New mental health legislation
Authors: Rajan Darjee, John Crichton
Journal: BMJ (2004)

Reform of mental health legislation in England and Wales has caused widespread concern.1,2 Initial recommendations, from an expert committee for progressive and ethical reform, mutated into an initial draft bill uniting all interested organisations in opposition.3 Despite suggestions that the bill would be shelved,4 a revised draft bill, apparently addressing the concerns expressed, has been published. Meanwhile Scotland has new legislation—the Mental Health (Care and Treatment) (Scotland) Act 2003. Several organisations have pointed towards Scottish reform as an example of how things should be approached south of the border.3

The Mental Health (Scotland) Act 1984 is similar to the Mental Health Act 1983, both tracing origins to the Percy Report of 1957.5 In Scotland, in parallel with review in England and Wales, well received recommendations from an expert committee led to a positive response from government.6-8 The new act received royal assent in April 2003 and starts in April 2005. Major differences in Scotland are that the act adheres to recommendations from the expert committee and the process has not been hijacked by a government department more concerned with locking up dangerous offenders than with the care of people with mental health problems. Another committee considered offenders who pose a high risk to others;9,10 its proposals were appropriately placed within the criminal justice system, resulting in specific criminal legislation.

The ethical basis for mental health legislation has developed from paternalism, emphasising dangerousness and humane care, towards autonomy, emphasising individual rights and capacity. Autonomy features prominently in the new act (box on bmj.com). It starts with guiding principles with no reference to risk, dangerousness, or public safety among these. The categories of mental disorder are modernised and exclusions are retained. To compel treatment, patients must be treatable, some risk to self or others must exist, and their ability to make decisions about treatment should be clinically significantly impaired because of their mental disorder. The last point introduces incapacity into compulsion criteria, although the term is absent because of its central place in specific incapacity legislation.11

Emergency and short term detentions in hospital remain, but longer term compulsory treatment orders will be available in hospital or in the community. Community orders will allow compulsory medication, with non-compliance leading to potential hospital detention. The introduction of the Mental Health Tribunal for Scotland marks a major change in the legal review process. Extra safeguards and supports should be provided by advocacy services, the recognition of advance statements, an extended role for the Mental Welfare Commission for Scotland, and the introduction of named people.

A broad range of orders will remain available for offenders with mental disorders, but the incapacity criterion will not apply—an understandable, but perhaps ill thought through, discriminatory measure. Procedures for the most worrying offender patients are included but contained within sections relating to restriction orders and not pervading the act. Public safety will continue to trump all other issues in decisions on discharging restricted patients and comprehensive assessment in hospital will be necessary before such disposals are made.12

In a previous editorial Birmingham summarised the main proposals in the initial draft bill for England and Wales.2 Superficially this draft bill and the Scottish act look similar, but important differences make most concerns about that bill inapplicable: to whom the act applies is strictly defined, with exclusion criteria; no over-emphasis on risk to others; inclusion of capacity; inclusion of ethically sound principles; no loss of discretion for services in applying procedures; comprehensive legislation on incapacity already in place; no compulsory treatment in prison; and genuinely responsive consultation by government. Clinicians and other stakeholders have been closely involved in the review and implementation processes in Scotland. The new draft bill for England and Wales only really addresses the concern about prison treatment; the other concerns remain valid, marking clear and persisting differences between legislative proposals in the two jurisdictions.

In Scotland concern remains about resources, bureaucracy, implementation, and training. Currently patients rarely contest detention, but new tribunal hearings will occur frequently, requiring personnel and infrastructure, and potentially disrupting clinical care. Tribunals will also consider appeals against being held in excessive security. This measure must start in May 2006 despite the likelihood that beds will be insufficient to cater for patients who no longer require care in a high security hospital.

The long term impact of complex legislation that allows much room for discretion is difficult to predict. The act on paper may not match the act in practice, so day to day reality may be different from the intention behind the policy. Funding for research on the operation of the new act is promised. Scotland will have ethically sound modern legislation, with principles supported by most stakeholders. In the United States, cycles of reform show that impact is less dramatic than predicted by optimists or pessimists.13 New legislation reflects, rather than changes, social, clinical, or political aspirations. In Scotland, unlike England and Wales, considerable harmony has existed between these. However, new legislation does not in itself provide improvements in clinical care or resources.