New Medicalism and the Mental Health Act 9781509907663, 9781509907694, 9781509907670

Ten years have passed since the Mental Health Act (MHA) 2007 came into force in England. An amending statute, the Act re

210 28 9MB

English Pages [339] Year 2018

Table of contents :
Preface
Acknowledgements
Contents
Table of Cases
Table of Legislation
Introduction
1. The Mechanics of Mental Health Law in England
Introduction
Voluntary Patients
Informal Patients
Formal Patients
Conclusions
2. The Centrality of Risk in the Mental Health Act and its Consequences
Introduction
'Immediately Befogged': The Difficulties of Defining 'Risk'
Unlocking the Compulsory Powers: The Panoply of Risk
'Risk' and the Courts
Tacit Knowledge, Risk and the Mental Health Act
Conclusions
3. New Medicalism and the Mental Health Act 2007
Introduction
Legalism, Medicalism and the Recent History of Mental Health Law in England
The Renewed Prominence of Risk: The Policy Behind the 2007 Act
The Reforms of the Mental Health Act 2007
Evaluating the Mental Health Act 2007: The Case for New Medicalism
Conclusions
4. Theorising New Medicalism
Introduction
The Risk of Mental Illness
The Risks of Harm Associated with Mental Illness
Conclusions
5. New Medicalism and Human Rights
Introduction
New Medicalism and the European Convention on Human Rights (ECHR)
New Medicalism and the UN Convention on the Rights of Persons with Disabilities (CRPD)
Conclusions
6. Evaluating the Impact of the Mental Health Act 2007
Introduction
Assessing the Impact of the 2007 Act
Assessing the Determinative Potential of Legislation Governing the Compulsory Care and Treatment of Persons with Mental Disorder
Conclusions
7. Reflections on New Medicalism
Introduction
The New Medicalist Moment
After the Mental Health Act: Where Next?
Conclusions
Conclusions
Bibliography
Index

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NEW MEDICALISM AND THE MENTAL HEALTH ACT Ten years have passed since the Mental Health Act (MHA) 2007 came into force in England. An amending statute, the Act reformed the MHA 1983 and reshaped the law governing the compulsory care and treatment of people suffering from mental disorders. Primarily driven by concerns about risk, it sought to remove legalistic obstacles to civil commitment and extend the law’s coercive reach into the community. At the time of its introduction, the 2007 Act was written off as a retrograde step and a missed opportunity for radical, rights focused reform. Despite this, little attention has been paid to its impact in the years since. Published to coincide with the tenth anniversary of the 2007 Act, this book offers a timely evaluation of mental health law and policy in England. It argues that the current MHA defies easy categorisation within any of the descriptive models which have customarily narrated the mechanics of civil commitment, namely ‘legalism’, ‘new legalism’, and ‘medicalism’. It therefore makes the case for a new model—new medicalism—to account for the 2007 Act’s enhancement of the discretion of mental health professionals for the express purposes of facilitating the management of situations of risk. In doing so, the book: critically examines the problems inherent in civil commitment frameworks organised around the concept of risk; explores the theoretical foundations of new medicalism; considers the challenges facing proponents of future reform in the era of the UN Convention on the Rights of Persons with Disabilities; and, reflects on the 2007 Act’s practical impact.

ii

New Medicalism and the Mental Health Act

John Fanning

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2018 Copyright © John Fanning, 2018 John Fanning has asserted his right under the Copyright, Designs and Patents Act 1988 to be identified as Author of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/ open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2018. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication data Names: Fanning, John (John Bridge), author. Title: New medicalism and the Mental Health Act / John Fanning. Description: Oxford [UK] ; Portland, Oregon : Hart Publishing, 2018. | Identifiers: LCCN 2018011669 (print) | LCCN 2018012295 (ebook) | ISBN 9781509907687 (Epub) | ISBN 9781509907663 (hardback : alk. paper) Subjects: LCSH: Mental health laws—England. | Great Britain. Mental Health Act 2007. Classification: LCC KD3412 (ebook) | LCC KD3412 .F36 2018 (print) | DDC 344.4203/22—dc23 LC record available at https://lccn.loc.gov/2018011669 ISBN: HB: 978-1-50990-766-3 ePDF: 978-1-50990-767-0 ePub: 978-1-50990-768-7 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

For Noah, Henry and Emilia, and the others who may follow

vi

PREFACE

This book is about mental health law. Specifically, it is about English mental health law since the introduction of the Mental Health Act (MHA) 2007, which amended the MHA 1983 and changed the mechanics of civil commitment. To account for the amended MHA’s distinct policy drivers and intended practical consequences, this book coins a new descriptive model: ‘new medicalism’. Its core claim is that the amended MHA is a manifestation of this ‘new medicalism’, in that it seeks to diminish the determinative potential of the law in order to enhance mental health services’ responsiveness to the perceived risks of harm associated with mental disorders. People suffering from mental disorders can be compulsorily admitted to hospital, or ‘sectioned’, under the MHA 1983. The MHA legitimises the deployment of some of the most coercive powers available to the state: it authorises the detention of mentally ill people in hospital, gives ‘guardians’ the power to dictate where a patient with a mental illness should live, and allows doctors to administer treatment for a mental disorder to a patient without his consent. Importantly, it is the risk that a mentally disordered person poses to himself or others that justifies the deployment of these powers. After a tortuous reform process, the 2007 Act finally received Royal Assent in July 2007. Driven by concerns that the original 1983 Act did not do enough to tackle the risks associated with mental disorders, its reforms notionally make it easier for mental health decision-makers (ie, psychiatrists, approved mental health professionals, and others authorised to deploy the compulsory powers) to bring mentally disordered patients within the MHA’s ambit. It simplified the definition of ‘mental disorder’, lowered the threshold at which compulsory treatment can be authorised, introduced Supervised Community Treatment, and widened the range of health professionals eligible to invoke the civil commitment powers. At the same time, it preserved the centrality of risk, meaning that compulsory admission would continue to be justified with reference to the health or safety of the patient or for the protection of others. By removing ‘legalistic’ obstacles to compulsion and in providing new powers to facilitate the care and treatment of people suffering from mental disorders, the 2007 Act was intended to have a transformative effect on mental health law, policy and practice in England and Wales. This book has three aims. First, it seeks to survey the 2007 Act’s reforms and explore their underlying rationale. Second, it aims to make the case for the recognition of ‘new medicalism’ as a distinct descriptive model and to locate the 2007

viii Preface

Act within it. Third, it aims to reflect on the impact and consequences of new medicalism and the 2007 Act’s reforms. The book’s principal objective is therefore to make a significant original contribution to the literature by reconceptualising the MHA and its policy underpinnings for the post-2007 Act era. In doing so, it seeks to enrich the vocabulary of mental health scholarship and advance our understanding of the law’s role in this area. The contribution that this book makes is both timely and important as we mark the tenth anniversary of the 2007 Act and grapple with the practical and policy challenges that remain, especially in the era of the United Nations Convention on the Rights of Persons with Disabilities. This book will therefore be of interest to scholars, students, practitioners and policymakers in the field of mental health law and policy. The arguments advanced over the pages that follow were first developed in my doctoral thesis, ‘Risk and the Mental Health Act 2007: Jeopardising Liberty, Facilitating Control?’, which I completed at the University of Liverpool between 2009 and 2013. In it, I contended that criticism of the 2007 Act was overblown, law is a wholly limited driver of change, and risk—for all its uncertainties—is the only plausible basis on which to deploy civil commitment powers. In the years since finishing my thesis, I have refined and tempered my claims and taken my time to write a book which offers what I hope comprises a more nuanced and sophisticated analysis. There is no doubt, however, that some of the claims I make may be controversial. I would like to assure my readers at the outset that I have not set out deliberately to cause controversy; rather, I have sought to develop an original argument in the spirit of scholarly debate. Those who know me well will tell you I am contrary by nature; many undoubtedly find it a tiresome and exasperating quality. Yet I believe it is the duty of academics to test the limits of knowledge, search fearlessly for truth, and criticise orthodoxy. I have written this book with this solemn duty in mind. If readers feel at times that my contrarian instincts have got the better of me, or identify flaws in my methods or arguments, I urge them to challenge me. It is only through unfettered academic debate that we will ever get close to the truth. Beyond that, any errors that remain are my own. I am often asked why I take an interest in mental health law and policy. As a classical liberal, I am imbued with a natural scepticism of the coercive power of the state, whose capacity to abridge liberty must never be underestimated. I believe that liberty should always be presumed and that deprivations of it should be exceptional and legally justified. The law therefore plays an essential role in demarcating the limits of the state’s power. The MHA provides the legal basis for deprivations of liberty on the basis of mental illness and it is this which ignites my academic curiosity. Why does the law authorise the suspension of the liberty of the mentally ill? How does it do it? To what extent can it be justified? These are the fundamental questions which interest me. I am fortunate in that I have not, up to now at least, experienced a mental health crisis in my life; my interest in this field does not therefore derive from personal experience. I am not a psychiatrist and profess to have no practical knowledge or experience of the diagnosis, care and treatment of mental disorders. Nor can I claim to be a mental health activist

Preface ix

seeking to harness the law’s instrumental potential. There are many others who can speak to these issues with much more authority than me. My interest in this field is about liberty and the power of the state, pure and simple. I hope that this book, which so plainly sits within the classical liberal tradition, will make a valuable contribution to mental health law on that basis most of all. The book contains seven substantive chapters: chapter one sets out the mechanics of mental health law; chapter two analyses the consequences of the ‘centrality’ of risk in the MHA; chapter three sets out the 2007 Act’s reforms and makes the case for ‘new medicalism’ as a distinct descriptive model; chapter four ‘theorises’ new medicalism; chapter five evaluates the human rights implications of a new medicalistic framework; chapter six considers the impact of the 2007 Act’s reforms; and chapter seven reflects on new medicalism and what the future might hold for mental health law and policy.

x

ACKNOWLEDGEMENTS

The publication of this book marks the end of nearly a decade of work on mental health law and policy which began in 2009 when I started my doctoral thesis. Because this book derives so substantially from that thesis, I would like to reaffirm the acknowledgements I wrote in the front matter to that project in 2013. In many ways, this monograph is simply ‘phase two’ of one big project, and so my gratitude to those people who have shown such unfailing continuity of support remains current and boundless. To their number, I would like to add the names of Professor Jean McHale and Professor David Denney, both of whom served as external examiners in my viva voce examination in October 2013. The helpful comments they gave me have proved to be invaluable in making this book the very best it can be. I am very grateful to them. I was lucky enough to enjoy a year’s research leave during the academic year 2016–17 so that I could write this book. I would like to thank my colleagues in the School of Law and Social Justice at the University of Liverpool for giving me that opportunity. It is safe to say that it would have been very difficult, if not impossible, to complete this project without the benefit of such a significant period of leave from normal academic service. I would also like to thank Hart, my publisher, for helping me to fulfil my dream of publishing this monograph. Hart’s flexibility and generosity have been particularly helpful, especially in the final few months. Thank you. I would like to give a special mention to my colleagues in the Health Law and Regulation Unit in the School of Law and Social Justice for their support and encouragement. In particular, I would like to thank Professor Marie Fox, Dr Craig Purshouse and Dr Paula Case for each agreeing to read advanced drafts of the various chapters of this book, and for their very thoughtful comments. I would also like to thank Dr Matthew Gibson, Dr Michelle Farrell and Dr Harriet Gray for their help. Finally, I would like to say thank you to my family. Writing a monograph is a long and lonely process; to be able to call upon the emotional support of a loving family during it makes it all worthwhile. Special thanks go, as always, to my grandfather, mum, dad, brother and sister. I am pleased to say that, during the course of this project, my family welcomed my nephews, Noah David Eyres and Henry Francis Eyres, and my niece, Emilia Alice Fanning, into the world. I dedicate

xii Acknowledgements

this book to the next generation of my family. I hope that they, and any that may follow, will remain curious all the days of their lives. And, lastly, thank you, dear reader, for your interest. I hope you enjoy this book as much as I have enjoyed all the work that has gone into it over the last ten years or so. John Bridge Fanning Liverpool, England 15 January 2018

CONTENTS

Preface�� vii Acknowledgements�� xi Table of Cases�� xvii Table of Legislation�� xxiii

Introduction��1 1. The Mechanics of Mental Health Law in England��14 Introduction��14 Voluntary Patients��15 Informal Patients��17 The MCA 2005��17 The Bournewood Gap��19 The Deprivation of Liberty Safeguards (DOLS)��21 Formal Patients��25 The Application of the Mental Health Act��26 Compulsory Admission to Hospital��27 Treating Formal Patients��31 Discharging Formal Patients��35 Conclusions��40 2. The Centrality of Risk in the Mental Health Act and its Consequences��41 Introduction��41 ‘Immediately Befogged’: The Difficulties of Defining ‘Risk’��44 Unlocking the Compulsory Powers: The Panoply of Risk��47 Risk and Dangerousness��49 What Will Constitute Risk?��50 How is Risk Assessed?��55 ‘Risk’ and the Courts��62 Defining Risk��64 Evidencing Risk��70 Tacit Knowledge, Risk and the Mental Health Act��81 Polanyi, Tacit Knowledge and Connoisseurship��81 Tacit Knowledge and Mental Health Decision-Making��83 Conclusions��85

xiv Contents

3. New Medicalism and the Mental Health Act 2007��88 Introduction��88 Legalism, Medicalism and the Recent History of Mental Health Law in England��90 The Age of Legalism: 1890–1930��92 The Age of Medicalism: 1930–83��93 New Legalism and the Mental Health Act 1983��96 The Renewed Prominence of Risk: The Policy Behind the 2007 Act��98 Why Did Risk Become a Policy Priority?��98 How Did Risk Become a Policy Priority?��103 The Reforms of the Mental Health Act 2007��109 A Simpler Definition of ‘Mental Disorder’��110 The ‘Appropriate Treatment’ Test��111 Supervised Community Treatment (SCT)��112 The Redefining of Professional Roles��115 The ‘Fundamental Principles’��116 Reforms to the Rules Governing Referrals to the MHT��117 The New ECT Safeguards��118 Reforms to the Rules Governing the Appointment of Nearest Relatives (NRs)��118 The Introduction of Independent Mental Health Advocates (IMHAs)��119 Evaluating the Mental Health Act 2007: The Case for New Medicalism��120 On the 2007 Act’s Principal Reforms��120 On the Reformed Mental Health Act and the Descriptive Models of Mental Health Law��123 Conclusions��127 4. Theorising New Medicalism��130 Introduction��130 The Risk of Mental Illness��132 Risk Society Theory��132 Risk Society Theory and Mental Health��137 The Risks of Harm Associated with Mental Illness��153 Governmentality and the Concept of Risk��153 Governmentality, the Mental Health Act 2007 and New Medicalism��156 Conclusions��158 5. New Medicalism and Human Rights��160 Introduction��160 New Medicalism and the European Convention on Human Rights (ECHR)��163

Contents xv

The ECHR, the HRA and the Mental Health Act��163 On the Right to Liberty��165 New Medicalism and the Right to Liberty��172 New Medicalism and the UN Convention on the Rights of Persons with Disabilities (CRPD)��174 Background to the CRPD��174 The CRPD and Mental Health��177 New Medicalism, the Mental Health Act and the CRPD��182 Conclusions��190 6. Evaluating the Impact of the Mental Health Act 2007��193 Introduction��193 Assessing the Impact of the 2007 Act��195 Analysing the Statistical Evidence��195 Evaluating the ‘Other’ Evidence��214 Assessing the Determinative Potential of Legislation Governing the Compulsory Care and Treatment of Persons with Mental Disorder��224 To What Extent do Reforms to Mental Health Legislation Achieve their Policy Objectives?��224 To What Extent does Mental Health Law Tend to Map the Practice of Decision-Makers?��231 Conclusions��240 7. Reflections on New Medicalism��243 Introduction��243 The New Medicalist Moment��244 Justifying the 2007 Act’s Place in History��244 To What Extent should New Medicalism Worry Lawyers?��246 The End of the Moment is Nigh?��248 After the Mental Health Act: Where Next?��253 The CRPD and the End of Civil Commitment��254 The Mental Health Act and the End of Radicalism��262 Conclusions��266 Conclusions��268

Bibliography��272 Index��289

xvi

TABLE OF CASES

United Kingdom A Local Authority v E [2007] EWHC 2396 (Fam)��18 A Local Authority v H [2012] EWHC 49 (COP)��22 AB and CB v E [1987] SCLR 419��79 AH v West London MHT [2011] UKUT 74 (AAC)��188 Airedale NHS Trust v Bland [1993] AC 789 (HL) ��19 Akbarali v Brent London Borough Council [1983] 2 AC 309 (HL) ��65 Alsop v Sheffield City Council [2002] EWCA Civ 429 ��66 AM v South London and Maudsley NHS Foundation Trust [2013] UKUT 0365 (AAC)��25 An NHS Trust v A [2014] Fam 161��32 Anderson v Scottish Ministers [2001] UKPC D5��54, 67, 85 B v Croydon Health Authority [1995] Fam 133 (CA)��32 B v Forsey [1988] SLT 572 ��63 B v Scottish Ministers [2010] CSIH 31��63, 80 Barker v Barking, Havering and Brentwood Community Healthcare NHS Trust (Warley Hospital) [1999] 1 FLR 106��75 Bennetts v Ministry of Defence [2004] EWCA Civ 486��66 Blyth v Birmingham Waterworks (1856) 11 Ex Ch 781 ��46 Bolam v Friern Hospital Management Committee [1957] 1 WLR 582��71 Bolitho v City and Hackney Health Authority [1998] AC 232 (HL)��71 Bolton v Stone [1951] AC 850 (HL)��46 Bone v Mental Health Review Tribunal [1985] 3 All ER 330 (QB)��77 Bonnington Castings Limited v Wardlaw [1956] AC 613 (HL)��73 Brutus v Cozens [1973] AC 854 (HL)�� 64–66 Bryan v Robinson [1960] 2 All ER 173 ��65 Burnip v Birmingham City Council [2012] EWCA Civ 629 ��189 CC v KK and Another [2012] EWHC 2136 (COP)��22 Cheshire West and Chester Council v P [2014] UKSC 19��22–23, 189, 206–07, 210 Collins v Wilcock [1984] 1 WLR 1172 (QB)��16 Coombs v Dorset NHS Primary Care Trust [2012] EWHC 521 (QB)��26 Cullen v North Lanarkshire Council [1998] SC 451��66 D v South Tyneside Health Care NHS Trust [2003] EWCA Civ 878��71 DD v Durham County Council [2013] EWCA Civ 96��71 DL-H v Devon Partnership NHS Trust [2010] UKUT 102 (AAC)��78 DN v Northumberland Tyne and Wear NHS Foundation Trust [2011] UKUT 327 (AAC) ��25

xviii Table of Cases G v Central and North West London Mental Health Authority [2007] EWHC 3086 (QB)��71 Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 WLR 830 (HL)��34 Glasgow Corporation v Muir [1943] AC 448 (HL) ��46 Hawkes v London Borough of Southwark (CA, 20 February 1998)��66 Hillingdon London Borough Council v Neary (by his Litigation Friend the Official Solicitor) [2011] EWHC 1377 (COP)��22 In the Matter of X (A Child) (No 3) [2017] EWHC 2036 (Fam)��260 J v The Foundation Trust [2009] EWHC 2972 (Fam)��25 JE v DE and Surrey County Council [2006] EWHC 3459 (Fam) ��22 JP v South London and Maudsley NHS Foundation Trust [2012] UKUT 486 (AAC) ��167 King v RCO Support Services Ltd [2001] PIQR P15 (CA) ��66 Kings College Hospital NHS Foundation Trust v C [2015] EWCOP 80��16 Koonjul v Thameslink Healthcare Services [2000] PIQR P123 (CA)�� 66–68 Letting International Limited v Newham London Borough Council [2008] EWHC 1583 (QB)��67 Local Authority X v M [2007] EWHC 2003 (Fam) ��18 Lock v Lock [1958] 1 WLR 1248 ��66 MD v Mersey Care NHS Trust [2013] UKUT 127 (AAC)��72 Miller v Minister of Pensions [1947] 2 All ER 372 (KB)��73 Montgomery v Lanarkshire Health Board [2015] UKSC 11��71 Moyna v Secretary of State for Work and Pensions [2003] UKHL 44 ��65 Nottinghamshire Healthcare NHS Trust v RC [2014] EWCOP 1317��33 Pearce v United Bristol Healthcare NHS Trust [1999] PIQR P53��68 R (AN) v Mental Health Review Tribunal (Northern Region) [2005] EWCA Civ 1605��73 R (B) v Ashworth Hospital Authority [2005] UKHL 20��55, 65 R (B) v S [2006] EWCA Civ 28��42 R (CS) v Mental Health Review Tribunal [2004] EWHC 2958 (Admin)��36 R (DR) v Mersey Care NHS Trust [2002] MHLR 386 (Admin) ��36 R (East London and the City Mental Health NHS Trust) v Mental Health Review Tribunal [2005] EWHC 2329 (Admin) ��78 R (GP) v Derby City Council [2012] EWHC 1451 (Admin)��76 R (H) v Ashworth Special Hospital Authority [2002] EWCA Civ 923��75 R (H) v London North and East Region Mental Health Review Tribunal [2001] EWCA Civ 415��164 R (H) v Mental Health Review Tribunal [2001] EWCA Civ 415��64 R (H) v Mental Health Review Tribunal [2007] EWHC 884 (Admin) ��16 R (H) v Oxfordshire Mental Healthcare NHS Trust [2002] EWHC 465 (Admin)��73 R (Haddock) v Parole Board for England and Wales [2014] EWHC 4433 (Admin)��74 R (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19 ��65 R (Jones) v Isleworth Crown Court [2005] EWHC 662 (Admin)��76 R (K) v West London Mental Health Trust [2006] EWCA Civ 118��72 R (Khela) v Brandon Mental Health Unit [2010] EWHC 3313 (Admin)��70 R (L) v Secretary of State for the Home Department [2005] EWCA Civ 2 ��63 R (Lee-Hirons) v Secretary of State for Justice [2016] UKSC 46��43 R (Li) v Mental Health Review Tribunal [2004] EWHC 51 (Admin)��79

Table of Cases xix R (M) v Hackney London Borough Council [2011] EWCA Civ 4 ��43 R (M) v Secretary of State for Health [2003] EWHC 1094��164 R (MH) v Secretary of State for Health [2004] EWCA Civ 1609��165 R (MH) v Secretary of State for Health [2005] UKHL 50��165 R (MM) v Secretary of State for the Home Department [2007] EWCA Civ 687��74 R (Munday) v Secretary of State for the Home Department [2009] All ER (D) 96 (Admin) ��76 R (Munjaz) v Mersey Care NHS Trust [2006] 2 AC 148 (HL)��1, 52 R (N) v Mental Health Review Tribunal (Northern Region) [2005] EWHC 587��64 R (N) v Mental Health Review Tribunal (Northern Region) [2005] EWCA Civ 1605��72 R (NM) v Islington LBC [2012] EWHC 414 (Admin) ��189 R (Nottingham Healthcare NHS Trust) v Mental Health Review Tribunal [2008] EWHC 2445 (Admin) ��78 R (O) v West London Mental Health NHS Trust [2005] EWHC 604 (Admin)��49 R (OS) v Secretary of State for the Home Department [2006] EWHC 1903 (Admin) ��76 R (P) v Secretary of State for Justice [2009] EWCA Civ 701��69 R (PP) v Secretary of State for Justice [2009] EWHC 2464 (Admin)��68 R (Sessay) v South London and Maudsley NHS Foundation Trust [2011] EWHC 2617 (QB)��63 R (SG) v Secretary of State for Work and Pensions [2015] UKSC 16��189 R (Stevens) v Plymouth City Council [2002] EWCA Civ 388��80 R (Sunderland City Council) v South Tyneside Council [2012] EWCA Civ 1232 ��15 R (the Secretary of State for the Home Department) v Mental Health Review Tribunal [2003] EWHC 2846 (Admin)��28 R (the Secretary of State for the Home Department) v Mental Health Review Tribunal [2005] EWHC 746 (Admin) ��78 R (Von Brandenburg) v East London and the City Mental Health NHS Trust [2003] UKHL 58��72 R (W) v Doncaster MBC [2004] EWCA Civ 378 ��167 R (W) v Mental Health Review Tribunal [2002] EWHC 811 (Admin)��78 R (Wiltshire Council) v Hertfordshire CC [2014] EWCA Civ 712��63 R (Worcestershire CC) v Essex CC [2014] EWHC 3557 (Admin)��15 R v BHB Community Healthcare NHS Trust, ex parte B [1999] Lloyd’s Rep Med 101 (CA) ��36 R v Birch (1990) 90 Cr App R 78 (CA)��78 R v Bournewood Community and Mental Health NHS Trust, ex parte L [1999] 1 AC 458 (HL)�� 15, 19, 63, 163 R v Canons Park Mental Health Review Tribunal, ex parte A [1994] 2 All ER 659 (CA)��63 R v Coate (1772) Lofft 73 ��42 R v Collins, ex parte Brady [2000] Lloyd’s Rep Med 355 (QB)��32 R v Evans (Dorothy Gertrude) [2004] EWCA Crim 3102 ��65 R v Golds (Mark Richard) [2016] UKSC 61��65 R v Graciano (Fausto) [2015] EWCA Crim 980��78 R v London South and South West Region Mental Health Review Tribunal, ex parte Moyle (2000) The Times (10 February)��64 R v Mental Health Review Tribunal for South Thames Region, ex parte Smith (1999) 47 BMLR 104 (QB) ��28

xx Table of Cases R v Mental Health Review Tribunal, ex parte Booth [1998] COD 203 ��78 R v Mental Health Review Tribunal, ex parte Clatworthy [1985] 2 All ER 699 (QB)��78 R v Mental Health Review Tribunal, ex parte Pickering [1986] 1 All ER 99 (QB)��76 R v North West London Mental Health NHS Trust, ex parte S [1998] QB 628 (CA)��63 R v North West London Mental Health NHS Trust, ex parte Stewart (1997) 36 BMLR 151 (QB)��67 R v North West Thames Mental Health Review Tribunal, ex parte Cooper (1990) 5 BMLR 7 (QB)��72 R v Parole Board, ex parte Bradley [1990] 3 All ER 828��73 R v Riverside Mental Health Trust, ex parte Huzzey (1998) 43 BMLR 167 (QB) ��49 R v Ronald Lonford Golding [2006] EWCA Crim 1965��68 R v Secretary of State for the Home Department [1990] 1 WLR 168��79 R v Secretary of State for the Home Department [1998] 1 WLR 503 (CA)��49 R v Secretary of State for the Home Department, ex parte Benson (CA, 9 November 1988) ��49 R v Secretary of State for the Home Department, ex parte D [2002] EWHC 2805��164 R v Secretary of State for the Home Department, ex parte Stafford [1998] 1 WLR 503 (CA)��66 R v Steward (April Jane) [2008] EWCA Crim 1255 ��78 R v Trent Mental Health Review Tribunal, ex parte Ryan [1992] COD 157��76 Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2��15, 69–70 Randall v Randall [1939] P 131��66 Re A (Medical Treatment: Sterilisation) [1999] 53 BMLR 66 (CA)��19 Re A, Re C [2010] EWHC 978 (Fam)��22 Re B (Consent to Treatment: Capacity) [2002] EWHC 429 (Fam) ��16 Re C (Adult: Refusal of Medical Treatment) [1994] 1 All ER 819 (Fam) ��16 Re CB (A Minor) (Blood Tests) [1994] 2 FLR 762 (Fam) ��16 Re D (Children) [2015] EWCA Civ 749��18 Re F (Mental Patient: Sterilisation) [1990] 2 AC 1 (HL) ��19 Re HM’s Application for Judicial Review [2014] NIQB 43��164 Re MB (Caesarean Section) [1997] 2 FLR 426 (CA) ��18 Re Officer L [2007] UKHL 36��69 Re P (Permission to Withdraw Care Proceedings) (Fam, 26 January 2016) ��65 Re S-C (Mental Patient: Habeas Corpus) [1996] QB 599��43 Re T (Adult: Refusal of Treatment) [1993] Fam 95 (CA) ��16 Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1992] 3 WLR 758 (CA)��34 Re W (Adult: Refusal of Medical Treatment), Re [2002] EWHC 901 (Fam)��16 Re Weatherup [2004] NIQB 67��69 Re X [2008] NIQB 22 ��78 Re X (Deprivation of Liberty) [2014] EWCOP 25 ��167 Re X (EWHC, 13 May 2016 (F))��167 Reid v Secretary of State for Scotland [1999] 2 AC 512 (HL)��32, 63 RH v South London and Maudsley NHS Foundation Trust [2010] EWCA Civ 1273��76 RH v South London and Maudsley NHS Foundation Trust [2010] UKUT 32 (AAC)��78 RK (by her Litigation Friend the Official Solicitor) v BCC [2011] EWCA Civ 1305 ��22 Robinson v Robinson (by his Guardian) [1964] 3 WLR 935��66 Savage v South Essex Partnership NHS Foundation Trust [2009] 1 AC 681 (HL)�� 68–71

Table of Cases xxi Scott v Wakem (1862) 3 F and F 328 ��42 Seal v Chief Constable of South Wales Police [2007] UKHL 31��71 Secretary of State for the Home Department v Rehman [2001] UKHL 47��73 Secretary of State for the Home Department v Robb [1995] Fam 127 (Fam) ��16 Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] AC 871��68 St George’s Healthcare NHS Trust v S [1999] Fam 26 (CA)��16, 32 Stokes v Cox (1856) 156 ER 1225 ��66 Stuart Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345 ��189 Surrey County Council v P [2011] EWCA Civ 190��22 Symm v Fraser (1863) 3 F and F 859��42 T v T [1988] 1 All ER 613 (Fam) ��19 Tameside and Glossop Acute Services NHS Trust v CH (A patient) [1996] 1 FLR 762 (QB)��32 The Queen v Kirklees Metropolitan Council (CA, 16 March 1993)��15 Trust A v H (An Adult Patient) [2006] EWHC 1230 (Fam) ��18 W Primary Care Trust v TB (An Adult by her Litigation Friend the Official Solicitor) [2009] EWHC 1731 (Fam)��75 W v Egdell [1990] Ch 359 (CA)�� 79–80 W v L [1974] QB 711 (CA)��65 WBC (Local Authority) v Z (by the Official Solicitor as her litigation friend) X and Y [2016] EWCOP 4��68 Whysall v Whysall [1960] P 52��66 Woolley v Woolley (by her Guardian) [1966] 3 WLR 1117��66 Wyatt v Curtis [2003] EWCA Civ 1779��68 York City Council v C [2013] EWCA Civ 478��18 European Court of Human Rights Aerts v Belgium (2000) 29 EHRR 50��163, 170 Alajos Kiss v Hungary App no 38832/06 (ECtHR, 20 May 2010)��188 Amuur v France (1996) 22 EHRR 533��169 Asalya v Turkey App no 43875/09 (ECtHR, 15 April 2014) ��188 Ashingdane v United Kingdom (1985) 7 EHRR 528�� 169–70 Blokhin v Russia App no 47152/06 (ECtHR, 23 March 2016)��188 Dhoest v Belgium (1990) 12 EHRR CD135��163 Dordevic v Croatia [2012] ECHR 1640 ��163 Fernandes de Oliveira v Portugal App no 78103/14 (ECtHR, 28 March 2017)��188 Glor v Switzerland App no 13444/04 (ECtHR, 30 April 2009) ��188 Gorshkov v Ukraine App No 67531-01 (ECtHR, 8 November 2005) ��171 Grosskopf v Germany (2011) 53 EHRR 7��171 Guberina v Croatia App no 23682-13 (ECtHR, 22 March 2016) ��188 Guzzardi v Italy (1981) 3 EHRR 333��171 Herczegfalvy v Austria (1993) 15 EHRR 437 ��163, 166 Hiller v Austria App no 1967-14 (ECtHR, 22 November 2016)��188 HL v United Kingdom (2005) 40 EHRR 32��19–20, 163, 169 HM v Switzerland (2002) 38 EHRR 314��22 Jasinskis v Latvia App no 45744-08 (ECtHR, 11 December 2010)��188

xxii Table of Cases Johnson v United Kingdom (1997) 27 EHRR 296��55 JT v United Kingdom (2000) 30 EHRR CD77��164 Kaprykowski v Poland [2009] ECHR 198 ��163 Kawka v Poland App No 25874/94 (ECtHR, 9 January 2001)��43, 169 Khudobin v Russia [2006] ECHR 898��163 Kocherov and Sergeyeva v Russia App no 16899-13 (ECtHR, 29 March 2016) ��188 Kokkinakis v Greece (1993) 17 EHRR 397��168 Kolanis v United Kingdom (2006) 42 EHRR 12��169 Kuttner v Austria App no 7997-08 (ECtHR, 16 July 2015) ��188 Labita v Italy (2008) 46 EHRR 50 ��171 LCB v United Kingdom (1999) 27 EHRR 212��69 LM v Latvia [2013] MHLR 238��169 Nevmerzhitsky v Ukraine (2006) 43 EHRR 32 ��163, 166 Nielsen v Denmark (1988) 11 EHRR 175��22 Osman v United Kingdom (2000) 29 EHRR 245��69 Polskiego v Poland (2005) 41 EHRR 21��170 Reid v United Kingdom (2003) 37 EHRR 9��171 Renolde v France [2008] ECHR 1085��163 Romanov v Russia (2007) 44 EHRR 23 ��163 Saadi v United Kingdom App No 13229-03 (ECtHR, 29 January 2008)��169 Sabeva v Bulgaria App No 44290-07 (ECtHR, 10 June 2010)��169 Seal v United Kingdom [2010] ECHR 50330-07��71 Shtukaturov v Russia (2012) 45 EHRR 27 ��169 Stanev v Bulgaria [2012] ECHR 46��163 Storck v Germany (2005) 43 EHRR 96��22, 169 Sykora v Czech Republic App no 23419/07 (ECtHR, 22 November 2012)��169 Van der Leer v The Netherlands (1990) 12 EHRR 567 ��169 Varbanov v Bulgaria [2000] EHHR 455��168 Winterwerp v The Netherlands (1979–80) 2 EHRR 387��167–70, 172–73, 190 Witold Litwa v Poland (2001) 33 EHRR 53��171 X v Finland App no 34806/04 (ECtHR, 3 July 2012)��169 X v United Kingdom App no 7215/75 (ECtHR, 5 November 1981)��172 Zagidulina v Russia App no 11737/06 (ECtHR, 2 May 2013)��170 Overseas authorities Lessard v Schmidt 39 F Supp 1078 (ED Wis 1972)��63 Schloendorff v Society of New York Hospital 105 NE 92 (NY 1914)��16 Tarasoff v Regents of University of California 551 P.2d 334 (1967)��80 Court of Justice of the European Union C-13-05 Chacon Navas v Eurest Colectividades SA (2006) ��185

TABLE OF LEGISLATION

Act of 1744��91 Civil Partnership Act 2004��119 County Asylum Act 1809��92 County Asylum Act 1811��92 County Asylum Act 1819��92 Criminal Justice Act 2003 s 295��164 European Convention on Human Rights and Fundamental Freedoms (1950)��11, 71, 163–74, 183, 187–88, 255, 260, 269 art 2��69–70, 163 art 3��163, 166 art 5�� 20, 22, 161–67, 173, 190 art 5(1)��20, 161, 163–64, 166–73 art 5(1)(a)��163, 166 art 5(1)(b)��163, 166 art 5(1)(e)�� 20, 161, 163, 166, 168, 170, 176, 179, 185, 190, 191 art 5(4)��20, 163–65, 167 art 5(6)��163, 167 art 8�� 163–64 Family Law Reform Act 1969 s 8��34 Human Rights Act 1998�� 11, 161, 164–65, 190 s 1(1)(a)��163 s 2(1)��163 s 3(1)��163 s 4��164, 255 s 6��163 s 8(1)��163 s 19(1)(a)��163 International Covenant on Civil and Political Rights (1966)��174 International Covenant on Economic, Social and Cultural Rights (1966)��174, 177 International Convention on the Elimination of All Forms of Racial Discrimination (1965)��174 Juries Act 1974 s 1��262 Lunacy Act 1890��97, 98 s 4(1)��92 s 9(1)��92 s 11(1)��42

xxiv Table of Legislation Lunatics Act 1845��92 Manual Handling Operations Regulations 1992 reg 4(1)��66 Matrimonial Causes Act 1937��66 Matrimonial Causes Act 1950 s 1(1)(d)��66 Mental Capacity Act 2005�� 14, 15, 17–19, 183, 199, 206 s 1��117 s 1(1)��16 s 1(5)��18 s 2��254 s 2(1)��18 s 3��254 s 3(1)��18 s 4(6)��18 s 4A��19 s 4A(1)��18 s 4B��19 s 5��24 s 5(2)��18, 24 s 6��24 s 7��24 s 8��24 s 9��24 s 10��24 s 11��24 s 12��24 s 13��24 s 14��24 s 15��24 s 16��24 s 17��24 s 18��24 s 19��24 s 20��24 s 21��24 s 26��35 sch A1��21–24, 205 sch 1A�� 24–25 Mental Deficiency Act 1913 s 1��92 s 1(a)–(d)��248 s 1(c)��42 s 2��93 Mental Health Act 1959��125, 233, 237 s 3��94 s 4(1)��94 s 5��94

Table of Legislation xxv s 25(2)(b)��42 s 25(3)��94 s 25(4)��94 s 26(2)(a)(i)��65 s 26(2)(b)��42 s 26(3)��94 s 43��94 Mental Health Act 1983��vii, 1, 3, 5–7, 9, 13, 14, 17, 50, 90, 96–98, 103, 105, 173, 190, 195–96, 199, 212, 220, 227, 233, 235, 243, 248, 259 s 1(2)�� 24, 26–27, 97, 106, 110, 121, 180 s 1(2A)��24, 27, 110 s 1(2B)(a)��27 s 1(3)�� 27, 97, 110, 167 s 1(4)��27, 110 s 2��24–25, 27–29, 31, 36, 39, 41, 108, 165, 201 s 2(2)��25, 28, 41 s 2(2)(b)��25, 28, 41 s 2(3)��25, 28, 29 s 2(4)��25, 28, 36 s 3�� 24–25, 27–29, 31, 35–36, 39, 41, 108, 112, 114, 164, 204 s 3(2)�� 25, 28, 41, 114 s 3(2)(a)��25, 29 s 3(2)(b)��25, 97, 111 s 3(2)(c)��2, 25, 41 s 3(2)(d)��25, 111, 121 s 3(3)��25, 28 s 4�� 25, 27, 29, 31, 120, 164, 200–01 s 4(1)��25, 29 s 4(2)��25, 29 s 4(4)��25, 29 s 5�� 25, 27, 29, 31 s 5(2)�� 25, 29, 120, 200–01 s 5(4)�� 25, 29, 120, 200–01 s 5(4)(a)��25, 41 s 6(2)��27, 115 s 7��30, 36 s 7(2)��30 s 7(2)(b)��30, 41 s 7(3)��30 s 7(5)��30 s 8(1)(a)��26, 30 s 8(1)(b)��30 s 8(1)(c)��30 s 11(1)��28, 30 s 11(2)��28 s 12(2)��28, 115–16 s 12(2A)��116 s 17��36, 112, 221

xxvi Table of Legislation s 17(2A)��112 s 17(2B)��112 s 17A��36, 41 s 17(1)��41 s 17(4)��41 s 17A��36, 41 s 17A(1)��41, 112 s 17A(2)��41, 112, 203 s 17A(3)��41, 112 s 17A(4)��41, 113 s 17A(5)��41, 113 s 17A(6)��41–43, 113, 122 s 17B��41, 113 s 17B(2)��41, 113 s 17B(2)(b)��41, 42, 122 s 17B(3)��41, 113 s 17B(4)��41, 113 s 17B(5)��41, 113 s 17C��41, 113 s 17D��41, 112 s 17D(1)��41, 203 s 17E��41 s 17E(1)(a)��41, 114 s 17E(1)(b)��41–42, 114, 122 s 17F��41, 118 s 17F(4)��41, 114 s 17F(5)��41, 114 s 17G��41 s 17G(2)��41, 115 s 20��25, 36, 42 s 20(1)��28, 30, 37 s 20(2)��28, 30, 36 s 20(3)��36 s 20(4)��36, 111 s 20(5)��37 s 20A��42, 203 s 20A(1)��112 s 20A(3)��112 s 20A(7)��42 s 20B��113 s 23��37, 112 s 23(2)(a)��37 s 23(2)(b)��37 s 24��37 s 24(1)��37 s 24(2)��37 s 25��37 s 25(1)��37, 49

Table of Legislation xxvii s 26��28, 119, 164 s 26(1)(a)��28, 119 s 27��28 s 28��28 s 29��28, 118, 164 s 29(2)(a)��28, 118 s 29(2)(b)��28, 118 s 29(2)(c)��28, 118 s 29(2)(za)��28, 118 s 29(3)(a)��28, 119 s 29(3)(b)��28, 119 s 29(3)(c)��28, 119 s 29(3)(d)��28, 119 s 29(3)(e)��28, 119 s 29(4)��28, 36 s 30��28, 119 s 34(1)��116 s 37(1)��8 s 37(2)(a)(i)��111 s 41�� 8, 42, 74, 77, 188 s 41(1)��8, 42, 78 s 42��42, 74 s 43(1)(b)��42 s 45A(2)(c)��111 s 47(1)(c)��111 s 56(2)��31 s 56(3)��31 s 57��31, 33, 120 s 57(1)(b)��33 s 57(2)��33 s 57(2)(b)��111 s 58��31, 34 s 58(1)(b)��34 s 58(3)��34 s 58(3)(b)��111 s 58A(3)��34 s 58A(4)��34 s 58A(4)(c)��34 s 58A(5)��35 s 58A(6)��35 s 62��33 s 63��26, 31–34, 114 s 64B(2)(a)��114 s 64C(2)(a)��114 s 64D(4)(a)��114 s 64D(4)(b)��114 s 64G(3)��114 s 64G(4)��114

xxviii Table of Legislation s 64G(5)��114 s 66(1)��38 s 66(2)(a)��38 s 66(2)(b)��38 s 66(2)(c)��38 s 66(2)(ca)��38 s 67(1)��38 s 68��38 s 68(1)(c)��117 s 68(1)(d)��117 s 68(2)��117 s 68(3)��117 s 68(5)��117 s 68(6)��117 s 68(7)��118 s 68A(3)(a)��118 s 68A(3)(b)��118 s 72�� 39, 42, 112, 164, s 72(1)��39 s 72(1)(b)��39, 72, 80 s 72(1)(b)(iia)��111 s 72(1)(c)��39 s 72(1A)��42 s 72(3)��39 s 72(4)��39 s 73��164 s 73(1)(a)��77–78, 111 s 74��164 s 114(2)��115 s 114(10)��28 s 117��35 s 117(6)(b)��42 s 118(1)��50 s 118(2A)��116 s 118(2B)��116 s 118(2B)(h)��116 s 118(2B)(i)��116 s 130A(1)��120 s 130A(4)��120 s 130B(1)(a)��120 s 130B(1)(b)��120 s 130B(1)(c)��120 s 130B(1)(d)��120 s 130B(1)(e)��120 s 130B(1)(f)��120 s 130B(2)(a)��120 s 130B(2)(b)��120 s 130B(3)��120

Table of Legislation xxix s 130B(4)��120 s 130B(5)(a)��120 s 130B(5)(b)��120 s 130B(5)(c)��120 s 130B(6)��119 s 130C(2)(a)��120 s 130C(2)(b)��120 s 130C(2)(c)��120 s 130C(3)��120 s 130C(5)��120 s 130D(1)��119 s 130D(2)(a)��119 s 131�� 15–16 s 134(2)��42 s 135�� 30–31, 120, 215, 262 s 135(1)��30 s 135(1A)��30 s 135(3ZA)��31 s 136�� 30–31, 42, 120, 199, 200–01, 215, 262 s 136(1)��31 s 136(1C)��31 s 136(2)��31 s 136B(1)��31 s 139(1)��71 s 139(2)��71 s 145��111 s 145(1)��32, 111, 115–16 s 145(4)��32, 111 s 145(1AB)��111 Mental Health Act 1983 (Remedial) Order 2001��164 Mental Health Act 2007�� vii, viii, 1, 3, 4, 5, 7–8, 13, 20, 27–28, 40, 51, 85, 87–128, 151, 153, 156–58, 160, 163, 165, 174, 193–243, 266–68 s 1��2, 88, 110 s 1(2)��2, 88, 110 s 2�� 2, 88, 110, 199–200, 203 s 2(3)��2, 88, 110 s 3�� 2, 88, 110, 199–200, 203 s 4��2, 88, 199 s 4(2)(a)��88, 111 s 4(2)(b)��88, 111 s 4(3)��88, 111 s 4(4)��88, 111 s 4(5)��88, 111 s 4(6)��88, 111 s 4(7)��88, 111 s 4(8)��88, 111 s 4(9)��88, 111

xxx Table of Legislation s 4(10)��88, 111 s 6(2)(a)��88, 111 s 6(2)(b)��88, 111 s 7��88, 111 s 7(2)��88, 111 s 7(3)��88, 111 s 8��116 s 9��88, 116 s 9(10)��88, 116 s 10��88, 116 s 11��88, 116 s 12��88, 116 s 13��88, 116 s 14��88, 116 s 15��88, 116 s 16��88, 116 s 17��88, 112, 116 s 18��88, 115 s 19��88, 119 s 20��88 s 21��88 s 23��118–19, 165 s 23(4)��118, 165 s 23(5)��119, 165 s 24��119, 165 s 25��37, 165 s 26��119, 165 s 26(2)��119, 165 s 27��34, 118 s 30�� 119–20 s 32��88, 112–15 s 33��88, 112 s 35��88, 112–14 s 37�� 117–18 s 50��205 s 50(2)��21 s 56��21, 195 sch 7��205 sch 8��205 Mental Health Act 2007 (Commencement No 7 and Transitional Provisions) Order 2008��195 Mental Health Act 2007 (Commencement No 10 and Transitional Provisions) Order 2009��21 Mental Health (Amendment) Act 1982��97 Mental Health (Approved Clinician) Directions 2008��116 Mental Health (Approved Mental Health Professionals) (Approval) (England) Regulations 2008��115

Table of Legislation xxxi Mental Health (Care and Treatment) (Scotland) Act 2003 s 36(4)(b)��6 s 36(5)(b)��6 s 44(4)(b)��6 s 44(4)(d)��6 Mental Health (Discrimination) Act 2013 s 1��262 s 2��262 Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008 reg 27(1)��33 Mental Health (Northern Ireland) Order 1986 art 3(1)��6 Mental Health (Patients in the Community) Act 1995��102 s 1��147 Mental Health (Public Safety and Appeals) (Scotland) Act 1999 s 1��67 Mental Health (Scotland) Act 1984��63, 79 s 17(1)(a)(i)��171 Mental Health (Scotland) Act 2015��6 Mental Treatment Act 1930��128 s 1��42, 93 s 2��42, 93 s 3��42, 93 s 4��42, 93 s 5��93 Offences Against the Person Act 1861 s 20��74 Police and Crime Act 2017 s 80��262 s 81��262 s 82��262 Public Contracts Regulations 2006 reg 47(6)��67 Public Order Act 1983 s 5��64 Statute of the King’s Prerogative��91 Tribunals, Courts and Enforcement Act 2007��216 s 3��38 United Nations Convention on the Elimination of all Forms of Discrimination Against Women (1979)��174 United Nations Convention on the Rights of Persons with Disabilities (CRPD) (2006)�� viii, 3, 7, 11–13, 174–77, 182–84, 187–92, 214, 243–44, 251–63, 267, 269–271 art 1�� 162, 174, 176, 179, 185–86, 255 art 4�� 179–80 art 5��175 art 5(2)��176

xxxii Table of Legislation art 10��257 art 12�� 179–80 art 14��179–81, 185–86, 257 art 17�� 179–80 art 25��177 United Nations Convention on the Rights of the Child (1989)��174 United Nations Declaration on the Rights of Disabled Persons (1975) art 1��174 United Nations Declaration on the Rights of Mentally Retarded Persons (1971) art 1��178 art 7��178 United Nations Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care (1971) art 1(4)��178 art 16(1)��178 Universal Declaration of Human Rights (1950)��174

Introduction Ten years have passed since the Mental Health Act (MHA) 2007 reached the statute book. On receiving Royal Assent on 19 July 2007, it became the first major piece of mental health legislation to be introduced in England since the MHA 1983, 24 years earlier. Its enactment was the culmination of a protracted and controversial reform process which took the best part of a decade to complete. Despite several aborted attempts to replace the 1983 Act with a new framework, the Act that reached the end of the legislative process in 2007 was merely an amending statute which left the MHA 1983 in force and made various comparatively minor modifications to the mechanics of civil commitment. Although the original objective was to replace an ‘out of date’1 statute with a framework fit for the twentyfirst century,2 what emerged was plainly the product of tempered ambitions. Yet it was also profoundly contentious: at best, the 2007 Act represented a ‘missed opportunity for humane and progressive legislation’;3 at worst, it signalled the prioritisation of ‘preventive confinement’ over the care and treatment of patients with mental disorders.4 The result of an exhausting decade spent trying to replace the 1983 Act was for many observers an even less satisfactory arrangement than the one that had existed at the outset. This book is about that purportedly unexceptional and widely unwelcomed amending statute and its reform of the legal framework which governs the reception, care and treatment of mentally disordered persons in England. The MHA 1983 (as amended) contains some of the most coercive powers available to the state. Among other things, it permits mental health professionals to authorise the detention of people with mental disorders in hospital for the purposes of administering care and treatment to them on a compulsory basis. The people subject to these ‘compulsory powers’ need not have done anything

1

R (Munjaz) v Mersey Care NHS Trust [2006] 2 AC 148 (HL) 194 (Lord Steyn). Department of Health, Modernising Mental Health Services: Safe, Sound and Supportive (London, Stationery Office, 1998) [4.25]: webarchive.nationalarchives.gov.uk/+/www.dh.gov.uk/prod_consum_ dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_4046866.pdf. 3 Mental Health Alliance, ‘Mental Health Bill Remains a Missed Opportunity for Humane and Progressive Legislation, says Alliance’ (3 July 2007): www.mentalhealthalliance.org.uk/news/prendofbill. html. 4 LO Gostin, ‘“Old” and “New” Institutions for Persons with Mental Illness: Treatment, Punishment or Preventive Confinement?’ (2008) 122 Public Health 906, 907. 2

2 Introduction

wrong prior to their commitment: all that the MHA requires is that their detention is ‘necessary for the health or safety of the patient or for the protection of other persons’.5 This ‘risk formula’ means that a mentally disordered person’s detention will be justified on the basis that he poses a risk of harm to himself or others. In no other context can healthcare professionals administer involuntary care or treatment on the basis of such considerations. In this way, the MHA is the exception to some of the fundamental legal and ethical tenets that we take for granted in the wider medico-legal domain, such as the principle of autonomy and the right to self-determination. The 2007 Act’s reforms have doubled down on this exceptionalism. Justified on the basis that the original 1983 Act did not do enough to tackle the risks of harm associated with mental disorders, they have notionally enhanced mental health services’ responsiveness to risk. First, the 2007 Act has retained the MHA’s ‘risk formula’ as the fulcrum around which its compulsory powers turn, meaning that decision-makers’ assessments of risk continue to shape the nature and extent of patients’ interactions with mental health services. We will see that the policy context from which the 2007 Act’s reforms emerged explicitly emphasised the MHA’s function as a way of reducing or extinguishing the risks of hazards such as self-harm, suicide, violence, and so on. The retention of the risk concept as the MHA’s ‘organising principle’ reaffirms its centrality to civil commitment and involuntary treatment. Second, the 2007 Act has expanded the discretion of a wider range of mental health professionals to determine who should be compulsorily admitted, or ‘sectioned’, under the MHA and why. For example, it simplified the statutory definition of ‘mental disorder’,6 replaced the narrow ‘treatability’ test with the looser ‘appropriate treatment’ test,7 introduced Supervised Community Treatment (SCT),8 and redefined the roles of the professionals eligible to take decisions under the MHA.9 Whereas the original 1983 Act carefully prescribed the limits of professional discretion, the 2007 Act’s reforms have introduced broader and more open-textured provisions that facilitate the deployment of the compulsory powers or the extension of their reach. By overlaying these reforms onto a framework organised around the concept of risk, the 2007 Act has retreated from the rigidities of ‘legalism’ (ie, the model in which the law and legal rules determine who shall be compulsorily admitted to hospital) and embraced a kind of ‘medicalism’ (ie, the approach by which the nature of a person’s interaction with mental health services is determined through the exercise of the discretion of professional decision-makers).10 Its reforms therefore signify a

5

eg, MHA (Mental Health Act) 1983, s 3(2)(c). MHA (Mental Health Act) 2007, ss 1–3. 7 MHA 2007, s 4. 8 MHA 2007, ch 4. 9 MHA 2007, ch 2. 10 See, eg, J Brown, ‘The Changing Purpose of Mental Health Law: From Medicalism to Legalism to New Legalism’ (2016) 47 International Journal of Law and Psychiatry 1. 6

Introduction 3

fundamental shift in mental health policy—away from a preoccupation with individual rights and the improvement of health outcomes and towards more consequentialist and communitarian priorities. The core claim of this book is that while the 2007 Act’s reforms may appear to be modest at first glance, they in fact reflect a distinct set of policy underpinnings and operational priorities which make the amended MHA far more consequential. This book argues that the amended MHA gives expression to a distinct descriptive model: ‘new medicalism’. This model possesses significant explanatory force because it narrates the way in which the 2007 Act’s reforms have sought to diminish the notionally determinative power of the law in order to enhance mental health services’ responsiveness to risk. It is therefore no longer the case that the MHA’s principal function is to facilitate the improvement of health outcomes; rather, its chief purpose is to control and manage risk. For that reason, the 2007 Act’s underpinnings exhibit a markedly different emphasis from the models that inspired its statutory predecessors. Whereas previous frameworks sought to broaden access to treatment or bolster patients’ rights, the 2007 Act’s reforms were expressly organised around considerations of risk and public safety. They are also deeply problematic: the continued centrality of risk and differential treatment of persons with mental disorders means that the law lacks certainty, is unpredictable in its effects and operates according to a dynamic which is increasingly at odds with the principles of equality and non-discrimination, which have become more prominent in the discourse since the adoption of the United Nations (UN) Convention on the Rights of Persons with Disabilities (CRPD).11 Yet, at the same time, this book shows that the operation of the amended MHA in the last 10 years has not justified the criticism that the 2007 Act received at the time of its introduction. Laws which authorise the civil commitment and involuntary treatment of people suffering from mental disorders are rarely an effective vehicle for embedding change into decision-making practices. Policy-makers justified the 2007 Act’s reforms on the basis that the provisions of the original 1983 Act hindered the care and treatment of people suffering from mental disorders. But in the years since there are few signs that legislative reform has fostered practical change. Although it is true that more people are subject to civil commitment now than at any time in the history of the MHA 1983, it is doubtful that the 2007 Act’s reforms are the cause of this increased compulsion. Those who feared that the 2007 Act’s reforms would, of themselves, jeopardise patients’ liberty and facilitate social control have therefore not been vindicated. This should not necessarily come as a relief: if the law cannot reliably predict and constrain the decision-making impulses of those with the power to deprive people of their liberty, this raises tricky questions about its very purpose.

11 UNGA Res 61/106 Convention on the Rights of Persons with Disabilities (13 December 2006) UN Doc A/RES/61/106.

4 Introduction

This book therefore makes an original contribution to the literature by advancing the case for the institution of a new descriptive model which explains the underlying policy of the amended MHA. It does this by completing a quadrumvirate of descriptive models by making the case for ‘new medicalism’ as a distinct model to sit alongside ‘legalism’, ‘medicalism’, and ‘new legalism’. At the same time, it offers a timely survey of the impact of the 2007 Act’s reforms which coincides with the tenth anniversary of their coming into effect. In doing so, it seeks to broaden our understanding of the way mental health law works in England and expand the vocabulary with which it is analysed. Because of its uniquely coercive effects, mental health law has been the subject of frequent and repeated academic enquiry over the years. Yet, surprisingly, the 2007 Act’s reforms have so far not been subject to the same degree of scrutiny. Although they fomented much controversy during their passage through Parliament and at the time of their introduction, comparatively little ink has been spilled in assessing their impact in the years since their enactment. Those who have enquired about the impact of the 2007 Act’s reforms have focused on one component of their many moving parts, such as SCT or the changes to the nearest relative provisions; rarely have they considered the impact of the amended MHA in the round. There are many plausible reasons for this. One is that the 2007 Act has simply not had the detrimental impact that many contemporary commentators had expected. As a participant in one of the few studies of the 2007 Act’s impact wryly commented, the reforms were ultimately ‘much ado about nothing’.12 Another reason may be that the academic debate has moved on to examine normative questions about how mental health law ought to be, at the expensive of positivist enquiries into its actual effects. The CRPD, which the United Kingdom (UK) has signed and ratified, anticipates the wholesale abandonment of civil commitment and involuntary treatment for people with mental disorders and disabilities. It therefore prefigures the end of mental health law as we know it: anything less than the outright repeal of the MHA puts the UK in continuing breach of its international legal obligations. Perhaps understandably, much of the literature since the CRPD’s ratification has focused on the compliance gap between its provisions and the domestic legal framework. Against this backdrop of debates about the fundamental nature and purpose of mental health law, the continuities and discontinuities between the pre- and post-2007 Act eras may seem, at least to some, like comparatively small beer. But the fact remains that the amended MHA continues to serve as the governing statute in the domestic sphere. If we were to relocate our focus from the ‘facts on the ground’ to normative aspirations, it would deny us the opportunity to conduct a timely evaluation of the significance of the law as it stands. A third reason for the relative silence

12 N Glover-Thomas, An Investigation into Initial Institutional and Individual Responses to the ental Health Act 2007: Its Impact on Perceived Patient Risk Profiles and Responding Decision-making M (University of Liverpool and Mersey Care NHS Trust, 2011) 66.

Introduction 5

on the 2007 Act’s reforms may be that the protracted and controversial reform process which led to them highlighted the futility of statutory change. Perhaps the focus has shifted onto extra-legal solutions to the continuing policy challenges of mental health matters. Whatever the reason for the relative dearth of academic attention afforded to the 2007 Act’s reforms, it is clear that there is a gap in the literature for a critical, scholarly evaluation of the current MHA and its effects. Plugging that gap is the core objective of this book and the tenth anniversary of the 2007 Act seems like an apposite time to do it. The present volume has been five years in the making. It expands on, and refines, the arguments that first appeared in the author’s PhD thesis and, therefore, makes a much more valuable and thoughtful contribution. The author was fortunate enough to be granted research leave by the Law Department at the University of Liverpool during the academic year 2016–17, which enabled him to carry out the substantial revisions to, and expansions of, the original text of the thesis. These things inevitably take time and this book is the finished product of the long endeavours of that period of leave. At the time of writing, mental health policy in the UK is in a state of flux; a snap general election called in June 2017 saw mental health law reform once again become a hot-button issue in British politics. If the history of mental health legislation in England is any guide (and it almost certainly is not), new mental health legislation comes along every quarterof-a-century or so. That we are already talking about the possibility of a new mental health statute just 10 years after the last one demonstrates how quickly things have moved on. If the tenth anniversary of the 2007 Act’s reforms did not make this book timely enough, the prospect of the repeal of the MHA 1983 now means that this volume’s evaluation of the present framework is even more pressing. The government has commissioned an ‘Independent Review of the Mental Health Act’ to evaluate the operation of the MHA and to consider how it might be reformed.13 It may be that a vision of a post-MHA 1983 future will soon be in the offing. The present author hopes that this book will help to inform the policy debates about the future direction of mental health law in England, and perhaps even further afield in jurisdictions which operate substantively similar legal frameworks. It may be that this book’s conclusions will fuel a degree of pessimism about what we might achieve; without a frank and honest discussion about what exactly we want our mental health law to do, the sorts of messy compromises that led to the 2007 Act may become a common sight. It is not the author’s intention to dampen the spirit of those who imagine a radically different mental health framework; rather, it is to ensure that they build their case around realistic, practical objectives. It is only then that we can hope to build a legal framework capable of

13 HM Government, Independent Review of the Mental Health Act: www.gov.uk/government/ groups/independent-review-of-the-mental-health-act.

6 Introduction

improving health outcomes, p rotecting patients’ rights and removing the stigma and discrimination which blight the lives of people with mental disorders. Before signposting and summarising the contents of this book, it is worth taking a moment to calibrate readers’ expectations. First, this book focuses narrowly on mental health law and policy in England and Wales; it does not therefore consider in any detail the terrain of the mental health legal and policy landscape in Scotland or Northern Ireland, or indeed in any other jurisdiction. The most obvious reason for this is that the present author is an English common lawyer, the reach of whose principal research interests is, rather predictably, coterminous with the boundaries of the legal jurisdiction which unites England and Wales. The present volume is therefore not intended to be a comparative study. Even from the UK perspective, there are important differences between England and Wales, and Scotland and Northern Ireland which justify their quite separate treatment and, therefore, the narrow focus of this book. In Scotland, the legal basis for the detention of mentally disordered persons appears in the Mental Health (Care and Treatment) (Scotland) Act 2003 (as amended by the Mental Health (Scotland) Act 2015). Crucially, one of the conditions which a medical practitioner must consider that it is likely that a patient in Scotland meets as a prerequisite for his compulsory admission to hospital is that his ‘ability to make decisions about the provision of medical treatment is significantly impaired’.14 No equivalent of this ‘impaired decision-making’ test exists under the MHA 1983. The mechanics of civil commitment in Scotland do not therefore operate around the concept of risk in the same way that they do in England. This is not to say that considerations of risk are irrelevant: the provisions of the 2003 Act also feature their own rendition of what we have called the ‘risk formula’.15 Rather, it is that the Scots framework incorporates an additional condition which renders its operation much less problematic from a legal point of view. The impaired decision-making standard provides another layer of protection for individual liberty, in that it restricts in a way the English Mental Health Act does not the class of people to whom it can apply. For that reason, the 2003 Act, and Scottish mental health law more broadly, deserve to be subject to separate scrutiny. In Northern Ireland, the rules governing civil commitment appear in the Mental Health (Northern Ireland) Order 1986.16 Although the Order clearly takes its inspiration from the original 1983 Act, it has remained largely untouched since its introduction. It has not therefore incorporated the sorts of amendments and innovations adopted in England, Wales and Scotland since the 1990s. It is also very much a product of its time: for example, Article 3(1) refers to

14

Mental Health (Care and Treatment) (Scotland) Act 2003, ss 36(4)(b) and 44(4)(b). ibid, ss 36(5)(b) and 44(4)(d). 16 Mental Health (Northern Ireland) Order 1986, SI 1986/595. 15

Introduction 7

‘mental handicap’—a term which seems jarringly dissonant in the twenty-first century. The law and policy landscape in Northern Ireland therefore merits its own separate analysis too. This task is regrettably beyond the scope of this book. All this is not to suggest that the arguments developed in this book will be inapplicable in other jurisdictions. It is hoped that ‘new medicalism’ will enrich the vocabulary of mental health legal scholars and others, wherever their research or practical interests may lie. Perhaps it is to the question of the broader applicability of that explanatory model that we should turn now that a plausible case for its recognition has been attempted. It may be for others to make that decision, but for now it is enough to state that there is nothing about new medicalism that is uniquely or indelibly English. On a related note, this book’s narrow focus should not be taken to imply a myopic ignorance of the wider international picture. The UN’s introduction of the CRPD means that the global legal and political situation has never been more relevant. That the CRPD was adopted in 2006—just six months before the MHA 2007 reached the statute book—has produced a curious juxtaposition which amplifies the fact that one cannot view the situation in England in isolation. Another point worth making at the outset is that this book takes no account of patients concerned in criminal proceedings or under sentence. Part III of the MHA 1983 contains powers governing, among other things, the remand to hospital of people accused of a criminal offence by a magistrates’ court or the Crown Court, the imposition of hospital and restriction orders, and the transfer of prisoners to hospital. In the same way that the author’s expertise as an English lawyer necessarily limits our focus to the domestic sphere, so too does his primary interest in the civil side of things preclude any meaningful exploration of the MHA’s criminal justice provisions. Indeed, the inclusion of such discussion would significantly have extended the length of this book, something which the author—and his long-suffering publisher—have keenly sought to avoid. It will be for those in a position more ably to explore the criminal justice dimension to decide whether the arguments advanced in this volume have a broader application. There are also two rather more technical reasons for the exclusion of any discussion of Part III from the pages of this book. The first is that the use of risk as the basis on which to justify deprivations of liberty, or the deployment of restrictive powers, is much less problematic in the criminal justice context. This is because a person subject to the relevant provisions of Part III will already have been found guilty of a criminal offence and awarded a custodial sentence by the court. In these circumstances, there is a solid basis on which to conduct assessments of risk: not only is there evidence of previous wrongdoing established beyond reasonable doubt by a tribunal of fact, but the assessment of risk is made by a tribunal of law in accordance with provisions of the MHA. For example, section 41 of the MHA permits the Crown Court to impose a ‘restriction order’ on a person already subject to a hospital order for the purposes of section 37. Such a person will already have been convicted before a Crown Court of an offence

8 Introduction

punishable with imprisonment.17 Having regard to the nature of that person’s criminal offence, his antecedents, and the risk of his committing further offences, the court can impose a restriction order wherever it deems it necessary for the protection of the public from serious harm so to do.18 The contrast between the way considerations of risk inform the Part III powers and their application in the civil context could not be starker. For the purposes of civil commitment, the relevant person does not need to have harmed anyone and therefore it is much harder to justify adverse conclusions about his risk profile. Moreover, the assessment of that person’s risk of harm will be subject to the professional judgement of non-judicial decision-makers and will therefore entail considerations that go much wider, and are much harder to quantify, than his presumed propensity to commit criminal offences. For example, the risk that a person might neglect his own wellbeing or be the victim of exploitation may justify his compulsory admission to hospital under the MHA. These risks would have little relevance in the criminal justice context. The ‘risk threshold’ where civil commitment is concerned is therefore much lower than it is under the Part III provisions. The fact that the MHA’s compulsory powers operate according to a concept which is uncertain, and which may permit deprivations of liberty on flawed or arbitrary bases, means that civil commitment is more deserving of close scrutiny than the Part III powers. The second reason why this book overlooks the criminal justice angle is that the MHA 2007 made no substantive changes to the MHA’s Part III provisions. Because our main focus is on the impact of the 2007 Act’s reforms on the MHA 1983, it therefore follows that any discussion of the criminal justice side is redundant. It is in Part III of the MHA that we observe the unbroken continuities between the pre- and post-2007 Act era. Any discussion of it would therefore add nothing to the extensive literature that already exists on this topic. Although it is true that we will reflect on some cases which pertain to the Part III powers, this is always for the purposes of illustration. The final point is that this book is primarily concerned with the 2007 Act’s reforms to the MHA’s admission criteria—what we will refer to as its principal reforms. Taken together, these amendments have, at least notionally, loosened the MHA’s admission criteria, thereby making it easier to deprive people of their liberty and subject them to care and treatment on a compulsory basis. Although the 2007 Act made several other reforms, none of these has had the same potential to redraw the boundary between liberty and detention. Owing to the author’s classical liberal instincts, the assumption that underpins this book is that in a free society people should be unencumbered by coercion, unless there is a clear and compelling legal basis for it. The amended MHA ostensibly provides such a basis, although its use of risk as a framework concept, coupled with the

17 18

MHA 1983, s 37(1). MHA 1983, s 41(1).

Introduction 9

2007 Act’s retreat from legalism, may have done much to diminish its effectiveness. It is the author’s curiosity about the extent to which the amended MHA is compatible with classical liberal assumptions that has driven the research and analysis on the pages that follow. First and foremost, this book is about liberty and the extent to which a particular piece of legislation can be said to protect it. That is the basis on which the present enquiry began, and it is in that spirit that we shall proceed. This book is divided into seven substantive chapters. Chapter one is intended to orient the reader by providing an overview of the basic mechanics of English mental health law for the benefit of those who may be unfamiliar with them. It discusses the three categories of mental health patient for which the law makes specific provision (ie, ‘voluntary’, ‘informal’ and ‘formal’) and thereby puts the MHA in context as a statute predominantly concerned with so-called ‘formal’ patients. It therefore highlights the exceptional nature of mental health law within the wider corpus of medical law and ethics, as well as the MHA’s unique role and function within the narrower confines of mental health and capacity law. In doing so, chapter one locates the MHA at the apex of a complex mental health legal framework and maps its full coercive potential. Because it is written for the uninitiated, chapter one will offer little to those who already possess a working knowledge of the constellation of laws and regulations which constitute mental health law in England. Readers in those circumstances can therefore safely skip it. In chapter two, we focus on the concept of risk and its function as the organising fulcrum around which the MHA’s civil commitment mechanisms turn. Considerations of risk are the key which unlocks the MHA’s compulsory powers and the trigger for the deprivation of a person’s liberty. If the relevant mental health professionals conclude that a patient with a mental disorder poses a risk of harm to himself or other people, then this has a transformative effect on his relationship with mental health services. As chapter two will show, the risk concept’s centrality to the MHA is profoundly problematic from a legal point of view. Despite its importance, the MHA neither defines ‘risk’ nor delimits the factors that might be relevant to its assessment. Indeed, the word ‘risk’ only appears in the text of the MHA on a handful of occasions; for the most part, the significance of the concept derives merely from an inference that is drawn from the MHA’s ‘risk f ormula’. All this means that the concept which makes the difference between formal and informal or voluntary status—and therefore provides the legal basis for deprivations of liberty—lacks a legally robust definition. Chapter two will show that neither the courts nor mental health professionals have clarified what ‘risk’ means for the purposes of the MHA, nor have they stipulated how it should be assessed. Civil commitment is therefore contingent on a concept which is ill-defined, poorly understood, and possibly productive of arbitrary decisions and injustice. Chapter two makes the point that the definition and application of ‘risk’ for the purposes of the MHA may in fact rely on mental health professionals’ ‘tacit knowledge’. Yet, if that is true, the question of whether or not a person should lose

10 Introduction

his liberty and receive care and treatment on an involuntary basis turns not on whether the law provides an objectively justifiable basis for it. Rather, it depends on whether knowledge which defies objective explication deems it necessary. This would hardly seem commensurate with legal certainty. At first glance, it may seem odd that a book chiefly concerned with the impact of the 2007 Act’s reforms should place a chapter which analyses the problematic nature of the concept of risk before a detailed enumeration and critical appraisal of those reforms. Risk also lay at the core of the original 1983 Act’s mechanics and was therefore potentially productive of injustice and uncertainty long before the 2007 Act’s enactment. Its continued presence at the centre of the MHA’s mechanics therefore represents continuity, not change. The 2007 Act did not introduce any amendments to the MHA’s risk formula, nor did it seek to gloss any of its language. Some readers may therefore feel that a detailed consideration of the problems of risk is not, at least for present purposes, logically anterior to the 2007 Act’s reforms. Yet there is a rationale for this curious running order: it is the overlaying of the 2007 Act’s substantive reforms onto a framework which is dependent on the legally problematic concept of risk which raises troubling implications for liberty. In isolation, the 2007 Act’s reforms could be innocuous; in conjunction with the uncertainties of risk they are far more consequential. The combination of an unreconstructed risk-based mechanism with reforms which temper the legalistic prescriptions of the MHA may therefore exacerbate the jeopardy in which the MHA places individual liberty. Chapter three makes the case for ‘new medicalism’. First, it provides a potted history of mental health law in England and illustrates the way it has oscillated between ‘legalism’ and ‘medicalism’ since at least the late nineteenth century. Secondly, it highlights the particular prominence that was given to risk as a policy driver prior to the introduction of the 2007 Act’s reforms. This discussion will show why it is that we must link the framing of the 2007 Act’s reforms with a wider, and largely unprecedented, policy fixation on considerations of risk. Thirdly, chapter three charts the 2007 Act’s reforms and distinguishes between what it describes as the Act’s ‘principal’ reforms and the rest. Here, it shows that the 2007 Act introduced changes which, taken together, have ostensibly had the effect of making it easier for a wider pool of mental health professionals to bring a larger group of people within reach of the MHA’s civil commitment powers. Finally, chapter three makes the central claim of this book, namely that ‘new medicalism’ accounts for the unique policy context and operational priorities which underpin the current MHA. Chapter four seeks to build the case for new medicalism on solid theoretical foundations. Drawing on theories of risk which interpret the concept as a sociological construct, it argues that the 2007 Act’s reforms—and, therefore, the current MHA—are a manifestation of a wider social preoccupation with risk. Chapter four considers Ulrich Beck’s ‘risk society’ theory and Michel Foucault’s ‘governmentality’ thesis as plausible explanatory models for the emergence of

Introduction 11

new medicalism. In doing this, it considers the relevance of two kinds of risk: (a) the risk that a person will develop a mental disorder; and (b) the risk that a person with a mental disorder will cause harm to himself or others. In its first half, chapter four claims that Beck’s ‘risk society’ theory provides a compelling explanation for the general ‘riskification’ of health policy in Britain. Our increasing fluency in the language of risk where mental illness is concerned is entirely consistent with the sort of ‘modern’ society that Beck described. In this way, his theory offers an interesting narrative for the emphases on ‘future-proofing’, regulation and accountability which have become manifest in contemporary mental health policy. Yet, while risk society explains why the language of risk has become a common feature in mental health policy generally, it is rather less helpful where the policy surrounding the risks of harm associated with mental disorders is concerned. Here, there is no evidence that we are in ever-greater danger; quite the opposite. Therefore, in its second part, chapter four considers ‘governmentality’ as a more plausible alternative model for new medicalism and, by extension, the 2007 Act. In this connection, it finds a much more satisfactory fit; ‘governmentality’ provides a neat illustration of the sorts of policy impulses and legal priorities which drove the 2007 Act’s reforms. Foucault argued that the core objective of the modern state is the regulation and discipline of its population. The assessment and management of risk is a means to that end. The state constructs anything as ‘risky’ which threatens its population’s regularities and thereby justifies the deployment of its ‘disciplinary’ apparatus accordingly. The risks of harm posed by people suffering from mental disorders, and the MHA’s provision for them, plainly cohere with this dynamic, and therefore Foucault’s ‘governmentality’ thesis provides the most plausible theoretical underpinning for new medicalism. In chapter five, we turn to consider the human rights implications of new medicalism and, therefore, the 2007 Act’s reforms. From a lay perspective, it might be reasonable to assume that any statutory framework which makes it easier to detain someone, or uses an arbitrary or uncertain mechanism to do so, would violate the right to liberty. Yet international human rights law is, at best, equivocal about this. Chapter five discusses the respective positions of the European Convention on Human Rights (ECHR), which is incorporated into UK law through the mechanism of the Human Rights Act 1998, and the CRPD. In its first half, chapter five shows that a new medicalistic mental health statutory framework is entirely compatible with the ECHR’s rendition of the right to liberty. Notwithstanding the clear potential for arbitrary or excessive commitment, there is nothing in the ECHR which precludes a statutory framework from operating in the way that the current MHA purports to do. In its second half, chapter five considers the CRPD’s implications. Here, it shows that not only does the post-2007 MHA violate an instrument of international human rights law which is notionally binding on the UK, but so too would all legislation that authorises civil commitment and involuntary treatment on the basis of a person’s disability. This means that while the current MHA may comply with the ECHR, it falls far short of meeting the

12 Introduction

standard set by the CRPD. That the 2007 Act reached the statute book around the same time that the UK signed and ratified the CRPD brings into stark relief the contradictory actions—some might even call it ‘doublespeak’—of the British Government at that time. This is not to make a partisan political point: successive governments have done nothing to disown or qualify the CRPD and have ostensibly continued to accept the need for civil commitment. This contradiction makes predicting the direction of future reform, and the formulation of coherent policy, rather difficult. Chapter six examines the impact of the 2007 Act’s reforms. It shows that there has been an increase in the number of people subject to civil commitment in England since the MHA was amended. However, the statistical evidence is complex, and while more people are admitted under the MHA now than at any time in the last 30 years, it is impossible to attribute causation. The number of people admitted under the MHA has risen steadily since the late 1980s and has remained largely impervious to any changes in the law. The 2007 Act’s adoption of looser, open-textured admission criteria has not unleashed a tide of compulsion. While there is a curious dearth of evidence of the 2007 Act’s impact, it is clear from that which does exist that its reforms have made very little difference in practice. The widely held assumption that the 2007 Act would herald a backwards step in jeopardising liberty and facilitating control does not seem to have been borne out by the available evidence. In its second part, chapter six assesses the determinative potential of legislation governing care and treatment of persons with mental disorder to establish whether the 2007 Act’s apparent lack of any meaningful impact is unique. Here, it shows that there is a significant amount of evidence to suggest that amending mental health law to regulate the number of people compulsorily admitted to hospital is a flawed tactic and that the law is seldom an accurate map of practical reality. Therefore, the 2007 Act’s apparent lack of any significant consequence is entirely of a piece with the experiences previously documented in the UK and elsewhere. Chapter seven is the final substantive chapter of the book and offers some critical reflections on what it calls the new medicalist ‘moment’—the era of mental health law and policy in which we currently operate. Chapter seven seeks to justify the 2007 Act’s place in the history books. At the same time, it renounces ‘historicist’ interpretations which might regard the 2007 Act as the inevitable consequence of legal evolution or as the last stop on a journey towards the abolition of civil commitment. Chapter seven points out two things which are relevant in this regard. First, lawyerly concerns about the detrimental effects of the 2007 Act’s provisions have not been vindicated in practice. This is not to say that those fears were overblown: if changes to the law have the effect of weakening its protections, this should rightly serve as an occasion for circumspection. Rather, it is that the law itself would seem to be an imperfect vehicle for change where the operations of mental health services are concerned. This phenomenon was first described by Paul Appelbaum in the context of US mental health law in the 1990s;

Introduction 13

the 2007 Act in England provides further evidence of it.19 Second, there are signs, both from the CRPD and wider social and political change, that the new medicalist ‘moment’ may be coming to an end. In an age increasingly concerned with stigma and discrimination, a law which is designed to single out mental illness for special treatment and tackle the risks associated with it seems distinctly out of place. Yet the question of what might come next is a vexed one. Chapter seven shows that neither the abandonment of civil commitment and involuntary treatment nor recourse to piecemeal reform would seem to provide a satisfactory answer to the myriad criticisms of the amended MHA. In fact, the debate is beset by a paradox: compliance with the CRPD would strip the law of a mechanism which serves a legitimate practical purpose, but the options for reforming the law while retaining that purpose do nothing to address fundamental problems of principle. As Chapter seven concludes, the scope for future reform is narrow. Although few observers might have contemplated it as the ink dried on the vellum in 2007, it is entirely possible that new medicalism will retain its relevance as an explanatory model for some time to come. Before leaving you to embark on your journey through this book, it is worth making a brief note on terminology. In every chapter, ‘Mental Health Act’ is abbreviated to MHA—and readers will be reminded of this from the outset. To help distinguish between the ‘Mental Health Act 1983’ and the ‘Mental Health Act 2007’, the book will often refer to them as ‘the 1983 Act’ or ‘the 2007 Act’, or as the ‘MHA 1983’ or ‘MHA 2007’. However, because the 2007 Act is only an amending statute, it may at times be necessary to make a distinction between the original 1983 Act and its amended form. The text therefore refers to ‘the original 1983 Act’ and ‘the MHA 1983 (as amended)’ (or some variation on that theme) wherever it is necessary to make that distinction. It is hoped that this will help readers to engage with the content that follows without the need to consult the text of the statutes themselves. Although it is generally true that academics like to encourage such wider reading, the present author would counsel anyone who does not wish to find themselves most profoundly perplexed to avoid trying to read the MHA 2007 as a stand-alone document. It makes very little sense on its own—a fact that further complicates the terrain of mental health law in England and the functioning of its many moving parts.

