A review of mental health law - at last

A fundamental review of Scottish mental health law is long overdue, and Sam Galbraith (Scottish Health Minister) is to be congratulated on his announcement on 18 December 1998 that the Rt Hon. Bruce Millan is to chair a committee tasked to carry out such a review, and to report to the Scottish Parliament by the summer of 2000.

One hopes that Mr Galbraith’s announcement, just a fortnight after the decision of the House of Lords in the Reid case, marks the end of many years of piecemeal tinkering - by politicians often dancing to the tune of tabloid demands that “something be done” - with a piece of legislation which has become increasingly outdated.

Major significance

The topic is of major significance.  It involves fundamental issues of human rights of people with mental illnesses and those close to them, and the interests of society.  The issues potentially affect everyone with mental health troubles, even although only a small proportion are subject to formal statutory procedures.  In Scotland there are currently some 30,000 psychiatric admissions to hospital every year.  Mental Health Foundation figures indicate that 1 in 4 of the UK adult population will experience a mental health problem in the course of a year, and that over three million people in the UK suffer from severe mental illness.  A separate review was announced by Henry McLeish (Scottish Home Affairs Minister) on 12 January 1999.  A committee chaired by Lord MacLean will review sentencing options in relation to serious violent and sexual offenders, including those with personality disorders, and their future management and treatment.  The MacLean Committee will report first, probably earlier in 2000, with the intention that the final report from the Millan Committee will take account of the MacLean recommendations.

The legislation

Although there was a review of mental health law in 1982, the last comprehensive reform was in 1960.  Until then the relevant law was contained in the Lunacy (Scotland) Acts, 1857 to 1913 and the Mental Deficiency (Scotland) Acts, 1913 and 1940.  The recommendations of the Royal Commission on the Law relating to Mental Illness and Mental Deficiency 1954-1957 were considered in Scotland by the Dunlop Committee and led to the Mental Health (Scotland) Act, 1960.

The current Mental Health (Scotland) Act 1984 did not itself introduce any new law when enacted, though it has since been amended.  It was a consolidating Act, re-enacting the 1960 Act with all subsequent amendments up to and including those in the Mental Health (Amendment) (Scotland) Act 1983.  Changes prior to 1983 included the transfer of criminal procedure provisions into the Criminal Procedure (Scotland) Act 1975.

A point in time

In April 1982 the Scottish Home and Health Department and Social Work Services Group published their Consultation Paper “Review of the Mental Health (Scotland) Act 1960”, which paved the way for the 1983 Act.  The changes in 1983 were significant, and some are described below, but essentially the 1984 Act was only a point in time in the development of a body of law originating in the perceptions and philosophy of 1960.  Piecemeal amendment has continued since 1984, and has included:

• three working days extension of short-term detention following a late relapse, and five working days extension if an application for formal detention has been lodged, both under the Mental Health (Detention) (Scotland) Act 1991;
• in criminal procedure, the examination of facts under the Criminal Justice (Scotland) Act 1995;
• the community care order and altered leave of absence provisions in the Mental Health (Patients in the Community) Act 1995.

More significantly, it is anticipated that by summer 2000 the Scottish Parliament, if not the UK Parliament, will at last have brought to an end the disgraceful delay in legislating upon the Scottish Law Commission’s draft Incapable Adults Bill.  Among proposals in the draft Bill upon which there is broad-based unanimity are a new and more appropriate form of guardianship, with flexible powers, and also the introduction of the “designated sheriff” by whom mental health and mental disability matters will normally be heard, and who will thus develop special expertise in such matters.  Both of these reforms will be relevant and helpful in the context of a review of mental health law.

The Millan Committee will also require to take account of the content, developing application, and underlying principles of the Disability Discrimination Act 1995.  They will require to be vigilant to avoid unjustified discrimination against people in need of mental health services compared with people with other health-care needs; and to avoid subjecting the great majority of people with mental health troubles, and people with learning disabilities, to infringements of rights and limitations of status which can only be justified (if at all) in relation to a small minority.

The Committee should also be aware of the potential for problems and injustice arising from the “knock-on” effect of the indiscriminate and inappropriate application of Mental Health Act definitions across a wide range of legislation on unrelated topics.

Consensus for change

As recently as 1995, the then Scottish Health Minister said of both the 1984 Act and its English counterpart (Mental Health Act 1983):

“I acknowledge the case for considering whether the Acts still reflect current practice.  But there is no clear evidence at present, I believe, to conclude that they fail to meet present-day needs or that there is as yet any emerging consensus about how the position might be changed.”

Those comments led directly to a major conference in Edinburgh on 6 December 1995 entitled “Consensus for Change?”, organised jointly by the Law Society of Scotland, the Royal College of Psychiatrists (Scottish Division) and the Scottish Association for Mental Health.  The outcome was clear: there was indeed consensus that a fundamental review of mental health law was urgently required, and indeed the conference report could well form a starting-point for the review now ordered, three years later, by Mr Galbraith.

