But the new legislation will not just be about
making changes to existing law.
How will the Mental Health Act be changed?
The draft Mental Health Bill would have greatly increased the numbers of those potentially
subject to compulsory mental health treatment, and introduced compulsory treatment in the
community. Replacing the Mental Health Act 1983, it would also have dispensed with many
important aspects of the current law that work well.
Many of the new proposals suggest that the Government still attaches prime importance to the
control of so-called dangerous people and less with the quality of care available to prevent
serious mental illness and mental health crises. Mind would like to see more fundamental
change in the law towards giving people greater rights to decide on their own treatment, without
compulsion, when they have the mental capacity to do so. New mental health law now
implemented in Scotland restricts compulsory treatment to people who lack the mental capacity
to decide on their treatment.
While retaining the Mental Health Act, the government has outlined important changes – some
incorporate controversial features that were part of the draft Bill and others reflect positive
responses to our campaign against the Bill. The outline changes announced include:
• introducing a new, single definition of mental disorder, ensuring that it excludes people
suffering only from drug and alcohol dependency and people with learning difficulties.
Mind is pleased that the government has listened to criticism of the impact of the extremely
wide net cast for compulsory treatment in the former draft Bill. We will be pressing the
government to consider a fuller list of exclusions.
• replacing the current “treatability” test with an assurance that there will be no
compulsory treatment unless “appropriate treatment is available”. The “appropriate
treatment” test was included in the former draft Bill. Mind believes that any definition of
compulsory treatment must require any form of care to have a therapeutic value.
• Allowing the patient to choose their Nearest Relative and including civil partners among
the list of Relatives.
Under the draft Mental Health bill a patient could nominate anyone to be their
representative. Mind hopes that a similar unrestricted choice will be part of the detailed
proposals.
• Changing the powers of the Mental Health Review Tribunal to improve legal safeguards.
Mind is pleased that the Governent would like to improve patient safeguards, but concerned
that proposals to make the tribunals more workable could reduce the access that patients
have to a full hearing and create more “paper” decisions on about the lawfulness of
detention.
• Creating a new “supervised treatment” in the community for people who have been
sectioned, and who need action to prevent relapse and re-admission.
Mind believes that these provisions already exist, the real problem that needs to be
addressed is the quality and availability of aftercare and support services in the community
and the need to provide a more effective bridge between acute treatment and community.
• Creating skill-based statutory roles. The reforms would dispense with the old statutory
mental health roles and created a wider “skill base” for the roles undertaken by Approved
Social Workers and Responsible Medical Officers (doctors responsible for treating people
under the Mental Health Act). Mind would like to see the development of a stronger and
broader skill base. But we are worried that this might not address the causes of skill gaps,
such as failures to make sufficient investment in the mental health workforce and mental
health services generally.
Mind is also concerned by the scrapping of a new scheme in the draft Bill 2004, creating a right
to Mental Health Advocacy. We will be urging the government replace this.
New Bournewood safeguards
Among the changes in the proposed Bill will be new legislation to provide safeguards for
“Bournewood” patients. They are people who lack mental capacity and who are detained in
hospital without the benefit of important safeguards in the Mental Health Act, mainly because
they “comply” with their treatment. A landmark legal judgement in 2004 made this illegal, and
the government now plans to introduce special safeguards to make sure their position is
compliant with the European Convention on Human Rights.
The government has only outlined its plans, making it hard to judge them until more detailed
proposals are put forward.