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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