On the sixteenth of November 2006, the Mental Health Bill was tabled in the Upper House of Parliament. Its main objective is to amend the 1983 Mental Health Act and inter alia to include the so called Bournewood Safeguards in the Mental Capacity Act of 2005. The main quaesitum of the 1983 Act was to specify the conditions under which people with mental disorders could be confined, without their consent, in order to be administered medication. This Act had clearly specified the various precautions and procedures to be adopted while taking such measures. A very important objective of this Act was to administer treatment to the mentally ill so as to mitigate the risk posed by them to others and themselves (1).
In the year 1998, the Richardson committee was established in order to suggest amendments to improve the 1983 Act. This committee submitted its report to the Government in 1999. The National Health Scheme Plan for amending the mental health law was submitted in the month of July 2000. In this fashion several reports and proposals were submitted. Finally, the Government announced in March 2006 that it would amend the 1983 Act instead of enacting new legislation (1).The latest Bill introduced was designed to amend the Mental Capacity Act in addition to the Mental Health Act. This was due to the ECtHR ruling in the Bournewood case.
The main changes sought to be made by this Bill are that this Act after modification will define mental disorder per se, without specifying sub – classifications. In addition, it will institute an appropriate treatment test that will supplant the previous treatability test. This Bill will permit a wider group of medical personnel who can assume the role of either an approved Social Worker or a Responsible Medical Officer (1).This Bill will contain a provision that will allow mental patients to approach county courts to bring about a change in the location of their near relative. Further, this new Bill will make civil partners members of the list of relatives.
In addition, there is a proposal in the new Bill to introduce supervised community treatment, which will permit some mental patients to be administered treatment while residing within the community (1).The new Bill is seized with the matter of establishing a Mental Health Review Tribunal. This Tribunal will require hospital managers to expedite the referral of cases to it. Furthermore, there will be just one Tribunal for England and one for Wales. A very important change that this Bill proposes to engender is that it will abolish the current finite restriction orders. The implication of this change is that a mentally sick person can be detained as long as it is apprehended that such a person poses a risk to others.The UK Government was subjected to antagonism, protest and unequivocal opposition from the general public and those who were interested in mental health care.
This resulted in the Government’s retreat from a single minded attempt to implement the new legislation, which had been in existence for eight years. The decision of the UK Government regarding its relinquishment of the proposed implementation of the Mental Health Act for England constituted a triumph for patients, medical professionals and followers of liberal democracy. Consequently, the Government proposed the implementation of a brief and systematic amendment to the Mental Health Act 1983 (2).The UK Government’s initiative in engendering reform of the mental health law resulted in the establishment of compulsory treatment and detention of people who were suffering from personality disorders. These draconian steps have been averted due to the warnings of the official advisory group which predicted that the success of these measures required the deployment of additional resources. The Government, which had been on the verge of introducing the proposed Bill, had to restrain itself due to the report submitted by the advisory group.
This report to the ministers described the anticipated Bill as being risky in nature. Moreover, the mental health groups thought that the Government had to abandon this act as it was not pragmatic (2).These incidents have further irritated the health secretary who had encountered a great deal of opposition while overhauling NHS and prohibiting smoking in public places. Further, the parliament had to spend much more time to bring about the active participation of the health secretary.
However, the Government was biding its time to reintroduce this (2).The committee comprising of Members of Parliament and other Lords took cognizance of the public outcry and opined that this Bill on enforcement would definitely violate civil liberties. Some of the ministers in the Government have accepted the committee’s resolutions (2).In order to obtain consensus in respect of the introduction of the new Bill the Government established an advisory group to suggest an executable mechanism for a new system that would be able to cater to the needs of a significant number of mental health cases. The new Bill requires tribunals to cover community treatment and to undertake mental health care plans (2).
