|No, it's not Cruella DeVil|
It was with some surprise on 7th May 2017 that I heard that Theresa May was announcing that she was “pledging to rip up the 1983 Act and introduce in its place a new law which finally confronts the discrimination and unnecessary detention that takes place too often.”
She went on to say: “On my first day in Downing Street last July, I described shortfalls in mental health services as one of the burning injustices in our country. It is abundantly clear to me that the discriminatory use of a law passed more than three decades ago is a key part of the reason for this.
“So today I am pledging to rip up the 1983 act and introduce in its place a new law which finally confronts the discrimination and unnecessary detention that takes place too often.”
It was stated that "vulnerable people are being subject to detention, including in police cells, unnecessarily", and cited the increase in compulsory detention in hospital as a reason for reform.
It was also announced that there would be new safeguards for people with mental health problems who have capacity to refuse or consent to treatment, so that “they can never be treated against their will”.
Jeremy Hunt added "If you have a child that has severe mental health problems and you find that that child, instead of getting treated by the NHS ends up in a police cell, that is a terrible thing for the child... but it is also very bad for the police as well - we want to stop that."
Intrigued by these announcements, since Theresa May and the Conservative Government in general had not previously given any indication that they had an interest in introducing completely new mental health legislation, I waited to see what further detail there would be in the Conservative Party Manifesto.
Encouragingly, this new Bill was first mentioned on page 4, where a Britain was described “in which burning injustices are tackled and overcome, with the first new Mental Health Bill for thirty years to put parity of esteem at the heart of treatment and end the stigma of mental illness once and for all.”
But it wasn’t then until page 57 that a Mental Health Bill was referred to again. Beginning with a promise to “address the need for better treatments across the whole spectrum of mental health conditions”, the Manifesto goes on to state:
“We will also reform outdated laws to ensure that those with mental illness are treated fairly and employers fulfil their responsibilities effectively.
“The current Mental Health Act does not operate as it should: if you are put on a community treatment order it is very difficult to be discharged; sectioning is too often used to detain rather than treat; families’ information about their loved ones is severely curtailed – parents can be the last to learn that their son or daughter has been sectioned.
“So we will introduce the first new Mental Health Bill for thirty-five years, putting parity of esteem at the heart of treatment.”
And, er, that’s it. There is no more detail to be found.
My first thought was to wonder why on earth they had decided at this point in time to introduce a new Mental Health Act. My second thought was to wonder how both the Prime Minister and the Health Secretary could display such a large amount of ignorance about legislation, some of it the direct responsibility of the Conservative Government, as well as a lack of understanding about the actual content of existing legislation.
Let’s look at the statements they have so far made.
- “We will introduce the first new Mental Health Bill for thirty-five years.”
As long ago as 2002 the then Labour Government were promising to introduce a new Mental Health Bill. A first draft was published in June 2002, which among other things contained a controversial proposal that allowed for the detention of people described as having a “dangerous and severe personality disorder (DSPD)”. It also removed a requirement for such patients that treatment “is likely to alleviate or prevent a deterioration" of a patient's condition, which could lead to people with a “diagnosis” of DSPD being detained indefinitely, without having had to have committed any offences supporting their “dangerousness”.
Not surprisingly, as this would almost definitely have breached the Human Rights Act, this part was dropped from future drafts, and the culmination of years of consultation and drafting eventually produced the Mental Health Act 2007, which basically extensively amended the existing Mental Health Act 1983. As well as making changes to comply with the Human Rights Act and to reflect cultural changes (such as recognising same sex partners and civil partnership), this introduced Community Treatment Orders – and Approved Mental Health Professionals. I guess that, on the basis that “if it ain’t broke, don’t fix it” it was considered that a large part of the 1983 Act was still perfectly workable.
So essentially, the current Mental Health Act is 10 years old – not 35 years old (or even 34 years old, since 2017-1983=34). Or even 30 years old. Theresa May and the Conservatives appear to have forgotten the 2007 Act.
