Published: 04/07/2002, Volume II2, No. 5812 Page 10 11
It was four years in the making, yet it has outraged a wide spectrum of expert opinion. Just where did the proposals for reform of the 1983 Mental Health Act go wrong? Paul Smith reports
'I am not just angry about it, I am actually fearful.' This was a senior psychiatrist's view of the government's plans for reform of the 1983 Mental Health Act.
To say last week's publication of the draft bill has outraged mental health groups, service users and clinicians is an understatement.
The bill has been four years in the making, apparently based on widespread consultation - and yet no one is happy. It has already unleashed an impassioned debate on basic human rights, ideas of justice and the clinical objectivity of psychiatry itself.
To some, the proposals are simply sinister. Central to critics' arguments is the perception of a government obsession with using the bill as a weapon of criminal justice, with the care of those suffering from mental illness being a secondary consideration.
At the press conference launching the bill, health minister Jacqui Smith talked extensively about public safety. Among the aims of the new legislation, she said, was closing the 'loophole' in the current act, which allows 600 'dangerous' citizens - those with so-called dangerous severe personality disorder (DSPD) not in prison or secure hospitals - to remain free because their condition is deemed untreatable.
It was significant that seated next to her throughout the question and answer session was Home Office minister Hilary Benn, the minister who signed the bill on behalf of his department, which has sole responsibility for law and order.
There was little mention in the press conference of the checks and balances - the new mental health tribunals - intended to protect the rights and freedoms of patients subject to compulsory treatment.
And there was little mention too of how the proposals could amount to an improvement in the treatment of around 26,000 mentally ill patients without DSPD, who are not a danger to society, but are currently subject to compulsory treatment legislation.
The reason for the criminal justice elements in a healthcare bill are probably rooted in trends which first emerged in the 1970s.
But the most recent impetus is the case of Michael Stone, the psychopath convicted last October of the murder of Lin and Megan Russell in 1996. The case provoked widespread condemnation, not only because of the horrific nature of the killings, but because in the months and years before he carried out the attacks, Mr Stone had come to the attention of the mental health authorities.
Although 'diagnosed'with DSPD and with a string of convictions for violence, clinicians couldn't 'section' him because DSPD was (and still is) regarded as untreatable.
Although the existing mental health act has always allowed preventative detention of patientson the basis of future risk - either to themselves or the public - those specifically suffering a psychopathic disorder cannot be detained if the reatment is not likely to 'alleviate or prevent a deterioration' of the condition.
Ironically, the new bill does not mention DSPD by name. In the accompanying consultation document, it is stressed that 'people with personality disorders will be treated in exactly the same way as patients with other mental disorders and will come under compulsory powers if they meet the same conditions for compulsion'.
However, the definition of mental disorder contained in the draft bill has been widened to take in DSPD. Coupled with the decision to allow people with certain untreatable conditions to be detained in future, critics of the draft bill claim that the state has been freed to remove a new group of people from mainstream society and take away their basic freedoms in the name of 'therapy'.
Civil rights group Liberty is clear in its condemnation: 'The treatability element is crucial because what other possible medical justification can you have for detaining someone if there is no treatment available? There is none whatsoever. The bill blurs the distinction between treatment and care to get round the point, basically suggesting that because you can conceivably care for some one with DSPD, then you are right to detain them.
But you can ask any doctor or nurse, any clinician, and treatment and care are fundamentally different.'
Dr David James of the Royal Free and University College London Medical School says:
'There are very clear mental illnesses like schizophrenia which can be treated by a form of drugs, but what we are talking about here is a disorder, and when you are talking about disorders then you can often be referring to a social construct, not an illness.
'It alarms me because it is not always apparent that you can treat disorders with drugs, and if you can't get the patient to get involved in psychotherapy then because they are deemed to be a socially undesirable risk they could be incarcerated indefinitely.'
Attempts to mix psychiatry and politics have an unhappy history. It was only in 1973 that the American Psychiatric Association decided to remove homosexuality from the Diagnostic and Statistical Manual of Mental Disorders. Until then its definition as a mental disorder justified treatment of gay men and women - usually involving some kind of aversion therapy which, once stripped of its medical value, could be seen as a form of state-sponsored torture.
Research into DSPD is on-going.
The government is investing£126m over three years for a variety of DSPD services. By 2004 there should be up to 320 high-security places to detain, assess and treat the condition. Whitemoor prison in Cambridgeshire began assessing prisoners last year, with the clinical team trying to uncover a link between DSPD and dangerousness.
Yet despite Jacqui Smith's claim of 'the growing evidence' being amassed on possible treatments, psychiatrists are still short of reaching a universally accepted diagnosis procedure of DSPD and even further from offering a 'cure'.
Dr James says: 'Clearly, government research money into personality disorder is welcome, but most psychiatrists will see it as a mixed blessing.Yes, it will help them carry out their work when it could be seen as paying for validation of its social programme. There is a tension between the two.
'Hopefully, the psychiatrists involved will not be influenced by what the government wants, and if their work points to the fact that people with DSPD can't be treated then they will say so.'
The scale of the potential civil liberties abuse can be understood from a paper by Alec Buchanan published in the Lancet in December.
If the state is to lock people away on the basis of a clinical assessment of their potential danger, it concluded that six PSPD patients would have to be detained to prevent one acting violently - and that was a 'conservative' estimate.
When a new mental health act failed to appear in last year's Queen's speech, the reaction within the mental health community was muted. The assumption was that the government would use the time for a considered rethink of the proposals then on the table.
Last week there was clear anger - anger that the government, despite the concerns over civil liberties, patient welfare and basic care of the mentally ill, had presented a bill virtually unchanged from what went before.
The Royal College of Psychiatrists was so furious it pulled out of talks with the Department of Health before the launch of the new act.
Dr Tony Zigmond, chair of the college's general and community faculty, who was involved in the discussions after the white paper, claims that the DoH 'certainly didn't listen' to concerns expressed about the proposals for community treatment orders and detaining people with severe personality disorders.
'The government appears to have had one enormous success - we are all opposed to this, all the mental health professionals and the mental health alliance.
'The overwhelming thing is I am very fearful. The danger this will do to our patients and their families is enormous.'
The college, clinicians, users and mental health groups so concerned about the bill now have a 12-week consultation period to achieve what they failed to do in four years - change the government's mind.
paul. smith@emap. com See politics, page 19.
Bill sticklers: what the draft proposes
Mental health tribunals Will authorise all compulsory treatment beyond 28 days.This will include compulsory treatment in the community, rather than hospital alone.Decisions will be based on a care plan submitted by patient's clinician.Tribunals will comprise a legally qualified chair and two other members with a mental health background.One will have a clinical background.The new tribunals will replace mental health review tribunals, which acted only when an appeal was made against a decision for compulsory treatment.
Treatability test abandoned Under the 1983 Mental Health Act patients cannot be detained in hospital if their conditions cannot be alleviated or prevented from deteriorating.The draft bill drops this 'treatability test'.
Compulsory treatment Compulsory treatments will take place not just in hospital but in the community - in a clinical setting rather than at home.
Prisoners, for the first time, will be given compulsory treatment in jail.
End to the Mental Health Act Commission A 'healthcare inspectorate'will scrutinise application of the reformed Mental Health Act, offering 'a single point of access on quality issues for service users, providers and the government'.
No right to assessment Organisations like Mind asked for the right to assessment, but this has been refused.The lobbyists'aim was ensure those who ask for help are not turned away.