New mental health legislation
BMJ 2007; 334 doi: https://doi.org/10.1136/bmj.39155.567535.BE (Published 22 March 2007) Cite this as: BMJ 2007;334:596
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It is sad to see the enthusiasm of the National Director for Mental
Health to deprive people with mental disorder of their fundamental human
rights.
The Department of Health have been eager to promote the Mental
Capacity Act which explicitly codifies the rights of people with capacity
to refuse medical treatment and to make advance refusals of treatment,
even if this may result in their death. Despite this, Professor Appleby
wishes the just and reasonable amendments made to the current Mental
Health Bill by the House of Lords to restrict the forcible imposition of
medical treatment for mental disorder to those who have impaired decision
making to be reversed.
I look forward to reading his proposals for the compulsory
transfusion of Jehovah's Witnesses.
Jonathan Waite
Consultant in the Psychiatry of Old Age,
Nottinghamshire Healthcare NHS Trust
Competing interests:
None declared
Competing interests: No competing interests
Whatever the final shape of our new mental health law, the lasting
damage will be to the psychiatric profession which has thrown away any
claim to objectivity or scientific integrity by joining the Mental Health
Alliance of pressure groups. Crichton and Darjee's editorial reads more
like a campaign leaflet for the Alliance than a dispassionate overview.
First, they claim that "an overemphasis on public safety in mental health
law increases risk to the public" without producing any of the supporting
evidence usually required of medical experts.
Their next dubious claim is that "The problem of violence in the mentally
disordered is much more about how society manages violence generically
than how it manages mental disorder", which is simply not true when
applied to violence in schizophrenia. Some homicide inquiries show that
the killing was coincidental to the illness but the vast majority find
that the killing resulted directly from delusions, hallucinations or other
symptoms. In these cases good treatment, good risk management and good
public protection are virtually identical.
They go on to complain that "Politicians and the media may highlight that
one homicide a week is perpetrated by someone with a mental illness...",
but their numbers are wrong: the one-a-week figure refers to mentally ill
patients with recent service contact, whereas the overall number of
mentally ill homicides is about 100 per annum in England and Wales. The
implication is that the media and politicians are making too much fuss -
but let us put the figures in context. That death rate of one a week is
higher than the rate at which British soldiers have been killed in Iraq.
It is far above the level of deaths associated with any other form of
medical treatment - because a medical treatment associated with one
unnecessary death a week would be banned without a second thought. The
real scandal here is professional complacency - the media are having to
ask the difficult questions because psychiatrists are too busy patting
themselves on the back and blaming scarce resources for all the
profession's failings.
Crichton and Darjee go on to quote selectively from the findings of the
Confidential Inquiry, omitting to mention its main finding - that in 59%
of cases the psychiatrist looking after the perpetrator thought the
chances of the killing could have been reduced, most commonly through
better compliance with medication. Presumably this fact was considered
inconvenient, as it supports the Government's intention to introduce
provisions for compulsory community treatment. The authors worry instead
that the Inquiry found "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"; but since when were
doctors so casual about unnecessary deaths? Having had some involvement
with the relatives of victims, I would consider a change in the law
justified if it prevented one homicide.
The authors also make selective use of the Barrett report, and ought to
explain why they did not quote p211: "In our view, the only means of
securing John Barrett's compliance with treatment as an out-patient would
have been a community treatment order, which is not available under the
Mental Health Act". The statement relates to Barrett's care before he
almost killed his first victim. There are numerous homicide inquiry
reports that have suggested a community treatment order may have made a
difference, and poor compliance with treatment features in most inquiries.
These comments may seem harsh, but my target is the extent to which
psychiatry has become part of a pressure group when it ought to be dealing
more effectively with the problem of violence risk. The latest
manifestation of this fact is that the Royal College of Psychiatrists has
employed a PR firm to put across its case over violence risk management.
The simple fact is that our services are much less safe than they could
be. The profession ought to put its energies into improving them, rather
than spending money on explaining away their deficiencies. Good violence
risk management in mental illness is usually synonymous with good
treatment, and the profession should be taking a lead.
