The Draft Mental Health Bill in England: without principles

A Joint Committee of the House of Commons and the Lords has been charged with considering the Draft Mental Health Bill 2004. Despite 6 years of preparation and consultation, the Bill still provokes strong and largely adverse reactions from most quarters. The work of the Joint Committee is to address

The Bill in relation to key national and international mental health policies Along with reference to the recently enacted Mental Health (Care and Treatment) Act 2003 in Scotland (Scottish Executive, 2003), and the recommendations of the Richardson Committee (Richardson, 1999), the following national and international mental health policies can be used as points of reference to assess how far the Bill is consistent with their recommendations: . The National Service Framework for Mental Health (Department of Health,1999) . Social Exclusion Unit report, Mental Health and Social Exclusion, published by the Office of the Deputy Prime Minister (Social Exclusion Unit, 2003) . World Health Organization report,World Health Report on Mental Health 2001 (World Health Organization, 2001) . United Nations report, Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care 1991 (United Nations,1991) . World Psychiatric Association, Declaration of Madrid 1996(World Psychiatric Association,1996. As the Draft Mental Health Bill 2004 does not give an explicit account of its guiding principles, we must infer how far its measures, if implemented, would be consistent with the principles set out in these policies, and this is summarised in Table 1. Table 1 makes it clear that most of the principles seen as fundamental to good practice in mental health (in the relevant national and international policies) are neither explicit nor implicit within the current Bill. It is also apparent from this table that of the 12 key principles that consistently emerge from this review, the Bill conflicts with five (choice, therapeutic benefit, autonomy, dignity, least restrictive treatment), the Bill does not refer to or is unclear for five (participation, non-discrimination, access, capacity, family involvement) and the Bill may support only two (advocacy, safety).

Discussion
Of particular importance is the fact that there is no reference to the principle of 'therapeutic benefit', explicitly stated in all of the key references. The Bill requires that medical treatment be available which is 'appropriate in the patient's case, taking into account the nature or degree of his mental disorder and all other circumstances of his case'. 'Appropriate' is ambiguous and has no necessary connection with 'therapeutic benefit'.
The proposals for the Non-Resident Order (a form of community treatment order) do not currently fulfil the principle of effective interventions, as the international research on these arrangements does not show strong evidence for their effectiveness (Ridgely et al, 2001;Preston et al, 2002).
Although the principle of safety is given salience in the Bill, it is unlikely that its expression is consistent with the intended meaning, for example, in the United Nations Principles. The third criterion for the application of an involuntary treatment order states that protection of the patient should be on the basis of serious self-harm or serious neglect of his health or safety. Yet the 'protection of others' in this criterion is not qualified by a phrase containing the word serious. A difference in threshold for compulsion is thus implied. This conclusion is reinforced by a further clause which states that another criterionthat medical treatment cannot lawfully be provided without the patient being subject to compulsion -may be (or must be -it is not clear which) waived when there is a 'substantial risk of serious harm to other persons'. So the risk of harm to others is to be divided into two classes with that for the 'protection of others' in the third criterion being less than 'substantial' and 'serious'. Thus the 'protection of others' applies to risk that may be 'substantial' but not 'serious', or 'serious' but not 'substantial', or neither serious nor substantial. The gulf then between an acceptable level of risk to the patient's own health or safety, which must be serious, as against the non-serious risk to others is even wider than appears at first.
The waiver when there is a 'substantial risk of serious harm to other persons' of the requirement that no lawful alternative exists to the use of compulsion (the most common alternative being the patient's acceptance of informal treatment) is a radical departure in mental health legislation, whose underlying philosophical basis has not been discussed. It is clearly contrary to the 'least restrictive alternative' principle. The health benefit to the patient, usually seen as the primary purpose of mental health legislation, is thus subverted by the primacy of avoiding risk to others. Yet a further problematic consequence of the concern with risk to others is the granting of powers, in civil cases, to mental health tribunals to reserve to themselves the decision to grant leave to or to discharge a patient. This is a form of 'restriction order' such as that used in the forensic arena, which is now to be applied generally. It means that the clinical supervisor's decision that it is appropriate for the patient to now be treated informally can be overridden by the tribunal.
The manner in which the principle of safety is given salience in the Bill is likely to reinforce common and stigmatising stereotypes that associate mental illness and violence. This conflicts with the principles of participation, autonomy and empowerment, and dignity. It is also in direct conflict with the policies contained in the Government's recent policy paper by the Social Exclusion Unit (2003).
Apart from the support for advocacy, it seems reasonable to conclude that this Bill is lacking in the remaining principles enunciated in the key policy documents that have provided a framework for our discussion. Why is this important? We doubt that legislation not founded on the national and international principles underlying modern mental health services can further the objectives of those services. Instead we have concerns that such ungrounded law will undermine the aspirations of both users and providers of mental health services to act in accordance with fundamental principles such as dignity, autonomy, empowerment, access and non-discrimination. In this sense it may not only be without principles, but there is a danger that in some circumstances (for example, when there are pressures for increased social control) its use could become unprincipled. We therefore agree with the report of the Joint Committee that 'the fundamental principles underpinning the legislation must be set out on the face of the Bill' (Joint Committee, 2004^5).

Declaration of interest
None.