Sophie Corlett of Mind a mental health charity stated that the new system was doomed to failure from its very inception due to the fact that it was an illogical system. The Health Department was contemplating the introduction of tribunals consisting of just one person and in taking decisions without any hearing whatsoever. This would have the effect of taking society back by one step (3).Recently the House of Lords declined to permit the Government to provide community treatment, for people suffering from mental ailments. The most recent Mental Health Bill makes it mandatory for medical professionals to hospitalize mentally sick people who do not comply with these orders. However, the peers supported an amendment that would allow mental patients to abstain from treatment if they were competent enough to decide on their own (4).This amendment received the whole hearted support of the Mental Health Alliance and the charities that were speaking on behalf of the service users.
The idea expressed, while extending this support was that people who could decide on their own should not be compelled to undergo medical treatment. Baroness Barker, who initiated this amendment, opined that this would bestow greater liberty on medical professionals to assess and treat mentally ill persons. At the same time it would allow such professionals to evaluate their patients’ capacity to comprehend and comply with their treatment (4).There can be no debate regarding the contention that the involvement of mentally ill persons in decisions regarding their treatment render the treatment very effective and also significantly increases the general safety. Ian Hulatt, nursing adviser to the RCN mental health, welcomed his amendment by their Lordships (4).
The law relating to the detention of a person under the mental health act has undergone substantial changes. Darius Whelan in the Irish Times stated that after a prolonged delay, Ireland’s modified mental health law had come into effect. An important change that transpired was that from the 1st of November, 2006, all the involuntary detentions in a psychiatric hospital should be thoroughly examined by a mental health tribunal consisting of three persons, within twenty – one days of such detention (5).Every year around two thousand hearings are conducted by the tribunal. Since the past sixty years, the Mental Treatment Act 1945 has been the main legislation that has been addressing such cases. However, this act was inadequate to cope up with the present mental health services situation. It comprises of a small number of provisions that afford protection to the patients.
Moreover, it lacks any specific provision for the automatic review of detention (5).The Irish Courts are not agreeable to the fact that the Mental Treatment Act 1945, violated constitutional rights. This was the borne out by the decision in Croke v.
Smith (6). However, the European Court of Human Rights opined that this legislation was unable to meet the challenges of the present day situation. Accordingly, in 1981 a modified act was passed with the intention of reforming the former act. Nevertheless, implementation of this modified act did not take place for a number of reasons, like its inability to offer a satisfactory procedure for reviews of detention. In accordance with the 1992 Green Paper and the 1995 White Paper, a Bill was formulated in 1999, which was enacted as the Mental Health Act, 2001 (5).Five years subsequent to its enactment, the implementation of its essential provisions took place. The most important change in the act is the provision for automatic periodic review of detention by Mental Health tribunals. However, this change affects only a few mentally ill persons (5).
Eleven percent of admissions, to mental health units are involuntary. In addition, many more mentally ill persons receive medical services in community care centres. As per law the people who have been detained, despite their unwillingness comprise the most important sector, which needs a greater amount of legal protection. From the 1st of November, 2006 if a person is detained in a mental health care institution, then a notice has to be issued to the Mental Health Commission within a period of twenty – four hours (5).The Commission will provide a solicitor, to represent the patient and also an unbiased psychiatrist to assess the condition of the patient. If the patient had been in detention for more than twenty – one days, then a tribunal hearing has to be conducted.
Such a tribunal is represented by three members, namely, a solicitor, a consultant psychiatrist and an impartial assessor. The tribunal may either confirm the detention or pass an order for the discharge of the patient (5).The Mental Health Act 2001 prescribes the procedure based on the grounds of detention. These grounds may vary from causing harm to self or others, indulging in illogical judgements and in the deterioration of their mental condition. In cases of review by the tribunal, three psychiatrists will take part in the proceedings. These are the psychiatrist of the hospital who had recommended the patients detention, an impartial and independent psychiatrist who will submit the report to the tribunal regarding the mental health of the patient and the psychiatrist who is a member of the tribunal (5).The decisions of the tribunal can be either challenged in the court or may be submitted before the High Court in order to initiate a judicial review.
