The new mental health law still does not do justice to the patient

Following eight years of heated debate, the Mental Health Bill has now completed its at times difficult passage through parliament.

The Mental Health Act determines who can be detained for mental health care and treatment, at what times and in what ways. Its implications for people with mental health problems and their families are far-reaching. Under the new powers, professionals will have extra powers to detain people in hospital and also to impose treatment upon them outside hospital under threat of a forcible return if they do not comply.

However, the Bill that was finally agreed at the beginning of July was quite different to the one published in November last year, and very different from the draft Bills produced in 2002 and 2004. During its passage through parliament, the Bill that began with a set of new powers for practitioners and no new safeguards for patients has to some extent been given more balance.

The original Bill would have allowed a person to be detained without any test that treatment given would be to their benefit. Now, thanks to a Commons amendment, professionals will need to demonstrate a therapeutic purpose before they detain someone. The Bill at first would have allowed just one clinician to renew a person’s detention in hospital for six or 12 months or to put a person on a new community treatment order (CTO). Now, all such decisions need to involve more than one professional who works with the patient.

Parliament has also added some important positive safeguards for patients and families. Children will now be protected against an inappropriate admission to an adult psychiatric ward: once resources become available to achieve this. People subjected to detention will have a right to an independent advocate to speak up for them.

Despite these important mitigating measures, taken as a whole the Bill represents an historic opportunity to update the law having been missed. Some of the most worrying aspects of the Bill have not been changed. CTOs can still be imposed on a person after just one spell in hospital, though with a partial safeguard that their risk of getting worse on release should be considered beforehand; and they can be renewed for an indefinite period without a right to appeal against the restrictions placed upon people for their ‘health and safety’.

Many countries now have genuinely modern mental health legislation. They have clear and binding principles. They have exclusions to prevent people being sectioned wrongly when they do not have a mental health problem. They give people the right to make choices about their care, when they are well, in advance of when they are too unwell to make decisions for themselves. Sadly, none are present in our new Act.

The completion of the Bill’s passage through parliament marks the end of just the first phase of this legislation’s history. In the autumn, the Code of Practice will be published for consultation. Many crucial issues were deferred to the Code, such as the reasons a patient can seek to displace the member of their family who is chosen to make decisions for them and the quality of care people receive when they are put on CTOs. All of these need to be resolved to get the best possible outcome for service users and their families.

Implementation will bring whole new challenges. Resources will be needed urgently to invest in the new advocacy service and in suitable alternatives to adult wards for children. Training will be needed for those taking on the new roles of responsible clinician and approved mental health practitioner; and beyond that clear systems of accountability, regulation, inspection and professional development.

Community treatment orders have yet more far-reaching implications. It is as yet unclear how people on CTOs will be monitored, and by whom, on a day-to-day level. But there will be important roles for community mental health teams, GPs, social services and a range of other agencies, including police and ambulance services. Again, preparation for these will be crucial and it will be vital to ensure that services for people who are not on CTOs do not get put to the back of the priority list as a result.

More broadly, however, the Bill and the debate around it has lessons that go beyond the Bill itself. At times, media debate about the Bill has had an almost hysterical focus on public safety: on the risk posed to others by a tiny minority of people with severe mental health problems.

By comparison, hardly any attention has been paid to what patients themselves need from services. Tackling long-standing, ingrained public prejudices is no easy matter, but the end of the Bill debate at least affords us an opportunity to draw a line under current debates and refocuse energies elsewhere.

Finally, it is only too clear from the past eight years that the voice least heard and least heeded has often been that of service users themselves. The Mental Health Alliance and its members have sought to get the voice of patients heard. In so doing, we were able to develop robust, practical and ethical policies and gained the respect of many in parliament, especially the House of Lords.

But the fact that it has taken so much effort to get those views taken seriously, despite all the rhetoric about patient choice and expertise, is undoubtedly food for thought as we all move forward.

Andy Bell is Chair, Mental Health Alliance.