Everyone agrees the government should get rid of the Mental Health Act. But they may be disappointed. Mark Gould reports

Everyone agrees the Mental Health Act must go. Even the Department of Health draft policy document leaked earlier this year promised an overhaul of the outdated 1983 legislation.

Yet when junior health minister Paul Boateng met mental health groups last week, he told Mind director Judi Clements that there was 'no commitment to reviewing the act'.

Ministers are now expected to launch their long-awaited policy document on 3 August. But while it will earmark£500m for mental health, the signs are it will not include a root and-branch overhaul of the act.

Sources believe it may include further tinkering, but a thorough review might not happen this side of the next election. So what has happened?

Several people are complicating matters. One is an autistic man in his 30s known as L.

The others are the paedophile gang who murdered 14-year-old Jason Swift.

A number of inquiries, such as the case last week of the murder of a mentally ill man in a prison cell by another man with psychiatric illness, will have a bearing.

In this case, clarification will be needed of the power to order detention in a secure psychiatric unit rather than a cell.

Research by the Institute of Psychiatry estimates there are at least 28,000 mentally disordered offenders in prison who should be in hospital.

L, who cannot give consent to treatment, has been the catalyst for a review of the legal circumstances surrounding the treatment of around 100,000 patients in trusts and nursing homes across the country.

L was being cared for as a voluntary patient by Bournewood Community and Mental Health trust in Surrey. But when relatives wanted to care for L at home they had to issue court proceedings.

As a result the Court of Appeal ruled that the only way treatment in hospital could be continued was if L was detained under a section of the Mental Health Act to provide the safeguards of a second opinion and supervision by the Mental Health Act Commission.

The Law Lords are due to make a judgement on the Appeal Court ruling this week, which may require trusts to think again.

The Appeal Court ruling led the NHS Executive to issue a directive to hospital and community trusts and mental nursing homes to re-appraise the treatment status of up to 100,000 patients.

A survey by the Mental Health Act Commission predicted that the ruling would mean 40,000 more patients a year being treated on section.

When sectioned patients are discharged into residential care or nursing homes, section 117 of the Mental Health Act requires that this be done free of charge.

MHAC chief executive William Bingley says: 'We have seen an increase in second opinions being sought. Our survey in February asked trusts and mental nursing homes how many people would be detained under the act if they implemented the Bournewood ruling. They said about 22,000.

'We think that is a very conservative figure. It would be more like 40,000 a year. It is a big issue and has huge implications.'

Gregory O'Brien, a consultant psychiatrist at Northgate and Prudhoe trust, Northumberland, says the ruling means it will have to reassess 300400 cases.

'Around a quarter of the patients at our trust are affected. It has been rather difficult. We have re-assessed around 50 people - some have now been sectioned.'

The issue is further complicated by publication of a green paper on advance directives - so-called living wills.

The DoH has commissioned several research projects from legal and healthcare perspectives looking at the way the act operates at present.

Penny Letts, secretary of the Law Society mental health and disability group, does not believe a piecemeal review is realistic.

'When Labour came to power they said they were looking to update the act but I don't think that it would be this side of a general election because they realise that it needs a comprehensive review, ' she says.

'Certainly the Law Society, among others, is saying there needs to be a review of the act to provide a statutory framework for the treatment of patients detained in hospital.

'There is also pressure on ministers to change the law regarding the indefinite detention of sex offenders. At present, unless there is evidence of mental illness, the act cannot be used to detain paedophiles. This has had a bearing on the recent cases involving paedophiles released from prison.'

The National Schizophrenia Fellowship does not want compulsory treatment orders. Instead it wants a range of services for people with a wide range of needs.

Meanwhile, representatives of mental health charity Sane met this week at the start of consultation on revising an act which they say 'no longer addresses the needs of mentally ill people'.

Sane wants a new act to include a definition of mental illness and special provision to treat a patient who refuses to co-operate.

It also believes NHS managers should be professionally qualified people who are drawn from panels appointed by the MHAC.

And it wants the introduction of a positive right to care and treatment enabling a mentally ill person to 'seek and be given hospital or community care and treatment'.

A DoH spokesperson says Mr Boateng has listened to the concerns of interested parties.

'Paul Boateng has toured the country listening to carers, user groups and interested parties. A new strategy will be presented to Parliament before the summer recess.

'It will be a comprehensive change - as we have said before, community care has failed.'