The Mental Health Act 1945 had been supplanted by the Mental Health Act of 2001 and the cases of patients who had been detained under the former act have to be reviewed within six months as if these patients had been detained under the new act (5).This Act comprises of many significant modifications, one of these is that the decisions taken should be most beneficial to the patient. Alcohol addiction cannot comprise a ground for detention and in such cases consent of the patient has to be obtained before the commencement of the de – addiction treatment. In order to implement these regulations a statutory Mental Health Commission was formed.
Despite several critical comments by the Inspector of Mental Health, the quality of Mental Health services could not be improved (5).Part V of the New Act controls the registration of approved centres by the Mental Health Commission. The Commission has been empowered to derecognize a centre if its premises are not in accordance with these regulations. Due to a number of problems encountered with nursing homes, the Commission has displayed marked reluctance to approve care that is of a low standard (5).The Mental Health Act 2001is a significant component of the modifications made to the Mental Health Services. In the year 2001 the Government had adopted the recommendations of the Expert Group on Mental Health Policy, namely A Vision for Change.
This policy suggested changes to the investment strategies employed in Mental Health Services. Accordingly, The Criminal Law (Insanity) Act was made effective from the 1st of June, 2006 and the Mental Health (Criminal Law) Review was constituted in September 2006 (5).The Government made a concerted effort to modify the mental health legislation. It displayed scant regard for the warning note that had been struck by Members of Parliament and peers. The inference drawn by the parliamentary committee that had investigated this legislation in depth and had declared that civil liberties of the citizens would be harmed was subjected to severe criticism by the Government. It further blamed the joint committee, which had been formed to draft the mental health Bill, of having played down the fact that this Bill recommended the detention of and compulsory treatment of people who were mentally ill. Moreover, the Government clarified that its main concern was to afford protection to patients who constituted a major threat to themselves. In addition, the Government stated that these initiatives would drastically increase the numbers of those who would be accorded compulsory medical treatment (7).
The aforementioned report concluded that it was incorrect to contend that the Bill placed a disproportionately excessive emphasis on public safety and that it ignored the rights of patients. This report also held that in the process of striking a balance between patient autonomy and public safety, the committee had failed to appreciate the benefit that striking a balance between patient and public safety and patient autonomy entailed (7).The Government acceded to approximately fifty percent of all such requests for help, furthermore it did not accept a recommendation of the committee that in the absence of therapeutic benefit, forced detention and treatment should not be indulged in. The Government has exhibited a strong determination to exclude the present Mental Health Act’s condition of treatability with the consequence that this exemption has been withdrawn for patients suffering from personality disorders that doctors consider to be incurable (7).Moreover, the government declined to create separate legislation for addressing the problems posed by some mentally ill people, which could endanger the community. Rosie Winterton, the minister for Mental Health stated that a competent piece of legislation would emerge after the exercise that had been undertaken and that more than fifty percent of the committee’s suggestions had been incorporated. She also stated that even though most of the mentally ill persons were harmless, it was incumbent on the Government to ensure that mentally sick people did not pose a danger to either themselves or others.
However, the Government has, in principle, agreed to exclude drug addicts from the purview of this Bill (7).This new Draft legislation is fraught with a number of disadvantages for the mentally ill. It has become abundantly clear that the main objective of the Government is to introduce the Mental Incapacity Bill or the MIB, despite strong opposition from acknowledged experts in the field of psychiatry like the Royal College of Psychiatrists and Mind (8).The professed purpose of the Mental Incapacity Bill is to safeguard the interests of people who are or who will be mentally incapacitated. The major disadvantage with this Bill is that mentally ill persons can be detained if they do not consume their prescribed medicines. The situation has been exacerbated by the fact that persons taking care of such people have to comply with a very large number of instructions and failure to comply with these instructions could lead to imprisonment (8).Nevertheless, this Bill has certain advantages; namely, it would define in an unambiguous manner the term mental capacity, it would determine what would serve the best interests of the mentally ill and the introduction of the principle of the general authority to act.
