Fit for the 21st Century? A Review of the Report of the Joint Committee on the Draft Mental Health Bill 2004

Abstract

The proposed revision to mental health legislation of England and Wales has been long in gestation. In 1998 the government asked Professor Genevra Richardson to chair an expert committee to review the legislation and report (Department of Health, 1999a). By and large the committee’s recommendations were not accepted by government but were followed by a Green Paper in 1999 (Department of Health, 1999b), a White Paper in 2000 (Department of Health, 2000), and a draft Bill in 2002 (Department of Health, 2002). Organisations and individuals submitted over 2,000 commentaries on the draft Bill, many sharply critical of one or more aspects of the proposed legislation. Following further consideration by the Department of Health, including a series of stakeholder seminars during 2003 and early 2004, the revised draft Bill with guidance notes was published on 13 September 2004 accompanied by a composite response to the commentaries received in 2002 (Department of Health, 2004c; 2004a). As well as the more controversial aspects that have generated most debate, the Bill contains some positive developments. For example, the proposals for advocacy are to be welcomed, as is the drive towards more community treatment and, subject to some important caveats, the availability of a tribunal soon after initial admission to hospital is a step towards meeting UN recommendations for ‘speedy’ access to a court or similar body. Although this article will focus on the matters that have created most argument, it should not be assumed that everything about the Bill is contentious, or that there are not valuable aspects of the proposals that should be retained. At 307 clauses and 14 schedules the Bill is, on that measure, over twice as long as the Mental Health Act 1983 and, by common consent, is complex and difficult for the lay person to understand readily. This is a pity as one objective for the Bill was to create a new legal framework for the 21st century, recognising the trend towards community provision of mental health care over the last 20 years or so. Indeed, the Joint Committee on the Draft Bill suggested that any Bill presented to Parliament must be clearer and easier to read than the current draft. Whether the Bill achieves another objective of creating a radically new approach to compulsory care is open to question. Many important issues have caused controversy during preparation of the Bill but three particular changes introduced in the Bill raise significant concerns and deserve most attention. They are: (i) to amend (and widen) the conditions for compulsion in the 1983 Act; (ii) to place a Mental Health Tribunal on ‘entry’ to compulsion as well as ‘exit’; and (iii) to introduce non-resident orders – a form of community treatment provision. The last of these, although ostensibly one of the main reasons for new legislation, will be dealt with in this article in the context of decisions of the tribunal. Early in the preparation of the Bill the Department of Health came to the view that amending the Mental Health Act 1983 was not an option as it would require such fundamental change that a wholly new piece of legislation was needed. In the event, and without debating the many differences of view expressed by interested parties such as the Mental Health Alliance, the Bill itself has now been amended and modified to the point where revisions to the Mental Health Act 1983 could have conceivably provided an easier, more