Having been badly mauled at consultation stage over the draft mental health bill, the government, after a period of licking its wounds, may be ready to unveil a revised version. Mark Hunter assesses reaction to the anticipated changes.

The draft mental health bill was last seen more than a year ago, scuttling back to the Department of Health under a hail of criticism from mental health professionals and service user groups.

After fielding more than 2,000 responses during its 10-week consultation period, the bill retired hurt. It was left out of last year’s Queen’s Speech and, with parliament otherwise engaged for most of this year, the government appeared to have abandoned its radical attempt to update the Mental Health Act 1983.

Recently, however, hopes have risen that a revised and improved bill may re-emerge in the Queen’s Speech this autumn, although what form the legislation will take remains unclear. Will it, for instance, take on board the criticisms of the 50-plus mental health charities and professional groups that joined together to form the Mental Health Alliance in opposition to the initial document? Or will it simply be a watered down version of the much-maligned draft?

For those hoping for a complete re-write there have been some promising initial signs.

Speaking recently at a meeting for psychiatrists, Louis Appleby, the national director for mental health, admitted that the draft bill was "not as good as it needs to be" and should be revised "to make sure that it carries the confidence of the people who will operate it". And earlier this year, Adrian Sieff, head of mental health legislation at the DoH, hinted that the bill was being refined in response to views expressed during the consultation process.

Meanwhile, behind-the-scenes meetings between DoH officials and the various professional and patient interest groups have suggested that many of the controversial clauses in the draft bill will be dropped.

"We have had several exchanges and meetings with the DoH on aspects of the bill and we think these have been constructive and our views have been taken on board," says a spokesperson for the Mental Health Alliance. "But what is still up in the air is what the timetable is likely to be. Are we going to get something in the autumn in the Queen’s speech or will we have to wait until next year?"

The delay has been frustrating for all concerned, not least because the one thing on which everybody agrees is that new legislation on mental health is desperately overdue.

The draft bill, originally published in June last year, was intended to refocus mental health legislation on the individual patient. It aimed to introduce one broad definition of mental disorder, one set of tight conditions under which compulsory powers could be used and bring the Mental Health Act into line with the European Convention on Human Rights. This would, the government claimed, result in greater protection for the public from dangerous mentally disordered patients and reduce the use of compulsory powers.

But, as a diverse array of critics were quick to point out, the measures contained within the draft document could have completely the opposite effect.

For instance, the draft bill’s definition of mental disorder specifically removes a number of exclusions contained in the 1983 act, including drink and drug dependency. This means that people with drink or drug problems and no other mental health disorder could suddenly find themselves subject to compulsory treatment.

The bill also removes the proviso that patients must be admitted to hospital before compulsory powers are used.

"From the start the DoH’s position was that they wanted to reduce the number of compulsions," says Paul Corry, head of policy at the mental health charity Rethink.

"We pointed out that they had done everything possible to cause an increase."

Rethink is also concerned that the bill’s proposal that "nominated persons" rather than "nearest relatives" should have the right to represent a sectioned patient’s interests could marginalise carers.

Another bone of contention within the draft bill is the proposal to replace the role of the approved social worker with that of approved mental health professional (AMHP) which would be open to workers from other disciplines such as psychologists and mental health nurses.

This has caused fierce debate, even among members of those professions who would become eligible for the new AMHP role.

Nurses attending road shows run by the DoH during the bill’s consultation period pointed out that ASWs were able to provide a non-medical social perspective whereas a nurse might not. And the Royal College of Nursing’s response to the draft highlighted concerns that the AMHP role would replace nurses and social workers with "a policing rather than a therapeutic role".

The British Association of Social Workers, in its response, claimed the AMHP role perpetuated "all the inherent difficulties in the present ASW role" while omitting "those elements of professional judgement and discretion, and the ability to take into account the social and environmental circumstances, which make the ASW a professional social work role".

Indeed, BASW warned that social workers might

not be able to take up the new AMHP role as to do so might breach the General Social Care Council’s code of conduct.

According to Robert McLean, chairperson of the approved social worker interest group, the very prospect of an end to the ASW role is already causing problems.

"There’s already a national shortage of ASWs, which may be part of the reason for broadening out the definition," he says. "But the draft bill has made that worse as we are seeing fewer training courses being offered because of uncertainty about the role."

