In 1998, then health secretary Frank Dobson announced the government’s intention to create new legislation to close ‘loopholes’ in the 1983 Mental Health Act. The announcement followed the conviction of personality-disordered Michael Stone in 1998 for the brutal murders of Lin and Megan Russell.

The government said current legislation, which is built on laws passed in the 1950s, allowed people with dangerous and severe personality disorders to avoid treatment against their will, on the grounds that their disorders were not assessed to be a psychiatric illness that would respond to treatment.

It quickly emerged that the government was also planning to introduce proposals that could see people treated against their will in the community, rather than under a section in hospital.

The direction of government sparked opposition from a wide range of groups, including service users, charities and professions, who came together in an umbrella grouping called Mental Health Alliance.

Many were concerned that the government was placing too much emphasis on protecting the public rather than improving the entitlement to good services for people with mental health problems. There were also concerns that the number of people needed to staff some of the new mechanisms outlined in the proposed legislation, such as an extended tribunal system, would not be achievable.

In 2002 the government published a draft bill, which was universally criticised. A further draft was published in September 2004 and was subject to scrutiny by a joint parliamentary committee, which described it as fundamentally flawed.

In March 2006 the Department of Health announced that it was dropping the draft bill and would instead make amendments to the 1983 act.

Ministers pressed ahead with the most controversial aspects of the draft mental health bill in the shorter, streamlined legislation.This means the new laws will introduce procedures such as community treatment orders and remove the treatability clause of the 1983 act that often prevents clinicians being able to treat people with personality disorder as these are not deemed treatable. This will be replaced by the need to have appropriate treatment available.

What has been welcomed is that patients will be able to displace their closest relative and name someone else in this role. They will also be able to refuse electro-convulsive shock therapy treatment.

Other changes that will go ahead include the role of approved social worker being replaced by approved mental health professional, which will be open to other professions as well as social workers.

Patients who have not appealed will have their case automatically reviewed after six months, the same as people who challenge their detention.

The amended legislation is set to become law in the next two to three years.

Background

In 1998, the government said current mental health legislation, enshrined in the 1983 Mental Health Act, needed to be updated, closing ‘loopholes’ that meant individuals assessed as having an untreatable personality disorder rather than a mental illness could not be held for their or the public’s safety.

The government said legislation also needed to be updated to take account of changing policy and practice regarding the treatment of people with mental health problems, in particular an increasing role for treatment in the community.

Health ministers promised that reform of legislation would be backed by£700m increased investment in mental health services over three years, a raft of targets to increase treatment in the community, and early intervention in mental health crises. These were summarised in the 1998 policy document, Modernising Mental Health Services.

Genevra Richardson, professor of public law at Queen Mary andWestfieldCollege,UniversityofLondon,was asked to chair a review of the legislation in 1998 and reported to the government the following year.

Her report placed an emphasis on the rights of people with mental health problems. It also emphasised the importance of independent decision-making.

The government responded by publishing a green paper in 1999, a white paper in 2000 and a draft Mental Health Bill in 2002, which was widely criticised as having lost the ‘rights’ element of Professor Richardson’s proposals and for stigmatising mental illness.

The 2002 draft bill introduced compulsory detention for people with severe personality disorder, even if they could not be treated, and compulsory treatment in the community that could be applied to anyone. There were fears that compulsory detention for severe personality disorder would divert staff and other resources from the majority of mental health services. The bill also contained a broad definition of who could warrant compulsory detention and treatment, including community treatment orders being applied in prisons.This was criticised for stigmatising mental illness.

The government responded to the criticism by consulting on the bill and publishing a further draft bill in 2004. This introduced the ability to detain someone with a severe personality disorder so long as there was ‘clinically appropriate’ care available for other conditions they might be suffering from.

Italso said three separate mental health professionals, including two psychiatrists, would have to agree that compulsorily detaining someone in the community was the right course of action. An independent tribunal to review detention after 28 days was also introduced, as was an independent advocacy service for patients.

However, concerns that a new, broad definition of mental disorder meant services could treat people against their will when they were suffering from drug or alcohol misuse or having learning difficulties remained. Campaigners remained concerned that too much emphasis was placed on public protection rather than the rights of people with mental health problems.

Some parts of the 2004 bill were welcomed. Any patient would be allowed to refuse electro-convulsive therapy. Patients in inpatient settings would have their detention automatically reviewed by a tribunal after 28 days. There were also plans to provide an independent advocacy service for detained patients.

However, there were concerns over the number of people predicted by the government who would be needed to staff tribunals and advocacy services. The government said hundreds of extra psychiatrists would be needed to implement the 2004 bill. Campaigners said this was unrealistic as clinician vacancy rates were already high.

In 2004 the controversy around the draft bill was such that the government agreed for it to be scrutinised by a pre-legislative scrutiny committee. The committee concluded that the bill was fundamentally flawed and needed significant amendments. These included tightening definitions of mental disorder; taking service users’ ability to make treatment decisions into account and putting ‘on the face of the bill’ a declared intention that it aimed to improve services for patients. It also recommended that separate legislation be drawn up to deal with severe personality disorders.

The government response rejected much of what the report recommended, stating that the legislation was not about service provision but about legal processes for bringing people under compulsion.

However, in March 2006 the government announced that it was dropping the current draft bill in favour of amending the current legislation.

The new legislation received Royal Assent on 19 July 2007, becoming the Mental Health Act 2007. It is not expected to be followed in practice for another two years until at least the accompanying code of practice has been published.

What will change?

