Reforming the Mental Health Act 1983: ‘Joined Up Compulsion’
by Philip Fennell*
Introduction
This article discusses the two volume White Paper Reforming the Mental Health Act issued by the Government in December 2000. The two volumes are separately titled The New Legal Framework(1) and High Risk Patients(2). The foreword to the White Paper appears above the signatures of the Secretary of State for Health, Alan Milburn, and the Home Secretary, Jack Straw. This is heralded as an example of ‘joined up government’, and indeed one of the themes of the White Paper is the need for closer working between the psychiatric and criminal justice systems. The primary policy goal of the proposals is the management of the risk posed to other people by people with mental disorder, perhaps best exemplified in Volume One of the White Paper which proclaims that ‘Concerns of risk will always take precedence, but care and treatment should otherwise reflect the best interests of the patient.’(3) This is a clear reflection of the fact that the reforms are taking place against the background of a climate of concern about homicides by mentally disordered patients, whether mentally ill, learning disabled, or personality disordered.(4)
The Government has also had to ensure that their proposals comply with the requirements of the Human Rights Act 1998, and state that new legislation will be ‘fully compliant’ with the Human Rights Act.(5) The issue of Convention compliance is an important one. In terms of rights, the traditional concern of mental heath legislation has been to protect patients against arbitrary detention (Article 5) and to respect their right to protection against inhuman and degrading treatment (Article 3) or their right to respect for autonomy (Article 8). However, implicit, and sometimes explicit in the new proposals is a broader concept of rights, going beyond the notion of patients’ liberty rights to embrace the right of the public to expect that the state will in certain circumstances protect them against threats to their right to life under Article 2. The classic case on this is of course Osman v United Kingdom where the European Court of Human Rights held that there would be a breach of Article 2 if authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of identified individual or individuals from the criminal acts of a third party, and failed to take action within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.’(6) Clearly the Government has realised that it enjoys a certain margin of appreciation in balancing the rights of the patient not to be detained arbitrarily against the ‘rights’ of the public to be protected against violent conduct from mentally disordered people, and public protection clearly predominates the proposals.
The Government’s primary concern is that too few rather than too many risky people are subject to compulsory intervention, as is evident from the following passage:
"The 1983 Act … fails to address the challenge posed by a minority of people with mental disorder who pose a significant risk to others as a result of their disorder. It has failed properly to protect the public, patients or staff. Severely mentally ill patients have been allowed to lose contact with services once they have been discharged into the community. Such patients have been able to refuse treatment in the community. And it is the community as well as those patients which has paid a heavy price. We also need to move away from the narrow concept of treatability which applies to certain categories of mental disorder in the 1983 Act. New legislation must be clearly framed so as to allow all those who pose a significant risk of serious harm to others as a result of their mental disorder to be detained in a therapeutic environment where they can be offered care and treatment to manage their behaviour".(7)
The Mental Health Act 1983 is described as ‘outmoded, based on treatment within hospitals, complex, confusing and lacking in explicit statements of its underlying principles.’ There are two primary policy goals behind the White Paper. The first is to introduce more effective compulsory community powers than guardianship or supervised discharge to ensure that patients in the community are subject to an effective undertaking to carry on with medication. The second main goal is to ensure that dangerous severely personality disordered patients can be subject to detention in the mental health system or in some intermediate system of ‘third way’ therapeutic institutions. In addition there are a number of subsidiary aims, one of which is the abolition of the nearest relative and their replacement by a nominated person with much more limited powers in relation to the patient’s care and treatment, shifting the balance away from the rights of families towards the power of the state to intervene compulsorily. Another is the abolition of the review functions of hospital managers, which for the most part will be taken over by a new Mental Health Tribunal. In this article I shall argue that these proposals will bring about a convergence between the psychiatric and criminal justice systems, with adverse consequences for traditional medical values such as confidentiality, and a refocusing away from traditional due process rights of patients towards the rights of the community to be protected from mentally disordered people.
Footnotes:
*Reader in Law, Cardiff Law School
(1) Reforming the Mental Health Act: Part I The New Legal Framework TSO 2000 Cm 5016-l.
(2) Reforming the Mental Health Act: Part II High Risk Patients TSO 2000 Cm 5016-ll.
(3) Cm 5016-l, para. 2.16
(4) Taylor, P.J. and Gunn, J., ‘Homicides by People with Mental Illness: Myth and Reality’ (1999) 174 Br. J.Psychiatry, 9-14
(5) Cm 5016 -ll para. 1.11
(6) (1998) 29 EHRR 245 at 305.
(7) Cm 5016-l, para. 1.15
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