19

P Appelbaum, Almost a Revolution (Oxford, Oxford University Press, 1994).

1 The Mechanics of Mental Health Law in England Introduction The legal rules which govern the care and treatment of people suffering from mental disorders vary depending on whether a patient is subject to ‘voluntary’, ‘informal’, or ‘formal’ arrangements. A ‘voluntary’ patient chooses to consent to medical treatment for his disorder. His care and treatment therefore proceed according to the same principles which govern the care and treatment of almost everyone else. This means that he is free to decide whether to seek and accept treatment for his mental disorder, will typically interact with health services on an outpatient basis, and can refuse to consent to treatment at any time. An ‘informal’ patient suffers from a mental disorder and lacks decision-making capacity. She is therefore unable to consent to medical treatment and will typically be resident in a care or nursing home in circumstances which may amount to a deprivation of liberty. An informal patient will likely be subject to the Deprivation of Liberty Safeguards (DOLS) and will receive treatment in accordance with her ‘best interests’ within the meaning of the Mental Capacity Act (MCA) 2005. A ‘formal’ patient is ‘sectioned’ under the Mental Health Act (MHA) 1983, that is, he is detained in hospital for the purposes of receiving care or treatment on a compulsory basis. He may or may not have mental capacity. In any case, consent is not a condition of his commitment; instead, it is the risk of harm that he poses that justifies his compulsion. His clinical team can therefore admit him notwithstanding the fact that he may have capacity and has refused to consent to his admission to hospital. Formal patients occupy a unique position: no patient outside the scope of the MHA can be subject to care or treatment on the same compulsory, involuntary basis. ‘Mental health law’ does not start and end with the MHA. Although we are chiefly concerned with ‘formal’ patients for present purposes, it is important to note that formal status typically applies to only a minority of people. Most people diagnosed with, or receiving treatment for, a mental disorder will never be subject to the MHA. Instead, they will receive care and treatment on a voluntary or informal basis and in accordance with legal rules that operate independently

Voluntary Patients 15

of the MHA.1 Those unfamiliar with this area of the law must avoid falling into the trap of assuming that references to ‘mental health law’ specifically connote the MHA. They should also appreciate that a person with a mental disorder does not necessarily start out as a voluntary patient before escalating through ever more intrusive care and treatment arrangements: he can be subject to the formal arrangements of the MHA without ever having previously interacted with mental health services. The aim of this chapter is to survey the basic mechanics of English mental health law and locate the MHA’s place in its often complex geography. It is written for the uninitiated; readers with existing knowledge of the workings of mental health law can therefore safely skip it. For present purposes, we are solely concerned with the law’s civil aspect, that is, its application in a non-criminal context. While the MHA also applies to patients concerned in criminal proceedings or under sentence, they are beyond the scope of the present enquiry. This chapter follows a threepart structure. First, it discusses ‘voluntary’ patients and the universal principles of medical law and ethics which underpin their care and treatment experiences. This discussion serves to amplify the exceptional legal and ethical character of the MHA. Secondly, it defines ‘informal’ patients and reflects on the role of the MCA 2005 and the DOLS in their cases. Finally, we examine the MHA’s compulsory powers and the ‘life cycle’ of a formal patient: from his initial admission to hospital, through his treatment, and on to his eventual discharge from section.

Voluntary Patients A person who chooses to accept care and treatment for a mental disorder is a ‘voluntary’ patient. This label applies to service users in a range of circumstances, such as those who take antidepressant medication prescribed by their g eneral practitioner (GP), attend a course of psychotherapy, or refer themselves to hospital.2 As such, they fall outside the scope of the MHA3 and therefore must be treated like any other patient.4

1 See, eg, The Queen v Kirklees Metropolitan Council (CA, 16 March 1993); R v Bournewood Community and Mental Health NHS Trust, ex parte L [1999] 1 AC 458 (HL) (Bournewood). 2 How ‘voluntary’ a patient’s choice may be is open to question; see, eg, A Rogers and D Pilgrim, A Sociology of Mental Health and Illness, 5th edn (Maidenhead, Open University Press, 2014) 166; A Rogers, ‘Coercion and “Voluntary” Admission: An Examination of Psychiatric Patient Views’ (1993) 11 Behavioral Sciences & the Law 259; J Gilboy and J Schmidt, ‘“Voluntary” Hospitalization of the Mentally Ill’ (1971) 66 Northwestern University Law Review 429. 3 The boundary is starkly drawn; see, eg, R (Sunderland City Council) v South Tyneside Council [2012] EWCA Civ 1232; R (Worcestershire CC) v Essex CC [2014] EWHC 3557 (Admin); cf Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2. 4 MHA 1983, s 131. The MHA refers to ‘informal’, as opposed to ‘voluntary’, admission and makes no distinction between these concepts. In R v Bournewood and Community and Mental Health NHS Trust, ex parte L [1999] 1 AC 458, Lord Goff accepted, at 483, that s 131 applied to ‘patients who

16 The Mechanics of Mental Health Law in England

The principle of autonomy is one of the fundamental precepts of bioethics: doctors must respect their patients’ ‘right to hold views, to make choices, and to take actions based on their values and beliefs’.5 The common law has long instantiated this principle by recognising that adults with decision-making capacity have the right to self-determination, that is, to decide what shall, or shall not, be done to their bodies. A patient with capacity can therefore choose to consent to, or refuse, medical treatment.6 English law presumes that a person has capacity, unless it is specifically established that she lacks it.7 Because mental disorders do not necessarily inhibit decision-making capacity,8 there is no reason in principle why a person with a mental illness cannot access care and treatment voluntarily. The treatment of voluntary patients is therefore contingent on their consent: without it, those who administer medical treatment, or interfere with a patient’s bodily integrity in some other way, act unlawfully.9 There is consequently no essential difference between a voluntary mental health patient and a person suffering from a physical disorder: if either chooses to discontinue his treatment, his medical team must respect that decision and act accordingly. Most patients receiving medical treatment for mental disorder will interact with mental health services on a voluntary basis. According to the most recent statistics from NHS Digital, fully 1,805,905 people were in contact with mental health and learning disability services in England in 2015–16.10 A vast majority of those people (94.4 per cent) did not spend any time in hospital.11 Those that did receive care and treatment as inpatients amounted to only 5.6 per cent of the total, or 103,027 people.12 The MHA applies to an even smaller minority of service

enter hospital as in-patients for treatment either (a) who, having the capacity to consent, do consent (“voluntary patients”) or (b) who, though lacking capacity to consent, do not object (“informal patients”)’. In other words, s 131 incorporates both voluntary and informal patients, despite only making explicit reference to the latter. Mason and Laurie prefer to use the labels ‘voluntary’, ‘non- voluntary’ and ‘involuntary’, with the latter two applying instead of ‘informal’ and ‘formal’ (see JK Mason and GT Laurie, Mason & McCall Smith’s Law & Medical Ethics, 9th edn (Oxford, Oxford University Press, 2013) 72). While there is some merit to this approach, the present author has adopted the same labels which the courts recognise for the sake of expediency. 5 TL Beauchamp and JF Childress, Principles of Biomedical Ethics, 7th edn (Oxford, Oxford University Press, 2013) 106. 6 Schloendorff v Society of New York Hospital 105 NE 92 (NY 1914); Re T (Adult: Refusal of Treatment) [1993] Fam 95 (CA); Re CB (A Minor) (Blood Tests) [1994] 2 FLR 762 (Fam); Secretary of State for the Home Department v Robb [1995] Fam 127 (Fam); Re B (Consent to Treatment: Capacity) [2002] EWHC 429 (Fam); R (H) v Mental Health Review Tribunal [2007] EWHC 884 (Admin); Kings College Hospital NHS Foundation Trust v C [2015] EWCOP 80. 7 MCA 2005, s 1(1). 8 Re C (Adult: Refusal of Medical Treatment) [1994] 1 All ER 819 (Fam); St George’s Healthcare NHS Trust v S [1999] Fam 26; Re W (Adult: Refusal of Medical Treatment) [2002] EWHC 901 (Fam). 9 Collins v Wilcock [1984] 1 WLR 1172 (QB). 10 NHS Digital, Mental Health Bulletin, 2015-16 Annual Report (30 November 2016) 1: digital.nhs. uk/catalogue/PUB22561. 11 ibid. 12 ibid.

Informal Patients 17

users, amounting to only 3.52 per cent of patients in contact with mental health services in 2015–16.13 Although we will see later that the number of people subject to the compulsory powers has tended to rise each year, detentions under the MHA still only constitute a tiny proportion of interactions with mental health services overall. And NHS Digital’s data may not tell the whole story: it is not clear, for example, whether they include interactions between patients and primary care services. GPs play a significant role in diagnosing and treating mental disorders: it is estimated that around a third of GP appointments are attended by patients suffering from mental health problems.14 According to the latest Adult Psychiatric Morbidity Survey, nearly half of people with common mental disorders (44.1 per cent) reported discussing their mental health with a GP in the previous year.15 The survey also found that the use of prescribed psychotropic medication has increased among adults with common mental disorders: in 2000 and 2007, one in five adults aged between 16 and 74 reported using such medication; by 2014 this had increased to nearly one in three.16 Voluntary status may therefore apply to many more people than the statistical evidence suggests. Formal patients are a drop in the ocean. Most people receiving treatment for a mental disorder in England are doing so on a voluntary basis; they are not, and are likely never to be, ‘sectioned’ under the MHA. We need not dwell any longer on voluntary patients; a lengthier analysis of them is beyond the scope of this book. All that matters for present purposes is that readers appreciate that voluntary status is the norm and that the number of people subject to it dwarfs that of formal patients.

Informal Patients The MCA 2005 An ‘informal’ patient lacks mental capacity and is therefore unable to consent to medical treatment. The rules which govern the care and treatment of people 13 NHS Digital, Inpatients Formally Detained in Hospitals under the Mental Health Act 1983 and Patients Subject to Supervised Community Treatment (30 November 2016) 4: digital.nhs.uk/article/1044/ Latest-figures-on-detentions-under-the-Mental-Health-Act-published-by-NHS-Digital. 14 See, eg, Joint Commissioning Panel for Mental Health, Guidance for Commissioners of Primary Mental Health Services, Volume Two: Practical Mental Health Commissioning (February 2013) 5: www.jcpmh. info/wp-content/uploads/jcpmh-primarycare-guide.pdf; NHS London Strategic Clinical Networks, A Commissioner’s Guide to Primary Care Mental Health: Strengthening Mental Health Commissioning in Primary Care: Learning from Experience (July 2014) 62: www.slcsn.nhs.uk/scn/mental-health/ london-mh-scn-primary-care-commiss-072014.pdf; Mind, Mental Health in Primary Care: A Briefing for Clinical Commissioning Groups (June 2016) 4: mind.org.uk/media/4556511/13296_primary-carepolicy_web_op.pdf. 15 S McManus et al (eds), Mental Health and Wellbeing in England: Adult Psychiatric Morbidity Survey 2014 (NHS Digital, 2016) 85. 16 ibid, 87.

18 The Mechanics of Mental Health Law in England

lacking decision-making capacity can be found in the MCA, which codified the common law.17 A person (P) will lack capacity if she is unable to make a decision for herself in relation to a matter because of ‘an impairment of, or a disturbance in the functioning of, the mind or brain’.18 This is the so-called ‘diagnostic threshold’19 and the ‘core determinative provision’20 of the 2005 Act, which plainly anticipates that people suffering from mental disorders can fall within the ambit of the legislation. However, the presence of a mental impairment is not a sufficient condition for incapacity: P must also fail the ‘functional test’. She must be unable to: a. b. c. d.

understand the information relevant to the decision, retain that information, use or weigh that information as part of the process of making the decision, or communicate her decision.21

Therefore, it is only where a mental disorder adversely affects a person’s cognitive functioning that she will be deemed to lack capacity. For that reason, informal patients typically suffer from mental disorders which have that effect, for example, dementia, Alzheimer’s disease, Korsakoff ’s syndrome, and so on. It follows that they also tend to require longer-term residential care and treatment. Where P lacks capacity, the MCA permits doctors to administer treatment in accordance with her ‘best interests’.22 This means that the relevant decision- makers must consider P’s ‘past and present wishes and feelings’, her ‘beliefs and values’ and ‘other factors’ that P would be likely to consider if she were able to do so, and proceed accordingly.23 In acting according to P’s best interests, doctors will not incur any liability for administering treatment to P without her consent.24 The MCA therefore provides a legal basis for doctors and other health professionals to act on behalf of patients who cannot consent to medical treatment. As a general rule, however, it does not normally permit doctors to deprive patients of their liberty for the purposes of administering that treatment.25 At first blush, informal patients may seem unproblematic. Like voluntary patients, they interact with mental health services outside the strictures of the MHA and receive care and treatment on a non-compulsory basis. Yet it is the locus and nature of their interactions with mental health services which distinguish

17 Re MB (Caesarean Section) [1997] 2 FLR 426 (CA); Trust A v H (An Adult Patient) [2006] EWHC 1230 (Fam); Local Authority X v M [2007] EWHC 2003 (Fam); A Local Authority v E [2007] EWHC 2396 (Fam). 18 MCA 2005, s 2(1). 19 Re D (Children) [2015] EWCA Civ 749, [29] (King LJ). 20 York City Council v C [2013] EWCA Civ 478, [56] (McFarlane LJ). 21 MCA 2005, s 3(1). 22 MCA 2005, s 1(5). 23 MCA 2005, s 4(6). 24 MCA 2005, s 5(2). 25 MCA 2005, s 4A(1).

Informal Patients 19

them from their voluntary and formal counterparts: they are typically resident in institutional settings, such as care homes, and are, by definition, unable to consent to or refuse the treatment they receive. Until recently this meant that they fell between two stools: they could not be ‘voluntary’ patients because they lacked the capacity to consent to medical treatment, but at the same time they did not necessarily warrant compulsory admission to hospital under the MHA. They therefore existed in a legal ‘no-man’s land’.26 This ‘gap’ was the subject of the Bournewood litigation, which ultimately culminated in the introduction of the DOLS—a distinct legal framework applicable to informal patients.27

The Bournewood Gap R v Bournewood Community and Mental Health NHS Trust, ex parte L28 concerned an adult patient, L, who had severe autism and lacked the capacity to consent to medical treatment. In July 1997, L was transferred to hospital after he became agitated and exhibited self-injurious behaviour at a day centre. The consultant in charge of L’s care decided that it was in his best interests that he be admitted to hospital informally. Because he was compliant and made no attempt to leave the hospital, the consultant thought that L’s condition could be stabilised without recourse to the MHA. L was therefore kept on an unlocked ward, although the consultant admitted that if he had made any attempt to leave then he would have been ‘sectioned’. L’s carers thought that the hospital had detained him unlawfully and issued judicial review proceedings. The House of Lords held that the only basis on which a hospital could lawfully admit a patient with a mental disorder who lacks capacity but does not manifest any objections is on the basis of the common law doctrine of necessity.29 In L’s case, their Lordships decided by a bare majority that he had not been detained because he had been held on an unlocked ward and was notionally free to leave at any time. In any case, because the NHS Trust had acted in accordance with L’s best interests in an urgent intervention which was justified by the doctrine of necessity, there was a legal basis for his detention at common law. Bournewood’s case suggests that the common law has a residual role to play outside the scope of the MHA. Yet the significance of its ratio was diminished when L’s case reached the European Court of Human Rights (ECtHR) in HL v United Kingdom.30 Here, the applicant—now referred to as ‘HL’—relied on

26 P Bartlett, ‘Informal Admissions and Deprivation of Liberty under the Mental Capacity Act 2005’ in L Gostin et al (eds), Principles of Mental Health Law and Policy (Oxford, Oxford University Press, 2010) 386. 27 MCA 2005, ss 4A and 4B. 28 [1999] 1 AC 458 (HL). 29 T v T [1988] 1 All ER 613 (Fam); Re F (Mental Patient: Sterilisation) [1990] 2 AC 1 (HL); Airedale NHS Trust v Bland [1993] AC 789 (HL); Re A (Medical Treatment: Sterilisation) [1999] 53 BMLR 66 (CA).. 30 HL v United Kingdom (2005) 40 EHRR 32 (HL).

20 The Mechanics of Mental Health Law in England

Articles 5(1) and 5(4) of the European Convention on Human Rights (ECHR) to argue that his informal detention in hospital had contravened his right to liberty. The ECtHR agreed. First, it found that HL had been ‘deprived of his liberty’ for the purposes of Article 5(1) because the healthcare professionals had exercised ‘complete and effective control’ over him, meaning that he was subject to ‘continuous supervision and was not free to leave [the hospital]’.31 The ECtHR agreed with Lord Steyn, who, in his dissenting speech in the House of Lords, had said that the suggestion that L had been free to go was ‘a fairy tale’.32 Secondly, the ECtHR said that HL’s deprivation of liberty was not ‘in accordance with a procedure prescribed by law’ for the purposes of Article 5(1)(e). There was therefore a breach of Article 5(1) because there is a ‘striking … lack of any fixed procedural rules by which the admission and detention of compliant incapacitated persons is conducted’ under the English common law.33 The Court pointed to the ‘significant contrast’ between the ‘dearth’ of regulation in respect of patients in HL’s position and the ‘extensive network of safeguards’ which applies under the MHA.34 It concluded that there was nothing to prevent decision-makers from taking arbitrary and therefore unlawful decisions to deprive a patient of his liberty. Finally, Article 5(4) ECHR requires that a speedy procedure be in place so that a person deprived of his liberty can challenge the lawfulness of his detention in court. The ECtHR said that the means by which HL could have brought such proceedings—by writ of habeas corpus and judicial review—placed the bar ‘so high as effectively to exclude any adequate examination of the merits of the clinical views as to the persistence of mental illness justifying detention’.35 For that reason, there had also been a violation of Article 5(4) ECHR. HL v United Kingdom had profound policy implications: any hospital or care home in England which held patients in Bournewood-style circumstances was effectively responsible for continuing violations of Article 5 ECHR. The Department of Health consequently launched a consultation exercise to establish how it might close the Bournewood gap.36 It opted for a framework that would be conceptually distinct from the MHA37 and which would provide legal safeguards for vulnerable people who lack capacity and are deprived of their liberty but do not object to their detention.38 The DOLS were introduced by the MHA 2007 in

31

ibid, [91]. Bournewood (n 1) 495 (Lord Steyn). 33 HL (n 30) [119–120]. 34 ibid. 35 HL (n 30) [139]. 36 Department of Health, ‘Bournewood Consultation: The Approach to be Taken in Response to the Judgment of the European Court of Human Rights in the “Bournewood” Case’, March 2005: webarchive. nationalarchives.gov.uk/20120106092822/http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_4108641.pdf. 37 Department of Health, ‘Bournewood Briefing Sheet’, Gateway Reference: 6794, June 2006, 2. 38 ibid, 1. 32

Informal Patients 21

the form of a schedule inserted into the MCA 2005.39 They came into effect on 1 April 2009.40

The Deprivation of Liberty Safeguards (DOLS) In spite of the remedial effect policy-makers intended them to have, the DOLS have been variously criticised as ‘hideous’ and ‘incomprehensible’,41 ‘obscure’,42 ‘overcomplicated’,43 ‘bureaucratic’ and at odds with the ‘elegant simplicity’ of the MCA.44 At the time of writing, the Law Commission has recommended that Parliament repeal the DOLS and replace them with a new ‘Liberty Protection Safeguards’ scheme.45 These proposals are currently under consideration.46 The DOLS’ days are numbered, although it remains to be seen whether a post-DOLS future will continue to keep informal patients outside the scope of the MHA. The DOLS apply to patients who suffer from a mental disorder, lack mental capacity, are deprived of their liberty, and do not manifest any objection to their care or treatment arrangements. The safeguards appear in schedules A1 and 1A to the MCA and represent one of the few occasions in which the 2005 Act permits a person to deprive P of his liberty. Such a deprivation will only be authorised where:47 i. P is detained in a hospital or care home for the purpose of receiving care or treatment in circumstances which amount to a deprivation of liberty, ii. there is a standard or urgent authorisation in force (ie, the relevant supervisory body (eg, local authority) has authorised the managing authority of the hospital or care home to deprive P of his liberty), and iii. that authorisation applies to the detained person and the hospital or care home in which he is held.48 If the managing authority of a hospital or care home wishes to deprive P of her liberty, it must apply to its supervisory body for a ‘standard authorisation’49 in

39

MHA 2007, ss 50(2), 56. Health Act 2007 (Commencement No 10 and Transitional Provisions) Order 2009, SI 2009/139. 41 Bartlett, ‘Informal Admissions’ (n 26) 392. 42 R Hargreaves, ‘The Deprivation of Liberty Safeguards—Essential Protection or Bureaucratic Monster?’ (2009) (December) Journal of Mental Health Law 117, 124. 43 L Series, ‘Deprivation of Liberty Safeguards: a Haphazard Affair’ The Guardian (2 April 2012): www.guardian.co.uk/social-care-network/2012/apr/02/deprivation-liberty-safeguards-improvements. 44 House of Lords Select Committee on the Mental Capacity Act 2005, Mental Capacity Act 2005: Post-legislative Scrutiny, Report of Session 2013–14 (London, TSO, HL Paper 139) 91. 45 Law Commission, Mental Capacity and Deprivation of Liberty (Law Com No 372, 2017). 46 HC Deb 30 October 2017, vol 630, col WS202. 47 sch A1 to the MCA 2005, pt 1, para 2. 48 sch A1 to the MCA 2005, pt 1, paras 1(1)–(4). 49 sch A1 to the MCA 2005, pt 4. 40 Mental

22 The Mechanics of Mental Health Law in England

accordance with schedule A1 to the MCA.50 A managing authority may also give itself an ‘urgent authorisation’51 in circumstances where the need to deprive P of her liberty is so urgent that there is no time to apply for a standard authorisation or to wait for such an application to be determined.52 The effect of these authorisations is to provide an Article 5 ECHR-compliant mechanism by which P can challenge her detention. Crucially, they do not give decision-makers authority to treat people or do anything else that would normally require consent.53 The care and treatment arrangements which informal patients will experience depend on a determination of their best interests in accordance with the MCA. In this way the DOLS differ significantly from the MHA, whose provisions expressly authorise decision-makers to administer specific care and treatment arrangements.

When is P Deprived of Her Liberty? Whether P is deprived of her liberty is a matter of fact. Prior to the Supreme Court’s decision in Cheshire West and Chester Council v P,54 decision-makers determined whether P was deprived of her liberty with reference to a ‘whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question’.55 For example, if P actively resisted or protested against her admission to hospital,56 was subject to complete and effective control57 or continuing one-to-one supervision by healthcare professionals,58 or was constantly kept on a locked ward and prohibited from leaving,59 the courts were likely to conclude that her circumstances amounted to a deprivation of liberty. By contrast, if P lived at home in the care of a loving family,60 could move freely within an unsecure setting,61 enjoyed regular outings and attended education or training sessions,62 or was subject to restrictions which would not exceed what would be reasonably required to protect a patient in comparable circumstances from harming herself,63 then the courts were less likely to conclude that she had been deprived of her liberty. In Cheshire West, their Lordships simplified the definition of ‘deprivation 50

sch A1 to the MCA 2005, pt 1, para 2. sch A1 to the MCA 2005, pt 5. 52 sch A1 to the MCA 2005, pt 5, paras 74, 76. 53 Ministry of Justice, Mental Capacity Act 2005: Deprivation of Liberty Safeguards (London, TSO, 2008) [2.5] [5.10]. 54 Cheshire West and Chester Council v P [2014] UKSC 19. 55 CC v KK and Another [2012] EWHC 2136 (COP) [86] (Baker J); see also Ministry of Justice (n 53) [2.5]. 56 JE v DE and Surrey County Council [2006] EWHC 3459 (Fam); Hillingdon London Borough Council v Neary (by his Litigation Friend the Official Solicitor) [2011] EWHC 1377 (COP). 57 HL (n 30). 58 A Local Authority v H [2012] EWHC 49 (COP). 59 Storck v Germany (2005) 43 EHRR 96; see also CC v KK and Another (n 55) [100] (Baker J). 60 Re A, Re C [2010] EWHC 978 (Fam). 61 HM v Switzerland (2002) 38 EHRR 314. 62 Surrey County Council v P [2011] EWCA Civ 190. 63 RK (by her Litigation Friend the Official Solicitor) v BCC [2011] EWCA Civ 1305; Nielsen v Denmark (1988) 11 EHRR 175. 51

Informal Patients 23

of liberty’ by adopting the language of the jurisprudence of the ECtHR: a person will be deprived of her liberty if she is ‘under continuous supervision and control’ and is ‘not free to leave’.64 Baroness Hale said that ‘what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities’. Her Ladyship concluded that it therefore made no difference whether a person’s living arrangements are comfortable and designed to make her life as enjoyable as it could be: ‘A gilded cage is still a cage’.65 The Cheshire West case has significantly increased the number of DOLS applications and authorisations in England. According to NHS Digital, local authorities received 217,235 DOLS applications in 2016–17, a number which corresponded to 492 applications per 100,000 people in England.66 Of those applications, 151,970 were completed and fully 63 per cent (95,880) were granted.67 In the reporting year immediately preceding the Cheshire West judgment, only 13,000 applications were made in England, of which 7,600, or 59 per cent, were granted.68 Since Cheshire West, there has been a 1571 per cent increase in the number of DOLS applications and a 1161.5 per cent increase in the number of granted authorisations. The Supreme Court’s expansive definition of ‘deprivation of liberty’ has undoubtedly caused this explosion in the numbers. The upshot is that a growing number of mental health patients are ‘deprived of their liberty’ outside the MHA. After Cheshire West, informal patients cared for in non-institutional or domestic settings now also fall within the domain of the DOLS. The DOLS have in this way radically extended the frontiers of mental health law in England. This in turn has further reinforced the comparatively marginal role that the MHA’s formal powers play in the care and treatment of people suffering from mental disorders.

What is the Relationship Between the DOLS and the MHA? A supervisory body must authorise a deprivation of liberty under the DOLS framework where it is satisfied that P meets the six ‘qualifying requirements’ in part 3 of schedule A1 to the MCA.69 The qualifying requirements are: age,70 mental health,71 mental capacity,72 best interests,73 eligibility,74 and ‘no refusals’.75 If P does not meet all of the criteria it follows that she should either be treated 64

Cheshire West (n 54) [48] (Baroness Hale DPSC); [63] (Lord Neuberger of Abbotsbury PSC). ibid, [46]. 66 NHS Digital, Mental Capacity Act (2005) Deprivation of Liberty Safeguards (England) 2016/17, Official Statistics (1 November 2017) 10: digital.nhs.uk/catalogue/PUB30131. 67 ibid, 17. 68 Health & Social Care Information Centre, Mental Capacity Act 2005, Deprivation of Liberty Safeguards (England), Annual Report 2013–14 (3 September 2014) 17, 23: content.digital.nhs.uk/catalogue/PUB14825/dols-eng-1314-rep2.pdf. 69 sch A1 to the MCA 2005, pt 4, paras 33, 50. 70 sch A1 to the MCA 2005, pt 3, para 12(1)(a). 71 sch A1 to the MCA 2005, pt 3, para 12(1)(b). 72 sch A1 to the MCA 2005, pt 3, para 12(1)(c). 73 sch A1 to the MCA 2005, pt 3, para 12(1)(d). 74 sch A1 to the MCA 2005, pt 3, para 12(1)(e). 75 sch A1 to the MCA 2005, pt 3, para 12(1)(f). 65

24 The Mechanics of Mental Health Law in England

voluntarily or ‘sectioned’ under the MHA. The qualifying criteria therefore demarcate the boundary between informal and formal status. The age, mental health and mental capacity requirements are straightforward matters of fact: P must be at least 18 years of age,76 must be suffering from a mental disorder within the meaning of section 1(2) of the MHA,77 and must lack capacity for the purposes of the MCA. Where the best interests requirement is concerned, the assessor must be satisfied that it is (i) in P’s best interests for her to be deprived of her liberty, (ii) necessary for P to be detained in order to prevent harm to her, and (iii) a proportionate response to the likelihood of P suffering harm and the seriousness of that harm.78 ‘No refusals’ precludes a supervisory body from granting a standard authorisation where P has refused some or all of the proposed treatment in an applicable advance decision,79 or where her admission will conflict with a valid decision of a donee of a lasting power of attorney or a deputy appointed by the court.80 It is unlikely that these assessments present any significant difficulty to professionally qualified decision-makers. The eligibility requirement is trickier. Paragraph 17(1) of part 3 of schedule A1 to the MCA states that P ‘meets the eligibility requirement unless [she] is ineligible to be deprived of [her] liberty’.81 To establish whether P is so ineligible, the assessor must refer—and this is where the draughtsmanship of the provisions descends into labyrinthine absurdity—to schedule 1A to the MCA 2005.82 At its simplest, schedule 1A states that P will be ineligible if she is: a. subject to a ‘hospital treatment regime’, and b. detained in hospital under such a regime.83 This in effect renders it impossible for a patient to be subject to both the DOLS and the MHA at the same time. Things are more complicated where P is: a. ‘within the scope of the MHA’ but b. not subject to its compulsory powers.84 P will be ‘within the scope’ of the MHA if: a. an application could be made in respect of her under sections 2 or 3 of the 1983 Act, and b. she could be detained in hospital in pursuance of such an application were one made.85

76

sch A1 to the MCA 2005, pt 3, para 13; pt 4, para 34. exclusion of learning disabilities from the definition of ‘mental disorder’ under s 1(2A) of MHA 1983 does not apply to the DOLS; see sch A1 to the MCA 2005, pt 4, paras 14(1), 35. 78 sch A1 to the MCA 2005, pt 3, para 16(2)–(5); pt 4, paras 38 and 39. 79 sch A1 to the MCA 2005, pt 3, para 19(1) and (2); pt 4, para 48; MCA 2005, ss 9–14. 80 sch A1 to the MCA 2005, pt 3, para 20(1)–(3); pt 4, para 48; MCA 2005, ss 5–21. 81 Emphasis added. 82 sch A1 to the MCA 2005, pt 3, para 17(1). 83 sch 1A to the MCA 2005, pt 1, para 2. 84 ibid. 85 sch 1A to the MCA 2005, pt 2, para 12(1)(a) and (b). 77 The

Formal Patients 25

In other words, P will be ineligible if her doctors could ‘section’ her but have not yet done so. Schedule 1A provides that P will be ineligible for a DOLS authorisation where (i) the standard authorisation would authorise P to be a mental health patient, (ii) P objects either to being a mental health patient or to being given some or all of the mental health treatment, and (iii) a donee or deputy has not made a valid decision to consent to each matter to which P objects.86 The interface between the DOLS and the MHA, and thus the distinction between informal and formal mental health patients, therefore rests on whether or not P ‘objects’.87 If P does, then she is ineligible for a DOLS authorisation; if she does not then the choice between the DOLS and the MHA is a matter of preference for the relevant decision-maker.88 Patients who suffer from a mental disorder, lack capacity, and manifest no objection to either a deprivation of their liberty or medical treatment can therefore fall into either camp. In these circumstances, doctors are free to decide whether P should be subject to the DOLS or compulsorily admitted under the MHA on a case-by-case basis.89 The present author has argued elsewhere that the relationship between the DOLS and the MHA is best understood with reference to a continuum of legal interventions whose intensity escalates in line with the risks a patient poses to himself or others.90 The greater those risks, the more likely it is that P will be subject to the MHA’s compulsory powers. According to this conceptualisation, P’s objections to his care or treatment arrangements serve as a signal of his elevated risk profile and a justification for the deployment of the MHA’s compulsory powers. In this way, the DOLS form part of a wider legal apparatus for the control and management of risks associated with mental disorders. Where those risks cannot be safely managed on an informal basis, the only option that remains is recourse to formality.

Formal Patients ‘Formal’ patients are those subject to the MHA 1983. Among other things, the MHA authorises the detention of mentally ill patients in hospital,91 allows local

86

sch 1A to the MCA 2005, pt 1, para 5(2)–(5). of Health, Mental Health Act 1983: Code of Practice (London, TSO, 2015) [13.51] (Code of Practice); see also M McKillop et al, ‘The Concept of Objection under the DOLS Regime’ (2011) 21 Journal of Mental Health Law 61; G Richardson, ‘Mental Capacity at the Margin: The Interface between Two Acts’ (2010) 18(1) Medical Law Review 56. 88 P Bartlett, ‘Civil Commitment’ in L Gostin et al (eds.) Principles of Mental Health Law and Policy (Oxford, Oxford University Press, 2010) 471. 89 DN v Northumberland Tyne and Wear NHS Foundation Trust [2011] UKUT 327 (AAC); AM v South London and Maudsley NHS Foundation Trust [2013] UKUT 0365 (AAC); cf J v The Foundation Trust [2009] EWHC 2972 (Fam). 90 J Fanning, ‘Continuities of Risk in the Era of the Mental Capacity Act’ (2016) 24(3) Medical Law Review 415. 91 MHA 1983, ss 2–5, 20. 87 Department

26 The Mechanics of Mental Health Law in England

authority guardians to require that patients reside in specific places,92 and permits doctors to administer medical treatment to patients without their consent.93 As Lady Hale pointed out in Savage v South Essex Partnership NHS Foundation Trust,94 detained patients cannot choose the hospitals in which they are to be placed, the doctors who are to treat them, or the medical treatment which is to be administered for their disorders.95 Where P is placed is a matter for the hospital managers; how he is to be treated is an issue for his clinical team.96 The deployment of these compulsory powers does not depend on P’s mental capacity, nor is it contingent on evidence that he has caused harm to himself or other people. Instead, P will be compulsorily admitted to hospital where he (i) is suffering from a mental disorder of a nature or degree which warrants detention in hospital, and (ii) poses a risk of harm to himself or others. The relevance of considerations of risk to the decision-making process therefore distinguishes formal arrangements from their voluntary and informal equivalents. It is important not to understate the extent to which the MHA’s compulsory powers signify a departure from the fundamental precepts which have informed the development of medical law in England. No other statute permits doctors to administer compulsory treatment to patients on the basis of the risks of harm that they pose to themselves or other people. The MHA therefore singles out mental disorders for special treatment. Why it should do this is controversial: many commentators have argued that there is no justification for the way the law discriminates between mental and physical disorders.97 This notwithstanding, it is clear that formal mental health patients occupy a unique conceptual position which distinguishes them from any other recipient of care and medical treatment.

The Application of the Mental Health Act The MHA defines ‘mental disorder’ as ‘any disorder or disability of the mind’.98 This open-ended definition makes the issue of whether P falls within the scope of the MHA a matter of clinical judgement. According to the MHA Code of Practice, the definition includes affective disorders; schizophrenia and delusional disorders;

92

MHA 1983, s 8(1)(a). MHA 1983, s 63. 94 Savage v South Essex Partnership NHS Foundation Trust [2008] UKHL 74. 95 ibid, [94]. 96 See, eg, Coombs v Dorset NHS Primary Care Trust [2012] EWHC 521 (QB) [58] (Supperstone J): The position of a detained patient ‘cannot automatically be equated with that of an ordinary patient’. 97 See, eg, S Rosenman, ‘Mental Health Law: An Idea Whose Time has Passed’ (1994) 28 Australian & New Zealand Journal of Psychiatry 560; T Campbell and C Heginbotham, Mental Illness: Prejudice, Discrimination and the Law (Aldershot, Dartmouth, 1991); G Szmukler and F Holloway, ‘Reform of the Mental Health Act: Health or Safety?’ (2000) 177 British Journal of Psychiatry 196; G Richardson, ‘Balancing Autonomy and Risk: A Failure of Nerve in England and Wales’ (2007) 30 International Journal of Law and Psychiatry 71. 98 MHA 1983, s 1(2). 93

Formal Patients 27

neurotic, stress-related and somatoform disorders; organic mental disorders; personality and behavioural disorders; eating disorders; learning disabilities; and autistic spectrum disorders.99 A similarly wide range of disorders appears in the Explanatory Notes for the MHA 2007.100 It is clear that the application of the compulsory powers is not limited to particular mental disorders or symptomatologies; instead, the MHA frames ‘mental disorder’ expansively. This is not to say, however, that there are no limits. Learning disabilities will only fall within the scope of certain provisions of the MHA where they are ‘associated with abnormally aggressive or seriously irresponsible conduct’.101 The MHA defines ‘learning disability’ as ‘a state of arrested or incomplete development of the mind which includes significant impairment of intelligence and social functioning’.102 This limitation prohibits people with learning disabilities which are not associated with abnormally aggressive or seriously irresponsible conduct from becoming formal patients.103 This does not mean that those patients are beyond help: there is nothing to stop them receiving care and treatment through voluntary or, more likely, informal arrangements. Another limitation relates to dependence on alcohol or drugs, which the MHA does not define as a disorder or disability of the mind for the purposes of section 1(2).104 However, if P has a ‘dual diagnosis’, that is, he is dependent on alcohol or drugs and suffers from a mental disorder, then he may be admitted under the MHA, subject to his satisfying the admission criteria.105

Compulsory Admission to Hospital The procedure for compulsory admission to hospital, which is also known as ‘civil commitment’, is set out in Part II of the MHA. There are a number of legal bases on which doctors can recommend that a person with a mental disorder be compulsorily admitted to, or held in, hospital. These appear under sections 2 (admission for assessment), 3 (admission for treatment), 4 (admission for assessment in cases of emergency) and 5 (applications in respect of a patient already in hospital). Colloquially, a person who has been ‘sectioned under the MHA’ has been admitted on one of these bases. The effect of a duly completed application is that it provides sufficient authority for the managers of the relevant hospital to detain P in accordance with the MHA’s provisions.106

99

Code of Practice (n 87) [2.5]. Explanatory Notes to the MHA 2007, para [17]. 101 MHA 1983, s 1(2A). 102 MHA 1983, s 1(4). 103 MHA 1983, s 1(2B)(a) specifically excludes admission for assessment for the purposes of s 2 of the 1983 Act from this limitation. 104 MHA 1983, s 1(3). 105 Code of Practice (n 87) [2.11]. 106 MHA 1983, s 6(2). 100

28 The Mechanics of Mental Health Law in England

Perhaps the most important of those provisions are sections 2 and 3. An application under either section may be made by P’s ‘nearest relative’107 or by an ‘approved mental health professional’ (AMHP)108 and must be addressed to the managers of the hospital to which P’s admission is sought.109 Each application must be founded on the written recommendations of two registered medical practitioners,110 one of whom must be approved by the Secretary of State as having special experience in the diagnosis and treatment of mental disorder; the other shall, if practicable, have previous acquaintance with P.111 Section 2 provides that P may be admitted to a hospital and detained there for the purposes of assessment for up to 28 days112 where two registered medical practitioners certify in writing that: a.

P is suffering from a mental disorder of a nature or degree which warrants his detention in hospital for assessment; and b. P ought to be so detained in the interests of his own health or safety or with a view to the protection of other persons.113 The mere presence of mental disorder is therefore not sufficient; P’s condition must be of the requisite ‘nature or degree’.114 It is clear from the formula under section 2(2)(b) that P must also pose a risk of harm to himself or others. A similar ‘risk formula’ appears under section 3, albeit with slightly different wording. Under that section, a patient may be admitted to hospital for treatment and detained there for up to six months115 in the first instance where two medical practitioners certify in writing that: a. P is suffering from a mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in hospital; and b. [repealed by the MHA 2007]; c. it is necessary for the health or safety of P or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section; and d. appropriate medical treatment is available for P.116

107

MHA 1983, ss 26–30. MHA 1983, s 114(10). 109 MHA 1983, s 11(1) and (2). 110 MHA 1983, ss 2(3) and 3(3). 111 MHA 1983, s 12(2). 112 MHA 1983, s 2(4). 113 MHA 1983, s 2(2). 114 The phrase ‘nature or degree’ does not have to be read conjunctively, see R v Mental Health Review Tribunal for South Thames Region, ex parte Smith (1999) 47 BMLR 104 (QB); R (the Secretary of State for the Home Department) v Mental Health Review Tribunal [2003] EWHC 2846 (Admin). 115 MHA 1983, s 20(1); the six-month time frame may be renewed for a further six months in the first instance and annually thereafter (s 20(2)). 116 MHA 1983, s 3(2). 108

Formal Patients 29

Note that this time the medical practitioners must be satisfied that P’s risk profile is such that it is necessary to detain him in hospital for the purposes of administering medical treatment. This implies that the threshold for action is higher under section 3 than it is under section 2. It is possible to draw a similar inference from the wording of section 3(2)(a), which states that the nature or degree of P’s mental disorder must make it appropriate for him to receive medical treatment in hospital. It is perhaps unsurprising that section 3 imposes a more onerous standard; it is, after all, the basis on which doctors can administer medical treatment to P involuntarily. Sections 4 and 5 comprise the basis for emergency applications and the socalled ‘holding powers’ respectively. Section 4 applies wherever those applying for P’s admission for assessment (his nearest relative or an AMHP) would face an ‘undesirable delay’ in waiting for the section 2 formalities to be completed.117 Consequently, section 4(3) states that P can be admitted for assessment following the completion of an emergency application founded on only one of the medical recommendations required by section 2(3). An emergency application ceases to have effect on the expiration of a period of 72 hours following P’s admission, unless: a. the second medical recommendation required by section 2 is given and received by the managers within that period; and b. that recommendation and the recommendation referred to in section 4(3) both comply with the requirements of Part II.118 Therefore, if a second medical recommendation is forthcoming, P’s admission converts to a section 2. If not, the basis for detaining him in hospital expires and P must be released. The holding powers under section 5 are intended to have a similar temporary effect. Section 5 applies to patients already in hospital, such as voluntary or informal patients receiving treatment outside the strictures of the MHA at the time that the application is made. If a registered medical practitioner decides that P ought to be made a formal patient under Part II, he may furnish to the managers of the relevant hospital a report to that effect and thereupon detain P for a period of 72 hours.119 A ‘nurse of the prescribed class’ has a similar power to hold P in hospital for up to six hours where it appears that: a.

P is suffering from a mental disorder to such a degree that it is necessary for his health or safety or for the protection of others for him to be immediately restrained from leaving the hospital; and b. it is not practicable to secure the immediate attendance of a practitioner or clinician for the purpose of furnishing a report under section 5(2).120

117

MHA 1983, s 4(1) and (2). MHA 1983, s 4(4). MHA 1983, s 5(2). 120 MHA 1983, s 5(4). 118 119

30 The Mechanics of Mental Health Law in England

It is worth mentioning briefly how else a person with a mental disorder might come within the scope of the MHA. Sections 7–10 of the MHA contain the ‘guardianship’ procedure. A guardianship application may be made in respect of P on the grounds that: a. he is suffering from a mental disorder of a nature or degree which warrants his reception into guardianship; and b. it is necessary in the interests of the welfare of P or for the protection of other persons that he should be so received.121 Where P has been received into guardianship, he comes under the control of a guardian appointed by the local social services authority.122 Section 8(1) confers on duly appointed guardians the power to require P to live at a particular place;123 attend medical treatment, occupation, education or training;124 and permit a registered medical practitioner to have access to P.125 The formalities with which those applying for guardianship orders must comply echo those which decision-makers must follow where admission to hospital is concerned: for example, P’s nearest relative or AMHP may apply for a guardianship order126 and the application must be founded on the recommendation of two registered medical practitioners.127 As under section 3, the authority of a guardian lasts for six months in the first instance, renewable for a further six months and annually thereafter.128 Another way by which people can fall within the scope of the MHA is through sections 135 and 136. Section 135 allows a justice of the peace to issue a warrant to search for and remove a person believed to be suffering from a mental disorder from private property. The justice of the peace must have reasonable cause to suspect that that person: a. has been, or is being, ill-treated, neglected or kept otherwise than under proper control, in any place within the justice’s jurisdiction, or b. being unable to care for himself, is living alone in such a place.129 A section 135 warrant allows a police constable to enter the relevant premises, by force if necessary, and remove the person to a place of safety. If P is already in a place of safety, then the constable has the power to keep him there.130 The relevant person may be detained in that place of safety for the permitted period of detention, which is 24 hours from either P’s arrival at the place of safety or, if he is

121

MHA 1983, s 7(2). MHA 1983, s 7(5). 123 MHA 1983, s 8(1)(a). 124 MHA 1983, s 8(1)(b). 125 MHA 1983, s 8(1)(c). 126 MHA 1983, s 11(1). 127 MHA 1983, s 7(3). 128 MHA 1983, s 20(1) and (2). 129 MHA 1983, s 135(1). 130 MHA 1983, s 135(1A). 122

Formal Patients 31

already in such a place, from the police constable’s arrival.131 This power is plainly intended to bring those subject to it to a place in which the MHA’s more substantial powers can be deployed. A similar conclusion can be drawn from section 136, which allows a police constable to remove from a public place any person who it appears to him may be ‘suffering from a mental disorder and to be in immediate need of care or control’.132 Before doing so, the police constable must consult a medical practitioner, nurse, or AMHP, if practicable.133 A person removed to a place of safety under section 136 can be detained in, or kept at, that place for up to 24 hours from the time of his arrival.134 A registered medical practitioner may extend the permitted period of detention under both sections 135 and 136 for a further 12 hours following his examination of the patient.135

Treating Formal Patients Doctors’ authority to administer medical treatment to formal patients appears in Part IV of the MHA. Its provisions apply to any patient ‘liable to be detained’ under the MHA, which applies to those who have been compulsorily admitted to hospital under sections 2 and 3.136 Although also ‘liable to be detained’, patients subject to sections 4, 5, 135 and 136 are specifically excluded from Part IV. This means that doctors can only engage Part IV where P has been formally admitted to hospital following the recommendation of two registered medical practitioners. The wording of section 63 makes it clear why that is: The consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering, not being a form of treatment to which section 57, 58 or 58A … applies, if the treatment is given by or under the direction of the approved clinician in charge of the treatment.137

Section 63 is perhaps the most significant provision in the MHA because it establishes a general rule that doctors can administer medical treatment to P for his mental disorder even in the face of a capacitous refusal. It also implies that doctors can employ reasonable force to administer treatment. In this way, section 63 is the definitive basis by which to distinguish formal patients from their voluntary and informal counterparts. ‘Medical treatment’ includes ‘nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care’ and refers to any treatment ‘the purpose of which is to alleviate, or prevent a worsening of, the disorder or one

131

MHA 1983, s 135(3ZA). MHA 1983, s 136(1). 133 MHA 1983, s 136(1C). 134 MHA 1983, s 136(2). 135 MHA 1983, s 136B(1). 136 MHA 1983, s 56(2) and (3). 137 MHA 1983, s 63. 132

32 The Mechanics of Mental Health Law in England

or more of its symptoms or manifestations’.138 Section 63 can therefore authorise a wide range of medical treatments for mental disorder, from the compulsory administering of an anti-psychotic depot injection for the purposes of alleviating P’s disorder to the provision of a structured regime of nursing care to manage P’s symptoms. The only thing that section 63 cannot authorise is medical treatment for patients suffering from physical disorders. In An NHS Trust v A,139 Baker J held that doctors could not administer artificial nutrition and hydration under section 63 to a patient with a delusional disorder. The patient, known as ‘Dr A’, had been admitted under the MHA but was refusing to eat or drink in protest at the United Kingdom Border Agency’s decision to refuse him asylum status and confiscate his passport. Baker J concluded that Dr A’s physical disorder, which had arisen from his decision to forego food, was ‘not obviously either a manifestation or a symptom of [his] mental disorder’.140 Consequently, doctors could not rely on section 63 to administer artificial nutrition and hydration. Instead, the Court of Protection invoked its inherent jurisdiction to authorise force-feeding in Dr A’s case. The effect of the distinction drawn by section 63 is that doctors must continue to respect patients’ capacitous refusals of treatment for physical disorders. The courts have, however, recognised that the distinction between mental and physical disorders is not as clear-cut as section 63 implies. In B v Croydon Health Authority,141 the Court of Appeal held that doctors could administer artificial feeding under section 63 to a patient suffering from psychopathic disorder. One of the symptoms of the patient’s disorder was a compulsion to harm herself and this was manifest in her refusal of food. Hoffman LJ said that the phrase ‘medical treatment … for the mental disorder’ in section 63 necessarily included ‘ancillary acts’ which accompany the patient’s ‘core treatment’. Although a treatment for a physical disorder, the artificial feeding in B’s case had been intended to prevent P from causing harm to herself and was therefore an ancillary treatment which could be administered under section 63. Maurice Kay J reached a similar conclusion in R v Collins, ex parte Brady.142 Here, the patient’s hunger strike was deemed to be a feature or manifestation of his personality disorder and therefore his doctors could administer ancillary force-feeding under section 63. Following this, the courts have shown a willingness to define ‘ancillary’ treatments generously, thereby expanding section 63 far beyond what a literal interpretation of the provision would arguably permit. For example, the courts have found seclusion in a structured setting as part of a regime of supervised care143 and Caesarean sections144 both to be ‘ancillary’

138

MHA 1983, s 145(1) and (4). An NHS Trust v A [2014] Fam 161. ibid, [79]. 141 B v Croydon Health Authority [1995] Fam 133 (CA). 142 R v Collins, ex parte Brady [2000] Lloyd’s Rep Med 355 (QB). 143 Reid v Secretary of State for Scotland [1999] 2 AC 512 (HL). 144 Tameside and Glossop Acute Services NHS Trust v CH (A patient) [1996] 1 FLR 762 (QB); cf St George’s Healthcare NHS Trust v S [1999] Fam 26 (CA). 139 140

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treatments administrable under section 63. More recently, the Court of Protection has suggested that doctors should respect a patient’s capacitous refusal of an ancillary treatment, perhaps indicating a readiness in the post-MCA era to row back from generous interpretations of section 63. In Nottinghamshire Healthcare NHS Trust v RC,145 the patient, R, suffered from personality disorder and had a history of self-harming behaviour. He was also a Jehovah’s Witness and would consequently refuse blood transfusions. Crucially, R retained decision-making capacity and was therefore able to consent to, and refuse, medical treatment. Mostyn J held that doctors could administer blood transfusions under section 63 to treat the consequences of self-harming behaviour (eg, blood loss) brought about by a mental disorder. However, His Lordship said that it would be an ‘abuse of power’ for a doctor to administer an ancillary treatment to a patient who retained decision-making capacity and expressly refused it.146 This would mean that R could refuse an ancillary blood transfusion intended to treat the consequences of the self-harming behaviour because he had mental capacity to do so. On this interpretation of section 63, medical treatment with the core purpose of alleviating or preventing a worsening of a mental disorder can be administered despite P’s capacitious refusals but ancillary treatments cannot. This reading of section 63 complicates matters where formal patients with capacity are concerned: it suggests that for these patients the distinction between ‘core’ and ‘ancillary’ treatments may take on a renewed significance. In spite of the courts’ generous interpretations of what will qualify as medical treatment, it is not the case that the MHA gives doctors a free hand to administer whatever treatments they think fit for as long as P is liable to be detained. Part IV contains a number of safeguards which impose procedural limits on doctors. It is true that the MHA permits doctors to suspend these special safeguards where urgent treatment may be indicated,147 but Part IV plainly assumes that this will be the exception rather than the norm. The first of the special safeguards appears in section 57, which governs medical treatment ‘requiring consent and a second opinion’ and applies to neurosurgery and ‘such other forms of treatment as may be specified for the purposes of [that] section by regulations made by the Secretary of State’.148 A patient cannot be given any form of treatment to which section 57 applies unless he has consented to it and a registered medical practitioner (not being the responsible clinician in charge of P’s treatment) certifies that it is an appropriate treatment to be given in the circumstances.149 Although we have seen that for the most part the compulsory powers operate without regard to

145

Nottinghamshire Healthcare NHS Trust v RC [2014] EWCOP 1317. ibid, [42]. 147 MHA 1983, s 62. 148 MHA 1983, s 57(1)(b); see also Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008/1184, reg 27(1). 149 MHA 1983, s 57(2). The registered medical practitioner who provides this certification is known as a ‘Second Opinion Appointed Doctor’, or SOAD. 146

34 The Mechanics of Mental Health Law in England

P’s consent, Part IV of the MHA renders the administering of certain medical treatments contingent on it. This is because certain medical treatments have hazardous or irreversible effects and therefore the requirement that P must consent before they are administered is an important safeguard. Whether a formal patient has capacity to consent may therefore become a live issue where doctors propose to administer certain medical treatments. Section 58 is another occasion where P’s consent may matter. It concerns medical treatment ‘requiring consent or a second opinion’ and specifically applies to ‘the administration of medicine to a patient by any means’.150 Section 58 effectively imposes a three-month time limit on the nonconsensual administration of medicines to P.151 When three months have elapsed since the first occasion on which medicine was administered to P pursuant to section 63, his doctors must discontinue the treatment unless P has consented to it or a registered medical practitioner certifies that P lacks capacity and that the treatment should continue.152 This means that doctors cannot administer medication to P for as long as he is liable to be detained under the MHA. Given that most formal patients will receive treatment in the form of anti-psychotic or antidepressant medication, section 58 significantly restricts doctors’ powers to administer medical treatment without consent under the MHA. Section 58A concerns electro-convulsive therapy (ECT).153 There are only three occasions when doctors can administer ECT under the MHA 1983. The first is where P has attained the age of 18 years and consents to ECT and his doctor or one appointed for the purposes of giving a second opinion certifies that P has capacity to consent.154 The second occasion applies where P has not attained the age of 18 years. Here, doctors can administer ECT where P has consented to it and where a Second Opinion Appointed doctor has certified that (i) P has capacity to consent, and (ii) it is appropriate to administer ECT.155 Section 58A therefore recognises that minors can consent to ECT in the same way that they can give valid consent to other medical treatments outside the context of the MHA.156 However, if a minor with capacity refuses ECT then section 58A(4) prohibits doctors from overruling that refusal and proceeding with the treatment—action they can take in respect of a minor in other contexts.157 The final occasion on which ECT can be administered is where the clinician in charge of P’s treatment or a Second Opinion Appointed doctor certifies that (a) P lacks capacity, (b) it is appropriate to administer ECT, and (c) giving ECT to P would not conflict with an advance decision

150

MHA 1983, s 58(1)(b).

151 ibid. 152

MHA 1983, s 58(3). MHA 2007, s 27. 154 MHA 1983, s 58A(3). 155 MHA 1983, s 58A(4)(c). 156 Family Law Reform Act 1969, s 8; Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 WLR 830 (HL). 157 Re W (A Minor) (Medical Treatment: Court’s Jurisdiction) [1992] 3 WLR 758 (CA). 153

Formal Patients 35

or a decision made by a donee or deputy or by the Court of Protection.158 Before so certifying, the registered medical practitioner must consult two other persons who have been professionally concerned with P’s treatment, at least one of whom must be a nurse.159 Section 58A therefore permits doctors to administer ECT to formal patients who lack capacity, although applicable advance decisions, which would not normally apply to medical treatments under the MHA, can preclude administering ECT.160 Part IV of the MHA 1983 gives the compulsory powers their bite. It allows doctors to administer medical treatment to patients liable to be detained under the MHA without consent. Although its procedural safeguards impose limits on what doctors can do, there is no doubt that Part IV sets the treatment experience of formal patients apart from that of their voluntary and informal counterparts. The notion that healthcare professionals might administer treatment on a paternalistic or compulsory basis is generally considered anathema to contemporary medical ethics. The MHA’s treatment powers are therefore a notable exception to the current medico-legal consensus.

Discharging Formal Patients There are several ways in which a formal patient’s compulsory engagement with mental health services can be ended. P can be discharged because the legal basis for his compulsory admission has been ‘timed out’; by order of his responsible clinician, the hospital managers, or his nearest relative; or by the Mental Health Tribunal (MHT). In any case, once P is discharged from section, he ceases to be a formal patient. This may mean that he is released into the community or, more likely, that he continues to receive medical treatment on a voluntary or informal basis.161 There are two things that readers should bear in mind when considering the MHA’s discharge mechanisms. First, references to ‘discharge’ in this context are somewhat misleading: as Bartlett and Sandland point out, ‘the issue is not whether [P] is discharged from the hospital but whether [P] need be subject any longer to the compulsory powers’.162 For example, P may still be suffering from a mental disorder of a nature or degree that makes it appropriate for him to receive medical treatment in a hospital. What may have changed since his initial admission is that it is no longer necessary for P’s health or safety that he be detained in order to receive that treatment. In these circumstances, P no longer meets the criteria

158

MHA 1983, s 58A(5). MHA 1983, s 58A(6). 160 MCA 2005, s 26. 161 Patients discharged from section after having been admitted for treatment under s 3 are entitled to receive after-care services; see MHA 1983, s 117. 162 P Bartlett and R Sandland, Mental Health Law: Policy and Practice, 4th edn (Oxford, Oxford University Press, 2014) 498. 159

36 The Mechanics of Mental Health Law in England

for compulsory admission to hospital and therefore must be discharged from section, although plainly it would be undesirable if his engagement with mental health services were to end completely. He will therefore be discharged from section but not from hospital. ‘Discharge’ in the conventional sense and ‘discharge from section’ are therefore not necessarily the same thing.163 Secondly, P’s exit from the MHA’s domain is more likely to be the culmination of a process rather than an event in itself.164 The MHA contains a range of powers with which doctors can progressively lessen the intensity of P’s compulsion as part of a gradual process of lifting the restrictions placed upon him by sections 2 and 3. For example, a responsible clinician may grant P leave to be absent from the hospital for any specified period,165 discharge P onto a Community Treatment Order (CTO),166 or help to complete the necessary formalities in order to set up a guardianship order.167 It would therefore be an oversimplification to regard the power to discharge P from section as a blunt instrument by which to ‘switch off ’ his liability to be detained.

Expiry of Authority to Detain P The simplest way by which P’s formal status will end is where the authority to detain him expires. We have already seen that the various bases on which doctors can detain P under the MHA are subject to time limits. If P’s clinical team admits him to hospital under a Part II provision and fails to transfer him to another section or renew his detention before the time limit expires,168 it will lose the authority to detain him and P must be released. Some readers may feel that it is inappropriate to characterise the expiry of the authority to detain P as a discharge mechanism. ‘Discharge’ implies that a decision-maker has actively chosen to end P’s compulsion, not passively allowed the clock to run down. Yet the ultimate effect is the same and therefore this is a distinction without a difference. Section 20 of the MHA comprises the procedure for the renewal of detention periods and allows decision-makers to renew P’s admission for treatment for six months in the first instance and then annually thereafter.169 Within two months of the day on which the authority to detain P will cease, the responsible clinician must examine P and, if it appears to him that P still meets the section 3 criteria for compulsory admission for treatment, he can apply to renew P’s detention.170 163 R v BHB Community Healthcare NHS Trust, ex parte B [1999] Lloyd’s Rep Med 101 (CA); R (DR) v Mersey Care NHS Trust [2002] MHLR 386 (Admin); R (CS) v Mental Health Review Tribunal [2004] EWHC 2958 (Admin). 164 Bartlett and Sandland (n 162) 495. 165 MHA 1983, s 17. 166 MHA 1983, s 17A. 167 MHA 1983, s 7. 168 The 28-day period for the purposes of s 2(4) is not renewable, although s 29(4) allows the period to be extended where an application is made to the court to replace P’s nearest relative. 169 MHA 1983, s 20(2). 170 MHA 1983, s 20(3) and (4).

Formal Patients 37

The responsible clinician will do this by consulting a second professional171 before furnishing the hospital managers with a report which makes the case for the renewal of P’s detention under the MHA.172 Assuming that the hospital managers decide not to use their power to discharge P, a duly furnished report will lead to the renewal of the authority to detain P.

Orders for Discharge An ‘order for discharge’ has the effect of ending P’s liability to be detained under the MHA. Such an order may be made in respect of P at any time by his responsible clinician, the hospital managers, or his nearest relative.173 Where P is subject to guardianship, an order for discharge may also be made by the local social services authority.174 Insofar as orders for discharge by responsible clinicians, hospital managers and local social services authorities are concerned, the procedure for ending P’s liability to be detained as a formal patient is not particularly onerous. The applicant need only produce an order in writing discharging P absolutely from detention or guardianship.175 Things are slightly trickier where P’s nearest relative is concerned. She may authorise any registered medical practitioner to visit and examine P in private at any reasonable time.176 That medical practitioner may also require the production and inspection of any records relating to P’s detention or treatment.177 The implication here is that in pursuing an order for discharge, P’s nearest relative may be acting contrary to the wishes of the responsible clinicians. By allowing P’s nearest relative to instruct an independent doctor to visit and examine P, section 24 of the MHA gives her the opportunity to build a case for discharge. This may still not be enough: section 25 places further restrictions on the nearest relative’s discharge power. P’s nearest relative must give the relevant hospital managers 72 hours’ notice in writing.178 If, during that 72-hour window, the responsible clinician producer a ‘barring report’179 certifying that P ‘would be likely to act in a manner dangerous to other persons or to himself ’ if discharged, the nearest relative’s discharge order shall have no effect and no further order can be attempted for the subsequent six months.180 It is worth noting that the power to order P’s discharge under section 23 of the MHA entails an administrative procedure, rather than a legal one. There are no ‘criteria for discharge’ which applicants must satisfy before P’s liability to be detained

171

MHA 1983, s 20(5).

172 ibid. 173

MHA 1983, s 23(2)(a). MHA 1983, s 23(2)(b). MHA 1983, s 20(1). 176 MHA 1983, s 24(1). 177 MHA 1983, s 24(2). 178 MHA 1983, s 25(1). 179 Code of Practice (n 87) [32.22]. 180 MHA 1983, s 25(1). 174 175

38 The Mechanics of Mental Health Law in England

will cease. This makes intuitive sense: an order for discharge restores P’s liberty by ending compulsion under the MHA. If P’s responsible clinician, or any other applicant, had to satisfy discharge criteria before P could be released from section, this would in effect establish a presumption of continuing detention. Where the hospital managers’ discharge power is concerned, the Code of Practice states that the ‘essential consideration’ is whether the grounds for continued detention are satisfied—thereby placing the onus on those seeking to keep P in hospital.181 The same can be said of the nearest relative’s discharge power, which P’s responsible clinician can only block by establishing that P is likely to pose a danger to himself or others upon release. Consequently, the question is not whether P should be discharged, but rather whether he should continue to be detained.

Discharge by the Mental Health Tribunal (MHT) The MHT’s power to discharge patients derives from Part V of the MHA. There are several ways in which P’s case can come before the MHT. The first is where P or his nearest relative applies to it. Where P is, among other things, detained in hospital for assessment or treatment, received into guardianship, or subject to a CTO, he or his nearest relative may apply to the MHT within the relevant period.182 For the purposes of patients admitted for assessment, the ‘relevant period’ is 14 days beginning with the day on which P was admitted.183 The ‘relevant period’ for patients detained under section 3, received into guardianship, or subject to a CTO, is six months beginning on the day on which the relevant compulsory power first applied.184 Another way that P’s case can come before the MHT is via a referral by the Secretary of State, who has the discretion to refer any case at any time.185 Finally, hospital managers must refer any case to the MHT on the expiry of the period of six months following P’s original admission to hospital if P has not himself applied to the MHT or been referred by the Secretary of State during that time.186 This means that all patients subject to the MHA will go before an MHT at least once during the first six months of their admission to hospital. For those patients subject to long-term detention, section 68(6) places a duty on hospital managers to refer any patient to the MHT if a period of three years has elapsed since he was last reviewed. All patients sectioned under the MHA are therefore subject to the oversight of the MHT. Limited space precludes a detailed rehearsal of the MHT’s constitution, procedure and location within the wider framework of the tribunal system.187

181

Code of Practice (n 87) [38.15]. MHA 1983, s 66(1). MHA 1983, s 66(2)(a). 184 MHA 1983, s 66(2)(b), (c) and (ca) respectively. 185 MHA 1983, s 67(1). 186 MHA 1983, s 68. 187 The Mental Health Tribunal is part of the Health, Education and Social Care ‘Chamber’ and is a First-tier Tribunal for the purposes of the Tribunals, Courts and Enforcement Act 2007, s 3. 182 183

Formal Patients 39

For present purposes, it will suffice for readers simply to know what the MHT’s discharge powers are. First, it has a general discretion in any case to direct the discharge of a patient liable to be detained under the MHA.188 In this way the MHT has a similar power to P’s responsible clinician, his nearest relative, or hospital managers to order the discharge of the patient from section at any time. Secondly, the MHT has a duty to direct the discharge of patients in certain circumstances. According to section 72(1)(a), it must direct the discharge of a patient liable to be detained under section 2 if it is not satisfied that: i. he is then suffering from mental disorder of a nature or degree which warrants his detention in hospital for assessment for at least a limited period; or ii. his detention is justified in the interests of his own health or safety or with a view to the protection of others. Similarly, section 72(1)(b) states that the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 if it is not satisfied that: i. he is then suffering from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in hospital for medical treatment; or ii. it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment; or iia. appropriate medical treatment is available for him; or iii. in the case of an application brought against a section 25 ‘barring order’, that the patient, if released, would be likely to act in a manner dangerous to other persons or to himself. The wording of section 72(1)(a) and (b) echoes that of sections 2 and 3 respectively, meaning that the same criteria apply at the points of entry and exit. The same also applies in the case of patients who are subject to SCT189 and guardianship.190 The only difference is that section 72 is framed negatively, that is, the tribunal’s duty to discharge arises where it is not satisfied that there are grounds for continuing P’s detention. This places the burden on those wishing to keep P in hospital to satisfy the tribunal that that should happen. If they cannot, P must be discharged from section. The MHT also has the power to direct P’s discharge on a future date and to recommend that he be granted leave of absence or transferred into guardianship in anticipation of that date.191 This demonstrates the extent to which discharge from section can be the culmination of a process, rather than a single event in itself.

188

MHA 1983, s 72(1). MHA 1983, s 72(1)(c). MHA 1983, s 72(4). 191 MHA 1983, s 72(3). 189 190

40 The Mechanics of Mental Health Law in England

Conclusions This chapter has set out the basic mechanics of English mental health law. There are two main points to take forward. The first is that mental health law does not begin and end with the MHA; most patients will be voluntary or informal and will interact with mental health services outside the scope of the MHA. This is not to say that they do not enjoy protection from unlawful violations of their bodily integrity or that their treatment proceeds without legal oversight. Far from it: people who suffer from mental disorders and seek or receive medical help are protected by the law in the same way as anyone else. This means that doctors must acknowledge their patients’ autonomy and respect their right to self- determination and, where that is not possible, proceed in accordance with their best interests. ‘Mental health law’ therefore covers the entire spectrum of interactions with mental health s ervices, from the voluntary to the involuntary. The second point is that the MHA has significant coercive potential. Formal patients can be compulsorily admitted to hospital for up to six months at a time, required to comply with treatment plans in the community, and given medical treatment without their consent. No other area of medical law permits such paternalistic practices to prevail. The law therefore plays an important role in delineating when the compulsory powers can be invoked, or at least in trying to prevent the arbitrary or excessive deployment of them. Where the boundary should lie between voluntary and informal patients on one hand and formal patients on the other is an important question, the answer to which can have a transformative effect on a person’s care and treatment experience. The more rigidly defined the legal basis for compulsory admission to hospital is, the harder it will be to make P a formal patient; the more relaxed the admission criteria, the easier it will be to subject P to coercive medical treatment. A core claim of this book is that the MHA 2007 has made it easier to bring patients within the scope of the compulsory powers. The chapters which follow endeavour to substantiate that claim.

2 The Centrality of Risk in the Mental Health Act and its Consequences Introduction Risk is the key which unlocks the compulsory powers of the Mental Health Act (MHA) 1983. The only way that doctors can recommend that a mentally disordered person (P) be compulsorily admitted to hospital is where they deem him to pose a risk of harm to himself or others. The centrality of risk is clear from the wording of the MHA’s civil commitment provisions. For example, section 2 authorises admission for assessment where P ‘ought to be … detained in the interests of his own health or safety or with a view to the protection of other persons’.1 Section 3 contains a similar formulation, making P’s admission for treatment contingent on it being ‘necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment’.2 This slight difference between sections 2 and 3 suggests that the ‘risk threshold’ (ie, the point at which P’s risks will justify his compulsory admission) is higher under section 3 than it is under section 2. Nevertheless, the conjunctive wording of sections 2(2) and 3(2) means that considerations of patients’ risks are central to the compulsory powers—they simply cannot operate without them. P might very well be suffering from a serious mental disorder which might make it appropriate for him to receive medical treatment in hospital, but if he does not pose the requisite degree of risk to himself or others implied by the admission criteria then he cannot be ‘sectioned’. References to P’s health or safety or the protection of others—the ‘risk formula’—run throughout the MHA, governing decisions pertaining to admission,3 guardianship,4 leave of absence,5 supervised community treatment,6

1

Mental Health Act (MHA) 1983, s 2(2)(b). MHA 1983, s 3(2)(c). 3 MHA 1983, ss 2(2)(b), 3(2)(c) and 5(4)(a). 4 MHA 1983, s 7(2)(b). 5 MHA 1983, ss 17(1) and 17(4). 6 MHA 1983, ss 17A–17G. 2

42 Centrality of Risk and its Consequences

renewal of detention,7 the extension of community treatment periods,8 restriction orders,9 the power of tribunals to order the discharge of the patient,10 correspondence,11 and police powers to remove to places of safety mentally disordered people found in public.12 The entire mechanics of the MHA therefore depend on considerations of risk. In R (B) v S,13 Lord Phillips MR neatly characterised the risk formula as the logical foundation of the MHA itself: The MHA is primarily concerned with the compulsory detention of patients suffering from mental disorders in order that they may receive treatment for those disorders. The compulsory detention is justified because it is necessary in order to ensure that the patient receives treatment. Ensuring that the patient receives treatment is justified because this is necessary for the health or safety of the patient or for the protection of others.14

Risk therefore provides the policy rationale for the MHA and is the pivot around which the compulsory powers turn. There is nothing new about this: the common law has long accepted that the doctrine of necessity can justify the detention of mentally disordered people who pose a danger to themselves or others,15 and versions of the risk formula featured in the MHA’s forerunners.16 Despite its significance, risk is a problematic concept. According to N iklas Luhmann, those who seek to define ‘risk’ find themselves ‘immediately befogged’.17 It is easy to see why: ‘risk’ can function as ‘a very loose term in everyday parlance’18 or it may serve as a technical calculus of the chance of a particular hazard occurring.19 What ‘risk’ means in a colloquial sense may be the subject of dispute; how it should apply in altogether more specialised contexts is even harder to determine. The MHA makes explicit reference to ‘risk’ on only nine occasions and at no point does it define the concept.20 The risk formula also fails to delimit the substantive

7

MHA 1983, s 20. MHA 1983, s 20A. 9 MHA 1983, ss 41 and 42. 10 MHA 1983, s 72. 11 MHA 1983, s 134(2). 12 MHA 1983, s 136. 13 R (B) v S [2006] EWCA Civ 28. 14 ibid, [43] (Lord Phillips MR). 15 See, eg, R v Coate (1772) Lofft 73; Scott v Wakem (1862) 3 F and F 328; Symm v Fraser (1863) 3 F and F 859. 16 Lunacy Act 1890, s 11(1) (‘for the welfare of a person … or for the public safety’); Mental Deficiency Act 1913, s 1(c) (‘supervision and control for their own protection or for the protection of others’); Mental Treatment Act 1930, ss 1–4 (‘voluntary’ patients could leave hospital by giving 72 hours’ notice, unless they were incapable of making decisions about their treatment, in which case they could be compelled for their own interests or in the interests of others); Mental Health Act 1959, s 25(2)(b) (‘in the interests of his own health and safety, or with a view to the protection of other persons’) and s 26(2)(b) (‘necessary in the interests of his own health and safety, or for the protection of others’). 17 N Luhmann, Risk: A Sociological Theory (London, Aldine Transaction, 2007) 6. 18 D Lupton, Risk (London, Routledge, 1999) 9. 19 F Warner et al, Risk: Analysis, Perception and Management: Report of a Royal Society Study Group (London, Royal Society, 1992) 4. 20 MHA 1983, ss 17A(6), 17B(2)(b), 17E(1)(b), 20A(7), 41(1), 43(1)(b), 72(1A), 117(6)(b). 8

Introduction 43

factors that decision-makers should regard as having probative value when assessing P’s risks. Even where it purports to offer decision-makers some guidance, the MHA errs on the side of open-endedness.21 The task of defining, identifying and evaluating the risks which warrant compulsory intervention therefore falls exclusively within the professional domain of expert decision-makers, such as registered medical practitioners, approved mental health professionals (AMHPs), psychiatric nurses, and so on. This means that in spite of the premium which the courts have placed on the importance of legal certainty where deprivations of liberty are concerned,22 there is no clearly prescribed threshold for compulsion under the MHA. This chapter examines the legal and practical consequences of the centrality of risk in the MHA. Its core claim is that the concept of risk neuters the law’s determinative potential, thereby undermining the notion that decisions to deploy the MHA’s compulsory powers depend on the satisfaction of legally certain criteria. This is because considerations of risk are necessarily matters of fact which must be evaluated according to professional judgement. By making considerations of risk essential to civil commitment, the MHA defers to expert decision-makers and thereby turns the law from a prescriptive instrument into a facilitator of the exercise of professional discretion. This makes it difficult for patients to predict the likely nature and extent of their interactions with mental health services with any degree of certainty. In order to develop this argument, this chapter follows a four-part structure. First, it demonstrates that even in general terms ‘risk’ is a poorly defined concept. This is troubling because if we cannot say with any certainty what ‘risk’ means in an abstract sense, it is unclear how we should interpret it in the specific context of the MHA. Secondly, this chapter discusses what we shall call the ‘panoply of risks’ which may be relevant under the MHA. Perhaps the most important question when discussing risk in this context is: risk of what? Here we will see that there are few limits on what decision-makers can identify as an ‘operable’ risk in this regard. We will also see that the MHA implicitly casts risk in an entirely negative light, taking virtually no account of the concept’s positive potential. Moreover, how decision-makers evaluate patients’ risks varies enormously, raising doubts about consistency. Although it is not the case that ‘anything goes’, we will see that decision-makers enjoy a broad degree of latitude when deploying the compulsory powers. Thirdly, this chapter will demonstrate that the courts have conspicuously avoided interfering in the domain of expert decision-makers. The case law offers little guidance on how ‘risk’ should be interpreted for the purposes of the MHA. It is true that the courts have imposed some limits, but they have stopped short of

21

See, eg, MHA 1983, s 17A(6). See, eg, Re S-C (Mental Patient: Habeas Corpus) [1996] QB 599; R (M) v Hackney London Borough Council [2011] EWCA Civ 4; R (Lee-Hirons) v Secretary of State for Justice [2016] UKSC 46; see also Kawka v Poland App no 25874/94 (ECtHR, 9 January 2001) [49]. 22

44 Centrality of Risk and its Consequences

making substantive prescriptions. Finally, this chapter argues that risk assessment relies on professionals’ ‘tacit knowledge’, that is, their intuitive or innate sense of what makes it necessary to detain P in hospital for his health or safety or for the protection of other people. In this way, the centrality of risk in the MHA means that the process of ‘sectioning’ P is neither legally certain nor especially predictable and conforms to norms set and internalised by mental health professionals which defy objective explication.