Moreover, the so called lasting power of attorney has been introduced by this Bill. This instrument encompasses the power to take decisions in the context of medical treatment in addition to the usual financial powers. Furthermore, special courts would be constituted that would address the issues relating to the mentally ill and its administration would be taken care of by a public guardian (8).The law that was extant when this draft Bill was under discussion had a number of defects. It tended to ignore any harm done to a mentally sick person. The expectation was that the draft Bill would address these problems; however indications were that the Bill was not sufficiently comprehensive in this regard (8).In a classic instance of confusion worse confounded, the House of Lords opined in the so called Bournewood case that mentally handicapped persons could be confined without sectioning them.
Consequently, such persons have been denied the right to approach a tribunal to decide whether they should be detained (8).The European Court of Human Rights decided that this detention violated the provisions of Article 5 of the ECHR. Moreover, it opined that a detention under the provisions of the common law infringed Article 5, because such detention was random in nature and was bereft of adequate measures to prevent the occurrence of acts of injustice (9).The Prime Minister Tony Blair finally accepted that there was a possibility that some doctors might deprive mentally ill persons of their liberty. The Mental Health Bill seems to be a response to the wanton killing of Jonathan Zito by Christopher Clunis. Moreover, he declared that it was his responsibility to attach importance to public safety, because there were a few mentally ill persons who posed a danger to society (10).In this connection, the Department of Health declared that it was perusing responses from the public in respect of the Mental Health Bill, which could forcibly detain mentally ill people indefinitely, even if such persons had not indulged in any crime (10).
Several organizations like the Mind, the Law Society and the Royal College of Physicians have pressurized the Government to desist from implementing such a draconian piece of legislation. These organizations asked the Government to enact such legislation as would address the current requirements of society. They also urged the Government to consider the fact that this Bill would transform doctors into jailors with the result that innocent mentally ill persons could be detained forever. The shadow health secretary Liam Fox, opined that the draft Bill was inadequate to fulfil the requirements of present day society and that it breached human rights. The opinion of Bert Massie, chairman of the disability rights commission, was that certain portions of the Bill were of great disadvantage to the mentally ill people (10).
To achieve this objective the Government had deployed an additional amount of £300million in mental health. The purpose of this investment was to establish innovative services like assertive outreach, crisis resolution and early intervention so as to reduce the number of mentally sick people who would have to be detained or administered compulsory treatment. However, a survey conducted by Mind revealed that at least a third of the mentally sick persons would abstain from seeking medical help if this new Bill were to become law (10).It had been estimated that twenty – five percent of the people would be afflicted with mental illness. The reforms to mental health law being contemplated by the Government could result in the forcible treatment and detention of a much higher proportion of the mentally sick people. An all-party parliamentary committee was formed to examine this Bill in detail.
This committee concluded that this Bill was inherently defective (11).Further, this Committee was in agreement with the opinion of the majority of the Mental Health Alliance members that the Draft Bill not only violated ethics but was also impractical. This Committee stated in unequivocal terms that the objective of any piece of mental health legislation should be to alleviate the suffering of the mentally ill. Unfortunately, the new Bill’s perspective was skewed in the sense that it was attaching greater importance to subjecting mentally ill persons to detention and forcible treatment (11).In Scotland a number of regulations were sought to be implemented that would permit surgery to be performed on mentally ill persons even in the absence of their willingness to undergo such surgical procedures. A lot of opposition was generated towards this new act that had been termed the Adults with Incapacity (Scotland) Act. This was indicative of the mood in the United Kingdom, to oppose legislation that would deal unfairly with the mentally ill (12).Despite the infringement of UN resolutions, the United Kingdom has been contemplating the enactment of such draconian legislation.