The changes the act will introduce include:

  • requirement that people under 18 must be treated in age-appropriate settings (not in 2004 bill);

  • supervised treatment orders, previously known as community orders, will oblige people to have treatment outside of hospital. For the first time, the amended act will state that they can only be applied to people who have previously been detained in hospital under a section (not in 2004 bill);

  • the removal of the treatability clause of the 1983 act, replaced by the need to have appropriate medical treatment available (not in 2004 bill);

  • extending rights of victims to get information about mentally disordered offenders;

  • new safeguards in relation to the use of electro-convulsive therapy;

  • patients will be able to displace their closest relative and name someone else in this role (not in 2004 bill);

  • patients will be able refuse electro-convulsive shock therapy treatment;

  • detained patients who have not appealed against their detention will have their case automatically reviewed after six months;

  • role of approved social worker replaced by approved mental health professional;

  • learning difficulties and misuse of drugs or alcohol will not be reasons for detention (not in 2004 bill);

  • statutory advocacy services for all those in detention (not in 2004 bill).

The government has produced a series of briefing documents on key policy areas in the new proposed legislation and a questionnaire regarding the race impact assessment on it.

Timeline

  • October 1998: expert committee chaired by Professor Genevra Richardson on the Mental Health Act appointed

  • July 1999: Richardson report published

  • November 1999: green paper on the reform of the Mental Health Act 1983 published

  • December 2000: white paper on the reform of the Mental Health Act published

  • June 2002: draft Mental Health Bill 2002 and consultation document published

  • September 2004: publication of revised draft Mental Health Bill in response to the 2002 consultation exercise on the original draft bill

  • January 2005: An advisory group to advise the government on how to implement the draft bill is appointed.

Glossary

Community treatment orders

Also known as supervised treatment orders, these would compel someone to receive treatment when in the community. The government has said they are intended to stop people from becoming frequently admitted 'revolving door' patients and that they will only be able to apply to people who have previously been detained in hospital.

Compulsion

Also known as detention, compulsory admission, or a section, when someone is admitted to and detained in a hospital because of mental illness under the current Mental Health Act.

Dangerous and severe personality disorder

Otherwise known as DSPD, dangerous and severe personality disorder has not been clearly defined but is thought to be a severe version of anti-social personality disorder, the term now used for what was once called psychopathology. Current mental health legislation still refers to psychopathology as a type of mental disorder.

Treatability clause

This exists in current mental health legislation, meaning that only people with a disorder that can be treated could be treated in a mental health setting. This prevented services from working with people diagnosed as having a personality disorder, as these are not treatable.

Tribunal

Any patient who feels they have been detained wrongly under mental health legislation can appeal to a tribunal, which determines whether they have been held under justifiable grounds. Currently, patients have the right to appeal after 14 days and get one automatically after six months. Plans to grant a tribunal to anyone detained for 28 days were put on hold.

Mental disorder

Otherwise known as mental illness, this applies to one or more functions of the mind being disordered, leading to the person or others suffering as a result. The new legislation will tighten up the definition of mental disorder and remove four existing categories of disorder. It has been stressed that the new metal health legislation will not allow misuse of drugs or alcohol or learning difficulties to be classified in this way.

Personality disorder

A disorder, rather than a condition, personality disorders are not mental illnesses and under current psychiatric definitions are not amenable to treatment. However, treatments and services to help people cope better with the disorders are available.

Useful documents

Modernising Mental Health Services, Department of Health, 1998

http://www.dh.gov.uk/PublicationsAndStatistics/Publications/PublicationsPolicyAndGuidance/PublicationsPolicyAndGuidanceArticle/fs/en?CONTENT_ID=4003105&chk=psls3f

Review of the Mental Health Act 1983, Professor Genevra Richardson et al, 1999

http://www.dh.gov.uk/assetRoot/04/06/26/14/04062614.pdf

(First) draft Mental Health Bill, Department of Health, 2002

http://www.dh.gov.uk/assetRoot/04/07/47/22/04074722.pdf

Draft Mental Health Bill, Department of Health, 2004

http://www.dh.gov.uk/assetRoot/04/08/89/14/04088914.pdf

Improving Mental Health Law: towards a new Mental Health Act, Department of Health, 2004

www.dh.gov.uk/assetRoot/04/08/89/17/04088917.pdf

Report by the Commons pre-legislative scrutiny committee, 2005

http://www.publications.parliament.uk/pa/jt200405/jtselect/jtment/79/79.pdf

Government response to the joint committee report on the draft Mental Health Bill, Department of Health, 2005

http://www.dh.gov.uk/assetRoot/04/11/52/68/04115268.pdf

The Mental Health Bill: Plans to amend the Mental Health Act 1983 - Briefing sheets on key policy areas where changes are proposed, Department of Health, 2006

Supervised community treatment

http://www.dh.gov.uk/assetRoot/04/13/42/31/04134231.pdf

Professional roles

http://www.dh.gov.uk/assetRoot/04/13/42/34/04134234.pdf

Nearest relative

http://www.dh.gov.uk/assetRoot/04/13/42/30/04134230.pdf

Definition of mental disorder

http://www.dh.gov.uk/assetRoot/04/13/42/32/04134232.pdf

Criteria for detention

http://www.dh.gov.uk/assetRoot/04/13/42/33/04134233.pdf

Race equality impact assessment on plans to amend the Mental Health Act, Department of Health, 2006

Summary of proposed amendments

http://www.dh.gov.uk/assetRoot/04/13/47/92/04134792.pdf

Useful websites

www.dh.gov.uk/PolicyAndGuidance/HealthAndSocialCareTopics/MentalHealth/fs/en

http://mhact.csip.org.uk/news#update