the order must state whether hospital transfer and leave may only be granted with the agreement of the tribunal and whether the order may only be discharged by the tribunal. Restricting the remit of the “clinical supervisor” will impose restrictions on the patient.
The draft bill makes provision for treatment without consent. The explanatory notes state that although such treatment does breach the physical integrity, the government's view is that it can be justified under the European Convention on Human Rights Article 8(2) on the basis that the interference is in accordance with the law, is proportionate, and is in the interests of public safety or to protect health or moral standards.12 As a psychiatrist I am prepared to make judgments about a patient's health and the safety of others, but not moral standards.
The draft bill makes some important distinctions for patients who pose substantial risks to others. For example, general principles require that patients are involved in decisions made about them, decisions are made fairly and openly, and any treatment given imposes the minimum level of intrusion. In certain circumstances, however, including matters of public protection, these principles may be “disapplied.”12 Another important difference is that a patient who is at substantial risk of causing serious harm to others can be given medical treatment if this is necessary for the protection of those persons. In all other instances the condition that treatment cannot be provided without using the act must also be satisfied.
Part III of the draft bill relates to patients concerned in criminal proceedings. Restriction orders, which give the home secretary powers over the management of patients who have committed offences, are retained. Current sentencing options and mental health disposals provided under part III of the current Mental Health Act have also been kept, but these are set in the context of the new legal framework. This includes the hospital and limitation direction (hybrid order) which will apply to all categories of mental disorder.
The explanatory notes on the draft bill state that people with mental disorders before the courts and in prison will, as far as possible, be treated in the same way as patients who are not concerned in criminal proceedings. The government wants views on whether legislation on mental health should be extended to prisons for people with severe mental disorders. The development of services for dangerous people with severe personality disorder at Whitemoor and Frankland prisons shows that this must be on the government's agenda, but, given the current state of health care in prisons and problems with transferring mentally ill prisoners to hospital, including prisons under the act is surely untenable on ethical grounds.
The draft bill has safeguards including rights of appeal, as one would expect. Access to advocacy services and safeguards for certain patients treated informally who are not capable of consenting are welcome additions, but it is doubtful whether the proposed safeguards are robust enough.
So where does this leave us? Services for dangerous people with severe personality disorder are being developed but as far as the government's public protection strategy is concerned there is a suggestion that the drive to use mental health legislation to detain dangerous people on the basis of unsound mind has begun to lose favour. Having said this, the draft mental health bill is a wide net that is particularly likely to ensnare people who present a danger to others. It does create opportunities for preventive detention, and if prisons are included this could result in people with severe mental disorders being effectively excluded from treatment. The draft bill is open for consultation until 16 September 2002.The government says that it has taken account of people's views, and progress does seem to have been made since the white paper. Therefore, if this new legislation will affect you or your patients I would certainly urge you to take part in the consultation.