Mental health legislation has a long and tricky history. That’s because it is always about striking a difficult balance between two mutually opposing principles. The first is that people should be as free as possible to make their own decisions, even if they are bad ones. It’s all about autonomy. The second is that any civilised society has a duty to protect the most vulnerable: children, older people and also those with the most severe mental illnesses.
Where to strike this balance – between protecting both the ill person and public, but also allowing people to make their own choices about how they live their lives – is always a compromise. Where we draw these lines is also always changing, much influenced by memories of terrible tragedies on the one hand and increasing tolerance and decreasing stigma surrounding mental illness on the other. So, it is right and proper that legislation is reviewed every few decades.
It is now three years since the last review – the Independent Review of the Mental Health Act 1983, which one of us (Simon Wessely) chaired, and the other (Alex Ruck Keene) provided legal expertise. The title we chose for the review’s report – Modernising the Mental Health Act: Increasing Choice, Reducing Compulsion – already signalled a change from the previous major revision of the legislation, where following a series of terrible tragedies, coercion was more in the minds of the public and politicians than is the case now. Indeed, our mandate included reducing the number of admissions under the act, especially those of African and Caribbean heritage, who we knew were up to ten times more likely to be served a community treatment order and four times more likely to be detained under the act. Our recommendations followed extensive work with multiple stakeholders: health professionals, the judiciary, police, social workers and many more, but also service users and their families.
Despite our best intentions to keep our recommendations to a minimum, we still ended up with over 150. It is a complex subject. But one simpler way to understand our proposals is to set out our vision for what things should look like in ten years’ time, assuming that all these recommendations were to be implemented.
We would have a system in which there were more alternatives to detention (including alternatives proposed and developed with service users, and those for people with learning disabilities and autism, for whom entry into hospital, whether formal or informal, almost invariably reflects failure in another part of the system even more starkly than for others).
If people were admitted to hospital, admission would be truly informal wherever possible. Where it was not informal – the default would be that treatment is on the person’s own terms – any other course of action being more difficult but not impossible for the relevant professionals to take, and subject to an effective right of challenges.
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Finally, stays in hospital would be short, targeted, and purposive. Any other course of action would be difficult to justify. Where the justification was a system failure, such as a lack of local alternatives to detention, a tribunal should be able to take appropriate action to unlock it.
Our report was a review, not a piece of legislation. It made recommendations, not laws. And now, three years on, how close is the new draft Mental Health Bill that the government published just last week (27 June 2022) to our original goals? We were aware that previous bills have often borne little relationship to the recommendations of previous reviews – such is the nature of politics. Plus, inevitably, a bill – hopefully unlike our report – is never an easy read, and the reader will soon lose their way in the thickets of sub-clauses.
Overall, we can say on behalf of the very large team who came together to write the report, aided ably by remarkably talented and committed civil servants, that the underlying principles that guided our work – above all, choice and autonomy – are indeed well reflected in the proposed bill.
The amendments propose tightening the criteria for detention, a greater emphasis on stays in hospital being purposive, and a far greater statutory ability for patients to have a say as to what treatments they receive. All of these would go a significant way towards achieving the goals that we set ourselves. But, and it is a big but, legislation alone cannot change very much, no matter how well intentioned and drafted – providing adequate alternatives to coercion requires equally adequate resourcing.
Inevitably, the draft bill does not go as far as we would have liked in all respects. For instance, it does not give what we consider sufficient legal clout to nudge professionals to better respect the wishes of their patients. The bill will make inroads into the problems associated with community treatment orders; we would have liked it to go further, although we agree that they should still be retained and not scrapped, as some wish.
And in one respect, the draft bill goes significantly beyond any recommendations that we made, proposing (in effect) to exclude learning disability and autism from the scope of the act, save for short-term admission. While we totally support the reasons behind this – to stop people with these conditions being admitted to hospitals that are unsuited to meet their needs – we were concerned that exclusion from the scope of the act might not solve, but instead simply shift, the problem. This is, however, what “pre-legislative scrutiny” is designed for – when parliament takes a fresh look at areas where there is not yet a clear consensus.
What we must not lose sight of is just how far we have come in recent decades. Firstly, there is broad agreement across the spectrum – whether it be political, professional, media, the charitable sector, service user groups, or stakeholders representing ethnic minority communities. All broadly welcomed the report, had similar views as to the scope of the problem, and thus the nature of the approach required to address it. Secondly, the “fear” agenda no longer dominates the discussion as it did when the Mental Health Act 1983 was last considered by parliament in the late 2000s. It is a much better space within which to be contemplating legislative reform, and we are confident that parliament will rise to the challenge.