Competing interests:
None declared
Competing interests: No competing interests
Sir,
John Crichton is right to say that the ‘fundamental flaw’ in the
government’s new mental health bill is the ‘belief that mental health law
is a worthy vehicle to enhance public protection’(1) . At the very core of
the new bill’s changes to the treatability test is the utilitarian notion
that it is morally justifiable to reduce the freedom of a minority of
individuals who may be potentially dangerous due to mental disorder with
the aim of protecting the majority of society, regardless of whether those
detained individuals’ conditions will be effectively treated. This sort of
reasoning is seriously flawed. Given the considerable uncertainty
concerning the exact number of new patients who would qualify for
detainment under the proposed legislation, it is reasonable to question
whether there would be enough psychiatric ward space and mental health
professionals to cope with the influx. The mental health service is
stretched financially as it is, and the Royal College of Psychiatrists has
stated throughout the government’s attempts to reform the mental health
act that the blurring of the treatability test would represent a drain on
money that would be better spent on other mental health services (2). The
changes are also likely to have a significant negative impact on
psychiatry for other reasons. As well as the resentment many mental health
workers have towards the bill, new patients may well become more
apprehensive in seeking help from mental health services.
The use of psychiatry as a ‘vehicle to enhance public protection’ is
dependent on reliable means of predicting which mentally disordered
individuals will actually commit violent crime if left un-detained. An
editorial in the Psychiatric Bulletin in 2001 reported that eighty two
percent of psychiatrists believed that available risk assessment
procedures were inadequate to identify potentially dangerous individuals
(3). It is doubtful that confidence has increased dramatically in the
proceeding years. Over-prediction is a real possibility, as a psychiatrist
failing to detain a patient who then goes on to commit violent crime is
likely to be heavily criticised by the press and may potentially face
litigation.
A belief that the overall welfare of society will be increased by the
changes to the treatability test set out in the new bill is far too
simplistic and fails to consider all the possible consequences.
1) Crichton J, Darjee R: New Mental Health Legislation. BMJ 2007;
334:596-7
2) Forrester A. Preventative detention, public protection and mental
health. Journal of Forensic Psychiatry 2002;13:329-44.
3) Haddock A, Snowden P, Dolan M, Parker J, Rees H. Managing
dangerous people with severe personality disorder: a survey of forensic
psychiatrists’ opinions. Psychiatric Bulletin 2001;25:293-6.
Competing interests:
None declared
Competing interests: No competing interests
Sir,
Crichton and Darjee misrepresent the Mental Health Bill that is
currently going through Parliament, claiming that it is insufficiently
concerned with care and treatment. The aim of the Bill is to ensure that
people with mental disorder receive the treatment they need at times of
high risk. This will have benefits to patient and public safety - 14 per
cent of the 1300 patient suicides that occur annually in England and
Wales, and 25 per cent of the 52 patient homicides, are preceded by
refusal to take medication - but the starting point will be better care.
The Bill introduces supervised community treatment (SCT) - a similar
power exists in many countries including Scotland (where the authors
work). Patients will be eligible for SCT only if they are already
detained in hospital for treatment - a safeguard that goes beyond what is
in the Scottish legislation. The Bill also removes the "treatability
test" that currently acts as an impediment to care for some people with
personality disorder.
Crichton and Darjee claim, without evidence, that an over-emphasis on
public safety will be counter-productive. But whose over-emphasis are
they referring to? It is the House of Lords that has amended the Bill so
that SCT can not be used for the suicidal patient, and the Mental Health
Alliance, described by the authors as a "remarkable coalition" that has
asked the Government not to reverse this change. Protection for the
violent but not the suicidal patient? Remarkable indeed.
Professor Louis Appleby
National Director for Mental Health
Competing interests:
The author advises the Government on mental health policy
Competing interests: No competing interests
Crichton & Darjee are correct to point out the confusion of purpose in new mental health legislation in England and Wales.1 Although the Government ordered a root and branch review of the law, it gave the Richardson Committee no option about introducing supervised community treatment. The Expert Committee consequently avoided the issue by making little differentiation between hospital and community treatment in its proposals. The government's decision to introduce supervised community treatment was, therefore, made without evidence. In fact, a recent review of mental health legislation overseas has concluded that it is not possible to state whether supervised community treatment is beneficial or harmful to patients.2
The impetus for reform also comes from the notion that mental health services are not doing enough to prevent homicide by psychiatric patients.3 However, homicide inquiries in mental health services have too often become destructive.4 Systematic review of these inquiries is required, taking into account the complexity of mental healthcare systems and avoiding stigmatisation of the mentally ill. Legislation should not proceed without making sense of these inquiries.
- Crichton J & Darjee R. New mental health legislation. BMJ 2007;334:596-597 (24 March), doi:10.1136/bmj.39155.567535.BE (24 March) [Full text]
- Churchill R, Owen G, Singh S, Hoptopf M. International experiences of using community treatment orders. London: Institute of Psychiatry, 2007.
