Which way to turn?

After failing with two draft mental health bills, the government is pressing ahead with amendments to the 1983 act. But Katie Leason finds that campaigners who opposed the bills are now unsure of the way forward

When the government announced in March that it was scrapping the draft Mental Health Bill, many in the sector felt a huge sense of relief.

After several years of campaigning had the government listened to the protests?

When the first version of the bill was published in June 2002, service users, lobbyists and professionals opposed it. They said proposals would make mental health services worse, more people would be detained, and the idea for compulsory treatment in the community would put people off using services.

Two years later, the revised version of the draft bill fared even worse. The mental health sector again united saying the bill showed that compulsory treatment in the community was still on the government’s agenda with its commitment to remove the treatability test, which would enable people with personality disorders to be detained indefinitely, even though treatment would not be beneficial.

The fears of the sector seemed to have been ignored and the government stood accused of focusing on public safety rather than helping people with mental health problems.

Yet despite a pre-legislative scrutiny committee report in 2005 condemning the bill as unworkable and unethical, the government announced in the Queen’s Speech that a bill would appear before November.

So there was delight when the bill was dropped. Yes, the government had wasted time, money and manpower, but at least it had finally seen the light.

Or had it? On first interpretation the government’s revised proposal for a “simpler to understand and less costly” bill to amend the Mental Health Act 1983 sounded like victory for the campaigners. On closer examination it became clear that while the draft bill was being abandoned, several of its most controversial proposals were not.

Crucially, the intention to remove the treatability test has again affirmed the government’s link between mental ill health and danger to the public.

Paul Corry (pictured left), director of campaigns at the charity Rethink, says: “The government thinks there are thousands of people who are running away from services and who will go on to cause harm to the public. Our perspective is that there are thousands of people wanting to use services but who can’t access them until they are in crisis.”

This emphasis on public protection has led to continued, and unresolved, speculation about the Home Office’s role and influence in the whole mental health reform process. In terms of mental health service innovation and delivery, the Department of Health has made strides in recent years – “but the legacy will be the row over the mental health bill”, says Corry.

Yet despite the continued appearance of unwanted proposals from the draft bill, the mental health sector is generally more optimistic about what now lies ahead.

“In an ideal world we would start from scratch but given the choice of what the government had in mind in terms of a new act and amending, it is better to amend,” says Corry.

Andrew McCulloch, chief executive of the Mental Health Foundation, goes further. “The 1983 act is fundamentally sound and a model worldwide. It’s tight, understandable, not too verbose, and a lay person can understand its principles by reading it.”

By contrast both draft bills were much harder to decipher. McCulloch -who used the 1983 act as a manager of mental health services in the London Borough of Haringey -had been arguing for five years for the bill to be dropped in favour of reforming the act, and accuses the government of “pigheadedness and obstinacy” for not choosing that route in the first place.

He considers the main problems with the 1983 act to be the delays in accessing the mental health review tribunals, and the “Bournewood gap”, which has resulted in people who lack the capacity to consent to treatment being detained informally in hospitals without the safeguards attached to compulsory treatment.

“These can be dealt with by amendments; we don’t need a new bill,” says McCulloch. But while amending the 1983 act is seen as a preferable course of action by some, others believe that in the long-run it is necessary to have a new act.

Roger Hargreaves, the British Association of Social Workers’ lead on mental health legislation, says: “I don’t see it as a long-term solution. Amending the present act can only be a stopgap. It will become unworkable again. We are putting off a reform that has to happen but it’s better to put that off until we have a government that’s more inclined to listen to stakeholders.”

The 1983 act was a result of amendments to the Mental Health Act 1959 and some of the wording goes back as far as the Lunacy Act 1890. As a result, he says, the act is full of anomalies and inconsistencies. Much of it has been altered by case law and it can be a difficult piece of legislation for social workers and other professionals to use.

“If an approved social worker gets it wrong then the detention can be unlawful and the ASW liable to be sued, but it’s not clear what is right. People need something that is workable but if you start making lots of amendments you run the risk of making it even more unworkable. I don’t think it’s sensible to try and make major changes to the existing act,” says Hargreaves.

One particular amendment causing concern within social care is the government’s determination to broaden the ASW role to include other professionals. There are fears that if hospital employees take on the role then impartiality could be compromised.

Yet while the government clings to some unwanted proposals from the draft bill, it has let go of several of its welcomed policies. Among these, for the first time, was patients’ legal right to advocacy via independent mental health act advocates.

Jenny Gray, manager of HUBB mental health user group, which is based in London, says that this U-turn has been a disappointment, especially for people who are voluntary mental health patients in hospital.

“People under detention certainly need to have access to advocacy but at least they have the right to tribunal and to legal help. People who are voluntary patients have much fewer rights. The one piece of good practice that everyone welcomed hasn’t gone through. The advocacy movement is being punished for being successful in stopping the bill.”

And she speaks for many when she says: “Never has there been so much consensus about a poor piece of proposed legislation. The decent thing would have been for the government to acknowledge that it had got it wrong but then, perhaps, it is not brave enough to admit that.”