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| 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“We will also reform outdated laws to ensure that those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.