‘Immediately Befogged’: The Difficulties of Defining ‘Risk’ Defining ‘risk’ is not straightforward: the word’s wide usage makes the quest for a definitive meaning rather quixotic. ‘Risk’ may have originated from the seventeenth-century French word ‘risque’ or the Italian ‘risco’, which is itself of uncertain origin.23 Alternatively, it may have developed from the Arabic ‘risq’ (‘riches or good fortune’), Greek ‘rhiza’ (‘cliff ’), or Latin ‘resegare’ (‘to cut short’).24 There is evidence to suggest that the word first appeared among Western explorers in the Age of Discovery to refer to the hazards attendant on sailing through uncharted waters.25 Others argue that it developed from gambling,26 or that it first emerged as a principle of the laws of maritime insurance.27 In any case, the first recorded general definition of ‘risk’ (‘hazard, danger; exposure to mischance or peril’) dates from 1661.28 According to the Oxford English Dictionary, ‘risk’ became a feature of legal language by the eighteenth century, although it was not until the twentieth century that the word would apply to a person who is himself ‘considered a liability or danger’.29 During this time, words like ‘analysis’ and ‘assessment’ were first coupled with ‘risk’, giving rise to the lexicography with which we are familiar today.30 In the modern era, dictionary definitions of ‘risk’ (‘exposure to the chance of injury or loss, a hazard or dangerous chance’,31 or ‘the possibility of incurring

23 ‘risk, n.’. OED Online. September 2016. Oxford University Press: www.oed.com/view/Entry/1663 06?rskey=DNk1xT&result=1. 24 I Wilkinson, Risk, Vulnerability and Everyday Life (London, Routledge, 2010) 17. 25 A Giddens, ‘Risk Society: The Context of British Politics’ in J Franklin (ed), The Politics of Risk Society (Malden, MA, Polity Press, 1998) 27. 26 M Douglas, Risk and Blame: Essays in Cultural Theory (London, Routledge, 1992) 14–15. 27 Wilkinson (n 24). 28 OED (n 23). 29 ibid. 30 ibid. 31 ‘risk’. Dictionary.com Dictionary.com Unabridged, Random House Inc: dictionary.com/browse/ risk.

‘Immediately Befogged’: The Difficulties of Defining ‘Risk’ 45

misfortune or loss; hazard’)32 offer a reasonably fixed meaning, though they still fail to capture the enormous range of the word’s colloquial usage. Over time, the application of risk has changed to suit contemporary circumstances, conferring a degree of elasticity on the concept’s semantic scope. According to Alaszewski, the word ‘risk’ is now the ‘tip of an iceberg of related words or terms’, which include: ‘hazard’, ‘harm’, ‘safety’, ‘dangerousness’, ‘vulnerability’ and ‘blame’.33 It is true that these terms are typically synonymous with ‘risk’, although this does little to clarify what the word means in the abstract.34 Indeed, Alaszewski seems to suggest that it may make this task even harder: the ‘risk iceberg’ comprises ‘an interrelated set of words that are linked around issues of chance and outcome’.35 For that reason, there is some interchangeability between these words ‘and a degree of circularity in their definitions’.36 Colloquially, ‘risk’ is capable of applying in various parts of speech: as a noun (‘there is a risk of rain today’), verb (‘I risk losing the match’), adjective (‘a risky endeavour’) or adverb (‘he behaves too riskily’). It can also be used idiomatically: for example, ‘she is running a risk’ or ‘I risked life and limb’. Risk’s everyday usage applies to vague notions of chance, danger and uncertainty and therefore provides a way of communicating concepts which are fundamental to human experience. According to Slovic, the key to humanity’s survival has been its capacity to codify and learn from experience.37 Adams echoes this view by describing modern human beings as Homo aleatorius, or ‘risk-taking man’, because of our preoccupation with considerations of risk.38 He explains that the English language is ‘littered with aphorisms extolling the virtues of risk’, for example, ‘nothing ventured, nothing gained’ and ‘no risk, no reward’.39 The ubiquity of the term in conversational discourse reflects our tendency to interpret the world around us through the prism of risk. ‘Risk’ also has a more technical character. According to the Royal Society, risk can be expressed in mathematical terms as the quantitative chance of a defined hazard occurring.40 This encapsulates both a ‘probabilistic measure’ of the likelihood that

32 ‘risk’. Dictionary.com Collins English Dictionary—Complete and Unabridged 10th Edition, Harper Collins Publishers: dictionary.com/browse/risk. 33 A Alaszewski, ‘Risk in Modern Society’ in A Alaszewski et al (eds), Risk, Health and Welfare: Policies, Strategies and Practice (Buckingham, Open University Press, 1998) 10. 34 ‘Risk’ is synonymous with ‘accident’, ‘contingency’, ‘danger’, ‘exposedness’, ‘exposure’, ‘fortuity’, ‘fortune’, ‘gamble’, ‘hazard’, ‘jeopardy’, ‘liability’, ‘luck’, ‘opportunity’, ‘peril’, ‘possibility’, ‘prospect’, ‘shot in the dark’, ‘uncertainty’, ‘venture’ and ‘wager’; see Thesaurus.com Roget’s 21st Century Thesaurus, Third Edition. Philip Lief Group 2009: www.thesaurus.com/browse.risk. 35 Alaszewski (n 33) 13. 36 ibid. 37 P Slovic, ‘Perception of Risk’ (1987) 236 Science 280, 280. 38 J Adams, Risk (London, UCL Press, 1995) 1, 16. 39 ibid, 17. 40 Warner et al (n 19) 4.

46 Centrality of Risk and its Consequences

the primary event will occur and a ‘measure of the consequences of that event’.41 When assessing risk, one must therefore ask: a. how likely is X to happen, and b. how serious will the consequences of X be if it does happen? As far as the second consideration is concerned, Saaty points out that this will involve a wider assessment of the character of the potential loss, its extent in terms of intensity and diffusion, and its timing.42 Yet decision-making geared towards hazard prevention is not the only technical use of risk. In legal theory, ‘risk’ can describe ‘circumstances [that] may (or, importantly, may not) turn out in a way that we do not wish for’.43 This construction is particularly relevant in the law of tort, where a defendant’s failure to exercise reasonable care to avoid the risks of injury to others amounts to a breach of duty in negligence.44 In still other uses, ‘risk’ may refer to attributes which ‘differentiate the mortality or morbidity experience between groups of individuals with or without the attribute’.45 It is clear that even when it is employed in technical contexts, there are many sides to the concept of risk. As a consequence of this flexibility, it is difficult to discern what the natural or ordinary meaning of ‘risk’ is—it may even be doubtful that it has one. D ouglas argues that the concept’s flexibility reflects the influence that socio-cultural factors have had on it.46 In her view, the term’s enormous utility comes from ‘its universalising terminology, its abstractness, its power of condescension, its scientificity, its connection with objective analysis’.47 ‘Risk’ is therefore capable of meaning many things to different people. What begins to emerge is a portrait of a complex concept which can apply so broadly that it evades comprehensive description. This raises a fundamental problem: if there is no agreement about the meaning of ‘risk’ in general terms, how can the concept apply with any certainty in specific contexts? This is particularly pressing in relation to the MHA: how can such an ill-defined concept satisfy the demands of legal certainty where its application makes the difference between liberty and detention? This chapter will show that it is doubtful that it ever could. For now, it is enough to posit that ‘risk’ has two broad characteristics. First, it is essentially a negative thing. In the past, it was value-neutral: a dispassionate

41 ibid.

42 TL Saaty, ‘Risk—Its Priority and Probability: The Analytic Hierarchy Process’ (1987) 7(2) Risk Analysis 159, 163. 43 J Steele, Risks and Legal Theory (Oxford, Hart Publishing, 2004) 6. 44 eg, Blyth v Birmingham Waterworks (1856) 11 Ex Ch 781; Glasgow Corporation v Muir [1943] AC 448 (HL); Bolton v Stone [1951] AC 850 (HL). 45 MV Hayes, ‘On the Epistemology of Risk: Language, Logic and Social Science’ (1992) 35(4) Social Science & Medicine 401, 403. 46 Douglas (n 26) 14–15. 47 ibid.

Unlocking the Compulsory Powers: The Panoply of Risk 47

probabilistic device which decision-makers applied to overcome uncertainty.48 Since then, Douglas argues that the language of risk has become ‘a specialised lexical register for … talk about … undesirable outcomes’.49 In both colloquial and technical contexts, conversations about risk are predicated on the objective of seeking to avoid, or reduce the impact of, adverse consequences. It is true that ‘risk’ may be a ‘doubled-edged’ phenomenon which incorporates positive and negative aspects.50 However, the fact that references to ‘positive risk-taking’ must necessarily be modified by the adjective ‘positive’ implies that such a thing is the exception to widely held assumptions. Secondly, ‘risk’ is a contingent thing, that is, a risk occurs or exists only if certain circumstances pertain. Implicit in any discussion of risk is the assumption that it is (or was) possible to take steps to avoid or reduce the likelihood of a given hazard.51 There is also the implication that risks invariably connote the presence of uncertainty. A situation of risk therefore arises in circumstances that are necessarily contingent on a decision-maker’s choices or actions. While characterising risk as a negative and contingent thing falls short of a general definition, we can discern what underpins its application in colloquial and technical contexts (and everything in between). Yet this tells us little about how decision-makers might understand substantive risks in mental health practice. This uncertainty is troubling.

Unlocking the Compulsory Powers: The Panoply of Risk Risk is not an alien concept in medicine. All clinical interventions, however trivial, will generate incidental risks of harm. According to the General Medical Council, good medical practice requires doctors to work in partnership with their patients, ‘sharing with them the information they will need to make decisions about their care, including … the options for treatment [and the] associated risks and uncertainties’.52 Doctors must therefore give patients the information they want or need about ‘the potential benefits, risks and burdens, and the likelihood

48 ibid, 23; see also D Denney, Risk and Society (London, SAGE, 2005), 9; LA Jacobs, ‘An Analysis of the Concept of Risk’ (2000) 23(1) Cancer Nursing 12, 12. 49 Douglas (n 26) 24 (emphasis added); J Gabe, ‘Health, Medicine and Risk: The Need for a Sociological Approach’ in J Gabe (ed), Medicine, Health and Risk (Oxford, Blackwell, 1995). 50 A Giddens, The Third Way: The Renewal of Social Democracy (Cambridge, Polity Press, 1998) 63; A Giddens, The Third Way and its Critics (Cambridge, Polity Press, 2000) 135; Denney (n 48) 10–11. 51 Luhmann (n 17) 16. 52 General Medical Council, Good Medical Practice (London, GMC, 2013) [49].

48 Centrality of Risk and its Consequences

of success’ for each treatment option.53 Psychiatrists are no exception to this: the Royal C ollege of Psychiatrists has described the assessment of therapeutic risks and benefits as ‘a key competency for all doctors’.54 By definition, good clinical care—psychiatric or otherwise—must entail risk assessment and management practices.55 Where psychiatry is concerned, however, the concept of risk has a special significance. Considerations of risk in this context may have little to do with establishing or maintaining ‘partnerships’ between doctors and patients; instead, they provide the occasion for a very different kind of doctor-patient relationship characterised by coercion and control. It is on this basis that we can distinguish the significance of the concept of risk for psychiatry from other areas of medical practice and single it out for discrete analysis. In the absence of a statutory definition of ‘risk’ in the MHA and any glossing of its risk formula, it is difficult to state in the abstract exactly what will make it necessary to admit P to hospital for his own health or safety or for the protection of other people. The MHA does not intrude on mental health professionals’ domain by prescribing exhaustively the factors or ‘ingredients’ which will be probative of risk for the purposes of civil commitment. This open-endedness creates the scope for a panoply of risk factors to unlock the MHA’s compulsory powers. These factors relate to the obvious risks of homicide, physical violence towards others and suicide, as well as to less apparent (though no less urgent) hazards, such as abuse, exploitation and neglect. This means that the civil commitment powers do not necessarily correlate with patients’ dangerousness. Moreover, methods of assessment and quantification of risk vary enormously in practice and ‘positive risktaking’ (ie, the practice of deliberately ignoring risks which might otherwise justify P’s compulsory admission) can function as a legitimate therapeutic strategy. This means that both the nature and extent of the risks which will justify patients’ compulsory admission are varied and variable. What the risk(s) is/are and how serious (or trivial) it/they happen(s) to be is not measured against an objective yardstick. Rather, much turns on what the relevant decision-maker(s) decide are risks for the purposes of the MHA in the particular circumstances. We have already suggested that considerations of patients’ risks are the key which unlocks the MHA’s compulsory powers. This analogy is actually rather crude; it is more accurate to state that the panoply of potentially relevant risks means that multiple keys of varying shapes and sizes fit the same lock.

53 General Medical Council, Consent: Patients and Doctors Making Decisions Together (London, GMC, 2008) [9]. 54 Royal College of Psychiatrists, Rethinking Risk to Others in Mental Health Services (College Report 201, 2016) 10; see also J Morgan, ‘Does the Emphasis on Risk in Psychiatry Serve the Interests of Patients or the Public? Yes’ (2013) 346 BMJ 902. 55 Royal College of Psychiatrists (n 54) 14.

Unlocking the Compulsory Powers: The Panoply of Risk 49

Risk and Dangerousness It is important at the outset to distinguish risk from ‘dangerousness’ for the purposes of the MHA. According to Lady Hale, the MHA does not require that P pose a danger to himself or others as a prerequisite for compulsory admission.56 This is because the word ‘danger’ appears in the Act as a distinct concept which is relevant for the purposes of barring P’s nearest relative from discharging him from hospital.57 Lady Hale argues that dangerousness is a narrower concept than risk and claims that the absence of ‘danger’ from the Act’s admission criteria indicates that they ‘were meant to be broader than those for keeping [the patient in hospital] against the wishes of his family’.58 Dangerousness therefore implies a higher threshold and a greater degree of specificity than risk. That a wide range of factors can satisfy the MHA’s risk formula is therefore implicit in the wording of the legislation itself. Lady Hale’s view is supported by authority: in R (O) v West London Mental Health NHS Trust,59 Collins J said that the term ‘dangerous’ in section 25(1) of the MHA requires that decision-makers specifically address an ‘extra factor’ when deciding whether to bar discharge by P’s nearest relative.60 This suggests that the concepts of ‘risk’ and ‘danger’ are not necessarily interchangeable. Others have made similar distinctions. Pilgrim and Rogers argue that the risk formula’s references to P’s ‘health or safety’ go further than danger and more readily legitimise the deployment of the ‘wide-ranging powers of [mental health] professionals’.61 Prins has drawn a distinction between ‘risk’, which is the likelihood of an event occurring, and ‘danger’, which is the degree of damage that may result from it.62 The present author has written elsewhere that ‘danger’ suggests a heightened sense of urgency and tends to imply dangerousness to others.63 ‘Risk’, by contrast, reaches much further, encompassing ‘reflexive’ hazards, that is, hazards that affect the patient.64 This plainly brings hazards like self-harm, self-neglect, abuse, exploitation, and so on, within the ambit of the MHA. Whichever interpretation one prefers, it is clear that ‘risk’ is not necessarily a synonym for ‘dangerousness’

56

B Hale, Mental Health Law, 5th edn (London, Sweet & Maxwell, 2010) 58. MHA 1983, s 25(1). 58 Hale (n 56). 59 R (O) v West London Mental Health NHS Trust [2005] EWHC 604 (Admin). 60 ibid, [14]; see also, R v Riverside Mental Health Trust, ex parte Huzzey (1998) 43 BMLR 167 (QB); R v Secretary of State for the Home Department, ex parte Benson (CA, 9 November 1988); cf R v Secretary of State for the Home Department [1998] 1 WLR 503 (CA). 61 D Pilgrim and A Rogers, ‘Two Notions of Risk in Mental Health Debates’ in T Heller et al (eds), Mental Health Matters: A Reader (Basingstoke, Palgrave MacMillan, 1996) 183. 62 H Prins, ‘Risk Assessment and Management in Criminal Justice and Psychiatry’ (1996) 7(1) Journal of Forensic Psychiatry 42, 44. 63 J Fanning, ‘Continuities of Risk in the Era of the Mental Capacity Act’ (2016) 24(3) Medical Law Review 415, 419. 64 ibid. 57

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in this connection. While it is true that ‘risk’ and ‘danger’ can overlap, the wording of the MHA implies that the former incorporates wider considerations than the latter. Such an expansive interpretation of ‘risk’ means that it is possible to reinterpret the underlying policy objective of the MHA so that it extends much further than protecting the public from danger alone; it is also about the management and control of the risks to patients’ health. It is therefore a gross oversimplification to conclude that the civil commitment powers are only concerned with the dangers of physical violence or homicide.

What Will Constitute Risk? What risk may entail is unclear. Even the Code of Practice which accompanies the Act ostensibly for the purposes of guiding decision-making sheds very little light on this issue.65 It sets out non-exhaustive lists of factors for decision-makers to take into account when considering the risks to P’s health or safety and to others. Where patients’ health or safety is concerned, the Code invites decision-makers to consider the following: —— evidence suggesting that patients are at risk of: —— suicide —— self-harm —— self-neglect or being unable to look after their own health or safety —— jeopardising their own health or safety accidentally, recklessly or unintentionally, or —— that their mental disorder is otherwise putting their health or safety at risk —— any evidence suggesting that the patient’s mental health will deteriorate if they do not receive treatment, including the views of the patient or carers, relatives or close friends (especially those living with the patient) about the likely course of the disorder, —— the patient’s own skills and experience in managing their condition, —— the patient’s capacity to consent to or refuse admission and treatment (and the availability of the deprivation of liberty safeguards (DOLS)), —— whether the patient objects to treatment for mental disorder—or is likely to, —— the reliability of such evidence, including what is known of the h istory of the patient’s mental disorder and the possibility of their condition improving,

65 Department of Health, Mental Health Act 1983: Code of Practice (London, TSO, 2015) (Code of Practice); MHA 1983, s 118(1).

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—— the potential benefits of treatment, which should be weighed against any adverse effects that being detained might have on the patient’s wellbeing, and —— whether other methods of managing the risk are available.66 A similar list of factors applies when decision-makers are considering whether P’s compulsory admission is necessary for the protection of other people. Here, the Code says that the ‘factors to consider are the nature of the risk to other people arising from the patient’s mental disorder, the likelihood that harm will result and the severity of any potential harm’.67 In considering these issues, the Code invites decision-makers to take into account: —— that it is not always possible to differentiate risk of harm to the patient from the risk of harm to others, —— the reliability of the available evidence, including any relevant details of the patient’s clinical history and past behaviour, such as contact with other agencies and (where relevant) criminal convictions and cautions, —— the willingness and ability of those who live with the patient and those who provide care and support to the patient to cope with and manage the risk, —— whether other methods of managing the risk are available, and —— harm to other people including psychological as well as physical harm.68 Far from clarifying what will satisfy the risk formula, the Code raises even more questions. First, it is not exhaustive. The language it uses suggests that there may be other relevant factors beyond those to which it refers explicitly. Its tone is advisory rather than imperative. It relies on open-ended phrases like ‘Factors to be considered … include’69 and terms like ‘such as’ and ‘whether other methods … are available’.70 It also expressly states that there may be evidence that P’s mental disorder is ‘otherwise’ putting his health or safety at risk. These phrases imply that decision-makers may alight on other reasons to recommend P’s compulsory admission to hospital which the Code has not anticipated. The Code also acknowledges that there may not be a clear demarcation separating the risks of harm to P and the risks of harm to others. This allows decision-makers to refer to risk factors in general terms, removing the need to link them to specific hazards. Secondly, the Code creates a ‘risk is risk’ paradox.71 For example, it states that one of the factors that practitioners should consider when evaluating the risks to P’s health or safety is any evidence that suggests that P is at risk of suicide. P’s risk

66

Code of Practice (n 65) [14.9]. ibid, [14.10]. 68 ibid. 69 ibid, [14.9] (emphasis added). 70 ibid, [14.10]. 71 See also, N Glover-Thomas, ‘The Age of Risk: Risk Perception and Determination Following the Mental Health Act 2007’ (2011) 19 Medical Law Review 581. 67

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of suicide therefore serves as evidence that he poses a risk to his health or safety. This ‘risk is risk’ paradox presents a significant evidential challenge: it is the mere presence of risk, as opposed to tangible evidence of harm, which can underpin the conclusion that P poses a risk to himself or other people. Because the MHA does not define ‘risk’ or specify a threshold beyond which patients should be admitted to hospital, the ‘risk is risk’ paradox further complicates matters. It relies on a tautological circularity in which imputations of risk become self-evident truths. The Code permits this phenomenon by anticipating that decision-makers can justify their assessments of risk by building chains of ‘sub-risks’ which underpin their overall conclusions about the ‘operative’ risks. In effect, each link in the chain supports the assumptions of the next and they ultimately culminate in a conclusion that is, notionally at least, objectively justifiable. The problem is that by relying on risk in each link of the chain it does not necessarily follow that the evidence will support a decision-maker’s overall conclusion. The last link in the chain may not therefore be a logical corollary of the first. By giving decision-makers leeway to interpret sub-risks as probative of the operative risks, the Code’s guidance makes the evidential threshold for intervention even less certain. Finally, the Code itself does not constitute statutory guidance. It is true that decision-makers will require cogent reasons for departing from it,72 but, given that the Code is not prescriptive where the risk formula is concerned in any case, this hardly presents an impediment. Indeed, there is no requirement that the two registered medical practitioners giving their recommendations for the purposes of sections 2 or 3 of the MHA even have to agree on the nature of the risk that justifies P’s admission.73 Decision-makers may therefore reach the same conclusion but on different grounds. This broad approach appears inevitably to admit non-clinical and even subjective considerations into decision-makers’ risk assessments. The notion that risk assessments are dispassionate evaluations of patients’ compliance with—or, more accurately, departure from—objectively justifiable clinical criteria is misconceived. Department of Health guidance published in 2007 explicitly recognised that assessments of risk in mental health services can be influenced by decisionmakers’ personal values, attitudes towards risk, workloads and time constraints.74 Elsewhere, Langan and Lindow have argued that it is good practice for mental health professionals to conduct a ‘holistic assessment’ which considers all of the factors affecting P’s life as opposed to focusing too narrowly on the risk of suicide, for example.75 In their view, practitioners should evaluate the impact of broader

72

R (Munjaz) v Mersey Care NHS Trust [2006] 2 AC 148 (HL). R Jones, Mental Health Act Manual, 14th edn (London, Sweet & Maxwell, 2011) [1-040]. 74 Department of Health, Best Practice in Managing Risk: Principles and Evidence for Best Practice in the Assessment and Management of Risk to Self and Others in Mental Health Services (National Risk Management Programme, 2007) 32. 75 J Langan and V Lindow, Living with Risk: Mental Health Service User Involvement in Risk Assessment and Management (Bristol, Policy Press, 2004) 51. 73

Unlocking the Compulsory Powers: The Panoply of Risk 53

factors like unemployment, poverty, stigma, discrimination or racism. For that reason, P’s social functioning and current circumstances become relevant to his mental health and, by extension, practitioners’ assessments of his risks of harm.76 This in effect turns the deployment of the MHA’s compulsory powers from an act of clinical necessity into a broader social or moral endeavour. According to the Royal College of Psychiatrists, risk assessments which include ‘non-therapeutic’ considerations ‘generate significant ethical challenges for professionals’ because they ‘invite [them] to privilege the interests and anxieties of third parties over the interests of patients’.77 The Department of Health’s 2007 guidance demonstrated just how complex and far-reaching risk assessments can be. It said that risk factors can be classified as ‘static’, ‘dynamic’, ‘stable’, or ‘acute’.78 According to this taxonomy, ‘static’ factors are the unchanging components of P’s history: for example, if P was the victim of abuse as a child or has a history of suicidal ideation this would qualify. ‘Dynamic’ factors change over time: for example, P’s long-term misuse of alcohol or drugs would fall into this category. ‘Stable’ factors are a sub-category of ‘dynamic’ factors which are distinguished by the fact that they take a long time to change. ‘Acute’ factors change rapidly and may trigger a mental health crisis which warrants urgent intervention. Two things are clear from this. First, factors which might indicate risks of harm are common. Everyone—mentally ill or not—exhibits characteristics which might, when viewed through the prism of risk, undergird a conclusion that he poses a risk of harm to himself or others. Whether P poses a risk that justifies compulsory intervention is therefore a matter of interpretation. Secondly, some risk factors will weigh more heavily than others. P can therefore exhibit some risk and yet remain at liberty. The key task for decision-makers is to determine the point at which the relevant risk, or the combination of factors, justifies P’s compulsory admission to hospital. The Department of Health’s taxonomy is not the only one. For example, Mersey Care NHS Trust publishes its own guidance for practitioners which employs a different system of classification to distinguish ‘predisposing factors’ (eg, personality disorder, history of abuse) from ‘triggers’ (eg, intoxication, paranoia).79 Although such classifications may help decisionmakers to categorise factors, they have arisen independently of the MHA and have no basis in law. An assessment of P’s risks might draw upon an infinite number

76 ibid, 25. The link between social and economic factors and mental health is nothing new; see, eg, Foresight Mental Capital and Wellbeing Project, Making the Most of Ourselves in the 21st Century: Final Project Report (London, Government Office for Science, 2008); Future Vision Coalition, A Future Vision for Mental Health (Future Vision Coalition, 2009); Centre for Social Justice, Completing the Revolution: Transforming Mental Health and Tackling Poverty (London, Centre for Social Justice, 2011); HM Government, No Health Without Mental Health (Department of Health, 2011). 77 Royal College of Psychiatrists (n 54) 12. 78 Best Practice in Managing Risk (n 74) 15–16. 79 Specialist Clinical Psychologist & Lead for Secure Psychological Services on Risk, Policy and Procedure for the Use of Clinical Risk Assessment Tools SA10 (Mersey Care NHS Trust, 2016) 27.

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of factors relating to, among other things, his clinical diagnosis, characteristics, circumstances, habits and relationships. With so many variables, it is difficult to imagine how the assessment of patients’ risks could ever claim to be an objective exercise. The concept of risk’s open-endedness also creates intractable problems. First, it is not clear whether extra-legal guidance which is notionally designed to assist decision-makers in their risk assessments is in any way determinative. The taxonomy of risk factors which featured in the Department of Health’s guidance differs from that which Mersey Care NHS Trust uses, for example. Nowhere in the MHA or any of its accompanying guidance does it state which approach decisionmakers should prefer or what to do in the event of a clash. Secondly, it is unclear how decision-makers should resolve a ‘conflict of risk’. For example, P might have a mental disorder which warrants his compulsory admission to hospital under section 3 of the MHA. His doctors may decide that he poses a risk of harm to other people and therefore deem it necessary to detain him in hospital for appropriate medical treatment. However, there is also a chance that in deploying the MHA against P there may be incidental iatrogenic effects, such as the deterioration of his mental health, the manifestation of harmful side effects from medication, the corrosion of his relationship with his doctors, or stigma.80 It is therefore possible in P’s case to talk about the risks of harm associated with him remaining at liberty and the risks of harm that are contingent on his admission to hospital. Considerations of risk in these circumstances may just as readily keep P out of hospital as they can put him there. Nowhere does the MHA state which of these risks should take priority over the other, although it may be safe to assume that risks of harm to the public take precedence over any risks to the patient incidental on his compulsory admission.81 Yet if risk is the central basis on which these decisions must be taken, decision-makers could conceivably invoke considerations of risk to justify either sectioning P or allowing him to remain at liberty. Thirdly, there is no instruction in the MHA or elsewhere about how decision-makers should weigh the evidence. They can presumably attach such weight to risk indicators as they see fit, meaning that factors never truly have an objective value. Decision-makers are not instructed, for example, that n static or predisposing factors co-present with n acute factors or triggers will justify detention every time. Instead, they enjoy a free hand to identify and attribute value to any risk factors that they consider material. Fourthly, to make matters more confusing, decision-makers may engage in ‘positive risk-taking’, whereby they manage P’s risks without resorting to civil commitment.

80 J Langan, ‘Assessing Risk in Mental Health’ in P Parsloe (ed), Risk Assessment in Social Care and Social Work (London, Jessica Kingsley Publishers, 1999) 153; J Langan and V Lindow, ‘Risk and Listening’ (2000) 101 Openmind: The Mental Health Magazine 14. 81 See, eg, Anderson v Scottish Ministers [2001] UKPC D5 (Lord Clyde) [74]: ‘in principle it cannot be right that the public peace and safety should be subordinated to the liberty of persons whose mental states render them dangerous to society’.

Unlocking the Compulsory Powers: The Panoply of Risk 55

This approach necessarily requires decision-makers to take risks with some patients who might in other circumstances be admitted under the MHA.82 Nowhere in the statute does it refer to such a tactic, nor does it imply where its limits might lie. We might infer from the wording of the MHA that positive risk-taking is permissible. For example, if doctors decide to continue interacting with P outside the confines of the MHA, it may be safe to conclude that it is not necessary for his health or safety that he be compulsorily admitted to hospital. However, the very point of such a strategy is to forego the use of compulsion despite there being a legal basis to use it. This means that risk might not necessarily determine whether P is a formal patient, raising further doubts about the consistency of mental health decision-making. Finally, persons with a particular mental disorder who display the same or similar risk factors may in the event behave differently. Factors indicating that a patient is, for example, at a high risk of suicide do not necessarily mean that without compulsory intervention he is certain or even likely to kill himself. Similarly, a patient suffering from depression who is not exhibiting any risk factors may still attempt to kill himself.83 Interpreting and assessing risk seems to be such an inexact science that it is difficult to resist the temptation to conclude that almost anything goes.84

How is Risk Assessed? There are three ways in which decision-makers can assess P’s risks of harm. One involves what Roychowdhury and Adshead describe as ‘unstructured clinical judgement’.85 This involves decision-makers formulating a ‘purely clinical opinion’ about risk without the help of a fixed process.86 Using this approach, doctors and other professionals rely on their expertise and experience to inform their conclusions about P’s risk profile.87 While they may have the advantage of

82 F Holloway, ‘The Assessment and Management of Risk in Psychiatry: Can We Do Better?’ (1997) 21 Psychiatric Bulletin 283; S Morgan, ‘Risk-making or Risk-taking’ (2000) 101 Openmind: The Mental Health Magazine 16. 83 Langan, ‘Assessing Risk in Mental Health’ (n 80) 171. 84 See, eg, Johnson v United Kingdom (1997) 27 EHRR 296: ‘It must also be observed that in the field of mental illness the assessment as to whether the disappearance of the symptoms of the illness is confirmation of complete recovery is not an exact science. Whether or not recovery from an episode of mental illness which justified a patient’s confinement is complete and definitive or merely apparent cannot in all cases be measured with absolute certainty’; R (B) v Ashworth Hospital Authority [2005] UKHL 20 (Baroness Hale) [30–31]: ‘Psychiatry is not an exact science … Once the state has taken away a person’s liberty and detained him in hospital with a view to medical treatment, the state should be able to provide him with the treatment which he needs’. 85 A Roychowdhury and G Adshead, ‘Violence Risk Assessment as a Medical Intervention: Ethical Tensions’ (2014) 38 Psychiatric Bulletin 75, 77. 86 ibid. 87 Best Practice in Managing Risk (n 74) 19.

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exibility, risk assessments based on ‘unstructured clinical judgement’ can be fl ‘anecdotal and inconsistent’.88 Alternatively, decision-makers may use ‘actuarial’ approaches based on ‘established statistical relationships between measurable predictor and outcome variables’.89 An ‘actuarial’ assessment involves calculating the likelihood that P will cause harm to himself or other people with reference to criteria which are statistically linked to the relevant risks. Decision-makers will ‘score’ a patient and respond to the results accordingly. This has the advantage of measuring P against purportedly objective criteria, although, as we shall see, the evidence base on which actuarial methods are predicated remains inconclusive. Finally, decision-makers may use ‘structured clinical judgement’ (also known as ‘structured professional judgement’) to assess P’s risks. Structured judgement techniques blend unstructured and actuarial approaches. Dolan and Doyle have credited this ‘third generation’ approach for ‘promoting transparency and accountability’ while permitting the use of ‘professional discretion’.90 Crucially, the MHA says nothing about how decision-makers should assess risk, and its accompanying guidance does not prefer any particular method. In the same way that it is a matter for decision-makers to determine what factors are indicative of risk, how they should assess it is also one for them. Unsurprisingly, there is wide variation in the methods used to assess and quantify risk across the National Health Service (NHS). Let us take Mersey Care NHS Trust as an example. It defines ‘risk assessment’ as the ‘estimation of risk potential based on our understanding of the presence and relevance of certain conditions that we assume to be risk factors and the absence of certain other conditions that we assume to be protective factors’.91 For the reasons we have already examined, what these risk and protective factors are is presumably a matter for professional judgement. For the purposes of assessing risk, Mersey Care endorses the use of structured clinical or professional judgement.92 The choice of risk assessment tool is a matter for decision-makers and depends on the relevant risks and the level in the institutional hierarchy at which the assessment is conducted. Depending on the context, practitioners may use the Care Programme Approach (CPA) Risk Screen, Clinical Outcomes in Routine Evaluation (CORE),93 the Intermediate and Joint Risk Assessment and Management Plan (I-RAMP or J-RAMP), Shortterm Assessment of Risk and Treatability (START),94 or TILT High Risk Patient

88 ibid. 89

Roychowdhury and Adshead (n 85) 77–78. M Doyle and M Dolan, ‘Violence Risk Assessment: Combining Actuarial and Clinical Information to Structure Clinical Judgments for the Formulation and Management of Risk’ (2002) 9(6) Journal of Psychiatric and Mental Health Nursing 649, 652; M Dolan and M Doyle, ‘Violence Risk Prediction: Clinical and Actuarial Measures and the Role of the Psychopathy Checklist’ (2000) 177(4) British Journal of Psychiatry 303. 91 Mersey Care NHS Trust (n 79) Appendix 5 [2.2]. 92 ibid, [1.1.3]. 93 www.coreims.co.uk/index.php> accessed 4 July 2011. 94 www.bcmhas.ca/Research/Research_START.htm> accessed 4 July 2011. 90

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Assessment to assess ‘multiple risks’, that is, concurrent violence, sexual harm, self-harm/suicide and self-neglect. When assessing risk to others specifically, decision-makers may use the HCR-20 Violence Risk Assessment Guide,95 the Risk for Sexual Violence Protocol (RSVP),96 the Sexual Violence Risk-20 (SVR-20),97 the Spousal Assault Risk Assessment Guide (SARA),98 or the Structured Assessment of Violence Risk in Youth (SAVRY).99 They may use the Beck Hopelessness Scale (BHS)100 when assessing the risk of self-harm and/or suicide. Several things are apparent from the Mersey Care example. The first is that the framing of risk assessment policies is ostensibly a matter for local mental health trusts. Although mental health decision-makers across England must follow the same statutory criteria, how they reach a decision can depend on where they work, among other things. This explains why studies have found so much variation across the NHS where psychiatric risk assessment procedures are concerned. For example, Higgins et al found that while 67 per cent of the English NHS Trusts they surveyed had individual, standardised protocols for the assessment of patients with mental disorder, practice was still highly variable in the aggregate.101 Similarly, Hawley et al discovered that there is no standardised risk assessment pro-forma governing decision-making in the NHS. They analysed 53 risk assessment tools used by different trusts and found that they varied in length, consisting of anywhere between one and six pages and five and 148 items.102 A vast majority of the sample (84.2 per cent) relied on forced-choice dichotomies, whereas only 7.5 per cent of the pro-formas permitted free-text responses from practitioners. Interestingly, fully 42 per cent of the sample recommended that decision-makers complete further risk assessment forms once the initial pro-forma was finished. Even more astonishing is the fact that most of the pro-formas Hawley et al a nalysed did not require the completer to make any predictive statements about P’s risks to himself or o thers,103 which is surely the very purpose of a risk assessment.

95 CD Webster et al, HCR-20: Assessing Risk for Violence (Mental Health, Law and Policy Institute, Simon Fraser University, 1997); KS Douglas et al, HCR-20 V3: Assessing Risk for Violence: User Guide (Mental Health, Law and Policy Institute, Simon Fraser University, 2013). 96 SD Hart et al, Risk for Sexual Violence Protocol (RSVP): Structured Professional Guidelines for Assessing Risk of Sexual Violence (Mental Health, Law and Policy Institute, Simon Fraser University, 2003). 97 DP Boer et al, Manual for the Sexual Violence Risk-20: Professional Guidelines for Assessing Risk of Sexual Violence (Mental Health, Law and Policy Institute, Simon Fraser University, 1997). 98 PR Kropp et al, ‘The Spousal Assault Risk Assessment (SARA) Guide: Reliability and Validity in Adult Male Offenders’ (2000) 24(1) Law and Human Behavior 101. 99 R Borum, ‘Assessing Violence Risk Among Youth’ (2000) 56(10) Journal of Clinical Psychology 1263. 100 AT Beck et al, ‘Hopelessness and Eventual Suicide: A 10-year Study of Patients Hospitalised with Suicide Ideation’ (1985) 412 American Journal of Psychiatry 559. 101 N Higgins et al, ‘Assessing Violence Risk in General Adult Psychiatry’ (2005) 29 Psychiatric Bulletin 131. 102 CJ Hawley et al, ‘Structure and Content of Risk Assessment Proformas in Mental Healthcare’ (2006) 15(4) Journal of Mental Health 437. 103 ibid, 446.

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In a later study, Hawley et al found that there was no consistency in the way mental health professionals approached risk assessment even in the same mental health trust.104 Writing from a Scottish perspective, Stein described how Renfrewshire and Inverclyde Primary Care NHS Trust adopted a single risk assessment tool to replace the ‘variety’ of tools that its staff had used.105 Following its introduction, Stein found that many clinical staff ‘would have preferred to be allowed to exercise their own high professional skill and judgment’ rather than have a risk assessment technique imposed upon them.106 By giving mental health professionals a choice of risk assessment tools, Mersey Care appears to sidestep this particular disadvantage. In any case, what these studies reveal is that even across the same jurisdiction risk assessment processes can vary enormously. The second thing to note is that multiple actuarial tools can assess the same risks. According to its policy document, Mersey Care endorses nine separate tools for the assessment of risk of harm to others, nine to assess the risk of harm to self, five for the purposes of assessing P’s risk of self-neglect, and five to evaluate the risk of victimisation.107 Some of these tools can cut across each risk category: for example, decision-makers can use CORE to assess the risks of harm to others and to self and the risks of self-neglect and victimisation. It is true that the institutional level at which the assessment is conducted may be significant, but even then decision-makers may still have a choice of multiple tools. Presumably there is also nothing to stop mental health decision-makers relying on their professional judgement outside these tools to assess P’s risks too. The selection of one tool or technique over another may therefore be just as significant as the actual assessment itself. In Langan’s view, the proliferation of risk assessment techniques stems from the ‘multi-factorial nature’ of patients’ risks.108 Yet this raises questions about mental health professionals’ ability to reach legally reliable and valid conclusions about their patients’ risks, with or without actuarial assistance. Such questions are not new: Ennis and Litwack cast doubt on the reliability of psychiatric evidence in criminal trials in the 1970s.109 In a 1979 study comparing psychiatrists’ assessments of dangerousness with those of teachers, Quinsey and Ambtman found that there was no evidence that clinicians were any more expert

104 CJ Hawley et al, ‘Risk Assessment in Mental Health: Staff Attitudes and an Estimate of Time Cost’ (2010) 19 Journal of Mental Health 88. 105 W Stein, ‘Modified Sainsbury Tool: An Initial Risk Assessment Tool for Primary Care Mental Health and Learning Disability Services’ (2005) 12 Journal of Psychiatric and Mental Health Nursing 620. 106 ibid, 624. 107 Mersey Care NHS Trust (n 79) Appendix 1. 108 J Langan, ‘Challenging Assumptions about Risk Factors and the Role of Screening for Violence Risk in the Field of Mental Health’ (2010) 12(2) Health, Risk & Society 85, 97. 109 BJ Ennis and TR Litwack, ‘Psychiatry and the Presumption of Expertise: Flipping Coins in the Courtroom’ (1974) 62 California Law Review 693, 695.

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than laypeople.110 They argued that a group of professionals can only demonstrate expertise on a particular topic where they (a) agree among themselves, (b) are accurate in their judgements, (c) make different judgements from laypeople, and (d) make use of specialised procedures in reaching their decisions.111 Their study found that psychiatrists failed on each point and were therefore no more competent to predict dangerousness among mentally disordered patients than schoolteachers. More recently, Swanson has suggested that the predictive accuracy of clinicians’ unstructured decision-making is no better than chance.112 And in their study of the responses to risk among nurses and social workers caring for vulnerable people in the community, Alaszewski and Alaszewski found that ‘risk’ was a ‘taken-for-granted word’ which most of the participants struggled to define.113 While the respondents acknowledged that the assessment of risk is an important part of mental health practice, they had not given any thought to what it actually meant.114 For the most part, they instinctively regarded the concept in ‘everyday’ terms.115 Only when they were prompted by the research team did the respondents come to recognise that risk is in fact a complex and multifaceted concept which can also have a ‘positive’ dimension.116 These studies suggest that mental health professionals are no more qualified than any other decision-maker to engage in unstructured risk assessment techniques. There is also cause to be sceptical about the utility of purportedly scientific techniques. As Szmukler has argued, mental health decision-makers are not engineers trying to predict the release of toxic waste from a factory; instead, they are ‘trying to predict an act committed by a person, an agent with intention, who is engaged in ongoing myriad and complex interactions with others’.117 It follows that it is almost impossible to create a risk assessment tool which will capture all of the variables which may exist and still produce reliable and accurate results. Attempts to develop robust risk assessment tools for use by mental health services have been largely unsuccessful.118 Scepticism of their utility has endured as some

110 VL Quinsey and R Ambtman, ‘Variables Affecting Psychiatrists’ and Teachers’ Assessments of the Dangerousness of Mentally Ill Offenders’ (1979) 47(2) Journal of Consulting and Clinical Psychology 353, 361. 111 ibid, 354. 112 JW Swanson, ‘Preventing the Unpredicted: Managing Violence Risk in Mental Health Care’ (2008) 59(2) Psychiatric Services 191. 113 H Alaszewski and A Alaszewski, ‘Professionals and Practice: Decision-making and Risk’ in A Alaszewski et al (eds), Risk, Health and Welfare: Policies, Strategies and Practice (Buckingham, Open University Press, 1998) 107–08. 114 ibid, 114. 115 ibid, 111. 116 ibid. 117 G Szmukler, ‘Risk Assessment: “Numbers” and “Values”’ (2003) 27 Psychiatric Bulletin 205. 118 Langan, ‘Challenging Assumptions’ (n 108) 97; see also AD Pokorny, ‘Prediction of Suicide in Psychiatric Patients’ (1983) 40 Archives of General Psychiatry 249.

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studies have cast doubt on the predictive value of clinical factors, like the presence of delusions,119 and non-clinical factors, such as the impact of alcohol and drug use.120 Even where some tools have shown early promise, later results suggest that their accuracy and clinical utility is questionable.121 Indeed, for every study that reports increases in predictive accuracy, there is likely to be another which shows that the accuracy of actuarial assessments is still no better than chance.122 Perhaps unsurprisingly, Walker has argued that the unreliability of actuarial techniques means that clinical judgement must remain the primary basis for recommendations under the MHA.123 According to Swanson, the best available tool has a sensitivity rating of 73 per cent and a specificity rating of only 63 per cent, which is ‘substantially below what would be considered acceptable in [general] medicine for a screening instrument’.124 Buchanan has argued that although actuarial methods may have improved, they still require the detention of up to six people a year to prevent a single violent act.125 More recently, Fazel et al have estimated that two people need to be detained to prevent one violent offence.126 Statistical decisionmaking seems only to be effective where there is huge collateral of false positives, which are undoubtedly serious from an ethical point of view.127 The false–positive problem derives from the fact that risk factors are common in the general patient population but adverse incidents are rare,128 meaning that decision-makers tend to over-predict. Although mathematical extrapolations can be extremely powerful in predicting group activity, ‘they cannot tell us which members of which group will do what’ with any certainty.129 Dawes et al referred to this as the ‘broken leg problem’: while actuarial formulae might predict one outcome with a high degree

119 PS Appelbaum et al, ‘Violence and Delusions: Data from the MacArthur Violence Risk Assessment Study’ (2000) 157(4) American Journal of Psychiatry 566. 120 N Hodelet, ‘Psychosis and Offending in British Columbia: Characteristics of a Secure Hospital Population’ (2001) 11(3) Criminal Behaviour and Mental Health 163. 121 H Smith and T White, ‘Feasibility of a Structured Risk Assessment Tool in General Adult Psychiatry Admissions’ (2007) 31 Psychiatric Bulletin 418. 122 J Monahan, ‘Risk Assessment of Violence among the Mentally Disordered: Generating U seful Knowledge’ (1988) 11 International Journal of Law and Psychiatry 249, 251; HJ Steadman et al, ‘Violence by People Discharged from Acute Psychiatric Inpatient Facilities and by Others in the Same Neighbourhoods’ (1988) 55 Archives of General Psychiatry 393; EB Elbogen and SC Johnson, ‘The Intricate Link between Violence and Mental Disorder’ (2009) 66(2) Archives of General Psychiatry 152. 123 N Walker, ‘Dangerous Mistakes’ (1999) 29(2) Psychological Medicine 465, 469. 124 Swanson (n 112) 192; see also W Gardner et al, ‘A Comparison of Actuarial Methods for Identifying Repetitively Violent Patients with Mental Illnesses’ (1996) 20 Law and Human Behavior 35. 125 A Buchanan, ‘Risk of Violence by Psychiatric Patients: Beyond the “Actuarial versus Clinical” Assessment Debate’ (2008) 59(2) Psychiatric Services 184, 188; see also A Buchanan, ‘Detention of People with Dangerous Severe Personality Disorders: A Systematic Review’ (2001) 358 The Lancet 1955. 126 S Fazel et al, ‘Use of Risk Assessment Instruments to Predict Violence and Anti-social Behaviour in 73 Samples Involving 24,827 People: Systematic Review and Meta-analysis’ (2012) 345 British Medical Journal e4692. 127 G Szmukler, ‘Violence Risk Prediction in Practice’ (2001) 178 British Journal of Psychiatry 82, 84. 128 SS Shergill and G Szmukler, ‘How Predictable is Violence and Suicide in Community Psychiatric Practice?’ (1998) 7(4) Journal of Mental Health 393. 129 J Gunn, ‘The Management and Discharge of Violent Patients’ in N Walker (ed), Dangerous People (London, Blackstone Press, 1996) 119.

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of accuracy (eg, that a person goes to the cinema once a week), they are useless at predicting other outcomes (eg, if that person breaks his leg and cannot follow his normal routine, the tool can do nothing to predict what will happen).130 Actuarial approaches do nothing to explain the causes of an individual patient’s disorder and risks, and assume a high degree of probability which is not necessarily reflected in reality.131 As Buchanan has pointed out, ‘explanations of human behaviour rarely show that an act was inevitable or even highly probable’.132 Risk factors can play a key role in providing an overall picture of the patient’s condition, but they c annot be a guarantee of what will actually happen. According to Morgan, decisionmaking based on objective factors is about as reliable as weather forecasting.133 This is plainly troubling in the context of the MHA, where false positives will result in wrongful detentions in hospital and involuntary medical treatment. There is also the potential for an adverse impact on the allocation of resources, which will be further stretched by unnecessary admissions.134 Although some have argued that there may be ways of improving the accuracy of risk assessment tools,135 it appears that a ‘significant proportion of mental health professionals doubt the value of structured risk assessments in their clinical work’.136 As Hart et al argued in 2007, without appreciating the errors inherent in actuarial tools ‘it is simply impossible to make rational, reasonable and legally defensible decisions based on the results of statistical models’.137 It is no wonder, then, that the Royal College of Psychiatrists ‘remains concerned’ over ‘statistically problematic approaches to risk’.138 If the evidence base is weak, this raises an important question about why mental health services persist in using actuarial or structured techniques. The most plausible explanation is given by Szmukler and Rose: ‘such assessments [may] serve some bureaucratic or defensive functions for [mental health services]’.139 If decision-makers have tangible evidence that they have assessed P’s risks by following a procedure endorsed by their superiors and used on other patients

130 RM Dawes et al, ‘Clinical versus Actuarial Judgement’ (1989) 243 Science 1668, 1670; see also PE Meehl, Clinical versus Statistical Prediction: A Theoretical Analysis and a Review of the Evidence (Minneapolis, MN, University of Minnesota Press, 1954). 131 GT Harris and ME Rice, ‘Risk Appraisal and Management of Violent Behaviour’ (1997) 48(9) Psychiatric Services 1168, 1173. 132 A Buchanan, ‘Risk and Dangerousness’ (1999) 29(2) Psychological Medicine 465, 469. 133 HP Morgan, ‘Management of Suicide Risk’ (1997) 21(4) Psychiatric Bulletin 214, 214. 134 E Silver and LL Miller, ‘A Cautionary Note on the Use of Actuarial Risk Assessment Tools for Social Control’ (2002) 48(1) Crime & Delinquency 138, 139. 135 eg, D Mossman, ‘Assessing Predictions of Violence: Being Accurate about Accuracy’ (1994) 62(4) Journal of Consulting and Clinical Psychology 783. 136 G Szmukler and N Rose, ‘Risk Assessment in Mental Health Care: Values and Costs’ (2013) 31 Behavioral Sciences & the Law 125, 128. 137 SD Hart et al, ‘Precision of Actuarial Risk Assessment Instruments: Evaluating the “Margins of Error” of Group versus Individual Predictions of Violence’ (2007) 190 (suppl49) British Journal of Psychiatry s60, s61. 138 Royal College of Psychiatrists (n 54) 14. 139 Szmukler and Rose (n 136).

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then they are more likely to escape liability should an adverse incident occur. Risk assessment tools therefore may not serve any meaningful diagnostic or clinical function; instead, they may merely be a manifestation of defensive practice. Munro and Rumgay’s findings in their study of public inquiries convened after homicides perpetrated by mental health patients would seem to support this.140 They found that out of 40 reports, 26 homicides were preventable and that, of those, 16 patients had exhibited long-term indicators of risk. In other words, longterm factors that might indicate that P poses a risk of harm were evident in only a subsection of patients who went on to be violent. That mental health services persist in using risk assessment tools in the face of their questionable utility implies that they serve some function other than actually anticipating harm to others. The final thing which is apparent is that great emphasis is placed on the risks that patients may pose to others. More specifically, the risk that patients will perpetrate violence against other people. This is despite evidence that there has been little fluctuation in the number of homicides committed by people suffering from mental disorders since the 1950s.141 Fewer specialist tools exist for the assessment and management of other, commoner risks, such as self-neglect, abuse, exploitation, and so on. Where they do exist, these tools tend have a more general focus than those which evaluate P’s risk of violence specifically. Yet, as we have seen, the MHA implicitly anticipates that decision-makers can deploy the compulsory powers in response to a wider range of risks than dangerousness to others alone. The absence of specialist assessment tools for risks like self-neglect, abuse, exploitation, victimisation, and so on, suggests that decision-makers still largely rely on unstructured approaches in these circumstances. This means that the type of risk in question will determine how decision-makers conduct their assessments. Risk assessment for the purposes of the MHA therefore lacks methodological consistency and is subject to the capricious potential of professional discretion. This would seem an unsatisfactory way in which to justify admitting P to hospital on a compulsory basis.

‘Risk’ and the Courts According to Steele, the concept of risk appears ‘extensively’ throughout legal theory, although it is rarely analysed in its own right.142 A brief search of Halsbury’s Laws of England reveals thousands of references to risk in almost

140 E Munro and J Rumgay, ‘Role of Risk Assessment in Reducing Homicides by People with Mental Illness’ (2000) 176 British Journal of Psychiatry 116. 141 PJ Taylor and J Gunn, ‘Homicides by People with Mental Illness: Myth and Reality’ (1999) 174(1) British Journal of Psychiatry 9. 142 Steele (n 43) 5.

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every conceivable area of law. Despite its pervasiveness, ‘risk’ is not a term of art; instead, it is a matter of fact on which the courts do not usually pronounce. Perhaps unsurprisingly, there is a conspicuous lack of case law directly addressing the interpretation of the MHA’s risk formula. Indeed, the courts may actually have inadvertently contributed to the confusion in this area by referring to the risk formula in other ways, for example, as the ‘safety test’.143 Nevertheless, where relevant cases do exist they typically emanate from the lower courts, leaving some doubt about whether their principles apply more broadly,144 or they relate to Part III of the MHA or judicial review proceedings brought against the Mental Health Tribunal (MHT). While this book maintains a narrow focus on risk as the operative component of the civil commitment provisions, there is no reason to exclude case law relating to the risk formula’s other applications. In B v Scottish Ministers,145 the Scottish Court of Session read the Mental Health (Scotland) Act 1984 in accordance with the interpretive presumption that the legislature intends a particular phrase or term in a single statute to have the same meaning throughout.146 This is persuasive authority for the proposition that the courts will interpret the risk formula in the similarly worded English MHA in the same way, regardless of where it appears in the statute. The word ‘risk’ and its associated formula will therefore be taken to mean the same thing under Part II of the MHA as it does under Part III. We saw in chapter one that the same form of words which governs P’s admission to hospital under the MHA is used also to authorise his subsequent discharge. So if, for example, a court were reviewing the MHT’s interpretation of the risk formula in order to determine whether the tribunal has a lawful basis on which to discharge P from hospital, it will attribute to the formula the same meaning for the purposes of s ection 72 as it would for the purposes of section 3. Furthermore, there is authority which suggests that the MHA should in any case be treated as a complete and comprehensive code governing compulsory admission to hospital for mentally disordered people.147 It follows that it should be read as a cohesive whole and according to a consistent internal logic.148 This was reinforced by the case of R v North West London Mental Health NHS Trust, ex parte S,149 in which the

143 Reid v Secretary of State for Scotland [1999] 2 AC 512 (HL), 518 (Lord Lloyd); R v Canons Park Mental Health Review Tribunal, ex parte A [1994] 2 All ER 659 (CA), 679 (Kennedy LJ). 144 cf the situation in the United States: Lessard v Schmidt 39 F Supp 1078 (ED Wis 1972). 145 B v Scottish Ministers [2010] CSIH 31. 146 ibid, [24]. 147 R (Sessay) v South London and Maudsley NHS Foundation Trust [2011] EWHC 2617 (QB), [34] (Supperstone J): ‘We are of the view that the Mental Health Act provides a complete statutory code covering persons in the Claimant’s position’; see also B v Forsey [1988] SLT 572; cf R v Bournewood Community and Mental Health Trust, ex parte L [1999] 1 AC 458 (HL). 148 See, eg, R (L) v Secretary of State for the Home Department [2005] EWCA Civ 2; R (Wiltshire Council) v Hertfordshire CC [2014] EWCA Civ 712. 149 R v North West London Mental Health NHS Trust, ex parte S [1998] QB 628 (CA).

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Court of Appeal said that Parts II and III of the MHA are not mutually exclusive but rather contain powers which coexist. This means that the rationes decidendi of cases discussing the risk formula under Part III of the MHA may still be relevant to the interpretation of that same formula under Part II. Similarly, in R (H) v Mental Health Review Tribunal,150 Lord Phillips MR said that it is ‘axiomatic’ that if the MHT’s function is to consider whether the detention of a patient is lawful, ‘it must apply the same test that the law required to be applied as a precondition to admission’.151 The provisions relating to patients’ discharge from hospital therefore mirror those that provide the legal basis for their initial admission.152 Lord Phillips’ speech in the H case affirms that the MHT effectively considers the same risk formula that mental health professionals do at the time of P’s a dmission, albeit from a negative standpoint. This means that the myriad judicial review applications brought by patients challenging decisions of the MHT can shed some light on the courts’ expectations of how decision-makers should interpret the provisions of the MHA more generally.

Defining Risk Risk is Not a Term of Art The courts are reluctant to create terms of art for ordinary words appearing in legislation. In Brutus v Cozens,153 the House of Lords had to consider the meaning of the words ‘insulting behaviour’ in section 5 of the Public Order Act 1936 (as amended). The appellant had interrupted play at the Wimbledon tennis tournament as part of a protest. He was arrested and charged under section 5 of the 1936 Act with using insulting behaviour likely to occasion a breach of the peace. The Divisional Court defined ‘insulting behaviour’ as ‘behaviour which affronted other people and evidenced a disrespect or contempt for their rights, and which reasonable persons would foresee as likely to cause resentment or protest’. This wording did not appear anywhere in the 1936 Act. Allowing an appeal against this ruling, the House of Lords held that the question whether a person had used insulting behaviour for the purposes of section 5 was a matter of fact. Because there was no evidence to suggest that Parliament had intended the words ‘insulting behaviour’ to convey an unusual meaning, Lord Reid stated that their interpretation as ordinary words of the English language was not a question of law.154

150

R (H) v Mental Health Review Tribunal [2001] EWCA Civ 415. ibid, [31]. 152 See also R (N) v Mental Health Review Tribunal (Northern Region) [2005] EWHC 587; R v London South and South West Region Mental Health Review Tribunal, ex parte Moyle (2000) The Times (10 February). 153 Brutus v Cozens [1973] AC 854 (HL). 154 ibid, 861 (Lord Reid). 151

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If it were, the courts would ‘reach an impossible position’ in which they would have to define all the words that appear in statutory provisions.155 The interpretation of the ordinary words would only become a question of law where the tribunal has attributed an unnatural meaning which is so unreasonable that no tribunal acquainted with the ordinary use of language could reasonably have reached that decision. Otherwise, unless a statutory definition limits or modifies the ordinary meaning of a word, this is not a matter for the court.156 The courts have therefore consistently preferred to give words in statutes their natural and ordinary meaning.157 The MHA and other mental health legislation are no exception to this rule. In R (B) v Ashworth Hospital Authority,158 the appellant had been detained under the MHA subject to a hospital order. While in hospital, the patient was given personality tests which indicated that he also had psychopathic disorder. The appellant was transferred to a specialist psychopathy ward for treatment, although his hospital order was not amended to reflect this. The issue for their Lordships was whether a patient subject to the compulsory powers could be given medical treatment without his consent under section 63 for any mental disorder from which he was suffering or only for the specific condition for which he was detained. In giving the judgment of the court, Baroness Hale read the words of section 63 according to their natural and ordinary meaning and held that a patient could be given treatment for any mental disorder from which he is suffering regardless of the diagnosis which formed the initial basis for his detention.159 Her Ladyship made it clear that when interpreting the MHA the court will give the words of its provisions their plain meaning. This interpretive presumption applies even to words which ostensibly imply a clinical or specialist meaning. In W v L,160 the Court of Appeal considered the meaning of ‘mental illness’ for the purposes of section 26(2)(a)(i) of the Mental Health Act 1959, which did not define the term. Following Brutus, Lawton LJ said that the words ‘mental illness’ are ordinary words of the English language which carry no particular medical or legal significance. For that reason, the court should construe them in the same way that an ordinary, sensible person would.161 W v L exhibits the courts’ long-standing antipathy towards the attribution of ‘legal’ meanings to clinical terms which might tie the hands of mental health practitioners and

155 ibid. 156 ibid.

157 Bryan v Robinson [1960] 2 All ER 173; Akbarali v Brent London Borough Council [1983] 2 AC 309 (HL); Moyna v Secretary of State for Work and Pensions [2003] UKHL 44; R v Evans (Dorothy Gertrude) [2004] EWCA Crim 3102; R (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19; Re P (Permission to Withdraw Care Proceedings) (Fam, 26 January 2016); R v Golds (Mark Richard) [2016] UKSC 61. 158 R (B) v Ashworth Hospital Authority [2005] UKHL 20. 159 ibid, [22]. 160 W v L [1974] QB 711 (CA). 161 ibid, 719.

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other decision-makers.162 In Randall v Randall,163 Merriman P declined to specify what degree of ‘unsoundness of mind’ was necessary for the purposes of the Matrimonial Causes Act 1937 ‘because to do so would serve no useful purpose and might create difficulties’.164 Similarly, in Whysall v Whysall,165 a case concerning the definition of ‘incurably of unsound mind’ under section 1(1)(d) of the Matrimonial Causes Act 1950, Phillimore J said that ‘there is a great risk that in attempting to define words used by Parliament fresh difficulties will be created— the result may be to make confusion worse compounded’.166 Although there are no cases in which the courts have explicitly stated that the term ‘risk’ must also be given its natural and ordinary meaning under the MHA, it is safe to assume that the Brutus principle would apply here too. Where the courts have addressed the interpretation of ‘risk’ in other areas of the law, they have exhibited the same reluctance to prescribe a special meaning to the term. In Koonjul v Thameslink Healthcare Services,167 the Court of Appeal had to consider the meaning of ‘risk’ for the purposes of regulation 4(1) of the Manual Handling Operations Regulations 1992.168 The claimant had suffered a back injury in the course of her employment as a care assistant. In the Court of Appeal, their Lordships dismissed the claimant’s appeal, agreeing with the first instance judge that there had not been a risk of injury to the claimant sufficient to engage the regulations. Hale LJ said that for the purposes of regulation 4(1), there must be a ‘real’ risk, which Her Ladyship defined as ‘a foreseeable possibility of injury; certainly nothing approaching a probability’.169 In framing this construction, Her Ladyship relied on the dictum of Aldous LJ in Hawkes v London Borough of Southwark170 and the Scottish case of Cullen v North Lanarkshire Council.171 While the Court of Appeal in Koonjul appeared to specify a ‘risk standard’, it is important to remember that this applied only in the specific context of the Manual Handling Operations Regulations. There is nothing in the case to suggest that their Lordships had intended their definition to have a broader application in law.172 In fact, it seems that the courts have occasionally been prepared to define ‘risk’, but only on a specific case-by-case basis.173 For the most part, however, judges place the

162 Lock v Lock [1958] 1 WLR 1248; Robinson v Robinson (by his Guardian) [1964] 3 WLR 935; cf Woolley v Woolley (by her Guardian) [1966] 3 WLR 1117. 163 Randall v Randall [1939] P 131. 164 ibid, 137. 165 Whysall v Whysall [1960] P 52. 166 ibid, 65. 167 Koonjul v Thameslink Healthcare Services [2000] PIQR P123 (CA). 168 Manual Handling Operations Regulations 1992, SI 1992/2793. 169 (Hale LJ) 126. 170 Hawkes v London Borough of Southwark (CA, 20 February 1998). 171 Cullen v North Lanarkshire Council [1998] SC 451. 172 See also King v RCO Support Services Ltd [2001] PIQR P15 (CA); Alsop v Sheffield City Council [2002] EWCA Civ 429; Bennetts v Ministry of Defence [2004] EWCA Civ 486. 173 See, eg, Stokes v Cox (1856) 156 ER 1225; R v Secretary of State for the Home Department, ex parte Stafford [1998] 1 WLR 503 (CA).

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same emphasis on applying natural and ordinary meanings to ‘risk’ that they do to any other words or phrases. In Letting International Limited v Newham L ondon Borough Council174 the High Court had to consider the interpretation of the word ‘risk’, this time in relation to regulation 47(6) of the Public Contracts Regulations 2006.175 Here, Silber J relied on the definition given by the Shorter Oxford English Dictionary: ‘there must be a possibility of damage because the word “risk” means … the chance or hazard of commercial loss’.176 His Lordship thereby gave ‘risk’ its dictionary definition. There is nothing to suggest that the courts would not do the same for ‘risk’ as it appears in the MHA, and also for its risk formula. This presumably explains why at first instance Harrison J chose a common sense construction of the risk formula’s reference to ‘the protection of other persons’ in R v North West London Mental Health NHS Trust, ex parte Stewart.177 It will also explain why Lord Hope interpreted the word ‘public’ in the phrase ‘in order to protect the public from serious harm’ to mean either ‘the public in general or a section of the public’ in Anderson v Scottish Ministers.178 That case concerned the way in which the court should interpret a similarly worded risk formula which appeared under section 1 of the Mental Health (Public Safety and Appeals) (Scotland) Act 1999. Yet, here we encounter a key reason why the prominence given to risk by the MHA is legally problematic: if we cannot agree on the ordinary meaning of ‘risk’ generally, the courts’ insistence on employing a natural interpretation of the words does not tell us very much at all.

Risk is a Divisible Concept To further compound the uncertainty, the courts treat ‘risk’ as a divisible concept. Instead of regarding risk in binary terms, the courts appear to prefer a sliding scale approach. We have already seen in Koonjul that Hale LJ modified the word ‘risk’ by using the adjective ‘real’ to clarify the point at which a defendant’s acts or omissions might engage the Regulations. The practical effect of Her Ladyship’s approach was to distinguish ‘ordinary’ and ‘real’ risks; while the former may place moral pressure on decision-makers to take action, it is only the latter which are of legal significance. On one hand this divisibility makes intuitive sense. We have already seen that there are certain frequently observed risk factors where mental illnesses are

174

Letting International Limited v Newham London Borough Council [2008] EWHC 1583 (QB). Public Contracts Regulations 2006, SI 2006/5. [136] (Silber J). 177 R v North West London Mental Health NHS Trust, ex parte Stewart (1997) 36 BMLR 151 (QB), 166 (Harrison J): The phrase ‘does not necessarily mean the public at large because it could simply relate to an individual person or persons, nor is there the requirement that such persons should be protected “from serious harm”’. 178 [2001] UKPC D5. 175 176

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c oncerned. The key question then is not whether there is a risk of harm but whether that risk is enough to justify compulsory admission to hospital or some other intervention. In WBC (Local Authority) v Z (by the Official Solicitor as her litigation friend) X and Y,179 for example, Cobb J distinguished ‘healthy risk-taking’, which in the context of the case would not suggest that the applicant lacked capacity, from ‘unhealthy and dangerous’ risk-taking, which would.180 By distinguishing high and low risks (or healthy and unhealthy risks, to use the language of the court in WBC), the courts implicitly accept that not every risk can or should be addressed. Treating risk as a divisible concept is therefore a pragmatic solution which accommodates the variable likelihood and gravity of the risks at issue and tailors the deployment of the compulsory powers so that they are directed towards more serious cases. On the other hand, divisibility exacerbates the difficulties we have in defining ‘risk’. First, a prerequisite for treating risk as a divisible concept must surely be a fixed standard from which to depart. If we do not know what ‘risk’ means in the abstract, it is impossible to identify or distinguish high and low risks. As we have already established, no satisfactory definition of ‘risk’ exists. The divisibility issue raises even more questions about what amounts to an actionable risk in law: for example, Hale LJ’s reference to ‘real’ risk in Koonjul immediately raises questions about how it differs from what we might crudely call a ‘non-real’ risk. What effect modifiers like ‘static’,181 ‘substantial’,182 ‘significant’,183 ‘grave’,184 ‘serious’,185 and ‘low’ and ‘high’186 are supposed to have on ‘risk’ is equally vague. Secondly, it is not clear whether the MHA’s detention criteria imply anything other than an indivisible conception of risk. Save for a small difference in the wording between sections 2 and 3, the MHA makes no distinction between a patient who has a high risk of suicide and a patient with a comparatively low risk of taking his own life. A literal reading of the legislation suggests that both patients would be equally liable to face compulsion under the Act because both could be said to pose a risk of harm to their own health or safety. This would seem to render the divisibility of risk redundant. In spite of this, the courts have repeatedly demonstrated a propensity to treat risk as a divisible concept in mental health cases. This has been most apparent on occasions in which patients have contended that their right to life under

179 WBC (Local Authority) v Z (by the Official Solicitor as her litigation friend) X and Y [2016] EWCOP 4. 180 ibid, [67]. 181 eg, R (PP) v Secretary of State for Justice [2009] EWHC 2464 (Admin). 182 Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] AC 871, 898 (Lord Bridge). 183 Pearce v United Bristol Healthcare NHS Trust [1999] PIQR P53, P59 (Lord Woolf MR). 184 Wyatt v Curtis [2003] EWCA Civ 1779, [16] (Sedley LJ). 185 eg, R v Ronald Lonford Golding [2006] EWCA Crim 1965. 186 eg, Savage v South Essex Partnership NHS Foundation Trust [2009] 1 AC 681 (HL), [50] (Lord Rodger).

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Article 2 of the European Convention on Human Rights (ECHR) has been contravened. Article 2 provides that everyone’s right to life shall be protected by law. According to Convention jurisprudence, a State Party will fall under a positive obligation actively to protect a person’s right under Article 2 where there is a ‘real and immediate risk’ to his life.187 In Re Officer L,188 the House of Lords said that the threshold for a ‘real and immediate’ risk is high: ‘a real risk is one which is objectively verified and an immediate risk is one which is present and continuing’.189 This means that patients detained in hospital under the MHA,190 or engaging with mental health services voluntarily,191 who pose a real and immediate risk to themselves demand a higher level of care and supervision than those who do not pose such risk. State Parties can therefore be less exacting with those patients who they have deemed to pose an ‘ordinary’ risk, even where doctors have recommended that more intensive care and treatment is indicated.192 Where then should we draw the line between risks which will justify P’s compulsory admission to hospital under the MHA and the ‘real and immediate’ risks which will confer a duty on P’s clinical team under Article 2? In Savage v South Essex Partnership NHS Foundation Trust,193 the patient had paranoid schizophrenia and was admitted to hospital for treatment under section 3 of the MHA. She subsequently absconded and committed suicide. The House of Lords held that the defendant hospital trust had breached its obligation to Mrs Savage under Article 2 because (i) it knew or ought to have known that there was a real and immediate risk of the patient committing suicide, and (ii) the medical authorities failed to do all that reasonably could be expected of them to prevent it. Yet, while the ‘real and immediate’ standard is clearly intended to distinguish the risks which engage the protection of Article 2 from those that do not, its utility is questionable given that it sheds no light on what actually characterises an ‘ordinary’ risk. Mrs Savage was presumably deemed to pose an ‘ordinary’ risk which warranted detention in hospital under the MHA, but the court requires more than that to impose a positive obligation on a State Party under Article 2. A similar issue arose in Rabone v Pennine Care NHS Foundation Trust.194 Here, the patient suffered from depression and had been admitted to hospital on an informal basis after she had attempted suicide. Her clinical team concluded that she posed a high risk to herself but allowed her two days’ leave from hospital, during which she committed suicide. The Supreme Court held that the relevant hospital trust had owed an operational duty to the patient to take reasonable steps to protect her from

187

LCB v United Kingdom (1999) 27 EHRR 212; Osman v United Kingdom (2000) 29 EHRR 245. Re Officer L [2007] UKHL 36. ibid, [20] (Lord Carswell); see also Re Weatherup [2004] NIQB 67. 190 Savage (n 186). 191 Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2. 192 eg, R (P) v Secretary of State for Justice [2009] EWCA Civ 701. 193 Savage (n 186). 194 Rabone (n 191). 188 189

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the ‘real and immediate risk’ of suicide. This was despite the fact that, unlike the patient in Savage, the patient in Rabone had not been ‘sectioned’ under the MHA and was therefore an informal or voluntary patient. Their Lordships took the view that there was little essential difference between informal or voluntary patients on one hand and formal patients on the other where the state’s operational duty is concerned. According to Lord Dyson, the patient in Rabone had been admitted to hospital because she was a ‘real’ suicide risk and therefore her vulnerability engaged the state’s positive obligation under Article 2: By reason of her mental state, [the patient] was extremely vulnerable. The trust assumed responsibility for her. She was under its control … In reality, the difference between her position and that of a hypothetical detained psychiatric patient … would have been one of form, not substance. Her position was far closer to that of such a hypothetical patient than to that of a patient undergoing treatment in a public hospital for a physical illness.195

The state will therefore owe a positive duty under Article 2 in relation to formal and informal/voluntary patients where there is a ‘real and immediate risk’. This rather confusingly suggests that patients who have for whatever reason fallen below the threshold for compulsion under the MHA may still pose ‘real and immediate risks’ which engage the Article 2 duty. Yet, because the court does not define ‘risk’, where the thresholds for compulsion under the MHA and positive obligations under the ECHR actually lie is difficult to discern. This lack of clarity about risk is not just problematic for patients; it also causes problems for mental health professionals, who may never be clear exactly what their (or, more accurately, their employer’s) liabilities will be at any given time. The courts’ willingness to treat risk as a divisible concept does very little to bring certainty to the matter.

Evidencing Risk Risk as a Matter of Fact Judges have customarily been reluctant to presume any competence in the clinical domain. In R (Khela) v Brandon Mental Health Unit,196 Thornton J said that the court was not able to second-guess clinicians because ‘there is currently no remedy available that enables the court to order that the diagnosis of a doctor should be changed and corrected’.197 This judicial respect for the limits of professional competences makes sense: judges are simply not qualified to say whether a doctor’s decision is right or wrong. This is particularly true in the tort of negligence,

195

ibid, [34] (Lord Dyson). R (Khela) v Brandon Mental Health Unit [2010] EWHC 3313 (Admin). 197 ibid, [6]. 196

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in which the standard of care a doctor must discharge when treating his patients is that of the ordinary skilled man or woman exercising and professing to have that special skill.198 The same standard applies equally to psychiatrists.199 This means that the court will judge a doctor’s actions against his own professional standards.200 If a doctor (or psychiatrist) falls below the standard of care, the court will find that he is in breach of his duty. Otherwise, judges are not prepared to evaluate the merits of clinical decisions.201 The consequence of this judicial deference is that decision-makers’ assessments of patients’ risks are treated as matters of fact with which the courts will not interfere. To a certain extent, this arm’s length approach is a product of the legislation. The MHA insulates mental health professionals from any civil or criminal proceedings in respect of acts they purport to do in pursuance of the legislation, unless such acts are done in bad faith or without reasonable care.202 Even then, a patient cannot bring civil proceedings against any person in any court in respect of any such act without the leave of the High Court.203 According to Lord Bingham in Seal v Chief Constable of South Wales Police,204 these provisions were introduced with the obvious object of giving mental health professionals greater protection from litigation.205 The courts are therefore even less likely to reconsider doctors’ decisions under the MHA than they might be in other areas of medical practice. Even when they do hear such cases, judges are reluctant to review practitioners’ substantive decisions. In Savage, Lord Rodger explained that ‘the level of risk for any particular patient [can] be expected to vary with fluctuations in his or her medical condition … Such decisions involve clinical judgment. Different doctors may have different views’.206 His Lordship plainly took the view that the courts are in no position to decide how people with a mental disorder should be treated under the MHA. A similar principle underpinned the Supreme Court’s decision in Montgomery v Lanarkshire Health Board,207 although this case examined ‘risk’

198

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, 586 (McNair J). G v Central and North West London Mental Health Authority [2007] EWHC 3086 (QB). 200 There are limits; eg, doctors are under a duty to take reasonable care to ensure that their patients are aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments; see Montgomery v Lanarkshire Health Board [2015] UKSC 11, [87] (Lord Kerr and Lord Reed). 201 But see Bolitho v City and Hackney Health Authority [1998] AC 232 (HL), whose underlying principle was applied to psychiatric practices in D v South Tyneside Health Care NHS Trust [2003] EWCA Civ 878. 202 MHA 1983, s 139(1). 203 MHA 1983, s 139(2); although it seems that the threshold is quite low: DD v Durham County Council [2013] EWCA Civ 96. 204 Seal v Chief Constable of South Wales Police [2007] UKHL 31. 205 They are also compatible with the right to a fair trial under Art 6(1) of the ECHR; see Seal v United Kingdom [2010] ECHR 50330/07. 206 Savage (n 186) [50] (Lord Rodger). 207 [2015] UKSC 11. 199

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in its more conventional medical sense, that is, the likelihood of adverse events resulting from deliberate clinical interventions. Here, Lord Kerr and Lord Reed said that the assessment of whether a risk is ‘material’ in that context ‘cannot be reduced to percentages’: The significance of a given risk is likely to reflect a variety of factors besides its magnitude: for example, the nature of the risk, the effect which its occurrence may have …, the importance to the patient of the benefits sought to be achieved by the treatment, the alternatives available, and the risks involved in those alternatives. The assessment is therefore fact-sensitive, and sensitive also to the characteristics of the patient.208

Risk is therefore a matter of fact for the relevant decision-makers to take into account and not a concern of the court. Similarly, in R v North West Thames Mental Health Review Tribunal, ex parte Cooper,209 Rose J said that the courts would be reluctant to interfere with the decision of the MHT unless there was a basis for a challenge on a well-known line, for example, where the decision is u nreasonable.210 And in cases concerning the interpretation of section 72(1)(b) of the MHA, judges have concluded that the question whether P has a mental disorder and poses a risk is a ‘mixed question of fact and judgment or evaluation’.211 Considerations of risk may be as relevant to treatment as any other feature of P’s mental disorder and therefore it is an issue for the relevant decision-makers to decide how to proceed.212 Although their decisions can lead to coercive measures being deployed against patients, mental health practitioners may engage the MHA’s compulsory powers with only a low level of oversight by the courts. The upshot of this is that that there is no universal calculus of risk against which judges can gauge the decisions of mental health practitioners. In fact, the courts have refused even to specify the ingredients that might justify a decision-maker’s conclusion that a patient poses a risk.213 This gives them a wide discretion under the MHA: decision-makers can recast almost anything to do with the patient’s disorder, characteristics or circumstances as evidence of risk.

