Published: 19/08/2004, Volume II4, No. 5919 Page 5
The government is to make significant concessions to the draft mental health bill when it goes before a parliamentary committee next month, HSJ can reveal.
Four key changes will severely restrict the conditions under which an individual can be placed under a compulsory community treatment order (CTO) - one of the most controversial elements of the proposed legislation.
Under a CTO, service users could be treated against their will in any setting deemed 'clinically appropriate'.
Sources close to government have told HSJ that the new draft of the bill, which will go to a parliamentary committee for pre-legislative scrutiny next month, will restrict CTOs to service users who have been previously detained for inpatient psychiatric care.
A second key amendment will spell out that service users would have to be judged to be at risk either to themselves or to others to be placed under a CTO.
The new draft will also attempt to sidestep the thorny issue of 'treatability' which has dogged attempts to update the Mental Health Act 1983.
The current draft of the bill has been attacked by critics, and by the psychiatric establishment in particular, for its attempts to include people with dangerous and severe personality disorder within its jurisdiction.
Psychiatrists are divided on whether DSPD is treatable. The new draft of the bill will ignore the issue of treatability, but instead rely on a definition of 'clinical appropriateness'which means the clinician who makes the CTO will be able to decide on the legitimacy of his actions.
Finally, HSJ understands that the government is likely to abandon all ideas of extending CTOs to prison settings.
The changes, which attempt to refocus the bill as a health - rather than primarily public order - measure, attempt to restrict the numbers and groups of people who could fall under its remit.
But the amendments are unlikely to appease the wideranging opposition to the bill, which has been the subject of intense debate since it was first promised in 1998, in the wake of public outrage at the murder of Lin Russell and her six-year-old daughter Megan by Michael Stone. Mr Stone had not been detained under the 1983 act because his DSPD was considered untreatable under the legislation.
The current draft of the mental health bill, published in 2002, followed a review of the 1983 act by Professor Genevra Richardson, which was published in 1999.
The Richardson review said the law should give service users an entitlement to a care assessment, under the principle of reciprocity, that the imposition of treatment on an individual must be backed by obligations on the NHS to provide appropriate care.
People should be assumed to have the capacity to make decisions about their treatment, it said. But these principles were absent from the 2002 draft - a move which enraged many of the bill's opponents.
See Comment, page 15.
Bill bashing: opponents call for fresh start Paul Corry, spokesman for the Mental Health Alliance, an umbrella group of 60 organisations opposed to the 2002 draft, said the changes spelled out to HSJ were 'pretty significant', but stressed that bigger objections to the 2002 draft bill remained.
'The thing that is missing is that in the 21st century if you are going to say to somebody: 'You must do something'surely there must be a reciprocal right for them to have, as a minimum, an assessment of their care and treatment.'
Mr Corry said the alliance hoped the pre-legislative process would be used to test the bill against other laws. In particular this would be to test how far the absence of principles of reciprocity and capacity from the draft prevents it from complying with the mental incapacity bill, published in June, and the 1998 Human Rights Act.
And Mr Corry said the best course of action for the government would be to abandon attempts to amend the current draft, and to publish fresh legislation after a general election.
Royal College of Psychiatrists vice-president Dr Tony Zigmund, agreed.He was pleased the government appeared to be listening to concerns around the bill, but said: 'My understanding is that this doesn't address any of the fundamental difficulties.'
He said the central problems with the 2002 draft were that it was based on risk, not capacity, and that it carried no exclusions (meaning that categories ranging from alcohol dependence to sexual deviancy could be covered by the law).
Dr Zigmund said the insertion of clauses about 'clinical appropriateness' was of no use unless the definition spelt out that a treatment should have 'therapeutic benefit'.
Given that public protection remained the 'bedrock'of current drafts of the bill, Dr Zigmund insisted 'they [the government] have got to start again'.