The main controversy centres around neurosurgery for mental disorder. This procedure has been prohibited in the rest of Western Europe and is fraught with danger. For instance, Lena Zavaroni, a famous actress, lost her life after this operation was conducted on her in 1999. The new regulations require the consent of the court to perform this operation in the event of patients being unable to decide for themselves (12).The main drawback with the new Mental Health Bill is that people suffering from mental diseases could be detained, irrespective of the fact as to whether they had indulged in any crime. Further, this Bill recommends a more stringent application of the 1983 powers that had required patients to receive treatment even after being discharged from detention.
Although, the Health Minister had stated that detention would take place only if adequate treatment was made available, it is obvious that there could be a serious infringement of the rights of the mentally ill (13).The law as it stands at present does not permit the detention of innocent mentally ill persons. The new legislation aims to compel discharged mental patients to take medicines against their will. In the opinion of Sheila Hollins, a professor with the Royal College of Psychiatrists, it was wishful thinking to hope that the enactment of the new law would eradicate murders and assaults. The effect of this bill is to deprive mental patients of their rights without in any way reducing the danger to society. Many doctors and other concerned persons opined that it was essential to amend the Bill so as to protect the rights of the mentally handicapped (13).In this context Lord Bragg of the Labour Party, stated that mentally ill persons should be accorded freedom to the maximum extent possible as they were quite competent to take decisions in some areas that could have a direct bearing on their well – being. Moreover, the possibility existed that a few of these patients were competent enough to furnish information that had a direct bearing on their disease and the treatment to be administered and that they possessed this capability despite requiring compulsory treatment (13).
A similar Bill was proposed in the year 2002, which had to be discarded. The present Bill attempts to engender changes to the Mental Health Act of 1983. Lord Howe, the Health Minister, opined that it was inappropriate for a Bill to attempt to merely amend the 1983 Act and that it would have been more pertinent if it had attempted to reformulate that Act. This new legislation if enacted could adversely affect around fourteen thousand mentally ill people. However, there is considerable opposition from a number of Labour Members of Parliament to this new legislation (13). The reason behind this legislation was the murder of Megan and Lin by Michael Stone in 1998 (14).
While drawing up mental health laws a judicious balance has to be maintained between the rights of the patients and the protection of the public. Several recent homicides that had been committed by the mentally ill have resulted in a great deal of pressure being brought to bear on the Government to formulate such laws as will afford greater protection to the general public. However, such protection will perforce curtail the rights of individuals and this constitutes a violation of the Human Rights Act (15).The Mental Health Bill is the government’s third endeavour in eight years to reform the 1983 Mental Health Act.
It retains the draft Bill’s proposal to remove a legal loophole that allows people with severe personality disorders, previously known as psychopaths, to avoid treatment by arguing that they get no benefit from it (16).Ostensibly, the aim of these modifications to the Mental Health Act 1983 is to systematize the procedure adopted while detaining mentally ill people. The professed objective being to ensure that no person is detained illegally. The new proposals make it essential for any detention that exceeds a week to be a legal decision and that if the detention is to exceed four weeks then such detention has to be ratified by the Mental Health Review Tribunal or the MHRT. The current Mental Health Act provisions allow patients to appeal to the MHRT only after they have been detained. The new Bill proposes reforms that while promoting psychiatric treatment reduce the independent decision taking power of the psychiatrists. The Government seems to be convinced that an insufficient number of mental patients have been detained.
On the whole the new Bill endeavours to introduce extremely repressive measures in the context of the mentally ill. The need of the hour is to introduce legislation that does not trample upon the human rights of the mentally sick.Reference List;1. Lords, House of. Mental Health Bill [HL]. House of Lords.
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v. The United Kingdom. 45508/99 (2004). ECHR 471, s.l. : European Court of Human Rights, 2004.10. Carvel, John and White, Michael.
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Leonard, Sue. Mental health law could be ditched. The Sunday Times. June 16, 2002.13. Lords consider mental health laws BBC NEWS . BBC NEWS. [Online] January 8, 2007.
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