Is the draft Mental Health Bill 'fundamentally flawed'? Jon Robins hears that lawyers are undecided about how to address public misconceptions on mental illness and how to protect vulnerable people's rights

The case of the paranoid schizophrenic Glaister Butler was cited in the press last month as the latest in a long list of cases where the mental health system has let the public down with catastrophic consequences.


Butler, 49, stabbed Detective Constable Michael Swindells through the heart during a chase in Birmingham last year. Butler suffered mental health problems for more than 20 years, including paranoid delusions that the police, MI5 and security services were out to get him. At the time of the killing, he was being treated in the community but, Birmingham Crown Court heard, he had not been taking his medication for ‘months or even years’ prior to the killing – unknown to his outreach team. He was convicted of manslaughter by reason of diminished responsibility and will be held indefinitely under the Mental Health Act 1983.


Nearly all mental health professionals and lawyers in the field maintain the main aim of the controversial draft Mental Health Bill, heralded by ministers as the biggest reform of mental health laws for 40 years, is to protect society from the perceived threat of people like Butler. But will the legislation, which was promised in last month’s Queen’s Speech, actually make any difference?


The present law says dangerous people with mental disorders cannot be detained unless they are ‘treatable’. The government proposes scrapping this condition of the 1983 Act on the grounds that it discourages hospitals from admitting psychopaths even when they present a risk.


‘The government is very keen on compulsory treatment in the community,’ comments Lucy Scott-Moncrieff, a mental health practitioner of 20 years’ experience and managing partner of London legal aid practice Scott-Moncrieff Harbour & Sinclair. ‘But it’s a complete red herring.’ The draft Bill would allow compulsion to be applied to ‘non-resident patients’ and proposes that they go back to hospital if they fail to comply with conditions set by doctors. ‘If the new Act was in force and [Butler] was under an order to take the pills, he’d still be hiding them,’ argues Ms Scott-Moncrieff, who is also a Law Society Council member. ‘The way to make people take their medication is to provide them with high-quality services and have good relationships with the patients and the nurses.’


David Hewitt, a partner at leading Manchester healthcare firm Hempsons, who advises NHS trusts on mental health law, reckons that often what goes wrong in these high-profile cases has little to do with the legal framework. ‘When you become aware of the facts, it isn’t the process that’s at fault but the way that it has been applied in the individual case – it is often down to human error or a judgement call that hasn’t turned out to be right,’ he says.


Ms Scott-Moncrieff argues that the ministerial insistence that the current legal framework is not working is ‘probably misguided’. ‘Over the last 50 years, the number of murders and manslaughters in the UK has tripled, but during that same period the number of murders and manslaughters committed by people with mental illness has remained pretty much static,’ she says. ‘A mentally ill person is less likely than the average member of the adult population to commit a murder or manslaughter.’


A joint House of Lords and House of Commons committee damned the draft Bill in March as ‘fundamentally flawed’ and ‘too focused on addressing public misconception about violence and mental illness’.


The MPs and peers backed the new definition of ‘mental disorder’, which covers ‘a disturbance in the functioning of the mind or brain resulting from any disability or disorder of the mind or brain’ and could include schizophrenia, depression or a learning disability. They also supported compulsory treatment in the community, but argued that it should be more restricted than under current proposals. They argued for clear criteria about who could be treated at home and said time limits should be set on the length of the treatment.


While the MPs and peers called for a radical overhaul of the plans, they were not as damning as many critics would have liked. ‘They might have taken the view that it was “fundamentally flawed” but they have nonetheless actively engaged with it,’ comments Professor Michael Gunn, the new dean of Nottingham Law School and a mental health law expert. ‘There is recognition of the political realities and the extent to which the government is committed to going down that route.’


The committee did have major concerns about the resources needed to implement the Bill and contended that, without adequate staffing and funding, the proposed tribunal system responsible for authorising long-term compulsory care would fail to deliver patient safeguards. ‘The research that hasn’t been done is to be absolutely clear what impact there would be in terms of resources for the legislation to be effective,’ Prof Gunn says. ‘It’s going to mean an enormous amount more work than the current mental health review tribunals currently have on.’


The Law Society, as part of the Mental Health Alliance, has campaigned against the government’s plans to extend the use of compulsory treatment and detention. ‘We have consistently argued that the purpose of the Bill should be to improve services and safeguards for patients and reduce the stigma of mental disorder,’ says President Edward Nally.


‘In particular, we are concerned that vulnerable people may be deterred from seeking help for fear of being detained. We want to see a Bill that includes a legal right to community care services and treatment, a right to advocacy at all stages, and reduces the need for compulsion.’ The Law Society supports some parts of the Bill, such as the new tribunal system, but says ‘there are neither the financial resources nor the workforce to implement it’.


‘It’s astonishing that all the people who appear to have a role in implementing [the new legislation] have been ignored,’ says Richard Charlton, chairman of the Mental Health Lawyers Association and a partner at the law firm Kaim Todner in London. ‘We disagree in principle with the emphasis on compulsion, rather than co-operation, which seems to be [the driving force] behind the legislation.’


The group also takes issue with the broader definition of mental disorder and proposed changes to the after-care regime. Under the 1983 Act, patients detained for treatment are entitled to after-care which now has to be free following a House of Lords judgment in 2003. The draft Bill changes that and says that at most patients are entitled to six weeks.


Mr Hewitt, who gave evidence to the committee, argues that ministers would have to consider the many people with mental incapacity who could not consent to their treatment – the so-called ‘Bournewood patients’ – who are admitted to hospital under the doctrine of ‘necessity’. Last October, in the Bournewood case HL v UK (the Bournewood judgment, App 45508/99 5 October 2004), the European Court of Human Rights found that a man in his 50s with autism and severe learning disability who had been admitted to hospital, kept under sedation, and not allowed to see his carers, had been deprived of his human rights. ‘The government is going to have to find a new legal framework to confine those patients,’ Mr Hewitt says.


Last year, practitioners reacted angrily to government plans to roll out the Legal Services Commission’s (LSC) fixed-fee scheme to mental health work. Mr Charlton says there has been ‘a period of appalling mismanagement’ by the Department of Health in the internal reorganisation at the Mental Health Tribunal Office. As a result, the chances of a hearing being cancelled, for example, are high and under fixed fees lawyers would end up footing the bill. The LSC did make several key concessions in relation its scheme and mental health lawyers were allowed to opt into the scheme. Two-thirds of the members of the Mental Health Lawyers Association polled refused to do so.


The fear is that a new Mental Health Act would pile on the pressure in an already creaking system. The regime would see mental health tribunals authorising detention and certain forms of treatment, rather than generally considering discharge. According to the Department of Health’s own figures, the number of tribunals would increase by 84% and the LSC has accepted the need for a rapid expansion in this area. One informed estimate is that 400 more specialist lawyers prepared to do this work would be needed.


Mr Charlton maintains that both figures are considerable under-estimates. He argues that with many experienced lawyers already leaving the field and firms downsizing or closing departments, the new legislation would be ‘unworkable’.


For him the outlook is bleak. He says: ‘We seem to be riding head long into chaos and the person driving doesn’t seem in any way to want to take their foot off the accelerator.’


Jon Robins is a freelance journalist