Fit for the 21st Century? A Review of the Report of the Joint Committee on the Draft Mental Health Bill 2004
| Pages | 35-39 |
| Date | 01 September 2005 |
| DOI | https://doi.org/10.1108/13619322200500028 |
| Published date | 01 September 2005 |
| Author | Chris Heginbotham |
| Subject Matter | Health & social care |
The Mental Health Review Volume 10 Issue 3 September 2005 ©Pavilion Publishing (Brighton) 2005 35
Fit for the 21st Century?
AReview of the Report of
the Joint Committee on the
Draft Mental Health Bill 20041
Chris Heginbotham
Chief Executive
Mental Health Act Commission
Extra Curriculum
Introduction
The proposed revision to mental health legislation of
England and Wales has been long in gestation. In 1998
the government asked Professor Genevra Richardson
to chair an expert committee to review the legislation
and report (Department of Health, 1999a). By and
large the committee’s recommendations were not
accepted by government but were followed by a
Green Paper in 1999 (Department of Health, 1999b), a
White Paper in 2000 (Department of Health, 2000),
and a draft Bill in 2002 (Department of Health, 2002).
Organisations and individuals submitted over 2,000
commentaries on the draft Bill, many sharply critical
of one or moreaspects of the proposed legislation.
Following further consideration by the
Department of Health, including a series of
stakeholder seminars during 2003 and early 2004, the
revised draft Bill with guidance notes was published
on 13 September 2004 accompanied by a composite
response to the commentaries received in 2002
(Department of Health, 2004c; 2004a). As well as the
morecontroversial aspects that have generated most
debate, the Bill contains some positive developments.
For example, the proposals for advocacy are to be
welcomed, as is the drive towards morecommunity
treatment and, subject to some important caveats, the
availability of a tribunal soon after initial admission to
hospital is a step towards meeting UN
recommendations for ‘speedy’ access to a court or
similar body. Although this article will focus on the
matters that have created most argument, it should not
be assumed that everything about the Bill is
contentious, or that there are not valuable aspects of
the proposals that should be retained.
At 307 clauses and 14 schedules the Bill is, on that
measure, over twice as long as the Mental Health Act
1983 and, by common consent, is complex and
difficult for the lay person to understand readily. This
is a pity as one objective for the Bill was to create a
new legal framework for the 21st century, recognising
the trend towards community provision of mental
health care over the last 20 years or so. Indeed, the
Joint Committee on the Draft Bill2suggested that any
Bill presented to Parliament must be clearer and easier
to read than the current draft. Whether the Bill
achieves another objective of creating a radically new
approach to compulsory care is open to question.
Many important issues have caused controversy
during preparation of the Bill but three particular
changes introduced in the Bill raise significant
concerns and deserve most attention. They are: (i) to
amend (and widen) the conditions for compulsion in
the 1983 Act; (ii) to place a Mental Health Tribunal on
‘entry’ to compulsion as well as ‘exit’; and (iii) to
introduce non-resident orders – a form of community
treatment provision. The last of these, although
ostensibly one of the main reasons for new legislation,
will be dealt with in this article in the context of
decisions of the tribunal.
Early in the preparation of the Bill the Department
of Health came to the view that amending the Mental
Health Act 1983 was not an option as it would require
such fundamental change that a wholly new piece of
legislation was needed. In the event, and without
debating the many differences of view expressed by
interested parties such as the Mental Health Alliance,
the Bill itself has now been amended and modified to
the point where revisions to the Mental Health Act
1983 could have conceivably provided an easier,more
1Published on 23 March 2005.
2Usually referred to as the Pre-legislative Scrutiny Committee – a joint Select Committee of the House of Lords and the House of Commons.
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