The new Mental Health Bill redefines mental disorder, changes the test for long-term admissions, and introduces supervision in the community, says Dr Gerard Panting


Previous attempts by the Government to replace the 1983 Mental Health Act1 (England and Wales only) have run into opposition from health professionals and patient groups, and subsequently run out of steam. However, in December 2006, the new Mental Health Bill, which amends rather than replaces the existing Act, was introduced in Parliament.2

The new Bill is significantly different from its two recent predecessors, drafted in 2002 and 2004,3,4 which were both designed to bring wholesale change to the legislation governing the admission, compulsory detention, and treatment of mentally ill patients. In addition to amending the existing 1983 Mental Health Act, the 2006 Bill amends the Mental Capacity Act 2005 (which is not under discussion here).5

Definition of a mental disorder

The Mental Health Bill introduces a single definition of mental disorder, replacing the four current classifications, as 'any disorder or disability of the mind'. It maintains the exception of dependence on alcohol and drugs, and also the distinction for learning disabilities. Someone who suffers from learning disabilities will only be eligible for inclusion under the amended Act if his or her learning disability is associated with abnormally aggressive or seriously irresponsible conduct.2

Long-term admissions

Changes have been made to the test for admission under Section 3 of the Mental Health Act, which is the section outlining criteria for long-term admissions. The first two parts of the application for admission are largely unchanged. The first stipulates that a patient must have a mental disorder that is of a nature or a degree that makes it appropriate for them to receive treatment in hospital, and that it must be necessary for the health and safety of the patient or for the protection of others. The second criterion is that treatment cannot be provided unless it is provided under a section of the Mental Health Act.

However, crucially, the change is in the third limb of the test: that appropriate medical treatment must be available to the patient. Under the Section 3 test of the 1983 Mental Health Act, someone who suffers from psychopathic disorder or mental impairment can only be detained under the Act if treatment is available that is likely to alleviate their condition or prevent further deterioration. The 'treatability test', as it is called, is replaced by an 'appropriate and available' test in the 2006 Bill.

Supervision in the community

The introduction of community treatment orders in the Mental Health Bill provides the means to treat someone compulsorily in the community. The Government envisages that approximately 14506 patients may be subject to this new form of order at any one time, but according to research by the King's Fund this may be as high as 7800–13,000 patients, bringing a large number of people who have not previously been subject to compulsion within the scope of the new framework.6

Detention of patients

The new Bill does not affect the current provisions for the detention of patients. An application for an admission will, in most cases, be made by an approved social worker and supported by two medical recommendations, as happens now. Detention will continue to be a combination of a social care model and a medical model.

The Royal College of Psychiatrists, as part of a broad mental health alliance representing approximately 80 mental health organisations, has raised concerns about the widening of the definition of mental disorder, removal of exclusions, and watering down the 'treatability test' and replacing it with 'appropriate treatment'. It suggests the Government agenda is about using detention in hospital, ostensibly for the health of the patient, but in circumstances where treatment might not be of any benefit to them.7

Concerns raised by the Royal College of Psychiatrists

What are the dangers of making more people subject to compulsion? The Royal College of Psychiatrists says that people will become stigmatised so they are more likely to present late to the health services, by which time their mental illness has become worse and more difficult to treat. It says the intention should be to make services more accessible, with the offer of treatment and support earlier, thus reducing the need for compulsory detention.8

There is particular concern within the Royal College of Psychiatrists about the community treatment orders, which the government says are for so-called 'revolving door patients', but the 2006 Mental Health Bill.9 is widely drawn so it seems the only real criterion is detention under a Section 3 order for as little as a day. It does not require repeated admissions, so while the Royal College supports the need for community treatment orders, it opposes the current drafting, feeling that the balance is wrong and will inevitably result in an infringement of liberty for many people.8

The Royal College of Psychiatrists had considered that the new Bill had missed an opportunity to incorporate advocacy, as this was initially rejected, but at the eleventh hour this has been included. However, the suggestion of a single gateway has not been taken up.