Anything Goes? Mental health decision-makers act in a quasi-judicial capacity. In the same way that a judge must interpret and apply a piece of legislation in order to give effect

208

ibid, [89]. R v North West Thames Mental Health Review Tribunal, ex parte Cooper (1990) 5 BMLR 7 (QB). 210 ibid, 13 (Rose J). 211 R (N) v Mental Health Review Tribunal (Northern Region) [2005] EWCA Civ 1605, [101] (Richards LJ). 212 MD v Mersey Care NHS Trust [2013] UKUT 127 (AAC), [8] (Edward Jacobs J). 213 R (Von Brandenburg) v East London and the City Mental Health NHS Trust [2003] UKHL 58, [10] (Lord Bingham): ‘It is impossible and undesirable to attempt to describe in advance the information which might justify … an opinion’; see also R (K) v West London Mental Health Trust [2006] EWCA Civ 118 in which the Court of Appeal said that the weight to be given to the opinion of a responsible medical officer depends on all the circumstances of the case. 209

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to the intentions of Parliament, mental health professionals must read and give effect to the MHA. Yet they differ in an essential way: if a judge in ordinary civil proceedings had to determine whether a person with mental disorder should be a dmitted to hospital under section 3 he would have to be satisfied by cogent evidence that, on a balance of probabilities, the conditions for the patient’s detention were met.214 Mental health decision-makers, by contrast, are not obliged to adhere to the same standard. Although they have to comply with the MHA, practitioners ultimately take a clinical decision, which, by definition, entails distinct considerations from those that underpin judicial rulings.215 In R (AN) v Mental Health Review Tribunal (Northern Region),216 the Court of Appeal distinguished the judicial standard which the MHT must follow from the less exacting clinical standard expected of mental health practitioners. Decision- makers do not therefore need to establish that a patient is a risk to himself or others on the balance of probabilities. According to Richards LJ, in matters of judgement and evaluation, the standard of proof is not particularly helpful; in fact, slavish adherence to it would probably undermine the scheme of the MHA.217 His Lordship agreed with Lord Hoffman in Secretary of State for the Home Department v Rehman,218 who said that the question of risk ‘depends upon an evaluation of the evidence of the appellant’s conduct against a broad range of facts with which they may interact’. Whether someone poses a risk cannot be answered ‘by taking each allegation seriatim and deciding whether it has been established to some standard of proof. It is a question of evaluation and judgment’.219 There are sound reasons for this. In R v Parole Board, ex parte Bradley,220 the court had to consider how much risk was required to meet a threshold at which people sentenced to life imprisonment could have their terms extended to protect the public. Stuart-Smith LJ declined to specify what might amount to a risk in the abstract, insisting that it is impossible to quantify risk in the same way as the court establishes the likelihood that something will or will not occur. Risk implies a different standard from likelihood: for example, we can talk of things posing a risk even when they are unlikely to occur. For that reason, the court in ex parte Bradley was prepared only to say what would not amount to a risk. Stuart-Smith LJ said that a risk that is merely perceptible or minimal will not be sufficient; it must be such that it is unacceptable according to the subjective judgement of the

214 Miller v Minister of Pensions [1947] 2 All ER 372 (KB), 373–74 (Lord Denning MR); Bonnington Castings Limited v Wardlaw [1956] AC 613 (HL). 215 R (H) v Oxfordshire Mental Healthcare NHS Trust [2002] EWHC 465 (Admin); Von Brandenburg (n 213). 216 [2005] EWCA Civ 1605. 217 ibid, [75] (Richards LJ). 218 Secretary of State for the Home Department v Rehman [2001] UKHL 47. 219 ibid, [56] (Lord Hoffman) (emphasis added). 220 R v Parole Board, ex parte Bradley [1990] 3 All ER 828.

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decision-maker.221 That was as far as His Lordship was prepared to go: there are so many factors that might be indicative of risk that they cannot all be enumerated in the abstract. A mental health decision-maker apparently does not have to have cogent evidence that P actually poses a risk to harm before he can detain him under the MHA. It is enough that P poses a risk in the decision-maker’s subjective evaluation. Essentially, this means that the point at which a patient may be detained is even lower than that implied by the civil standard of proof. In addition to this, the MHA allows decision-makers to deploy the compulsory powers before a person with mental disorder has posed, or is certain to pose, an actual threat of harm to his health or safety or to others.222 It follows that even the evidential burden is lower than it would be if the law demanded at least that the patient be likely to harm himself or others. This point was confirmed by R (MM) v Secretary of State for the Home Department,223 in which the Court of Appeal considered an appeal brought by a patient with paranoid schizophrenia and a long history of engagement with mental health services. He had been convicted of an offence contrary to section 20 of the Offences Against the Person Act 1861 and had been placed on hospital and restriction orders for the purposes of sections 37 and 41 of the MHA respectively. While his mental disorder was ordinarily stable, the evidence suggested that the appellant’s use of illicit drugs created a risk that his condition would deteriorate. For that reason, the Secretary of State recalled him to hospital under section 42 of the MHA. The appellant challenged this decision, arguing that in order for his recall to be legitimate his medical team had to prove either that he had psychotic symptoms or that he was certain to have such symptoms in the immediate future. The Court of Appeal disagreed: Toulson LJ said that the logical corollary of this submission would mean that a doctor who thought that a mentally disordered patient posed a risk would be prevented from recalling that patient to hospital unless he was certain that harm would ensue. His Lordship reaffirmed that the point at which a patient’s risks make his detention for treatment appropriate ‘may involve a difficult judgment on the facts of a particular case’.224 However, it would not comport with the policy of the MHA if the courts were to read a high evidential burden into the risk formula.225 It is true that the only way a decision-maker can be certain that a patient actually is a risk to himself or others is to decline to intervene in his case. If the harm then materialises, it follows that the assessment of risk was accurate—this is what the Court of Appeal has previously

221 ibid, 838; see also R (Haddock) v Parole Board for England and Wales [2014] EWHC 4433 (Admin). 222 There are parallels here with the notion of ‘pre-crime’; see, eg, PK Dick, Minority Report (London, Gollancz, 2002); J McCulloch and S Pickering, ‘Pre-crime and Counter-terrorism: Imagining Future Crime in the “War on Terror”’ (2009) 49 British Journal of Criminology 628. 223 R (MM) v Secretary of State for the Home Department [2007] EWCA Civ 687. 224 ibid, [50] (emphasis added). 225 ibid, [47–48].

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called ‘the proof of the pudding principle’.226 A good example of this can be found in the facts of Barker v Barking, Havering and Brentwood Community Healthcare NHS Trust (Warley Hospital).227 Here, the patient challenged a decision to renew her detention under section 20 of the MHA. She contended that because she was allowed extensive leave from the hospital under section 17 and the only treatment she was receiving for her mental disorder did not actually require compulsory admission to hospital, her detention was unlawful. Her doctor thought she was at a high risk of a relapse induced by her misuse of illicit drugs. Shortly after bringing her challenge, the patient took amphetamines while on leave from hospital and was readmitted suffering from drug-induced psychosis. In doing so, the patient vindicated her clinical team’s initial assessment. Yet it would plainly constitute an absurd distortion of the policy of the MHA if patients were required actually to manifest or suffer harm before doctors could engage the compulsory powers. The very point of the MHA is to avoid or minimise the risks of harm in the first place. For that reason, there must be a distinction between the certainty of harm and the risk of harm: the former implies a high evidential threshold, whereas in the case of the latter it is enough that there is a chance that such harm may occur. It is clear that mental health decision-makers do not have to be sure that a patient poses a risk before they can deploy the compulsory powers. Nor, indeed, does the risk even have to be likely to materialise. It is enough that a qualified practitioner has concluded that P warrants compulsion under the Act. On one hand, this reflects the scheme of the legislation and ensures that mental health services are responsive to patients’ risks. On the other hand, it imposes very few limits on decision-makers’ discretion, thereby permitting a person’s detention in hospital on what may appear to amount to an insubstantial basis. It is not surprising that decision-makers have relied on what may appear to be feeble evidence to justify the deployment of the compulsory powers: for example, they may use the same ‘risk is risk’ paradox we discussed earlier to certify that it is necessary to detain a patient. The courts do not appear to object to decisionmakers’ d escriptions of ‘risk’ in these circular terms; indeed, they may even be complicit in this practice. In W Primary Care Trust v TB (An Adult by her Litigation Friend the Official Solicitor),228 Roderick Wood J set out the factors that had led a consultant psychiatrist to the conclusion that the patient, who had chronic delusional disorder, posed a risk to herself and others. His Lordship said that ‘there was a risk of suicide … and there was a further risk of exploitation of her by others given her general behaviour towards strangers’.229 Similarly, in

226

R (H) v Ashworth Special Hospital Authority [2002] EWCA Civ 923, [59] (Dyson LJ). Barker v Barking, Havering and Brentwood Community Healthcare NHS Trust (Warley Hospital) [1999] 1 FLR 106. 228 W Primary Care Trust v TB (An Adult by her Litigation Friend the Official Solicitor) [2009] EWHC 1731 (Fam). 229 ibid, [18] (Roderick Wood J). 227

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R (GP) v Derby City Council,230 Pelling J accepted evidence from the patient’s clinical team that he presented a risk to himself and others because he ‘was at risk that his mental health would further deteriorate if he was discharged from hospital’.231 At no point did the judges in these cases comment on the potential fallacy that lies in substantiating conclusions about ‘risk’ with reference to other risks. Not only does this exacerbate the difficulties of definition but it also makes it hard to discern what evidence underpinned the doctors’ respective conclusions. Do the evidential factors have to point to the risk of harm? Or is it enough that there is only a risk of a risk of harm? And how many levels of abstraction are permissible? The fact that the courts seem willing to allow decision-makers to base their assessments of risk on a house of cards of other, smaller risks suggests that the evidential threshold is very low. A seemingly unrestricted number of factors can apparently support the conclusion that P is a risk and thereby justify his compulsory admission to hospital. This is further amplified by the fact that the issue of risk may not be an exclusively clinical one. In a number of cases, the courts have said that MHTs can reject clinical evidence which suggests that a patient is no longer a risk.232 In R v Mental Health Review Tribunal, ex parte Pickering,233 Forbes J suggested that a tribunal may have compelling policy reasons for rejecting clinical evidence that a patient is not a risk to himself or others.234 Moreover, in R v Trent Mental Health Review Tribunal, ex parte Ryan,235 it was held that the definition of some terms in the MHA is not solely a clinical issue. Consequently, there is apparently nothing which expressly prohibits decision-makers from taking non-clinical considerations into account when assessing risks. The cumulative effect of this is that practitioners can justify their decisions to deploy the compulsory powers on the basis of evidence which may be either tenuous or tangential.

Procedural Guidance In spite of all this, the courts have imposed at least some limits. First, decisionmakers may not be able to conclude that a patient poses to risk to himself or others solely on the basis of his clinical history. In R (Jones) v Isleworth Crown Court,236 the High Court dismissed an application for judicial review of the Crown Court’s decision that the claimant presented a risk of serious harm to the public and

230

R (GP) v Derby City Council [2012] EWHC 1451 (Admin). ibid, [23]. 232 R (OS) v Secretary of State for the Home Department [2006] EWHC 1903 (Admin); R (Munday) v Secretary of State for the Home Department [2009] All ER (D) 96 (Admin); RH v South London and Maudsley NHS Foundation Trust [2010] EWCA Civ 1273. 233 R v Mental Health Review Tribunal, ex parte Pickering [1986] 1 All ER 99 (QB). 234 ibid, 101. 235 R v Trent Mental Health Review Tribunal, ex parte Ryan [1992] COD 157. 236 R (Jones) v Isleworth Crown Court [2005] EWHC 662 (Admin). 231

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therefore should be subject to a restriction order for the purposes of section 41 of the MHA. While there was no dispute that the claimant, who had paranoid schizophrenia, posed a risk to the public, the issue was whether he deserved special restrictions. It was submitted on his behalf that the evidence the judge had heard suggested his risk profile did not warrant a restriction order. Moses J found that the judge had in fact been quite entitled to impose a restriction order in light of the medical evidence. However, His Lordship stressed that assessments of risk require the judge to look to the future. Moses J said that the judge was ‘bound to consider the risk in the future and the nature of that risk … but he was not bound to determine that risk solely by reference to the nature of the violence in the past’.237 If we apply this principle to the MHA more broadly, it would suggest that mental health practitioners must rely on contemporary evidence that compulsion of the patient is necessary at the material time. While a patient’s clinical history may have some predictive value, it must not be allowed to have a prejudicial effect. For a decision-maker simply to conclude that a patient has posed a risk in the past and therefore is likely to do so again in the future will not suffice. Here we can observe a contradiction between what the court may decide and the realities of mental health practice. We have already seen that many of the risk assessment tools which decision-makers use to determine whether P should be compulsorily admitted or not regard P’s clinical history as a potentially significant factor. It is true that Jones arose from a dispute over the interpretation of the provisions of Part III of the MHA and therefore may be of little relevance to civil commitment. However, the fact that the courts may not consider P’s historical risks as a sufficient justification for his compulsion under the MHA at least challenges the claim that ‘anything goes’ when it comes to substantiating the risk formula. Secondly, although the MHA does not specify the factors that might be indicative of risk, this does not mean that decision-makers can simply pay lip service to the concept. There must at least be something to support a decision-maker’s conclusion that P poses a risk of harm. In Bone v Mental Health Review Tribunal,238 the appellant had been convicted of manslaughter on the grounds of diminished responsibility and was subject to an indefinite restriction order under section 41 of the MHA. He applied to the tribunal for release under section 73(1)(a), which states that the tribunal should discharge a patient if it is not satisfied, inter alia, that the patient’s continued detention is necessary for the health or safety of the patient or for the protection of other persons. The tribunal ruled that the appellant should not be discharged, although it offered no substantive reasons to support this conclusion. Nolan J said that the Mental Health Review Tribunal (MHRT) (as it was then known) was under a duty to provide reasons for its decision; by failing to do so, it had committed a procedural error. It was not enough for the tribunal simply

237 238

ibid, [19] (Moses J). Bone v Mental Health Review Tribunal [1985] 3 All ER 330 (QB).

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to restate the risk formula as it appears under section 73(1)(a) as the nominal reason for its decision. Applying this principle more broadly, it seems likely that the courts will expect at least some reasons if a decision to admit a patient to hospital under the MHA is to be legitimate. A similar issue arose in R v Mental Health Review Tribunal, ex parte Clatworthy.239 Here, the applicant had been subject to a restriction order for five years following his conviction for sexual assault. In 1984, the applicant’s doctor referred his case to the MHRT, contending that there was no evidence that he was suffering from a mental disorder which warranted detention in hospital. The tribunal refused to discharge the patient but, instead of providing substantive reasons, merely restated the statutory criteria. Mann J found that the MHRT’s reasons had amounted to a ‘bare traverse’ of the circumstances in which discharge could be contemplated.240 His Lordship said that the MHT’s reasons would not make it clear to the applicant why the case advanced on his behalf had not been accepted. The MHRT’s ruling was quashed. Clatworthy shows the value that the courts place on legal certainty: patients should know where they stand throughout the course of their engagement with mental health services. This would suggest that decision-makers are precluded from reaching decisions which are devoid of any justification.241 It follows that there must be something to support a mental health practitioner’s recommendation that a patient be admitted to hospital, even though it does not have to discharge a particularly onerous evidential or legal burden.242 The Court of Appeal considered this point in R v Birch.243 Here, the appellant had been made the subject of a restriction order, despite the fact that his doctors did not think it was necessary and there was no other evidence to indicate the need for special restrictions. While the wording of section 41(1) of the MHA confers on the courts the discretion to impose restriction orders without reference to clinical evidence, the Court of Appeal held that this does not mean that the courts can impose them without any evidence at all. According to Mustill LJ, the only thing that the court had to go on was the evidence of the doctors and so there was nothing to support the court’s decision that special restrictions were necessary for the protection of the public from serious harm. While this is a slightly different risk formula from that which applies under section 3,244 the essential point that

239

R v Mental Health Review Tribunal, ex parte Clatworthy [1985] 2 All ER 699 (QB). ibid, 703–04. 241 See also R (East London and the City Mental Health NHS Trust) v Mental Health Review Tribunal [2005] EWHC 2329 (Admin); R (the Secretary of State for the Home Department) v Mental Health Review Tribunal [2005] EWHC 746 (Admin); Re X [2008] NIQB 22; R (Nottingham Healthcare NHS Trust) v Mental Health Review Tribunal [2008] EWHC 2445 (Admin); cf RH v South London and Maudsley NHS Foundation Trust [2010] UKUT 32 (AAC). 242 ex parte Pickering (n 233); R v Mental Health Review Tribunal, ex parte Booth [1998] COD 203; R (W) v Mental Health Review Tribunal [2002] EWHC 811 (Admin); DL-H v Devon Partnership NHS Trust [2010] UKUT 102 (AAC). 243 R v Birch (1990) 90 Cr App R 78 (CA). 244 This difference may be more significant in the criminal justice context; see, eg, R v Steward (April Jane) [2008] EWCA Crim 1255; R v Graciano (Fausto) [2015] EWCA Crim 980. 240

‘Risk’ and the Courts 79

decisions to deprive a patient of his liberty must have an evidential justification remains applicable. Thirdly, while mental health decision-makers are not bound by the same standards as judges, their decisions should still at least be relevant and contemporary. In R (Li) v Mental Health Review Tribunal,245 the tribunal had taken the applicant’s general attitude towards women into account when refusing his application for conditional discharge. The court held that this was an irrelevant consideration which bore no relationship to the possibility that the patient might fail to take his medication or reoffend. If this principle applies beyond the MHT, decision-makers cannot base their recommendations to admit a patient to hospital on irrelevant factors. In AB and CB v E,246 the issue arose out of the similarly worded discharge provisions of the Mental Health (Scotland) Act 1984. It was held that a patient’s discharge could only be refused where this course of action is actually, and not merely potentially, necessary for his health or safety or for the protection of others. While this case is merely persuasive, there is no reason why the courts in England would not take a similar position. This would mean that the evidential burden would be more exacting than our analysis so far suggests, albeit still lower than the civil and criminal standards. The cases show that the courts tend to steer clear of prescribing factors that are to be indicative of risk for the purposes of the MHA. Where the judiciary has expressed a view, it has typically done so on procedural grounds. For that reason, we know that the risk formula implies a lower evidential threshold, allowing decision-makers leeway when assessing patients’ risks. We also know that practitioners should not allow a patient’s clinical history to prejudice their assessments and that there must at least be something to satisfy the risk formula. Beyond these pointers, the courts seem happy to leave the question of risk to mental health professionals. For that reason, we cannot learn anything from the courts about what combinations of risk factors will legitimise the deployment of the compulsory powers. We must assume instead that they do not have any such pre-set expectations: the presence or absence of risk may thus depend on a balance between the oft-competing interests of the patient’s liberty and the public’s safety. The courts have emphasised that mental health law seeks ‘to regulate the circumstances in which the liberty of persons who are mentally disordered may be restricted and, where there is conflict, to balance their interests against those of public safety’.247 An illustration of this type of balancing exercise is W v Egdell.248 Here, the plaintiff, who had paranoid schizophrenia, sought a transfer from a secure hospital to a regional mental health unit. To support his application, the plaintiff instructed the defendant psychiatrist to complete a report on his c urrent

245

R (Li) v Mental Health Review Tribunal [2004] EWHC 51 (Admin). AB and CB v E [1987] SCLR 419. R v Secretary of State for the Home Department [1990] 1 WLR 168, 174 (McCullough J). 248 W v Egdell [1990] Ch 359 (CA). 246 247

80 Centrality of Risk and its Consequences

condition for the MHRT. The defendant duly completed a report, which concluded that W had a continuing interest in bombs and other explosives and was not at all favourable to the plaintiff, who withdrew his application for a transfer. The defendant, fearing that his conclusions about the plaintiff would therefore be overlooked, sent his report to W’s medical officer and the Department of Health. The plaintiff sought an injunction to prevent the defendant from disclosing the report and claimed delivery up of all copies. In the Court of Appeal, Bingham LJ said that the case required ‘a careful balance between the legitimate desire of the patient to regain his freedom and the legitimate desire of the public to be protected against violence’.249 The Court held that a doctor’s duty of confidence is a matter of public interest, which must be balanced against the need to protect the public from violence committed by people with mental disorders. As the defendant’s report contained relevant information which might have a bearing on when the plaintiff might be released, the public interest in its limited disclosure outweighed its interest in guaranteeing respect for the plaintiff ’s confidence.250 Egdell shows the Court engaging in a fact-specific balancing exercise which presumably mental health decision-makers are also expected to perform when assessing patients’ risks for the purposes of the compulsory powers.251 In B v Scottish Ministers, the Court of Session stressed that the notion of necessity for the protection of the public under the Scots MHA is ‘imprecise and protean’. For that reason, ‘whether a particular measure is necessary involves … an appreciation of the measure. The more restrictive [it is] for the liberty of the person concerned, the more one has to test or weigh its necessity’.252 Here too we see the Court preferring a balancing exercise rather than having to deal in absolutes. Decision-makers must therefore ensure that their decision to admit a patient to hospital is proportionate to the risks.253 The only way to achieve this is for the law to play a passive role, abandoning the pretence that there is a universal calculus of risk and instead allowing decision-makers the space to strike the balance. The ‘evidential problem’ that we have discussed may actually give decision-makers leeway to conduct careful balancing exercises and therefore ensure that their deployment of the compulsory powers is proportionate. Yet, while this seems a practical solution, it means that two patients with the same mental disorder may not necessarily share the same care and treatment experience. The absence of clarity in this respect casts further doubt on the capacity of the MHA to generate legally certain outcomes.

249

ibid, 418–19 (Bingham LJ). See especially Tarasoff v Regents of University of California 551 P.2d 334 (1967). 251 See also R (Stevens) v Plymouth City Council [2002] EWCA Civ 388. 252 B v Scottish Ministers (n 145) [26]. 253 It is worth noting that proportionality is not relevant to the MHT’s power of discharge. MHA 1983, s 72(1)(b) deals with absolutes and therefore the notion of a balance is inapplicable in this context; see Devon Partnership NHS Trust (n 242). 250

Tacit Knowledge, Risk and the Mental Health Act 81

Tacit Knowledge, Risk and the Mental Health Act If the law plays only a limited determinative role and there is little evidence that mental health practitioners are any more adept at identifying and assessing risk than anyone else, what exactly qualifies mental health decision-makers to perform this task? It may be that, just as in other areas of clinical practice, mental health decision-making relies on the ‘tacit knowledge’ of the various professionals involved. That is, it depends on decision-makers’ skills and experience rather than on their codified knowledge of objectively explicable facts. While this may ensure that risk assessments proceed according to the experience and expertise of ‘connoisseur’ decision-makers, it also means that the decision to ‘section’ P, and the process of reaching it, may be founded on a basis which is largely unknowable and immutable.

Polanyi, Tacit Knowledge and Connoisseurship The term ‘tacit knowledge’ was coined by Michael Polanyi. According to him, ‘we know more than we can tell’.254 This is because there are two kinds of knowledge: one is ‘explicit’ and is typically codified and transferrable; the other is ‘tacit’ and less amenable to articulation and communication.255 It is this dichotomy which means that we may know and recognise a person’s face in a crowd (explicit knowledge) without being able to explain how (tacit knowledge).256 In Polanyi’s view, any activity which depends on a person’s skill or artistry in order for it to be done well necessarily requires the performer or artist to possess tacit knowledge of it. For example, he argued that a particularly skilful golfer relies on his explicit knowledge of certain ‘maxims’ and his tacit knowledge of his art.257 A golfing novice may learn the rules of the game explicitly and thereby gain an insight into how it is played, but he cannot internalise the skills necessary to become a professional in the same way. This tacit dimension also explains how an inexperienced cook can follow the same recipe for a chocolate cake as a skilful pastry chef and yet bake a cake of a vastly inferior quality. It is one thing for a person to know the rules of a particular game or art but quite another for him to do it well.258 There is also something intangible about tacit knowledge: a concert pianist has ‘subsidiary awareness’ of his skill, meaning he can do it well without necessarily thinking

254

M Polanyi, The Tacit Dimension (London, Routledge & Kegan Paul Limited, 1967) 4.

255 ibid. 256 ibid.

257 M Polanyi, Personal Knowledge: Towards a post-Critical Philosophy (London, Routledge & Kegan Paul Limited, 1958) 30–31, 49–50. 258 ibid.

82 Centrality of Risk and its Consequences

about it; as soon as he brings the actions of his fingers within the realm of his ‘focal awareness’ he may not be able to continue playing to the same standard.259 Polanyi thought that the same principles apply equally to connoisseurship, contending that ‘the skill of testing and tasting is continuous with the more actively muscular skills’.260 Consequently, a person can only become an expert wine-taster or pastry chef by generating a vast amount of experience, often under the guidance of a master.261 As a rule of thumb, if an art or skill cannot be specified in detail it cannot be transmitted by prescription and therefore it relies on tacit knowledge to be done well.262 Polanyi argued that the same principles apply to medical practitioners, whose skills depend as much on the art of doing as they do on the art of knowing.263 He argued that doctors are essentially connoisseurs who must learn to recognise certain symptoms as indicators of disease or infirmity in accordance with their tacit knowledge. It is not enough for doctors to possess explicit knowledge of various conditions or diseases; they also ‘must personally know [a] symptom and … learn [it] by repeatedly being given cases for auscultation in which the symptom is authoritatively known to be present’ and compare it with cases in which the symptom is not present until they can prove their knowledge to their masters’ satisfaction.264 Medicine therefore relies on the same kind of connoisseurship as wine-tasting because in neither case has it been possible to replace an expert’s assessment with a ‘measurable grading’ capable of helping laypeople to reach the same conclusions.265 Doctors’ expertise improves the longer they are in practice through a process of trial-and-error which ultimately heightens their professional instincts. For that reason, Polanyi criticised the scientific tendency to insist on the introduction or maintenance of an ‘objectivist framework’ which would play down the ‘real and indispensable intellectual powers’ of decision-makers.266 He objected to any attempts to specify or enumerate particulars in fields which depend on tacit knowledge, arguing that the damage done by such specification ‘may be irremediable’ because it seeks to replace that knowledge with something much less nuanced.267 Indeed, Polanyi thought that attempts to codify knowledge which exists tacitly would be ‘self-defeating’ because too keen a focus on particulars would mean that decision-makers would lose sight of their essential function.268

259

ibid, 56. ibid, 54. 261 ibid, 55. 262 ibid. 263 ibid, 54. 264 ibid, 55. 265 ibid. 266 ibid, 16–17. 267 Polanyi, The Tacit Dimension (n 254) 19. 268 ibid, 34. 260

Tacit Knowledge, Risk and the Mental Health Act 83

Implicit in Polanyi’s description of tacit knowledge are the assumptions that experts simply know better than non-experts, that there is no substitute for this knowledge, and that there is no way that tacit knowledge can be learned in the same way as explicit knowledge. In the medical context, if we deny tacit knowledge exists or seek to marginalise its role, we deprive patients (among others) of the indisputable benefits of a specialist’s expertise.

Tacit Knowledge and Mental Health Decision-Making It does not require a great leap for us to apply Polanyi’s thinking in the specific context of the MHA. There are compelling parallels between the way mental health decision-makers assess and interpret patients’ risks and the way Polanyi thought a connoisseur utilises his expertise. His theory therefore provides a useful explanatory model for the way in which mental health decision-makers assess and manage patients’ risks of harm and for the absence of legalistic prescriptions in the MHA and elsewhere. The argument that mental health decision-makers would simply know what amounts to an actionable risk, in the same way a pastry chef knows what makes a good chocolate cake, is a forceful one. Risk is plainly not a species of explicit knowledge. As we have seen, it is neither codified nor readily transferrable. Mental health practitioners have to develop tacit knowledge of what a risk is, what factors might indicate the presence (or absence) of it, and how it should be assessed. This requires a high degree of professional skill which cannot be imparted simply by telling a layperson how it is done or learned didactically. It is not enough to say ‘It is a risk when X applies’ because, as we have seen, X may apply in other contexts where P may not be deemed to pose a risk at all. Mental health decisionmakers are therefore connoisseurs who are able to conclude that a patient poses a risk without necessarily being able to explain why or how they have reached that conclusion. This is not to say they are clairvoyant or possess a sixth sense: they simply develop such a finely tuned and intrinsic awareness of the indicators of risk that they may only be able to justify a decision based on a kind of professional instinct. Understanding risk for the purposes of the MHA therefore relies on decision-makers’ tacit knowledge if it is to be done well. By extension, it must also be the case that attempts to define risk, particularise its content, or determine how it should be assessed would be as counterproductive as Polanyi thought. This may explain why the MHA, its accompanying guidance and the courts have refrained from fettering decision-makers’ professional discretion. Even if it were possible to lay down definitive prescriptions of what ‘risk’ is for the purposes of the MHA, Polanyi’s theory would suggest that such an intervention in the domain of mental health professionals would diminish the significance of their expertise and thereby undermine the value and purpose of their involvement in the decision-making process. Any legalistic impulse to define, delimit and prescribe would therefore prove to be highly destructive in this field. The principal

84 Centrality of Risk and its Consequences

consequence of the c entrality of risk is that the MHA gives mental health professionals the space to deploy their tacit knowledge with few substantive legal impediments. All this allows us to posit that the assessment of risk in mental health practice depends on the ‘connoisseurship’ of mental health decision-makers. In other words, they just know a risk when they see one and may not be able to articulate why or how they have reached such a conclusion. Even where ostensibly scientific ‘actuarial’ decision-making tools exist, the selection of one tool over another may turn on a decision-maker’s tacit knowledge of which is likely to generate the best outcome in the circumstances. This is not to say that a decision-maker’s ‘sectioning’ of P can occur without any cogent reasons; as we have seen, there is an implicit expectation that, at the very least, a decision-maker should be able to justify his decision. Nor is it to say that mental health professionals deploy the compulsory powers cynically by confecting reasons to detain P in hospital. Rather, the risk assessment process depends on a methodology and considerations which are impossible to explain in the abstract. The deployment of some of the state’s most coercive powers against some of its most vulnerable citizens is therefore contingent on what may appear to be an abstruse and unpredictable process. It should be said that there are least two advantages to relying on decisionmakers’ tacit knowledge in this context. The first is that it makes sense that expert decision-makers should have the power to decide whether or not to admit P to hospital. The diagnosis, care and treatment of mental illnesses are specialist functions which must necessarily be carried out by experts with the requisite knowledge and experience. Even where doubt may be cast on their ability to assess and manage risks accurately and reliably, this should not impugn decision-makers’ expertise in mental health matters more broadly. Secondly, it introduces flexibility into the decision-making process. For example, if the MHA’s risk formula were too prescriptive it might preclude decision-makers from engaging in creative therapeutic strategies—such as ‘positive risk-taking’—thereby narrowing the scope of their professional discretion. Excessive rigidity might even render the involvement of experts completely redundant. By giving decision-makers the opportunity to employ their tacit knowledge, the MHA allows the decision-making process to be responsive to patients’ needs. However, it is also true that relying on decision-makers’ tacit knowledge is extremely problematic. It assumes that mental health decision-makers are experts at assessing the risks of harm that may be contingent on, or aggravated by, a person’s mental illness. As we have already seen, there may be cause to be sceptical about that proposition. Furthermore, because tacit knowledge is impossible to impart, the best assessors of patients’ risks must tend to be more senior and established practitioners. This would suggest that there is a direct relationship between decision-making accuracy and practitioner seniority. The accuracy of decisionmaking must therefore vary enormously across the professions. Bad practices could also easily become embedded in decision-making praxis. Because tacit knowledge

Conclusions 85

cannot be taught, these practices are likely to be difficult to dislodge. In addition, tacit knowledge foments inconsistency. Polanyi’s examples of ‘connoisseurship’ derive from pursuits such as wine-tasting, baking, sport and music. Leaving aside the obvious point that ‘sectioning’ a person under the MHA cannot fairly be categorised alongside such things, all of Polanyi’s examples would seem to accept that there may be many ways to achieve the same objective. There is also scope for disagreement among connoisseurs. This suggests that at the very least there is the prospect of inconsistency between different decision-makers or institutions, reflecting perhaps the distinct professional environments and experiences of those involved. Making the deployment of the compulsory powers contingent on such inconsistency would seem to do little to restore faith in decision-makers’ ability to reach similar conclusions about patients. As a corollary, tacit knowledge must contribute to arbitrary decisions. In Anderson v Scottish Ministers,269 Lord Clyde said that the essence of arbitrariness ‘is the lack of the restraints and controls of legal powers’.270 His Lordship took the view that if discretionary elements are embedded in a wider framework of procedural protections then there is little scope for arbitrariness. In the context of the MHA, as long as one could say that decisionmakers employ their tacit knowledge of risk within a framework of procedural safeguards then the decision-making process cannot fairly be described as arbitrary. While it may be true that the original 1983 Act contained such procedural protections, we will see in the next chapter that the amendments introduced by the MHA 2007 have diluted them somewhat. It is this overlaying of medicalistic provisions onto the existing risk-based framework that is the most troubling consequence of the MHA 2007.

Conclusions The concept of risk is a core component of the MHA’s civil commitment provisions. It is the risk that a person with a mental disorder may pose to himself or other people that provides the justification for his compulsory admission to hospital. Risk is therefore the thread that runs throughout the MHA, delineating ‘formal’ patients from their ‘informal’ and ‘voluntary’ counterparts, and the logical foundation on which the Act’s policy objectives are constructed. This chapter has shown that risk is central to the MHA and has critically examined the legal and practical consequences of that. In the chapters that follow, this book develops the argument that the amendments to the 1983 Act introduced by the MHA 2007 have amplified the significance of considerations of risk in mental health practice

269 270

[2001] UKPC D5. ibid, [70].

86 Centrality of Risk and its Consequences

and therefore weakened the law’s notional determinative potential. Understanding why these considerations are incompatible with legally certain outcomes will help to contextualise the retreat from legalism that the 2007 Act represents. Perhaps the biggest problem with ‘risk’ is that it is not clear what it means. We have seen that even outside the context of the MHA, ‘risk’ is a difficult concept to define. All one can say with any certainty is that ‘risk’ is a multifaceted concept with a wide semantic range. The word has colloquial and technical applications. Its etymology is complex. It may form many different parts of speech. The only universal characteristics which may be attributed to it are negativity and contingency. Against the backdrop of these general definitional difficulties, it is easy to see how ‘risk’ can be a vexed issue: if we cannot say what ‘risk’ means in the abstract, how can it play such a central role in the MHA and achieve legally certain outcomes? In reality, the concept of risk is in no way conducive to legal certainty. The MHA and its accompanying guidance do not define the concept. Instead, they employ a risk formula which makes it a condition of P’s compulsory admission to hospital that he poses a risk of harm to himself or other people. What factors or ingredients may be indicative of such a risk is a matter for professional decision-makers. So too is the question of how the relevant risks should be assessed. As a consequence of this lack of prescription, a wide range of factors assessed by a plethora of techniques can ostensibly justify P’s admission under the MHA. This makes it difficult to predict when, why and how a patient with mental disorder will be deprived of his liberty. The courts have been reluctant to intervene in the domain of mental health professionals. Few cases have examined the application of the risk formula where the civil commitment powers are concerned; judges have largely declined to pronounce on what they consider to be a matter for mental health professionals to resolve. All that the case law reveals is that ‘risk’ and the risk formula are not terms of art—decision-makers must give them their natural and ordinary meanings, whatever they may be. Beyond that and some other procedural guidance, the courts have only added to the confusion, for example, by suggesting that risk is a divisible concept (even where the MHA recognises no such trait), by treating risk as a matter of fact, and by implying that almost anything goes. Consequently, the evidential threshold and standard of proof which decisionmakers must discharge are low. Far from strengthening the law’s determinative capacity in this area, the courts have shown a willingness to allow professional discretion to define what is and is not an ‘operative’ risk for the purposes of the MHA. Michael Polanyi’s theory of ‘tacit knowledge’ neatly illustrates the way in which risk assessment purportedly proceeds under the MHA. Mental health law appears obliquely to assume that mental health professionals are ‘connoisseurs’ of risk, that is, they just know it when they see it. Yet, although Polanyi saw tacit knowledge as a virtuous thing, relying on it as a way of deciding whether or not someone should be deprived of their liberty would seem much less positive. Tacit knowledge in

Conclusions 87

this connection is hardly likely to be conducive to legal certainty. The p rincipal consequence of the centrality of risk in the MHA is therefore the erosion of that certainty. For all the courts’ insistence on the importance of law’s foreseeable effects and predictability, the concept of risk does little to instil these virtues in MHA processes. Following the introduction of the MHA 2007, it is now even less likely that mental health law expresses these ideals.

3 New Medicalism and the Mental Health Act 2007 Introduction The Mental Health Act (MHA) 2007 is an amending statute. As such, it retains much of the original 1983 Act’s content—including the central role that the concept of risk plays in the civil commitment process. Its main consequence has been the grafting of a range of reforms onto the existing MHA framework. These reforms include a simpler definition of ‘mental disorder’,1 a lower threshold for admission for treatment,2 Supervised Community Treatment (SCT),3 and changes to the roles of the mental health professionals eligible to take decisions under the Act.4 Taken together, these amendments have dismantled some of the legalistic obstacles that mental health professionals had to negotiate under the original 1983 Act. In having this effect, the 2007 Act has at least notionally made it easier for decision-makers to bring people with mental disorders within the scope of the compulsory powers. The history of English mental health law can be told with reference to three descriptive models: ‘legalism’, ‘medicalism’ and ‘new legalism’. As Brown explains, ‘legalistic’ mental health statutes tend to prescribe ‘due process safeguards’, which include ‘the restriction of the statutory definition of mental disorder, strict statutory criteria for detention, recognition of the right to refuse treatment and … judicial review of the decision to detain’.5 By contrast, ‘medicalistic’ legislation tends to entail ‘open-textured law that is enabling and permits maximum medical discretion within a loose framework of rules’.6 The label ‘new legalism’ is a more recent contrivance which was applied to the original 1983 Act to capture what

1

MHA 2007, ss 1–3. MHA 2007, ss 4–7. 3 MHA 2007, ss 32–36. 4 MHA 2007, ss 9–22. 5 J Brown, ‘The Changing Purpose of Mental Health Law: From Medicalism to Legalism to New Legalism’ (2016) 47 International Journal of Law and Psychiatry 1. 6 ibid, 2. 2

Introduction 89

Unsworth described as its more ‘authentically libertarian’ character.7 Since the late Victorian era, Parliament has introduced a new mental health statute approximately once every quarter of a century and each one has comported with one or other of these descriptive models.8 Throughout the twentieth century, the law oscillated between legalism (and, more recently, new legalism) and medicalism, thereby reflecting regular shifts in the underlying policy context. The 2007 Act defies such easy categorisation, a fact which suggests that the explanatory power of the three descriptive models may be at an end. This chapter’s core claim is that, following its amendment by the 2007 Act, the current MHA warrants an entirely distinct descriptive model to account for its changed content and purpose. The 2007 Act’s reforms plainly represent a departure from the new legalism which characterised the original 1983 Act. They have expanded the definition of key concepts and widened the discretion of mental health decision-makers. It is arguable, therefore, that the 2007 Act heralds a return to medicalism: it was predicated on the assumption that doctors (and other professionals) are uniquely qualified to take decisions pertaining to the care and treatment of mentally disordered patients and therefore the law should not unnecessarily interfere in the professional domain. Yet the medicalistic legislation of the mid-twentieth century was formulated on the assumption that the removal of legalistic fetters on medical discretion was the most effective way to improve health outcomes. By contrast, the aim of the 2007 Act’s reforms was to reduce or extinguish the risks of harm which were perceived to be attendant on mental disorders. It is therefore difficult to characterise the 2007 Act as a wholesale retreat to medicalism. For that reason, the 2007 Act must either sit awkwardly within one of the existing descriptive models, or it warrants one of its own. This chapter defines and develops ‘new medicalism’ as an alternative descriptive model which accounts for the post-2007 Act. A ‘new medicalistic’ mental health statute is one which promotes the exercise of professional discretion through open-textured laws for the express purpose of facilitating the control and management of risk. What matters is not the improvement of health outcomes (although compulsory interventions to manage risks will invariably have that incidental effect) but rather the reduction or elimination of risks of harm. To develop this argument, this chapter is divided into four parts. In the first, it charts the recent history of mental health law and policy in England. It shows that, prior to the 2007 Act, mental health statutes were easily compartmentalised as manifestations of legalism or medicalism. In more recent times, the policy context has become more complicated and the challenge of categorisation has grown. In its second part, this chapter describes and analyses the policy context from which the 2007 Act emerged. It reveals why and how considerations of

7 8

C Unsworth, The Politics of Mental Health Legislation (Oxford, Clarendon Press, 1987) 342. To be precise, the average period between each new statute since 1890 is 23.4 years.

90 New Medicalism and the Mental Health Act 2007

risk and public safety came to dominate the policy debates through which the 2007 Act’s reforms took shape. Third, we examine the 2007 Act by setting out and surveying that Act’s amendments to the MHA. Finally, we evaluate the 2007 Act as a descriptive exercise and make the case for ‘new medicalism’. Here, we locate ‘new medicalism’ within the tableau of the existing descriptive models and analyse the extent to which it offers a compelling description of the 2007 Act’s reforms. We will see that the ‘new medicalist’ paradigm is characterised by two things, (i) that mental health policy gives primacy to risk, and (ii) that it entails a diminution in the law’s purported determinative potential. Following the introduction of the 2007 Act, it is plain that both of these characteristics are now instantiated by the MHA.

Legalism, Medicalism and the Recent History of Mental Health Law in England According to Gostin, ‘there is perhaps no body of law which has undergone as many fundamental changes in approach and philosophy as mental health law’.9 In the 100 years to 2013, Parliament introduced no fewer than seven major statutes governing the care and treatment of people with mental disorders. Throughout that time, debates about the content and style of mental health legislation raged between those who ‘portrayed the central need as being that of subjecting psychiatric decision-making to legal regulation’ and those who ‘sought to free psychiatry from what they term the excesses of legalism’.10 These contrasting normative positions are known respectively as ‘legalism’ and ‘medicalism’ and, since the late nineteenth century, mental health law in England has reflected whichever of them has been in the ascendancy at the material time. ‘Legalism’ dictates that mental health practice ‘should be carefully limited by clear criteria and legal procedures’.11 It is also occasionally known as ‘libertarianism’ and insists that a person can only be deprived of his liberty where there is a clear legal basis for doing so.12 Its other characteristic is that it seeks to achieve ‘relatively consistent and fixed results’ in ‘reasonably equivalent factual circumstances’ through the application of legal rules.13 ‘Medicalism’, by contrast,

9 L Gostin, ‘Contemporary Social Historical Perspectives on Mental Health Reform’ (1983) 10(1) Journal of Law and Society 47, 48. 10 P Fennell, ‘Law and Psychiatry: The Legal Constitution of the Psychiatric System’ (1986) 13(1) Journal of Law and Society 35, 37. 11 Gostin, ‘Contemporary Social Historical Perspectives’ (n 9) 47. 12 JM Laing, ‘Rights versus Risk? Reform of the Mental Health Act 1983’ (2000) 8 Medical Law Review 210, 210. 13 Gostin, ‘Contemporary Social Historical Perspectives’ (n 9) 48.

Legalism, Medicalism and the Recent History of Mental Health Law in England 91

entails ‘systems based on the flexible interpretation of human needs in given situations’.14 It contends that the rigidities of legal thinking are incompatible with a field as intrinsically unpredictable as mental health.15 Sometimes known simply as ‘discretion’,16 or ‘welfarism’,17 medicalism explicitly rejects legal formalism. Implicit in the medicalist model is the assumption that there are things which the law simply cannot do.18 In Peay’s view, the distinction between legalism and medicalism ultimately rests on whether compulsory psychiatric intervention is regarded as coercion or treatment.19 That may overstate the case: proponents of traditional legalism and medicalism would probably agree that civil commitment entails the legitimate use of coercion as a means of administering medical treatment to a person suffering from a mental disorder. Perhaps a clearer distinction between the two positions rests on whether legal prescriptions or professional discretion should determine the nature and extent of patients’ interactions with mental health services. Those subscribing to legalism would argue that the law must determine whether doctors can compulsorily admit a patient (P) to hospital; medicalists would prefer mental health professionals to make that decision. The debate therefore does not revolve around what happens to a formal patient in hospital; rather, it turns on how he is admitted in the first place. Laws pertaining to the mentally ill date back to the medieval period; they are nothing new. According to Clarke, a principle of protection also justified the control of the mentally defective in the Middle Ages.20 For example, the Laws of Henry I said that ‘insane persons and evildoers of a like sort should be guarded and treated leniently by their parents’. Later, the Statute of the King’s Prerogative, passed during the reign of Edward I, authorised the Crown to take control of the property of ‘natural fools’.21 From the earliest times, English law has regarded those with mental illnesses as needful of compulsory interventions. So historically invariant is this theme that Allderidge argued that mental health policy has in effect been ‘going round in circles’ for at least 750 years: ‘there are very few, if any, ideas on the public and institutional care of the mentally disordered which have not been round at least once before’.22 Since the Act of 1744, which

14 K Jones, ‘The Limitations of the Legal Approach to Mental Health’ (1980) 3 International Journal of Law and Psychiatry 1, 2. 15 ibid, 8. 16 ibid. 17 Laing (n 12). 18 Jones, ‘The Limitations of the Legal Approach to Mental Health’ (n 14) 12. 19 J Peay, Decisions and Dilemmas: Working with Mental Health Law (Oxford, Hart Publishing, 2003) 139. 20 B Clarke, Mental Disorder in Earlier Britain (Cardiff, University of Wales Press, 1975) 61. 21 NW Walker, Crime and Insanity in England: Volume 1: The Historical Perspective (Edinburgh, Edinburgh University Press, 1968) 25. 22 P Allderidge, ‘Hospitals, Madhouses and Asylums: Cycles in the Care of the Insane’ (1979) 134 British Journal of Psychiatry 321, 321.

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comprised the first comprehensive legal code governing the detention of the insane in madhouses,23 English mental health law has located the ‘care and treatment’ of mental illnesses within an institutional context. During the nineteenth century, the County Asylum Acts 1809, 1811 and 1819 and the Lunatics Act 1845 provided the legal bases for the construction and inspection of lunatic asylums to house patients ‘dangerous to be at large’. In more recent times, the respective proponents of legalism, medicalism and, more recently, new legalism, have not challenged the consensus that compulsory commitment to an institutional setting is a core function of mental health services. In this way, the legalism–medicalism debate concerns the contemporary application of an ancient practice.

The Age of Legalism: 1890–1930 In Gostin’s view, a core characteristic of ‘traditional’ legalism is the importance it attributes to a ‘judicial determination’.24 The Lunacy Act 1890, which consolidated the Lunatics Act 1845 and its subsequent amendments, provided that ‘lunatics’ could be admitted to an asylum by a ‘reception order’, which had to be granted by a ‘judicial authority’.25 Under section 9(1) of the 1890 Act, that ‘judicial authority’ could be a Justice of the Peace, magistrate, or county court judge. According to Jones, the 1890 Act bore ‘the heavy impress of the legal mind’, although the contemporary rationale for this may have been to insulate doctors from vexatious litigation rather than to protect patients’ rights.26 In a similar vein, Caldicott argued that legalism was concerned more with avoiding unjust confinement than with treatment for mental disorders.27 Legalism was therefore a means of delineating ‘lunatics’ from the rest of society and preventing wrongful detention.28 Jones explains that while the Lunacy Act’s ambit was broad, it did not cater specifically for ‘mental defectives’—patients who had suffered from mental disorders since birth or an early age.29 The Mental Deficiency Act 1913 accounted for this by expanding the legal basis for compulsory intervention by recognising four classes of people: ‘idiots’, ‘imbeciles’, the ‘feeble-minded’ and ‘moral defectives’.30

23 K Jones, Lunacy, Law and Conscience 1744–1845: The Social History of the Care of the Insane (London, Routledge & Kegan Paul, 1955) 9–10, 31. 24 Gostin, ‘Contemporary Social Historical Perspectives’ (n 9) 47. 25 Lunacy Act 1890, s 4(1). 26 K Jones, A History of the Mental Health Services (London, Routledge & Kegan Paul, 1972) 181, 174. 27 F Caldicott, ‘Client and Clinician: Law as an Intrusion’ in N Eastman and J Peay (eds), Law Without Enforcement: Integrating Mental Health and Justice (Oxford, Hart Publishing, 1999) 76. 28 N Glover-Thomas, Reconstructing Mental Health Law and Policy (London, LexisNexis Butterworths Tolley, 2002), 29. 29 Jones, A History of the Mental Health Services (n 26) 182. 30 Mental Deficiency Act 1913, s 1.

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If a patient satisfied any of the threshold requirements under section 2 of that Act—and two medical practitioners certified his condition—he would be admitted to an institution or statutory guardianship.31 Once again, the influence of legalism is clearly evident: the 1913 Act precluded P’s compulsory admission unless there was objectively justifiable evidence that his mental defect had reduced his social functioning. In this way it exhibited another key characteristic of legalism: the inclusion of tightly authored statutory prescriptions.32

The Age of Medicalism: 1930–83 The Royal Commission on Lunacy and Mental Disorder 1924–26 recommended that medical treatment should not necessarily be contingent upon legalistic certification.33 The subsequent Mental Treatment Act 1930 introduced new ‘voluntary’ and ‘temporary’ designations.34 Voluntary patients could apply for admission to a hospital without a legal order; temporary patients were those that were likely to benefit from temporary treatment ‘but for the time being [were] incapable of expressing [themselves] as willing or unwilling to receive such treatment’.35 Those applying for such temporary treatment on behalf of a mentally disordered person had to address ‘the person in charge’ at the hospital.36 By reducing the emphasis on the judicial authority and promoting the medical gatekeeper in this way, the 1930 Act moved away from legalistic praxis. Mental health legislation was now less about judicially mandated coercion and more about clinician-led care and treatment. The embrace of medicalism continued after the Second World War. Jones argues that three ‘revolutions’ influenced mental health policy at this time. First, new drug treatments like chlorpromazine revolutionised mental health services by removing the need for practitioners to detain patients as a matter of course.37 Secondly, an ‘administrative revolution’ accelerated a de-institutionalising trend which challenged the primacy of hospital-based care and treatment.38 Thirdly, a ‘legislative revolution’ recast mental health law as an ‘enabling’ device as opposed to a coercive mechanism.39 In its report, the Percy Commission noted that there

31

ibid, ss 3 and 4. WJ Spaulding, ‘Mapping the “New Legalism” of English Mental Health Law’ (1989) 17(2) Journal of Law, Medicine & Ethics 187, 187. 33 British Journal of Nursing Editorial, ‘Royal Commission on Lunacy and Mental Disorder’ (1926) 74 British Journal of Nursing 200. 34 Mental Treatment Act 1930, ss 1–5. 35 ibid, s 5. 36 ibid, s 5(2) and sch 1. 37 Jones, A History of the Mental Health Services (n 26) 292. 38 ibid, 294. 39 ibid, 304. 32

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had been ‘great advances in medical understanding and methods of treatment of disorders of the mind … [and] great changes in our general social services … [and] in the general attitude towards coercion’.40 Its recommendations marked a radical departure from late Victorian legalism. They de-emphasised the importance of formality by recommending that all hospitals should be free to admit patients informally for any length of time without having to submit to legalistic oversight.41 The Commission also proposed that the compulsory powers should become contingent on an assessment of whether detention in hospital is ‘necessary for the patient’s own welfare or for the protection of others’.42 This would entail an assessment of risk by professional decision-makers. In addition, it insisted that a new mental health statute should put power ‘in the hands of people who have the sort of knowledge and experience needed to form a sound judgment on the questions at issue’.43 These proposals culminated in the Mental Health Act 1959, which to this day still represents the high-water mark of medicalism. The 1959 Act defined ‘mental disorder’ as ‘mental illness, arrested or incomplete development of mind, psychopathic disorder, and any other disorder or disability of the mind’.44 It extended informal admission by abolishing the 1930 Act’s requirement that P had to apply for treatment in hospital of his own free will.45 Where compulsory admission was indicated, decision-makers could recommend a patient’s admission for observation or treatment. ‘Observation orders’ had to be founded on the recommendations of two medical practitioners46 and lasted for 28 days;47 ‘treatment orders’ were subject to the same procedural requirement48 and were limited to a one-year duration period in the first instance.49 As Jones points out, the 1959 Act’s admission provisions abolished the role of the judicial authority, leaving decisions about compulsion in the hands of medical professionals.50 It also established the Mental Health Review Tribunal, thereby creating a new forum to examine the legality of detentions under the Act.51 At the same time that clinicians won greater decision-making latitude, de-institutionalised care was gaining credibility. In his seminal work, Erving Goffman described mental hospitals as ‘total institutions’ which ‘disculture’

40 Report of the Royal Commission on the Law Relating to Mental Illness and Mental Deficiency 1954–1957 (HM Stationery Office, Cmnd 169, 1957) [65]. 41 ibid, [291]. 42 ibid, [330]. 43 ibid, [390]. 44 Mental Health Act (MHA) 1959, s 4(1). 45 MHA 1959, s 5. 46 MHA 1959, s 25(3). 47 MHA 1959, s 25(4). 48 MHA 1959, s 26(3). 49 MHA 1959, s 43. 50 Jones, A History of the Mental Health Services (n 26) 317. 51 MHA 1959, s 3.

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patients and obstruct their ‘social intercourse’.52 He argued that patients derive little, if any, therapeutic benefit from detention in secure mental health units. According to Martin, various therapeutic innovations, administrative and legal changes, and more progressive professional and public attitudes, such as those elucidated by Goffman, reoriented government policy at this time in favour of ‘care in the community’.53 In its Hospital Plan of 1962, the Ministry of Health estimated that by 1975 these changes would mean that only 1.8 psychiatric beds per 1,000 people would be required (down from 3.3 per 1,000 people in 1960).54 The plan provided for an increase in the number of short-stay mental health units attached to general hospitals, which would allow patients to ‘go in and out … d uring the day and … participate in the various activities of the general community’.55 Mental health care and treatment were therefore moving beyond the institutional setting for the first time. In this way, policy-makers were able to use medicalism as a vehicle through which to achieve the improvement of patients’ health outcomes and to obtain better value for money through a programme of deinstitutionalisation.56 By toning down the law’s determinative power, medicalism allowed mental health services to achieve these objectives to an extent that would not have been possible under a legalistic framework. There is much to commend about medicalism. Jones argues that applying legal exactitudes to psychiatric practice ‘is like trying to dissect candy floss with a scalpel’.57 She says that psychiatrists cannot operate according to the same binary divisions with which lawyers are comfortable. Law is normative, regulative, judgemental, retrospective and concerned with the application of elusive concepts like ‘justice’.58 Mental health professionals, by contrast, distrust rules which can be broken, seek to explain and interpret human behaviour, and withhold judgement in the interests of understanding.59 Law cannot cure, or even fully protect, the mentally ill.60 For that reason, Jones concludes that the law should only ever provide an ‘enabling framework’ within which good practices can develop.61 Rose was even more scathing in his critique of legalism: ‘there is no epistemological privilege of legal thought which justifies it seeking to extend its hegemony by denying

52 E Goffman, Asylums: Essays on the Social Situation of Mental Patients and Other Inmates (London, Penguin Books, 1961) 15–16, 23. 53 FM Martin, Between the Acts: Community Mental Health Services 1959–1983 (Nuffield Provincial Hospitals Trust, 1984) 1. 54 National Health Service, A Hospital Plan for England and Wales (London, HM Stationery Office, Cmnd 1604, 1962) [17]. 55 ibid, [27]. 56 Department of Health and Social Security, Care in the Community: A Consultative Document on Moving Resources for Care in England (London, HM Stationery Office, 1981) [3.7]. 57 Jones, ‘The Limitations of the Legal Approach to Mental Health’ (n 14) 3. 58 ibid. 59 ibid. 60 ibid, 13. 61 ibid.

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the “objectivity” of other modes of judgment’.62 That doctors cannot formulate commonly agreed protocols or achieve consistent results is not, Rose claims, ‘grounds for denying medicine its professional status but the reverse—for it is this which underpins the claim for the special competence of the trained physician’.63 The case for medicalism is constructed on the fact that the law has limitations which prevent it from catering satisfactorily for the distinct demands of mental health practice. Its determinative potential should therefore be reduced so as to afford mental health professionals the leeway to practise according to their expertise.

New Legalism and the Mental Health Act 1983 In the 1970s, MIND, a mental health charity, launched a campaign to reform mental health law based on proposals advanced by Larry Gostin.64 According to Unsworth, Gostin’s work translated a growing scepticism of psychiatry into ‘a c oncrete rearmament of patients with stronger legal weaponry to combat the psychiatric power structure’.65 Gostin found that clinicians could misuse their powers precisely because the 1959 Act lacked the tight legalistic supervision of previous statutory regimes: The [1959] Act is largely founded upon the judgment of doctors; legal examination has ceased at the barrier of medical expertise, and the liberty of prospective patients is left exclusively under the control of medical judgments which have often been shown in the literature to lack reliability and validity.66

Gostin’s criticisms of the 1959 Act had a significant impact on mental health policy. So too did a growing body of ‘anti-psychiatry’ literature, which questioned whether mental disorders existed at all.67 While it would be misleading to suggest that policy-makers took anti-psychiatry seriously,68 Glover-Thomas

62 N Rose, ‘Unreasonable Rights: Mental Illness and the Limits of the Law’ (1985) 12(2) Journal of Law and Society 199, 209. 63 ibid, 205. 64 L Gostin, A Human Condition: The Mental Health Act from 1959 to 1975—Observations, Analysis and Proposals for Reform (London, Mind (National Association for Mental Health), 1975). 65 Unsworth (n 7) 336. 66 Gostin, A Human Condition (n 64) 35. 67 See, eg, T Szasz, The Myth of Mental Illness: Foundations of a Theory of Personal Conduct (New York, Hoeber-Harper, 1961); T Szasz, The Manufacture of Madness: A Comparative Study of the Inquisition and the Mental Health Movement (New York, Harper & Row, 1970); T Szasz, C oercion as Cure: A Critical History of Psychiatry (London, Transaction, 2007); T Szasz, ‘Mental Illness: Psychiatry’s Phlogiston’ (2001) 27 Journal of Medical Ethics 297; T Szasz, ‘Psychiatry and the Control of Dangerousness: The Apotropaic Function of the Term “Mental Illness”’ (2003) 29 Journal of Medical Ethics 227; cf MS Moore, ‘Some Myths about “Mental Illness”’ (1975) 32 Archives of General Psychiatry 1483; R Pies, ‘On Myths and Countermyths’ (1979) 36 Archives of General Psychiatry 139. 68 See, eg, P Bean, Compulsory Admission to Mental Hospitals (Chichester, John Wiley & Sons Limited, 1980) 201–02.

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implies that Szasz’s theories played a part in the revival of legalism.69 Following a White Paper in 1981,70 Parliament introduced the Mental Health (Amendment) Act 1982, whose reforms were subsequently consolidated into a new statutory regime by the Mental Health Act 1983. Although the 1983 Act was incontestably a ‘reassertion of l egalism’,71 its version differed from that which had underpinned the Lunacy Act 1890. While traditional legalism had demarcated the boundary between the mentally ill and the rest of society, the 1983 Act’s rendition recognised that formal patients have inherent rights. Gostin referred to this as the ‘ideology of entitlement’ and claimed that its basic premise is that ‘access to health and social services should be based upon enforceable rights’, as opposed to charitable or professional discretion.72 He advanced the case for this ‘new legalism’ on the basis that it is responsive ‘to the needs of the person’ without relying on ‘a superstructure of technical procedures or cumbersome legal regulations’.73 Although ‘new legalism’ derives from the same tradition as ‘legalism’, by the 1980s the latter had become a pejorative term, connoting ‘a form of frigid adherence to the letter or form of the law rather than its spirit’.74 Traditional legalism had become tainted by its association with the age of the asylum; by contrast, new legalism was imbued with the spirit of the civil rights movement. It therefore embodied a more instrumental interpretation of the law: a model which rejected pettifogging regulations in favour of provisions which protected the rights of formal patients. The legalistic character of the original 1983 Act was easy to spot. It introduced four categories of mental illness: ‘mental disorder’, ‘severe mental impairment’, ‘mental impairment’ and ‘psychopathic disorder’.75 To engage the civil commitment powers, mental health decision-makers had to certify the category of mental illness from which P was suffering. It is important to note that these definitions were wholly legalistic; they were not terms recognised by mental health professionals. They were also exclusive: P could not be admitted under the original 1983 Act by reason only of promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs.76 In addition, the so-called ‘treatability’ test under section 3(2)(b) of the original 1983 Act prevented decision-makers from using detention in hospital as an end in itself. The category of mental disorder in which P fell for the purposes of section 1(2) would have a bearing on the nature of

69

Glover-Thomas (n 28) 31. of Health and Social Security, Reform of Mental Health Legislation (London, HM Stationery Office, 1981). 71 Unsworth (n 7) 330. 72 Gostin, ‘Contemporary Social Historical Perspectives’ (n 9) 49–50. 73 ibid, 66–67. 74 Fennell (n 10) 38–39. 75 MHA 1983, s 1(2). 76 MHA 1983, s 1(3). 70 Department

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his engagement with mental health services. Patients suffering from psychopathic disorder or mental impairment could only be detained if treatment was likely to alleviate or prevent a deterioration of their condition. Even where doctors could legally admit P, Part IV of the 1983 Act protected his right to consent to, or request a second opinion for, certain specified medical treatments. The 1983 Act’s treatment safeguards are perhaps the most obvious example of the impact of the ‘ideology of entitlement’ and, by extension, new legalism. They provide a clear basis on which to distinguish the original 1983 Act from the legalism of the Lunacy Act 1890: while the latter emphasised rigorous judicial oversight, the former spoke the language of rights and entitlements. * There are three conclusions which one can draw from the recent history of mental health law in England. First, every mental health statute governing the compulsory care and treatment of people with mental disorder since the late nineteenth century has aligned with a particular descriptive model. Secondly, medicalism is a consequentialist model which diminishes the law’s determinative significance in order to allow expert decision-makers to achieve certain objectives which legal prescriptions alone cannot. By contrast, legalism is a deontological device which asserts the primacy of the individual. Medicalism is therefore a way in which policy-makers can ensure that mental health legislative frameworks complete wider social or political projects. These objectives may include the improvement of health outcomes, deinstitutionalisation, or, as we shall see, the control and management of risk. Finally, more recent policy and legal innovations have necessitated the adaptation of a descriptive model to account for a statutory framework which is not satisfactorily explained by either the ‘legalist’ or ‘medicalist’ paradigms. The ‘ideology of entitlement’, concern for patients’ rights, and changing perspectives on the role and purpose of civil commitment in the 1970s and 1980s led to a statutory framework which did not resemble those that had preceded it. The original 1983 Act therefore required its own descriptive model to capture the law’s increased sophistication and complexity. The implication of this is that other policy or legal innovations may also only be explicable with reference to a distinct descriptive model.

The Renewed Prominence of Risk: The Policy Behind the 2007 Act Why Did Risk Become a Policy Priority? It is tempting to conclude that the emphasis on risk that emerged in mental health policy during the 1990s and 2000s was simply part of a broader

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contemporary trend.77 In reality, there are two reasons why risk became a particular priority at that time. First, psychiatry and its allied professions purportedly began to develop better knowledge and understanding of the predictive value of certain risk factors. This meant that mental health professionals were increasingly conversant in the language of risk and, at least in theory, better able to tailor their clinical interventions to suit patients’ needs. Secondly, there was growing public anxiety that mental health services were not doing enough to tackle service users’ ‘risky’ behaviours.

A Better Knowledge and Understanding of the Predictive Value of Risk Factors Among Psychiatrists and Allied Professionals Prior to the original 1983 Act, there was widespread doubt that psychiatrists could predict with any accuracy the likelihood that a person with a mental disorder would cause harm to himself or other people.78 Cocozza and Steadman argued that even with a concrete definition of ‘dangerousness’ and empirical evidence suggesting that mentally disordered people are riskier than the general population, the task of predicting harmful outcomes would still be ‘formidable’.79 Only short-term clinical predictions were considered accurate to any significant degree, and only then when the prediction and the outcome were proximate in time and space.80 Most commentators invariably took the view that, in the absence of evidence of ‘specific violent or harmful acts, including the imminence and frequency of such acts and the magnitude of harm occasioned by them’, the task of predicting patients’ future dangerousness is simply too subjective to be valid.81 Others were rather more forthright: Diamond concluded candidly that any studies which suggested that psychiatrists could predict the occurrence of dangerous behaviour among mentally disordered patients were wholly ‘pseudo-scientific’.82 By the early 1990s, however, this general scepticism had given way to a grudging acceptance that some risk factors associated with P’s condition or circumstances

77 S Carter, ‘Boundaries of Danger and Uncertainty: An Analysis of the Technological Culture of Risk Assessment’ in J Gabe (ed), Medicine, Health and Risk: Sociological Approaches (Oxford, Blackwell, 1995). 78 J Monahan, The Clinical Prediction of Violence Behavior (Washington DC, US Government Printing Office, 1981); PE Mullen, ‘Mental Disorder and Dangerousness’ (1984) 18 Australian & New Zealand Journal of Psychiatry 8. 79 J Cocozza and H Steadman, ‘The Failure of Psychiatric Predictions of Dangerousness: Clear and Convincing Evidence’ (1976) 29 Rutgers Law Review 1084, 1091. 80 ER Rofman et al, ‘The Prediction of Dangerous Behavior in Emergency Civil Commitment’ (1980) 137 American Journal of Psychiatry 1061, 1063. 81 H Birns and JS Levien, ‘Dangerousness: Legal Determinations and Clinical Speculations’ (1980) 52(2) Psychiatric Quarterly 108, 115. 82 BL Diamond, ‘The Psychiatric Prediction of Dangerousness’ (1974) 123 University of Pennsylvania Law Review 75, 443, 452.

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may make adverse events more likely.83 It is worth noting that almost all of the studies which led to this reassessment focused on the predictability of mentally disordered patients’ propensity to perpetrate violence. In particular, Monahan reluctantly concluded that the relationship between mental disorder and violent behaviour ‘cannot be fobbed off as chance or explained away by other factors’.84 He noted that although it may be a myth that violence is a likely corollary of mental disorder, ‘it may still be worth noting that it is a myth that is both c ulturally universal and historically invariant’.85 Monahan found that whether the measure was the prevalence of violence among the disordered, or the prevalence of disorder among the violent, mental disorder was a ‘robust and significant’ factor.86 Subsequent studies established that certain clinical factors carry a high predictive value.87 Patients with psychopathy,88 affective disorders,89 schizophrenia90 and so-called ‘threat/control-override’ symptoms91 were found to be more likely to pose a risk to themselves or others. Other studies found that non-clinical demographic factors like gender,92 age93 and socio-economic circumstances,94 may also be pertinent to risk. Statistics showed that people with mental disorder who consumed alcohol or illicit substances were more likely to pose a threat,95 while variables like homelessness and co-present mood and post-traumatic stress

83 J Monahan, ‘Mental Disorder and Violent Behavior’ (1992) 47(4) American Psychologist 511; BG Link and A Stueve, ‘Psychotic Symptoms and the Violent/Illegal Behavior of Mental Patients Compared to Community Controls’ in J Monahan et al (eds), Violence and Mental Disorder: Developments in Risk Assessment (Chicago, IL, University of Chicago Press, 1994). 84 ibid, 511 (Monahan). 85 ibid, 513. 86 ibid, 519. 87 AM Rossi et al, ‘Characteristics of Psychiatric Patients who Engage in Assaultive or Other Fear-inducing Behaviours’ (1986) 174(3) The Journal of Nervous and Mental Disease 154. 88 RD Hare, ‘Psychopathy and Risk for Recidivism and Violence’ in N Gray et al (eds), Criminal Justice, Mental Health and the Politics of Risk (London, Cavendish Publishing Ltd, 2002). 89 MG Kennedy, ‘Relationship Between Psychiatric Diagnosis and Patient Aggression’ (1993) 14(3) Issues in Mental Health Nursing 263. 90 JW Swanson et al, ‘A National Study of Violent Behaviour in Persons with Schizophrenia’ (2006) 63 Archives of General Psychiatry 490. 91 JW Swanson et al, ‘Psychotic Symptoms and Disorders and the Risk of Violent Behaviour in the Community’ (1996) 6(4) Criminal Behaviour and Mental Health 309. 92 E Silver et al, ‘Assessing Violence Risk Among Discharged Psychiatric Patients: Towards an Ecological Approach’ (1999) 23(2) Law and Human Behavior 237. 93 J Swanson et al, ‘Violent Behaviour Preceding Hospitalisation Among Persons with Severe Mental Illness’ (1999) 23(2) Law and Human Behavior 185. 94 N Rose, ‘Governing Risky Individuals: The Role of Psychiatry in New Regimes of Control’ (1999) 5(2) Psychiatry, Psychology and Law 177. 95 BJ Cuffel et al, ‘A Longitudinal Study of Substance Use and Community Violence in Schizophrenia’ (1994) 182(12) Journal of Nervous and Mental Disease 704; M Soyka, ‘Substance Misuse, Psychiatric Disorder and Violent and Disturbed Behaviour’ (2000) 176 British Journal of Psychiatry 345; HJ Steadman et al, ‘Violence by People Discharged from Acute Psychiatric Inpatient Facilities and by Others in the Same Neighbourhoods’ (1988) 55 Archives of General Psychiatry 393; S Wright et al ‘Mental Illness, Substance Abuse, Demographics and Offending: Dual Diagnosis in the Suburbs’ (2002) 13(1) Journal of Forensic Psychiatry 35.

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disorders were also thought to increase the likelihood of violent behaviour.96 This confluence of clinical and non-clinical indicators led Hiday to argue that social factors must intervene before a person with a mental disorder will perpetrate violence.97 Clinicians’ professional bodies also began to recognise the importance of risk in psychiatric assessments. By Article 4 of its Declaration of Madrid in 1996, the World Psychiatric Association stated: ‘No treatment should be provided against the patient’s will, unless withholding treatment would endanger the life of the patient and/or the life of others. Treatment must always be in the best interests of the patient’.98 The Declaration recognised that psychiatrists can legitimately administer compulsory care and treatment to patients where the risks might warrant it. The implication was that psychiatrists had the necessary knowledge and understanding to make such a determination. As a consequence of all this, a patient’s ‘dangerousness’ was no longer regarded as extrinsic and unknowable; it became possible for decision-makers to rely on a statistical evidence base and respond accordingly. Better knowledge and understanding of risk factors therefore transformed mental health decision-making processes, leading to the adoption of the sort of actuarial decision-making tools and techniques which we discussed in the previous chapter. This is not to say that actuarial decision-making was unheard of before 1990: there was a long-held belief that actuarial tools could achieve more reliable results than unaided and notoriously-unreliable clinical judgement alone.99 Writing in 1980, Steadman found that statistical prediction of adverse outcomes is superior to clinical methods because it is more accurate and less error-prone.100 By the mid-1990s, the literature revealed a growing confidence in the utility of actuarial tools.101 This new enthusiasm was part of a broader embrace of actuarial justice which emerged in other fields around the same time.102 More recent studies have further s trengthened

96 JW Swanson et al, ‘The Social–Environmental Context of Violent Behaviour in Persons Treated for Severe Mental Illness’ (2002) 92(9) American Journal of Public Health 1523. 97 VA Hiday, ‘The Social Context of Mental Illness and Violence’ (1995) 36(2) Journal of Health and Social Behavior 122, 130. 98 (Emphasis added). 99 eg, HW Dunham and BN Meltzer, ‘Predicting Length of Hospitalisation of Mental Patients’ (1946) 52(2) American Journal of Sociology 123; PJ Hoffman, ‘The Paramorphic Representation of Clinical Judgement’ (1960) 57(2) Psychological Bulletin 116; LR Goldberg, ‘Simple Models or Simple Processes? Some Research on Clinical Judgements’ (1968) 23 American Psychologist 483; PD Werner et al, ‘Reliability, Accuracy and Decision-making Strategy in Clinical Predictions of Imminent Dangerousness’ (1983) 51(6) Journal of Consulting and Clinical Psychology 815; J Gunn and J Monahan, ‘Dangerousness’ in J Gunn and PJ Taylor (eds), Forensic Psychiatry: Clinical, Legal and Ethical Issues (Oxford, Butterworth-Heinemann, 1993) 628. 100 HJ Steadman, ‘The Right Not to be a False Positive: Problems in the Application of the Dangerousness Standard’ (1980) 52(2) Psychiatric Quarterly 84, 95. 101 DE McNiel and RL Binder, ‘Screening for Inpatient Violence: Validation of an Actuarial Tool’ (1994) 18(5) Law and Human Behavior 579. 102 eg, MM Feeley and J Simon, ‘The New Penology: Notes on the Emerging Strategy of Corrections and its Implications’ (1992) 30(4) Criminology 449; M Feeley and J Simon, ‘Actuarial Justice: The Emerging New Criminal Law’ in D Nelken (ed), The Futures of Criminology (London, Sage Publications Limited, 1994).

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the case for the use of actuarial tools by concluding that they achieve ‘statistically superior accuracy’ when compared with standard clinical approaches103 and by refining their processes.104 As we saw in chapter two, however, the reliability and accuracy of actuarial tools remains a contested issue.

Growing Public Anxiety About ‘Risky’ Mental Health Patients It was at the same time that psychiatrists’ knowledge and understanding of risk was improving that public anxiety about ‘dangerous’ people with mental disorders intensified. The fact that mental health professionals had increasing confidence in their ability to anticipate adverse outcomes challenged the paradigm of institutionalised care. The then government therefore embraced a policy of deinstitutionalisation, which culminated in the supervised discharge scheme introduced by the Mental Health (Patients in the Community) Act 1995. People suffering from mental disorders subsequently became a more noticeable fixture in the community. According to Moon, what deinstitutionalisation accomplished was the replacement of ‘concealed others’ with ‘visible others’: ‘the confinement of potential violence was exchanged for a visible (perceived) threat to safety’.105 It was for this reason that the spectre of the ‘homicidal maniac’ became a prominent feature of the popular consciousness.106 A plethora of high-profile homicide, self-harm and suicide cases involving people with mental health problems further reinforced the impression that mentally disordered patients were needful of control. Perhaps the best known case from that time is that of Jonathan Zito, who was killed at Finsbury Park tube station in 1992 by Christopher Clunis, who suffered from paranoid schizophrenia. Zito’s case led to calls for tougher mental health laws.107 As Moon points out, there were many other cases in the 1990s which together contributed to a popular sense that mental health services were failing adequately to protect the public. These included the cases of Wayne Hutchinson (a former psychiatric patient who killed two people and injured three others); Martin Mursell (a former psychiatric patient who killed his stepfather and stabbed his mother); John Rous (a mental health patient who killed a man in 1993 after warning the police of his intentions); Jason Mitchell (a mental health patient who killed three people, including his father);

103 MA Norko and MV Baranoski, ‘The State of Contemporary Risk Assessment Research’ (2005) 50(1) Canadian Journal of Psychiatry 18, 23–24. 104 J Monahan et al, ‘An Actuarial Model of Violence Risk Assessment for Persons with Mental Disorders’ (2005) 56(7) Psychiatric Services 810; J Monahan et al, ‘Developing a Clinically Useful Actuarial Tool for Assessing Violence Risk’ (2000) 176 British Journal of Psychiatry 312. 105 G Moon, ‘Risk and Protection: The Discourse of Confinement in Contemporary Mental Health Policy’ (2000) 6 Health & Place 239, 241; see also, G Grob, ‘The Paradox of Deinstitutionalisation’ (1995) 32 Society 51. 106 ibid, 243 (Moon). 107 eg, BBC News, ‘Call to Tighten Mental Health Laws’ (18 February 1998): news.bbc.co.uk/1/hi/ uk/57659.stm.

