Issue of detention remains a worry after mental health bill is redrawn

Flawed, outdated and out of step. Just a few of the words used
to describe the revised draft mental health bill published last

Hopes among service users and mental health professionals that the
long-awaited document would have changed to reflect the concerns
about the original draft expressed in 2,000 responses to the
government’s consultation are largely unfulfilled.

Among the many criticisms that greeted the first draft mental
health bill in 2002 was that the government was pandering to
unwarranted public fears about people with mental health problems
with its proposals to detain people with untreatable personality

Last week’s document is, says Mind’s chief executive Richard Brook,
“more palatable than the first draft but is still fundamentally

Campaigners appear to have scored a number of small victories,
including the concession on compulsory treatment orders in the
community, which can now only be applied when somebody has
previously been admitted to hospital.

Under proposals outlined in the 2002 draft, somebody sectioned for
the first time could have been given a community treatment order.
This was condemned by the Mental Health Alliance, which argued that
people having their first episode of mental ill-health needed the
safety of a hospital. It is hoped that, under the new draft,
community treatment orders will be used only to prevent the
repeated readmission of people to hospital.

Other changes that are welcomed include the right for people to
refuse electro-convulsive treatment and the dropping of plans to
force treatment on offenders within prisons. This follows the
government’s acknowledgement that treatment would be better
delivered in a therapeutic setting.

But even elements of the bill viewed positively contain problems.
Despite the introduction of specialist independent advocates, there
is disappointment that they will not be allowed to be present
during the examination.

Rowena Daw, head of Mind’s policy and parliamentary unit, says: “It
is precisely at the point of examination that an advocate is
needed. They might be able to stop compulsion. In a crisis, people
need help to prevent the whole lengthy, expensive and
time-consuming process that sectioning involves.”

But the battle to shape a bill that will improve services and care
for people with mental health problems is far from won, with the
Mental Health Alliance – a 60-strong group of organisations –
predicting a huge rise in the number of people who are detained

In the weeks leading up to the publication of the revised draft,
the government strongly hinted that it would be watered down. In
particular, there were signs that proposals to detain people with
untreatable personality disorders who had committed no crime would
be dropped.

Instead, the new draft proposes replacing the old “treatability”
test with one of “clinical appropriateness”. Louis Appleby,
national director for mental health, says that, under this,
clinicians would not have to be certain that treatment will lead to
improvements in symptoms but just “be confident that they are doing
the right thing”.

Unsurprisingly, there are great fears within the mental health
field that such a loosely-defined basis for compulsion could lead
to many more people being detained.

Psychiatrists are unhappy about the onus that such vague guidance
places on them, warning that it could lead to defensive

Daw says: “I know psychiatrists who feel they will be constrained
to section someone, however minimal the treatment might be.”

She adds that definition of a mental disorder remains broad despite
amendments and could still lead to many people being sectioned who
should not be because clinicians are “erring on the side of

“Our view is that you have to frame the law in a way that only
affects the people who deserve to be in it,” says Daw.

Despite government assurances that the bill intends to improve
services for people with mental health problems, the tenor of the
new draft of the bill gives the impression that it is still driven
by a desire to compel people to receive treatment.

Service user Emma Norton, who has been a client of Welsh mental
health organisation Hafal, says: “This new bill does nothing to
guarantee decent services when I need them. It just threatens
compulsion when my condition deteriorates.”

Hafal chair Peter Davey adds: “Our worst fears have been realised.
The government hasn’t listened and instead has continued to create
proposals that will extend compulsion and the bureaucracy that goes
with it. The result will be an unworkable mess which sucks all the
resources out of mainstream services.”

MPs began six months of pre-legislative scrutiny of the bill this
week. The Mental Health Alliance will, among others, be giving
evidence in the hope that it can provide a convincing case for
making fundamental changes.

As it stands, the bill still falls desperately short of what many
hoped it would achieve. 

What has changed?

  • The definition of mental disorder and conditions for

    Draft mental health bill 2002

    Defined mental disorder as “any disability or disorder of the mind
    or brain which results in an impairment or disturbance of the
    mental functioning”.

    Proposed extending compulsion by removing the requirement that a
    person’s condition is serious enough to warrant hospital admission,
    widening the concept of treatment and removing the need to show it
    is likely to alleviate or prevent deterioration in the person’s

    Draft mental health bill 2004

    Defines mental disorder as “impairment of or disturbance in the
    functioning of mind or brain resulting from disability of the mind
    or brain”.

    Says doctors should apply a “clinical appropriateness” test. This
    means that they can detain people if they think that is the right
    thing to do, even if they are not certain that treatment will have
    definite health benefits. In effect, people can be detained even if
    their disorder may be deemed untreatable.

  • Formal powers in the community

    Draft mental health bill 2002

    Proposed resident (hospital) and non-resident (in the community)
    status for people subject to compulsory powers. Said that, if any
    of the three examiners decided a person should not be detained in
    hospital, they would be treated in the community.

    Draft mental health bill 2004

    Proposes that people who have not been admitted to hospital before
    cannot be given a community treatment order (CTO), a move welcomed
    by the Mental Health Alliance. The use of CTOs is intended to
    prevent a “revolving door” scenario where people are repeatedly
    admitted to hospital. However, concerns that CTOs could still be
    used inappropriately and too frequently remain.

  • Compulsion in prison

    Draft mental health bill 2002

    Said offenders could be subject to treatment orders irrespective of
    whether they posed a risk to themselves or others.

    Draft mental health bill 2004

    The policy has been dropped in this draft after campaigners argued
    that prisons were not an appropriate setting for treatment and that
    a therapeutic environment such as a hospital should be used.

  • Electro-convulsive therapy (ECT) for patients aged over

    Draft mental health bill 2002

    Proposed that a person who was subject to compulsory powers could
    be given ECT if it was expressly authorised by the tribunal or
    where it was urgent.

    Draft mental health bill 2004

    Says people over 16 who have the capacity can refuse or consent to
    ECT, except in emergency cases.

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