- “A new law which finally confronts the discrimination and unnecessary detention that takes place too often.”
They also appear to have forgotten that the 2007 Act was introduced to make necessary changes to mental health legislation to incorporate changes in case law arising as a result of the necessity to comply with human rights legislation, including discrimination and “unnecessary detention”.
So it seems disingenuous to be suggesting that the 2007 Act does not address this – especially as the Conservative Government were not so long ago keen to abolish the Human Rights Act in any case.
I think AMHPs without exception would consider it insulting to suggest that they habitually detain patients unnecessarily. At the heart of all AMHP practice is the first principle, which is to always seek the least restrictive option.
- "If you have a child that has severe mental health problems and you find that that child, instead of getting treated by the NHS ends up in a police cell, that is a terrible thing for the child.”
Jeremy Hunt appears to be unaware of the existence of the Policing and Crime Act 2017, which amends Sec.135 and Sec.136 of the Mental Health Act. As well as reducing the maximum period of detention under Sec.135 & Sec.136, this Act also introduces a new Sec.136A, which principally states that “a child may not… be removed to, kept at or taken to a place of safety that is a police station”. It would therefore not only be extremely undesirable for a child under the age of 18 to be detained in a police station, but actually illegal.
The only problem with this is that it has not yet entered statute. This section was due to become law this month – but was delayed because of calling a General Election. While I have heard that there will be plans to enact this in July (assuming the Conservatives are returned to power) I can’t help wondering if it will simply be forgotten once the fallout of the General Election has settled. (Although I am certain that Inspector Michael Brown, OBE, would do his best to ensure that the timetable was adhered to.)
- New safeguards for people with mental health problems who have capacity to refuse or consent to treatment, so that “they can never be treated against their will”.
- “Sectioning is too often used to detain rather than treat.”
These two statements appear to contradict each other. Capacity has never been an issue when it comes to making decisions under the MHA, and is never actually explicitly mentioned in the MHA. People may be legally detained, and treated, even if they are deemed to have capacity, but are objecting. I can think of circumstances where a capacitous person may need to receive treatment despite their objection – I am not sure that patients would best be served by making this impossible.
I do not even understand what the second statement means. Detention under the MHA is not just in order to treat; Sec.2 is designed to assess, but no-one would be detained simply to hold them without assessment or treatment in hospital.
- Families’ information about their loved ones is severely curtailed – parents can be the last to learn that their son or daughter has been sectioned.”
I am again somewhat perplexed by the meaning of this statement. If we are talking about children, then parents are an integral part of the assessment process, and I find it inconceivable, and probably illegal, that a parent with parental responsibility would not be deeply involved in decisions relating to their child.
We must also remember that children can be deemed to have competence in regard to making decisions about their treatment, and that it may contravene their right to privacy in certain circumstances to consult with relatives.
But in any case, the Nearest Relative of a child, with certain well-defined exceptions designed to safeguard the rights of the patient, would by law need to be informed if the patient was detained.
I cannot conclude this analysis without pointing out that at least some of the complaints that Theresa May makes about the deficiencies of the current MHA are not due to any deficiency in the existing legislation, but rather due to cutbacks in services – a loss of a significant percentage of inpatient mental health beds over the last 7 years, as well as the loss of thousands of frontline mental health professionals. Coincidentally, all this during the time the the Conservatives have been in power
This has been compounded by the severe cutbacks local authorities have had to make in providing social care. This includes the withdrawal of funding for voluntary organisations that provide services for people with mental health problems, as well as the rationing of social care that has been a consequence of the Care Act.
You can’t cut back on beds and services that can provide alternatives to hospital admission, and still expect the Mental Health Act to continue to function efficiently.
Of course, Theresa May does recognise that any change to the existing mental health law would be subject to a process of consultation with interested parties. This consultation took over 5 years when the 2007 Act was being drafted. So there may be no change to existing law within the lifetime of the next Parliament.
Of course, a lot depends on what happens on 8th June.