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Sarah Beynon (a patient with schizophrenia who killed her father); Lorraine Kelly (a mental health patient who committed suicide); Ben Silcock (a mental health patient who was mauled by a lion after climbing into its enclosure at London Zoo); Valerie Goldinghay (a mental health patient who committed suicide after refusing hospital treatment); Graham Close (a mental health patient; committed suicide); and Stephen Hext (a mental health patient; committed suicide).108 A media frenzy fuelled by cases such as these led to questions about whether care in the community was misconceived.109 The corrosive impact that the media can have on public attitudes to mental disorder is not a new phenomenon. Writing in 1966, Scheff argued that newspapers establish an ‘ineluctable relationship’ between mental disorder and violent and unpredictable acts.110 A more recent study has linked newspaper reporting of mental health issues with discrimination in England.111 It is clear that a similar dynamic influenced British public opinion during the 1990s. By the early 2000s, policy-makers had begun to develop populist mental health policies in response to the public’s concerns.112

How Did Risk Become a Policy Priority? Following the election of a new government in 1997, the Department of Health began to formulate plans to modernise mental health services.113 One aspect of these plans was a ‘root and branch’ review of the MHA 1983, the principal aim of which was ‘to ensure that the legislative framework supports modern mental health care’.114 In 1998, the Department of Health commissioned an expert committee to give the government advice on how it should reform mental health legislation so as to ‘balance the need to protect the rights of individual patients and the need to ensure public safety’.115 The committee, chaired by Professor Genevra Richardson, proposed rooting a new Mental Health Act in the principles

108

Moon (n 105) 244. Daily Mail, ‘Freed to Kill in the Community’ (2 July 1993); Daily Mirror, ‘Failed: Scandal of Schizophrenics Freed to Kill …’ (26 September 1995); see also, R Daw, ‘The Mental Health Act 2007: The Defeat of an Ideal’ (2007) 16 Journal of Mental Health Law 131, 132. 110 TJ Scheff, Being Mentally Ill: A Sociological Theory (Chicago, IL, Aldine Atherton, 1966) 73; see also HJ Steadman and JJ Cocozza, ‘Selective Reporting and the Public’s Misconception of the Criminally Insane’ (1978) 41(4) The Public Opinion Quarterly 523. 111 A Thornicroft et al, ‘Newspaper Coverage of Mental Illness in England 2008–2011’ (2013) 202 British Journal of Psychiatry s 64. 112 See, eg, M Petrunik, ‘The Politics of Dangerousness’ (1982) 5(3-2) International Journal of Law and Psychiatry 225. 113 Department of Health, Modernising Mental Health Services: Safe, Sound and Supportive (London, Stationery Office, 1998). 114 National Health Service, Modern Standards and Service Models: Mental Health (London, Stationery Office, 1999) 9. 115 Department of Health, Report of the Expert Committee: Review of the Mental Health Act 1983 (London, Stationery Office, 1999) 1, [1.1]. 109 eg,

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of patient autonomy and non-discrimination.116 It also recommended that future legislation encompass a predominantly legalistic framework: ‘Deprivations of liberty must be expressly provided for … or necessarily implied for the purposes of achieving a clinical objective.’117 The committee concluded that any new Mental Health Act must primarily be a ‘health measure’118 which simultaneously protects patients’ rights.119 It is easy to forget how radical the Richardson committee’s proposals were— not least because they demonstrated that there was nothing inevitable about the prioritisation of risk in mental health policy during the 1990s. The committee’s report conceived of a wholly new statutory framework that would determine whether patients with mental disorder should receive compulsory care and treatment by reference to their decision-making capacity. It also elevated considerations of patients’ health over concerns about risk, dangerousness, public safety, and so on. In this way, its recommendations departed from the centrality of risk which had characterised mental health legislation for so long and countered the broader policy narrative that was taking hold at the time. The committee’s proposed framework provided that patients with mental disorder who require a mental health assessment but who neither co-operate nor possess the capacity to consent would be subject to one on a compulsory basis.120 Had it been adopted, patients’ decision-making capacity would have replaced risk as the pivot around which the compulsory powers turned.121 The committee’s support for a patient-focused statutory scheme sought to answer some of the criticisms which a number of contemporary commentators had directed at the original 1983 Act. For example, Campbell and Heginbotham had argued that the 1983 Act’s risk formula conflated ‘paternalism’, which they saw as a legitimate basis for intervention where P lacks capacity, and ‘protectionism’, which was not.122 They argued that the original MHA rendered people with mental disorder vulnerable to detention solely because it treated the interests of the wider community as being at least on a par with those of the patient.123 They recommended that the civil commitment powers should operate with reference to P’s capacity and leave the question of whether a person is dangerous or not for the criminal law.124 Campbell later developed this argument further by contending that social control was ‘conceptually and practically distinct’ from medical treatment.125 How ‘risky’ a person 116

ibid, [2.1], [2.3], [2.5]. ibid, [3.28]–[3.29]. ibid, [2.3]. 119 ibid, [3.7]. 120 ibid, [5.6]. 121 ibid, [5.102]. 122 T Campbell and C Heginbotham Mental Illness: Prejudice, Discrimination and the Law (Aldershot, Dartmouth, 1991) 98, 125–27. 123 ibid, 113. 124 ibid, 238–39. 125 TD Campbell, ‘Mental Health Law: Institutionalised Discrimination’ (1994) 28 Australian & New Zealand Journal of Psychiatry 554, 555. 117 118

The Renewed Prominence of Risk: The Policy Behind the 2007 Act 105

may be could have everything or nothing to do with his mental health.126 Therefore, risk should be removed from legal definitions of mental illness; if compulsory interventions to pre-empt harm are to be justifiable then they should apply equally to all persons regardless of their health status.127 If arguments in favour of such a general policy of preventive detention, or ‘social defence’,128 seem unpalatable, that was Campbell’s point: why should the MHA essentially permit this for people with mental disorder alone? Rosenman went even further, arguing that mental health law is a historical anachronism that ‘should not exist in a modern liberal state’.129 As Szmukler and Holloway would later insist, compulsory care and treatment ‘should find no place in a mental health act’.130 Yet, Richardson envisaged that considerations of risk would continue to play an important role in the statutory framework. Where P has capacity but refuses the care or treatment of mental health services, Richardson proposed that decision-makers could overrule his refusal where there is ‘a substantial risk of serious harm to the health or safety of the patient or to the safety of other persons’. Consistent with previous mental health legislation, the Richardson framework would have retained a ‘risk formula’. This meant that Richardson’s MHA would not comport with the views of critics like Campbell and Heginbotham or Szmukler and Holloway by abandoning such discriminatory provisions altogether. However, Richardson did insist that future mental health law would ‘need to define [its] key concepts’,131 which presumably would include ‘risk’. The committee’s report said that it would ‘be essential to indicate the nature of risk assessment required’, possibly by introducing a ‘standard risk assessment f ormat’.132 Even where Richardson’s proposals did not go as far as critics of the original 1983 Act might have liked, they were still incontestably legalistic in character and formulated on the basis that they would reinforce patients’ rights. The government’s response to the Richardson committee’s proposals was lukewarm. In a consultation paper published in 1999, the Department of Health expressed particular concern about the ‘small minority’ of people with serious mental disorders who are ‘unwilling or unable to seek the care and treatment they need voluntarily’.133 Policy-makers were convinced that the compulsory powers

126 Campbell and Heginbotham (n 122) 98; see also, G Szmukler and F Holloway, ‘Mental Health Legislation is now a Harmful Anachronism’ (1998) 22 Psychiatric Bulletin 662, 664. 127 Campbell (n 125) 557. 128 M Ancel, Social Defence: A Modern Approach to Criminal Problems (London, Routledge & Kegan Paul, 1965). 129 S Rosenman, ‘Mental Health Law: An Idea Whose Time has Passed’ (1994) 28 Australian & New Zealand Journal of Psychiatry 560, 565. 130 G Szmukler and F Holloway, ‘Reform of the Mental Health Act: Health or Safety?’ (2000) 177 British Journal of Psychiatry 196, 198. 131 Report of the Expert Committee (n 115) [5.103]. 132 ibid. 133 Department of Health, Reform of the Mental Health Act 1983: Proposals for Consultation (London, Stationery Office, CM 4480, 1999) ch 2, [3].

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should prioritise the safety of patients and the public134 and should therefore depend on the assessment of risk.135 By 2000, the Department of Health’s scepticism about the Richardson proposals and preference for a risk-centric alternative had hardened into government policy. A White Paper proposed new legislation to allow those patients posing ‘a significant risk of serious harm to others’ to be detained ‘in a therapeutic environment where they can be offered care and treatment to manage their behaviour’.136 The difference in the language between the Richardson committee’s report and the government’s policy shows the extent of their divergence: whereas the former spoke of legislation guaranteeing ‘a system of patients’ rights’,137 the latter envisaged a statutory framework in which considerations of risk ‘always take precedence’.138 From the government’s point of view, mental health legislation had two objectives: (i) to ensure that those who are seriously ill receive appropriate health care, and (ii) to protect the public from the behaviour of mentally disordered people who may pose a risk to its safety.139 Consequently, it proposed a broader definition of ‘mental disorder’,140 justified on the basis that narrow criteria are more likely to preclude access to compulsory care and treatment,141 and sought to enhance the law’s emphasis on risk through a revised formula which referenced the ‘risk of serious harm’.142 In a second White Paper, the government explicitly sought to tackle what it identified as the ‘problem’ of so-called ‘dangerous and severely personality disordered’ patients (DSPD),143 ‘a small … number of individuals with mental disorder … who are characterised primarily by the risk that they present to others’.144 Because DSPDs did not fall easily within the categories of mental disorder which appeared in section 1(2) of the original 1983 Act, patients suffering from them were effectively placed beyond the reach of compulsory mental health services. The government proposed that a new MHA be drafted in such a way as to overcome such legalistic obstacles. To achieve this, it planned to abolish the ‘narrow concept’ of treatability and replace it with a new test which would permit the detention of ‘dangerous’ patients ‘for as long as they pose a risk to others as a result of their mental disorder’.145

134

ibid, ch 3, [4]. ibid, ch 5, [6]. 136 HM Government, Reforming the Mental Health Act: Part I: The New Legal Framework (Stationery Office, Cm 5016-I, 2000), [1.15]. 137 Report of the Expert Committee (n 115) [3.7]. 138 Reforming the Mental Health Act: Part I (n 136) [2.16]. 139 ibid, [1.13]. 140 ibid, [3.3], [3.4]. 141 ibid, [3.5]. 142 ibid, [3.15]. 143 HM Government, Reforming the Mental Health Act: Part II: High Risk Patients (London, Stationery Office, Cm 5016-II, 2000) [1.8]. 144 ibid, [1.3]. 145 ibid, [2.12], [3.2]. 135

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The contrast between Richardson’s recommendations and the government’s policy is stark. Indeed, the government even appeared to contradict its own position by proposing reforms that were inconsistent with the Department of Health’s stated aim of ‘[ensuring] health and social services promote mental health and reduce the discrimination and social exclusion associated with mental health problems’.146 As Szmukler pointed out, the policy emphasis on risk was at odds with these more progressive goals.147 The resulting Mental Health Bills in 2002148 and 2004149 revealed the full extent of the government’s preoccupation with this objective. While they both ultimately failed to reach the statute book, both Bills sought to cement risk as a ‘relevant condition’ for detention. Had it become law, the 2002 Bill would have introduced four conditions for compulsion, one of which was to be a revised risk formula which would have cemented the centrality of risk in mental health decision-making.150 The 2004 Bill adopted a substantially similar approach.151 It is clear that the perceived risk to public safety was the main ‘mischief ’ which the Bills sought to tackle and that this objective warranted a comprehensive new statutory framework. In 2006, the government launched its third attempt in four years to reform mental health law. This time, after the frustrations of the 2002 and 2004 Bills, the Mental Health Bill 2006 sought merely to amend the 1983 Act. Contemporary records of Parliamentary Public Bill Committee proceedings in the House of Commons shed light on the government’s motivation for its reforms. Rosie Winterton MP, then a minister of state at the Department of Health, explained that the government wanted to introduce a simpler definition of ‘mental disorder’ to replace that which the original 1983 Act had employed. She claimed that the original definition, with its four legalistic categories of mental disorder, amounted to a ‘legal distraction’ which was responsible for ‘arbitrary and unnecessary distinctions between patients’.152 The minister believed that the decision to ‘section’ someone should be determined ‘by [the] patient’s needs and the degree of risk posed by their disorder, not by the particular legal label applied’.153 The simpler definition of ‘mental disorder’ was plainly the product of a rejection of (new) legalism. Yet, interestingly, Ms Winterton did not believe that the change would ‘broaden the definition [of mental disorder or] bring more people into it’,154 suggesting that

146

Modern Standards (n 114) 14. Szmukler, ‘A New Mental Health (and Public Protection) Act’ (2001) 322 British Medical Journal 2, 3. 148 Department of Health, Draft Mental Health Bill 2002 (London, Stationery Office, Cm 5538-I, 2002). 149 Department of Health, Draft Mental Health Bill 2004 (London, Stationery Office, Cm 6305-I, 2004). 150 Draft Mental Health Bill 2002 (n 148) cl 6(3)(a). 151 Draft Mental Health Bill 2004 (n 149) cl 9. 152 Mental Health Bill Deb 24 April 2007, col 15. 153 ibid (emphasis added). 154 ibid, col 18. 147 G

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the government regarded the abolition of the categories as a mere simplification rather than a fundamental reform. The related proposal to abolish the ‘treatability’ test led to clashes with members of the opposition. Tim Loughton MP, speaking against the introduction of an alternative ‘appropriate treatment’ test, said that removing the treatability requirement ‘is to permit indefinite preventive detention and to change the law from a health measure to one of social control’.155 In reply, the minister emphasised that the treatability test had ‘effectively excluded a number of people benefiting from the treatment they need’.156 The proposed reforms were therefore not motivated by a desire to widen the scope of the civil commitment powers; rather, their rationale was to remove the technicalities which had purportedly precluded access to services. Perhaps the most telling exchanges occurred in relation to clause four of the 2006 Bill, which the opposition had inserted into the text in the House of Lords. The clause contained an ‘impaired decision-making’ test and sought to amend section 2 and 3 of the original 1983 Act in order to make P’s admission to hospital contingent on his decision-making capacity. According to the opposition’s proposal, if, because of his mental disorder, P’s ability to make decisions about the provision of medical treatment were ‘significantly impaired’ then his admission to hospital would be legitimate, subject to the other requirements of sections 2 and 3. While the amendment was eventually voted down in the House of Commons,157 Hansard reveals why the government preferred a framework in which considerations of risk continued to take precedence. Ms Winterton opposed the impaired decision-making test because it ‘fundamentally changes the nature of the [proposed] legislation’, the primary focus of which should be ‘patients’ needs and the risks posed by their mental disorders’.158 The minister pointed out that under the original 1983 Act, if P retains capacity but a psychiatrist believes he poses a risk then compulsion can be justified; clause 4, however, would take that ‘trump’ away.159 She pointed out that the Bill aimed to continue a ‘long-standing principle’ which dated from the 1959 Act, whereas the opposition was seeking to introduce ‘a new test that, by its nature, would deny some people medical treatment.’160 Crucially, the minister insisted that the Bill ‘is about the use of clinical discretion’ based on ‘whether the person is a risk to themselves or to other people’.161 She saw the opposition’s impaired decision-making test as a fetter on that discretion. The government therefore underlined the importance of clinical discretion in the decision-making process, further amplifying its preference for a departure from (new) legalism.

155

Mental Health Bill Deb 1 May 2007, col 142. ibid, col 154. 157 Mental Health Bill Deb 26 April 2007, col 120. 158 ibid, col 80. 159 ibid, col 81. 160 ibid, col 88. 161 ibid, col 89. 156

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The 2006 Bill eventually became the MHA 2007. Although much less ambitious than the Bills that preceded it, the government’s overriding preoccupation had remained consistent throughout: reform was essential if the law was to protect the safety of patients and the public.162 The 2007 Act was therefore shaped according to that objective. It is difficult to know whether the government saw its proposals as radically different from the Richardson committee’s ideas. Government spokespeople in Parliament were seemingly adamant that the Bill struck the right balance between patients’ rights and public safety. In its first White Paper, the government called for a statute ‘that will enhance patient rights, assist in the delivery of high quality services, and provide the necessary support for the small number of people with mental health problems who may pose a risk of serious harm to others’.163 While risk was the principal driver, the White Paper insisted that the compulsory powers should ‘otherwise reflect the best interests of the patient’.164 Viewed in this way, perhaps it is misleading to interpret the respective positions of the Richardson committee and the government as mutually exclusive. There was a degree of overlap. For that reason, it is simplistic to argue that there was a ‘battle of ideas’ between polarised policy positions; instead, the battle was over which agenda would be the principal driver of reform. The enactment of the 2007 Act meant that public safety had had a greater influence on mental health policy than did concerns about patients’ rights, improved mental health outcomes, and discrimination.

The Reforms of the Mental Health Act 2007 The 2007 Act introduced nine discrete reforms: it (a) simplified the MHA’s definition of ‘mental disorder’; (b) substituted an ‘appropriate treatment’ test for the ‘treatability’ test; (c) introduced SCT; (d) redefined the roles of the various mental health professionals authorised to operate under the MHA; (e) placed a duty on the Secretary of State to insert a statement of ‘fundamental principles’ into the MHA Code of Practice; (f) introduced new rules governing referrals to Mental Health Tribunals (MHTs); (g) created new special safeguards for Electroconvulsive Therapy (ECT); (h) changed the rules on the appointment of nearest relatives (NRs); and (i) established ‘independent mental health advocates’ (IMHAs). Admittedly, some of the 2007 Act’s reforms were more momentous than others. The insertion of the ‘appropriate treatment’ test effectively rewrote the criteria for civil commitment. By contrast, the amendments to the rules on

162

HC Deb 19 June 2007, col 1346 (Rosie Winterton MP). Reforming the Mental Health Act: Part I (n 136) [8.1]. 164 ibid, [2.16]. 163

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the appointment of NRs made minor changes which permit patients to nominate their own NRs and reflect the equal status of civil partners. One cannot fairly say that the minor changes in the latter example significantly altered the workings of the MHA; at most, they brought the Act’s processes into line with changes in other areas of the law. We will revisit the issue of the relative magnitude of the 2007 Act’s reforms later.

A Simpler Definition of ‘Mental Disorder’ Section 1 of the 2007 Act removed the categories of ‘mental disorder’, ‘severe mental impairment’, ‘mental impairment’ and ‘psychopathic disorder’ from section 1(2) of the 1983 Act, along with their accompanying legalistic definitions. In their place, it inserted a new, simpler definition of ‘mental disorder’: ‘“mental disorder” means any disorder or disability of the mind and “mentally disordered” shall be construed accordingly’.165 The definition does not, however, specify what will qualify as a ‘disorder or disability of the mind’, in effect creating a diallelon which sheds no light on the limits of ‘mental disorder’ under the amended MHA. What constitutes a ‘disorder or disability of the mind’ is therefore a matter for the relevant decision-makers. The only limit which the 2007 Act imposes on decision-makers’ discretion in this regard relates to learning disability. Section 2 of the 2007 Act inserted section 1(2A) into the MHA, which states that a person with a learning disability shall not be considered by reason of that disability to be suffering from a mental disorder ‘unless that disability is associated with abnormally aggressive or seriously irresponsible conduct’. By ‘learning disability’, the MHA means ‘a state of arrested or incomplete development of the mind which includes significant impairment of intelligence and social functioning’.166 Beyond this restriction, the 2007 Act has installed what amounts to an open-ended definition of ‘mental disorder’. This inclusive approach is also evident in the shorter list of behaviours or conduct which is excluded from the ambit of the MHA. Section 3 of the 2007 Act removed ‘promiscuity’, ‘immoral conduct’ and ‘sexual deviancy’ from the list of exclusions which appeared under section 1(3) of the MHA, leaving only dependence on alcohol or drugs outside the reach of the compulsory p owers.167 In addition to its simplification of the definition of ‘mental disorder’, the 2007 Act has expanded the types of behaviour or conduct which constitute legitimate occasions on which to deploy the compulsory powers.

165

MHA 1983, s 1(2) (as amended by MHA 2007, s 1(2)). MHA 1983, s 1(4) (as inserted by MHA 2007, s 2(3)). 167 MHA 1983, s 1(3) (as amended by MHA 2007, s 3). 166

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The ‘Appropriate Treatment’ Test The 2007 Act abolished the ‘treatability’ test which appeared in section 3(2)(b) of the original 1983 Act.168 In its place, section 4(2)(b) of the 2007 Act inserted section 3(2)(d) into the MHA, which renders admission for treatment contingent on the availability of ‘appropriate treatment’. According to section 3(4) of the MHA, this means ‘medical treatment which is appropriate in [P’s] case, taking into account the nature and degree of the mental disorder and all other circumstances of his case’.169 As a consequence of the simpler definition of ‘mental disorder’, the ‘appropriate treatment’ test applies to all patients subject to admission for treatment. Furthermore, the same wording replaces the ‘treatability’ test throughout the entire MHA, meaning that the availability of ‘appropriate treatment’ is now the benchmark against which the legitimacy of compulsory admission is determined across the board.170 This has also changed some of the procedural requirements relating to the authorisation of treatment under Part IV of the MHA.171 The ‘appropriate treatment’ test constitutes a lower threshold for action than did the former ‘treatability’ test. This is clear from the 2007 Act’s amendments to section 145 of the MHA.172 Originally, section 145(1) said that ‘medical treatment’ includes nursing and care, habilitation and rehabilitation under medical supervision. It is now taken to refer to ‘nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care’—a broader definition.173 Moreover, section 145(4), inserted by section 7(3) of the 2007 Act, specifically states that ‘medical treatment’ shall be construed so as to refer to treatment ‘the purpose of which is to alleviate, or prevent a worsening of, the disorder or one of more of its symptoms or manifestations’. This means that ‘medical treatment’ is no longer solely construed as treatment likely to alleviate or prevent a deterioration of P’s condition. The Code of Practice makes it clear that ‘appropriate treatment’ is a lower standard than ‘treatability’: ‘medical treatment may be for the purpose of alleviating … a mental disorder even though it cannot be shown in advance that any particular effect is likely to be achieved’.174 For example, the Code says that nursing and day-to-day care ‘in a safe and secure therapeutic environment with a structured regime’ falls within the ambit of appropriate treatment.175 Provided that

168

MHA 2007, s 4(2)(a). As inserted by MHA 2007, s 4(3). 170 MHA 1983, ss 20(4), 37(2)(a)(i), 45A(2)(c), 47(1)(c), 72(1)(b)(iia), 73(1)(a), and 145(1AB) (as amended or inserted respectively by MHA 2007, ss 4(4), 4(5), 4(6), 4(7), 4(8), 4(9) and 4(10)). 171 MHA 1983, ss 57(2)(b) and 58(3)(b) (as amended respectively by MHA 2007, ss 6(2)(a) and 6(2)(b)). 172 MHA 2007, s 7. 173 MHA 1983, s 145(1) (as amended by MHA 2007, s 7(2)). 174 Department of Health, Code of Practice: Mental Health Act 1983 (London, TSO, 2015) [23.4]. 175 ibid, [23.17]. 169

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decision-makers rely, in good faith, on a course of treatment recommended for the purposes of alleviating, or preventing a deterioration in, P’s m ental disorder, this will be enough to satisfy the ‘appropriate treatment’ requirement.

Supervised Community Treatment (SCT) SCT is authorised and administered through the Community Treatment Order (CTO), a new legal instrument which provides a legitimate basis for formal patients to receive care and treatment as part of a structured regime in the community. P’s liability to be detained in a hospital in pursuance of an application for admission for treatment under section 3 of the MHA is a necessary condition of SCT.176 It is therefore not possible for decision-makers to use CTOs to convert voluntary or informal patients into formal patients. According to the Code of Practice, the purpose of a CTO is ‘to allow suitable patients to be safely treated in the community rather than under detention in hospital, and to provide a way to help prevent relapse and any harm—to the patient or to others—that this might cause’.177 SCT is also intended ‘to help patients to maintain stable mental health outside hospital and to promote recovery’.178 The 2007 Act establishes the SCT regime in sections 32–36 inclusive, which inserted a significant number of new provisions into the MHA. CTOs are distinguishable from leave of absence under section 17 of the MHA, which section 33 of the 2007 Act suggests should not normally exceed seven consecutive days.179 Where P is currently detained in hospital pursuant to section 3, his responsible clinician may order his discharge onto a CTO.180 The effect of such an order is that P becomes a ‘community patient’, that is, he is no longer ‘liable to be detained’ for the purposes of the MHA (although his original admission for treatment still technically remains ‘live’ while the order is in force).181 The ‘community treatment period’ begins on the day on which the CTO is made and lasts for six months.182 It can also be renewed in accordance with the same principles which apply to extensions of durations of authority under the MHA more broadly (ie, for an initial period of six months and then annually thereafter).183 The CTO will cease to apply where P is discharged for the purposes of sections 23 or 72 of the MHA; where the original application for admission for treatment ceases to have effect; or

176 177

MHA 1983, s 17A(2) (as inserted by MHA 2007, s 32). Code of Practice (n 174) [29.5].

178 ibid. 179

MHA 1983, ss 17(2A) and 17(2B) (as inserted by MHA 2007, s 33). MHA 1983, ss 17A(1)–(3) (as inserted by MHA 2007, s 32). 181 MHA 1983, s 17D (as inserted by MHA 2007, s 32). 182 MHA 1983, s 20A(1) (as inserted by MHA 2007, s 32). 183 MHA 1983, s 20A(3) (as inserted by MHA 2007, s 32). 180

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where the CTO is revoked.184 If the CTO expires then P is deemed to be discharged absolutely as a formal patient.185 In order to discharge P onto a CTO, his responsible clinician must certify that the ‘relevant criteria’ are met and secure the written agreement of an approved mental health professional (AMHP).186 According to section 17A(5), the ‘relevant criteria’ are: a. the patient is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment; b. it is necessary for his health or safety or for the protection of other persons that he should receive such treatment; c. subject to his being liable to be recalled as mentioned in paragraph (d) below, such treatment can be provided without his continuing to be detained in a hospital; d. it is necessary that the responsible clinician should be able to exercise the power to recall the patient to hospital; and e. appropriate medical treatment is available for him. Readers will note the commonalities between these criteria and the criteria for admission to hospital. Section 17A(6) of the MHA requires P’s responsible clinician to consider ‘what risk there would be of a deterioration of the patient’s condition if he were not detained in a hospital’. Assuming that P’s case satisfies the ‘relevant criteria’, the responsible clinician can discharge him onto a CTO. According to section 17B, a CTO will specify conditions that P will make himself a vailable for medical examination at certain times.187 P’s responsible clinician may also impose further conditions on P’s CTO if she thinks them necessary or appropriate for the purposes of, among other things, preventing the risk of harm to P’s health or safety, or protecting other people.188 In any case, P’s responsible clinician may by order in writing vary189 or suspend190 any conditions specified in a CTO. Once he has been discharged onto a CTO, the treatment of a community patient proceeds according to a distinct set of rules inserted into the MHA by section 35 of the 2007 Act. According to the new ‘Part 4A’ of the MHA, which comprises sections 64A–64K, P’s clinical team can administer medical treatment to him for his mental disorder while he is a community patient subject to certain conditions. A clinician cannot administer medical treatment to an adult

184

MHA 1983, s 17C (as inserted by MHA 2007, s 32). MHA 1983, s 20B (as inserted by MHA 2007, s 32). 186 MHA 1983, s 17A(4) (as inserted by MHA 2007, s 32). 187 MHA 1983, s 17B(3) (as inserted by MHA 2007, s 32). 188 MHA 1983, s 17B(2) (as inserted by MHA 2007, s 32). 189 MHA 1983, s 17B(4) (as inserted by MHA 2007, s 32). 190 MHA 1983, s 17B(5) (as inserted by MHA 2007, s 32). 185

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c ommunity patient unless she has authority to do so.191 At its simplest, she will have that authority where P has capacity to consent to the treatment and duly does so.192 If P refuses or withdraws his consent for the relevant treatment, the clinician loses the authority to administer it to him and this would constitute grounds to recall P to hospital. There is a clear distinction here between patients with capacity detained under section 3 of the MHA and community patients: while section 63 of the MHA permits doctors to administer medical treatment to the former regardless of whether or not they consent to it, Part 4A prohibits involuntary treatment of patients in the community—what Lawton-Smith has colourfully described as the ‘injection over a kitchen table’ scenario.193 Where a community patient lacks capacity, a clinician will only have authority to administer medical treatment to him if (a) she has no reason to believe that P objects to the treatment, or (b) she has reason to believe P so objects, but it is not necessary to use force against P in order to give the treatment.194 In cases of emergency, she can administer medical treatment to a community patient lacking capacity where that treatment is ‘immediately necessary’.195 In these circumstances, section 64G(4) of the MHA allows the clinician to deploy force against P if necessary, but only where the treatment (a) needs to be given in order to prevent harm to P, and (b) the use of such force is a proportionate response to the likelihood and seriousness of that harm. If P’s responsible clinician is of the opinion that (a) P requires medical treatment in hospital for his mental disorder, and (b) there would be a risk of harm to the health or safety of P or to other persons if P remained in the community, she may recall P to hospital.196 Once P is recalled, he can be released back into the community in accordance with the CTO within 72 hours and must in any case be released by the expiry of that period. However, if, during that time, P’s responsible clinician revokes the CTO then P will lose his eligibility to be re-released.197 Revocation occurs when the responsible clinician makes a written order to that effect.198 She can do this if (a) she is of the opinion that P’s case satisfies the criteria for admission for treatment under section 3(2) of the MHA, and (b) an AMHP agrees with her decision and approves the revocation of the CTO.199 Once P’s CTO

191

MHA 1983, s 64B(2)(a) (as inserted by MHA 2007, s 35). MHA 1983, s 64C(2)(a) (as inserted by MHA 2007, s 35). 193 Simon Lawton-Smith, Briefing: Mental Health Act 2007 (King’s Fund, December 2008) 4: www. kingsfund.org.uk/sites/files/kf/briefing-mental-health-act-2007-simon-lawton-smith-kings-funddecember-2008.pdf. 194 MHA 1983, s 64D(4)(a) and (b) (as inserted by MHA 2007, s 35). 195 MHA 1983, s 64G(3) (as inserted by MHA 2007, s 35); treatment is ‘immediately necessary’ if, among other things, it is ‘to save the patient’s life’ or ‘prevent a serious deterioration of the patient’s condition and is not irreversible’ (see MHA 1983, s 64G(5)). 196 MHA 1983, s 17E(1)(a) and (b) (as inserted by MHA 2007, s 32). 197 MHA 1983, s 17F(5) (as inserted by MHA 2007, s 32). 198 MHA 1983, s 17F(4) (as inserted by MHA 2007, s 32). 199 ibid. 192

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is revoked, he reverts back to being liable to be detained for the purposes of the MHA and section 6(2) of the 1983 Act has effect as if P had never been discharged from hospital.200

The Redefining of Professional Roles The original 1983 Act conferred decision-making authority on registered medical practitioners and ‘approved social workers’ (ASWs). It therefore divided decision-making competences between practitioners from the medical and social models, creating a system of checks-and-balances on professional power. P’s compulsory admission to hospital required an application, invariably made by an ASW, and medical recommendations, which were supplied by two doctors. As is still often the case today, one of these recommendations would be given by a consultant p sychiatrist; the other would ideally come from a doctor with a previous acquaintance with P, for example, his general practitioner (GP).201 The ASW was not medically qualified; instead, she was an officer of a local social services authority appointed to act as an approved social worker for the purposes of the MHA.202 In theory, this division of competences meant that decision-makers could effectively veto P’s compulsory admission, thereby preventing the abuse of professional power. The ‘sectioning’ process prescribed by the original 1983 Act therefore depended on a working partnership between decision-makers representing distinct professional backgrounds. The 2007 Act redefined the roles and qualifying requirements of the various mental health professionals eligible to take decisions under the MHA. First, it has abolished ASWs and replaced them with AMHPs.203 In changing the professional designation in this way, the 2007 Act has extended the range of professionals who can qualify as AMHPs, meaning that the role is no longer limited to social workers. This is not to say that registered medical practitioners can cross-qualify as AMHPs; the MHA continues to preclude that possibility and preserve at least a notional boundary between the social and medical models.204 However, the Mental Health (Approved Mental Health Professionals) (Approval) (England) Regulations205 now permit registered first-level nurses, occupational therapists and chartered psychologists to be approved as AMHPs for the purposes of section 114 of the MHA. This expansion of the pool of professionals from which AMHPs

200

MHA 1983, s 17G(2) (as inserted by MHA 2007, s 32). MHA 1983, s 12(2). 202 MHA 1983, s 145(1). 203 MHA 2007, s 18. 204 MHA 1983, s 114(2) (as inserted by MHA 2007, s 18). 205 Mental Health (Approved Mental Health Professionals) (Approval) (England) Regulations 2008/1206, sch 1, para 1. 201

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can be drawn means that a function which was once the exclusive preserve of social workers is no longer limited to representatives of the social model. At least some professionals trained and experienced in the methods and practices of the medical model can now qualify as AMHPs. The second way in which the 2007 Act has redefined the roles of decisionmakers is through its creation of the ‘approved clinician’ (AC) and ‘responsible clinician’ (RC) designations.206 These terms are not interchangeable: an AC is a mental health professional approved by the Secretary of State as being qualified to exercise the same decision-making function under the MHA as a ‘registered medical practitioner’;207 an RC is a registered medical practitioner or AC with overall responsibility for the care and treatment of a patient liable to be detained under the MHA.208 Although these various labels make the post-2007 Act arrangements seem complex, their effects are straightforward: decision-making competences which were formerly reserved exclusively for medically qualified professionals are now exercisable by non-clinicians approved for that purpose. According to the Mental Health (Approved Clinician) Directions 2008, psychologists, psychiatric nurses, occupational therapists and social workers can now attain AC status. This is a monumental change which dismantles the primacy of the medical model in the MHA’s decision-making processes. Nowhere is this clearer than in s ection 12(2A),209 which explicitly states that an AC shall be treated as also being approved for the purposes of section 12(2) of the MHA as having special experience in the diagnosis and treatment of mental disorder. The 2007 Act’s redefinition of the roles means that the boundary between the medical and social models which the original 1983 Act had carefully delineated is now permeable. Decision-makers with a professional background in one model can, subject to certain restrictions, cross-qualify in another.

The ‘Fundamental Principles’ Section 8 of the 2007 Act introduced a statutory basis for the insertion of a set of ‘fundamental principles’ into the text of the MHA Code of Practice. Section 118(2A) of the MHA now places a duty on the Secretary of State to specify in the Code the principles which he thinks should inform decisions under the MHA. In preparing that statement of principles, the Secretary of State must ensure that s everal matters are addressed: these include, among other things, ‘patient wellbeing’ and ‘public safety’.210 The list of ‘matters’ which appears under section 118(2B) is the closest

206

MHA 2007, ss 9–17. MHA 1983, s 145(1) (as amended by MHA 2007, s 14). 208 MHA 1983, s 34(1) (as amended by MHA 2007, s 9(10). 209 MHA 2007, s 16. 210 MHA 1983, s 118(2B)(h) and (i) (as inserted by MHA 2007, s 8). 207

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the MHA gets to specifying exhaustively the policy objectives which underpin it. It is noteworthy that some of these objectives clearly reflect the precepts of the policy agenda which drove the 2007 Act. In the latest version of the Code, the Secretary of State’s duty has translated into ‘five sets of overarching principles’ which decisionmakers should consider. These are: —— —— —— —— ——

Least restriction and maximising independence Empowerment and involvement Respect and dignity Purpose and effectiveness Efficiency and equity.211

It is doubtful that the 2007 Act’s mandate for the introduction of ‘fundamental principles’ has made any meaningful difference to mental health decision-making. Unlike the principles that feature in section 1 of the Mental Capacity Act 2005, the MHA’s fundamental principles do not form an integral part of the statutory framework itself. Moreover, the contents of the Code of Practice are not binding on mental health decision-makers. For that reason, the principles would seem to amount to little more than aspirational tokenism.

Reforms to the Rules Governing Referrals to the MHT Section 37 of the 2007 Act amended the rules pertaining to the duty of hospital managers to refer cases to the MHT by replacing section 68 and inserting a new section 68A into the MHA. The new section 68 mirrors its predecessor in providing that on the expiry of a period of six months beginning on the day on which P was first admitted to hospital under the MHA, the hospital managers must refer P’s case to the MHT.212 As before, this duty arises where (a) neither P nor his NR has exercised his right to apply to the MHT under section 66, or (b) the S ecretary of State has not referred P’s case to the MHT under section 67.213 Also, the duty to refer P’s case if more than three years have elapsed since it was last considered by a tribunal remains on the statute book.214 The new section 68 differs from its original incarnation in that it extends the hospital managers’ referral duty to apply also to community patients subject to SCT.215 Therefore, if P is a community patient and has not gone before the MHT within six months of his initial admission to hospital under Part II of the MHA, the hospital managers

211

Code of Practice (n 174) [1.1]. MHA 1983, ss 68(2) and 68(5) (as amended by MHA 2007, s 37). 213 MHA 1983, s 68(3) (as amended by MHA 2007, s 37). 214 MHA 1983, s 68(6) (as amended by MHA 2007, s 37). 215 MHA 1983, ss 68(1)(c) and 68(1)(d) (as amended by MHA 2007, s 37). 212

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fall under a duty to refer his case. Importantly, that duty will also arise where a community patient’s CTO is revoked under section 17F of the MHA. According to section 68(7), the hospital managers must refer P’s case to the MHT ‘as soon as possible after the [community treatment] order is revoked’.216 The new section 68 was therefore constituted to extend the duty of hospital managers in order to take the introduction of the SCT regime into account. The biggest change to the referral rules comes under the new section 68A, which confers on the ‘appropriate national authority’ the discretion to shorten the p eriods mentioned in subsections (2) (six months) and (6) (three years) of section 68. These are the periods which must elapse before the hospital managers’ duty to refer P’s arises. In practice, section 68A allows the Secretary of State to increase the frequency of automatic referrals to MHTs by hospital managers. This new discretionary power was included in the 2007 Act to make provision for cases in which (a) P is, or is about to be, transferred from England to Wales or from Wales to England, and (b) the relevant period is not the same in one territory as it is in the other.217 Therefore, it is another of the 2007 Act’s procedural reforms which is unlikely to have a significant impact on decision-makers’ day-to-day practices.

The New ECT Safeguards Section 27 of the 2007 Act inserted section 58A into the MHA. This provision introduced new safeguards which apply to ECT and any other forms of medical treatment which may be specified in secondary legislation. Because we have already examined section 58A in chapter one there is no need to go into any further detail here.

Reforms to the Rules Governing the Appointment of Nearest Relatives (NRs) Section 23 of the 2007 Act amended section 29 of the 1983 Act to extend to P the right to apply to the county court to appoint an ‘acting’ NR.218 Under the original 1983 Act, the power to make such an application was limited to any relative of P, any other person with whom P was residing, and an ASW (now an AMHP).219 P has now gained the right to apply to the court for it to devolve upon

216

MHA 1983, s 68(7) (as amended by MHA 2007, s 37). MHA 1983, ss 68A(3)(a) and 68A(3)(b) (as inserted by MHA 2007, s 37). MHA 1983, s 29(2)(za) (as inserted by MHA 2007, s 23(4)). 219 MHA 1983, ss 29(2)(a), 29(2)(b) and 29(2)(c). 217 218

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a nominated person the NR’s functions. P can also play an active role in the discharge and variation of orders appointing his NR.220 An application to appoint an ‘acting’ NR may be made where: (a) P has no NR or it is not reasonably practicable to ascertain whether he has; (b) P’s NR is incapable of acting as such by reason of mental disorder or other illness; (c) P’s NR unreasonably objects to the making of an application for admission for treatment or guardianship; (d) P’s NR has exercised without due regard to P or the interests of the public his discharge power; or (e) P’s NR is otherwise not a suitable person to act as such.221 Paragraph (e) of section 29(3) is also a new feature of the MHA and gives applicants a broader scope to apply for the effective replacement of P’s NR. In effect, the reforms to the MHA contained within sections 23 and 24 of the 2007 Act have given P a greater say in who exercises the functions of his NR. The other reform to the MHA’s NR provisions pertains to the status of civil partners. Section 26 of the 2007 Act inserts a reference to ‘civil partner’ into section 26 of the MHA and thereby confers on civil partners the same status as husbands and wives.222 This takes into account changes in the law introduced by the Civil Partnership Act 2004.

The Introduction of Independent Mental Health Advocates (IMHAs) Independent Mental Health Advocates (IMHAs) are ‘specialist advocates who are trained specifically to work within the framework of the [Mental Health] Act and enable patients to participate in decision-making’.223 They were established by section 30 of the 2007 Act and, like SCT, are another of that statute’s substantive innovations. Although they are legally constituted by the MHA, this does not necessarily confer primacy on IMHAs; instead, they operate without prejudice to other advocacy and support services which may be available. Moreover, P is under no obligation to receive support from an IMHA.224 However, those responsible for P—in the case of formally detained patients, this will be the relevant hospital managers225—must take such steps as are practicable to ensure that P understands (a) that he is entitled to the help of IMHA services, and (b) how he can access it.226

220

MHA 1983, s 30 (as amended by MHA 2007, s 24). MHA 1983, ss 29(3)(a)–(e) (as amended by MHA 2007, s 23(5)). 222 MHA 1983, s 26(1)(a) (as amended by MHA 2007, s 26(2)). 223 Code of Practice (n 174) [6.3]. 224 MHA 1983, s 130B(6) (as inserted by MHA 2007, s 30). 225 MHA 1983, s 130D(2)(a) (as inserted by MHA 2007, s 30). 226 MHA 1983, s 130D(1) (as inserted by MHA 2007, s 30). 221

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By section 130A(1) of the MHA, the ‘appropriate national authority’227 is under a duty to make reasonable arrangements to enable IMHAs to help ‘qualifying patients’. P will qualify for an IMHA’s help if he is (a) liable to be detained under the MHA,228 (b) subject to guardianship, or (c) a community patient.229 This means that IMHA services are typically reserved for formal patients, although P will also qualify where he is not liable to be detained under the MHA but is discussing with an approved clinician the possibility of being given a form of treatment to which sections 57 or 58A of the MHA would apply.230 An IMHA can help P to obtain information about or understand the provisions of the MHA, the conditions or restrictions to which he is subject, and his medical treatment.231 She can also assist P to understand and exercise his rights under the MHA.232 The Code of Practice says that this means that an IMHA can represent P and speak on his behalf, for example, by accompanying P to review meetings or hospital managers’ hearings.233 The IMHA’s role therefore confers considerable responsibility on the person holding it. For example, she can visit and interview P or any person professionally concerned with P’s medical treatment and, if P consents, she can demand and inspect any relevant records.234 She must also comply with reasonable requests to visit and interview P made by P’s NR, responsible clinician, or AMHP.235 It is therefore not surprising that the appropriate national authority should, so far as is practicable, ensure that any person who provides advocacy services is ‘independent of any person who is professionally concerned with the patient’s medical treatment’.236

Evaluating the Mental Health Act 2007: The Case for New Medicalism On the 2007 Act’s Principal Reforms That the risk policy agenda has left its mark on the amended MHA is difficult to deny. It is true that the 2007 Act did not fundamentally rewrite the risk formula,

227 ‘Appropriate national authority’ refers to the Secretary of State in England and the Welsh Ministers in Wales (MHA 1983, s 130C(5) (as inserted by MHA 2007, s 30)). 228 This does not include patients detained in hospital or deprived of their liberty by virtue of MHA 1983, ss 4, 5(2), 5(4), 135 or 136. 229 MHA 1983, ss 130C(2)(a)–(c) (as inserted by MHA 2007, s 30). 230 MHA 1983, s 130C(3) (as inserted by MHA 2007, s 30). 231 MHA 1983, ss 130B(1)(a)–(f) (as inserted by MHA 2007, s 30). 232 MHA 1983, ss 130B(2)(a) and 130B(2)(b) (as inserted by MHA 2007, s 30). 233 Code of Practice (n 174) [6.13]. 234 MHA 1983, ss 130B(3) and 130B(4) (as inserted by MHA 2007, s 30). 235 MHA 1983, ss 130B(5)(a)–(c) (as inserted by MHA 2007, s 30). 236 MHA 1983, s 130A(4) (as inserted by MHA 2007, s 30).

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nor has it altered the risk threshold. In retaining the original formula, it has left the risk of harm that P may pose to himself or other people in its place as the key which unlocks the compulsory powers. The same legal and practical consequences of this centrality of risk which we discussed in chapter two therefore continue to prevail in the post-2007 Act era. What the 2007 Act has done, however, is o verlay its reforms onto the 1983 Act’s framework. So while the MHA’s risk formula remains the same, the 2007 Act’s reforms have removed or diluted many of the legal obstacles that decision-makers previously had to overcome before they could assess whether P’s risks justified ‘sectioning’ him. This means that the 2007 Act’s principal reforms have made it easier for decision-makers to deploy the compulsory powers. The imprint of the risk agenda is therefore evident not so much in the wording of the MHA’s amended provisions themselves, but in the effect that those provisions have in conjunction with the risk formula. What, then, were the principal reforms of the 2007 Act? Although the relative importance of the reforms may at times be in the eye of the beholder, by far the most significant are those which have in some way redefined civil commitment, that is, who can deploy it, how far it extends, and who can be subject to it. On this measure, the simpler definition of ‘mental disorder’, the ‘appropriate treatment’ test, SCT, and the redefinition of the roles of mental health professionals can fairly be described as the 2007 Act’s ‘principal’ reforms. And it is in these reforms that we can most clearly discern the influence of the 2007 Act’s policy drivers. This is not to say that the 2007 Act’s other amendments are inconsequential or negligible; there is no doubt that innovations like IMHAs and the reform of the treatment safeguards, NR provisions, and MHT procedures are significant on their own terms. But these changes are comparatively minor. They do not go to the core of what civil commitment is about; for the most part, their effects are limited to only a small number of formal patients in very specific circumstances. It is one thing to make provision for a formal patient to replace his NR or to play an active role in deciding whether he should receive ECT; it is quite another effectively to broaden the scope of the compulsory powers so as to make it easier to subject people to them. As we know, the simplification of the MHA’s definition of ‘mental disorder’ and the introduction of an ‘appropriate treatment’ test first emerged as key objectives long before the 2007 Act was enacted. The incorporation of both into the MHA is therefore the most obvious example of the risk agenda’s impact on the 2007 Act. Decision-makers can now ‘section’ patients without first having to undergo the logically anterior process of applying artificial legal labels to them. By defining ‘mental disorder’ so expansively, section 1(2) of the MHA leaves it open to mental health professionals to decide what a mental disorder is and whether or not P has one. Similarly, section 3(2)(d) leaves it to decision-makers to determine whether or not there is any medical treatment ‘appropriate’ for P’s disorder. These are not particularly onerous requirements; indeed, there is now seemingly little to stop decision-makers who are determined to ‘section’ P from retrofitting a diagnosis and treatment plan which will justify that end. While there is nothing to suggest

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that decision-making under the MHA now proceeds in such a cynical fashion, the fact that such a tactic is at least possible is a cause for concern. The 2007 Act has broadened the scope of the compulsory powers to such an extent that one can no longer necessarily say that formal patients, by definition, suffer from serious or severe mental disorders for which they are receiving medical treatment which is likely to alleviate, or prevent a worsening of, their condition. This lowering of the compulsion threshold amounts to a significant expansion of the reach and scope of the MHA. The imprint of risk policy is subtler where SCT is concerned, though no less significant. The SCT provisions are among the very few in the MHA which make explicit reference to ‘risk’.237 That these references were inserted by the 2007 Act is highly indicative of its policy context. They also reveal the essential function of SCT, which is to provide a mechanism for the care and treatment of people with mental disorders which bridges the gap between full formal admission under section 3 and voluntary status in the community. For example, section 17A(6) makes P’s discharge onto a CTO contingent on there being little or no risk of a deterioration in his condition if he were released from hospital. P must therefore pose a lower degree of risk than he did when he was first admitted under section 3 before he can become a community patient. Section 17E(1) reinforces the determinative power of risk by permitting the RC to recall P to hospital if ‘there would be a risk of harm to [P’s] health or safety … or to other persons’ if he were not recalled. Implicit in these provisions is the notion that there is a continuum of risk along which patients can rise or fall. SCT is a sophisticated mechanism because it means that the MHA no longer operates according to a binary ‘“operative” risk/no “operative” risk’ calculus. Instead, it has equipped mental health services with a new power designed specifically to cater for patients whose risk profile would previously have meant that they fell between two stools. SCT therefore reinforces the MHA’s essential function as a legitimate means of controlling and managing risk. It also contributes to a more complete regime of risk regulation by allowing the intensity of the MHA’s interventions to correspond with the degree of risk P poses. Similar consequences may flow from the MHA’s redefinition of decision- makers’ professional roles. That the 2007 Act has all but demolished that boundary between the medical and social models suggests that there is no meaningful system of checks-and-balances in the MHA’s processes. First, by allowing non-clinical professionals to take decisions under the MHA which were traditionally reserved for clinicians, the 2007 Act erodes the psychiatric monopoly which has dominated civil commitment procedures since at least 1959. The fact that professionals who originally trained as psychologists, nurses and occupational therapists can now qualify as ACs dilutes the

237

MHA 1983, ss 17A(6), 17B(2)(b) and 17E(1)(b).

Evaluating the Mental Health Act 2007: The Case for New Medicalism 123

high level of clinical expertise and experience that might once have characterised the medical model and justified its primacy. Decision-makers who may be more at ease with evaluating the risks that P might pose to the public in particular are now eligible to take decisions under the MHA. This means that mental health decision-making may now proceed with reference to a broader range of considerations than the comparatively narrow question of P’s clinical needs. Those with the power to deploy the compulsory powers in the post-2007 Act era may therefore be more conversant in the language and culture of risk than were their predecessors. Secondly, the almost total collapse of the boundary which separated the medical and social models reduces the likelihood that interdisciplinary conflict will hamper mental health decision-making. For example, the fact that a psychiatric nurse can qualify as an AMHP means that the moderating voice of a representative of the social model may not be present to apply a brake on the ‘sectioning’ process. To some extent, this second reason conflicts with the first: if professionals drawn from the medical model can now perform functions previously reserved for representatives of the social model, surely the focus on P’s clinical needs will intensify, not diminish? And, if so, is it not now less likely that risks to the public would be foremost in decision-makers’ minds? It is important to remember the function that the various professionals serve in the MHA’s processes. Under section 3, for example, an AMHP makes the application for admission and two registered medical practitioners supply the requisite medical recommendations. The decision-makers must therefore be ad idem before P can be admitted for treatment. This requirement in effect protects P from arbitrary decision-making by giving each decision-maker an effective veto. That the decision-makers may now be drawn from the same professional background reduces the prospect of interdisciplinary disagreement and therefore makes P’s admission more likely. It is clear that the 2007 Act’s reforms to professional roles in one way or another have the potential to make it much easier for decision-makers to deploy the compulsory powers.

On the Reformed Mental Health Act and the Descriptive Models of Mental Health Law On evaluating the 2007 Act, it becomes apparent that none of the existing descriptive models satisfactorily captures the spirit of the reformed MHA. It is not possible to refract the 2007 Act’s reforms through any of the lenses of ‘legalism’, ‘medicalism’, or ‘new legalism’ without either stretching those devices to breaking point or conducting a creative reading of the legislation. The implication is that the 2007 Act has amended the MHA to such an extent that its changed nature and purpose invites the creation of a distinct analytical device with which to narrate it. It is obvious that the post-2007 MHA is not a species of new legalism. Whereas the original 1983 Act in effect conferred ‘negative’ rights on patients not to be

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compulsorily admitted to hospital unless decision-makers deemed them to satisfy certain legal criteria, the reformed MHA instils a degree of flexibility into decision-making processes which is at odds with this Gostinian legalism. It is true that the 2007 Act’s creation of IMHAs, extension of automatic referrals to MHTs, and introduction of special safeguards for patients receiving ECT evince some legalistic continuity. That is to say, they confer additional rights on formal patients to play an active role in decisions about their treatment or to challenge the legal basis of their detention. However, because they cannot fairly be described as the 2007 Act’s principal reforms, they do not therefore militate against the conclusion that the reformed MHA is not a product of new legalism. It also cannot be said that the reformed MHA signifies a retreat to ‘traditional’ legalism. There are two reasons for this. First, it does not restore to judicial gatekeepers the same central function in the civil commitment process that they once enjoyed. Applications for P’s formal admission continue to go before the managers of the relevant hospital, just as they did under the original 1983 Act. The 2007 Act has not inserted any additional judicial or quasi-judicial scrutiny into the ‘sectioning’ process. Secondly, the reformed MHA does not contain the sort of tightly framed prescriptions that are the hallmarks of legalism. Its amended provisions are not conducive to generating foreseeable and predictable outcomes and they do not function according to fixed, predetermined parameters. Instead, they confer on decision-makers broader latitude to take decisions on the basis of their professional judgement. Again, the 2007 Act’s simpler definition of ‘mental disorder’ provides the best example of this embedded flexibility and demonstrates the mismatch that arises between the reformed MHA and the exactitudes of traditional legalism. Yet, while there may now be fewer limits on professional discretion than there were under the original 1983 Act, it does not follow that the reformed MHA represents a reversion to medicalism. The 2007 Act’s redefinition of the roles of mental health professionals renders ‘medicalism’ something of a misnomer. The medicalism of the mid-twentieth century was characterised by the pre-eminence it gave to clinicians in the relevant decision-making processes. Doctors replaced judges as the gatekeepers to involuntary care and treatment. Medicalism was therefore a dynamic, clinician-led alternative to fusty legalism and a product of the ‘doctor-knows-best’ paternalism that defined the practice of medicine at the time. By contrast, the 2007 Act challenges the clinical monopoly by empowering a wider range of non-clinical decision-makers under the MHA. Whereas at one time the recommendation to ‘section’ P could only have come from a consultant psychiatrist, now the reformed MHA authorises non-clinical decision-makers to make the same call. To characterise this arrangement as a manifestation of medicalism would obscure the fact that a plethora of non-medically qualified professionals can now exercise the same functions that were once the exclusive preserve of medics. While the 2007 Act has undoubtedly expanded the significance of professional discretion in the MHA’s decision-making processes, this has not resulted from a revival of deference to the medical profession. On a

Evaluating the Mental Health Act 2007: The Case for New Medicalism 125

related note, the policy impulses which drove the 2007 Act differ fundamentally from those which inspired the Mental Health Act 1959—the high-water mark of medicalism. The 1959 Act was unmistakably a health statute which regarded the diminution of the law’s determinative function to be the best way to treat mental health problems. By contrast, the 2007 Act was, as we have seen, primarily concerned with the control and management of risk. Its underlying policy objective was to divest the MHA of its patient-centric legalism in order to render mental health services more responsive to risk and therefore more protective of public safety. The improvement of mental health outcomes was, at most, a secondary consideration. Furthermore, the reformed MHA cannot fairly be said to amount to a wholehearted re-embrace of medicalism because some of the 2007 Act’s reforms clearly pull in the opposite direction: for example, its introduction of IMHAs and its amendments to MHT processes retain and extend the infrastructure of legalism. The reformed MHA’s residual legalism therefore weakens the case for medicalism as a plausible descriptive model for the 2007 Act. It is true that we have already played down the descriptive capacity of the 2007 Act’s minor reforms when distinguishing the reformed MHA from new legalism. Why, then, should the minor reforms undermine the case for medicalism if they cannot reinforce the MHA’s claims to new legalism? Those of the 2007 Act’s reforms which we have characterised as ‘minor’ for present purposes are indisputably legalistic in character. While they are not significant enough to allow the MHA to continue to claim to be a (new) legalistic statute, they retain in the statutory framework such trappings of legalism which make the case for medicalism difficult to justify. All this leaves us with two possible conclusions. First, we might conclude that the reformed MHA blends features of legalism and medicalism and consequently collapses the distinction between two descriptive models which have hitherto been conceptually divergent. This is a superficially attractive conclusion: it implies that the 2007 Act has finally reconciled what have long been conflicting normative positions and concluded a legal-historical narrative that has up to now been beholden to the perfidy and caprice of public policy. It suggests that Parliament has settled on a statutory framework which balances legal and professional discretionary interests once and for all. Yet this conclusion is ultimately unpersuasive. By definition, ‘medicalism’ and ‘legalism’ (and, by extension, ‘new legalism’) are distinct models; there can be no ‘third way’ between them. Either the law determines whether P is compulsorily admitted to hospital or the relevant professionals do. While it may be possible to have a mental health statute which draws on elements of both models, ultimately one must outweigh the other in the principal mechanics of that statute. The second possibility is that the 2007 Act is merely the latest chapter in an increasingly complex legal-historical narrative which demonstrates the growing inadequacy of the ‘traditional’ models to capture the role and purpose of contemporary mental health law. According to this view, the reformed MHA is begging for a new model which captures its distinct

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policy drivers, priorities and practical effects. This would seem to be the most plausible conclusion. * In light of the foregoing, what becomes clear is that (i) the policy which drove the 2007 Act prioritised the control and management of the risks of harm posed to and by people suffering from mental disorders, and (ii) the 2007 Act’s principal reforms have extended the reach and application of the compulsory powers by divesting the MHA of its legalistic fetters. It is now easier for mental health professionals to bring mentally disordered patients within the reach of civil commitment and thereby tackle situations of risk. The reformed MHA therefore embodies a variant of medicalism, albeit one which is predicated on very different foundations from those of the 1959 Act. It is essentially medicalistic because it diminishes the determinative potential of the MHA by leaving key decisions about P’s diagnosis, treatment and interaction with mental health services in the hands of professionals. Yet it is a different kind of medicalism because its primary justification is the control and management of risk, not the improvement of health outcomes. It is this which allows us to argue that the 2007 Act warrants a distinct descriptive model to account for the impact of its principal reforms on the MHA. In the same way that the original 1983 Act justified the creation of new legalism to account for its reinterpretation of traditional legalism, the reformed MHA justifies the coining of ‘new medicalism’ to account for the 2007 Act’s distinct revival of medicalism. Some readers may object to the implications of ‘new medicalism’. They may feel that it unfairly imputes cynical or improper motives to mental health professionals by implying that in the absence of legalistic prescriptions they go along willingly as agents of social control. This book does not seek to make such a claim, nor does it wish to impugn the integrity and professionalism of mental health decision-makers. There is no doubt that the framers of the 2007 Act sought to make mental health services more responsive to risk and therefore enhance their potential to exert control. This was a political project, in the same way that the improvement of health outcomes had been a political project in the mid-twentieth century. Just like the framers of the 1959 Act, those who drafted the 2007 Act’s principal reforms saw a departure from a species of legalism as a means to an end. They considered, perhaps not unreasonably, that mental health professionals are best placed to assess patients’ risks and therefore sought to harness that potential. Yet, mindful of all the uncertainties bound up with the concept of risk which we discussed in chapter two, it is easy to see how the removal of legalism’s stabilising effects can make decision-makers’ professional judgement much less predictable. New medicalism therefore does not assume that mental health professionals are the willing agents of social control; rather, it assumes that they are employed as unwitting instruments of it. Mental health decision-makers can therefore act in good faith and according to long-established professional imperatives and yet still be co-opted as the instruments of a policy of social control.

Conclusions 127

Other readers may feel that a label such as ‘new professional discretion’ or ‘neo-paternalism’ would be a more appropriate description of the 2007 Act than ‘new medicalism’. We adopt ‘new medicalism’ because it would seem to be the most appropriate label by which to describe the 2007 Act. As we saw earlier, the literature has tended to employ the terms ‘medicalism’ and ‘professional d iscretion’ interchangeably, meaning that ‘new professional discretion’ would be insufficiently distinguishable from ‘new medicalism’ to make any difference. In any case, ‘medicalism’ is the better-known term and it would seem to make sense to use a label which has been elevated almost to the status of a term of art in this field. While ‘new professional discretion’ might more accurately convey the fact that mental health decisions are no longer exclusively for medics, it is neither distinct nor familiar enough to justify substituting it for ‘new medicalism’. Similarly, ‘neo-paternalism’ is unsuitable: the MHA always was, and continues to be, a uniquely paternalistic contrivance. There is nothing new about this and therefore a ‘neo-’ prefix before ‘paternalism’ would convey the wrong impression. Yet this means that we will use ‘medicalism’ to describe an MHA which, as we have seen, still comprises much of a legalistic character. This residual legalism does not preclude the use of ‘medicalism’ in respect of the post-2007 MHA. Indeed, it may even strengthen the claim that this is a new medicalism: the MHA’s enduring apparatus of legalism arguably has a sanitising effect by conferring a veneer of legitimacy on ‘sectioning’ processes which may now be less certain, less predictable and p rimarily motivated by concern for public safety. The 2007 Act’s minor reforms do nothing to hinder P’s admission to hospital, meaning that at the very least the decisions to deploy the compulsory powers proceed according to mental health professionals’ judgement in a manner that is recognisably medicalistic. Far from being a minor statute which changes very little, the 2007 Act represents an entirely new moment in English mental health law and policy. After it, the notion that legal and policy trends are explicable with reference to a figurative pendulum which swings inexorably back and forth from legalism to medicalism no longer seems apposite. Instead, it would seem more fitting to rely on an axis in which ‘new medicalism’ takes its place as one of the quadrants alongside the three traditional models of ‘legalism’, ‘medicalism’ and ‘new legalism’.

Conclusions In Unsworth’s view, mental health policy-makers resort to legalism ‘at times of pessimism or uncertainty about how society should respond to the problems posed by mental disorder’.238 The implication of this is that medicalism—the

238

Unsworth (n 7) 351.

128 New Medicalism and the Mental Health Act 2007

inverse of legalism—is an expression of optimism and certainty. A society which is confident in its attitude towards mental illness and sure of how to respond to the challenges it poses is therefore likely to reject legal formalism and support the exercise of professional discretion. According to this rendering of the underpinnings of legalism and medicalism, the Mental Treatment Act 1930 and the 1959 Act were the products of a progressive and confident social context, whereas the original 1983 Act was framed during a time of negativity, cynicism and anxiety. It is in fact more likely that the opposite is true—that predominantly legalistic frameworks reflect a society at ease with mental health matters and respectful of the rights and interests of the mentally ill, while chiefly medicalistic frameworks indicate pessimism or uncertainty and the primacy of the collective over the individual. Viewed in this way, the new legalism of the original 1983 Act may be explicable as a reaction to a growing public confidence in mental health services and psychiatry and a response to the impact of the civil rights movement. These cannot fairly be described as symptoms of pessimism or uncertainty. Similarly, the medicalism of the 1930 and 1959 Acts may have been attributable to the disorienting effects of the ‘revolutions’ in the care and treatment of mental disorders which occurred in the post-war era. It seems unlikely that such effects would be commensurate with a culture of optimism and certainty. As we have seen in this chapter, the 2007 Act has revived a praxis which is recognisably medicalistic: it has dismantled legalistic obstacles to compulsion, expanded decision-makers’ discretions, and reverted to open-textured laws over tightly framed provisions. It has also contributed to a more complete framework of risk regulation. It is difficult to maintain that the decade-long process which culminated in the 2007 Act bore the hallmarks of a self-assured society comfortable in its attitude towards mental illness. Far from it: policy-makers aimed to reassert control and allay public anxiety by tackling mental health services’ perceived failure to manage the risks posed by and to mentally disordered patients. It is difficult to escape the conclusion that Unsworth mischaracterised what legalism and medicalism represent; the statutory frameworks rooted in their traditions may reflect very different dynamics from those that he suggested. In spite of its medicalistic features, it is clear that the reformed MHA does not lend itself to easy categorisation. There are reasons why simply labelling it as a species of legalism, medicalism, or new legalism is wholly unsatisfactory. The role and purpose of the 2007 Act’s reforms are largely without precedent. Never before has such prominence been given to considerations of risk in mental health policy. Never have concerns about public safety enjoyed such potency or urgency in shaping the laws which govern the care and treatment of the mentally ill. In an era in which the focus on patients’ rights to self-determination and autonomy has intensified, the 2007 Act has pulled in the opposite direction. Its reforms to the MHA make it easier for a wider range of decision-makers to subject a broader array of patients to compulsory care and treatment. The legal landscape of the post-2007 Act era therefore lends itself to more control and less liberty—not necessarily

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because such practices are clinically indicated, but rather because they are socially and politically mandated. For that reason, the post-2007 Act MHA deserves its own descriptive model to reflect its distinct role and purpose. We have called this ‘new medicalism’ and characterised it as a consequentialist model in which the determinative power of the law is diminished in order to enhance the capacity of mental health services to control and manage risk in the public interest. Far from being a minor amending statute, then, the 2007 Act derives from a reimagining of the role and purpose of mental health law.

4 Theorising New Medicalism Introduction In the previous chapter, we saw that the 2007 Act’s principal reforms have diminished the legalistic clout of the Mental Health Act (MHA) in order to enhance mental health services’ responsiveness to perceived risks of harm. It is now easier for mental health decision-makers to deploy the MHA’s civil commitment powers. Yet why this should be necessary is unclear: all the evidence suggests that members of the public are at no greater risk of harm from people with mental disorders than they were in the past. People with mental illnesses are in fact more likely to pose a risk of harm to themselves than to others—and even then these risks are low. Around a quarter of the United Kingdom (UK) population will experience a mental health problem each year.1 Mental health is therefore one of the biggest public health challenges of our time. But there is no evidence that the risks of harm which justify involuntary treatment are anywhere near as prevalent, or that they are likely to become so. It is therefore difficult to understand why considerations of risk have come to enjoy such prominence in mental health law and policy; common perceptions of the gravity and extent of the risks simply do not match reality. If it cannot be said that we have entered an era which is characterised by increased risks of harm in this connection, to what do we owe the emergence of new medicalism? This chapter seeks to locate new medicalism within a theoretical context. Drawing on theories of risk as a sociological construct, it aims to illuminate the impulses which undergird the contemporary fixation with risk in mental health policy. At its core is the contention that the ‘riskification’ of English mental health law and policy coincides with the increased preoccupation with, and heightened sensitivity to, risk in modern society. In developing this argument, this chapter

1 Mind, Mental Health Facts and Statistics: www.mind.org.uk/information-support/types-ofmental-health-problems/statistics-and-facts-about-mental-health/how-common-are-mentalhealth-problems.

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is divided into two sections which distinguish the two kinds of risk which are relevant in this context: i. the risk that a person (P) will develop a mental disorder, and ii. the risk that P, who already has a mental disorder, will cause harm to himself or other people. Although both kinds of risk are the subject of mental health policy, each has distinct theoretical motivations. This chapter’s central claim is that while there may be a legitimate basis on which to treat the first kind of risk as a policy priority, no such thing underlies the elevated importance that is given to the second. The risk of harm which is purportedly attendant on mental illness is socially constructed, not a reflection of reality. It is this which allows us to attribute the prioritisation of risk in recent mental health policy—and therefore the emergence of new medicalism—to Foucauldian notions of control and discipline. In its first section, this chapter shows that the risk of mental illness has increased in recent years. Mental illness is now more prevalent than it was in the past and the economic costs associated with it are growing. According to Ulrich Beck’s ‘risk society’ theory, increased risk is ‘an incidental problem of modernisation’:2 the more a society modernises, the more ‘at-risk’ it becomes. As a consequence of this transformation, Beck claimed that modern societies are increasingly organised according to the logic of hazard prevention—meaning that the goal of reducing or extinguishing risk becomes a central feature of public policy.3 This section of the chapter will suggest that it is not at all hyperbolic to suggest that the by-products of modernity may be having a sickening effect on the nation’s mental health. It is therefore unsurprising that mental health policy devotes ever more attention to reducing the risk of mental disorder. In this way, the ‘riskification’ of mental health policy provides a neat illustration of Beck’s theory. However, risk society theory does not offer a plausible account of the primacy afforded to the risk of harm that mentally disordered patients might pose to themselves or others. To do so, there would need to be evidence that that risk has increased in recent times; all the evidence suggests that this has not been the case. This leads us to the conclusion that while risk society theory maps the development of mental health policy in general terms, it is less persuasive as a theoretical model for new medicalism. In its second part, this chapter proposes that Michel Foucault’s rendition of risk as an instrument of ‘governmentality’ offers a more satisfactory theoretical underpinning for new medicalism. According to Denney, Foucault employed ‘governmentality’ to describe ‘a situation in which the state becomes increasingly concerned with the government of a population as an end in itself rather than

2 3

U Beck, Risk Society: Towards a New Modernity (London, SAGE, 1992) 26. ibid, 80.

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the consolidation of state power’.4 Foucault thought that a core function of the modern state is the regulation and discipline of its population for the purpose of maintaining its regularities. His theory interpreted the concept of risk as an essential tool for the deployment of the state’s power to that end: it is the existence of risk which justifies, and provides the occasion for, the state’s disciplinary function. Consequently, the state constructs as risky anything which is antithetical to, or obstructive of, its biopolitical objectives and therefore needful of coercion and control. Governmentality theory therefore provides the most plausible theoretical underpinning for new medicalism, meaning that the post-2007 MHA achieves the most comfortable fit with Foucauldian thought.

The Risk of Mental Illness Risk Society Theory From Pre-Modernity to Modernity According to Beck, the concept of risk is not an invention of modern times.5 His risk society theory therefore did not regard risk as a recent phenomenon; rather, it posited that modern societies face very different and increasingly complex situations of risk from their ‘pre-modern’ forerunners. Humanity has always been preoccupied in one way or another with uncertainty about the future.6 It has also always been rather hopeless at managing it.7 Pre-modern societies relied on religious rituals to ‘translate the experience of risk into feelings of relative security’8 and ‘ensure that … personal decisions did not arouse the ire of the gods’.9 The core texts of Christianity and Islam, for example, teach that hazards such as flooding10 and sickness or disease11 are willed by God. Prayer, devotion and other ‘divinatory practices’ were therefore the crude analogues of modern risk management.12 Or, to put it another way, ‘risk calculation’ is the secular equivalent of sacred repentance-minimisation programmes.13

4

D Denney, Risk and Society (London, SAGE, 2005) 115–16. Society: Towards a New Modernity (n 2) 48. N Luhmann, Risk: A Sociological Theory (London, Aldine Transaction, 2007) 8. 7 See, eg, NN Taleb, The Black Swan: The Impact of the Highly Improbable (London, Penguin, 2007). 8 A Giddens, The Consequences of Modernity (Cambridge, Polity Press, 1990) 130. 9 Luhmann (n 6) 8. 10 King James Bible, Genesis 6:17: ‘And, behold, I, even I, do bring a flood of waters upon the earth, to destroy all flesh, wherein is the breath of life, from under heaven; and everything that is in the earth shall die.’ 11 Holy Qur’an 26:80: ‘And when I am sick, then He (Allah) restores me to health.’ 12 Luhmann (n 6) 8. 13 ibid, 11. 5 Beck, Risk 6

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In more recent times, humanity has exhibited more sophisticated interpretations of the causes and consequences of risks and hazards. There are two reasons for this. First, modern society has witnessed what Giddens has described as ‘the end’ of nature and tradition: more of the physical world is now subject to human intervention and less of humanity’s existence is lived as fate.14 As Luhmann put it, humanity has come to recognise that many adverse outcomes are contingent on, or susceptible to, human action.15 The divinatory practices of yesteryear have therefore declined in favour of rational human action. Secondly, modern risks have contemporary causes: they are both a ‘wholesale product of industrialisation’ and ‘systematically intensified’ through the processes of globalisation.16 They therefore differ in an essential way from the hazards which plagued pre-modern societies. For Beck, a ‘risk society’ is the product of society’s transition from pre- modernity to modernity. Accordingly, cutting edge science and technology, extensive rights to private property, and sophisticated communication techniques are all among the essential prerequisites for, and demonstrative of, a ‘risk society’.17 What results is a society that functions on a ‘high technological frontier’ and which generates ‘a diversity of possible futures’.18 Beck defined ‘risk’ as ‘a systematic way of dealing with the hazards and insecurities induced and introduced by modernisation itself ’.19 He argued that these hazards are more complex and catastrophic than their pre-modern equivalents: for example, Beck regarded the hazards attendant on nuclear energy and climate change as the archetypical risks of modernity. They are, to borrow from HG Wells, the ‘logical consequence of an epoch of invention’:20 ‘man-made hybrids’ which combine political, ethical, mathematical, communicational, technological and cultural issues.21 The mounting complexity and catastrophic potential of these risks means that they ‘increasingly tend to escape the institutions for monitoring and protection which exist in industrial society’.22 This creates a new reality in which social policy is reframed to elevate the control and management of risk above everything else.

14 A Giddens, ‘Risk Society: The Context of British Politics’ in J Franklin (ed), The Politics of Risk Society (Malden, MA, Polity Press, 1998) 25–26. 15 Luhmann (n 6) 16. 16 Beck, Risk Society: Towards a New Modernity (n 2) 21. 17 P Strydom, Risk, Environment and Society: Ongoing Debates, Current Issues, and Future Prospects (Buckingham, Open University Press, 2002) 89–90. 18 Giddens, ‘Risk Society’ (n 14) 25. 19 Beck, Risk Society: Towards a New Modernity (n 2) 21. 20 HG Wells, The Sleeper Awakes (London, Penguin Classics, 2005) 128. 21 U Beck, ‘Politics of Risk Society’ in J Franklin (ed), The Politics of Risk Society (Polity Press, 1998) 11. 22 U Beck, ‘The Reinvention of Politics: Towards a Theory of Reflexive Modernisation’ in U Beck, A Giddens and S Lash (eds), Reflexive Modernisation (Cambridge, Polity Press, 1994) 3.

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Reflexivity Another aspect of risk society theory is the notion that modern societies are ‘reflexive’, that is, they generate bigger and ultimately existentially threatening situations of risk the further they advance. Beck argued that this is one of the principal characteristics of modern societies.23 The same processes which generate the ‘radicalised modernity’ of a risk society will also continue to create new hazards,24 a process which Beck and Giddens both described as ‘manufactured uncertainty’.25 There is nothing new about the suggestion that society itself can be a substantive source of its own problems,26 but Beck’s rendition of ‘reflexive modernity’ implied that the size and scope of its hazards will eventually jeopardise the modern project in its entirety. Considerations of risk consequently become a core feature of public debate. As Giddens explained, political decision-making in a risk society eventually comes to be about managing risks which do not originate in the political sphere but which nonetheless must be politically managed.27 Risk is therefore a ‘double-edged’ phenomenon: on one hand, it connotes the probability and potential impact of harmful outcomes, on the other, it is a source of economic energy and innovation.28 Risk society therefore embodies a paradox in which the concept of risk exhibits positive and negative aspects: it is simultaneously a ‘core element’ of a dynamic society and a measure of the likelihood of ‘mass exposure to physical or psychological harm’.29 It is easy to regard a risk society, with its inherent reflexivity, as being a victim of its own success. Reflexivity means a risk society will exhibit a promethean tendency to create new hazards as it finds ways of tackling existing ones. It also means that the existence of that society is constantly threatened. According to Beck, this tendency leaves a lasting impression on the culture, policies and practices of modern societies. He argued that every member of society must ultimately become trapped in ‘defensive battles of various types’ and must have his private life reduced to a ‘plaything of scientific results and theories, or of public controversies and conflicts’.30 This in turn poses a unique challenge to democracy because it fosters a ‘legitimate totalitarianism of hazard prevention’ which ‘takes the right to prevent the worst and, in an all too familiar manner, creates something even worse’.31

23

Beck, ‘Politics of Risk Society’ (n 21) 11; Beck, ‘The Reinvention of Politics’ (n 22) 8. Beck, ‘The Reinvention of Politics’ (n 22) 3. 25 Beck, ‘Politics of Risk Society’ (n 21) 12; Giddens, ‘Risk Society’ (n 14) 28. 26 See, eg, RK Merton, ‘The Sociology of Social Problems’ in RK Merton and R Nisbet (eds), Contemporary Social Problems, 4th edn (New York, Harcourt Brace Jovanovich, 1976) 9. 27 Giddens, ‘Risk Society’ (n 14) 29. 28 A Giddens, The Third Way: The Renewal of Social Democracy (Cambridge, Polity Press, 1998) 63; A Giddens, The Third Way and its Critics (Cambridge, Polity Press, 2000) 135. 29 Denney (n 4) 10–11. 30 Beck, ‘The Reinvention of Politics’ (n 22) 45–46. 31 Beck, Risk Society: Towards a New Modernity (n 2) 80. 24

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The Pillars of Risk Society and their Consequences In his critique of Beck’s work, Mythen sets out three ‘pillars’ which he argues underpin the risk society theory.32 The first relates to the perils which face a risk society. According to Mythen, these perils transcend spatial and temporal limits. While in a pre-modern society the risks may be limited to an identifiable class of people who are proximate in time and space to the relevant hazard, in a risk society they have a much wider reach. The second pillar concerns the greater catastrophic potential that risks entail. Modern hazards are more likely to inflict a higher degree of damage than their pre-modern equivalents. The third pillar concerns the way that the h azards facing a risk society render its social insurance mechanisms unfit for purpose. Risks become ‘global’ problems that no single individual or institution is capable of preventing or compensating. It is these core characteristics which distinguish modern societies from their industrial and pre-modern forerunners. There are two tangible consequences of a society’s alignment with these pillars. First, policy-makers seek to reorient society so as to make it ‘futureproof ’, insofar as that is possible. As Luhmann suggested, there is much political capital to be had in promising safety and security.33 Policy-makers therefore align with a ‘future-orientated cultural trajectory’,34 formulating policy initiatives as pre-emptive ‘responses’ to what may happen later.35 Modern societies in this way adhere to an inverted notion of causality; as Beck wrote, a currently non-existent, fictive future becomes the ‘cause’ of contemporary experience and action.36 Or, as Luhmann put it, ‘modern society represents the future as risk’.37 This profoundly alters decision-making dynamics. For example, Furedi has argued that cautiousness is now embedded in institutional and bureaucratic responses to hazards.38 This institutionalisation is, in his view, now cast as a ‘responsible’ way of minimising risk.39 Decisions will therefore only be considered ‘correct’ if they sustain that institutional thinking.40 Similarly, Sunstein has claimed that decision-making may now be guided by a ‘precautionary principle’; a rule which says that until a decision- or policy-maker is certain of safety then she should exercise due caution.41 Avoiding risk in this way becomes a maxim of good administration and effective policy-making. 32 G Mythen, Ulrich Beck: A Critical Introduction to the Risk Society (London, Pluto Press, 2004) 18–23. 33 Luhmann (n 6) 19. 34 Mythen, Ulrich Beck (n 32) 142. 35 Beck, Risk Society: Towards a New Modernity (n 2) 34. 36 ibid. 37 Luhmann (n 6) 37. 38 F Furedi, Culture of Fear: Risk-taking and the Morality of Low Expectation (London, Continuum, 2005) 108. 39 ibid. 40 M Douglas, How Institutions Think (London, Routledge & Kegan Paul Ltd, 1986) 4. 41 CR Sunstein, Laws of Fear: Beyond the Precautionary Principle (Cambridge, Cambridge University Press, 2005) 13.

