When it comes to mental health law, England and Scotland are truly different countries. While the furore continues around the draft Mental Health Bill for England and Wales, the implementation of the Scottish act, while delayed for six months, is at least within sight.

 

Right from the outset the Scottish Mental Health (Care and Treatment) (Scotland) Act 2003 has had an easier ride than its Westminster counterpart. While both the first and second drafts for England and Wales were criticised heavily, the Scottish bill enjoyed a warmer reception. For the most part, this has been attributed to the Scottish legislation simply being better.

 

Campaigners south of the border have been open about their preference for the Scottish act and are keen for elements of it to be adopted in England and Wales. Why is this the case and where exactly have the civil servants in Whitehall gone wrong?

 

 

DEFINITION OF MENTAL DISORDER

 

Scotland: “Mental disorder” means any mental illness, personality disorder or learning difficulty. But the act makes it clear that a person is not mentally disordered solely on the grounds of:   

• Their sexual orientation or deviance.
•   Transsexualism.
•   Transvestism.
•   Dependence on or use of drugs or alcohol.
•   Behaviour that causes or is likely to cause harassment, alarm or distress to another person.
•   The fact that they are “Acting as no prudent person would act”.

 

England and Wales: Much of the controversy surrounding the bill is down to the broad definition of mental disorder. It is defined in the bill as “an impairment of or a disturbance in the functioning of the mind or brain resulting from any disability or disorder of the mind or brain”. The fear is that such a wide definition will result in many more people being made subject to compulsory powers.

 

Unlike Scotland, the draft bill does not list the circumstances in which an individual would be excluded from this definition. According to the Royal College of Psychiatrists, there is no other mental health act without exclusions in any other common law jurisdiction. Indeed, the Mental Health Act 1983 states that people cannot come under the act solely as a result of “promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs”.

 

The government has been urged to reconsider its stance on exclusions and to add certain clauses preventing the inclusion of people on the basis of their cultural, political or religious beliefs, promiscuity, or misuse of alcohol or drugs.

 

 

PRINCIPLES IN THE LEGISLATION

 

Scotland: Part one of the Scottish act lists a set of principles that those involved in implementing the act must take into account. These make it clear that the patient’s present and past wishes and feelings must be considered as well as the views of the patient’s carer, guardian or person they have chosen to support them and to protect their interests.

 

Other principles cover the importance of patient participation, the provision of appropriate services, and the needs of the patient’s carer. The principles also set out how the functions of the act should be carried out, stipulating that any restriction on a patient’s freedom should be kept to a minimum.

 

England and Wales: In the draft bill there are principles referring to the least restrictive environment, patient involvement in decision-making, and fair and open decision processes. But it is felt that these principles do not go far enough.

 

The Mental Health Alliance, a coalition of more than 60 organisations, which includes service users, health and social care practitioners, and lawyers, would like a set of general principles on the face of the bill. It believes that, as with the Scottish act, these principles “would give confidence to service users and act as guidance to practitioners and tribunals in applying and interpreting the act”.

 

The alliance has developed 10 principles that it feels should be in place. These cover respect for a patient’s autonomy, the use of compulsory powers as a last resort and a holistic approach to treatment that includes social care needs as well as medical help.

 

CONDITIONS REQUIRED FOR COMPULSORY TREATMENT

 

1) Capacity

   

Scotland: Under the Scottish act, compulsion is only permitted if a person’s ability to make a decision about medical treatment has been impaired by their mental disorder. Consequently, people who retain full decision-making capacity cannot be made subject to the act.

 

England and Wales: Impaired decision-making is not a required condition for treatment to be enforced. Consequently, for example, someone who has capacity and chooses not to take their medication could be compelled under the act.

 

2) Treatability

   

Scotland: In order for a patient to be made subject to compulsory powers, medical treatment has to be likely to be beneficial. The act states that practitioners must be satisfied that medical treatment would either be likely to prevent the mental disorder from worsening or that it would alleviate any of the symptoms or effects of the disorder.

