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Mental health compulsion: new rights and responsibilities

For a long time, it seemed that MHA 1983 was to be replaced with a new Act. In 1998, the Government set up an expert committee under Professor Genevra Richardson to make proposals for reform. In its eventual report, the Richardson Committee said that it favoured the notion of ‘patient autonomy’ and recommended, amongst other things, that there should be a much broader definition of ‘mental disorder’ than the one contained in MHA 1983. However, as the new definition would be the touchstone for compulsion, the committee said it should be accompanied by strict conditions.2 First of all, a person with mental disorder who was nevertheless capable should only be subject to compulsion if there was a substantial risk of serious harm to his own health or safety, or to the safety of others.3 Furthermore, any treatment should be likely to improve or prevent deterioration of the patient’s condition. These are, respectively, the ‘capacity’ and ‘treatability’ tests. In a Green Paper published in November 1999, the Government rejected the Richardson Committee’s CONTEXT INTRODUCTION recommendations. 4 Although it accepted that ‘mental disorder’ should be more broadly defined, it said that tight conditions were unnecessary, and it rejected the ‘capacity’ and ‘treatability’ tests out of hand. There followed a White Paper5 and, in June 2002, a first draft Bill.6 Neither document paid much regard to the Richardson committee’s recommendations. After a period of consultation, and also of consideration by a Parliamentary Human Rights Committee,7 a second draft Bill was published in September 2004.8 Over the winter of 2004/2005, the draft Bill was scrutinized by a joint Parliamentary Committee, which published its report at Easter 2005.9 The Scrutiny Committee said the draft Bill was ‘fundamentally flawed, [...] too focused on addressing public misconception about violence and mental illness, and does not do enough to protect patients’ rights.’ More particularly, the committee, like Richardson before it, said that a patient’s capacity should be relevant to the decision to use compulsion, and that he should only be subject to coercive powers if his capacity were ‘significantly impaired.’10 The Scrutiny Committee said the Government should only proceed with the draft Bill ‘with significant amendments.’11 However, in a response published in July 2005, the Government affirmed its intention to press on.12 In particular, it dismissed the idea that compulsion should be contingent on capacity. It said that it is risk, as assessed by clinicians, that should be the key factor: ‘It is possible that people who are at very great risk to themselves or others would nonetheless retain the ability to make unimpaired decisions about their treatment.’13