Scotland The Brave

Mental health legislation in England is so heavily politicised. It
is now six years since the parliamentary process began that led to
the present draft Mental Health Bill. Before the 1997 general
election, The Sun said the extension of control and compulsion in
mental health was “the real election issue”. Now in 2005, it yet
again looks as though a general election may be shaping how and
when such legislation is introduced. Given that politics is so
often the enemy of reason and reasonableness, the overshadowing in
this way of mental health issues, with all their complexity and
sensitivity, has to be cause for public concern and regret.

This time round there has been an additional factor at work, the
role of post-devolution politics. Scotland, England and Wales began
with similar legislation. But there has been a significant parting
of the ways. In England the Richardson report preceded new mental
health legislation, yet it was largely sidelined. Since then
service users have felt ignored by government.

The story has been different in Scotland. It set up the Millan
Committee that included service users and carers, as well the usual
professionals. It was given more time to carry out its own
enquiries, holding a wide range of consultation events and seminars
and commissioning new research where needed. Its recommendations
were largely accepted by the Scottish executive and formed the
basis of Scotland’s new Mental Health Act 2003. It also recommended
compulsory treatment in the community, which remains unpopular with
some service user groups.

But Hilary Patrick, honorary fellow at the school of law at
Edinburgh University and a member of the Millan Committee feels the
Scottish experience has generally been a positive one.

“We started from a set of basic principles, which included
non-discrimination, least restrictive environment alternatives and,
particularly important, reciprocity. The safeguards are adequate
because they are part of a whole package of measures and
principles. We have dealt with capacity more quickly with the
Adults with Incapacity Act 2000. The Scottish Mental Health Act has
a concept of impaired decision-making, which is less than legal
incapacity but it does mean that a person with full understanding
of issues involved who refuses treatment should be able to refuse

There also seems to have been contrasting politics at work. If in
England, the populist politics were a response to the tabloid
agenda, in Scotland as Patrick says: “The Scottish parliament got
behind it and forced through changes that the executive did not
want: age-appropriate services for children and young people,
mother and baby units and appeals against detention in conditions
of excessive security.” This points to a broader point. From the
1890 Lunacy Act onwards, the protection of society and the civil
rights of non-service users has been a key theme of mental health
legislation. Despite attempts at liberalisation, mental health
service users continue to be a group whose rights are regularly in
jeopardy. It is now clearer than ever – and recognised by
government – that ethnic minority mental health service users are
at worst risk.

Perhaps one of the most shocking features of mental health
legislation is how used most of us have become to thinking of it as
primarily serving a controlling rather than helping role. How
differently we have come to think of disability legislation. The
recent death of former Conservative MP Sir Nicholas Scott has been
a sharp reminder of this. It was he, as social security minister,
whose efforts to sabotage the disability rights bill strengthened
the campaign supporting it and led to the introduction of
disability discrimination law.

Can we imagine the same popular support for mental health
legislation? No, but why not? A new mindset is needed for mental
health legislation in England – one which doesn’t see it primarily
as serving a role where issues of rights, violence and crime come
into collision. It could be a means of combating the exclusion,
stigma and prejudice that mental health service users routinely
face. It could be the guarantee to entitlements to appropriate
support for people facing the many problems that go with madness
and distress – and help prevent things getting worse for everyone.

Peter Beresford is professor of social policy, Brunel
University, and is involved in the psychiatric system survivor

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