 

England and Wales: There is no such treatability clause in the draft bill stating that treatment must be beneficial to the patient. Instead, it states that medical treatment can be provided to protect a patient from suicide, serious self-harm, serious neglect of their health or safety, or for other people’s safety.

 

There is widespread concern  about the absence of a treatability clause in the draft bill. Many people feel that patients should not be forced to accept treatment if they cannot benefit from it. Currently, under the Mental Health Act 1983, treatment must be likely to “alleviate or prevent a deterioration” of an individual’s condition. Psychiatrists are of the view that compulsory treatment should be of “therapeutic benefit” to a patient. The Royal College of Psychiatrists says that this means that medical treatment is likely to bring about an improvement in symptoms or prevent deterioration in a person’s mental or physical health.

 

The absence of a treatability clause has a particular impact on people with personality disorders. Under the 1983 act individuals with an untreatable personality disorder could not be detained in hospital, and this remains the case in Scotland. But under the proposals in the draft bill, there is a danger that people with personality disorders could find themselves on a treatment order - and so possibly detained in hospital - for the rest of their lives, without any improvement in their condition.

 

3) Public safety

 

Scotland: An individual with a mental disorder can be subject to compulsory treatment if they pose “a significant risk” to the safety of another person.

 

England and Wales: The proposed threshold is lower. The bill states that an individual with a mental disorder could be compelled “for the protection of other persons” - there does not need to be a significant risk to others. “For the protection of others” is a broad category, and certain categories of people such as those with learning difficulties who show aggression could find themselves included, even if they represent a minimal risk to others.

 

4) Right to assessment

 

Scotland: There is a duty on local authorities and health boards to respond to written requests for an assessment of an individual’s needs. The local authority or health board must respond to the request within 14 days saying whether or not they intend to carry out the assessment. If they decide not to they must give reasons for this. Written requests can come from the person with the mental disorder, their primary carer or their named person.

 

England and Wales: There is no duty on local authorities to provide assessments of needs. Many people feel that this should be included in legislation as about a third of people who seek help for a mental health problem are turned away.

 

AREAS TO INCORPORATE

 

There are other elements of the Scottish act that campaigners would like to see incorporated into the bill for England and Wales.

 

Advocacy: In Scotland all people with a mental disorder have the right to access independent advocacy services. There is a duty on local authorities and health boards to ensure availability.

 

Advance statements: Patients in Scotland have the right to make a written statement setting out how they would like to be treated and how they would not like to be treated should they become unwell in the future. Those involved in implementing the act must take advance statements into account.

 

Continuation of care: The Scottish act places a duty on councils to provide care and support services to people who have had a mental disorder once they have been discharged.

 

Under-18s: In Scotland, health boards must provide appropriate services and accommodation to meet the needs of children and young people. The Scottish Mental Welfare Commission must ensure that child specialists are included on its list of suitably qualified practitioners.

 

AREA OF CONTENTION

 

The proposed use of community-based treatment orders - or non-resident orders as they are also known - is unpopular in Scotland, just as it is in England and Wales. Under these orders, rather than being detained in hospital, patients could be forced to adhere to certain conditions in the community such as living in a specified place or attending appointments for treatment. There is concern that community-based treatment orders will result in more people being subject to compulsion.

 

Despite the opposition, community-based compulsory treatment orders are on the Scottish statute books. Chances are that they will also become law in England and Wales.

 

PROTECTION OF LIBERTY

 

The Mental Health (Care and Treatment) (Scotland) Act 2003 was one of the most complex pieces of legislation to go before the Scottish parliament. About 2,000 amendments were made before the bill was passed in March 2003, and, all going well, the  act is due to come into effect later this year.

 

Meanwhile, the debate continues over the content of the draft Mental Health Bill for England and Wales. The parliamentary scrutiny committee continues to hear evidence from mental health groups, and is expected to give its report in the spring.

Rumour has it that Whitehall civil servants have refused suggestions that they copy parts of the Scottish act.

 

Friction between Scotland and England may be inevitable in certain aspects of life, but when it comes to individuals’ liberty, surely it’s time to admit that - just sometimes - things can be better north of the border?