It is disappointing that after so many years and extensive discussion and consultation, and particularly following the report of the Parliamentary Joint Scrutiny Committee, that the government has decided to ignore widely held views and concerns about some key issues. The Scrutiny Committee was quite clear that two essential criteria, in relation to non-consensual detention and/or treatment, should be that the person fails to retain full decision-making capacity and that he or she will benefit from the medical intervention.

 

We agree that there should be no distinction between one group of compelled patients and another. It is commonly forgotten that the “treatability test” applies to all patients detained under the ‘83 Act after six months (Section 20(4)(b)). We fully support that this should be brought forward to 28 days. The proposed ‘appropriate treatment’ wording has no clear meaning which is why it continues to be unsatisfactory. The College recommends either continuing with the current wording in the ’83 Act or amending it to include the words “therapeutic benefit”.

 

We welcome the limitations in relation to people with a learning disability and the exclusion of drug and alcohol dependence from the definition of mental disorder In relation to the latter point, exclusion solely on grounds of drug or alcohol misuse, as recommended by the Scrutiny Committee and the College, would be both more appropriate and effective. We continue to believe that people should not be detained in hospital solely on the grounds of sexual deviancy (any more than they should solely on the grounds of drug dependence). Nor solely to prevent criminal behaviour. We also regret the government abandoning introducing principles on the face of the Bill, the right to advocacy and the authorising tribunal.

 

If ‘impaired decision-making by reason of mental disorder’ and ‘therapeutic benefit’ criteria (as recommended by the Scrutiny Committee, the College and the Mental Health Alliance) were included, and the exclusions modified as suggested, we would welcome the simplified definition of mental disorder, the expansion of professional roles and the introduction of supervised community treatment being limited to patients who are detained in hospital.

 

Finally, we note that the briefings, in the section “Setting the scene” state “The Mental Health Act allows the small number of patients with mental health problems who are at risk of harming themselves or, more rarely, others, to receive compulsory treatment”. This appears to omit the criterion “in the interests of his own health” as in sections 2 and 3 of the 1983 Act. This was not a criterion for compulsion in the draft Mental Health Bill 2004. Is “in the interests of health” to be removed as part of the current proposals?