Substantial

The whole environment in which mental health law operates has changed almost beyond recognition since 1960, and the accelerating pace of change has meant that most of those changes have occurred since 1984.  I would highlight the following eight areas of substantial change.

Firstly, there have been major changes in the ways in which mental disorders are treated and the places in which they are treated.  We strive to enable people to live normally in their homes, or as near normally as possible in as homely settings as possible.  As far as we can, we take services to people rather than bring people to services.  Advances in psychiatry have played a major role in making this possible.  Improved perceptions of mental disorders and greater respect for human rights have been fundamental.

Secondly, the pattern of psychiatric services has altered fundamentally.  At the 1995 conference I quoted the following figures from a typical Scottish Health Board area. Average daily number of detained patients plummeted after the 1960 Act introduced mandatory review, but rose after 1984.  Leave of absence was available since 1960, but use increased markedly after 1984.

Not only have beds reduced, but they have been decentralised, as have services.  In both 1960 and 1984, all services for the area referred to above were centralised in one large hospital.  By 1995 the front line comprised three Community Mental Health Teams, backed up by five day hospitals spread through the community, four decentralised in-patient sites, including acute psychiatric wards in both of the area’s general hospitals, a couple of residential rehabilitation sites, and small new purpose-built long-term care facilities.  In other words, there had been a complete re-orientation since the 1984 Act.

Developments

Thirdly, there have been significant developments in roles and recognition of several relevant professions and services - mental health officers, psychiatric nurses, community psychiatric nurses, learning disability nurses, psychologists, the professions ancillary to medicine, specialised and available legal services, and others; and of the importance of patient advocacy services.

Fourthly, we hear increasingly the voices of families and other carers.  Their concerns differ in some significant respects from those of users of services.  They often bear the brunt of “community care”, and for some families this can mean emotional and financial damage and social suicide.  While generalities can be dangerous, families tend to favour early intervention, rather than delay until families and their ability to give support are seriously damaged.

This leads to the next two points.  The fifth is the growing recognition that recovery and rehabilitation largely depend upon the strength of the individual patient’s social and family support systems, and that it will generally be counter-productive in the long run if they are unnecessarily damaged in the short-term response to a crisis.  And sixthly, there is also growing recognition of the multi-cultural dimension in balancing the rights of users, families and society, and in safeguarding family and social support mechanisms.  I believe that we should go beyond merely accommodating cultural differences, to actively seeking out lessons which cultural diversity can teach us.

Two levels

Seventh is the effect of international trends, at two levels.  We have several international conventions and declarations such as the European Convention on Human Rights and its Protocols, and United Nations General Assembly Resolution A/46/721 adopted 18 February 1992 “The Protection of Persons with Mental Illness and the Improvement of Mental Health Care”.  One hopes that the Millan Committee will at least encourage full compliance with the second of these, at a time when emerging democracies are looking to the rights and safeguards embodied in it as representing the minimum acceptable international standard.  Likewise, one trusts that the Committee will not accept without challenge the United Kingdom’s formal reservations in relation to Council of Europe, Committee of Ministers, Recommendation No R(83)2 adopted 22 February 1983 “Concerning the Legal Protection of Persons Suffering from Mental Disorder Placed as Involuntary Patients”.

The reservations related to rules that there should be

“…a person whose duty it is to assist the patient to decide whether to appeal should be designated by an appropriate authority, without prejudice to the right of appeal of any other interested person” (Article 4.2, last sentence); that “[the patient] should be informed of his right to appeal against the decision ordering or confirming the placement and, if he requests it or the judge considers that it would be appropriate, have the benefit of the assistance of a counsel or of another person” (Article 4.3, last sentence); and that “The right of a patient... to send any letter unopened, should not be restricted.” (Article 6b).6

Mentioned

There have also been significant trends in reform and development of mental health law in various countries.  This article is not the place for a detailed examination of those trends, but some are mentioned in relation to specific topics addressed next month.

Eighthly, and lastly in this section, the voice of users of mental health services has become increasingly powerful.  Many of them refer to themselves as “survivors”, not of their illnesses, but of our psychiatric system, which has the awesome power to incarcerate them indefinitely, strip them of fundamental rights, and impose medication (which may have most unpleasant side-effects) and other treatment against their will.  Historically, the perception of very many was that they had no voice and no status, even in matters of intimate personal concern to themselves.  They may acknowledge that there can sometimes be a place for detention, but not for involuntary treatment.  They argue that many of the guarantees in the European Convention on Human Rights are violated by detention and involuntary treatment.  These points lead to some of the issues which must be central to the forthcoming review, and which will be addressed in the second part of this article, next month.