THE HSJ DEBATE

Published: 15/09/2005, Volume II5, No. 5973 Page 18 19

The government's response to the Commons' joint scrutiny committee report on the draft mental health bill has renewed the debate on compulsion. But have the issues been distorted?

Michael Howlett and Angela Greatley can't agree

FOR MICHAEL HOWLETT

AGAINST ANGELA GREATLEY

Michael Howlett: In its response to the House of Commons joint scrutiny committee's recent report on the draft mental health bill, the government made it clear that mental health legislation has nothing to do with improving mental health services. Legislation sets out the conditions under which compulsory powers may be used to assess and treat those considered to be at risk of harming themselves or others.

There is compelling evidence that radical mental health legislation has little impact on service quality. US health lawyer Paul Appelbaum studied changes in mental health law throughout the US and found the impact on services on the ground was negligible.

A number of critics of proposals for reform in the UK seem to believe that mental health law should concentrate on access to services and the right to treatment. And that there should be very limited use of compulsion, and only where the individual has lost the capacity to make their own decisions.

This latter argument fails to recognise the many situations that arise when an individual receiving treatment disengages from services.

Under current legislation nothing can be done to protect the individual from harming themselves or others until they become seriously ill. The argument in favour of this has been described by a US academic as 'rotting with your rights on', and not even John Stuart Mill went so far in his defence of individual liberties and human rights.

Rotting with your rights on has been a core value in much of the debate on the draft mental health bill. In the case of people with a personality disorder, however, it is a case of no rights at all. On the erroneous assumption that personality disorder cannot be treated, sufferers have been turned away from NHS services.

Given the way that psychiatry has developed along the medical route, people with these disorders cannot be treated by NHS psychiatrists.

That is why the government is actively encouraging other professions, notably psychology, to take the lead in developing appropriate services. This follows the publication, by the NHS, of Personality Disorder: no longer a diagnosis of exclusion. This exclusion has led to a prevalence of mental disorder in the prison population that the British Medical Association has described as a national disgrace, and yet the most vocal critics of the government offer no alternative.

Angela Greatley: In the election runin, mental health legislation and the role of services in promoting public safety again came to the forefront of the public's consciousness. Two high-profile court cases ended: one, the trial of John Barrett for killing a man in Richmond Park in London;the second was that of Peter Bryan, who committed three murders. Both got massive media attention, and led to calls for tighter legal restrictions on people with severe mental health problems and a re-evaluation of care in the community.

The joint scrutiny committee report into the second draft of the mental health bill was also published at this time. This amounted to a wholesale rejection of the government proposals to reform the Mental Health Act.

The committee said that by widening the criteria by which someone can be compelled to undergo treatment, the draft bill would cause too many people to be brought under legal powers, reduce professional flexibility and pose a serious risk to human rights.

Such contradictory pressures make the future of the act a source of great controversy: especially given the government's subsequent rejection of much of what the committee recommended. On the one hand there is a clamour from some quarters for greater powers to prevent violent incidents, on the other a sense that yet more legal powers could overwhelm the system.

To understand how this might be resolved, we need to examine what is known about the current system.

What we know is that, for the most part, care in the community has been a real success. Over the past 20 years scores of long-stay hospitals have closed and a range of community services has arrived in their place, offering well over 500,000 people a chance to live outside hospital walls.

On the few, tragic occasions when the system has failed, the evidence suggests that for the most part, that the law was not too soft but was misinterpreted, or that a service simply did not work properly. More often than not, tragedies follow cases of human error, poor communication or a failure to listen to service users or their families.

What is needed, then, is not a heavy-handed approach to increasing compulsory powers and reducing flexibility. That approach will simply be unworkable for services, setting back their work to involve and empower clients and users and potentially scaring off more people from seeking help early on when they develop mental health problems.

Instead, we need a Mental Health Act that brings better safeguards for, and greater responsiveness to, service users and their families; alongside sustained investment in staff (numbers and skills) and facilities.

Michael Howlett: The arguments put forward against the bill by the Sainsbury Centre for Mental Health fail to address the crucial issue concerning people with severe and enduring personality disorders. The broadened definition of mental disorder in the bill was accepted by the joint scrutiny committee as it will allow a previously disregarded and rejected group of would-be users to get access to assessment and treatment.

Does the Sainsbury Centre advocate continuing use of prison for all those with complex mental disorders who do not fit in elsewhere? If not, what alternatives can it offer to address this scandalous state of affairs?

Although it is incorrect to say the joint committee's report was a 'wholesale rejection' of the draft mental health bill, its criticisms were not unexpected. If you take evidence from the Mental Health Alliance, and then take evidence from individual organisations within the alliance, you are bound to get the same results several times over.

It was hardly an objective exercise as little or no evidence was taken from forensic clinicians, the probation services, the police, victims and carers of mentally disordered offenders or members of the public. The emphasis on users of general NHS services and organisations representing them has skewed reality.

So you get statements declaring community care a great success for the past 20 years because hospitals have closed, and there have only been a 'few, tragic occasions when the system has failed.' The evidence suggests otherwise.

Finally, the Sainsbury Centre's submission still relies on legislation to improve services, when its real purpose is to describe when and how people can be treated compulsorily. This has been the case for decades. As the culture of services changes, so must the legislation which underpins it.

Angela Greatley: Mental health legislation, as Michael Howlett states, sets out the conditions in which the state can take away a person's civil liberties in the interests of their own safety or that of others.

The debate about a new act has to focus on how broad those powers should be, when they should be used, and how.

Reform of the act does not happen often: the current one has been in place since 1983. The next is likely to last for just as long and be used over a million times. That is why it is imperative we have a bill that is clearly delineated, evidencebased and seeks to support both human rights and public safety.

Mental health legislation is primarily a health measure, not a form of criminal justice. That mental health services have been overly medicalised for too long is something many would agree with.

Services have often been quick to medicate, but slow to offer patients talking therapies and the chance to get their lives back. Yet there is a growing understanding of what can be achieved by health and social services for people with mental health problems, including personality disorders.

Public safety cannot be achieved by letting people rot away under compulsory treatment any more than by denying them the care they need. Detaining people 'for their own good' without proper safeguards often leads to institutionalisation and increased risk of abuse. Overused, without adequate resources, it can suck the life-blood out of mental health services. .

Michael Howlett is director of the Zito Trust, which he set up with Jayne Zito in 1994. He was formerly a senior manager with the Special Hospitals Service Authority, having previously worked with adolescents and young offenders at Peper Harow therapeutic community.

Angela Greatley is chief executive of the Sainsbury Centre for Mental Health, where she was director of policy between 2002 and 2004. She was previously fellow in mental health at the King's Fund, from 1997, where she managed a major mental health inquiry and co-ordinated pilot outreach teams for people with serious mental health problems. She also led a project aimed at improving joint-working between primary care and mental health services. Ms Greatley also led the community care programme at the North East Thames regional health authority before becoming director of commissioning and deputy chief executive in a London health authority.