McLean claims that it is unreasonable to expect professions without a solid grounding in social care to be able to play the ASW’s role in sectioning.

"In some of the discussions I’ve had with the DoH they haven’t fully understood the role of the ASW. There’s a lot more to it than knowing the Act. It’s about organising the whole sectioning process. Here in the North West the average sectioning takes around six hours. I can’t see other professions wanting to do that."

McLean is also concerned that by removing the local authorities which employ ASWs from their obligations in invoking compulsory powers, the bill will result in medical personnel dominating the sectioning process.

"Section 117 which obliges local authorities to provide aftercare will be taken on by the NHS trusts which again risks moving too far towards the medical model of care. I also don’t think that local authorities will be that keen on appointing social workers specifically for mental health unless there is a legal obligation to do so."

According to Rethink’s Paul Corry, the long wait for the draft bill to re-emerge will be worth it if it results in a mental health act that truly respects the rights of people with severe mental disturbance. But this will only happen if the government acts on the criticisms raised during the consultation process.

"Our position is still that the 1983 act needs reforming, but it’s important to get that reform right," says Corry. "If the bill was put to parliament in its original form it would be extremely controversial and would undoubtedly be subject to a lot of debate and delay. What we are keen to do is assist the government to produce a bill that can pass quickly through parliament on the basis of consent."

Contested revisions

Bill’s proposal
To broaden the definition of mental disorder and the criteria for compulsion.

What the critics say
Likely to lead to increased and unwarranted use of compulsion, resulting in increased distress for service users, strain on the mental health and tribunal system, and greater cost. (Mind)

Bill’s proposal
To require those in the process of applying compulsory powers to record their reasons in detail, including reasons for not sectioning the patient.

What the critics say
Mindful of complaints or legal claims against them, they may feel obliged to err on the side of caution and section patients against their better clinical judgement. (Mind)

Bill’s proposal
Introduction of community treatment orders to allow compulsion to take place within the community.

What the critics say
ADSS has concerns whether there will be sufficient staff and services in place to enable these provisions to operate effectively. (ADSS)

Bill’s proposal
To replace the role of approved social workers with approved mental health professionals.

What the critics say
The AMHP role, as defined, is not one which a qualified social worker could properly undertake, since to do so would contravene BASW’s code of ethics and in all probability the GSCC code of conduct. (BASW)

Bill’s proposal
To extend powers of compulsion to the prison service

What the critics say
A prison is not a therapeutic environment for a person with a mental disorder. (LGA)

Bill’s proposal
"Nominated person" to replace nearest relative to look after the patient’s interests

What the critics say
Considerably worsens the position of carers and therefore increases the difficulties for people with mental illness in getting access to appropriate support, care and treatment. (Rethink)

Case Study: In a state of limbo?

Elsie is a 60-year-old woman from Yorkshire with a history of schizophrenia. She rejects her diagnosis and has refused to accept treatment for several years. The only family member she has contact with is her daughter Karen who lives in London. Elsie blames Karen for the fact that she was sectioned 20 years ago.

Recently Elsie has begun quarrelling with her neighbours and there have been complaints to the police about her aggressive behaviour.

One Sunday Karen received a telephone call from the minister at Elsie’s local church. He said she had assaulted members of the congregation believing them to be possessed by evil spirits. He believes she needs urgent help.

Karen contacted Elsie’s GP but he said he could not do anything unless Elsie asked him for help. The community mental health team said they could not intervene unless the GP made a referral. Karen reluctantly concluded that only compulsion could help her mother.

Under section 13 paragraph 4 of the Mental Health Act 1983 Karen is her mother’s nearest relative and can require an approved social worker to assess the situation with a view to detaining Elsie under the MHA. She also has some rights to information and consultation if an application is made.

Whereas under the provisions of the draft bill the minister could ask for Elsie to be assessed but it would be up to the authorities to decide whether or not the request is "reasonable". An approved mental health professional could ask Elsie to nominate someone to represent her, but as she does not regard herself as ill, she might not do so. There is no carer who meets the definition in the draft bill. Karen is the only relative willing to take on the responsibility, and nobody else has her knowledge of Elsie’s background and history. But Elsie would clearly object to Karen becoming the nominated person. This would leave Elsie with nobody to represent her interests.