A new mental health (and public protection) actBMJ 2001; 322 doi: https://doi.org/10.1136/bmj.322.7277.2 (Published 06 January 2001) Cite this as: BMJ 2001;322:2
Risk wins in the balance between providing care and controlling risk
- George Szmukler, joint medical director
The 1959 Mental Health Act marked a transition from the “legalism” of the 1890 Lunacy Act, with its 19th century libertarian concerns, to a welfare statute in which decisions about involuntary treatment for mental disorders became primarily a matter for doctors.1 In the Mental Health Act 1983 a revived form of legalism set some limits to medical discretion. Now a white paper, Reforming the Mental Health Act, promises a new epoch, one where “concerns of risk will always take precedence, but care and treatment provided under formal powers should otherwise reflect the best interests of the patient.”2 The foreword to a preview of the “biggest shake up in mental health legislation for four decades” is signed by both the health and the home secretaries, and half the paper is devoted to “high risk patients.” Perceived failures in community care are the main drivers.
We will see big changes. A simpler template for “formal assessment” followed by a care and treatment order, applicable in both civil and criminal justice settings, is described. Everyone, including patients and carers, should find it easier to understand. The definition of mental disorder is very broad—”any disability or disorder of mind or brain, whether permanent or temporary, which results in an impairment or disturbance of mental functioning.” Personality disorder is clearly included. The criteria for a “care and treatment order” are an unwilling patient and the presence of a mental disorder “of such a nature or degree as to warrant specialist care and treatment” which is “necessary in the best interests of the patient and/or because without care and treatment there is a significant risk of serious harm to other people.” An individualised care plan addressing the disorder must also be produced.
Care and treatment orders can only be made by an independent body, the Mental Health Tribunal, or by a court. Other safeguards include entitlement to free legal representation and independent specialist advocacy services. However, there are ambiguities: though the Mental Health Tribunal is ostensibly there to safeguard the patient's rights, it may “exceptionally” reserve the right not to accept the clinical supervisor's decision to discharge the patient, “if there is a serious risk of harm to others”. Who is thus being protected?
”Best interests” versus risk
Of major importance is the distinction, commendably drawn, between treatment in the patient's “best interests” and compulsory powers sought because of the risk to others. The former looks at best interests from the patient's perspective, including taking account of any advance agreements and the views of others about the patient's past and present wishes and feelings. The care plan must be of “direct therapeutic benefit.” This is getting close to legislation centred on “capacity,” as supported by the Richardson expert committee3 and others. 4 5 Though capacity itself receives scant attention, this is nevertheless a welcome advance.
When detention is on the grounds of risk to others, if the care plan cannot directly address the underlying mental disorder it may instead address the management of “behaviours arising from the disorder”—an often repeated and apparently key phrase. It means that “treatability” is not necessary. The tension between compulsion in the interests of the patient's health and compulsion to protect others is rightly exposed—distinct ends are involved.5 The government holds that a mental health act is a legitimate means to achieve both ends.
Hence the most contentious new powers, foreshadowed in Managing Dangerous People with Severe Personality Disorder: detaining dangerous people.6 The new framework permits the indeterminate but reviewable detention of this as yet poorly defined group of “dangerous people with severe personality disorder” (the paper talks about a “working definition”). Two editorials in the BMJ, though agreeing that mental health services have failed to meet the health needs of those with personality disorders, have concluded that the proposed new measures are ethically problematic. 7 8 I will not repeat the details of the argument here: the crux is whether the ascription of mental disorder is being applied to a group of apparently risky individuals as a means of securing their preventive detention under a veneer of ersatz “healthcare.” Most mental health professionals see it that way.
Of special concern are those individuals who may be thus detained civilly, without conviction for an offence. Whether “dangerous severe personality disorder” represents a true medical disorder on “objective medical expertise” as required under article 5.1(e) of the European Convention on Human Rights,9 rather than “behaviour deviating from the norms prevailing in a particular society” will no doubt be tested. Psychiatry has traditionally considered mental illness and disorders of personality as having a different status. 10 11 What are seen in the white paper as “failures in the law” were deliberately placed there to distinguish between treating mental disorder and exercising social control.12 Though these measures are stated to target a small group of individuals, it is not obvious what prevents their wider application. But even if the new powers are given, it is possible that, as with judges' reluctance to impose discretionary life sentences,6 mental health professionals may not use them.
Also controversial is the use of compulsion in the community. The new framework allows flexibility about the location of involuntary treatment. Such flexibility may permit treatment to occur in the least restrictive circumstances (judged, one hopes, from the patient's point of view). A difficulty that the paper ignores is when a community order should end. Is it to replace a hospital admission and thus be short term, or is it to be “prophylactic” and long-term—to prevent future relapse? It has been argued that orders should cease when the patient has recovered the capacity to make treatment decisions.5 Another concern is that the permissive criteria for compulsory treatment will result in the net being cast widely, including patients who seriously annoy others but are not a “serious risk.” New statutory duties on healthcare bodies to share information about risk and to make preliminary assessments on request from a wide range of sources, including the criminal justice system, though they may help many to get appropriate care, will also ensure that thoughts about risk remain prominent.
Much here seems to be at odds with key goals for mental health care set out in the highly regarded national service framework, especially combating discrimination and stigma and developing services patients will want to use. Further demands on resources may lead to a diversion of promised new investment from informal to formal care. But, as one historian concluded: “Because services are a response to the society they serve, and from which they derive their sanctions, the care of the mentally ill will continue to reflect the values of that society—good, bad or merely muddled.”1