Two essential changes, and yet even here the answer spells trouble ahead

When the government introduced the Mental Health Bill in November 2006, it must have known it was in for a rough ride. The Bill is based on two earlier draft bills, each of which was greeted with a cacophony of jeers. During parliamentary scrutiny, the second draft Bill was described as ‘fundamentally flawed’.

The new Bill would see more people brought within the Mental Health Act 1983 (MHA 1983), compulsion extended from hospital into the community, and patients forced to accept treatment even though it might not benefit them.

Yet the Bill also contains two provisions the government must have hoped would pass on the nod. Unusually, they reflect changes the government really has to make.

The nearest relative. Under MHA 1983, the nearest relative has significant powers: he may apply for a patient’s detention or discharge him completely. But the selection process is complex and inflexible, and because it excludes the patient it can land him with a nearest relative he doesn’t want.

For this reason, the government has conceded that the process breaches Article 8 of the European Convention on Human Rights (ECHR), and it has promised to change the law accordingly. No one wants to prevent it from doing so.

MHA 1983 will be amended. Although a patient will still be unable to choose the nearest relative, he will at least be able to ask a court to change him. The ground for any such request will be that the nearest relative is ‘unsuitable’, but the government has not clarified what this means. The Joint Committee on Human Rights (JCHR) fears this might enable a nearest relative to be removed, not because he has abused the patient, but simply because he has stood up to social workers.

Recent debates in the House of Lords have revealed worrying confusion about the role of the nearest relative. Even now, more than two decades after MHA 1983 became law, we still don’t know whether it’s a good thing or a bad thing: a bulwark against the abuse of patients or a significant contributor towards it.

Bournewood. The government must also do something about incapable patients, such as those with a severe learning disability or dementia. They don’t usually come within MHA 1983, but are looked after in their own ‘best interests’ under the common law doctrine of ‘necessity’.

The Bournewood case has changed all that. The European Court of Human Rights ruled that where ‘necessity’ is used to deprive an incapable patient of his liberty, it breaches Article 5 of the ECHR. This is because ‘best interests’ is too vague a concept and has insufficient safeguards against abuse. In particular, it cannot be readily challenged in a court.

The government has announced a new framework that will allow incapable patients to be deprived of their liberty, but will also give them the safeguards the ECHR felt were lacking in the common law. Where someone is incapable of consenting to his own admission to a hospital or care home, permission will have to be obtained before he can be deprived of his liberty. Surprisingly perhaps, that permission will be obtained, not from a court or tribunal but from a PCT or local authority.

There are several obvious objections to this state of affairs. Firstly, PCTs and local authorities are not judicial bodies. Under the new framework, however, they would be expected to adjudicate upon an issue — personal liberty — to which the courts have traditionally attached the very highest importance.

The second objection arises out of what PCTs and local authorities are: commissioners of care. Before long, one or other of them will be asked to sanction a deprivation of liberty it is itself funding.

There is a conflict at the heart of the new framework, and this is likely to produce a concerted legal challenge.

And the JCHR has added some concerns of its own. It claims the Bournewood framework is so complex that it will not be understood by proprietors of care homes. Perhaps the committee is being too charitable.

It is likely that the nuances of the new framework will also elude a fair few public bodies, and even those that advise them. Furthermore, because the framework would be superimposed on existing patterns of care, the JCHR points out that many patients that are subject to it might find themselves paying for the privilege of being deprived of their liberty.

Although they haven’t attracted as much attention, these provisions are as deeply unattractive as everything else in the Mental Health Bill. The cynical observer might note that it takes a government of a very particular stripe to take such necessary changes and turn them into the subject of controversy.

David Hewitt is a partner in Hempsons Solicitors. He appeared as a witness before the Joint Committee on the draft Mental Health Bill of 2004.