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The second consequence is the de-prioritisation of the pursuit of social justice in favour of the control and management of risk. According to Kemshall, risk replaced need as the core principle of social policy formulation and welfare delivery in the 1980s.42 For Beck, this transformation symbolises the transition from a ‘commonality of need’ to a ‘commonality of anxiety’.43 In the former, society encourages the pursuit of social wealth through the ‘positive logic of acquisition’; in the latter, it insists on the elimination, denial or reinterpretation of risks, what Beck called the ‘negative logic of disposition’.44 While the dream of the class society is that everyone wants and ought to have a share of the pie, the utopia of the risk society is that everyone should be spared from poisoning.45 To achieve that objective, a risk society’s social policy must facilitate the regulation of risks rather than the redistribution of wealth. According to Hood et al, the nature of modern risks is such that they justify continuing government interference with market or social processes to prevent adverse consequences.46 This demands regulatory ‘regimes’ comprising complex ‘institutional geography, rules, practice, and animating ideas’ which facilitate the management of a particular risk.47 Hood et al explain that the context and content of these regimes vary, meaning that there is no single correct model of risk regulation. The context of a regulatory regime depends on ‘the intrinsic characteristics of the problem it addresses, public and media attitudes about it, and the way power or influence is concentrated in organised groups’. The regime’s content comprises its ‘regulatory objectives, the way regulatory responsibilities are organised, and the operating styles of regulators’.48 Generally, regimes display similar processes: they set goals, specify ways of gathering information, and recommend ways of changing behaviour.49 They may be ‘active’ or ‘corrective’ by tackling the causes of a hazard, or ‘passive’ or ‘preventive’ by confronting its effects.50 Regulatory regimes might adopt a ‘homeostatic’ approach, whereby they set goals in advance and convert them into quantified rules for decisionmakers to follow. This approach works in a similar way to a thermostat: it operates according to a preset level of tolerance and comes into effect where the risks in question cross that threshold.51 Alternatively, regulatory regimes may take a ‘collibratory’ approach, in which competing considerations are held together ‘in a

42

H Kemshall, Risk, Social Policy and Welfare (Oxford, Oxford University Press, 2002) 1, 22. Society: Towards a New Modernity (n 2) 49. 44 ibid, 26. 45 ibid, 49. 46 C Hood et al, The Government of Risk: Understanding Risk Regulation Regimes (Oxford, Oxford University Press, 2004) 3. 47 ibid, 9. 48 ibid, 12, 23, 28. 49 Royal Society, Risk: Analysis, Perception and Management (London, Royal Society, 1992) 136. 50 ibid, 142. 51 ibid, 167. 43 Beck, Risk

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constant process of dynamic tension with no p re-set equilibrium’.52 This approach is analogous to the tension between the springs in an anglepoise desk lamp. Inevitably, the design of a regulatory regime reflects the nature of the hazard and the objectives of policy-makers. What becomes clear is that complex regulatory apparatus are a feature of modern societies and signify the processes in relation to which Beck devised his theory. As a consequence of the shift towards regulatory social policy, Kemshall argues that ‘attention shifts to blame [and] accountability’ when a decision-maker does not correctly predict or prevent an adverse outcome.53 Elsewhere, Douglas has said that this means that ‘every death [is] chargeable to someone’s account, every a ccident [is] caused by someone’s criminal negligence, [and] every sickness [becomes] a threatened prosecution’.54 She argues that adverse events immediately give rise to questions which seek to identify and punish the people responsible for them. Where an adverse incident occurs, the assumption is that someone is at fault and lessons must therefore be learned. Risk society is in this way intimately bound up with questions of accountability, responsibility and blame.55 The result is a ‘defensive’ society in which decision-makers deliberately (and perhaps excessively) err on the side of caution in order to avoid taking any risks at all.

Risk Society Theory and Mental Health The Parallels Between Risk Society Theory and Mental Health Pre-modern societies attributed mental disorder to moral deviance or daemonic possession. For example, the sacred texts of Christianity and Islam explicitly draw a link between mental illness and sin. In the Gospel According to Matthew, Jesus ‘heals’ a boy described as ‘lunatick, and sore vexed’ by driving ‘the devil’ out of him.56 Similarly, the Koran likens those who commit the sin of claiming interest on loans to those whom Satan has ‘smitten with insanity’.57 Elsewhere, Plato believed that immorality is to the soul what disease is to the body.58 In The Republic, he p osited that a person’s soul comprises three parts: (i) the rational, (ii) the irrational, and (iii) the spirited.59 If these components were to become unbalanced, Plato thought it would result in injustice, cowardice, wickedness and

52 ibid. 53

Kemshall (n 42) 6. M Douglas, Risk and Blame: Essays in Cultural Theory (London, Routledge, 1992) 15–16. A Giddens, ‘Risk and Responsibility’ (1999) 62(1) Modern Law Review 1. 56 King James Bible, Matthew 17:14–18. 57 Holy Qur’an 2:275. 58 K Seeskin, ‘Plato and the Origin of Mental Health’ (2008) 31 International Journal of Law and Psychiatry 487. 59 Plato, The Republic (Book IV) 439. 54 55

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presumably also what we would today recognise as mental illness.60 To avoid this imbalance a person must ‘[set] his house in order, [gain] mastery over himself, and [become] on good terms … through discipline’.61 These traditional views of insanity regarded it as a divine punishment or a product of some internal moral failing on the part of the sufferer. In more recent times, a sophisticated body of scientific knowledge and understanding has replaced these traditional assumptions. With this has come the recognition that the aetiology of mental illness is far more complex than pre-modern societies suggested.62 It is now widely accepted that extrinsic social and environmental factors can play a role in triggering or aggravating mental illnesses, thereby decoupling mental disorder from questions of sin and morality. Writing as early as 1916, Salmon argued that factors like unemployment, overwork, congestion of population and child labour make it difficult for poorer members of society to maintain ‘mental hygiene’.63 Since then, the causative potential of social and environmental factors and the associated health inequalities has become widely acknowledged.64 The ability to identify and anticipate such non-clinical ‘triggers’ of mental illness now makes it possible—at least in theory—for patients, mental health professionals and policy-makers to take steps to pre-empt mental disorders. In this way, mental health problems are contingent on, and susceptible to, human action, and not attributable to fate or immorality. Moreover, Felix and Bowers contended that an increasingly complex world with highly concentrated and more easily mobilised sources of power means that ‘the need for sanity is patent’.65 The implication behind this claim is that the trappings of modern society may have a sickening effect on mental health. The parallels with risk society theory are clear. First, it is possible to discern the same transition from pre-modernity to modernity with regard to mental health. What societal interpretations of mental illness exhibited during the twentieth c entury was arguably the same decline of nature and tradition which Giddens has contended is a consequence of modernity more broadly. Secondly, the reflexive tendency which Beck described is clearly observable in the mental health context too. Flynn suggests that ‘modern’ lifestyles are at least partly

60

ibid, 444. ibid, 439. 62 Among other things, a patient’s genetic profile, brain chemistry and social-environmental circumstances are variously credited as being causes of mental disorders or symptoms such as schizophrenia, psychosis, bipolar disorder and anxiety; see, eg, Rethink Mental Illness, ‘Conditions’: www.rethink.org/diagnosis-treatment/conditions. 63 TW Salmon, ‘Mental Hygiene’ in MJ Rosenau (ed), Preventive Medicine and Hygiene (New York, D Appleton & Co, 1916) 331. 64 See, eg, World Health Organization and Calouste Gulbenkian Foundation, Social Determinants of Mental Health (Geneva, WHO, 2014); G Dahlgren and M Whitehead, European Strategies for Tackling Social Inequities in Health: Levelling Up Part 2 (Copenhagen, WHO Regional Office for Europe, 2006) 20. 65 RH Felix and RV Bowers, ‘Mental Hygiene and Socio-environmental Factors’ (1948) 26(2) The Millbank Memorial Fund Quarterly 125. 61

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responsible for introducing new health risks to society.66 The way we live now is therefore creating new risks of adverse health outcomes. Where mental health is concerned, a wide range of research has linked things such as the trauma of life in the twenty-first century,67 terrorism,68 democratic processes,69 the Internet,70 climate change,71 unemployment,72 social isolation,73 debt and poverty,74 economic policy75 and industrialised labour76 to poor mental health outcomes. All of these ‘hazards’ are direct consequences of, or driven by, human endeavour and economic d evelopment—as such, they are undoubtedly the same sort of ‘manufactured’ risks that Beck had in mind. The scale of the ‘modern’ risk of mental illness is breathtaking. According to the latest mid-year estimate, the UK population stands at 65.1 million people.77

66 R Flynn, ‘Health and Risk’ in G Mythen and S Walklate (eds), Beyond Risk Society: Critics Reflections on Risk and Human Security (Oxford, Oxford University Press, 2006) 81. 67 eg, TW Miller, ‘Trauma, Change and Psychological Health in the 21st Century’ (2007) 62(8) American Psychologist 887. 68 eg, MA Schuster et al, ‘A National Survey of Stress Reactions after the September 11 2001 Terrorist Attacks’ (2001) 345 New England Journal of Medicine 1507. 69 eg, M Rowland, ‘Coping with post-Brexit Anxiety’ (Mental Health Foundation, 29 June 2016): www.mentalhealth.org.uk/blog/coping-post-brexit-anxiety; TJ Classes and RA Dunn, ‘The Politics of Hope and Despair: The Effect of Presidential Election Outcomes on Suicide Rates’ (2012) 91(3) Social Science Quarterly 593. 70 eg, P DiMaggio et al, ‘Social Implications of the Internet’ (2001) 27(1) Annual Review of Sociology 307; SR Cotten et al, ‘The Importance of Type, Amount and Timing of Internet Use for Understanding Psychological Distress’ (2011) 92(1) Social Science Quarterly 119. 71 eg, AJ McMichael, ‘Editorial: Drought, Drying and Mental Health: Lessons from Recent Experiences for Future Risk-lessening Policies’ (2011) 19 Australian Journal of Rural Health 227; CR Hart et al, ‘Improving the Mental Health of Rural New South Wales Communities Facing Drought and Other Adversities’ (2011) 19 Australian Journal of Rural Health 231. 72 eg, AH Winefield, ‘Unemployment: its Psychological Costs’ in CL Cooper and IT Robertson (eds), International Review of Industrial and Organisational Psychology (Chichester, Wiley, 1995); PA Creed et al, ‘The Role of Satisfaction with Occupational Status, Neuroticism, Financial Strain and Categories of Experience in Predicting Mental Health in the Unemployed’ (2001) 30 Personality and Individual Differences 435. 73 eg, CD Sherbourne, ‘The Role of Social Support and Life Stress Events in use of Mental Health Services’ (1988) 27(12) Social Science & Medicine 1393. 74 eg, ML Bruce et al, ‘Poverty and Psychiatric Status: Longitudinal Evidence from the New Haven Epidemiologic Catchment Area Study’ (1991) 48 Archives of General Psychiatry 470; D Stuckler et al, ‘The Public Health Effect of Economic Crises and Alternative Policy Response in Europe: An E mpirical Analysis’ (2009) 374 The Lancet 315; E Selenko and B Batinic, ‘Beyond Debt: a Moderator Analysis of the Relationship between Perceived Financial Strain and Mental Health’ (2011) 73 Social Science & Medicine 1725. 75 eg, R Warner, Recovery from Schizophrenia: Psychiatry and Political Economy, 3rd edn (London, Routledge, 2004). 76 eg, J Siegrist, ‘Adverse Health Effects of High-effort/Low-reward Conditions’ (1996) 1 Journal of Occupational Health Psychology 27; JTF Lau et al, ‘Suicides in a Mega-size Factory in China: Poor Mental Health among Young Migrant Workers in China’ (2012) 69 Occupational & Environmental Medicine 1. 77 Office for National Statistics, Statistical Bulletin: Population Estimates for UK, England and Wales, Scotland and Northern Ireland: mid-2015 (23 June 2016): www.ons.gov.uk/peoplepopulationandcommunity/ populationandmigration/populationestimates/bulletins/annualmidyearpopulationestimates/ mid2015.

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Approximately 53 million people in the UK are over the age of 16.78 Assuming that the estimate that one-in-four people in the UK is at risk of experiencing a mental health problem in any given year refers to the adult population, a quarter of adults, or 13.2 million people, are at risk. If it relates to the population more broadly, up to 16 million people may come to the attention of mental health services in any given year. Whichever figure one prefers, there is no doubt that the numbers involved are enormous. They dwarf those which pertain to the annualised number of new cases of cancer (356,860 in the UK in 2014),79 coronary heart disease (491,647 inpatient episodes in National Health Service (NHS) hospitals across the UK in 2013–14)80 and strokes (233,261 inpatient episodes in UK NHS hospitals in 2013–14).81 Moreover, the evidence suggests that common mental disorders have become more prevalent in England since 2000.82 Around 15.7 per cent of the adult population suffers from common mental disorders like anxiety and depression; 13.7 per cent has a personality disorder; one in every 100 people has a psychotic disorder such as schizophrenia; and 2 per cent has bipolar disorder.83 Therefore, mental health problems are common among adults in England. They also account for a large chunk of public expenditure—although pinning down exact figures for this is difficult. Because there is no ring-fenced allocation in the Budget for mental health services, it is not possible to give an accurate total figure for public investment in them.84 According to Harker, fully 11 per cent of the health budget went on mental health in England in 2010–11, representing the largest category of expenditure at that time.85 At £11.9 billion this was more than double the expenditure on oncology services (£5.8 billion) and around a third greater than spending on services for the care and treatment of circulatory problems (£7.7 billion), which represented the second most expensive category. Since then, responsibility for commissioning mental health services has devolved to Clinical Commissioning Groups (CCGs) which do not routinely split their allocated spending across service categories. According to the National Audit Office, NHS England spent approximately £11.7 billion on mental health services in 2014–15, a fi gure which amounted to an estimated 12 per cent of the health budget for that year.86 78 www.ons.gov.uk/peoplepopulationandcommunity/populationandmigration/populationestimates/ articles/overviewoftheukpopulation/mar2017#why-is-the-population-growing> accessed 15 March 2017. 79 Cancer Research UK, Cancer Incidence Statistics: www.cancerresearchuk.org/health-professional/ cancer-statistics/incidence. 80 British Heart Foundation, Cardiovascular Disease Statistics 2015: www.bhf.org.uk/research/ heart-statistics/heart-statistics-publications/cardiovascular-disease-statistics-2015. 81 ibid. 82 NHS Digital, Mental Health and Wellbeing in England: Adult Psychiatric Morbidity Survey 2014 (London, National Statistics, 2016): content.digital.nhs.uk/catalogue/PUB21748/apms-2014-full-rpt.pdf. 83 ibid. 84 House of Commons Library, Mental Health (3 December 2015): researchbriefings.parliament.uk/ ResearchBriefing/Summary/CDP-2015-0119#_ftn1. 85 R Harker, NHS Funding and Expenditure, 3 April 2012, House of Commons Library, SN/SG/724. 86 The Comptroller and Auditor General, Mental Health Services: Preparations for Improving Access (National Audit Office, HC 492, 21 April 2016) 6.

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owever, it was estimated that CCGs in England spent only £8.6 billion on H mental health services in 2015–16.87 This represented only around 6 per cent of that year’s total health budget of £141 billion.88 This suggests that there was a reduction in spending on mental health services in England between 2014–15 and 2015–16—athough it may also reflect changes in the way the relevant costs are calculated. Perhaps to address the shortfall, the government announced a £1.25 billion package of additional investment in the 2015 Budget89 and a further £600 million for mental health services in the 2015 Autumn Statement.90 This allows us tentatively to conclude that mental health services in England have typically been allocated approximately 10 per cent of the health service budget. In 2017–18, HM Treasury will spend £149 billion on health91—we can assume therefore that somewhere in the region of £15 billion will go on mental health services in England in that year.92 Mental health problems pose the single biggest public health challenge in the UK. According to the Mental Health Foundation, they constituted 28 per cent of the total burden of disease in the UK in 2015, compared with 16 per cent each for cancer and heart disease.93 Furthermore, the scale of the challenge is growing: the Adult Psychiatric Morbidity Survey reported in 2016 that 17 per cent of people over the age of 16 had experienced a common mental health problem in the week prior to their participation in the survey.94 According to the Mental Health Foundation, this was a 0.8 per cent increase from a survey conducted nearly a decade earlier.95 It is also clear that the costs associated with mental illnesses put considerable, and mounting, pressure on public finances. According to the UK’s Chief Medical Officer, mental illness costs the UK economy between £70 and £100 billion a year, equivalent to 4.5 per cent of Gross Domestic Product in 2013.96 By 2030, mental health-related social and informal care costs in England are projected be in excess of £30 billion a year.97 The Mental Health Foundation says that the financial gap

87

HC Deb 24 November 2015, 16368W. HM Treasury, Budget 2015 (London, Stationery Office, HC 1093, March 2015) 6. ibid, [1.233]. 90 HM Treasury, Spending Review and Autumn Statement 2015 (London, Stationery Office, Cm 9162, November 2015) 31. 91 HM Treasury, Spring Budget 2017 (London, Stationery Office, HC 1025, March 2017) 4. 92 According to an independent mental health taskforce which reported in 2016, annual spending on services for mental health conditions reaches £19bn; see Independent Mental Health Taskforce to the NHS in England, The Five Year Forward View for Mental Health (February 2016) 57: www.england. nhs.uk/wp-content/uploads/2016/02/Mental-Health-Taskforce-FYFV-final.pdf. 93 Mental Health Foundation, Fundamental Facts about Mental Health 2015 (2015) 7. 94 Adult Psychiatric Morbidity Survey 2014 (n 82) 48. 95 Mental Health Foundation, Fundamental Facts about Mental Health 2016 (2016) 14. 96 Annual Report of the Chief Medical Officer, Public Mental Health Priorities: Investing in the Evidence (2013) 158: www.gov.uk/government/uploads/system/uploads/attachment_data/file/413196/ CMO_web_doc.pdf. 97 Fundamental Facts about Mental Health 2016 (n 95) 85; this projection is based on the calculations in P McCorne et al, Paying the Price: The Cost of Mental Health Care in England to 2026 (King’s Fund, 2008): www.kingsfund.org.uk/sites/files/kf/Paying-the-Price-the-cost-of-mental-health-careEngland-2026-McCrone-Dhanasiri-Patel-Knapp-Lawton-Smith-Kings-Fund-May-2008_0.pdf. 88 89

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in mental health expenditures ‘is one of the biggest concerns of health professionals and researchers’ because ‘the number of individuals with mental ill health is expected to rise significantly in the near future’.98 These trends are magnified to an even greater extent on the global scale. According to World Health Organization (WHO) estimates, depression affected around 121 million people worldwide in 2010 and 24 million people suffered from schizophrenia.99 This compares with the 34 million people who were estimated to be living with HIV worldwide in the same year and 216 million cases of malaria.100 The WHO states that mental, neurological and substance use disorders are prevalent around the world, accounting for 14 per cent of the global disease burden and a third of all non-communicable diseases.101 It describes mental illness as a ‘major contributor’ to morbidity and premature mortality.102 Perhaps compounding this problem, nearly half of all people with mental disorders in developed countries and up to 85 per cent in less developed countries go without treatment.103 A lack of a universal commitment to achieving better mental health outcomes appears to be to blame for this discrepancy. In its Mental Health Atlas, the WHO estimates that only 72 per cent of the world’s population lives in countries with a dedicated mental health policy, and just over half enjoy the protection of mental health legislation.104 Indeed, mental health spending per capita is 200 times higher in developed countries than in less developed states, creating an enormous deficit which is reflected in the global disease burden statistics. More recent evidence suggests that the global prevalence of mental disorders has grown since the WHO reported its findings in 2010. Vos et al found that in 2015 there were around 26.4 million cases of schizophrenia worldwide; 320 million people were suffering from a depressive disorder; 51 million had bipolar disorder; and 306 million had anxiety disorder.105 Since 2005, schizophrenia cases have increased by 19.5 per cent worldwide; the number of depressive disorders has increased by 18.4 per cent; and anxiety cases have gone up by 14.9 per cent.106 The data gathered by Vos et al comport with those published by the WHO and allow us to estimate that more than a billion people around the world now suffer from mental or substance use disorders.107

98

Fundamental Facts about Mental Health 2016 (n 95) 88. World Health Organization, Mental Health: www.who.int/mental_health/management/en/. 100 World Health Organization, Global Health Observatory Data Repository: apps.who.int/ghodata/. 101 World Health Organization, Mental Health Gap Action Programme: Scaling Up Care for Mental, Neurological and Substance Use Disorders (Geneva, WHO, 2008) 6. 102 ibid. 103 ibid, 7. 104 World Health Organization, Mental Health Atlas 2011 (Geneva, WHO, 2011) 17, 22. 105 T Vos et al, ‘Global, Regional and National Incidence, Prevalence, and Years Lived with Disability for 310 Diseases and Injuries, 1990–2015: A Systematic Analysis for the Global Burden of Disease Study 2015’ (2016) 388 The Lancet 1545, 1567–68. 106 ibid. 107 ibid. 99

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All this allows us to argue that the risk of mental illness is an archetypal risk of the risk society. If we refract it through the ‘pillars’ of risk society which Mythen described, the theory’s explanatory potential becomes palpable. First, the risk of mental illness transcends spatial and temporal limits. As we have seen, a quarter of the UK’s adult population is at risk of experiencing a mental health problem in any given year. The realisation of that risk in no way depends on a person’s propinquity in time and space with a particular trigger. Most mental disorders will not result from a single discernible event; rather, they will stem from a virtually unlimited range of possible causes. It may also take many years for the risk to incubate. It cannot therefore be regarded as the product of some kind of bilateral dynamic between an identifiable ‘producer’ of the risk and the eventual sufferer. Instead, it relates to and reflects the deep-seated structural features of modern society which transcend spatial and temporal boundaries. S econdly, the risk of mental illness poses a greater catastrophic potential now than it did in the past. Although it is true that Beck had self-evidently catastrophic hazards—such as nuclear meltdown—in mind when he formulated his theory, this does not prevent us from arguing that the risk of mental illness also carries a significant catastrophic potential. As we have seen, mental disorders are increasingly prevalent and pose the single biggest public health challenge of modern times. They impose crippling financial and emotional costs. They also represent a global health emergency which is comparable to crises which are more readily associated with that characterisation, such as HIV/AIDS, malaria and tuberculosis. The fact that more than one billion people are suffering from mental or substance use disorders worldwide demonstrates that the risk of mental illness poses a global health challenge on a scale we have never witnessed before. While that risk might not pose an existential threat to life as we know it, it undoubtedly hampers development, arrests progress and imposes significant costs. In this way, it jeopardises the ‘modern project’ in the same way that any ‘catastrophic’ hazard might, albeit less suddenly and obviously. It is therefore a quintessentially ‘reflexive’ risk. Finally, the risk of mental illness is increasingly escaping institutional control. We have already seen that the costs associated with the care and treatment of mental illnesses continue to rise. This suggests that greater effort must be expended and bigger costs must be incurred to meet the challenge it poses. The rising costs suggest that the risk of mental illness is increasingly testing the limits of the traditional institutional responses which have sought to keep it in check. It is difficult to resist the conclusion that the risk of mental illness is entirely consistent with the sort of risks that Beck had in mind when he developed his theory.

The Influence of Risk Society on Mental Health Policy In light of these parallels, it is unsurprising that contemporary mental health policy and practice exhibit characteristics which imply that they have been recalibrated along the same lines that Beck anticipated. Recent mental health policy has displayed the same ‘future-proofing’ tendency, preoccupation with

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regulating risk, and emphases on accountability and blame which we discussed earlier. These patterns further strengthen the potential of Beck’s theory to explain the amplification of risk in contemporary mental health policy. Future-Proofing One of the main objectives of mental health policy in recent years has been to reduce the risk of mental illness in society. This ‘future-proofing’ is particularly evident in the embedding of preventive strategies into contemporary policy. These strategies differ from the ‘reactive’ approach which is implied by the MHA. They are predicated on the assumption that policy-makers can reduce the risk of m ental illness by authorising or facilitating interventions before the hazard materialises. The same inverted causality which Beck described is therefore at play in this context: it is the future risk of mental illness which informs the formulation and implementation of policy in the present. There are numerous examples of this future-proofing tendency in the grey literature. In 2008, a report published by the Foresight Mental Capital and Wellbeing Project specifically addressed ways in which policy-makers could harness the potential ‘to reduce the prevalence and costs of mental disorders’.108 The report’s authors described ‘drivers of change’ for mental health, which they said include biographic characteristics (eg, age, sex, ethnicity, family and socio-economic circumstances); household characteristics (eg, housing, communities); and societal characteristics (eg, crime, deprivation).109 They argued that because such a broad range of drivers pertains to mental health it should be a core consideration in wider policy development.110 In 2009, the Future Vision Coalition made a comparable recommendation and called for Parliament to amend the MHA so as to reduce its emphasis on public protection and incorporate preventive and r ecovery-oriented priorities into the statutory framework.111 A report by the Centre for Social Justice (CSJ) in 2011 adopted a similar position, calling for policy-makers to sharpen their focus on tackling the so-called ‘pathways to poverty’ which its authors argued contributed to poor mental health outcomes.112 The CSJ argued that policies which target joblessness, benefit dependency, poor educational attainment, family breakdown, social isolation, and drug and alcohol problems would have the incidental effect of reducing the risk of mental illness in society. More recently, the Mental Health Foundation has proposed that policy-makers frame preventive mental health policies which run for the duration

108 R Jenkins et al, Foresight Mental Capital and Wellbeing Project: Mental Health: Future Challenges (London, Government Office for Science, 2008) 70. 109 ibid, 61. 110 ibid. 111 The Future Vision Coalition, A Future Vision for Mental Health (2009) 30. 112 Mental Health Working Group, Completing the Revolution: Transforming Mental Health and Tackling Poverty (London, Centre for Social Justice, 2011) 34.

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of individuals’ ‘life courses’.113 The prevailing assumption is that it is possible for policy-makers to reduce or extinguish the risk of mental illness through timely and focused social policy interventions. Following the 2010 UK general election, this preventive theme crystallised into government policy. In No Health Without Mental Health, the Coalition Government put forward its key aim of improving mental health outcomes for more people.114 It hoped that this approach would promote positive parenting, tackle inequality, combat drug misuse and encourage employment—all of which it recognised as conducive to good mental health outcomes.115 Its objectives clearly gave expression to the narrative of prevention and embodied the spirit of ‘futureproofing’. It would further reinforce this by making the reduction of mental health problems a priority for Public Health England, a new executive agency charged with the responsibility of protecting and improving the nation’s health and wellbeing which it created in 2013.116 It also established prevention and early intervention as key priorities for the promotion, protection and improvement of the mental health and wellbeing of children and young people.117 Since 2015, the aim of reducing the risk of mental illness has remained a key driver of government policy, particularly in relation to children and young people.118 In its Five Year Forward View for Mental Health report, the independent Mental Health Taskforce to the NHS in England declared that ‘prevention matters’ in the promotion of good mental health.119 It said that prevention ‘involves good parenting and school support during the early years, decent housing, good work, supportive communities and the opportunity to forge satisfying relationships’.120 The Taskforce recommended that NHS England prioritise ‘prevention and early intervention’.121 It also called for Public Health England to develop a national ‘Prevention Concordat programme’ by no later than 2017.122 In its response to

113 I Goldie et al, Mental Health and Prevention: Taking Local Action for Better Mental Health (London, Mental Health Foundation, 2016) 9–17; ch 3: socialwelfare.bl.uk/subject-areas/servicesclient-groups/adults-mental-health/mentalhealthfoundation/177413mental-health-and-preventiontaking-local-action-for-better-mental-health-july-2016.pdf. 114 HM Government, No Health Without Mental Health (London, Department of Health, 2011). 115 ibid, [1.14], [3.10], 6.6. 116 Department of Health, Making Mental Health Services More Effective and Accessible (25 March 2013): www.gov.uk/government/publications/2010-to-2015-government-policy-mental-health-servicereform/2010-to-2015-government-policy-mental-health-service-reform. 117 Department of Health and NHS England, Future in Mind: Promoting, Protecting and Improving our Children and Young People’s Mental Health and Wellbeing (2015) 33–40: www.gov.uk/government/ uploads/system/uploads/attachment_data/file/414024/Childrens_Mental_Health.pdf. 118 Rt Hon Theresa May MP, ‘As A Society We Must Face Up to the Fact Mental Health Problems are Everyone’s Problem’ Huffington Post (8 January 2017): www.huffingtonpost.co.uk/theresa-may/ mental-health-theresa-may_b_14043050.html?utm_hp_ref=theresa-may. 119 Five Year Forward View for Mental Health (n 92) 15. 120 ibid. 121 ibid, 20. 122 ibid, 75.

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the Taskforce’s report, the government accepted these recommendations.123 The resulting Prevention Concordat Programme for Better Mental Health has three aims: —— to galvanise local and national action around the prevention of mental illness; —— to facilitate every local area to put in place effective prevention planning arrangements led by Health and Wellbeing Boards, CCGs, and local authorities; and —— to enable every area to use the best data available to plan and commission the right mix of provision to meet local needs.124 The Prevention Concordat’s primary function is therefore to ‘future-proof ’ society from the risk of mental illness through the design and delivery of preventive policy initiatives. Regulating Risk Recent mental health policy has favoured the regulation of risk over the improvement of patient health outcomes. It has implicitly acknowledged that the risks associated with mental illnesses fall on a continuum and therefore invite continuing regulatory oversight to ensure that they remain within acceptable limits. On this reading, the risk of mental illness is an incidental and ever present feature of modern life: it is therefore impossible to apply binary ‘risk/not a risk’ assessments in this context. As Denney has written, mental health patients find themselves on an ‘escalator of dangerousness’, up and down which they move at different moments in their lives.125 A similar dynamic appears to apply to the risk of mental illness more broadly. To some extent, this impulse towards regulatory solutions underlies the preventive policy schemes which we have already discussed. The core aim of these schemes is to ‘regulate’ the risk of mental illness in society through early policy interventions. Yet the regulatory mechanism itself is perhaps most tangibly apparent in the introduction of community-based care and treatment schemes, which aim to control and manage mentally disordered patients’ risks outside the institutional context. It is true that the risk with which these schemes are primarily concerned is the risk of harm contingent on mental disorder, not the risk of mental illness itself. However, the imprint of risk society theory in this context is clear, further strengthening its utility as an explanatory model for mental health policy in its broadest conception. 123 HM Government, The Government’s Response to the Five Year Forward View for Mental Health (January 2017): 24 www.gov.uk/government/uploads/system/uploads/attachment_data/file/582120/ FYFV_mental_health__government_response.pdf. 124 ibid; see also, Prevention Concordat Programme for Better Mental Health (Public Health England): preventionconcordat.com/. 125 Denney (n 4) 115–16.

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One example of this regulatory approach was the supervised discharge scheme introduced by the Mental Health (Patients in the Community) Act 1995. Also known as ‘after-care under supervision’, this scheme provided a legal basis for the discharge of a patient liable to be detained in hospital for the purposes of section 3 of the MHA into the supervision of a community responsible medical officer.126 Upon P’s discharge, that officer would ensure that P had access to the aftercare services to which he was entitled under section 117 of the MHA. P’s responsible medical officer could only apply for P’s supervised discharge on the grounds that, among other things, P satisfied a risk formula.127 P’s entitlement to receive aftercare services under supervision would cease if, among other things, he were readmitted to hospital under section 3 of the MHA.128 The mechanics of supervised discharge were therefore contingent on P posing enough of a risk to justify his continued engagement with mental health services but not enough to warrant his detention in hospital. Another example is Supervised Community Treatment (SCT), which in practice amounts to what Hood et al describe as a homeostatic regulatory regime, that is, a regulatory framework that switches interventions on or off depending on whether the risks are above or below a particular threshold. SCT has in this way helped to transform the entirety of English mental health law (ie, including its provision for voluntary and informal patients) into a more complete framework for the regulation of the risks associated with mental disorders. Although there are parallels between risk society theory and SCT, we must be cautious not to overstate our case here. We will see shortly that Beck’s theory is an imperfect explanation for the ‘riskification’ of the policy which underlay the 2007 Act’s amendments to the MHA. Risk society cannot therefore offer a complete theoretical account of new medicalism. However, the emergence of regulatory mechanisms for the control and management of patients’ risks in certain contexts under the MHA is unmistakably reminiscent of risk society theory. Accountability and Blame Mental health professionals now practise within a culture of accountability. According to Alaszewski, this is a direct consequence of the contemporary preoccupation with risk in mental health practice, which means that mental health services are now chiefly concerned ‘with [allocating] responsibility for losses … [and] preventing harm to individuals, [service] users, agency employees

126

Mental Health (Patients in the Community) Act 1995, s 1. would be a substantial risk of serious harm to the health or safety of the patient or the safety of other persons, or of the patient being seriously exploited, if he were not to receive the aftercare services to be provided for him under section 117 below after he leaves hospital’; see Mental Health (Patients in the Community) Act 1995, s 1. 128 Mental Health (Patients in the Community) Act 1995, s 1. 127 ‘there

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and the public’.129 The emergence of this culture of accountability therefore further corroborates the risk society theory. Again, the risk which appears to have been the main driver of this cultural shift is that which is perceived to be posed by people with mental disorders to themselves or others. Consequently, assessments of risk have a dual purpose: they are (i) clinical fact-finding processes which enable decision-makers to calculate the likelihood that P will cause harm to himself or others, among other things; and (ii) defensive exercises which ensure that decisions are ‘clinically, logically and medico-legally defensible’.130 A structural or institutional emphasis on the control and management of risk therefore warps the priorities of decision-makers: their attention shifts from the singular objective of trying to improve outcomes for others to deflecting blame. This is not to say that the risk of mental illness generally will not have a similar effect; it seems likely, for example, that policy-makers will be held accountable for any failure to address the significant public health challenge that mental health problems pose to contemporary society. The construction and installation of the apparatus of accountability would seem to be a logical corollary of the emphasis that modern societies place on risk more broadly. The best example of the culture of accountability in the mental health context relates to the investigation of adverse incidents. In 1994, the Department of Health issued guidance which made it mandatory for public inquiries to be set up to investigate all adverse incidents perpetrated by people with mental disorders following their discharge into the community.131 According to Blom-Cooper, the principal objectives of a public inquiry are to establish the facts, identify individual culpability, survey the arrangements that led to the event, and name-andshame those responsible to pre-empt a crisis of public confidence.132 There were over 60 public inquiries in the 10 years since they became compulsory, contributing to a high level of anxiety about the perceived failure of community care.133 In fact, Warner’s may be a conservative estimate; Prins reckons that there have been over 400 inquiries since 1994.134 In any case, Warner argues that the inquiry reports have embedded the link between mental illness and violence in the public

129 A Alaszewski et al, ‘Professionals, Accountability and Risk’ in A Alaszewski et al (eds), Risk, Health and Welfare: Policies, Strategies and Practice (Buckingham, Open University Press, 1998) 94. 130 M Vinestock, ‘Risk Assessment: A Word to the Wise?’ (1996) 2 Advances in Psychiatric Treatment 3, 4. 131 Department of Health, Guidance on the Discharge of Mentally Disordered People and Their Continuing Care in the Community (Circular HSG (94)(27) and LASSL (94)(4), 1994); see also NHS England, Serious Incident Framework: Supporting Learning to Prevent Recurrence (27 March 2015) 61–62: www.england.nhs.uk/wp-content/uploads/2015/04/serious-incidnt-framwrk-upd.pdf. 132 L Blom-Cooper, ‘Public Inquiries’ (1993) 46(2) Current Legal Problems 204, 205. 133 J Warner, ‘Homicide Reports as Active Texts’ (The Open University, 2012) 2: www.kent.ac.uk/ scarr/events/finalpapers/warner.pdf. 134 H Prins, ‘Homicide and Allied Inquiries: In Whose Best Interests?’ (2010) 50 Medicine, Science and the Law 4, 7.

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consciousness.135 It is true that many of the inquiries held since 1994 were convened to investigate high-profile homicides.136 This may explain why a majority of the public continues to believe that mental health policy should emphasise protecting the public from people with mental illness.137 While attitudes to mental illness have generally improved, the belief that people are in danger from those with mental disorder has remained a stubborn feature of public debate. By asking ‘what went wrong?’ public inquiries may reinforce public misconceptions about risk and mental illness. Perhaps the most well-known public inquiry is that which investigated the Jonathan Zito case and examined the care and treatment which his killer, Christopher Clunis, had received for paranoid schizophrenia.138 Its report found that Clunis’ care and treatment comprised ‘a catalogue of failure and missed opportunity’ which culminated in his killing Zito in December 1992.139 For example, the different agencies involved in the Clunis case failed to communicate with each other, overlooked his clinical history and neglected his aftercare arrangements.140 The inquiry found that Clunis had exhibited violent tendencies on several occasions, which ought to have signalled the high level of risk he posed to others.141 The inquiry said that decision-makers tended to miss the bigger picture: for example, they overlooked violent incidents, focused too much on delivering short-term care, allowed geographical boundaries to interfere with treatment provision, and deferred difficult decisions.142 Underlying the Clunis inquiry report is an assumption that if the decision-makers had acted otherwise then the adverse outcome might have been avoided. On the issue of risk specifically, the inquiry concluded that there were examples of ‘poorly considered and sometimes misleading predictions’ of risk in the Clunis case which had ‘led to false reassurance about his potential for dangerous behaviour’.143 While the inquiry insisted that no single individual or agency was at fault, its report blamed systemic

135 Warner (n 133) 5; see also P Fennell, ‘Radical Risk Management, Mental Health and Criminal Justice’ in N Gray et al (eds), Criminal Justice, Mental Health and the Politics of Risk (London, Cavendish Publishing Ltd, 2002). 136 eg, C Heginbotham et al, The Report of the Independent Panel of Inquiry Examining the Case of Michael Buchanan (North West London Mental Health Trust, 1994); J Perry and B Sheldon, Richard Phillips Inquiry Report (City and Westminster and Kensington, Chelsea and Westminster District Health Authority, 1995); R Francis et al, Report of the Independent Inquiry into the Care and Treatment of Michael Stone (South East Coast Strategic Health Authority, 2006). For a summary of other high-profile homicide inquiries, see H Prins, Will They Do It Again? Risk Assessment and Management in Criminal Justice and Psychiatry (London, Routledge, 1999). 137 Time to Change, Attitudes to Mental Illness 2014 Research Report (TNS BMRB, 2015) 16–17: www.time-to-change.org.uk/sites/default/files/Attitudes_to_mental_illness_2014_report_final_0.pdf. 138 J Ritchie et al, The Report of the Inquiry into the Care and Treatment of Christopher Clunis (London, HMSO, 1994). 139 ibid, [42.1.1]. 140 ibid, [42.2.1]. 141 ibid, [12.2], [12.5], [24.2], [35.1], [35.2], [35.3], [35.4], [36]. 142 ibid, [42.2.3]. 143 ibid, [49.0.2].

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failure for allowing the factors that contributed to the death of Jonathan Zito to prevail.144 It is easy to see how public inquiries can simultaneously embody and perpetuate a culture of accountability. Underlying each one is the assumption that some individual or systemic failure may be to blame for the relevant adverse incident.145 Szmukler explains that the assumption that professional decisionmaking is always the difference between good and bad outcomes is deeply misconceived: not all risk factors for violence in people with mental illness inevitably lead to h omicide.146 Yet, the rationale behind post-hoc inquiries is impervious to such nuances. Instead, inquiries implicitly accuse mental health professionals of failure, placing them in an ‘invidious position’ in which the consequences of both their retrospective (would you have acted differently?) and prospective (what would you do now?) viewpoints are considered.147 Once an inquiry is convened, the implication is that someone is to blame, completely overlooking the fact that no decision-maker can eliminate every risk. Decision-makers’ professional competence therefore cannot match society’s lofty expectations. Perhaps it is not surprising that Warner found that the culture of blame induced by public inquiries caused mental health professionals to display ‘heightened levels of anxiety … and an increased tendency … to practise defensively’.148 * Contemporary mental health policy and practice bear the imprint of the risk society theory. From the 1990s onwards, the principal objective of mental health policy has been the control and management of the risks associated with mental disorder. In particular, policy-makers have sought to reduce the risk of mental illness in general, thereby attempting to tackle a public health problem which poses a growing challenge in the modern era. The result is a suite of policies wholly defined by risk: they are organised around the reduction of the risk of mental illness, the regulation of its concomitant risks, and the allocation of responsibility. It is in this way that Beck’s theory offers what at first blush would seem to be a plausible theoretical basis for mental health law and policy in England.

The Limits of Risk Society’s Explanatory Potential Risk society theory is an expression of scientific realism: it seeks to explain the impact that a society’s transition to modernity has had on the real-world

144

ibid, [42.1.1]. eg, D Tidmarsh, ‘Psychiatric Risk, Safety Cultures and Homicide Inquiries’ (1997) 8(1) Journal of Forensic Psychiatry 138. 146 G Szmukler, ‘Homicide Inquiries: What Sense do they Make?’ (2000) 24 Psychiatric Bulletin 6, 7. 147 J Peay, ‘Clinicians and Inquiries: Demons, Drones or Demigods?’ (1997) 9 International Review of Psychiatry 171, 171–72; For general discussion see J Peay, Inquiries After Homicide (London, Duckworth Publishing, 1996). 148 Warner (n 133) 6. 145 See,

The Risk of Mental Illness 151

‘apprehension of risk’.149 It regards risks and hazards as objective facts which are amenable to ‘rationalistic calculation’;150 they are real phenomena which precipitate the reflexive social order that Beck described. Risk society theory assumes that the risks which modern societies face really have multiplied and intensified as a matter of objectively-justifiable, empirical fact. So far, we have noted that the risk of mental illness is an archetypal ‘risk society’ risk. The evidence suggests that the risk of mental illness is real, affects more people than ever before, and imposes growing pecuniary and non-pecuniary costs on society. The elevation of that risk as a priority for English mental health policy is therefore a wholly understandable recalibration to a new reality. Anything which seeks to reduce the risk of mental illness must surely be a welcome feature of the policy landscape in a society facing ever greater hazards. Beck’s theory is therefore right on point if it is the risk of mental illness which is the main focus of mental health policy. Yet while risk society theory provides an elegant explanation for some of the ‘riskification’ of mental health policy over the last 20 years, it cannot plausibly explain why policy-makers afforded the risks of harm associated with mental illness such a priority prior to the introduction of the MHA 2007. While the risk of mental illness is undoubtedly a ‘risk society’ risk, the risk that a person with mental disorder might cause harm to himself or other people is not. The explanatory potential of risk society theory as a theoretical framework for new medicalism is therefore rather limited. Whereas the general risk of mental illness may have increased in the modern era, the same cannot be said about the risk of a person with mental disorder causing harm to himself or others. In fact, the evidence suggests that this risk has remained constant for decades. This is not to say that the risk of harm is somehow unreal or imaginary: there clearly is a risk that people with mental disorders may cause harm. However, that risk is very small. Where the risk of harm to others is concerned, the UK Chief Medical Officer has stated that ‘most people with mental illness are not violent, and most people who are violent are not mentally ill’.151 In their analysis of Home Office crime statistics compiled between 1957 and 1995, Taylor and Gunn found that there was little fluctuation in the number of homicides committed by people with mental disorders during that time.152 They argued that the reformulation of national policy towards the care and treatment of 12,000 or 13,000 people based on the actions of approximately 40 of them therefore made little sense.153 According to one estimate, the risk that a person with psychosis will kill a stranger is in the region of one in 10 million;154 according to another, the risk of violence

149

See, eg, Denney (n 4) 30. D Lupton, Risk (London, Routledge, 1999) 28. 151 Annual Report of the Chief Medical Officer (n 96) 232. 152 PJ Taylor and J Gunn, ‘Homicides by People with Mental Illness: Myth and Reality’ (1999) 174(1) British Journal of Psychiatry 9. 153 ibid, 10. 154 Szmukler (n 146) 6. 150

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among those with severe mental health problems over a four-year period stands at approximately 2.88 per cent.155 A person is more likely to be killed by someone not suffering from a mental disorder than he is to suffer at the hands of a person with such a diagnosis.156 The very latest data show that the number of homicides committed by mental health patients who have been in contact with mental health services in the 12 months prior to the offence has fluctuated between 2004 and 2014 and remains too small to permit any meaningful examination of the longterm trends.157 The reality is that people with mental health problems are more likely to be victims of violent crime than they are to commit it.158 There is no doubt that mental health patients are more likely to harm themselves than they are others, meaning that the focus on the likelihood of harm to others is misconceived.159 Between 2004 and 2014, there were 13,921 suicides committed by people who had been in contact with mental health services in the 12 months prior to their death; this was 28 per cent of all suicides in the general population in England.160 However, the data are not indicative of a crisis. According to the National Confidential Inquiry into Suicide and Homicide by People with Mental Illness, the rate of patient suicides has fallen from 117.7 deaths per 100,000 service users in 2004 to 75.6 deaths per 100,000 service users in 2014.161 Nor has the number of patient suicides shown any significant increase since 2004, suggesting that mental health patients in England are no more likely to commit suicide now than they were 10 years ago. The falling suicide rate is consistent with suicide rates generally, which have shown a steady downward trend since 1979.162 While risk society theory might lead us to expect an increase in the rate and number of patient suicides, we have in fact witnessed the opposite. The longterm trends have, at best, exhibited a steady decline in the number of cases or, at worst, held constant or shown only slight increases. Where self-harm is concerned, the data are harder to locate. According to statistics cited by the Mental Health Foundation and the Adult Psychiatric Morbidity Survey, rates of self-harm have increased by 4 per cent over the last fourteen years.163 However, intentional self-harm accounted for 112,096 hospital admissions in the 12-month period

155 R Van Dorn et al, ‘Mental Disorder and Violence: Is there a Relationship beyond Substance Use?’ (2012) 47 Social Psychiatry and Psychiatric Epidemiology 487, 490. 156 J Shaw et al, ‘Rates of Mental Disorder in People Convicted of Homicide: National Clinical Survey’ (2006) 188 British Journal of Psychiatry 143. 157 The National Confidential Inquiry into Suicide and Homicide by People with Mental Illness, Making Mental Health Care Safer: Annual Report and 20-Year Review (University of Manchester, 2016) [146]. 158 B Pettitt et al, At Risk, Yet Dismissed: The Criminal Victimisation of People with Mental Health Problems (2013): www.mentalhealth.org.uk/sites/default/files/fundamental-facts-about-mental-health2016.pdf. 159 Fundamental Facts about Mental Health 2016 (n 95) 27. 160 National Confidential Inquiry (n 157) [62]. 161 ibid, [65]. 162 Jenkins et al (n 109) [2.8.1]. 163 Fundamental Facts about Mental Health 2016 (n 95) 25; see also NHS Digital (n 82) ch 12.

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between September 2014 and August 2015—a decrease of 1.8 per cent on the previous year.164 While rates of self-harm may have increased, it is not necessarily the case that the data all point in the same direction. Risk society theory suggests that risks increase in their distribution and impact in the modern era. The available statistics reveal that the risks of harm that m entally disordered people pose to themselves or others do not conform to this pattern. Beck’s theory cannot therefore explain why the 2007 Act and its underlying policy gave those risks such prominence; the reality would surely have demanded a very different MHA from that which is now in force. This suggests that the reality of risk was simply immaterial in that context; instead, it was the way in which that risk was constructed which mattered. This leads us to the conclusion that while risk society may be a useful theoretical account up to a point, there must be another explanatory model for the MHA 2007 and, by extension, new medicalism.

The Risks of Harm Associated with Mental Illness Governmentality and the Concept of Risk The concept of ‘governmentality’ was developed by Michel Foucault as part of his critical theories of state power and the role of government. Foucault argued that in the modern age the principal objective of the wielders of sovereign power is government as an end in itself. He posited that all governments ultimately develop a continuing interest in maintaining ‘the welfare of the population, the improvement of its condition, [and] the increase of its wealth, longevity [and] health’.165 A government’s primary role becomes to seek the ‘correct manner of managing individuals, goods and wealth’ in order to make a populace’s fortunes prosper.166 Power is consequently exercised according to the priorities of ‘biopolitics’, which emphasises the integration of people ‘into systems of efficient and economic controls’.167 This necessarily entails the supervision of the population to maintain its regularities—and therefore its utility—and to discipline those individuals that deviate from them.168 The management and control of the population is therefore ‘the ultimate end of government’.169

164 J Winter, Provisional Monthly Topic of Interest: Hospital Admissions Caused by Intentional Self-harm (Health and Social Care Information Centre, 2015): content.digital.nhs.uk/catalogue/ PUB19222/prov-mont-hes-admi-outp-ae-April%202015%20to%20August%202015-toi-rep.pdf. 165 M Foucault, ‘Governmentality’ in G Burchell et al (eds), The Foucault Effect: Studies in Governmentality (Chicago, IL, University of Chicago Press, 1991) 100. 166 ibid, 92. 167 M Foucault, The Will to Knowledge: The History of Sexuality—Volume 1 (London, Penguin Books, 1998) 136, 138. 168 ibid. 169 Foucault, ‘Governmentality’ (n 165) 100.

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As it was in Beck’s scholarship, the concept of risk is central to Foucault’s governmentality thesis. Yet whereas risk society theory assumes that risks ‘exist in a hard, material way’, governmentality adopts a ‘constructivist’ approach which regards risks as social and cultural phenomena to be determined through complex processes of selection and definition.170 It offers a way of ‘representing events in a certain form so they might be made governable in particular ways, with particular techniques and for particular goals’.171 Owing to this flexibility, Dean believes that risk may have either a quantitative or qualitative character within governmentality. For example, ‘epidemiological’ risk is concerned with the rates of morbidity and mortality among populations.172 It has an essentially quantitative character and acts as a calculus of health outcomes. By contrast, ‘case management’ risk ‘concerns the qualitative assessment of individuals … as falling within “at-risk” categories’.173 Governmentality therefore does not assume that there is a fixed definition of ‘risk’; rather, it examines the role that social structures play in influencing ‘subjective’ knowledge about risk.174 Hacking argues that a key feature of modern societies is their ‘fundamentally quantitative feel for nature, how it is and how it ought to be’.175 Today, we live in a numerical world in which it is possible to calculate the likelihood and magnitude of adverse incidents. This derives from the fact that ‘an avalanche of numbers’ fuelled the development of the modern industrial state.176 Hacking points to the collection of medical statistics during the nineteenth century, which revealed that the spread of epidemics like cholera was not random but in fact conformed to a pattern.177 This data revealed much about the aetiology of diseases and, as a result, epidemiologists found they could predict with reasonable accuracy their likely impact on the population. In Hacking’s view, modern society is no longer shaped by notions of ‘determinism’ but is rather governed by ‘chance’, thereby requiring all decision-makers to function probabilistically.178 The discovery that populations have their own ‘regularities’ and ‘aggregate effects’—for example, rates of death and disease, cycles of scarcity, and levels of mortality179—transformed the priorities of governments. Foucault claims that the discovery of these regularities provided the rationale for the ensemble of institutions and procedures which

170 K Rasborg, ‘“World Risk Society” or “New Rationalities of Risk”? A Critical Discussion of Ulrich Beck’s Theory of Reflexive Modernity’ (2012) 108(1) Thesis Eleven 3, 11–12. 171 M Dean, Governmentality: Power and Rule in Modern Society, 2nd edn (London, SAGE, 2010) 206. 172 ibid, 218. 173 ibid. 174 G Mythen, ‘Sociology and the Art of Risk’ (2008) 2(1) Sociology Compass 299, 303. 175 I Hacking, The Taming of Chance (Cambridge, Cambridge University Press, 1990) 5. 176 I Hacking, ‘How Should We Do the History of Statistics?’ in G Burchell et al (eds), The Foucault Effect: Studies in Governmentality (Chicago, IL, University of Chicago Press, 1991) 183, 189. 177 ibid. 178 Hacking, The Taming of Chance (n 175) 5. 179 Foucault, ‘Governmentality’ (n 165) 99.

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we would today recognise as government.180 By analysing trends in the population, governments can redirect their efforts to maintain the optimum conditions through which they can extract maximum productivity. More significantly, they can also identify those people who, by deviating from the statistical norm, are ‘at risk’ and therefore in need of disciplinary intervention. The imputation of risk is therefore a condition precedent for the exercise of the supervisory or disciplinary power of government. From the governmentality perspective, risk is an instrument of power which justifies the continuing surveillance and control of a population by the state. When viewed in this way, it is easy to see how the concept of risk acquires a moral dimension. This is especially true when we consider also that assessments of risk may entail a qualitative analysis. If a member of a population does not comply with a particular construction of regularity, he thereby frustrates the purposes of government and warrants discipline. This constitutes a moral judgement, meaning that considerations of risk have been ‘interwoven with ideas of responsibility’.181 Lupton argues that the concept of risk is now widely used to explain deviations from the norms of contemporary Western societies.182 She contends that imputations of risk are levelled against those people that are culturally positioned on the margins of society.183 Governmental priorities value the ‘civilised body’, which by definition is aligned with the white, able-bodied, bourgeois, heterosexual and masculine majority, over ‘The Other’, which includes women, the working class, non-whites, the disabled and gays and lesbians.184 Lupton argues that ‘The Other’ comprises those people who are deemed to be ‘prone to emotionality, excessive desire, violence or disarray’.185 She uses the example of homeless people, who are reconceptualised in modern society as ‘dirt’ and ‘matter out of place that requires removal so as to regain order and purity’.186 Such people are socially inferior to the ‘civilised body’ and considered as morally and physically contaminating.187 For that reason, they are constructed as ‘“grotesque bodies” … needful of c ontrol, surveillance and discipline’.188 A social system underpinned by governmentality therefore uses risk to delineate the interests of the ‘elite’ and identify those deemed capable of challenging or undermining its hegemony. Mythen uses the ‘War on Terror’ as another example of this dynamic. He argues that the 9/11 terrorist attacks re-scripted the discourse so as to sanction a variety

180

ibid, 102–03. JO Zinn and P Taylor-Gooby ‘The Challenge of (Managing) New Risks’ in P Taylor-Gooby and JO Zinn (eds), Risk in Social Science (Oxford, Oxford University Press, 2006) 58. 182 Lupton (n 150) 3. 183 ibid, 49. 184 ibid, 130. 185 ibid. 186 ibid, 136. 187 M Douglas and A Wildavsky, Risk and Culture: An Essay on the Selection of Technological and Environmental Dangers (Berkley, CA, University of California Press, 1982) 47. 188 Lupton (n 150) 147. 181

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of disciplinary measures directed against a section of the population perceived as a risk to national security, for example, detention without charge or trial, intensive surveillance, and so on.189 That risk was inferred from the religious beliefs and ethnic backgrounds of the members of that section of the population, which were deemed to indicate a threat to the security of the ‘civilised’ majority. In spite of the emphasis on surveillance and control which distinguishes the Foucauldian model of risk, there is a degree of overlap with risk society theory. Both schools of thought believe that risk has become a more prominent feature of the modern era. For that reason, Beck and Foucault would presumably have agreed that modernisation has transformed humanity’s understanding of, and interaction with, the world around it. However, whereas Beck argued that society’s preoccupation with risk stems from the increasingly catastrophic hazards which are a by-product of progress, Foucauldian thinkers believe that the concept is an important tool with which governments can identify deviance from the norm in a population and thereupon deploy the disciplinary power of the state. Notwithstanding these distinct theoretical interpretations of the concept, it may be that from a more practical standpoint the consequences of both positions are very similar: both appear to engender a preoccupation in society with avoiding future hazards, both reshape institutional geography and reorient social policy to respond to risks, and both seem to promote the expansion of the apparatus of regulation or surveillance. The key difference is that while risk society coheres ostensibly with an objectively justifiable scientific method, governmentality relies on more subjective influences.

Governmentality, the Mental Health Act 2007 and New Medicalism Foucault believed that the ultimate purpose of psychiatry is the ‘supervision of normality’.190 Underlying this is the assumption that mental illness is abnormal and therefore a form of deviance which invites institutionalised surveillance, discipline and correction. Foucault argued that psychiatry, and mental health services more broadly, are in effect agents of government power which function according to the objectives of governmentality. Mental health laws which authorise the compulsory admission to hospital of mentally disordered patients on the basis of their perceived risks are therefore the quintessential instruments of governmentality. It is the perceived risk of harm which a mentally disordered person poses to himself or others which provides the occasion for disciplinary intervention. It is therefore unsurprising that the concept of risk plays such a central role in this domain. According to Denney, ‘increased surveillance and attempts to predict dangerous and violent behaviour in the mentally ill’ are now key

189 190

Mythen, ‘Sociology and the Art of Risk’ (n 174) 309–10. M Foucault, Discipline and Punish: The Birth of the Prison (London, Penguin Books, 1991) 296.

The Risks of Harm Associated with Mental Illness 157

features of the mental health system.191 For Castel, this transformation of psychiatric practice is consistent with the trends exhibited in medicine more broadly. Professional judgement is now less important: an expanding knowledge base allows decision-makers to identify risks according to a range of abstract factors which in turn render the ‘individualised interview between practitioner and client almost dispensable’.192 As we have already seen, this actuarial approach to decision-making has become a common feature of mental health professional practice in recent years. As a result, decision-making is ultimately an administrative exercise through which doctors and allied professionals plan out trajectories and ensure that human profiles match up to them.193 The upshot is that it is no longer necessary for patients to manifest symptoms of dangerousness; rather, it is enough for them to display whatever characteristics have been constructed as risk factors.194 The parallels between contemporary mental health practice and governmentality are therefore obvious: it is the disciplining of risk, rather than the improvement of health outcomes, which has become the principal function of compulsory mental health services. When one recalls the emphasis that policy-makers have placed of late on the risks that the mentally ill may pose, it is difficult to deny the potential for governmentality to explain recent developments in mental health law in England. Foucault’s conceptualisation offers a compelling narration of the particular prominence that policy-makers afforded to risk. While all the evidence suggests that the actual risks of harm attendant on mental disorders are, and always have been, low, policy-makers placed an inordinate emphasis on them in framing the 2007 Act. We must therefore infer that it was the way in which the risk of harm was constructed that mattered and not empirical reality. The same complex processes of selection and definition to which we have already referred have been instrumental in re-scripting the discourses on mental health in recent years. The same ‘Othering’ which Lupton described has occurred in relation to people suffering from mental disorders. The mentally ill are now ‘matter out of place’ on the periphery of society and ‘needful of surveillance and discipline’.195 They pose a challenge to the interests of the ‘civilised body’ and therefore must be removed so as to restore ‘order and purity’.196 Although this was not the language that policy-makers adopted prior to the introduction of the 2007 Act, it is difficult to dispute that they shared the same sentiment. As we saw in chapter three, a prevailing sense that the original 1983 Act had failed to protect patients and the public from situations of risk drove an ambition to strengthen the compulsory powers to tackle these

191

Denney (n 4) 114. R Castel, ‘From Dangerousness to Risk’ in G Burchell et al (eds), The Foucault Effect: Studies in Governmentality (London, Sage, 1996) 281–82. 193 ibid, 295. 194 ibid. 195 Lupton (n 150) 147. 196 ibid, 136. 192

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problems. This recasting of the risks attendant on mental illness has derived from overwhelmingly simplistic and false assumptions about mental disorders. This in turn has justified the introduction of reforms which make it easier to bring the mentally ill within the scope of the MHA’s civil commitment powers. It is therefore unsurprising that the 2007 Act’s principal reforms took the shape that they did. The reformed MHA’s simpler definition of ‘mental disorder’, its ‘appropriate treatment’ test, and its redefinition of professional roles all make it easier to invoke the compulsory powers and exert control over, or discipline, ‘risky’ patients. That the risk of harm may be overstated, or even imaginary, does not matter: it is the reorientation of subjective interpretations of mental illnesses and their concomitant risks which has led to their curious elevation as priorities for public policy. This raises a finer point: if governmentality can provide a theoretical context for mental health laws which authorise compulsory care and treatment on the basis of the perceived risks of harm, surely it is the theoretical foundation of all of the descriptive models and not just new medicalism uniquely? As we have seen, the 2007 Act has not fundamentally reinvented the MHA. It is true that governmentality can just as readily serve as a theoretical model for legalistic, medicalistic and new legalistic statutory frameworks. Any statute which permits the compulsory care and treatment of a person with a mental disorder has echoes of governmentality. It does not therefore require a tremendous leap in the dark to locate new medicalism within the Foucauldian tradition; it sits comfortably alongside the existing descriptive models within that theoretical domain. Yet new medicalism would seem to provide perhaps the most perfect expression of governmentality: its explicit emphasis on risk and the role of mental health services in controlling and managing it bring it into much closer alignment with Foucauldian ideas than any of the other models. It is for that reason that it provides the most plausible theoretical underpinning of the principal reforms of the MHA 2007 and new medicalism more broadly.

Conclusions Considerations of risk have become increasingly prominent features of mental health policy in recent years. Policy-makers are simultaneously exercised by the general risk of mental illness and the more specific risk that a person with a mental disorder might cause harm to himself or others. It was the latter risk which shaped the principal reforms of the 2007 Act, but the former is also a conspicuous driver of mental health policy. In its search for a suitable theoretical scaffold for new medicalism, this chapter has critically examined the explanatory potential of theories which posit that modern societies devote ever closer attention to considerations of risk. For different reasons, it has found that Ulrich Beck’s risk society theory and Michel Foucault’s governmentality thesis both offer useful theoretical templates.

Conclusions 159

At the root of Beck’s risk society theory is the proposition that modern societies face situations of risk that have ‘little precedent in human history’.197 These risks are the manufactured by-products of societal progress. What emerges is a ‘reflexive’ social order organised around the objective of controlling and managing risk. This preoccupation with risk leads to a reconfiguration of public policy in order to better achieve that objective. To some extent, risk society theory maps perfectly the ‘riskification’ of mental health policy in England. The risk of mental illness is growing, increasingly costly, and jeopardises the advancement of the ‘modern project’. Policies which are expressly directed towards the reduction of that risk are more and more common and therefore offer a neat illustration of Beck’s theory. However, it is not true that the risk of harm which is attendant on mental disorder is any more widespread or damaging now than it was in the past. Risk society theory cannot therefore explain why that particular risk received so much attention prior to the 2007 Act. For that reason, it is Foucault’s governmentality thesis which is the more apposite model in this regard. Foucauldian theorists have argued that the concept of risk is essential for the purposes of achieving the governing objectives of the state. Crucially, risks are constructed: the wielders of sovereign power interpret risk in such a way as to give effect to the ultimate ends of government. The risk of harm which is attendant on mental illness was therefore constructed to an extent that ultimately warranted its prioritisation as a focus for mental health policy. That in turn contributed directly to the shape, scope and mechanics of the 2007 Act’s principal reforms. New medicalism is therefore most convincingly theorised as a product of governmentality. It is a Foucauldian contrivance that describes a statutory framework which establishes mechanisms for the surveillance and discipline of ‘risky’ people with mental disorders. Although it is true that legalistic, new legalistic, and medicalistic statutes could also plausibly be located within the Foucauldian domain, new medicalism would seem to achieve the best fit. Its focus on risk, coupled with its facilitation of the deployment of disciplinary power to tackle it, provides the most precise illustration of the impulses which Foucault described.

197 Giddens, The

Third Way and its Critics (n 28) 137.

5 New Medicalism and Human Rights Introduction There is an intimate link between mental health and human rights, which, according to Gable and Gostin, makes it difficult to evaluate one without the other.1 The history of psychiatry comprises a grim litany of instances in which mental health policies and practices have permitted human rights abuses. For example, psychiatry was instrumental in sustaining slavery in the United States,2 preserving totalitarian dictatorships,3 and pathologising same-sex attraction.4 Human rights law has since come to play a key role in delimiting the boundaries of clinical competences, restricting the use of coercion, and defending the liberties of people suffering from mental disorders. Through this, human rights have become indelibly associated with legalism/new legalism: McSherry and Weller, for example, refer to ‘rights-based legalism’ to describe mental health laws which give precedence to the rights of individuals.5 Weller says that one of the core characteristics of rights-based legalism is the use of restrictive criteria for civil commitment.6 As we have seen, the Mental Health Act (MHA) 2007 has signalled a departure from this approach. Its retreat from rights-based legalism not only implies a revival of medicalistic tendencies, it also suggests that the human rights of people suffering

1 L Gable and L Gostin, ‘The Human Rights of Persons with Mental Disabilities: The European onvention on Human Rights’ in L Gostin et al (eds), Principles of Mental Health Law and Policy C (Oxford, Oxford University Press, 2010) [3.09]; see also, LO Gostin, ‘Human Rights of Persons with Mental Disabilities’ (2000) 23 International Journal of Law and Psychiatry 125; LO Gostin and L Gable, ‘The Human Rights of Persons with Mental Disabilities: A Global Perspective on the Application of Human Rights Principles to Mental Health’ (2004) 63 Maryland Law Review 20. 2 See, eg, S Cartwright, ‘Diseases and Peculiarities of the Negro Race’ (1851) XI(3) De Bow’s Review Southern and Western States 331. 3 See, eg, RD Strous, ‘Psychiatry During the Nazi Era: Ethical Lessons for the Modern Professional’ (2007) 6 Annals of General Psychiatry 8 (on psychiatric abuses in Nazi Germany); TW Harding, ‘Human Rights Law in the Field of Mental Health: A Critical Review’ (2000) 101 Acta Psychiatrica Scandinavica 24 (on psychiatric abuses in the Soviet Union). 4 The American Psychiatric Association delisted homosexuality as a mental disorder in 1973; it was not dropped from the DSM-III until 1987. 5 B McSherry and P Weller, ‘Rethinking Rights-based Mental Health Laws’ in B McSherry and P Weller (eds), Rethinking Rights-Based Mental Health Laws (Oxford, Hart Publishing, 2010) 5. 6 P Weller, ‘Lost in Translation: Human Rights and Mental Health Law’ in B McSherry and P Weller (eds), Rethinking Rights-Based Mental Health Laws (Oxford, Hart Publishing, 2010) 55.

Introduction 161

from mental disorders are likely to be less robustly protected in the post-2007 Act era. There is an extensive literature on the interplay between mental health and human rights, much of which predates the 2007 Act. There are significant continuities between the pre- and post-2007 Act eras: formal patients are still ‘sectioned’ on the basis of their mental health status, deprived of their liberty in hospitals, and given medical treatment irrespective of whether or not they consent to it. The various human rights implications of these practices remain largely the same in the post-2007 Act era and have been the subject of able and comprehensive scrutiny elsewhere.7 For that reason, this chapter does not seek to embark upon a discursive rehearsal of the relationship between mental health and human rights in general. Rather, its aim is to make an original contribution by focusing on the human rights implications of new medicalism specifically. As we know, the 2007 Act’s reforms have made it easier to bring people with mental disorders within reach of the MHA’s compulsory powers. They have also reaffirmed the priority which the law affords to the risks of harm which people with mental disorders are commonly perceived to pose. This new medicalistic paradigm would appear simultaneously to undermine the right to liberty and to perpetuate the law’s discriminating effect against people with mental disabilities. These particular human rights implications are the principal focus of this chapter. This chapter contends that a new medicalistic legal framework is incompatible with the prevailing norms of international human rights law. First, we focus on the European Convention on Human Rights and Fundamental Freedoms (ECHR), which the Human Rights Act (HRA) 1998 incorporated in part into domestic law. The ECHR protects ‘classic’ first-generation civil and political rights, such as the right to life, the prohibition on torture and inhuman or degrading treatment or punishment, and the right to a fair trial. Importantly for present purposes, Article 5 of the ECHR protects the right to liberty and security of the person. It expressly bars a State party to the Convention from depriving a person of his liberty, unless (i) his case corresponds with one of the exceptions in Article 5(1), and (ii) it is done in accordance with a procedure prescribed by law. One such exception is ‘the lawful detention of … persons of unsound mind’.8 The standard which a State party’s legal framework must meet before it will satisfy Article 5(1) in this regard is not especially onerous—and the MHA continues to comply with it, even after the 2007 Act’s reforms. Moreover, there is nothing in the ECHR which precludes the use of risk as the animating principle in mental health legal frameworks; indeed, the European Court of Human Rights (ECtHR) has positively welcomed its inclusion. This means that there is nothing in the ECHR or the ECtHR’s jurisprudence to suggest that a new medicalistic statutory framework contravenes the right to liberty under Article 5. This is despite the fact that new medicalism lends itself to

7 8

eg, Gable and Gostin, ‘The Human Rights of Persons with Mental Disabilities’ (n 1). ECHR, art 5(1)(e).

162 New Medicalism and Human Rights

legally uncertain outcomes and inconsistent decision-making. This is the biggest weakness of ‘first-generation’ human rights frameworks: they counterintuitively permit arrangements which undermine the very rights that they nominally seek to defend. Yet, because the ECHR is binding on English law, and because the post2007 MHA would seem to comply with Article 5, new medicalism cannot be said to violate the right to liberty as a matter of law, despite its obvious propensity to do so as a matter of fact. In its second part, this chapter examines the implications of the United Nations (UN) Convention on the Rights of Persons with Disabilities (CRPD). The CRPD was adopted by the UN General Assembly on 13 December 2006.9 Its principal objective is ‘to ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities’.10 The UN Convention represents the so-called ‘second-generation’ rights by combining civil and political rights and social and economic rights in the same instrument. Although it does not define ‘disability’, the CRPD states that ‘persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments’11— a formula which encompasses persons with mental disorders, or ‘psychosocial disabilities’. The United Kingdom (UK) became a signatory to the CRPD on 30 March 2007 and ratified it on 8 June 2009. Although it is not currently incorporated into English law, the CRPD nevertheless imposes an obligation on the UK in international law to align its domestic legal framework with its provisions. This raises urgent questions about the MHA’s civil commitment provisions, which plainly violate the CRPD. This part of the chapter shows that the UK will be in perpetual breach of international human rights law for as long as the MHA remains on the statute book, regardless of its otherwise unimpeachable compliance with the ECHR. F urthermore, we will see that the CRPD may have begun to influence the ECtHR, thereby hinting at a gradual process of alignment between what are, at least at first glance, conflicting frameworks. This chapter concludes that new medicalism is at odds with international human rights law. This is not because of any failing unique to new medicalism, although there is no doubt that the 2007 Act’s reforms are hardly commensurate with a buccaneering defence of human rights. Rather, it is because new medicalism shares the same basic assumption which underpinned its legalist, new legalist and medicalist forerunners, namely, that involuntary treatment for mental disorders and disabilities is a legitimate practice which the law must authorise and regulate. The CRPD completely rejects this assumption and points in an altogether different direction. This marks a transformational moment by heralding the end of mental health law as we know it.

9 UNGA Res 61/106 Convention on the Rights of Persons with Disabilities (13 December 2006) UN Doc A/RES/61/106 (CRPD). 10 CRPD, art 1. 11 ibid (emphasis added).

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New Medicalism and the European Convention on Human Rights (ECHR) The ECHR, the HRA and the Mental Health Act The HRA 1998 incorporated the rights and freedoms which appear in Articles 2–12 and 14 of the ECHR into English law.12 Since 2000, disputes pertaining to the alleged contravention of any of those rights have been contestable before and remediable in the domestic courts.13 In giving this effect to the ECHR, the HRA has altered the workings of the English legal system. All this is highly consequential for the MHA and mental health services. First, the courts must read and apply the MHA in accordance with the ECHR.14 They must also, where relevant, take into account the wealth of ECtHR cases which concern the violation (or otherwise) of the rights of persons with mental disorders.15 Secondly, when the Bill which would become the MHA 2007 was first introduced in the House of Lords in 2006, Lord Warner, then a Minister of State in the Department of Health, issued a declaration pursuant to section 19(1)(a) of the HRA 1998 and said that one of the primary aims of the legislation was to bring the law ‘fully into line with the European Convention on Human Rights’.16 One can infer from this that the then government considered that any resulting Act of Parliament would be compliant with the European Convention. Finally, as public bodies, mental health services must at all times discharge their functions in accordance with the duty under section 6 of the HRA. This means that the rights under the European Convention must inform in a tangible way the treatment experiences of patients subject to the care of mental health services in England. It should come as no surprise that the MHA has proved to be fertile ground for ECHR-related disputation.17 Perhaps the most well-known example is the fallout from the Bournewood litigation (see chapter one).18 Although the Bournewood case did not concern a patient held under the MHA, it effectively elevated the

12

Human Rights Act (HRA) 1998, s 1(1)(a). HRA 1998, s 8(1). 14 HRA 1998, ss 2(1) and 3(1). 15 See, eg, Dhoest v Belgium (1990) 12 EHRR CD135; Herczegfalvy v Austria (1993) 15 EHRR 437; Aerts v Belgium (2000) 29 EHRR 50; Khudobin v Russia [2006] ECHR 898; Nevmerzhitsky v Ukraine (2006) 43 EHRR 32; Romanov v Russia (2007) 44 EHRR 23; Renolde v France [2008] ECHR 1085; Kaprykowski v Poland [2009] ECHR 198; Dordevic v Croatia [2012] ECHR 1640; Stanev v Bulgaria [2012] ECHR 46. 16 HL Deb 28 November 2006, vol 687, col 655. 17 eg, K Gledhill, ‘Human Rights Instruments and Mental Health Law: The English Experience of the Incorporation of the European Convention on Human Rights’ (2007) 34 Syracuse Journal of International Law and Commerce 359, 384–403. 18 R v Bournewood Community and Mental Health NHS Trust, ex parte L [1999] 1 AC 458 (HL); HL v United Kingdom (2005) 40 EHRR 32. 13

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1983 Act’s procedural framework as an example of best practice where the right to liberty is concerned. The incorporation of the ECHR has also led to a recalibration of the MHA itself. In R (H) v London North and East Region Mental Health Review Tribunal,19 the Court of Appeal issued the very first declaration of incompatibility under section 4 of the 1998 Act. The case concerned sections 72 and 73 of the original 1983 Act, which placed a burden on formal patients to prove to the Mental Health Review Tribunal (MHRT) that there was no longer a basis to continue their detention. Lord Phillips MR said that it is contrary to the right to liberty under Article 5 of the ECHR to detain a patient ‘unless it can be shown that the patient is suffering from a mental disorder that warrants detention’.20 Because sections 72 and 73 of the MHA did not at that time require the tribunal to discharge a patient if it could not be shown that he was suffering from such a mental disorder, His Lordship held that both provisions were incompatible with Article 5(1) and Article 5(4). To rectify this, the then government issued the Mental Health Act 1983 (Remedial) Order 2001 to amend sections 72 and 73 and remove the incompatibility from the MHA.21 Another declaration of incompatibility was issued by the Divisional Court in R v Secretary of State for the Home Department, ex parte D.22 Here, Stanley Burnton J held that section 74 of the original MHA was incompatible with Article 5(4) because it rendered a patient’s access to the MHRT contingent upon an act of the executive. His Lordship said that where an executive act is required for a person to have access to a court, ‘that person is not “entitled” to take proceedings to test the lawfulness of his detention’ within the meaning of Article 5(4). For that reason, section 74 was incompatible with the ECHR. On this occasion, the offending provision was amended by an Act of Parliament.23 The same course of remedial action was taken to address the incompatibility which the Divisional Court identified between the original sections 26 and 29 of the 1983 Act and Article 8 of the ECHR in R (M) v Secretary of State for Health.24 In this case, M had a mental disorder and was liable to be detained under section 3 of the MHA. She sought to replace her stepfather as her nearest relative because she claimed he had abused her during her childhood. Following an unrelated judgment in JT v United Kingdom,25 in which the ECtHR found that the inability of patients to replace their nearest relatives amounted to a breach of Article 8, the British Government said that it had plans to amend the MHA. Despite this, Maurice Kay J issued a section 4 declaration on the basis that the incompatibility had been identified a considerable time ago and

19

R (H) v London North and East Region Mental Health Review Tribunal [2001] EWCA Civ 415. ibid [31] (emphasis added). Mental Health Act 1983 (Remedial) Order 2001, SI 2001/3712; see also HRA 1998, s 10. 22 R v Secretary of State for the Home Department, ex parte D [2002] EWHC 2805. 23 Criminal Justice Act 2003, s 295. 24 R (M) v Secretary of State for Health [2003] EWHC 1094; see also Re HM’s Application for Judicial Review [2014] NIQB 43. 25 JT v United Kingdom (2000) 30 EHRR CD77. 20 21

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that its anticipated removal had still not taken place.26 Interestingly, Parliament went on to rectify this incompatibility through sections 23 to 26 inclusive of the MHA 2007. The 2007 Act was therefore instrumental in achieving the current MHA’s purported compatibility with the ECHR. As Fennell points out, MHA processes have experienced a ‘steady process of juridification’ following the introduction of the HRA.27 The English courts have shown themselves to be more than willing to identify incompatibilities between the 1983 Act and the ECHR, and this readiness has contributed to the remaking of the MHA in the European Convention’s image.28 The ECHR is therefore far from a toothless or tokenistic international human rights framework; its precepts have plainly made a tangible impact on English mental health law. Its clout is such that we can assume for present purposes that if any of the 2007 Act’s reforms were found to conflict with a European Convention right then they would soon be reversed. Conversely, we can also assume that if none of the 2007 Act’s key provisions has so far been the subject of ECHR-related judicial review then it must follow that they comply with the Convention.

