Focus: On the brink

Six months ago we began to highlight the appalling plight of the mentally ill. Carers and professionals joined our campaign to make the Government rethink its draconian proposals to 'modernise' the law. Here Jeremy Laurance and Jo Dillon look at why the Bill was dropped and how it is likely to be redrafted. On the following pages campaigners give their views

It was the dog that didn't bark, and the silence became front page news. The biggest reform of mental health legislation for 40 years had been cancelled – for the time being.

The absence of the mental health Bill from the Queen's Speech last week marked a victory for the coalition of public and professional interests which had united to oppose it and for the campaign spearheaded by The Independent on Sunday. The omission signalled that after months of lobbying, including the submission of 2,000 mostly critical responses to the draft Bill which was published last June, the Government was prepared to think again. Yet within hours a minister was being bullish about reform.

In a move that took even senior civil servants by surprise, Alan Milburn, the Health Secretary, declared in the Commons on Thursday night that rumours of the Bill's demise were exaggerated. It would be introduced in the current session of parliament after all – once the Government had considered how to deal with the tide of opposition it had provoked.

Why the sudden change of heart? This was Mr Milburn's first public pronouncement on the Bill for months and one that had clearly been choreographed by No 10. The Health Secretary had been preoccupied with plans for foundation hospitals and modernising the NHS, and as recently as 10 days ago had nothing to say about the new mental health law. In a briefing with journalists in advance of the Queen's Speech, in which he highlighted half a dozen developments, mental health was not mentioned at all.

On Thursday night he mounted a vigorous defence of one of the Bill's most controversial provisions: compulsory treatment in the community. Given that most medical treatment takes place in the community rather than in hospital, he said, it was a "palpable nonsense" that, under the current law, doctors had to wait until a patient had deteriorated sufficiently to be detained in hospital before they could be treated.

The Independent on Sunday has learnt that a list of the proposed legislation circulated to ministers on the Friday before the Queen's Speech included a mental health Bill, but by the following Wednesday it had disappeared. Insiders blame a bitter row between David Blunkett, the Home Secretary, and Mr Milburn, mediated through their advisers.

In an astonishing attack two weeks ago, Mr Blunkett accused health professionals and civil servants of trying to wreck the Government's plans. In a speech to the Zito Trust, he said: "There has been a tradition of people thinking they can have a separate policy to the ministers they serve. They can't."

Mr Blunkett, whose tough criminal justice programme dominated the Queen's Speech, urgently wanted provision to lock up people with severe personality disorders even if they had committed no crime. He saw it as a populist measure to protect the public from dangerous psychopaths – the "nutters on the loose" of popular prejudice.

Mr Milburn was in no mood to do Mr Blunkett's work for him. He did not see why he should be the one placed at loggerheads with the influential and increasingly irritated groups that were ranged against the Bill.

No legislative proposal in recent memory had met with such united opposition, as highlighted by The Independent on Sunday's campaign. In the six months since it was published in draft form last June the Bill had encountered a wall of criticism from the church, the medical and legal professions, voluntary groups and patient organisations.

The Mental Health Alliance, an umbrella group of more than 50 organisations set up to oppose the Bill, argued it was unworkable, unethical and inhumane. Tories, Liberal Democrats and Labour MPs pledged to oppose it and the final straw came when the House of Commons and House of Lords Joint Committee on Human Rights concluded that the Bill's definition of mental disorder was so wide it could allow health professionals to act as "guardians of morality".

Mr Milburn did not want the row over mental health to cast a shadow over the measures he saw as serving his priority: to save the NHS. "He had left the work and pretty much the thinking about that [the mental health Bill] to Jacqui Smith [the health minister]," a Westminster source said.

Mr Blunkett was furious at the lack of support and remains so, according to some sources – despite Mr Milburn's robust pledge to the Commons on Thursday night that "reform has to happen in mental health services just as it has to happen across the whole of the National Health Service".

However, one notable omission from that speech was any mention of the plan to detain people with severe personality disorder who have committed no crime – the most controversial element of the Bill and one viewed by his advisers as unworkable in its present form. The plan formed the cornerstone of the White Paper published in December 2000 and, despite widespread criticism from professional and patient groups, appeared almost unchanged in the draft Bill published last June.

The flaw in the proposal was that it failed to distinguish the mad from the bad. The key case, which alarmed ministers and the public, was the 1996 murder of Lin Russell and her six-year-old daughter Megan, who were killed in front of nine-year-old Josie Russell by Michael Stone as they were walking on a country lane in Kent.

Stone was a man with a violent past. He had been diagnosed with a severe personality disorder and was well known to the mental health services but psychiatrists had argued that he could not be detained because he was not treatable. This, ministers said, exposed a dangerous loophole in the law. In the draft mental health Bill they laid out their plans to detain people "who pose a serious risk of harm to others as a result of mental disorder". But if Michael Stone's condition was untreatable, as the psychiatrists argued, then he should properly be labelled "bad" rather than mad and dealt with by the criminal justice system.

As Professor John Cox, former president of the Royal College of Psychiatrists, put it: "It is not our job to cure society's ills. Our job is to treat people and get them better."

This remains the sticking point for the Department of Health. Over the past six months since the Bill was published the argument between it and the Home Office has centred on the definition of "mental disorder", what is to count as "treatment", and how many people with severe personality disorder might have to be detained.

Early Home Office estimates put the number that could have been pulled in at more than 14,000, which would have overwhelmed the psychiatric service and raised serious civil liberty issues.

Officials from the Department of Health argued that the criteria must be drawn tightly so that only the most dangerous individuals, numbering a few hundred not already in prison or mental hospital, would be included. That was the only chance of winning opponents over to support the Bill, they said. They also argued that only those who had committed a criminal offence should be detained – removing the civil route into custody. If that was achieved, Department of Health officials believed opposition to the Bill would wilt.

Mr Milburn is keeping his powder dry for the battles to come. Reform of the law is urgently needed to reflect the enormous changes in the way mentally ill people are cared for today – mostly in their own homes in the community rather than in the huge Victorian asylums of the past. In 1959, when the present law was enacted (it was updated in 1983) 155,000 people were contained in Britain's mental hospitals compared with 30,000 today.

But if the Bill is to win the support that it needs the conceptual flaw at its heart must be resolved. Ministers are proposing to lock up people with personality disorder to protect the public. Dangerousness should therefore be the criterion for detention, not mental illness. Moreover, mentally ill people commit a very small proportion of all violence. The focus on the threat they pose is therefore discriminatory.

Ministers have promised concessions but they will be granted only if the pressure is maintained. The Bill as it is currently framed places coercion before care, highlights risk over suffering and will increase stigma. The Independent of Sunday will continue to campaign for a law that is just, fair and strikes a proper balance between the care of the patients and the protection of the public.