Ill-conceived reform

Carolyn Kirby argues that the proposed mental health legislation would not provide the right cure.

Rather, the legislation would erode patients' rights

This is the first of my regular columns for the Gazette.

Over the next few months, I will address some of the major issues on the profession's agenda, as well as particular areas of interest to me, such as improving the Law Society's communication with its members.

On this occasion, I want to expand on my recent speech to the solicitors annual conference, when I mentioned my concern about the proposed new mental health legislation.

Mental illness and mental incapacity are perhaps the last great social taboos, so I make no apology for taking this opportunity to raise the issue at this time, while the draft Bill is under consideration.

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 at any time.

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, if left to their own devices, they would deliberately harm themselves or put themselves in potentially dangerous situations, or 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 anorexia nervosa, some are frail, elderly and confused, others are 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 disorders) is disproportionate and misconceived.

The Bill appears to have been drafted in response to public concern about the rare high-profile cases where individuals suffering from severe disorders have committed serious crimes.

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 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 down, and there are 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 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 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 areas of challenge.

Much has been made of the patient's new rights to advocacy services (for general purposes rather than appearances before the tribunal, for which legal representation is automatically available).

However, there is no indication as to who will provide that service and no right to it in any event until several days into the detention.

This puts people with mental illness in a worse position than people held in police stations suspected of committing an offence, who are entitled to legal advice before they are charged.

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