On the Right to Liberty Article 5 of the ECHR The contents of Article 5 which are most relevant for present purposes read as follows: (1) Everyone has the right to liberty and security of the person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: … (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants … … (4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

26

ibid, [11]. P Fennell, ‘Convention Compliance, Public Safety and the Social Inclusion of Mentally Disordered People’ (2005) 32(1) Journal of Law and Society 90, 103. 28 If anything, the courts may even have been too trigger-happy in this regard: the Court of Appeal’s declaration that MHA 1983, s 2, was incompatible with ECHR art 5(4) in R (MH) v Secretary of State for Health [2004] EWCA Civ 1609 was subsequently overturned by the House of Lords ([2005] UKHL 50). 27

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Article 5 makes the right to liberty a limited right, meaning that a State party may legitimately abridge or suspend it in certain circumstances, such as following a person’s conviction for a criminal offence29 or lawful arrest.30 All that is required is that (i) the relevant circumstances correspond with one of the cases listed under Article 5(1), and (ii) the deprivation of liberty is prescribed by law. As we can see above, subparagraph (e) expressly recognises that the lawful detention of ‘persons of unsound mind’ serves as an exception to the right to liberty for the purposes of Article 5(1). There is nothing therefore to suggest that the MHA’s compulsory powers contravene the ECHR’s rendition of the right to liberty; indeed, they operate entirely within the limits of one of the legitimate exceptions to it. Several points are noteworthy here. The first is that it is clear that Article 5 assumes that the law will play a determinative role where detention on the basis of unsound mind is concerned. In this way, it propagates legalism. Secondly, the exception under Article 5(1)(e) reflects a ‘medical model’, which assumes that a person’s health status can affect his entitlement to the law’s protection of his human rights. Far from treating human rights as ‘universal’ and applicable to all, Article 5(1)(e) discriminates between persons with unsound mind and everyone else. A person’s right to liberty can therefore come and go depending on his mental health status. Furthermore, Article 5 exhibits what might be considered to be inordinate deference to doctors. The ECHR does not define ‘unsound mind’, leaving the identification and diagnosis of the mental disorders which will justify the abridgement of the right to liberty to the medical profession. This rather undermines the common characterisation of the ECHR as a paragon of rights-based (or new) legalism: if what amounts to ‘unsoundness of mind’ is a matter for doctors then it is rather difficult to see how such an arrangement can be commensurate with patients’ rights to liberty and security. Such an approach would seem more in keeping with medicalism, with its emphasis on professional discretion, rather than the rigidities of rights-based legalism. The ECtHR has given similar expression to this deferential spirit in cases concerning other rights of mentally disordered persons. In Herczegfalvy v Austria,31 for example, the Court said that in general anything which the relevant medical authorities consider to be a ‘therapeutic necessity’ cannot be regarded as inhuman or degrading for the purposes of Article 3 of the ECHR.32 This approach means that at the very moment when one might expect that the European Convention apparatus will engage in careful scrutiny of a mentally disordered person’s human rights, it does the exact opposite. Finally, Article 5(1) does not make any stipulations as to the form or content of the legal procedure which is required to legitimise a deprivation of liberty. In failing to do so, it confers a wide discretion on its States parties to formulate their respective

29

ECHR, art 5(1)(a). ECHR, art 5(1)(b). (1993) 15 EHRR 437. 32 ibid, [82]; see also, Nevmerzhitsky v Ukraine (2006) 43 EHRR 32, [34]. 30 31

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frameworks as they see fit. It is clear from subparagraph (e) that the MHA could go much further than it does and still not fall foul of Article 5. It could, for example, deprive persons dependent on alcohol or drugs of their liberty—a basis for detention which the MHA has conspicuously omitted to incorporate.33 The implication is that the threshold which a State party’s mental health legal framework must meet before it will comply with Article 5(1) is rather low. As long as there is at least a ‘procedure prescribed by law’ to speak of then this would seem to be enough. This opens up the possibility that there could be enormous variation in the form or content of mental health legal procedures across the 47 jurisdictions in which the European Convention operates, and yet universal compliance with Article 5(1). It is therefore conceivable that a State party’s legal framework might contain provisions which foster uncertainty and inconsistency—and therefore jeopardise liberty in a real sense—and yet not contravene Article 5 in a technical sense. This would imply that the trappings of a new medicalistic mental health framework would not necessarily violate the right to liberty as it is articulated by the ECHR.

Article 5 and the ECtHR The case law of the ECtHR sheds light on how Article 5 should be interpreted, especially in relation to persons suffering from mental disorders. In W interwerp v The Netherlands,34 the applicant was committed to a psychiatric hospital in accordance with an emergency procedure. Six weeks later, he was readmitted to the same hospital following an application made by his wife to the District Court. The Regional Court then subsequently renewed the applicant’s detention on an annual basis, following further applications by his wife and the public prosecutor and with reference to the medical reports of his doctors. The applicant complained that none of the courts which had ruled in his case had given him an opportunity to appear before them to challenge the basis of his commitment to hospital. They had not even notified him when they had issued the relevant orders. As a result, the applicant claimed that his right to liberty under Article 5(1) of the ECHR had been violated.35 Winterwerp is perhaps the most important case on the interpretation of Article 5(1)(e) that the ECtHR has decided. It specifies the threshold which a State party’s legal framework must meet before it can legitimately authorise the detention of persons of unsound mind. Winterwerp is therefore the yardstick against which we must determine the compatibility of the MHA’s amended civil commitment provisions with Article 5(1).36 In deciding the case, the ECtHR held 33

MHA 1983, s 1(3). Winterwerp v The Netherlands (1979–80) 2 EHRR 387. 35 The applicant also complained that his rights under ECHR arts 5(4) and 5(6) had been violated. 36 Winterwerp has influenced judicial thinking in England; see, eg, R (W) v Doncaster MBC [2004] EWCA Civ 378; JP v South London and Maudsley NHS Foundation Trust [2012] UKUT 486 (AAC); Re X (Deprivation of Liberty) [2014] EWCOP 25; Re X (EWHC, 13 May 2016 (F)). 34

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that the term ‘unsound mind’ in subparagraph (e) of Article 5(1) is not capable of having a definitive interpretation: its meaning continually evolves as research in psychiatry progresses and society’s attitudes to mental illness changes.37 What qualifies as ‘unsoundness of mind’ is therefore a matter for the relevant national authorities to resolve. The only limitation which the ECtHR has expressly imposed in this connection concerns ‘views or behaviour [that] deviate from the norms prevailing in a particular society’,38 which cannot of themselves be taken as evidence of ‘unsoundness of mind’. Beyond this restriction, the ECtHR in Winterwerp declined to apply any further gloss on the term ‘unsound mind’. It did, however, articulate the procedural requirements which must feature in States parties’ mental health legal frameworks if they are to constitute a proper legal procedure under Article 5(1). First, the individual concerned must reliably be shown to be of ‘unsound mind’, a determination which calls for the involvement of ‘objective medical expertise’. Secondly, the person’s mental disorder ‘must be of a kind or degree warranting compulsory confinement’. Thirdly, the person’s detention in hospital must persist only as long as his mental disorder: if the patient ceases to be of ‘unsound mind’ then he must be released.39 As long as the domestic legal provisions which authorise civil commitment operate accordingly, any deprivations of liberty will constitute lawful detention of a person of unsound mind within the meaning of Article 5(1)(e). In Winterwerp, the ECtHR found that the relevant provisions of Dutch law which had applied in the applicant’s case cohered with these criteria and therefore his right to liberty under Article 5(1) had not been violated. The upshot of Winterwerp is that the threshold which the domestic legal framework must meet is low. The ECtHR explained that in a democratic society, ‘no detention that is arbitrary can ever be regarded as “lawful”’.40 It therefore articulated the so-called Winterwerp criteria as a bulwark against arbitrariness; as long as the law subscribes to them, it follows that any resulting decision will not be arbitrary by definition. The notion that the absence of arbitrariness is a necessary ingredient of lawfulness is a theme to which the ECtHR has returned many times.41 In Varbanov v Bulgaria,42 for example, the ECtHR reaffirmed that the absence of arbitrariness would be assured if all decisions to admit patients to hospital are taken in accordance with the opinion of a medical expert.43 As long as that expert opinion is not driven by bad faith or deception then the simple fact of

37

Winterwerp (n 34) [37].

39

ibid, [39].

38 ibid. 40 ibid.

41 The ECtHR’s emphasis on procedural certainty is not just limited to mental health cases; see, eg, Kokkinakis v Greece (1993) 17 EHRR 397. 42 Varbanov v Bulgaria [2000] EHHR 455. 43 ibid, [46]–[47].

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its meaningful inclusion will suffice to satisfy the requirements of Article 5(1).44 In Amuur v France,45 the ECtHR said that where a provision of national law authorises deprivations of liberty ‘it must be sufficiently accessible and precise’.46 It made the same point in Kawka v Poland,47 where the Court stressed that in deprivation of liberty cases it is important that the ‘general principle of legal certainty’ is satisfied.48 This means that ‘the conditions for deprivation of liberty under domestic law should be clearly defined’ and ‘the law itself be foreseeable in its application’.49 Similarly, in Sabeva v Bulgaria,50 the Court said that the requirement of lawfulness means that the law ‘should be accessible to the persons concerned and foreseeable as to its effects’.51 In HL v United Kingdom,52 the ECtHR found that the applicant’s right to liberty under Article 5(1) had been violated following his deprivation of liberty under the English common law doctrine of necessity. The common law’s ‘lack of any fixed procedural rules by which the admission and detention of [informal patients] is conducted’ meant that the avoidance of arbitrariness was not possible in HL’s case.53 That the procedural rules may themselves be arbitrary appears not to matter. For example, a medical expert may conclude that a person with a mental disorder poses a risk of harm which warrants his detention in hospital by using one of the same methodologically dubious risk assessment techniques which we discussed in chapter two. While the method that the decision-maker has used in this example clearly carries the risk of arbitrariness, the fact that he is a medical expert has a sanitising effect and puts his resulting decision beyond the scrutiny of the ECHR. In framing the Winterwerp criteria so broadly, the ECtHR has conspicuously avoided tackling this problem of inherent arbitrariness, that is, the arbitrariness which can reside within expert decision-making processes. It is obvious that the Court in Winterwerp was reluctant to interfere with the domestic customs of the States parties to the Convention. Provided that the particular domestic framework conforms to the standards formulated by the European Convention apparatus, and was duly applied in the relevant circumstances, then that will be enough to satisfy the Court that there is no breach of Article 5(1).54 That such an approach may still leave scope for legal 44 X v Finland App no 34806/04 (ECtHR, 3 July 2012) [147]; Saadi v United Kingdom App no 13229/03 (ECtHR, 29 January 2008) [68–69]. 45 Amuur v France (1996) 22 EHRR 533. 46 ibid, [50]. 47 Kawka v Poland App no 25874/94 (ECtHR, 9 January 2001). 48 ibid, [49]. 49 ibid. 50 Sabeva v Bulgaria App no 44290/07 (ECtHR, 10 June 2010). 51 ibid, [57]. 52 (2005) 40 EHRR 32. 53 ibid, [119]–[120]. 54 See, eg, Ashingdane v United Kingdom (1985) 7 EHRR 528; Van der Leer v The Netherlands (1990) 12 EHRR 567, [21]–[24]; HL v United Kingdom (2005) 40 EHRR 32; Kolanis v United K ingdom (2006) 42 EHRR 12, [67]–[73]; Storck v Germany (2005) 43 EHRR 96, [89]–[113]; Shtukaturov v Russia (2012) 45 EHRR 27, [112]–[114]; Sykora v Czech Republic App no 23419/07 (ECtHR, 22 November 2012); LM v Latvia [2013] MHLR 238.

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uncertainty and, indeed, arbitrariness, is ostensibly not an issue for the European Convention. A related issue concerns the use of risk as a criterion for the detention of persons with mental disorders. Article 5(1)(e) does not expressly limit the lawful detention of persons of unsound mind to situations in which they pose a demonstrable risk of harm to themselves or other people. On a literal interpretation, the wording of subparagraph (e) does nothing to preclude a State party to the ECHR from detaining all persons of unsound mind within its jurisdiction. This is another example of how Article 5(1) notionally permits the law in England to go much further by manifesting a much broader coercive potential. Although politically unconscionable, the wording of Article 5(1) suggests that the systematic detention of all persons of unsound mind would not necessarily breach the ECHR. This is instructive: it demonstrates that human rights do not always obstruct practices that may appear to amount to arbitrary or excessive deprivations of liberty. Even the Winterwerp criteria are silent on the issue of risk—although it is possible to read the stipulation that a person’s mental disorder ‘must be of a kind or degree warranting compulsory confinement’ as implicitly incorporating considerations of risk into the equation.55 This suggests that a criterion which renders a mentally disordered person’s detention contingent on it being necessary for his health or safety or for the protection of others is, for the purposes of the ECHR, an extra feature of mental health law. It is even possible to interpret its inclusion as an additional safeguard of the right to liberty, in that its effect is to restrict deprivations of liberty to situations of heightened risk. In light of all of the problems with the concept of risk outlined in chapter two, this would seem a rather counterintuitive observation. However, it is clear that the inclusion of a risk formula in the MHA leaves domestic mental health law with a much narrower scope than even Article 5(1) permits. The ECtHR has nevertheless recognised that the risk of harm that a mentally disordered person may pose to himself or others is a valid basis on which to justify his detention. The Court noted in Winterwerp that the law which was in force in the Netherlands at the material time did not appear to be in any way incompatible with Article 5(1)(e).56 Included within it was a provision which restricted the confinement of persons with mental disorders to occasions when they were an actual danger to themselves or others. The implication is that risk formulae are entirely legitimate components of domestic mental health legal frameworks. This is not to say that a State party can use Article 5(1)(e) to justify a general programme of preventive detention of ‘risky’ individuals: the lawfulness of detention under subparagraph (e) is contingent on its being ‘effected in a hospital, clinic or other appropriate institution’, so plainly it must pursue a legitimate objective.57 55

See, eg, Zagidulina v Russia App no 11737/06 (ECtHR, 2 May 2013). Winterwerp (n 34) [38]. Ashingdane v United Kingdom (1985) 7 EHRR 528, [44]; see also, Aerts v Belgium (2000) 29 EHRR 50; Polskiego v Poland (2005) 41 EHRR 21. 56 57

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In Guzzardi v Italy,58 the Court explicitly stated that the reason why Article 5(1) (e) allows persons of unsound mind to be deprived of their liberty ‘is not only that they have to be considered as occasionally dangerous for public safety but also that their own interests may necessitate their detention’.59 It is the risk that mentally disordered persons can pose to themselves in particular which distinguishes them from others and thereby justifies their differential treatment by the European Convention.60 The legitimate objective of controlling and managing the risks associated with people suffering from mental disorders is therefore the very reason why the ECHR permits their lawful detention. In Reid v United Kingdom,61 the applicant had been detained in hospital solely on the basis of a diagnosis of antisocial personality and psychopathic disorder. Under section 17(1)(a)(i) of the Mental Health (Scotland) Act 1984, patients with the applicant’s condition could only be detained in hospital for treatment where their mental disorder satisfied a treatability test. The applicant relied on medical evidence to argue that his mental disorder was not treatable; the Sheriff refused to order his release because there was a risk that Reid would display violent and sexualised behaviour. The applicant contended that the UK had violated his right to liberty under Article 5(1) by keeping him detained in hospital when his condition was no longer treatable within the meaning of the 1984 Act. The ECtHR held that there had been no violation of the applicant’s right to liberty because the ECtHR jurisprudence did not recognise a treatability concept; this was an added extra on which the Court could not pass judgment.62 For that reason, there can be no violation of Article 5(1) where a person with a mental disorder is deprived of his liberty in breach of some idiosyncratic provision of domestic law. All that is required for the purposes of the European Convention is that the applicant is ‘properly established as suffering from a mental disorder of a degree warranting compulsory confinement’.63 Such confinement may be necessary where a person needs therapy, medication or other clinical treatment, ‘but also where the person needs control and supervision to prevent him, for example, causing harm to himself or other persons’.64 It is therefore quite permissible for the domestic legal framework to authorise the detention of people suffering from mental disorders on the basis of their perceived risks to themselves or others. It is here that we encounter a paradox: while the ECtHR regards legal certainty as critically important, it is apparently happy to sanction domestic legal

58

Guzzardi v Italy (1981) 3 EHRR 333. ibid, [98]. 60 ibid; see also, Witold Litwa v Poland (2001) 33 EHRR 53; Gorshkov v Ukraine App no 67531/01 (ECtHR, 8 November 2005); Labita v Italy (2008) 46 EHRR 50; Grosskopf v Germany (2011) 53 EHRR 7. 61 Reid v United Kingdom (2003) 37 EHRR 9. 62 ibid, [51]. 63 ibid. 64 ibid (emphasis added). 59

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frameworks which deprive persons of unsound mind of their liberty on the basis of inherently uncertain assessments of risk. As we saw in chapter two, the outcome of such assessments can be anything but certain, and their processes can be wholly inconsistent. It is difficult to see how the centrality of risk in this context can possibly create a legal basis for detention that is non-arbitrary, accessible to the patient or his representatives, and foreseeable in its effects. Yet, the ECtHR p refers not to interfere in the decision-making processes of mental health professionals. This dynamic is neatly illustrated by X v United Kingdom,65 where the ECtHR said that while it had the jurisdiction to verify the fulfilment of the W interwerp criteria, ‘the logic of the system of safeguards established by the [European] Convention places limits on the scope of this control’.66 Because national authorities are ultimately in a better position to evaluate the evidence that is adduced before them, ‘they are to be recognised as having a certain discretion in the matter’.67 The Court’s task is therefore limited to reviewing the decisions that the relevant authority has taken under the terms of the ECHR.68 In X, the Home Secretary, on the advice of X’s medical officer, ordered that the applicant be recalled to hospital when his mental health deteriorated following his conditional discharge from a secure unit. The medical officer had not examined the patient; he referred the matter to the Home Office urgently on the strength of the applicant’s history of impulsive and dangerous conduct and reports of his presumed deterioration alone. The applicant argued that his recall breached Article 5(1) because he had not been ‘reliably’ shown to be of unsound mind by objective medical evidence. The ECtHR disagreed, holding that the merits of a decision to recall a patient to hospital are a matter for the national authority. Even where a decision-maker labels a mentally disordered person as a risk on the basis of weak or unconvincing evidence, it seems that because the MHA complies generally with the Winterwerp criteria there will be no violation of Article 5(1).

New Medicalism and the Right to Liberty All this raises an important question about the compatibility of the post-2007 MHA with Article 5(1). As we saw in chapter three, the 2007 Act’s principal reforms have made it easier for a wider range of mental health professionals to deprive people suffering from mental disorders of their liberty. Moreover, it was a core objective of the 2007 Act to make mental health services more sensitive to questions of risk. This would suggest that the amended, post-2007 MHA is much less conducive to legal certainty and the absence of arbitrariness than was

65 66

X v United Kingdom App no 7215/75 (ECtHR, 5 November 1981). ibid, [43].

67 ibid. 68 ibid.

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its predecessor. In turn, this would imply that the amended MHA is now more likely to breach Article 5(1) of the ECHR by facilitating arbitrary deprivations of liberty. In spite of this, it is clear from the ECtHR jurisprudence that a new medicalistic legal framework is unlikely to contravene Article 5. To begin with, there is the obvious point that while it has amended some of the MHA’s provisions, the 2007 Act has ultimately done nothing to change the fundamental role and purpose of the Act. At this most basic level of abstraction there is nothing to suggest that the amended MHA is likely to trouble the ECtHR on an Article 5(1) point. The 2007 Act’s reforms have not altered the mechanics of civil commitment in such a way as to have departed radically from the MHA’s ‘gold standard’; instead, they have simply recalibrated when the Act will be enlivened. If the ECtHR considered that the original 1983 Act’s civil commitment provisions complied with Article 5(1) then it follows that there is no basis on which to suggest that it would reach a different conclusion about its post-2007 incarnation. It is true that the 2007 Act has amended the MHA’s admission criteria and processes in such a way as to facilitate deprivations of liberty or—as we described it in chapter four— ‘social control’. The 2007 Act ostensibly places the liberty of persons with mental disorder in greater jeopardy than the original 1983 Act ever did. Yet even here it would seem that the post-2007 MHA stays on the right side of Convention compliance. According to Fennell, the Winterwerp criteria were ‘met in the detention procedures under the Mental Health Act 1983’.69 The 2007 Act’s reforms have not altered this essential fact. First, the amended MHA still requires that a person be reliably shown to be of unsound mind by objective medical expertise. Although the amended MHA operates according to a simpler definition of ‘mental disorder’, there is nothing in the European Convention apparatus which would mandate the explicit incorporation into the MHA of the term ‘unsound mind’ or a narrower or more clearly defined alternative. One can say the same about the amended MHA’s redefinition of professional roles. While the involvement of a wider range of nonclinical professional decision-makers in the ‘sectioning’ process has challenged the primacy of the medical model, it has not lessened the importance of objective medical evidence in underpinning civil commitment decisions. Secondly, the post-2007 MHA still renders a person’s civil commitment contingent upon his disorder being of a kind or degree warranting compulsory confinement. The same conditions for admission to hospital which prevailed under the original 1983 Act continue to apply, except for the treatability test. Its replacement (the appropriate treatment test) is an added extra insofar as the Winterwerp criteria are concerned. Finally, the amended MHA still authorises a person’s detention in hospital for only as long as his mental disorder persists. It is difficult to resist the conclusion that the 2007 Act’s reforms have not affected the MHA’s compatibility with Article 5(1). A legal framework which

69

Fennell, ‘Convention Compliance’ (n 27) 91.

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authorises the detention of persons of unsound mind on the basis of the risks of harm that they pose to themselves or others is entirely permissible within the rubric of the ECHR. This was true before the MHA 2007 was introduced, and it remains so after it.

New Medicalism and the UN Convention on the Rights of Persons with Disabilities (CRPD) Background to the CRPD Before the UN General Assembly adopted the CRPD in 2006, the rights of persons with disabilities enjoyed no specific protection under the UN human rights framework.70 They instead fell within the general scope of the Universal Declaration of Human Rights (UDHR),71 the International Covenant on Civil and Political Rights (ICCPR),72 and the International Covenant on Economic, Social and Cultural Rights (ICESCR).73 In 1975, the UN issued the Declaration on the Rights of Disabled Persons, a non-binding resolution of the General Assembly.74 Although it lacked bite, the Declaration was the ‘first explicit acknowledgement of the rights of disabled people as a group’.75 It also expressly recognised that disability can be ‘a result of deficiency, either congenital or not, in [a person’s] physical or mental capabilities’.76 It was clear even at this early stage that the General Assembly recognised that disability includes matters pertaining to mental health. Yet while the UN went on to adopt binding conventions to cater for ‘specific groups … whose rights were felt to be in need of further elaboration or p articularisation’77—such 78 79 as racial and ethnic minorities, women and children80—persons with disabilities lacked their own such instrument at the turn of the twenty-first century. 70 A Lawson, ‘The United Nations Convention on the Rights of Persons with Disabilities: New Era or False Dawn?’ (2007) 34 Syracuse Journal of International Law and Commerce 563, 574–76. 71 Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR). 72 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR). 73 International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR). 74 UN Declaration on the Rights of Disabled Persons, UNGA Res 3447 (XXX) (9 December 1975). 75 Lawson (n 70) 580. 76 Declaration on the Rights of Persons with Disabilities, art 1 (emphasis added). 77 Lawson (n 70) 575. 78 International Convention on the Elimination of All Forms of Racial Discrimination (adopted 21 December 1965, entered into force 4 January 1969) 660 UNTS 195 (ICERD). 79 United Nations Convention on the Elimination of all Forms of Discrimination Against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13 (CEDAW). 80 United Nations Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 (UNCRC).

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The rationale behind the adoption of the CRPD was therefore to bring persons with disabilities into line with other groups of rights-bearers through the affirmation, reformulation, extension and innovation of human rights specifically for their benefit.81 Following the appointment of an Ad Hoc Committee of the General Assembly in 2001, the CRPD emerged during the course of eight sessions between 2002 and 2006, making it the fastest negotiated human rights treaty in history.82 It was adopted on 13 December 2006 and entered into force on 3 May 2008. Although the term ‘game-changer’ is so overused as to have become a rather hackneyed phrase in recent years, there can be no doubt that the CRPD is worthy of such description—it marks an unmistakable sea change in the way the rights of p ersons with disabilities are constructed. There are three reasons for this. The first is that the preparation of the CRPD involved a significant number of civil society organisations with an interest in disability matters. The rights of persons with disabilities were therefore framed, at least in part, by representatives of the very people they are intended to serve. According to Lawson, approximately 800 nongovernmental organisations formed the ‘International Disability Caucus’ (IDC) which engaged in ‘considerable campaigning and awareness-raising work’ during the course of the CRPD negotiations.83 The extensive contribution to the CRPD by so-called Disabled People’s Organisations (DPOs), such as the World Network of Users and Survivors of Psychiatry (WNUSP), means that its contents closely reflect the interests of its subjects. The IDC’s watchword—‘nothing about us without us’84—has therefore informed both the shape and the scope of the CRPD. With approximately one billion people (or 15 per cent of the world’s population) estimated to be living with disability,85 this subject-centric approach makes intuitive sense: it is only by ensuring the ‘radical participation’86 of persons with disabilities in the articulation and enforcement of their human rights that the CRPD enjoys legitimacy. Second, the CRPD is rooted in the principles of equality and non-discrimination. The legal basis for this appears in Article 5, the relevant paragraphs of which read as follows: (1) States Parties recognise that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.

81 F Megret, ‘The Disabilities Convention: Human Rights of Persons with Disabilities or Disability Rights?’ (2008) 30 Human Rights Quarterly 494, 498. 82 Convention on the Rights of Persons with Disabilities (CRPD) available at: www.un.org/ development/desa/disabilities/convention-on-the-rights-of-persons-with-disabilities.html. 83 Lawson (n 70) 588. 84 ibid. 85 World Health Organization, World Report on Disability (Geneva, World Health Organization, 2011) 29: documents.worldbank.org/curated/en/665131468331271288/pdf/627830WP0World00PUB LIC00BOX361491B0.pdf. 86 R Kayess and P French, ‘Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities’ (2008) 8 Human Rights Law Review 1, 12.

176 New Medicalism and Human Rights (2) States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.

According to Kayess and French, the CRPD takes a ‘universalist’ position on equality, an approach which results from what they call a ‘radical modification of the social norm to reflect human diversity’.87 Whereas ‘traditional’ approaches to equality have sought to disregard difference, the CRPD’s universalism expects it.88 In this way, disability is reconstructed as an integral part of human diversity of which the law must take account. A person’s disability therefore must not render him less equal in the eyes of the law; instead, it must be recast as a marker of his equality. Where non-discrimination is concerned, Article 5(2) provides that a person’s disability must not provide an occasion on which to treat him any differently from others. As Fennell and Khaliq point out, the CRPD ‘starts from the premise that marginalisation and segregation on grounds of disability are per se unlawful’.89 This distinguishes it from Article 5(1)(e) of the ECHR, which starts from the opposite premise.90 The CRPD’s grounding in the principles of equality and non-discrimination plainly departs from the assumptions which informed earlier human rights instruments. Third, the CRPD reflects the ‘social model’ of disability. This model ‘locates the experience of disability in the social environment’ and interprets disability as ‘oppression by social structures and practices’.91 The influence of this model is clear in Article 1, which refers to the ‘various barriers’ which may hinder the ‘full and effective participation in society’ of persons with disabilities. According to Bartlett, the social model assumes that ‘it is for society to adapt to the needs of people with disabilities so that those people may maximise their participation in society as a whole’.92 It is therefore distinct from the ‘medical model’, which views disability ‘as a medical condition that requires fixing’.93 By crediting social structures as the source of disabling effects, the CRPD regards the protection of the rights of persons with disabilities to be contingent upon fundamental structural change. In addition to protecting ‘classic’ civil and political rights, the CRPD includes social, economic and cultural rights. The CRPD’s blending of these firstand second-generation rights reflects its embrace of the social model, in that it ‘constitutes’ people with disabilities ‘more fundamentally as full rights-holders’ who are full participants in a diverse society.94 87

ibid, 10. ibid, 11. 89 P Fennell and U Khaliq, ‘Conflicting or Complementary Obligations? The UN Disability Rights Convention, the European Convention on Human Rights and English Law’ (2011) 6 European Human Rights Law Review 662, 665. 90 ibid. 91 Kayess and French (n 86) 5, 6. 92 P Bartlett, ‘The United Nations Convention on the Rights of Persons with Disabilities and Mental Health Law’ (2012) 75(5) Modern Law Review 752, 758–59. 93 ibid, 758. 94 Megret (n 81) 513. 88

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Since its adoption, various commentators have hailed the CRPD as a momentous achievement. It has been described as a ‘paradigm shift’,95 a ‘bold new vision’96 and the herald of a ‘new era’.97 At the time of writing, it has 160 signatories and 174 parties have ratified it. The CRPD’s Optional Protocol, which creates a mechanism for monitoring and enforcement through the Committee on the Rights of Persons with Disabilities, has 92 signatories and ratifications.98 The UK was one of a record-breaking 82 parties to sign the CRPD on the day it was opened for signature on 30 March 2007 and went on to ratify it on 8 June 2009. It also signed and ratified the Optional Protocol on 26 February and 7 August 2009 respectively. In the eyes of the UN High Commissioner for Human Rights, the UK’s r atification of the CRPD and its Optional Protocol signals its willingness to be bound by them.99 In Fraser Butlin’s words, the ‘logical conclusion’ of this is that the CRPD will have ‘a ground-breaking effect’ on English domestic law.100

The CRPD and Mental Health Prior to the CRPD, if persons with mental disabilities wished to assert that their human rights had been violated, they had to frame their case strategically through the general provisions of universal human rights conventions. For example, Bell suggested that it would be possible to invoke Article 12 of the ICESCR to argue that a failure to provide community treatment facilities for use by persons with mental disabilities would constitute a violation of the right to health.101 Mentally disordered people could therefore use the same vehicles as everyone else to articulate their human rights claims. What they could not do was raise objections to civil commitment and involuntary treatment as contraventions of human rights in themselves. The UN framework constructed human rights as universal concepts which could in certain circumstances be disapplied or disregarded, for example, where a person’s mental disorder displayed the requisite seriousness or severity.

95 AS Kanter, ‘The Promise and Challenge of the United Nations Convention on the Rights of Persons with Disabilities’ (2007) 34 Syracuse Journal of International Law and Commerce 387, 291. 96 Bartlett (n 92) 753. 97 T Minkowitz, ‘The United Nations Convention on the Rights of Persons with Disabilities and the Right to be Free from Non-consensual Psychiatric Interventions’ (2007) 34 Syracuse Journal of International Law and Commerce 405, 427. 98 CRPD (n 82). 99 UNCHR, ‘Thematic Study by the Office of the United Nations High Commission for Human Rights on Enhancing Awareness and Understanding of the Convention on the Rights of Persons with Disabilities’ (26 January 2009) UN DOC A/HRC/10/48 [8], [21]. 100 S Fraser Butlin, ‘The UN Convention on the Rights of Persons with Disabilities: Does the Equality Act 2010 Measure Up to UK International Commitments?’ 40(4) Industrial Law Review 428. 101 S Bell, ‘What Does the “Right to Health” Have to Offer Mental Health Patients?’ (2005) 28 International Journal of Law and Psychiatry 141, 142; now they can rely on CRPD, art 25, to advance the same argument

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In 1971, the UN General Assembly adopted the Declaration on the Rights of Mentally Retarded Persons.102 Despite the Declaration’s now outmoded phrasing, in Article 1 it stated that ‘the mentally retarded person has, to the maximum degree of feasibility, the same rights as other human beings’.103 Beyond that point, the Declaration explicitly recognised that it may ‘become necessary to restrict or deny some or all of [the rights set out in the Declaration]’.104 The rights of ‘mentally retarded’ persons were therefore qualified: while proper legal safeguards must protect ‘against every form of abuse’,105 the Declaration recognised that ultimately there comes a point at which the rights that non-disabled people enjoy no longer extend equally to ‘mentally retarded’ people. According to Lawson, the language of the Declaration of 1971 was ‘heavily qualified’ and ‘potentially authorised a lesser degree of rights protection than that required for non-disabled people’.106 It is true that there was a perceptible trend towards rights-based legalism in the 1970s and 1980s; Gostin’s ‘Kyoto Principles’ sought to put limits on the use of involuntary treatment and subject it to exacting legal and procedural oversight.107 Yet, while patients began to enjoy the benefit of specific rights embedded into civil commitment procedures—for example, restrictions on the forms of medical treatments that doctors could administer without a patient’s consent—there was no departure from the fundamental assumption that involuntary care and treatment are legitimate in themselves. The UN’s Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care comprised the same qualifications and distinctions which underpinned the 1971 Declaration when they were adopted 20 years later.108 Here, Article 1(4) stated that ‘there shall be no discrimination on the grounds of mental illness’. However, ‘discrimination’ did not include ‘any distinction, exclusion or preference’ which appeared elsewhere in the Principles and which may have been ‘necessary to protect the human rights of a person with a mental illness or of other individuals’.109 The Principles’ explicit provision for involuntary admission was an example of such a distinction, exclusion or preference.110 It is noteworthy that the UN’s Principles expressly incorporated a risk formula through which a legitimate distinction could be made: they said that a person may be admitted on an involuntary basis where, because of his mental illness,

102 United Nations Declaration on the Rights of Mentally Retarded Persons, UNGA Res 2856 (XXVI) (20 December 1971). 103 (Emphasis added). 104 Declaration on the Rights of Mentally Retarded Persons (n 102) art 7. 105 ibid. 106 Lawson (n 70) 580. 107 L Gostin, ‘Human Rights in Mental Health: A Proposal for Five International Standards based upon the Japanese Experience’ (1987) 10 International Journal of Law and Psychiatry 353, 365. 108 United Nations Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care, UNGA Res 46/119 (17 December 1991). 109 ibid, art 1(4). 110 ibid, art 16(1).

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‘there is a serious likelihood of immediate or imminent harm to that person or to other persons’.111 The CRPD has changed all this. Its inclusion of ‘long-term physical, mental, intellectual or sensory impairments’ within the range of disabilities which are relevant for its purposes unambiguously brings mental health matters within its ambit.112 The CRPD stops short of defining ‘disability’ exhaustively, an omission which Hendriks has described as ‘remarkable’.113 However, it is clear that since its adoption the CRPD is widely considered to extend to mental disorders and disabilities of the sort with which the present volume is concerned. According to the WNUSP, persons with mental impairments include users and survivors of psychiatry who experience or have experienced experiencing madness and/or mental health problems and/or are using or surviving, or have used or survived psychiatry/mental health services, as well as those of us who are perceived by others as having a mental disability/impairment.114

Despite its rather clunky wording, the WNUSP’s inclusive interpretation plainly extends beyond purely clinical considerations. It incorporates people who currently suffer from disorders or disabilities of the mind, those who have suffered from them in the past, and those whom others may consider are suffering from such disorders or disabilities. As Fennell and Khaliq point out, this clearly encompasses the same ‘persons of unsound mind’ to which Article 5(1)(e) of the ECHR refers and also the people to whom the MHA applies.115 It may go even further than that by also applying to those stigmatised by mental illness. To capture this wide range of people, the WNUSP prefers the term ‘psychosocial disability’116— a formula which indisputably locates persons with such disabilities within the domain of the CRPD. It is in this regard that the CRPD’s groundbreaking potential is most evident. To maintain a narrow focus for present purposes, we will examine Articles 4, 12, 14 and 17 of the CRPD, which respectively cover the general obligations of CRPD States parties, the right to equal recognition before the law, the right to liberty and security of the person, and the right to integrity. What will become obvious is that civil commitment and involuntary treatment of persons with mental disorders contravene the CRPD’s rendition of these rights. States parties to it are

111 ibid. 112

CRPD, art 1. Hendriks, ‘UN Convention on the Rights of Persons with Disabilities’ (2007) 14 European Journal of Health Law 273, 276. 114 World Network of Users and Survivors of Psychiatry, Implementation Manual for the United Nations Convention on the Rights of Persons with Disabilities (February 2008) 9: www.wnusp.net/ documents/WNUSP_CRPD_Manual.pdf (WNUSP). 115 Fennell and Khaliq (n 89) 664. 116 WNUSP (n 114) 9. 113 A

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therefore subject to a general obligation to remove from their legal frameworks any provisions which violate the CRPD; a duty which in many cases will necessitate a radical redrawing of the legal landscape. This particular obligation appears under Article 4 of the CRPD. It provides: (1) States Parties undertake to ensure and promote the full realisation of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. To this end, States Parties undertake: (a) To adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognised in the [CRPD]; (b) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities; …

Article 12 contains the right of persons with disabilities to enjoy equal recognition before the law: (1) States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law. (2) States Parties shall recognise that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. …

Article 14 of the CRPD covers the right to liberty and security of the person. It provides: (1) States Parties shall ensure that persons with disabilities, on an equal basis with others: (a) Enjoy the right to liberty and security of the person; (b) Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty. …

Article 17 seeks to protect the ‘integrity’ of the person: (1) Every person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others.

If ‘psychosocial disabilities’ include any disorder or disability of the mind within the meaning of the section 1(2) of the MHA, then civil commitment and involuntary treatment plainly contravene the rights of persons with disabilities as articulated by the UN Convention. This conclusion is not a product of a creative or fanciful reading of the CRPD: the UN Committee on the Rights of Persons with Disabilities has expressly stated that the practice of detaining people on the grounds of their ‘actual or perceived

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impairment’ is incompatible with Article 14 of the CRPD.117 To rectify this, it has repeatedly insisted that States parties repeal any provisions of their legal orders which allow for involuntary commitment of persons with disabilities.118 Importantly, this duty extends to ‘provisions authorising the preventive detention of persons with disabilities on grounds such as the likelihood of them posing a danger to themselves or others’.119 This is not to say that preventive detention per se contravenes the CRPD; as Slobogin points out, the UN Convention commands only that such a scheme should not rely solely on mental disability as a determining factor.120 It follows that preventive detention is perfectly acceptable within the rubric of the CRPD, provided that it operates according to disabilityneutral criteria. However, where the Committee has identified practices or provisions which do conflict with the CRPD, it has shown itself to be quite willing to recommend that the relevant State party amends or repeals the relevant laws. For example, it has recently expressed concern about ‘involuntary detention’ in the EU and recommended that it ‘take all possible measures to ensure the liberty and security of all persons with all types of disabilities in line with the [UN] Convention’.121 Similarly, it has recommended that Australia ‘repeal all legislation that authorizes … committal of individuals to detention in mental health facilities, or imposition of compulsory treatment’.122 There can be no doubt that the CRPD and its accompanying monitoring and enforcement apparatus have converted civil commitment and involuntary treatment from permissible exceptions to general human rights provisions into grievous rights violations in and of themselves.123

117 UN Committee on the Rights of Persons with Disabilities, ‘Guidelines on Article 14 of the onvention on the Rights of Persons with Disabilities: The Right to Liberty and Security of PerC sons with Disabilities’ 14th Session (2015) [6]: www.ohchr.org/Documents/HRBodies/CRPD/GC/ GuidelinesArticle14.doc. 118 ibid, [10]. 119 UNCHR (n 99) [49]. 120 C Slobogin, ‘Eliminating Mental Disability as a Legal Criterion in Deprivation of Liberty Cases: The Impact of the Convention on the Rights of Persons with Disabilities on the Insanity Defence, Civil Commitment, and Competency Law’ (2015) 40 International Journal of Law and Psychiatry 36, 36; see also A Dhanda and T Narayan, ‘Mental Health and Human Rights’ (2007) 370 The Lancet 1197. 121 UN Committee on the Rights of Persons with Disabilities, ‘Concluding Observations on the Initial Report of the European Union’ (2 October 2015) UN Doc CRPD/C/EU/CO/1, [46]–[47]. 122 UN Committee on the Rights of Persons with Disabilities, ‘Concluding Observations on the Initial Report of Australia’ (21 October 2013) UN Doc CRPD/C/AUS/CO/1, [34]. 123 E Flynn and A Arstein-Kerslake, ‘The Support Model of Legal Capacity: Fact, Fiction, or Fantasy?’ (2014) 32(1) Berkeley Journal of International Law 124, 126; Minkowitz takes this further by arguing that because they constitute grave human rights violations, forced psychiatric interventions necessitate ‘criminalisation of perpetrators and reparations for victims and survivors’ ((n 97) 405; also T M inkowitz, ‘Abolishing Mental Health Laws to Comply with the Convention on the Rights of Persons with Disabilities’ in B McSherry and P Weller (eds), Rethinking Rights-Based Mental Health Laws (Oxford, Hart Publishing, 2010) 177).

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This transformation brings the very justification for mental health legislation into question.124 As Gooding points out, one of the CRPD’s most momentous achievements is its ‘authoritative challenge to the notion that unsoundness of mind can legitimately serve as a criterion of special exception to normative rights’.125 The long-held view that human rights considerations can fit comfortably within civil commitment and involuntary treatment regimens is therefore apparently unsustainable. Instead, they demand the immediate and unconditional abandonment of such schemes altogether. Rather than being hallmarks of procedural propriety in a rights-based legalistic framework, human rights in the postCRPD era signal the wholesale reconceptualisation of mental health policy and practice. By absorbing mental health matters into a wider disability rights framework, the CRPD ‘lays greater emphasis on positive rights’ and the ‘social inclusion, anti-stigma and equality agenda’.126 In doing so, it invites a ‘re-evaluation’ of the law’s role ‘in providing the social infrastructure that enables people living with mental illnesses to participate fully’ in society.127 Whereas ‘classic’ rights questions related, for example, to a patient’s right to refuse treatment for his mental disorder, in the post-CRPD era these considerations are—as Bartlett says in his inimitable way—‘somehow old-fashioned, quaint, “so 10 years ago”’.128 Now, human rights considerations have created a completely different paradigm—one which has significant implications for the English MHA.

New Medicalism, the Mental Health Act and the CRPD The post-2007 MHA harbours significant points of conflict with the CRPD. Yet English mental health law’s incompatibility with the principles of equality and non-discrimination is not a new problem. The current MHA retains the same essential function which has characterised mental health legislation in England for decades. The 2007 Act’s principal reforms merely give expression to a new set of policy objectives which nevertheless accept the same basic premise that mental illness can justify coercive action. New medicalism therefore has much in common with the other descriptive models: they all implicitly accept the necessity

124 F Morrissey, ‘The United Nations Convention on the Rights of Persons with Disabilities: A New Approach to Decision-making in Mental Health Law’ (2012) 19 European Journal of Health Law 423, 425. 125 P Gooding, ‘Change and Continuity in Mental Health Law: The Long Road to the United Nations Convention on the Rights of Persons with Disabilities and its Implications for Mental Health and the Law Today’ (2014) 20(3) Web JCLI 10–11. 126 P Fennell, ‘Institutionalising the Community: The Codification of Clinical Authority and the Limits of Rights-based Approaches’ in B McSherry and P Weller (eds), Rethinking Rights-Based Mental Health Laws (Oxford, Hart Publishing, 2010) 21. 127 Weller (n 6) 69. 128 P Bartlett, ‘Thinking about the Rest of the World: Mental Health and Rights Outside the “First World”’ in B McSherry and P Weller (eds), Rethinking Rights-Based Mental Health Laws (Oxford, Hart Publishing, 2010) 401.

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of u nequal and discriminatory treatment of persons with mental disorders. For that reason, whether the current MHA reflected legalism, medicalism, or new legalism the result would be the same: it would not comply with either the letter or spirit of the CRPD. The problem therefore is not with new medicalism but rather the very notion of compulsory mental health legislation. This still raises a significant issue: the current MHA conflicts with the CRPD and therefore leaves the UK at odds with its obligations in international human rights law. As Bartlett states, it is difficult to see how UK mental health legislation could be even ‘remotely compliant’ with the UN Convention.129 This observation does not apply solely to the MHA: if mental disability cannot justify differential treatment then points of conflict also arise between the CRPD and the Mental Capacity Act 2005, the Deprivation of Liberty Safeguards, and the insanity defence in criminal law. Compliance with the CRPD would necessitate a radical and comprehensive rewriting of not just the MHA but also of entire areas of English law in which issues relating to mental health, disability and capacity are germane. This would, incidentally, lead to the abolition of mental health and capacity law as a stand-alone sub-discipline, at least as we know it. There are various ways in which the UK might achieve compliance with the CRPD. The most obvious is through the abolition of the MHA. Another is through the introduction of disability-neutral alternative mechanisms which would permit civil commitment of all persons, regardless of health status, on the basis of the risks of harm that they pose. Neither of these options seems particularly satisfactory: the abolition of the MHA would mean that care and treatment of people suffering from mental illnesses could only ever proceed on a voluntary basis, while the extension of civil commitment to all persons would inevitably create conflict with the ECHR. In Bartlett’s view, if English law is to comply with both the CRPD and the ECHR then it would seem that preventive detention of people with mental disabilities is no longer legally possible.130 This suggests that English law must find another way to navigate through the terrain of international human rights law. Creative suggestions abound, including the introduction of a ‘support paradigm’ or ‘supported decision-making’;131 the adoption of a ‘decision-making capability’ test;132 and the development of disability-neutral ‘punishment’, ‘prevention’ and ‘protection’ models.133 For present purposes, it is enough to note that the MHA conflicts with an instrument of international human rights law which the UK has signed and ratified, and that there is now considerable moral and political pressure to resolve this dilemma.

129 Bartlett, ‘The United Nations Convention on the Rights of Persons with Disabilities and Mental Health Law’ (n 92) 754. 130 ibid, 774. 131 Morrissey (n 124) 431; Flynn and Arstein-Kerslake (n 123) 131. 132 G Szmukler et al, ‘Mental Health Law and the UN Convention on the Rights of Persons with Disabilities’ (2014) 37 International Journal of Law and Psychiatry 245. 133 Slobogin (n 120) 38, 40, 41.

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It is curious that the same government which sponsored the 2007 Act also signed and ratified the CRPD. In doing so, it effectively adopted two irreconcilable positions: it sought to broaden the civil commitment powers under the MHA when, at almost the same time, it was ratifying a Convention which placed it under an obligation to abolish such powers. On the one hand, it would be easy to dismiss the UK’s signing and ratifying the CRPD as evidence of its participation in a kind of ritualised virtue-signalling—a co-ordinated international utterance of warm but ultimately empty words about the rights of persons with disabilities. That Parliament introduced legislation which plainly conflicts with the letter and spirit of the CRPD in the same year that it assented to the treaty may support such a claim. On the other hand, the UK’s decision to sign and ratify the CRPD may signify what Lewis has called the ‘expressive role of human rights’.134 According to him, states may ratify and implement treaties not for the purposes of codifying an existing reality, but rather to articulate ‘a shared reality which has yet to be explained’.135 In other words, the framework envisaged by the CRPD’s drafters is the destination; the act of signing and ratifying the UN Convention signals a state’s intention to reach it. In this way, it is possible to view the UK’s apparently contradictory positions as evidence of a willingness to employ pragmatism in the present while endorsing a new vision for the future. In any case, it is clear that new medicalism, as embodied by the 2007 Act, is an oppositional force to the CRPD’s non-discriminatory ethos. For its part, the British Government does not accept that there is any conflict between English domestic law and the CRPD. In its 2011 initial report to the Committee on the Rights of Persons with Disabilities, the government said that ‘no one in the UK can be deprived of his or her liberty because he or she is disabled’.136 Where it is considered necessary to detain a person who has a mental disorder, it pointed out that ‘strict safeguards are in place to ensure that the needs of the individual are taken into account and respected’.137 These include those safeguards which appear in the MHA and the MCA, the two statutes ‘which provide the legal framework which sets out when a person may be detained and how they are to be protected’.138 The government specifically referred to the principal function of the MHA and said that its inbuilt safeguards ‘ensure that any deprivation of liberty is not arbitrary and complies with the law’.139 Two things are striking about the British Government’s position on the CRPD. The first is that it invokes

134 O Lewis, ‘The Expressive, Educational and Proactive Roles of Human Rights: An Analysis of the United Nations Convention on the Rights of Persons with Disabilities’ in B McSherry and P Weller (eds), Rethinking Rights-Based Mental Health Laws (Oxford, Hart Publishing, 2010) 98. 135 ibid, 100. 136 HM Government, UK Initial Report on the UN Convention on the Rights of Persons with Disabilities (Office for Disability Issues, 2011) [133]. 137 ibid. 138 ibid. 139 ibid, [134].

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the law’s compliance with the ECHR in support of its contention that the UK respects the fundamental human rights of persons with disabilities. The assumption which underlies this reasoning is that the ECHR and CRPD are in effect two sides of the same coin. This is despite the fact that there are significant points of conflict between the two instruments which make this reasoning rather spurious. For example, Article 5(1)(e) of the ECHR permits the lawful detention of persons of unsound mind; Article 14 of the CRPD expressly forbids it. At best, the British Government is mistaken in interpreting its obligations under the CRPD as being identical to those of the ECHR; at worst, it is being wholly disingenuous. The second striking feature of the British Government’s position is that it appears to regard ‘disability’ as a distinct concept from mental disorder. As a consequence, it seems to consider civil commitment and involuntary treatment of persons with mental disorders to be outside the scope of the CRPD. There is something superficially attractive about this distinction. As we have seen, the CRPD does not definitively state what ‘disability’ means for its own purposes. There are undoubtedly sound tactical reasons for this: definitions can have an exclusionary effect. However, the omission of a definition of ‘disability’ also leaves questions about what or who is entitled to engage the UN Convention open to interpretation and, potentially, contestation. Since the CRPD came into force, the consensus which has emerged is that conditions which might classically have been understood to be mental illnesses can constitute impairments—and therefore disabilities. This is despite the fact that the inclusion of the pre-modifying compound adjective ‘long-term’ in Article 1 of the CRPD might otherwise imply that mere illness is excluded from the UN Convention’s domain. It is also in spite of the fact that there would seem to be a necessary conceptual difference between ‘disorder’ and ‘disability’. The European Court of Justice (ECJ) explicitly recognised this point in Chacon Navas v Eurest Colectividades SA,140 in which the definition of ‘disability’ for the purposes of EU law was at issue. This case concerned a Spanish national who had been dismissed by her employer solely on account of sickness. The ECJ held that sickness did not fall within the EU’s general framework for combating discrimination on the grounds of disability.141 In doing so, it maintained a distinction between illness and disability which the CRPD does not recognise, at least as far as mental impairments are concerned. The expansive interpretation of ‘disability’ since imputed to the CRPD is problematic because it perpetuates the asymmetry between mental and physical conditions. Whereas there would appear to be no basis on which to regard physical illnesses like influenza, measles, gonorrhoea, and so on, as ‘impairments’ for the purposes of the CRPD, mental illnesses, such as depression, schizophrenia and personality disorder, would seem to qualify.

140 C-13/05

Chacon Navas v Eurest Colectividades SA (2006). Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16. 141

186 New Medicalism and Human Rights

The prevailing view in recent years is that lawmakers and policy-makers should treat physical and mental conditions with ‘parity of esteem’. One of the strongest arguments against the involuntary care and treatment of persons with mental disorders is that it is inherently discriminatory: it allows doctors and other professionals to treat mental illnesses differently from their physical equivalents with no objective justification for doing so. To achieve true ‘parity of esteem’, it follows that involuntary care and treatment should either be abolished entirely or extended to apply to all disorders, both physical and mental. The CRPD is engineered towards achieving such disability-neutral objectives. Yet the absorption of mental illnesses within the realm of the UN Convention effectively privileges them in a way that does not apply to physical illnesses. The implication of this asymmetry is that people suffering from mental illnesses are reconstructed as ‘persons with disabilities’ entitled to full and effective participation in society on an equal basis with others, whereas persons suffering from physical illnesses are not. The apparent exclusion of physical illnesses makes sense: it would be absurd to argue that physical illnesses are a part of the rich tapestry of human diversity and that people who suffer from them should be able to enjoy full and effective participation in society on an equal basis with others. Not only would this raise considerable public health challenges, it would also depart from the customary interpretation of illness as an undesirable abnormality which warrants clinical correction or palliation. Yet the CRPD’s purported incorporation of mental illnesses within its scope in effect requires us to accept that mental illnesses like depressive disorder, schizophrenia, schizoaffective disorder and so on, are not pathological abnormalities per se but rather a core part of a person’s identity. The problem with this conclusion is that it assumes that mental and physical illnesses are different after all, that in spite of everything there is a reason for disparity. It cannot have been the intention of those who framed the CRPD to have instituted such asymmetry between physical and mental illnesses. But the corollary of the incorporation of mental illnesses into the scope of the CRPD is that the proponents of the non-discrimination argument are hoist by their own petard. If mental illnesses are simply a part of human diversity that must be accommodated by society and physical illnesses are not, then it is incumbent upon those who favour the expansive interpretation to explain the basis for the distinction. It may come down to the interpretation of ‘long-term’ in Article 1 of the CRPD, in that all mental illnesses are ‘long-term’ whereas only some physical illnesses will be. Yet, if this is true, then there is an objectively justifiable difference between physical and mental illnesses after all. For that reason, the British Government’s distinction between disability and mental illness or disorder would initially appear to carry considerable merit. However, whatever its merits, such a distinction will not justify the retention of civil commitment according to the widely accepted interpretation of the CRPD. There are clear indications from multiple sources that mental illnesses (or ‘psychosocial disabilities’) are to be regarded as disabilities for the purposes of the CRPD. For example, in its implementation manual, the WNUSP says that in order to comply with Article 14 of the UN Convention, States parties must

New Medicalism and the UN CRPD 187

‘repeal any laws that use disability as a factor to justify a deprivation of liberty (eg, mental health commitment laws)’.142 It also urges States parties to ‘release all individuals currently deprived of liberty in psychiatric settings or based on psychosocial disability’.143 Elsewhere, Fennell states that mental ill health is a disability and, as such, those who experience mental illness ‘are entitled to the protection of international instruments on the human rights of people with disabilities’.144 And Minkowitz forcefully asserts that mental health laws ‘violate the CRPD and may facilitate torture and ill-treatment. They cannot be reformed and should be abolished’.145 There would appear to be no doubt that the CRPD applies to the MHA and that the UK is therefore under an obligation to make ‘appropriate changes’ to its domestic law to achieve conformity.146 It is likely that the British Government’s attempts to distinguish mental illness or disorder from disability would be dismissed in many quarters as pure sophistry. Furthermore, it is worth noting that the distinction between illness and disability may be much more rickety than the British Government appears to assume. It seems to rely implicitly on the equation of mental illnesses like depression and schizophrenia with physical illnesses like influenza and measles. A more accurate comparison may result instead from likening those mental illnesses to physical conditions like cancer, arthritis, diabetes and heart disease—physical conditions that cause impairments which have socially disabling effects. All this points to a straightforward and unavoidable conclusion: the provisions governing civil commitment and involuntary treatment in the MHA are contrary to the UK’s international legal obligations. What is also clear is that the tactic of hiding behind the ECHR to escape censure by the CRPD apparatus is wholly misconceived. As we have seen, the two instruments clash so fundamentally on the issue of the detention of persons with mental disorders that invoking compliance with the ECHR as evidence of compliance with the CRPD is simply not a credible strategy. That is not to say that the two conventions will forever be mutually exclusive. According to F ennell and Khaliq, if all States parties to the ECHR were to ratify the CRPD then where the two Conventions diverge in interpretation and application, ‘the European Convention should be (re)interpreted so as to ensure there is no conflicting legal obligation for states parties to both conventions’.147 This tactic would effectively necessitate the realignment, or even renegotiation, of the ECHR in order to take account of more recent developments in international law. Another plausible

142

WNUSP (n 99) 17.

143 ibid.

144 P Fennell, ‘Human Rights, Bioethics, and Mental Disorder’ (2008) 27 Medicine and Law 95, 106–07. 145 Minkowitz, ‘Abolishing Mental Health’ (n 123) 177. 146 UNCHR (n 99) [30]. 147 Fennell and Khaliq (n 89) 671.

188 New Medicalism and Human Rights

method by which the convergence of the ECHR and CRPD might be achieved is through the ECtHR’s jurisprudence. It is conceivable that the ECtHR will refer increasingly to the CRPD as an aid to interpretation, thereby achieving convergence ‘by the back door’. Fraser Butlin points out that the ECtHR has already begun to refer to the CRPD in this respect.148 She discusses the ECtHR’s decision in Glor v Switzerland,149 in which the European Court ‘not only referred to the CRPD but also cited it as evidencing a “universal consensus” on the need to provide protection from disability discrimination’.150 Fraser Butlin considers this to be an important development for two reasons: first, it embeds the CRPD into the jurisprudence of the ECtHR and, second, it accepts the possibility of a universal consensus existing beyond the ECHR apparatus.151 Since its decision in the Glor case, the ECtHR has made further references to the CRPD, which suggests that the UN Convention’s potential to influence the interpretation and application of the ECHR is not merely theoretical.152 Given that the ECHR is a ‘living instrument’ which must be interpreted in light of contemporary conditions, it would seem highly likely that the CRPD will influence the ECtHR’s reading of the European Convention. However, it may be doubtful that this would resolve the fundamental incompatibilities which exist between the two conventions. Ultimately, the only way in which these could be reconciled is through amendments to, or withdrawal from, one or both conventions. This presents a significant challenge to the States parties to both conventions and it is one with which they have conspicuously failed to grapple up to now. Because it is an unincorporated treaty, the CRPD is not binding on the English courts. From the domestic standpoint, it constitutes only persuasive authority and a source of moral and political pressure for reform.153 But even in this capacity it is clear that the courts are beginning to pay attention to the CRPD, especially in light of its influence on the jurisprudence of the ECtHR. The first case in which an English court made explicit reference to the CRPD is AH v West London MHT.154 This case concerned a decision of the Mental Health Tribunal relating to a patient who at the material time was detained in Broadmoor Hospital under s ections 37 and 41 of the MHA 1983. Here, the Upper Tribunal stated that the CRPD is ‘a legally-binding international treaty that comprehensively clarifies the human

148

Fraser Butlin (n 100) 430. Glor v Switzerland App no 13444/04 (ECtHR, 30 April 2009). Fraser Butlin (n 100) 430. 151 ibid. 152 Alajos Kiss v Hungary App no 38832/06 (ECtHR, 20 May 2010); Jasinskis v Latvia App no 45744/08 (ECtHR, 11 December 2010); Asalya v Turkey App no 43875/09 (ECtHR, 15 April 2014); Kuttner v Austria App no 7997/08 (ECtHR, 16 July 2015); Guberina v Croatia App no 23682/13 (ECtHR, 22 March 2016); Blokhin v Russia App no 47152/06 (ECtHR, 23 March 2016); Kocherov and Sergeyeva v Russia App no 16899/13 (ECtHR, 29 March 2016); Hiller v Austria App no 1967/14 (ECtHR, 22 November 2016); Fernandes de Oliveira v Portugal App no 78103/14 (ECtHR, 28 March 2017). 153 Fennell, ‘Human Rights, Bioethics, and Mental Disorder’ (n 144) 98. 154 AH v West London MHT [2011] UKUT 74 (AAC). 149 150

New Medicalism and the UN CRPD 189

rights of persons with disabilities’.155 Moreover, Lord Carnwath acknowledged that, by ratifying the CRPD, ‘a state undertakes that wherever possible its laws will conform to the norms and values that the [UN] Convention enshrines’.156 Since then, the courts in England have regularly mentioned the CRPD as part of the wider context of mental health and capacity law, further signalling its growing relevance in this area.157 In Cheshire West and Cheshire Council v P,158 Lady Hale expressly referred to the CRPD as being ‘part of the international law context within which the guarantees of the European Convention are to be interpreted’.159 This is the clearest indication yet given by the English courts that they view the CRPD as a sort of indirect source of law. The original thesis on which this book is based contended that new medicalism heralds the decline of mental health law because it confers so much discretionary power in the hands of mental health decision-makers. Although much of that argument remains influential, the present author was almost certainly too hasty in writing off mental health law entirely. Clearly, even in the era of new medicalism, the MHA still plays an important and necessary role. Yet, in light of the CRPD, it is also clear that the anticipation of a total decline of mental health law is not necessarily wide of the mark. The very aim of the CRPD is to precipitate a ‘decline’ in another sense, namely, the eradication of laws, policies and practices which are predicated on discrimination against persons with disabilities. There is no doubt that the CRPD has its shortcomings: it entrenches a conceptual confusion between ‘impairment’ and ‘disability’;160 creates a ‘false conflict’ between medical and social considerations which means it is ‘nearly silent with respect to prevention of, or progress toward ameliorating, disabilities’;161 suffers from a ‘compliance gap’;162 and has yet to ‘cut through’ to those it was framed to influence.163 Perhaps most damning of all is the fact that its ultimate goal can seem far off and, at times, unrealistic.164 But what is indisputable is that it marks a moment of departure from the assumptions which have underpinned the law governing the care and treatment of people with mental disorders for decades. Although it may not yet herald the decline of mental health law as we know it, what is plain is that the 155

ibid, [16] (Lord Carnwath).

156 ibid. 157 See

also, Burnip v Birmingham City Council [2012] EWCA Civ 629; R (NM) v Islington LBC [2012] EWHC 414 (Admin); Stuart Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345; R (SG) v Secretary of State for Work and Pensions [2015] UKSC 16. 158 Cheshire West and Chester Council v P [2014] UKSC 19. 159 ibid, [36]. 160 Kayess and French (n 86) 21. 161 LA Silecchia, ‘The Convention on the Rights of Persons with Disabilities: Reflection on Four Flaws that Tarnish its Promise’ (2013) 30(1) Journal of Contemporary Health Law and Policy 96; 108–14. 162 Lewis (n 134) 97. 163 O Lewis and F Callard, ‘The World Psychiatric Association’s “Bill of Rights”: A Curious Contribution to Human Rights’ (2017) 46(3) International Journal of Mental Health 157. 164 Lawson (n 70) 619; Hendriks (n 113) 279; Fennell, ‘Institutionalising the Community’ (n 126) 49.

190 New Medicalism and Human Rights

MHA falls foul of its provisions in its post-2007 guise. The challenge now is to find a way of reconciling English law with a very different set of priorities.

Conclusions The human rights implications of new medicalism are complex. By departing from legalism so manifestly, a layperson might conclude that the 2007 Act placed the human rights of persons subject to the MHA in greater jeopardy than they were previously. Yet the reality is nowhere near this straightforward. While it is true that a mentally disordered person’s liberty is now more readily abridged following the 2007 Act, it does not automatically follow that this amounts to a violation of his human rights. On one hand, Article 5(1)(e) of the ECHR expressly permits the detention of persons of unsound mind. Since its incorporation by the HRA 1998, the ECHR has made a tangible impact on English mental health law, exhibiting its potential to achieve material change in the event of a conflict between domestic and supranational standards. Despite this, the ECHR can do little to prevent the broadening of the legal bases for compulsory admission in the domestic law of its States parties. The original MHA 1983 mapped onto the Winterwerp criteria as specified by the ECtHR, and there is nothing to suggest that its current incarnation is any different. It is therefore unlikely that a mental health statutory framework organised around new medicalism would violate the ECHR. On the other hand, the CRPD specifically articulates the rights of persons with ‘disabilities’—a term which has been taken to extend to ‘psychosocial disabilities’; disorders or disabilities of the mind. At the core of the CRPD are the principles of equality and non-discrimination: States parties must treat persons with disabilities in the same way as everyone else and not use disability as a justification for differential treatment. The upshot of the UK’s signing and ratification of the CRPD is that it is under an obligation in international law to remove from its domestic law any provisions which do not cohere with these principles. This includes the MHA. Depending on which human rights lens one uses to survey the post-2007 framework, the current MHA is in either blissful compliance with, or perpetual breach of, an instrument of international human rights law binding on the UK. It is worth recalling that this situation is not a product of new medicalism uniquely. The MHA complied with Article 5 of the ECHR before the introduction of the 2007 Act’s principal reforms and would violate the CRPD regardless of whether it were legalistic, new legalistic, or medicalistic in character. It would therefore be wrong to conclude that new medicalism specifically contravenes the human rights of persons with mental disorders in England. The prevailing view in contemporary international human rights law is that the civil

Conclusions 191

commitment and involuntary treatment of mentally disordered people is a grave violation of human rights in itself. For all its apparent shortcomings, there is nothing about new medicalism itself which singularly locates it on the wrong side of international human rights law. It is true that it represents an oppositional force: by prioritising the need to control and manage the risks associated with mentally disordered people through the deployment of coercive powers against them, it conflicts brazenly with the CRPD. It may always be a quirk of legal history that the same government which drove the 2007 Act’s reforms also signed and ratified an international treaty which redefined compulsory mental health laws as contrary to human rights. However, a legalistic, medicalistic, or new legalistic alternative would still have achieved the same result. The UK is therefore under an obligation to engage in radical reform to address the conflict with the CRPD which its domestic law harbours. The days of new medicalism may be very short, and a reversion to legalism, medicalism or new legalism is no longer an option. Perhaps the most surprising thing about the ECHR and the CRPD is that in neither case does the use of considerations of risk to determine whether a person should be subject to involuntary treatment raise instinctive objections. The ECtHR has expressly acknowledged that it is the risk of harm that a person of ‘unsound mind’ might pose to himself or other people that provides the rationale for the limitation on the right to liberty set out in Article 5(1)(e). Meanwhile, the CRPD prioritises disability-neutrality; as long as the law does not discriminate on the basis of disability then it is satisfied. It follows that the law could, regardless of mental health status, authorise the civil commitment of all persons on the basis of risk and not fall foul of the CRPD. While this would conversely contravene the ECHR, it is noteworthy that even here it is not the issue of risk which would raise objections but rather the deprivation of liberty beyond the legitimate bases articulated by Article 5(1)(e). In chapter two, we saw the extent to which risk is a legally uncertain concept liable to produce arbitrary and inconsistent outcomes. That international human rights law appears to have no problem with the use of risk in this way—indeed, that it may even prefer that it be extended in order to operate in a disability-neutral capacity—is nothing short of astonishing. The CRPD would seem to have affixed a use-by date to the MHA. Exactly when that date will arrive is unclear. The evidence from elsewhere suggests that England is by no means alone in being (a national jurisdiction of) a signatory to the CRPD and its Optional Protocol and yet continuing to use legal frameworks that plainly violate it. According to Mental Health Europe, involuntary admission and treatment is still common in mental health institutions across the continent.165

165 Mental Health Europe, Mapping Exclusion: Institutional and Community-based Services in the Mental Health Field in Europe (November 2012) 24.

192 New Medicalism and Human Rights

This is despite the fact that all 32 of the countries it surveyed have since signed and ratified the CRPD. In any event, it is clear that the CRPD is a road map for radical reform of mental health and capacity law around the world. How English mental health law will meet this challenge is currently unknown. But one thing is obvious: whatever emerges will require an entirely new descriptive model to narrate its rationale and mechanics, because legalism, medicalism, new legalism and, now, new medicalism, will be wholly inadequate.

6 Evaluating the Impact of the Mental Health Act 2007 Introduction Prior to the introduction of the Mental Health Act (MHA) 2007, it was widely assumed that there is an inverse correlation between the strictness of legislative provisions governing civil commitment and the number of people compulsorily admitted to hospital: the more exacting the law’s prescriptions, the fewer people would be admitted.1 As we know, the 2007 Act signalled a revival of medicalism by lowering the threshold for admission and extending the reach of the compulsory powers. If there really is a negative relationship between the strictness (or otherwise) of the law’s provisions and the number of people admitted to hospital, the chief impact of the 2007 Act’s reforms should therefore have been to have increased the number of people subject to civil commitment. The post-2007 Act era should therefore be characterised by more control of, and less liberty for, people with mental disorders. At the time of its introduction, the anticipated effect of the new Act was that its reforms would lead to ‘the most illiberal mental health laws that [England] has ever seen’.2 During the passage of the Bill, Brown posited that were its provisions to become law they ‘would make possible the sectioning of a much wider number of potentially dangerous, though not “mentally ill”, individuals’.3 The Mental Health Alliance, a coalition of over 70 mental health organisations, condemned the 2007 Act’s ‘profoundly paternalistic and authoritarian’ underlying policy.4 It said that the 2007 Act ‘will go down in history as a missed opportunity

1 eg, E Munro and J Rumgay, ‘Role of Risk Assessment in Reducing Homicides by People with Mental Illness’ (2000) 176 British Journal of Psychiatry 116, 119. 2 M Kinton, ‘Mental Health Law for the 21st Century?’ (2005) (May) Journal of Mental Health Law 57, 68. 3 P Brown, ‘Risk versus Need in Revising the 1983 Mental Health Act: Conflicting Claims, Muddled Policy’ (2006) 8(4) Health, Risk & Society 343, 355. 4 Mental Health Alliance, The Mental Health Act 2007: Final Report (July 2007) 9: www. mentalhealthalliance.org.uk/mentalhealthbill/Alliance_MHAct07_Final_Report.pdf.

194 Evaluating the Impact of the MHA 2007

for legislation fit for the twenty-first century’.5 The Alliance regretted that the 2007 Act did not amount to the ‘humane and progressive’ legislation for which it had hoped.6 It represented, in Daw’s words, the ‘defeat of an ideal’ and a ‘valuable opportunity lost’.7 Elsewhere, Fennell argued that the 2007 Act’s reforms had removed from decision-makers the discretion not to use the MHA’s compulsory powers.8 There would henceforth be a presumption that a person with a mental disorder of the requisite nature or degree would be compulsorily admitted to hospital. It is clear that many considered the 2007 Act to be a retrograde step which would have an adverse impact by systematically formalising the care and treatment experiences of more people with mental disorders than was previously the case. This chapter examines the impact of the 2007 Act’s principal reforms. Its central purpose is to investigate whether the underlying objectives of new medicalism (ie, the softening of the law’s hard edges for the purposes of enhancing mental health services’ responsiveness to risk) have translated into practice. In its first part, this chapter analyses the admission statistics from the last decade. It also evaluates what it calls the ‘other’ evidence of the 2007 Act’s impact: namely, the quantitative and qualitative evidence of the consequences of its principal reforms. This evidence shows that the introduction of the 2007 Act undeniably correlates with an increase in the number of people subject to the compulsory powers in recent years. However, while a correlation may exist, it is doubtful that it connotes causation. There are in fact many reasons which may explain why the post-2007 Act era is characterised by a growth in the number of formal patients. While one of these may be the revival of medicalism, there is nothing to suggest that this has had the determinative significance that many contemporary commentators expected. The post-2007 Act era has therefore not vindicated the assumption that lowering the statutory threshold for compulsion will lead to increasing recourse to civil commitment. This in turn raises a broader question about whether laws which govern the care and treatment of people with mental disorders ever have the determinative potential with which they are often credited. If the 2007 Act’s reforms have not had a material impact, why might that the case? Is it because of shortcomings peculiar to that statute? Or is it because the law itself is a poor predictor of d ecision-making

5 Mental Health Alliance, Mental Health Alliance Gives Final Verdict on 2007 Mental Health Act (7 August 2007): www.mentalhealthalliance.org.uk/news/prfinalreport.html. 6 Mental Health Alliance, Mental Health Bill Remains a Missed Opportunity for Humane and Progressive Legislation, says Alliance (3 July 2007): www.mentalhealthalliance.org.uk/news/prendofbill. html. 7 R Daw, ‘The Mental Health Act 2007: The Defeat of an Ideal’ (2007) 16 Journal of Mental Health Law 131, 147. 8 P Fennell, Mental Health: Law and Practice, 2nd edn (Bristol, Jordans Publishing Ltd, 2011) 90.

Assessing the Impact of the 2007 Act 195

practices? We turn to consider these questions in the second part of this chapter. Drawing on evidence from the United Kingdom (UK) and elsewhere, this chapter reveals that the scope and content of mental health legislation has little bearing on civil commitment practices. If they have any effect, reforms to mental health laws tend to affect the number and rate of compulsory admissions only in the short term, and appear to have virtually no constraining influence on the decision-making parameters of mental health professionals. This is not to say that its procedural prescriptions lack bite; clearly, detention time limits, procedural prerequisites, and tribunal entitlements are eminently enforceable. The issue here is whether the law has any bearing on substantive decisions. This chapter shows that the failure of the 2007 Act’s reforms to have had any meaningful impact on mental health services in this respect is entirely of a piece with experiences of reform in other times and places. All this means that the 2007 Act has not had the impact that many expected. Although more coercion and less liberty undoubtedly characterise what we might call the era of new medicalism, the legislation that ostensibly enabled this may not actually be responsible. From a legal point of view, this raises a troubling prospect: if the law cannot effectively restrain and control the decision-making dynamics of professionals empowered to suspend the liberty of individuals, then what will?

Assessing the Impact of the 2007 Act Analysing the Statistical Evidence After the 2007 Act: More Admissions The 2007 Act’s principal reforms came into force on 3 November 2008.9 Since then, the number of people detained in hospital each year under the MHA has risen. In the year before the 2007 Act, there were 44,093 detentions under the MHA, of which 27,234 were formal admissions and 14,839 were detentions subsequent to voluntary or informal admission.10 The year after there were 44,543 detentions across both National Health Service (NHS) and private facilities, 27,946 of which comprised formal admissions and 14,701 were detentions

9 MHA 2007, s 56; Mental Health Act 2007 (Commencement No 7 and Transitional Provisions) Order 2008, SI 2008/1900. 10 NHS Information Centre for Health and Social Care, Inpatients Formally Detained in Hospitals under the Mental Health Act 1983, and Patients subject to Supervised Community Treatment: Annual Figures, England, 2011/12 (24 October 2012) 11: content.digital.nhs.uk/catalogue/PUB08085/inp- det-m-h-a-1983-sup-com-eng-11-12-rep.pdf.

196 Evaluating the Impact of the MHA 2007

subsequent to a dmission.11 This represented a 1 per cent increase in the number of detentions, a 2.6 per cent increase in the number of formal admissions, and a 0.9 per cent fall in the number of detentions following informal admission in the amended MHA’s first year of operation. Any expectation that the post-2007 MHA would have an immediate and significant impact on the number of formal admissions did not therefore become a reality. The more recent statistics tell a different story. The latest data come from 2015–16, during which there were 63,622 detentions under the MHA.12 Of these, fully 40,785 were detentions on admission to hospital and 17,181 were detentions subsequent to admission.13 The headline figure is 9 per cent larger than that reported in 2014–15 (58,399), 44 per cent greater than the number of detentions recorded in the year immediately preceding the 2007 Act’s reforms, and 47 per cent higher than that which was reported in 2005–06 (43,361).14 These statistics reveal a significant increase in the annual number of formal admissions since 2005–06 and a strong correlation between that and the introduction of the 2007 Act’s reforms. The medium- to longer-term data exhibit exactly the sort of trend that one would expect to observe following a lowering of the law’s threshold for compulsion. It has not all been one-way traffic: there was a decline of 1.1 per cent in the number of detentions subsequent to admission between 2012–13 and 2013–14.15 The present author originally postulated that this decline may ‘[owe] something to the introduction of the Deprivation of Liberty Safeguards (DOLS), which have in many ways “formalised” the procedure for caring for informal patients and thereby created an alternative mechanism to the compulsory powers’.16 Whatever the reason, the trend was short-lived: the number rose from 14,087 admissions in 2013–14 to 17,181 in 2015–16, an increase of nearly 30 per cent. As a result, more people are now subject to the MHA’s compulsory powers each year than was the case prior to the 2007 Act. In Figure 6.1, we can see the extent of this increase. NHS Digital also gathers data on the number of patients detained in hospital on 31 March each year. This offers a useful snapshot of the deployment of the compulsory powers at a particular moment in time. On 31 March 2005, four reporting years before the 2007 Act’s reforms came into force, there were

11 ibid.