The treatability test

Not everyone agrees with the concerns of the Royal College of Psychiatrists; for example, SANE (founded 20 years ago to raise awareness and improve care of people with mental illness) has campaigned to have the treatability test removed.10 The charity argues that it is difficult for health professionals to ascertain exactly what a patient's diagnosis is; and a sizeable proportion of those with an unclear diagnosis, which is small in global terms, have been denied care under the health system because of the treatability test, and so have been left to be dealt with by the criminal justice system, which is not geared to responding to mental illness and disorder. This group often comprises young, chaotic patients, who have newly presented to psychiatric services. It is therefore, important not to miss the opportunity to diagnose and treat them, as delay may cause loss of cognitive function and a spiral of decline.8

The treatability test in the 1983 Mental Health Act is very widely drawn. The only criterion is that treatment will prevent a deterioration in a person's condition, which could allow for the detention of people in hospital when there is no treatment available that will benefit them. However, services are being developed and treatment is becoming available for people with severe antisocial personality disorder, which might allow the response 'yes, the reason for people being there is because the treatment will help them'.

Latest amendments to the Mental Health Bill

The latest position, as announced by the Department of Health in June 2007, is that, following discussion in both Houses of Parliament and with stakeholders, several core amendments to the Bill have been announced by the Government.11 If passed, these changes would mean:

  • 'children and young people receive treatment for a mental disorder in an environment that is suitable for their age and geared to meet their needs. This builds on a commitment made in November to ensure that, within two years, no child under 16 years of age is treated on an adult ward. Under the new amendment, all hospital managers would have a duty to ensure that all patients aged under 18 are placed in suitable settings, unless needs dictate otherwise
  • in response to issues raised during Committee stage in the House of Commons, statutory advocacy services would be introduced to support patients detained under the Mental Health Act and to champion their rights
  • conditions could only be placed on a person who is on supervised community treatment (SCT) in order to ensure that they receive treatment to prevent the risk of harm to their health or safety, or to protect other people. This amendment is in response to concerns expressed that SCT conditions could be used inappropriately to restrict an individual's behaviour and lifestyle. It follows discussions with the Mental Health Coalition (the Royal College of Nursing, the British Psychological Society, Unison, the College of Occupational Therapists and Amicus).'

Summary

The Mental Health Bill 2006 as it amends the Mental Health Act 1983 is not going to be the panacea that some expect, nor will it lead to fundamental breaches of human rights to any real extent. At the same time, the very fact that it is introducing so many changes to fundamental concepts, like the admission of patients, means that professionals who have to work with the 2006 Bill are going to be dealing with a new framework, with many changes for them to manage.

Fundamentally, however, there are limits to what any law can do. Provision of medical services to people with severe mental illness depends upon the necessary resources being available, and at the moment there is agreement across the mental health alliance that their capabilities are already stretched. It remains to be seen, therefore, how this extra workload can be absorbed. Community treatment orders will help those people who have a severe, enduring mental illness, who are treated in hospital at the moment, and who need a tighter framework for management of their condition in the community. This currently is not available under the 1983 Mental Health Act, even under the powers of leave.

 

  1. www.dh.gov.uk/PublicationsAndStatistics/Legislation/ActsAndBills/ActsAndBillsArticle/fs/en?CONTENT_ID=4002034&chk=lmZd%2Bu
  2. www.publications.parliament.uk/pa/pabills/200607/mental_health.htm Draft Mental Health Bill (2002)
  3. www.dh.gov.uk/PublicationsAndStatistics/Publications/PublicationsLegislation/PublicationsLegislationArticle/fs/en?CONTENT_ID=4008466&chk=HBBEEq
  4. Draft Mental Health Bill (2004) www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsLegislation/DH_4088907
  5. Mental Capacity Act 2005. www.opsi.gov.uk/acts/acts2005/20050009.htm
  6. Lawton-Smith S. A Question of Numbers: The potential impact of community-based treatment orders in England and Wales. London: King's Fund, 2005.
  7. The Royal College of Psychiatrists. www.rcpsych.ac.uk/
  8. Risperdal Podcasts. www.risperdal.co.uk/bgdisplay.jhtml?itemname=podcasts&_requestid=3724075
  9. Department of Health. www.dh.gov.uk
  10. www.publications.parliament.uk/pa/jt200304/jtselect/jtment/1127/1127se57.htm
  11. Better support for patients, victims and young people in Mental Health Bill. http://www.gnn.gov.uk/Content/Detail.asp?ReleaseID=291240&NewsAreaID=2 G