- National Confidential Inquiry into Suicide and Homicide by People with Mental Illness. Avoidable Deaths—FiveYear Report of the National Confidential Inquiry into Suicideand Homicide by People With Mental Illness. University of Manchester, 2006 [Full text]
- King M & 59 other signatories. Community psychiatry inquiries must be fair, open and transparent. The Times, 4 December 2006 [Full text]
Competing interests:
None declared
Competing interests: No competing interests
Crichton and Darjee's article highlights a stark challenge to the
moral legitimacy of psychiatrists in general, and forensic psychiatrists
in particular.(1)
The moral rule, primum non nocere- first do no harm, may be a moral
rule for all people, but for physicians, especially for psychiatrists
(psychiatrists are physicians) it achieves elevated status. However the
assumption that all activities of physicians must be governed by the same
ethical principles is clearly falacious.
If forensic psychiatrists were to be charged only with pursuing their
patients best interests and avoiding harm - as are their clinical
colleagues - their evaluations would be worthless. Inherent in the value
of a forensic psychiatric evaluation is the idea that information adverse
to the subject's interest might well be derived from the evaluation and
that the forensic expert will truthfully present such data where it is
relevant to the issue at hand. There is no shame in this reality.
What we need (and what is lacking) is, a set of guiding principles that
will help us fulfill the duties of beneficience without interfering with
our forensic functions.(2)
(1) Crichton J, Darjee R: New Mental Health Legislation. BMJ 2007;
334:596-7
(2) Applebaum PS : Theory of Ethics for Forensic Psychiatry. J Am
Acad Psychiatry Law, vol 25, no 3, 1997.
Competing interests:
None declared
Competing interests: No competing interests
Authors' Response to Maden: Bill offers no advantages over the Scottish approach in contributing to the role of psychiatry in public protection
We agree with Tony Maden that compulsory treatment in the community
should be available to prevent patients with psychosis from relapsing
where there may be a potential risk to others (and also where there may be
a potential risk to the patient). We also agree that forensic
psychiatrists should be more involved in the treatment of paraphilias and
other conditions of relevance to sexual offending. Never-the-less Tony
Maden is highly critical of our allegedly non-evidence based editorial (1)
which he feels is no more than propaganda for the Mental Health Alliance
(2), an organisation with which we have no formal or informal ties and
which provided no input to the editorial. He also criticises our response
to Louis Appleby's comments (3, 4).
We are both psychiatrists working in the forensic service serving
Edinburgh and South-East Scotland. We each have a case load of psychotic
and personality disordered patients, with histories of serious violence,
currently being managed in the community. Some of them are subject to
compulsory community treatment. The current Scottish legislation supports
us in assertively, and sometimes coercively, managing such cases where
necessary. As is the case with most forensic psychiatrists, we are all too
aware of the cases where things go wrong. Many of our patients have
offended whilst under the care of mental health services. Retrospectively
one can identify the factors that could perhaps have been addressed to
perhaps prevent the violent outcome: misdiagnosis, rejection of difficult
patients, a piece of information ignored, a piece of information not
shared, lack of beds, lack of assertive management of non-compliance, lack
of an objective structured approach to risk assessment, not heeding a
relative's concerns etc. None of these issues would be preferentially
addressed by the approach set out in the Mental Health Bill as compared
with current Scottish legislation. We are not complacent or tempted to pat
psychiatrists on the back. In Scotland we have not traditionally been
subject to the level of scrutiny seen in England where a psychiatric
patient commits homicide. However, following a recent case (5), we were
invited to join a working group to produce new Scottish Executive guidance
on improving the management of restricted patients in the community (6).
Our approach in this has been to assert, as Tony Maden does, that properly
conducted structured risk assessment and management is central to the
treatment of potentially violent individuals with mental disorders, and
the provision of high quality care and treatment is the best way to
improve public safety. In his recent book he has branded forensic
psychiatrists who do not believe that public protection is our business as
'ludites' (7); we do not feel that our views and approaches would lead him
to place us in this group.
In relation to Tony Maden's comments on the contribution of mental
illness and its treatment to homicide, there are a number of medical
treatments that produce far more deaths. Hospital acquired infections
cause thousands of deaths in the UK annually (8). This clearly needs to be
dealt with at a number of different levels, but surely hospital treatment
for very ill people should not be banned, and draconian legislation is not
required.
