The wrong kind of medicine

The new Mental Health Bill is supposed to make the streets safer. But Carolyn Kirby, president of the Law Society, fears that it will be a danger to public and patients alike

Mental illness and mental incapacity are perhaps the last great social taboos and that is why it is so important that people have time to discuss and understand the implications of the Government's draft Mental Health Bill.

Mental illness, like physical illness, takes many forms and varies in its severity. We are all familiar with the problem of depression suffered by hundreds of thousands of people. With medication, most people improve or get no worse but some sink further into severe depression and may need to be admitted to hospital. The majority of patients in psychiatric hospitals are there voluntarily because they recognise that they need treatment and that they probably would not pursue the treatment themselves outside hospital. Some are so ill that they would deliberately harm themselves or put themselves in potentially dangerous situations, even commit suicide.

To protect them from that danger, doctors detain (section) them under the Mental Health Act. Detention typically lasts from a few days to several months. About 66,000 patients are detained under the Mental Health Act every year. Only a small proportion present a risk to anyone other than themselves. Some are young girls with eating disorders such as anorexia nervosa, some are frail, elderly and confused, while others are simply the victims of the pace and pressure of modern life.

That is why the proposed new legislation, with its emphasis on exaggerated perceptions of risk to the community (in reality, posed by only a small number of people with severe mental disorders) is disproportionate and misconceived.

The proposed Mental Health Bill appears to have been drafted in response to public concern about the rare high-profile cases where individuals suffering from very severe mental disorders have committed serious crimes. Unfortunately, there are many dangerous people on the streets, only a small minority of whom suffer from mental illness. Many serious crimes are committed by people under the influence of alcohol, but no one suggests that everyone calling at their local pub for a drink is a potential criminal. Categorising people suffering from mental illness by way of potential risk is equally inappropriate.

The impression that the streets will be made safer by this legislation is a myth. The Richardson committee, which advised the Government on the scope of the new legislation, recommended the wider definition of mental illness and greater powers of detention, but only if there was a reciprocal right on the part of the patient to receive appropriate treatment. Psychiatric services have long been under-funded, many hospitals have been closed, and there are currently 400 consultant psychiatric posts vacant nationwide.

The Government has announced increased funding to implement the proposals in the Bill, but it is likely to be woefully inadequate to provide services for all the people detained under the new definition. That, presumably, is the reason why the element of reciprocity stressed by the Richardson committee is absent from the Bill; the Government does not want to create a statutory right to services that it cannot provide.

The Royal College of Psychiatrists, one of a number of organisations which are working with the Law Society to defeat this Bill, has reported such a level of concern among its members about the proposed legislation that it predicts the number of consultant vacancies will rise to 600 if the Bill is implemented. People with mental illness, many of whom have already been failed by the Care in the Community scheme, will be less (rather than more) likely to engage with the psychiatric services if the threshold to detention is lowered without a reciprocal guarantee of appropriate treatment. Disengaged from the services, their condition is likely to deteriorate and there will be more, not fewer, seriously ill people on the streets.

All patients will have an automatic referral to the Mental Health Tribunal within 28 days, but patients who are subject to section 2 of the Act currently have a right to have their detention reviewed by the tribunal within seven days.

Far from bringing the process further into line with Human Rights' best-practice, the Bill appears to create a range of possible new areas of challenge. Much has been made of the patient's new rights to advocacy services. However, there is no right to advocacy services until at least several days into the detention. It is also far from clear who is going to provide this service. This puts people with mental illness in a worse position than people held in police stations suspected of committing a criminal offence who are entitled to immediate legal advice before they are charged.

Finally, the focus of this proposed Bill is quite simply wrong. It places too much emphasis on the risk posed by a very small number of people with severe disorders Meanwhile, it fails to deal with the needs of the large number of people who suffer from mental illness, and who are far more likely to be the victims, rather than the perpetrators of violence.

Working with the British Medical Association, the Making Decisions Alliance and a number of other charities, professional bodies and mental health organisations, the Law Society has put together a mental-capacity and decision-making charter that highlights the urgent need for legislation to provide proper protection to people who do not have the capacity to make their own decisions due to illness, injury or disability. The Government acknowledges that there is a gap in the law. However, it cannot find time to debate the issue.

What we would like to see is this draft Mental Health Bill dropped and for the Government to use the time more sensibly to introduce a legal framework for decision-making for people who do not have the capacity to communicate their wishes themselves. Despite a draft bill covering this issue produced by the Law Commission in 1995 and four government reports reviewing this area of law, there remains a fundamental gap in the law that leaves innocent people open to exploitation.

Public understanding of mental illness has come a long way in recent years. This proposed legislation with its emphasis on risk would re-introduce stigma to mental illness, serve patients badly by eroding their rights and serve society badly by driving patients away from the treatment they need. This is a view shared by the Royal College of Psychiatrists and all the major interest groups dealing with mental illness. I hope our voices will be heard.

Carolyn Kirby is president of the Law Society and chairwoman of the Mental Health Review Tribunal for Wales