We are also involved in trying to establish a liaison service for
criminal justice agencies in the management of sex offenders. As Tony
Maden mentions knowledge and expertise in assessing and managing sex
offenders amongst forensic psychiatrists in the UK is generally pretty
lamentable, and in Scotland it is particularly poor. Within the context of
new (in Scotland) Multi-Agency Public Protection Arrangements (9) we want
to offer appropriate clinical input (including consideration of
pharmacological treatment in some cases) to help police and criminal
justice social workers reduce further victimisation by sex offenders in
the community. Again the Mental Health Bill's potential inclusion of
sexual deviation would not help us in our task. Rather than focussing what
we do on clinical assessment and treatment, we would potentially be forced
into debates on whether or not we should section offenders with
paedophilia or sadism. The appropriate means to detention in such cases is
through imprisonment, and although many psychiatrists do not agree, we
believe clinical assessment for the courts has a role to play in these
sentencing decisions.
How far will the Mental Health Bill improve the treatment of
potentially violent patients with psychosis in the community, or
psychiatry’s involvement in the management of sex offenders? We believe
the potential benefits will be, at best, minimal, at an overwhelming cost
to the proper role of mental health services and the correct balance
between freedom and restriction. Beyond these important forensic issues,
it is also difficult to see why the approach in England and Wales cannot
be more similar to that in Scotland. Certainly the Mental Health Bill
would seem to offer no particular advantages over the Mental Health (Care
and Treatment) (Scotland) Act 2003 in improving the care of patients with
mental disorders. We have a number of criticisms of the Scottish
legislation, but know of no psychiatrist in Scotland, forensic or
otherwise, who would rather have any of the three incarnations of the
Mental Health Bill south of the border.
We are accused of being spin doctors rather than real doctors.
Hopefully the above has given some indication that we practice in the real
world of forensic mental health, and although we have both worked with the
Scottish Executive, we have not felt the need to promote the government
position. But we are not reliant on direct government funding for our
jobs, our services or our research. Not to comment on legislation we
believe will be detrimental would be wrong.
If the Mental Health Bill (un-'emasculated' by the House of Lord's
amendments) does become law, then at least there will be the potential for
a natural experiment comparing the impact on, amongst other outcomes,
homicides and suicides of new but very different legislation either side
of the border. The likely outcome of this study, we predict, would be that
neither piece of legislation will produce significant differences in
homicide or suicide rates. As Grounds (10) stated, when referring to
Appelbaum's authoritative review of cycles of mental health reform in
America (11), both pessimists and optimists are usually wrong, which is
both 'reassuring and depressing'.
Rajan Darjee
Consultant Forensic Psychiatrist
The Orchard Clinic, Royal Edinburgh Hospital
John Crichton
Consultant Forensic Psychiatrist
The Orchard Clinic, Royal Edinburgh Hospital
REFERENCES
1. Crichton J, Darjee R: New Mental Health Legislation. BMJ 2007;
334:596-7 [Full text]
2. Maden, A. Mental Health Law: real doctors should not become spin
doctors. BMJ Rapid Response. http://www.bmj.com/cgi/eletters/334/7594/596
3. Appleby, L. . Bill aims to protect people at times of high risk.
BMJ 2007; 334: 761-761 [Full text]
4. Maden, A. Mental Health Law: many psychiatrists support the new
Bill. BMJ Rapid Response. http://www.bmj.com/cgi/eletters/334/7597/761-
b#163985
5. Mental Welfare Commission for Scotland. Report of Inquiry into the
care and treatment of Mr L and Mr M. Edinburgh: Mental Welfare Commission
for Scotland, 2006.
http://www.mwcscot.org.uk/web/FILES/Publications/Mental_Welfare_Inquiry.pdf
6. Forensic Mental Health Services Managed Care Network (2006) Review
of Care Programme Approach Guidance for Restricted Patients in Scotland
(Draft Guidance for Consultation)
http://www.forensicnetwork.scot.nhs.uk/documents/reports/CPA%20Consultat...
7.Maden, A. Treating Violence: A Guide to Risk Management in Mental
Health. Oxford University Press, 2007.
8. National Audit Office. The Management and Control of Hospital
Acquired Infection in Acute NHS Trusts in England. London: National Audit
Office, 2000. http://www.nao.org.uk/publications/nao_reports/9900230.pdf
9. Scottish Executive (2007) Implementation of the Multi Agency
Public Protection Arrangements (MAPPA) in Scotland. Circular No
JD/15/2006. Edinburgh: Scottish Executive
http://www.scotland.gov.uk/Publications/2007/03/circjd1506updmar07
10. Grounds, A. Reforming the Mental Health Act British Journal of
Psychiatry 2001; 179: 387-389
11. Appelbaum PS. Almost a revolution. Mental health law and the
limits of change. New York: Oxford University Press, 1994.
Competing interests:
See original article.
Competing interests: No competing interests