12 NHS Digital, Inpatients Formally Detained in Hospitals under the Mental Health Act 1983, and Patients subject to Supervised Community Treatment—Uses of the Mental Health Act: Annual Statistics, 2015/16 (30 November 2016) 10: www.content.digital.nhs.uk/catalogue/PUB22571/inp-det-m-h-a1983-sup-com-eng-15-16-rep.pdf. 13 ibid. 14 ibid. 15 ibid, table 1. 16 JB Fanning, ‘Risk and the Mental Health Act 2007: Jeopardising Liberty, Facilitating Control?’ (PhD thesis, University of Liverpool, 2013) 184.

Assessing the Impact of the 2007 Act 197 70000 60000 50000 40000 30000 20000 10000 0

2007–08 2008–09 2009–10 2010–11 2011–12 2012–13 2013–14 2014–15 2015–16 Detentions

Detentions on formal admission

Detentions subsequent to admission

Figure 6.1: A bar chart showing the number of detentions under the MHA since 2007–08 (the year immediately preceding the introduction of the 2007 Act’s reforms)

14,681 people detained under the MHA.17 On 31 March 2008, some eight months before the reforms to the MHA became operational, there were 15,181 patients held in hospital.18 One year later, and the number had increased by 6 per cent to 16,073.19 According to the most recent statistics, fully 20,151 people were detained under the MHA on 31 March 2016.20 This means that in the 10 reporting years between 2005–06 and 2015–16, the number of people detained under the MHA on 31 March rose by 37 per cent. Figure 6.2 shows that there was a clear acceleration of this growth after the 2007 Act’s reforms took effect. It is true that the increase exhibited by Figure 6.2 has not been a sustained one: on 31 March 2013 the numbers were down slightly (2.9 per cent) on the previous year. There could be many reasons for this fluctuation: the selection of a random date in a given year is inevitably an inexact science. In any event, the number of detentions on 31 March increased by nearly 7 per cent between 2013 and 2014, a leap which more than makes up for the decline between 2012 and 2013. Leaving aside the 2013 anomaly, the number of people detained in hospital on 31 March of each reporting year has increased by a third since the 2007 Act’s reforms came into force.

17 Care Quality Commission, Monitoring the Use of the Mental Health Act in 2009/10 (Care Quality Commission, October 2010) 21: www.cqc.org.uk/sites/default/files/documents/cqc_monitoring_the_ use_of_the_mental_health_act_in_200910_main_report_tagged.pdf. 18 ibid. 19 Care Quality Commission, Monitoring the Mental Health Act in 2010/11 (Care Quality Commission, December 2011) 17: www.cqc.org.uk/sites/default/files/documents/cqc_mha_report_2011_ main_final.pdf. 20 NHS Digital Annual Statistics 2015/16 (n 12) table 1.

198 Evaluating the Impact of the MHA 2007 25000 20000 15000 10000 5000

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Figure 6.2: A bar chart showing the number of people detained under the MHA on 31 March of each reporting year

All this strengthens the correlation between the 2007 Act’s reforms and the increase in the number of detentions under the MHA. Since 2008, there has been a steady growth in the number of compulsory admissions, to the extent that the very latest data reveal that more people are detained under the MHA now than at any other time in the last decade. However, two points are noteworthy. The first is that it is not true that the 2007 Act’s reforms correlate with increased compulsion across the board. Secondly, although there may be a correlation, this does not necessarily signify causation. As the Care Quality Commission (CQC) rightly points out, ‘the reasons why increasing numbers of mental health patients are being detained are likely to be complex and may differ from area to area’.21 Increased numbers of formal admissions in the post-2007 Act era may be a consequence of the relaxing of the MHA’s criteria. Yet they may just as readily be attributable to other causes: for example, a growing or ageing population, repeated admissions by ‘revolving door’ patients, increasing cases of mental illness, a failure to facilitate the co-authoring of care plans,22 or the lack of adequately resourced communitybased care and treatment services.

Painting a More Complex Picture Fennell argues that the ‘tutelary relationships’ through which decision-making power over the affairs of adults is conferred on others resemble a ‘tutelary 21 Care Quality Commission, Monitoring the Mental Health Act in 2015/16 (Newcastle-upon-Tyne: Care Quality Commission, 2016) 18: www.cqc.org.uk/sites/default/files/20161122_mhareport1516_ web.pdf. 22 ibid, 40; see also, MH De Jong et al, ‘Interventions to Reduce Compulsory Psychiatry Admissions: A Systematic Review and Meta-analysis’ (2016) 73(7) Psychiatry 657.

Assessing the Impact of the 2007 Act 199

archipelago’.23 By this, he means that there is now ‘a network of interconnected tutelary relationships’ which constitutes the entire mental health system.24 The ‘archipelago’ includes the Mental Capacity Act (MCA) 2005, the DOLS, and so on. This makes evaluating the impact of the 2007 Act much less straightforward than might at first be assumed. For example, the 2007 Act’s reforms might have increased the number of admissions but, equally, the introduction of Supervised Community Treatment (SCT) may have offset that by diverting patients into the community. There is also an interplay between the MHA and the DOLS, which, as we have seen, can apply to the same class of patients. The tutelary archipelago that Fennell so colourfully described makes the discovery of singular trends in the data rather difficult. The Use of Sections 2 and 3 of the MHA in the Post-2007 Act Era Following the introduction of the 2007 Act’s reforms, one might reasonably expect to observe an increase in the use of all of the MHA’s compulsory powers. In fact, the data suggest that the growth in the number of detentions owes much to the increased use of section 2. There were only 16,153 detentions under section 2 of the MHA when the 2007 Act’s reforms came into effect in 2008–09; by 2015–16 this figure had nearly doubled to 30,627.25 By contrast, there were only 9,601 detentions under section 3 of the MHA in 2008–09 and since then the number of admissions for treatment has actually fallen.26 In the seven reporting years since 2008–09 the number of detentions under section 3 of the MHA has not exceeded 9,601, whereas the number of admissions under section 2 has consistently broken the record set in each previous year. The line graph in Figure 6.3 illustrates the extent of the divergence. The problem with these data is that they only relate to what one might call ‘ab initio admissions’, that is, detentions under sections 2 and 3 which were not preceded by voluntary or informal arrangements or the use of one of sections 4, 5 or 136 of the MHA. The decline in the ab initio use of section 3 suggests only that fewer patients are first brought within the scope of the MHA through the gateway of admission for treatment. That the replacement of the stricter ‘treatability’ test with the more relaxed ‘appropriate treatment’ test has not resulted in a hike in the number of ‘cold’ admissions under section 3 is interesting. The data presented in Figure 6.3 suggest that where patients come to the attention

23 P Fennell, ‘Institutionalising the Community: The Codification of Clinical Authority and the Limits of Rights-based Approaches’ in B McSherry and P Weller (eds), Rethinking Rights-Based Mental Health Laws (Oxford, Hart Publishing, 2010) 22–24. 24 ibid. 25 NHS Digital Annual Statistics 2015/16 (n 12) table 1; NHS Digital, Inpatients Formally Detained in Hospitals under the Mental Health Act 1983, and Patients subject to Supervised Community Treatment: Annual Figures, England, 2010/11 (11 October 2011) table 1: content.digital.nhs.uk/catalogue/ PUB00898/inp-det-m-h-a-1983-sup-com-eng-10-11-rep.pdf. 26 ibid.

200 Evaluating the Impact of the MHA 2007 35000 30000 25000 20000 Section 2 Section 3

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Figure 6.3: A line graph showing the number of people detained under sections 2 and 3 of the MHA in each reporting year since 2008–09

of mental health services for the first time they are more likely to enter a formal arrangement through the invocation of section 2. This suggests that Fennell’s contention that decision-makers have lost their discretion not to engage the compulsory powers in the post-2007 Act era can only fairly apply to admission for assessment under section 2. If they had lost that discretion more broadly then we surely would have also observed a noticeable increase in the ab initio use of section 3. Figure 6.4 below displays the data relating to the use of section 2 subsequent to a patient’s engagement on a voluntary or informal basis or the use of sections 5(2), 5(4), 4 and 136 of the MHA.27 Figure 6.5 below does the same for section 3. It also includes the number of ‘upgrades’ from section 2 to section 3:28 Ab initio admissions tell only part of the tale. On average, just shy of a third of the patients who were admitted under section 2 of the MHA between 2008–09 and 2015–16, had already engaged with mental health services in some shape or form. Admission for assessment is therefore more likely to be deployed in cases where a patient has no history of engagement with mental health services. By contrast, during the same period, nearly two-thirds of patients compulsorily admitted under section 3 had been upgraded from another arrangement. In some of these instances, the number of ‘conversions’ to section 3 has increased significantly in the post-2007 Act era. For example, the number of upgrades from

27 ibid. 28 ibid.

Assessing the Impact of the 2007 Act 201 6000 5000

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section 2 to section 3 has more than doubled during that time. A patient who is detained under section 3 is therefore likely to have ‘graduated’ into that arrangement. On average, over a third of patients (35 per cent) admitted under section 3 between 2008–09 and 2015–16, had initially been admitted for assessment for the purposes of section 2. The use of section 2 as a gateway makes intuitive sense. As we saw in chapter one, the wording of section 2 establishes a much less demanding threshold than section 3.

202 Evaluating the Impact of the MHA 2007

The very purpose of admission for assessment is for mental health professionals to assess the patient as a prelude to possible further action. Section 3 authorises an escalation of the intensity of a patient’s interaction with mental health services: it therefore follows that decision-makers will invoke section 2 in the first instance to determine whether such a step is necessary. To admit a patient who has no prior history of engagement with mental health services under section 3 without first having assessed his condition must surely be an unusual step reserved for only the most pressing of cases. With this in mind, the fact that section 2 is used more often than section 3—both ab initio and subsequent to admission—is not surprising. What is noteworthy is that there has been an increase in the use of section 2 admissions across the board, meaning more people are entering formal relationships with mental health services than was the case prior to the introduction of the 2007 Act. As Figure 6.6 illustrates, the data relating to the total number of admissions under sections 2 and 3 of the MHA demonstrate a clear upward direction of travel since 2008–09.29 Whether this can fairly be attributed to those reforms seems questionable, at the very least.

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29 ibid.

Assessing the Impact of the 2007 Act 203

The Influence of SCT As we saw in chapter three, SCT is contingent on compulsory admission: a person can only be made the subject of a Community Treatment Order (CTO) if he is already liable to be detained in a hospital in pursuance of an application for admission for treatment.30 According to section 17D(1) of the MHA, an application for admission for treatment remains in force when a patient is made subject to a CTO. This means that a person discharged onto a CTO exists in a parallel, community-based arrangement which mirrors the duration of authority that applies to patients generally admitted under the MHA.31 Before the 2007 Act, certain ‘revolving door’ patients might have been in and out of hospital as they yo-yoed between formal and voluntary or informal status. The same patient might therefore clock up multiple admissions, all of which would be counted as distinct deployments of the compulsory powers in the data. In providing a parallel care and treatment regime, SCT has eliminated the need for these multiple admissions. For that reason, SCT may have reduced the number of unique uses of sections 2 and 3. The interplay between SCT and the rest of Part II of the MHA therefore potentially complicates the analysis of the post-2007 Act era. SCT has proved to be a popular innovation. In its first year of operation, clinical teams issued 2,134 CTOs.32 In the same year, there were 207 recalls to hospital, 143 revocations, and 33 discharges from CTOs.33 According to the most recent data, 4,361 CTOs were issued in 2015–16, a vast majority of which (94 per cent) were created for patients subject to section 3 of the MHA.34 The number of CTOs issued under Part II has therefore more than doubled in the seven reporting years since their introduction. Over the same period, the number of recalls and revocations has grown significantly from 207 to 2,294 and 143 to 1,557 respectively.35 CTOs have clearly become an integral part of the suite of measures which mental health professionals have at their disposal. Nevertheless, it is striking that the figures do not suggest that there has been a runaway increase in the use of SCT. As we know, the policy context from which SCT emerged emphasised the control and management of the risks of harm that patients with mental disorders might pose. In light of this, one might expect to have observed an increase in the use of CTOs as they have become established as tools for that purpose. In fact, the data imply that decision-makers issue a fairly constant number of CTOs each year. Notwithstanding the evidence of increased use of section 3 in the post-2007 Act era,

30

MHA 1983, s 17A(2). MHA 1983, s 20A. 32 NHS Information Centre for Health and Social Care, Inpatients Formally Detained in Hospitals (n 10) 22. 33 ibid. 34 NHS Digital Annual Statistics 2015/16 (n 12) table 3. 35 ibid. 31

204 Evaluating the Impact of the MHA 2007

the number of CTOs has not exhibited any proportional increase (see Figure 6.8 below). The implication is that SCT operates within its own ‘ecosystem’ and is largely impervious to the ebb and flow of the wider currents in mental health practice—a suggestion borne out somewhat by the steadily increasing number of 5000 4500 4000 3500 3000

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Assessing the Impact of the 2007 Act 205

discharges from CTOs each year. It is true that the number of recalls and revocations exhibited a steady increase in the first five years of the operation of SCT. Yet both would appear to have levelled off in recent years, suggesting a fairly constant rate of recalls and revocations too. These figures seem to corroborate the contention that CTOs are most effective for a rump of ‘revolving door’ patients but are of limited use more broadly. The inescapable conclusion is that SCT has not impacted significantly upon the number or rate of admissions under Part II of the MHA since 2008. The Interplay Between the MHA and the DOLS The interplay between the MHA and the DOLS is another aspect of the post-2007 era which may complicate matters for present purposes. Chapter one noted that in some cases both formal and informal care and treatment options may be available for the same patient. This means that since the 2007 Act was introduced, a legal mechanism now exists by which decision-makers can divert patients away from the MHA’s compulsory powers and yet still legitimately deprive them of their liberty.36 It follows that the 2007 Act’s reforms may in fact have led to a r eduction in instances of formality or, at the very least, exerted a dragging effect on the admission statistics. In spite of their obvious potential to do so, the DOLS have not had this anticipated effect. In their first year of operation, there were 7,157 completed applications for standard authorisations under the DOLS framework, of which 3,297 (or 46 per cent) were granted.37 The latest data from 2015–16 reveal that there has been an explosion in the number of applications for DOLS authorisations in the intervening years, together with a significant increase in the proportion of them which are granted. There were fully 105,055 completed DOLS applications in 2015–16, 76,530 (or 72.8 per cent) of which were granted.38 Nearly three-quarters of DOLS assessments in that year satisfied the ‘mental health requirement’;39 it does not appear that the choice between the DOLS and the MHA has led to patients being diverted away from the compulsory powers. As Figure 6.9 illustrates, the total number of admissions under the MHA has risen in the post-2007 Act era, seemingly without regard to the mushrooming use of the DOLS framework during the

36

MHA 2007, s 50; schs 7 and 8. Quality Commission, The Operation of the Deprivation of Liberty Safeguards in England, 2009/10 (Care Quality Commission, March 2011) 6: www.cqc.org.uk/sites/default/files/documents/ dols_report.pdf; NHS Information Centre for Health and Social Care, Mental Capacity Act 2005, Deprivation of Liberty Safeguards Assessments (England)—Third Report on Annual Data, 2011/12 (Health and Social Care Information Centre, Community and Mental Health Team, July 2012) 8: content.digital.nhs.uk/catalogue/PUB06900/m-c-a-2005-dep-lib-saf-ass-eng-2011-12-rep.pdf. 38 NHS Digital, Mental Capacity Act 2005, Deprivation of Liberty Safeguards (England) Annual Report 2015–16 (Health and Social Care Information Centre, September 2016) 15, 18: content.digital. nhs.uk/catalogue/PUB21814/dols-eng-1516-rep.pdf. 39 MCA 2005, sch A1, pt 3, para 14. 37 Care

206 Evaluating the Impact of the MHA 2007 120000

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same period.40 Even the spike in DOLS applications and authorisations that has followed the Supreme Court’s decision in Cheshire West and Chester Council v P41 has not had any discernible bearing on the number or rate of admissions under Part II of the MHA. According to NHS Digital, Cheshire West prompted ‘a significant change to established practice’ and led to a tenfold increase in applications for DOLS authorisations between 2013–14 and 2014–15.42 Nevertheless, the steady upward trend in the number of compulsory admissions under the MHA has continued, apparently impervious to the impact of Cheshire West on the number of DOLS applications and authorisations. The upshot of this is that the DOLS may also constitute a distinct ‘ecosystem’. Nevertheless, there are two reasons why the DOLS still pose a complication

40 For the purposes of Fig 6.9, the total number of admissions under the MHA is calculated as the total number of compulsory admissions in each reporting year, minus the number of detentions under Part III of the MHA. See NHS Digital, Annual Statistics 2015/16 (n 12) table 1; for data sources on DOLS, see, eg, Care Quality Commission, The State of Health Care and Adult Social Care in E ngland 2015/16 (Newcastle-upon-Tyne, Care Quality Commission, HC 706, 2016): www.cqc.org.uk/sites/ default/files/20161019_stateofcare1516_web.pdf. 41 Cheshire West and Chester Council v P [2014] UKSC 19. 42 NHS Digital, Mental Capacity Act 2005 (n 38) 4.

Assessing the Impact of the 2007 Act 207

for present purposes. First, they still contribute to an era characterised by more control and less liberty. Although one might question the extent to which the 2007 Act’s reforms have had such an effect where the MHA’s compulsory powers are concerned, it is clear that through the DOLS framework they have been instrumental in creating a more coercive climate in English mental health practice. Secondly, the DOLS demonstrate that changes in the law can influence mental health decision-making in a noticeable and tangible way. The impact of Cheshire West is plain to see in the data displayed in Figure 6.9. That the admission statistics pertaining to Part II of the MHA did not exhibit an equally stark increase immediately following the introduction of the 2007 Act’s reforms implies that they lacked the same causative potency. The Post-2007 Discharge Statistics NHS Digital does not publish MHA discharge data, making it difficult to map the ‘life cycles’ of formal patients. It is possible to get around this by consulting other sources. For example, the Ministry of Justice (MoJ) publishes quarterly statistics on receipts and disposals in the Tribunals Service.43 Similarly, NHS Digital’s Mental Health Bulletin discloses how many people in total (ie, voluntary, informal and formal patients) are in contact with adult mental health services in England each year.44 These statistics include the number of discharges from those services, although they do not report on discharges from section specifically. Beyond these datasets, there are no national statistics on the number of formal patients d ischarged after being ‘timed out’ or by order of hospital managers’ panels or responsible clinicians. It is clear that this is ripe for further investigation and research, a task which is regrettably beyond the scope of this volume. First, the MoJ’s data tell us something about the workload of the MHT. If the MHT workload has noticeably increased in the post-2007 Act era, this may imply that mental health professionals are less inclined to discharge patients themselves. This would suggest that formal patients are being detained for longer and might imply that a culture of defensiveness is taking root within mental health services. When the 2007 Act’s reforms came into force during the 2008–09 reporting year, the MHT received 22,652 cases, of which 24,485 were duly disposed. By 2016–17 there were 33,223 receipts and 33,936 disposals.45 The MHT’s workload has clearly increased. To some extent, this is unsurprising: if more people are entering hospital on a compulsory basis then it follows that the MHT’s workload will increase. Having said that, because the MHT is not the only means of ending a person’s liability to be detained under the MHA, an increase in its workload might reveal 43 eg, Ministry of Justice, Tribunals and Gender Recognition Statistics Quarterly, January to March 2017 (8 June 2017): www.gov.uk/government/statistics/tribunals-and-gender-recognitions- certificates-statistics-quarterly-january-to-march-2017-and-2016-to-2017. 44 NHS Digital, Mental Health Bulletin 2015-16, Annual Report (30 November 2016): www.content. digital.nhs.uk/catalogue/PUB22561/mhb-1516-ann-rep.pdf. 45 Ministry of Justice (n 43) data tables S.2 and S.3.

208 Evaluating the Impact of the MHA 2007 40,000 35,000 30,000 25,000 Cases received Cases disposed of

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something about contemporary mental health practices. In any case, the MHT is now much more efficient: on 31 March 2010, it had 4,836 cases outstanding; on 31 March 2017, it was yet to dispose of 2,009 cases.46 In spite of its increasing workload, the MHT is getting better at disposing of cases promptly. Figure 6.10 demonstrates the steady increase in the workload of the MHT since 2008–09 and highlights a positive correlation between the introduction of the 2007 Act and the increase in tribunal business. Secondly, NHS Digital’s data show that the number of discharges from mental health services in England has increased in the last five reporting years. In 2011–12, a total of 113,640 patients were discharged from mental health services. By 2015–16, the number of discharges had risen to 122,262.47 How many of these patients had been discharged from section is unknown. However, it is worth recalling that formal patients’ interactions with mental health services are unlikely to be terminated at the moment of their discharge from section. All formal patients are entitled to enjoy the benefit of aftercare arrangements under section 117 of the MHA and will in most cases continue to engage with services voluntarily or informally. Moreover, the increase in the number of discharges may owe something to a growing pressure on resources. In 2011–12, there were on average 20,872

46 47

ibid, data table S.4. NHS Digital, Mental Health Bulletin 2015-16, Annual Report (n 44) data table 6.1.

Assessing the Impact of the 2007 Act 209

‘bed days’ in mental health facilities in England; by 2015–16 this had risen to 25,404.48 Rising discharge figures may therefore have little to do with the provisions of the MHA and everything to do with hospital budgets.

Correlation, but No Causation? In spite of the complications on which we have reflected, there is unmistakably a positive correlation between the introduction of the 2007 Act’s reforms and the increasing use of the MHA’s compulsory powers. Yet whether this correlation equals causation seems doubtful: in truth, the number of detentions under the MHA has been rising steadily since the mid-1980s (see Figure 6.11 below). In the 29 reporting years between 1987–88 and 2015–16, the number of people detained under the MHA grew in 21 of them.49 During the 20-year period from 1987–88 to 2007–08 the number of people detained under the MHA more than doubled.50 Long before the 2007 Act sounded a retreat from new legalism, deployments of the MHA’s compulsory powers were growing in frequency. The notionally restrictive nature of the provisions of the original 1983 Act therefore proved to be no impediment whatsoever to the expanding use of civil commitment.

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48 ibid. 49

Care Quality Commission, Monitoring the Use of the Mental Health Act in 2009/10 (n 17) 19.

50 ibid.

210 Evaluating the Impact of the MHA 2007

It is true that the growth in the number of formal admissions has begun to accelerate in recent years. After a 1 per cent fall between 2009–10 and 2010–11, they have grown by an annualised rate of no less than 4 per cent since. Between 2013–14 and 2014–15, the number of detentions under the MHA increased by almost 10 per cent and there was a similar rate of growth between 2014–15 and 2015–16. Therefore, the rate of detentions under the MHA has increased noticeably in the last five years. But, again, whether one can credit the 2007 Act’s reforms as the cause of this acceleration is highly questionable. There is a perceptible delay between the coming into force of the 2007 Act’s reforms in 2008–09 and the (not especially significant) acceleration of the rate of admissions around 2011–12. If a change in the law is to have a transformative effect, then one might expect to observe the same sudden and dramatic consequences that followed Cheshire West where the DOLS are concerned. That there was no abrupt spike in the number of detentions under the MHA in 2008–09 suggests that the law did not serve as a restraining influence on decision-makers to anywhere near the extent that was assumed. Of course, this may be attributable to the fact that the necessary institutional changes took longer to embed. Equally, it may be that the law never possessed significant determinative clout in the first place. It may also be true that there is a qualitative difference between reforming the MHA’s admission criteria on the one hand and the imposition of a new administrative burden on the other. Whereas the 2007 Act made it easier to bring as yet unknown persons within the remit of the MHA’s compulsory powers, Cheshire West required health professionals to take active steps in relation to an identifiable class of patients already engaged by mental health services. In any case, the fact that Figure 6.11 does not exhibit the same sudden upturn as Figure 6.9, and that the rate of increase appears entirely consistent with the longterm trends, casts doubt on the causative significance of the 2007 Act’s reforms. This doubt is exacerbated by the per capita data. At first blush, these statistics would appear actually to support the argument that the 2007 Act has caused an increase in the number of detentions. Figure 6.12 below displays the number of detentions under the MHA per 100,000 people in England in each reporting year.51 The trend shows a striking similarity to that which is displayed in Figure 6.11, meaning that the number of detentions under the MHA has also increased per head of population over the course of the 29 reporting years between 1987–88, and 2015–16. In 1987–88, approximately 46.2 people in every 100,000 in E ngland were detained under the MHA; by 2015–16 that figure had risen to around 115 in every 100,000. In the post-2007 Act era in particular, detentions have risen from 85.3 per 100,000 people in 2008–09 to 115.1 in 2015–16—the most significant jump since the early 1990s. While the population of England increased by

51 Office for National Statistics, England Population Mid-year Estimate (22 June 2017): www.ons. gov.uk/peoplepopulationandcommunity/populationandmigration/populationestimates/timeseries/ enpop/pop.

140 120 100 80 60 40 20 0 1987–88 1988–89 1989–90 1990–91 1991–92 1992–93 1993–94 1994–95 1995–96 1996–97 1997–98 1998–99 1999–00 2000–01 2001–02 2002–03 2003–04 2004–05 2005–06 2006–07 2007–08 2008–09 2009–10 2010–11 2011–12 2012–13 2013–14 2014–15 2015–16

Number of detentions under the MHA per 100,000 people in England

Assessing the Impact of the 2007 Act 211

Reporting year

Figure 6.12: A line graph showing the number of detentions under the MHA per 100,000 people in England during each reporting year between 1987–88 and 2015–16

a pproximately 17 per cent between 1987–88 and 2015–16, the n umber of detentions under the MHA per 100,000 people increased by 149 per cent. The increase in the number of detentions has therefore outstripped the increase in the population by a factor of approximately 8.8. This allows us to rule out the possibility that the number of detentions under the MHA has risen in proportion with the growth in the population of England. Perhaps the most compelling statistics in this regard relate to the range of detentions per capita before and after the 2007 Act. Between 1997–98 and 2007–08, the range of detentions was narrow: 5.2 per 100,000. Between 2008–09 and 2015–16 it had expanded significantly, stretching to 29.8 detentions per 100,000. It is in this connection that the increase in the n umber of detentions under the MHA in recent years is most apparent. Whereas the data from the decade prior to the introduction of the 2007 Act display a remarkable degree of consistency, the statistics from the post-2007 Act era tell a different story. Yet even this does not offer conclusive proof of the determinative significance of the amendments to the MHA. The most obvious point is that the per capita data also do not reveal a sharp jump following the introduction of the 2007 Act. Although there is a strong correlation, there is still nothing to suggest that the link is causal. For that reason, the same misgivings which relate to the absolute figures in Figure 6.11 also extend to the per capita data. Another point is that comparable increases in the number of detentions have occurred since the mid1980s and these do not correlate in any way with changes to the wording of the

212 Evaluating the Impact of the MHA 2007

governing legislation. In the decade between 1987–1988 and 1997–98, the range of detentions per 100,000 people in England was approximately 33.7—even wider than that of the post-2007 Act era so far. Since there were no major amendments to the MHA 1983 at that time, it is rather difficult to credit the significant increase in the number of detentions between 1987–88 and 1997–98 to statutory reform. If the number of detentions under the MHA can increase irrespective of the legal landscape, then it makes the attribution of responsibility to the 2007 Act’s reforms rather difficult to justify. At best, the data allow us to do two things. First, we can rule out population growth as a causal factor. Secondly, we can conclude only that the 2007 Act’s reforms may have led to increases in the number of detentions. In truth, there are many reasons that may explain why the number of compulsory admissions has grown of late. One is that the population is getting sicker. This would explain why the demand for mental health services has grown year on year. It may also be the result of the gradual de-stigmatisation of mental health problems, which may have led to more people seeking help from mental health services. Yet the difficulty with this explanation is that it does not necessarily illuminate why detentions under the MHA should have increased. While it may be true that mental disorder is more common in England now than it was a decade ago, why that should translate into the need for more coercive interventions is unclear. As we saw in chapter four, the risks of harm associated with mental illnesses (eg, homicide, suicide, self-harm, self-neglect, exploitation, abuse and so on) are no worse than they were a decade ago, nor are they any more common. Mental disorders may have proliferated but it does not necessarily follow that this has led to a growing threat to public safety. The effects of de-stigmatisation would not seem to be a plausible explanation for the increase in detentions either: if people suffering from mental health problems are more likely to seek help now than they were in the past then why is compulsory care and treatment increasingly necessary? Another explanation may be the growing pressure on resources. It may be no coincidence that the era of increased use of the MHA coincides with the change of government in 2010 and the consequent change in fiscal policy. Between 2010 and 2015, the Conservative–Liberal Democrat coalition sought to eliminate the UK’s structural deficit through a programme of cuts to public expenditure. This continued following the election of a majority Conservative government in 2015. Although spending on the NHS has continued to rise each year,52 the

52 In 2010, the Budget allocated £122 billion for health; by 2017 this figure had risen to £149 billion. See HM Treasury, Budget 2010 (HC 61, June 2010): webarchive.nationalarchives.gov. uk/20101121064908; www.hm-treasury.gov.uk/d/junebudget_complete.pdf; HM Treasury, Spring Budget 2017 (HC 1025, March 2017): www.gov.uk/government/uploads/system/uploads/attachment_ data/file/597467/spring_budget_2017_web.pdf.

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budget for mental health services in England may have fallen during that period. This may have led in turn to the increased use of the MHA, not because it is clinically necessary but because it is the only option left for overstretched professionals to employ in the absence of c ommunity-based services. In their 2011 study, Keown et al found that between 1988 and 2008 the provision of mental illness beds in the NHS in England decreased by 62 per cent, while involuntary admissions increased by 64 per cent in the same period.53 They concluded that if their model is reliable and valid, it predicts one additional episode of involuntary admission for every two non-secure inpatient beds taken out of service in the preceding year.54 During the course of its post-legislative scrutiny of the 2007 Act, the House of Commons Health Committee heard ‘disturbing’ evidence that there was a link between a lack of bed capacity in psychiatric units and increases in detention.55 Similarly, in its most recent report on the MHA, the CQC has also suggested that scarce resources and unsuitable care and treatment facilities may be a cause of rising rates of detention.56 It has stated that the number of beds occupied by formal patients at any one time may even have begun to surpass the number occupied by informal patients.57 This is almost certainly a false economy: according to an independent commission set up by the Royal College of Psychiatrists in 2015, the cost of one bed on an acute ward is equal to that of 44 patients under the care of a community mental health team.58 Nevertheless, acute adult inpatient care still chiefly adheres to the institutional paradigm, despite the greater costs that this entails. Increasing recourse to the MHA may therefore have little to do with ‘technical issues of legal process’ and everything to do with other problems that ‘disempower patients, prevent people from exercising legal rights, and ultimately impede recovery’.59 This does not make the issue any less pressing: that the state might deprive people of their liberty and authorise the deployment of coercive power against them as a direct consequence of resource constraints is no less troubling than when its apparatus operate in the absence of legal certainty or coherent policy. This notwithstanding, the increase in the absolute number of compulsory admissions since the 2007 Act was introduced may be wholly attributable to social or economic—and therefore extra-legal—causes. 53 P Keown et al, ‘Association between Provision of Mental Illness Beds and Rate of Involuntary Admissions in the NHS in England 1988–2008: Ecological Study’ (2011) 343 British Medical Journal d3736, 3. 54 ibid, 4. 55 Health Committee, Post-legislative Scrutiny of the Mental Health Act 2007 (HC 2013–14, 583) [25], [27] 56 Care Quality Commission, Monitoring the Mental Health Act in 2015/16 (n 21) 11, 13. 57 ibid, 18. 58 Independent Commission on Acute Adult Psychiatric Care, Old Problems, New Solutions: Improving Acute Psychiatric Care for Adults in England (February 2016) 28: www.rcpsych.ac.uk/pdf/Old_ Problems_New_Solutions_CAAPC_Report_England.pdf. 59 ibid, 6.

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* The present enquiry is limited to investigating the impact of the 2007 Act’s reforms and whether they might plausibly be credited with having increased the number of instances of compulsion under the MHA. The statistical evidence in this connection is inconclusive. On one hand, it is clear that more people with mental health problems are detained under the MHA in the post-2007 Act era than they were previously. It is also clear that detentions under the MHA are greater per head of population now than at any time since the mid-1980s. There is consequently a strong positive correlation between the introduction of the 2007 Act and the increased use of the MHA’s civil commitment powers in England. On the other hand, there are reasons why it is impossible to be definitive. First, the interaction between the MHA’s various powers and their interplay with things like SCT, the DOLS and discharge decisions makes the identification of clear and uniform post-2007 Act trends difficult. Secondly, no matter how compelling the correlation, it does not necessarily equal causation. The data show that an upward trend in the number of detentions was happening long before the government even resolved to amend the MHA. While it is true that we live in an era that one might fairly characterise as being one of more control of, and less liberty for, mental health patients, there are many reasons why this might be the case. Certainly, one such reason is the wording, scope and content of the governing legislation. Yet the trend may also be a product of a sicker population, improvements in diagnostic processes, institutional failings, or scarce resources. For that reason, ascertaining the true impact of the 2007 Act requires us to go further than a mere statistical enquiry.

Evaluating the ‘Other’ Evidence There have been remarkably few studies of the continuities and discontinuities between the pre- and post-2007 Act eras. The UN Convention on the Rights of Persons with Disabilities (CRPD) is almost certainly one reason for this. Its widespread ratification by 174 of the UN’s 193 Member States has diverted scholarly attention away from analyses of what mental health law is to questions of how it ought to be. To the extent that the amended MHA figures in contemporary policy debates, it is regarded, at best, as a way station on a journey towards a CRPD-compliant future and, at worst, as a symbol of everything that modern mental health law ought not to be. This may explain why the 2007 Act’s principal reforms have not been the subject of significant or recurring academic or technical attention since their implementation. Even where the amended MHA has attracted such attention, it has typically focused on the 2007 Act’s innovations rather than its amendments. SCT falls squarely within this category, as do the DOLS and Independent Mental Health Advocates (IMHAs). In its 2012 review of the implementation of the MHA 2007,

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the Mental Health Alliance identified areas of ‘serious concern’, encompassing CTOs, the DOLS, IMHAs, race equality, and place of safety orders under sections 135 and 136.60 It said nothing about the impact (or lack thereof) of the 2007 Act’s amendments, including the changes they made to the MHA’s nearest relative provisions. Similarly, the Department of Health submitted a memorandum in 2012 to the Health Committee of the House of Commons offering its assessment of the MHA 2007. The bulk of its report focused on IMHAs, SCT and DOLS; it made scant reference to the impact of the 2007 Act’s other reforms.61 Yet it is the 2007 Act’s amendments that constitute what we have posited are its principal reforms. The absence of significant and substantial commentary on their impact makes it difficult to evaluate the 2007 Act and new medicalism more broadly. Of course, its absence may indicate that this volume has attributed inordinate weight to some of the 2007 Act’s reforms, elevating them to a station far above that which they actually deserve. But this would seem unlikely: the simpler definition of mental disorder, the appropriate treatment test, and the redefinition of the roles of mental health professionals attracted the most controversy during the passage of the 2007 Act. They were also explicitly justified on the basis that they would assist mental health services in becoming more responsive to risk. At the very least, one might expect some attention to have been devoted to exploring whether the post-2007 Act era has justified contemporary commentators’ worst fears. Alternatively, the absence of an extensive literature on this point may simply reflect that nothing much has changed. We will return to this point shortly. For now, it will suffice to acknowledge that very little has been published on what we have called the 2007 Act’s principal reforms; a scarcity which makes the evaluation of its impact more difficult.

Initial Expectations Initial expectations of the 2007 Act were mixed and, at times, contradictory. In its Regulatory Impact Assessment, the Department of Health recognised that its amendments were designed to ‘ensure that patients receive the treatment they need to protect themselves and the public from harm’.62 It justified the ‘appropriate treatment’ test, for example, on the basis that it would ‘pre-empt and help to manage behaviour rather than react to behavioural breakdown’.63 The test was therefore instrumental in controlling and managing the risks that

60 Mental Health Alliance, The Mental Health Act 2007: A Review of its Implementation (May 2012) 23: www.mentalhealthalliance.org.uk/news/MHA_May2012_FINAL.pdf. 61 Department of Health, Post-legislative Assessment of the Mental Health Act 2007: Memorandum to the Health Committee of the House of Commons (Cm 8408, 2012) [36]–[119]. 62 Department of Health, Mental Health Bill: Regulatory Impact Assessment (June 2007) [4]: webarchive.nationalarchives.gov.uk/20130105054439/; www.dh.gov.uk/prod_consum_dh/groups/ dh_digitalassets/documents/digitalasset/dh_076476.pdf. 63 Department of Health, Post-legislative Assessment of the Mental Health Act 2007 (n 61) [18].

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people with mental disorders may pose to themselves or others. The Department of Health anticipated that it ‘might lead to a small increase in the number of people detained under the 1983 Act’.64 Yet while it was widely acknowledged that the 2007 Act’s reforms would have the effect of removing legalistic fetters on professional decision-making and lowering the threshold for admission, not everyone expected them to lead to a concomitant increase in the number of people detained in hospital. The Department of Health was itself unconvinced that the simpler definition of ‘mental disorder’ would make any significant difference.65 Furthermore, it did not interpret the redefinition of mental health professionals’ roles through the prism of risk; rather, it said that this reform was ‘made in the spirit of the development of multi-agency and multi-disciplinary teamwork in the delivery of modern mental health services’.66 The Department of Health’s initial expectations were therefore characterised by a kind of curious doublethink. As far as it was concerned, the 2007 Act may or may not have been all about risk, and it may or may not lead to an increase in the number of people detained under the MHA. In a King’s Fund briefing paper, Lawton-Smith suggested that it was possible that the number of people with mental illnesses living in the community would rise following the introduction of SCT. In turn, he claimed that this might lead to a consequential decline in the number of people compulsorily detained in hospital.67 The Department of Health shared this view and anticipated that SCT would avoid ‘repeated readmission’ and thereby reduce instances of compulsion.68 Lawton-Smith even anticipated that mental health professionals might struggle to acclimatise to the new and complex legal environment that would follow the introduction of the 2007 Act. He suggested that the 2007 Act’s amendments to the MHA, coupled with wider reforms to the tribunal service by the Tribunals, Courts and Enforcement Act 2007 and to the NHS, would create a complex legal landscape and make the identification of uniform trends rather difficult.69

Evidence of the Impact of the 2007 Act’s Principal Reforms The Practical Impact of the Prioritisation of Risk in Mental Health Policy Since the 2007 Act’s reforms came into effect, only one study has evaluated the impact that the attendant prioritisation of risk may have had in practice. The team

64 ibid. 65

Department of Health, Mental Health Bill: Regulatory Impact Assessment (n 62) [34]. ibid, [51]. 67 Simon Lawton-Smith, Briefing: Mental Health Act 2007 (London, The King’s Fund, December 2008) 7: www.kingsfund.org.uk/sites/files/kf/briefing-mental-health-act-2007-simon-lawton-smithkings-fund-december-2008.pdf. 68 Department of Health, Mental Health Bill: Regulatory Impact Assessment (n 62) [23]. 69 Lawton-Smith, Briefing: Mental Health Act 2007 (n 67) 8. 66

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behind the study carried out 20 hours of qualitative interviews with key informant mental health decision-makers drawn from various professional groups working for Mersey Care NHS Trust.70 On a regular basis, all of the participants in the Mersey Care study either deployed, or had administrative responsibilities related to, the compulsory powers. The research team asked each participant about his or her understanding of the concept of risk as it applied in his or her professional practice. The Mersey Care study found two things. The first was that mental health decision-makers experienced the same problems with the concept of risk that this volume discussed in chapter two. The study’s participants were only too aware of the absence of a fixed definition of “risk” in the MHA.71 They had to reconcile the fact that risk is ‘encountered on a regular basis’ with the reality that there is ‘no accepted definition of it’.72 As the study’s author pointed out, many participants were fully aware of the ‘ubiquitous’ nature of risk and acknowledged that it is the ‘universal currency’ of mental health p ractice.73 Yet, in spite of this, they accepted that it was ultimately for them to confront the incongruity of not actually knowing what ‘risk’ means.74 Many participants admitted to relying on self-authored ‘working definitions’ of risk.75 These could be esoteric (‘risk is a slightly wider version of safety’), circular (‘risk is about risk’),76 or divisible (‘“significant” risk’);77 or they could stem from either paraphrasing the statutory commitment criteria (‘risk is something that can’t be managed safely in the community’)78 or inserting new words into the legislation (‘you must make a distinction between risk of harm and risk of dangerousness; they have two different meanings within the [Mental Health] Act’).79 The result was ‘tremendous variation’ in the way in which decision-makers understand and interpret risk.80 This variation appears to be completely arbitrary: there was no connection between a practitioner’s professional background and a particular interpretation of risk,81 nor did the statutory provisions provide any discernible guiding force.82

70 N Glover-Thomas, An Investigation into Initial Institutional and Individual Responses to the ental Health Act 2007: Its Impact on Perceived Patient Risk Profiles and Responding Decision-making M (University of Liverpool and Mersey Care NHS Trust, 2011) (Mersey Care study). 71 N Glover-Thomas, ‘The Age of Risk: Risk Perception and Determination Following the Mental Health Act 2007’ (2011) 19 Medical Law Review 581, 588. 72 Mersey Care study (n 70) 21. 73 Glover-Thomas (n 71) 594. 74 ibid. 75 Glover-Thomas (n 71) 588; see also, Mersey Care study (n 70) 20, 30, 34–35. 76 Mersey Care study (n 70) 20. 77 Mersey Care study (n 70) 29, 32. 78 Mersey Care study (n 70) 30; see also, Glover-Thomas (n 71) 588. 79 Mersey Care study (n 70) 32, 36. 80 Mersey Care study (n 70) 61. 81 Mersey Care study (n 70) 20; see also, Glover-Thomas (n 71) 588. 82 Mersey Care study (n 70) 25, 28.

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Participants’ explicit recognition that risk can relate to anything on a ‘continuum’ reveals how broadly the concept can be construed in practice.83 The Mersey Care study’s second finding was that few of the participants credited the 2007 Act with aggravating the situation. There was no evidence that mental health decision-makers were any less assured of what ‘risk’ means and how it applies than they had been prior to the 2007 Act. The institutional difficulty with risk therefore long predated the 2007 Act. Although some participants did think that the 2007 Act had required them to recalibrate or re-author their working definitions of ‘risk’, this appears to have been based on an erroneous understanding of what the legislation had actually entailed—an admittedly troubling finding in itself. Just under half of the sample thought wrongly that the amendments had introduced a broader formulation of risk into the commitment criteria.84 As we saw in chapter three, this is simply not true: the MHA’s ‘risk formula’ was untouched by the 2007 Act’s reforms. Consequently, there should be no essential difference in practitioners’ understanding and interpretations of risk before and after the amendments came into force. For the most part, however, the participants in the Mersey Care study recognised this: one acknowledged that risk ‘is the principal reason for recommending detention … but then it always was’;85 another denied that the 2007 Act had made much difference because risk has ‘always been the underpinning of each of the Mental Health Acts’.86 Interestingly, some participants even went as far as to deny the law’s ability to affect decision-makers’ interpretations of risk one way or another. In their view, no statutory provisions could have such an effect; risk is a matter for professional discretion, not legal regulation. One put faith in his extensive psychiatric training and expertise;87 others implied that there are certain social and environmental factors that are indicative of risk and only qualified practitioners can spot them.88 These participants believed that they possessed special knowledge about risk and, for that reason, denied that the 2007 Act (or indeed any legislation) could make any difference. As one participant put it, if 100 sets of decision-makers examined 100 patients they would reach virtually the same conclusions in each case.89 Decision-makers’ professional instincts thereby render the law redundant; in any case, according to this participant, the law could not do anything about it even if it sought to do so. These observations lend weight to the argument that risk assessment in mental health decision-making proceeds according to the ‘connoisseurship’ which we discussed in chapter two. Not only does this cast doubt on the notion that the 2007

83

Mersey Care study (n 70) 28. Mersey Care study (n 70) 29; see also, Glover-Thomas (n 71) 592. 85 Mersey Care study (n 70) 25. 86 Mersey Care study (n 70) 24. 87 ibid. 88 Mersey Care study (n 70) 31, 33. 89 Mersey Care study (n 70) 35. 84

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Act has had any practical impact, it also suggests that the law itself is extremely limited in its ability to prescribe the limits of professional decision-making. The Mersey Care study suggests that the problems associated with the centrality of risk in mental health decision-making do not derive from the 2007 Act, nor can it be said that that Act’s reforms have made any material contribution to them. While the 2007 Act indisputably broadened the scope and reach of the compulsory powers, it cannot be said that it had any effect on the organising principle (such as it is) around which civil commitment operates. What went before should therefore in theory go again. This is not to say that this post-2007 Act era will generate the same outcomes as the pre-2007 Act; the continuing problems with risk may have significant practical consequences. When reforms which have the effect of lowering the threshold for admission are grafted onto a framework which is contingent on an indeterminate concept such as risk then the threat to legal certainty and liberty is obvious. The Impact of the Principal Amendments The simpler definition of ‘mental disorder’ does not appear to have had any significant impact in practice. In the memorandum it prepared for the purposes of post-legislative scrutiny, the Department of Health said that it was ‘not aware of any practical concerns about the introduction of the single definition of mental disorder’.90 There is nothing to suggest that the replacement of the original 1983 Act’s complex legalistic taxonomy with a single, catch-all definition is responsible for the increase in the instances of formal admission under the MHA since 2008. Similarly, the redefinition of mental health decision-makers’ professional designations does not appear to have had any such effect. In its memorandum, the Department of Health said that the purpose of the 2007 Act’s changes to decision-making roles was not to instil a different approach to professional practice; rather, it was to give ‘flexibility’ to employers and a ‘wider set of clinical expertise’ to patients.91 There is therefore no evidence to suggest that decision-making practice is any less consistent or reliable in light of the 2007 Act’s reforms to professional roles. The Health Committee of the House of Commons reached a similar conclusion regarding the consequences of the ‘appropriate treatment’ test. It said that the new test has done very little to change the way mental health professionals practise.92 Although the Committee acknowledged that it was ‘striking’ that its introduction coincided with a ‘substantial increase’ in the number of detentions, there was neither anecdotal nor statistical evidence to suggest that there is a causal connection.93 More recently, a study by Perry et al has cast further

90

Department of Health, Post-legislative Assessment of the Mental Health Act 2007 (n 61) [14]. ibid, [28]. Health Committee (n 55) [16]–[17]. 93 ibid, [19]. 91 92

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doubt on the causative potency of the appropriate treatment test in this regard.94 The research team conducted 41 semi-structured interviews with mental health professionals drawn from three mental health trusts in England. It discovered that there was a consensus among the interviewees that the introduction of the new test ‘did not result in a significant change in practice’.95 Although there was some evidence that decision-makers used the test strategically in order to access scarce resources, the law itself was apparently not to blame for rising admission figures.96 The Mersey Care study also evaluated its participants’ responses to some of the 2007 Act’s reforms. For the most part, they were either indifferent to the amendments or welcomed them lukewarmly insofar as they brought the law into line with what they considered to be pre-existing practices.97 One participant’s assessment of the 2007 Act—that it was ‘much ado about nothing’98—encapsulated the sentiments of a vast majority of the participants in the sample. Some were disappointed that more radical reforms had not been forthcoming.99 Others stated that the processes and reasons for detaining people under the MHA were much the same as they had always been.100 A consultant psychiatrist doubted that the amendments had had any ‘major effect’ on decision-making;101 an AMHP denied that the 2007 Act had implemented the ‘big transformation’ that many were expecting;102 and a senior administrative official suspected that the reforms would not make ‘a blind bit of difference’.103 Almost all of the participants thought that the 2007 Act had merely tinkered at the margins. The Mersey Care study does not contain any evidence to suggest that decision-making has become any less consistent or more inordinately focused on social control since 2008. In fact, some practitioners may now be acutely aware that they have a responsibility to take steps to ensure that they do not abuse the MHA’s broader commitment criteria. One clinical participant in the Mersey Care study admitted that he ‘would be very worried being a patient on the receiving end of that Act with a psychiatrist … determined that there is something wrong with me’.104 This suggests that the 2007 Act may have brought the gravity of decision-makers’ responsibilities into stark relief, discouraging them from taking ‘sectioning’ decisions lightly.

94 BI Perry et al, ‘Exploring Professionals’ Understanding, Interpretation and Implementation of the “Appropriate Medical Treatment Test” in the 2007 Amendment of the Mental Health Act 1983’ (2017) 3 British Journal of Psychiatry Open 57. 95 ibid, 60. 96 ibid, 61. 97 Glover-Thomas (n 71) 605. 98 Mersey Care study (n 70) 66. 99 Mersey Care study (n 70) 70. 100 Mersey Care study (n 70) 69. 101 Mersey Care study (n 70) 68. 102 Mersey Care study (n 70) 69. 103 Mersey Care study (n 70) 72. 104 Mersey Care study (n 70) 67.

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In her analysis, Glover-Thomas says that it is ‘difficult to resist the conclusion that patients’ rights will become increasingly secondary to public safety in the post-2007 Act era’.105 In fact, in the 10 years since the 2007 Act’s introduction, it would seem that this has not been the case: there is no evidence within the Mersey Care study’s findings or elsewhere to suggest that decision-makers engage the civil commitment criteria any differently than they did in the past. The Impact of SCT Much has been written about SCT, ranging from technical surveys of its rationale and basic mechanics to more complex empirical studies of its utility.106 The overwhelming weight of all this evidence suggests that SCT has largely failed to tackle ‘revolving door syndrome’ and, therefore, meet its primary policy objective. Moreover, it has had little or no bearing on the functioning of the MHA’s other provisions. Although it has enjoyed higher levels of use than the Department of Health initially forecast,107 SCT would appear to be of questionable utility. The Oxford Community Treatment Order Evaluation Trial (OCTET) is perhaps the most important empirical investigation of the impact of SCT. It entailed a randomised controlled trial of CTOs which tested the hypothesis that patients subject to SCT have a lower rate of compulsory readmission to hospital than those given short-term leave under section 17 of the 1983 Act.108 The research team assessed 442 ‘eligible’ patients: service users who were at the time detained under the MHA

105

Glover-Thomas (n 71) 605. S Lawton-Smith, A Question of Numbers: The Potential Impact of Community Treatment Orders in England and Wales (King’s Fund, September 2005): www.kingsfund.org.uk/sites/default/ files/field/field_publication_file/question-numbers-potential-impact-community-based-treatmentorders-england-wales-simon-lawton-smith-kings-fund-20-september-2005.pdf; M Kinton, ‘Towards an Understanding of Supervised Community Treatment’ (2008) 17 Journal of Mental Health Law 7; S Lawton-Smith, Briefing Paper 2: Supervised Community Treatment (Mental Health Alliance, August 2010): www.bacp.co.uk/docs/pdf/6481_mhasctreportseptember2010.pdf; S Lawton-Smith, ‘Supervised Community Treatment’ (2011) 35 The Psychiatrist 197; C Manning et al, ‘Community Treatment Orders in England and Wales: National Survey of Clinicians’ Views and Use’ (2011) 35 Psychiatric Bulletin 328; S Dye et al, ‘Supervised Community Treatment: 2-Year Follow-up Study in Suffolk’ (2012) 36 The Psychiatrist 298; P Lepping et al, ‘Community Treatment Orders: Current Practice and a Framework to Aid Clinicians’ (2013) 37 Psychiatric Bulletin 54. 107 The Department of Health initially forecast that only 2 per cent of people liable to be detained under the MHA would transfer to SCT in 2008–09, rising to around 10 per cent by 2012–13 (Department of Health, Mental Health Bill: Regulatory Impact Assessment (n 62) Annex A [33]). According to the Mental Health Act Commission, these assumptions implied a starting position of around 200 SCT patients, rising to an annual rate of perhaps 2,250 initiations of SCT by 2013 (The Mental Health Act Commission, Coercion and Consent: Monitoring the Mental Health Act 2007–2009 (London, Stationery Office, 2009) 109). As readers will note from Fig 6.7 above, the Department of Health significantly underestimated the popularity of SCT. In 2012–13, more than responsible clinicians created more than 4,500 CTOs; this was more than double the number that the Department of Health originally anticipated. 108 T Burns et al, ‘Community Treatment Orders for Patients with Psychosis (OCTET): A Randomised Controlled Trial’ (2013) 381 The Lancet 1627, 1628. 106 eg,

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for inpatient treatment in hospital, aged between 18 and 65 years, suffering from psychosis, able to give informed consent, and not subject to any other legal restrictions. Of those eligible patients, the team randomly assigned 226 to receive either a CTO (167 patients) or section 17 leave (169 patients). The random allocation of eligible patients onto SCT or section 17 leave was possible because, ‘although there are undoubtedly differences between the CTO and leave regimes, an area of genuine legal equipoise exists’.109 At the end of the trial, the team found that ‘the pattern of duration of individual admissions seemed similar for both groups’ after 12 months.110 At the time of its publication, the OCTET was the third and largest randomised controlled trial of formal community-based care and treatment schemes ever conducted, and the first such study in the UK.111 Because its findings chimed with those from other jurisdictions, the research team concluded that there was strong evidence ‘that the use of CTOs does not confer early patient benefits despite substantial curtailment of individual freedoms’.112 In the years that have followed, the team behind OCTET and others have published a series of follow-up studies both in the UK and elsewhere which have cast further doubt on SCT’s utility.113 Although CTO-scepticism is not universal,114 there is nevertheless a growing body of evidence which suggests that SCT has singularly failed to achieve its primary policy objective in England. The growth in the number of CTOs issued each year would therefore seem to owe little to a proven capacity to achieve positive health outcomes for service users. Something else must be responsible. In its post-legislative review of the 2007 Act, the Health Committee of the House of Commons heard evidence that pressure on beds in psychiatric wards ‘may … be driving the inappropriate use of CTOs’.115 The Mental Health Alliance also noted the emergence of this dynamic, estimating that in around a third of cases SCT may be used ‘preventatively and probably inappropriately’.116 If limited resources are to

109

ibid, 1629. ibid, 1631. 111 See also, MS Swartz et al, ‘Can Involuntary Outpatient Commitment Reduce Hospital Recidivism? Findings from a Randomized Trial with Severely Mentally Ill Individuals’ (1999) 156 A merican Journal of Psychiatry 1968; HJ Steadman et al, ‘Assessing New York City Involuntary Outpatient Commitment Pilot Program’ (2001) 52 Psychiatric Services 330. 112 Burns et al, ‘Community Treatment Orders’ (n 108) 1632. 113 D Maughan et al, ‘A Systematic Review of the Effect of Community Treatment Orders on Service Use’ (2014) 49 Social Psychiatry and Psychiatric Epidemiology 651; T Burns et al, ‘Effect of Increased Compulsion on Readmission to Hospital or Disengagement from Community Services for Patients with Psychosis: Follow-up of a Cohort from the OCTET Trial’ (2015) 2 The Lancet Psychiatry 881; R DeRidder et al, ‘Community Treatment Orders in the UK 5 Years On: A Repeat National Survey of Psychiatrists’ (2016) 40(3) British Journal of Psychiatry Bulletin 119; J Rugkasa, ‘Effectiveness of Community Treatment Orders: The International Evidence’ (2016) 61 Canadian Journal of Psychiatry 15. 114 D Curtis, ‘OCTET Does Not Demonstrate a Lack of Effectiveness for Community Treatment Orders’ (2014) 38 Psychiatric Bulletin 36. 115 Health Committee (n 55) [93]. 116 Mental Health Alliance, The Mental Health Act 2007 (n 60) 5–6. 110

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blame for the upsurge in the number of CTOs, recourse to SCT is not driven by clinical or legal concerns but by cold economic calculations. Perhaps because of its questionable efficacy, SCT’s interaction with the other provisions of the MHA does not seem to have had any bearing on the deployment of the compulsory powers more broadly. The Health Committee of the House of Commons found no evidence to suggest that the threshold for compulsory admission under Part II of the MHA had effectively risen as a result of the availability of CTOs.117 The Department of Health’s expectation that SCT would in some way reduce the demand for compulsory admissions has therefore not translated into reality. However, there is evidence to suggest that some decision-makers have misunderstood the SCT provisions and have therefore erroneously restricted the number of CTOs they have issued. The Mental Health Alliance claimed in 2012 that nearly a third of patients on CTOs have ‘no history of non-compliance with treatment or of disengagement with services’.118 Implicit in this observation is the false assumption that a patient must have such a history before he is eligible for a CTO. In fact, no such prerequisite exists anywhere in the MHA. That the Alliance seemed to make a mistake about the SCT criteria suggests that there may be some confusion about the purpose of the scheme. It is not clear whether the Alliance’s apparent misinterpretation of the scope and purpose of SCT is a one-off; it may be that many decision-makers have made conservative use of CTOs on the basis of legally-flawed assumptions. If so, then this may explain why SCT has not reduced instances of formality in the post-2007 Act era. Yet even if decision-makers have habitually restricted CTOs to patients with histories of non-compliance or disengagement, OCTET and similar studies suggest that they are not particularly effective at tackling ‘revolving door’ syndrome in any event. * In light of all that we have discussed, two things become clear. The first is that although the introduction of the 2007 Act’s principal reforms correlates with an increase in the number of admissions under the MHA, it is doubtful that this connotes causation. The second is that it is difficult to dispute that some of the 2007 Act’s reforms have failed to fulfil their policy objectives. SCT has not tackled the so-called ‘revolving door’ problem, nor has it helped to complete a more comprehensive, ‘joined-up’ mental health framework. One cannot therefore plausibly credit the 2007 Act’s reforms with being the cause of the post-2007 Act era trends. All this leads us to ask whether the 2007 Act’s apparent failure to achieve its underlying policy objectives and map decision-making practice is in any way unique. If it is not, then that would suggest that mental health law lacks the determinative significance which is often imputed to it.

117 118

Health Committee (n 55) [23]. Mental Health Alliance, The Mental Health Act 2007 (n 60) 5–6.

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Assessing the Determinative Potential of Legislation Governing the Compulsory Care and Treatment of Persons with Mental Disorder To What Extent do Reforms to Mental Health Legislation Achieve their Policy Objectives? The Evidence One of the earliest studies of the impact of legislative reform on mental health practice evaluated California’s Lanterman–Petris–Short (LPS) Act.119 The 1969 Act, which was amended in 1974, was designed to tighten the commitment criteria for admission to hospital. In shifting to legalism, the LPS Act was intended to have the opposite effect from the 2007 Act. Warren observed 100 habeas corpus petition hearings in California and found that there was divergence between legislative intent and statutory language on one hand, and the judicial and administrative interpretation of them on the other.120 For example, while the LPS Act required evidence to be adduced that would be probative of the imminence and seriousness of a patient’s future danger, ‘these criteria were simply ignored in most of the 100 habeas corpus proceedings’.121 More importantly, Warren found evidence that amendments to one statutory basis for admission would lead to ‘squeezing’ elsewhere.122 For example, where a decision-maker found that the LPS Act had tightened a particular criterion so as to preclude a patient’s admission under it, he would get around this problem by shoehorning that patient under another basis. Warren concluded that decision-makers were not strictly applying the statutory criteria for civil commitment and frequently ‘bargained them down’, implying that they made selective and strategic use of the law rather than respecting it as the definitive limit of their discretionary authority. This study was among the first to identify a gap between law and practice. In Warren’s view, there are three ways in which one might reconcile this gap. First, the legislature can change the law to align it with practice. Second, decision-makers could alter their practices in order to comply with the law. Third, the gap could be regarded ‘as both inevitable and ubiquitous’.123 The implication of making this choice is that the law’s influence on mental health practice is weak. It should not come as a surprise that a later

119 CAB Warren, ‘Involuntary Commitment for Mental Disorder: The Application of California’s Lanterman–Petris–Short Act’ (1977) 11 Law & Society Review 629. 120 ibid, 631. 121 ibid, 642. 122 ibid, 646–47. 123 ibid, 648.

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study of the consequences of the LPS Act found that far from lowering the rate of involuntary admissions it had in fact increased it.124 The statutory regime had therefore failed to fulfil its explicitly legalistic policy objectives. These findings are not unique. Later research has found that changes to mental health laws rarely affect long-term rates of admission to hospital. Luckey and Berman examined the impact of a new mental health statute introduced in Nebraska in 1976.125 The Act required ‘clear and convincing proof ’ that a patient was (i) mentally ill, and (ii) dangerous to either himself or other people, before doctors could commit him to hospital. This represented a higher threshold for compulsion than had previously existed in Nebraska. The researchers found that the number of involuntary admissions to hospital fell immediately following the enactment of the new laws, an outcome obviously consistent with a tightening of commitment criteria.126 However, Luckey and Berman found that this effect was only temporary: within 18 months, the number of admissions had returned to the level it would have been projected to reach without any change in the law.127 They concluded that the admission statistics showed that there is ‘the potential for incongruence between the law as written and the law as implemented’.128 Similarly, Frydman evaluated the effects of a revision of the mental health laws of Kansas in 1976.129 He found that within two years of the reforms there was a marked drop in the number of commitment petitions and hearings.130 Significantly, there was a 14 per cent decline in the rate of involuntary admissions. Yet, the new law did not have a long-lasting effect: the average daily inpatient population, the rate of admission, and the average length of stay in three Kansas state hospitals were not affected by the new statutory regime in the longer term.131 Frydman’s work is therefore consistent with Luckey and Berman’s findings: reforms which introduce more exacting legalistic standards appear only to have a short-term impact on the number and rate of involuntary admissions. Frydman also made another interesting discovery: the decline in the number of commitment proceedings began in 1975, fully two years before the enactment of the new legislation.132 In his view, this may have been attributable to the adverse publicity that the reforms received prior to their introduction. In any event, the study suggests two things which may be relevant for present purposes. First, decision-makers did not function

124 HR Lamb et al, ‘Legislating Social Control of the Mentally Ill in California’ (1981) 138(3) American Journal of Psychiatry 334. 125 JW Luckey and JJ Berman, ‘Effects of a New Commitment Law on Involuntary Admissions and Service Utilisation Patterns’ (1976) 3(3) Law and Human Behavior 149. 126 ibid, 159. 127 ibid, 154. 128 ibid, 160. 129 LL Frydman, ‘Effects of Psychiatric Legislation: An Example from Kansas’ (1980) 8 Journal of Law and Psychiatry 73. 130 ibid, 84. 131 ibid, 94. 132 ibid, 84.

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in a way that was consistent with the notional constraints of the new statutory regime after two years. Second, pre-reform controversies can affect decisionmaking practices, notwithstanding the fact that the proposed changes may not yet be legally binding. In 1978, the Legislative Assembly of Ontario also embraced legalism and amended its Mental Health Act accordingly. A number of subsequent studies found that the reforms had made no significant difference to decision-making processes and outcomes in the long term. Page examined the commitment papers of 75 people admitted to hospital under the legislation.133 In the eight months following the amendments, the frequency of involuntary admissions fell significantly from a mean of 14.3 a month to only 7.7. Yet Page found that the same types of individuals were being committed under the amended statutory regime as had been captured by its original incarnation.134 In his view, the decision- makers acknowledged that the law ‘never completely reflects all possible events in the real world’ and therefore responded by departing from the letter and spirit of the legislation.135 This probably explains why, in another study, Page found that the 1978 amendments had had no bearing on decision-makers’ interpretations of the law’s ‘operational definitions’.136 He concluded that even explicit legal provisions are unlikely to impede a physician who is ‘genuinely of the opinion’ that compulsory commitment ‘is in the best interests of the patient’s immediate welfare and condition’.137 While Page identified an initial fall in the number of involuntary admissions, later studies found that the 1978 reforms had not had the effect of reducing the rate of detentions in the longer term.138 Bagby thought that by the second year in the post-reform era the number of compulsory admissions began to increase in Ontario after an initial decline.139 Martin and Cheung also found that mental health laws had had little or no effect on long-term commitment practices in Ontario over a longer period.140 In their view, there was no causal relationship between the commitment rate in Ontario and successive amendments to the relevant legislation. There had been a steep decline in the proportion of involuntary admissions to psychiatric hospitals well before the enactment of any legislation that might be expected to have had such an effect.141 Conversely, the stricter criteria incorporated into the statutory regime actually precipitated an increase in

133 S Page, ‘New Civil Commitment Legislation: The Relevance of Commitment “Criteria”’ (1980) 25 Canadian Journal of Psychiatry 646. 134 ibid, 649. 135 ibid. 136 S Page, ‘Civil Commitment: Operational Definition of New Criteria’ (1981) 26(6) Canadian Journal of Psychiatry 419. 137 ibid, 420. 138 RM Bagby, ‘The Effects of Legislative Reform on Admission Rates to Psychiatric Units of General Hospitals’ (1987) 10 International Journal of Law and Psychiatry 383. 139 ibid, 391. 140 BA Martin and KD Cheung, ‘Civil Commitment Trends in Ontario: The Effect of Legislation on Clinical Practice’ (1985) 30 Canadian Journal of Psychiatry 259. 141 ibid, 263.

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the proportion of involuntary admissions to hospital from 27 per cent in 1978 to 36 per cent by 1980. Tighter commitment criteria in the Ontarian mental health statute had therefore not had their intended effect.142 Interestingly, a similar phenomenon occurred in England following the introduction of the 1983 Act. Barnes et al suggest that the effect of the original 1983 Act confounded expectations at the time.143 They studied the requests made to approved social workers (ASWs) following the introduction of the 1983 Act and compared their results with those of studies that predated the new legislation. First, they found that the 1983 Act had led to a kind of ‘squeezing’ whereby ASWs received fewer requests to authorise emergency admission but experienced a concomitant rise in the number of requests for admission for assessment.144 This meant that the statistics underestimated the overall use of compulsory detention considerably because for every two people admitted formally there was another patient either transferred from one section to another or sectioned after arriving at hospital voluntarily.145 Secondly, they found that the 1983 Act’s legalism had not translated into a reduction in the number of compulsory admissions.146 While it is true that between 1982 and 1984 there was a 9 per cent fall in the number of formal detentions under the MHA, ‘this [was] in-step with the steady fall in the number of formal admissions that preceded the Act’.147 Then, between 1984 and 1985, the number of formal admissions actually rose, thereby casting doubt on the accepted view that legalistic criteria lead to fewer detentions. Barnes et al admit that other factors might have contributed to this increase, for example, social and economic conditions. Nonetheless, the legal framework was evidently a poor predictor of the way decision-makers would function. The effect works the other way too. Where reforms have sought to broaden compulsory commitment criteria in order to boost decision-makers’ discretion, they succeed only in the short term. Durham and LaFond evaluated the effect of amendments to mental health laws in Washington in 1979, which expanded the state’s civil commitment powers.148 Immediately after the change in the law the number of patients admitted to hospital increased significantly.149 The absolute number of involuntary admissions increased by 91 per cent in the first full year and there was a concurrent decline in the number of voluntary admissions by nearly 47 per cent. In the year following the change in the law, the probability of a patient being admitted to hospital on a compulsory basis increased

142 ibid.

143 M Barnes et al, Sectioned: Social Services and the 1983 Mental Health Act (London, Routledge, 1990). 144 ibid, 60. 145 ibid, 61. 146 ibid. 147 ibid, 67. 148 ML Durham and JQ LaFond, ‘The Empirical Consequences and Policy Implications of Broadening the Statutory Criteria for Civil Commitment’ (1985) 3 Yale Law & Policy Review 395. 149 ibid, 401.

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from 47.3 to 63.2 per cent.150 By expanding the civil commitment powers, Washingtonian lawmakers effectively collapsed the distinction between voluntary and involuntary patients and fundamentally changed the decision-making dynamic. The amendments made it easier to deploy the compulsory powers and thereby disincentivised decision-makers from working outside the legislation. As an incidental effect, patients stayed in hospital for longer and became chronic users of mental health services.151 This put pressure on resources, leading Durham and LaFond to conclude that loosening admission criteria jeopardises ‘therapeutic justice’.152 Moreover, they also found that the same ‘anticipation effect’ which prefaces the introduction of stricter commitment criteria also occurred when decision-makers enjoyed greater clinical freedom.153 There was an abrupt 45.2 per cent increase in the number of involuntary admissions in Washington fully nine months before the effective date of the new statute.154 Once again we can see the impact of the broader policy context which the incumbent legal framework did little to inhibit. Durham and LaFond did not chart the longer-term effects of the Washingtonian reforms. According to Bagby and Atkinson, however, any amendments to mental health statutes follow the same pattern: they achieve their policy objectives for up to two years before their influence diminishes.155 They conclude that there is a strong possibility that mental health professionals do not implement the law as intended.156 Equally, it may be that they simply do not see themselves as responsible for applying the law at all and so remain unaffected by legislative upheavals. It is not true, however, that reforming mental health law is inevitably a futile exercise. Peters et al examined the impact of amendments to Florida’s mental health legislation in 1982.157 They reviewed 80 commitment hearings which convened before and after the reforms took effect. The researchers expected to observe a decline in the number of compulsory admissions because the new legal framework explicitly defined the degree of dangerousness that would be necessary to trigger the commitment powers. Peters et al found what they had expected: in the first month after the reforms were enacted the number of involuntary admissions registered their single biggest decline in four years.158 The researchers

150

ibid, 419.

151 ibid.

152 ML Durham and JQ LaFond, ‘The Impact of Expanding a State’s Therapeutic Commitment Authority’ in DB Wexler (ed), Therapeutic Jurisprudence: The Law as a Therapeutic Agent (Durham, NC, Carolina Academic Press, 1990) 125. 153 Durham and LaFond, ‘The Empirical Consequences and Policy Implications’ (n 148) 410, 418. 154 ibid, 416. 155 RM Bagby and L Atkinson, ‘The Effects of Legislative Reform on Civil Commitment Admission Rates: A Critical Analysis’ (1988) 6(1) Behavioral Sciences & the Law 45, 56. 156 ibid, 59. 157 R Peters et al, ‘The Effects of Statutory Change on the Civil Commitment of the Mentally Ill’ (1987) 11(2) Law and Human Behavior 73. 158 ibid, 87.

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c oncluded that substantive changes to commitment criteria appear to be the single most accurate predictor of involuntary admissions.159 Similarly, in a review of the statutory regimes of 13 US states, Wanck found that in 10 of them the outcome achieved the legislation’s policy objectives.160 In seven of the states a fall in the rate of involuntary hospitalisation followed amendments which narrowed the commitment criteria, while in the other three the introduction of broader provisions prefaced a significant increase in the number of detentions.161 Wanck concluded that amendments to state laws influence admission rates to such an extent that in most cases they will have their intended effect. There are two points to make here. First, Peters et al focused on the impact of statutory reform on decision-making in commitment hearings. Given that legally constituted panels formed the gateway to civil commitment in Florida even before lawmakers introduced more exacting criteria, we can assume that the framework was already fairly legalistic. This is plainly distinguishable from the situation which pertains in England, where formal admission under the MHA is not contingent on the ruling of a judicial or quasi-judicial panel. It may be that ‘judicial’ decisionmakers already accustomed to legalistic processes are better equipped than mental health professionals to respond to statutory reforms in the way that policy-makers intended. As a result, amendments to mental health statutes may be more likely to achieve their policy objectives where lawyers (or at least persons of basic legal literacy) are the principal decision-makers. Second, neither Peters et al nor Wanck discussed the longer-term consequences of the legislative reforms they studied. Amendments to statutory frameworks seem typically to achieve their policy objectives in the short term. Two years or more after the reforms take effect, however, and the rate of admissions seems apt to return to previous levels. Longer-term analyses may have revealed that the impact of the reforms was much less significant. Writing in the mid-1990s after a period of radical change in mental health law in the United States, Appelbaum reviewed the evidence and argued that reforms to mental health legislation have less impact than expected on rates of commitment.162 In his view, the consequences of mental health law reform are limited.163 Whether mental health legislation is medicalistic or legalistic appears to make little material difference to the operation of civil commitment powers. In general terms, law reforms in this field have had no bearing on who is committed to hospital or on the care and treatment which they receive.164 This raises important questions about the nature and purpose of mental health law: why do we spend so much time formulating policy and drafting legislation which makes

159

ibid, 77. Wanck, ‘Two Decades of Involuntary Hospitalization Legislation’ (1984) 141(1) American Journal of Psychiatry 33. 161 ibid, 35. 162 P Appelbaum, Almost a Revolution (Oxford, Oxford University Press, 1994) 40, 41. 163 ibid, 210. 164 ibid, 212. 160 B

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fine distinctions when the same people will ultimately find themselves detained in hospital? According to Appelbaum, the most profound effects of mental health law reform appear to be ‘of limited duration, with the situation tending to return toward the pre-reform baseline over time’.165 For that reason, he thought that instead of embarking on ‘inefficient and fruitless’ attempts to find ‘the most satisfying combination of words to describe those eligible for commitment’, attention would be better concentrated on guaranteeing investment in mental health services.166

The Verdict The assumption that mental health law is an effective way to fulfil policy objectives is flawed. There are many factors outside the law that influence the number and rate of compulsory admissions to hospital. In the long term, these trends seem largely resistant to policy innovations and legislative reforms. Amendments to mental health statutes have unintended consequences. Even where the provisions have been explicitly worded in order to generate a particular outcome they have, on occasion, had the opposite effect in practice. Stricter commitment powers have not necessarily led to fewer admissions and it has not always been the case that a surge in detentions follows the introduction of broader criteria. The implications for the current analysis of the 2007 Act are obvious. The fact that its principal reforms have not led to a significant increase in the rate or number of admissions is therefore not unusual. In one important way, the admissions statistics in the post-2007 Act era exhibit a similar pattern to that which has been observed elsewhere. They reveal the existence of a longer-term trend which has apparently been impervious to statutory reform. They also suggest that decision-making priorities have not shifted to keep pace with a changing legal landscape. In other respects, however, the 2007 Act seems rather unique. First, there was no sudden surge in the number of admissions when the 2007 Act first came into force. Whereas other studies found a discernible change in the number and rate of detentions immediately following legislative reform, the post-2007 Act era has continued the steady long-term upward trend that long predates the amendments. The statistics imply that the rate of detentions under the MHA might have reached its current level notwithstanding the change in the law. As a corollary, the number and rate of detentions have not returned to their pre-reform baselines since the 2007 Act came into force because there was never a departure from them in the first place. The trends are by and large what one might have expected to find by extrapolating from their trajectories 10 years ago. This means that the parallels between the 2007 Act and the wider evidence base are even less compelling than one might expect. At least in other jurisdictions, a redrawing of commitment criteria has

165 ibid. 166

ibid, 52–53.

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had some effect, however short-lived. In England, there was no discernible change. This suggests that the 2007 Act’s amendments to the MHA made an even smaller impression than did similar reforms in other jurisdictions. Secondly, there was no ‘anticipation effect’ prefiguring the 2007 Act. While other studies have found that decision-makers started operating according to the spirit of new statutory regimes even before they had the force of law, no such pattern occurred in relation to the 2007 Act. True, the number of detentions rose throughout the 2000s but, once again, there is no evidence to suggest that the public debates about the nature and purpose of mental health law had anything to do with this. What is clear is that the expectation that legislative changes will function as a panacea for policy challenges may be misguided. The principal reforms of the 2007 Act have not had any discernible impact on the number and rate of admissions. In fact, their impact would seem to be even less substantial than has been the case with similar experiences of legislative reform in other places, where, at the very least, some short-term effects were detectible. In any case, there is nothing unusual about reforms to mental health laws not having their intended effects. Yet this gives us reasons to be pessimistic about the law’s wider role in this connection and its capacity to achieve meaningful change. If, despite legislative reform, mental health practice continues in much the same way that it ever did, it raises questions about the very purpose of mental health law. Why is the law considered to be a vehicle for the effective implementation of policy when all the evidence suggests that its impact may be limited and, in some cases, even non-existent? All the fuss that the 2007 Act’s reforms generated would seem to have been a waste of time and energy. Alternatively, the reforms may simply have had the effect of aligning the law with practices which had become embedded in institutional processes long before the amendments came into force. Here it is the law that plays catch-up with practice, not the other way around. What the evidence suggests is that the law is not an effective vehicle for change in mental health practice. Given all that civil commitment entails, this is a cause for concern.

To What Extent does Mental Health Law Tend to Map the Practice of Decision-Makers? Getting our Bearings Writing in the 1960s, Dershowitz argued that the gradual introduction of a ‘medical model’ in place of legally relevant criteria had led to ‘confusion of purpose’ and ‘needless deprivation of liberty’.167 In his view, civil commitment

167 A Dershowitz, ‘Psychiatry in the Legal Process: “A Knife that Cuts Both Ways”’ (1967–68) 51 Judicature 370, 370.

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should be a legalistic process which checks the tendency of ‘designated experts’ to over-predict the risks that a patient might pose to himself or others.168 We can see in Dershowitz’s work the same scepticism which undoubtedly drove the retreat from medicalism in Britain, Canada and the US during the 1970s and 1980s. Kittrie’s ‘Therapeutic Bill of Rights’ was surely cast in the same philosophical mould. He proposed that civil commitment be underpinned by legally enforceable principles to ‘protect the fundamental rights and liberties of individuals’ in a therapeutic state.169 His Therapeutic Bill of Rights contained provisions which would impose limits on mental health practitioners’ discretion. For example, Article 3 stated that ‘No social sanctions may be invoked unless the person subjected to treatment has demonstrated a clear and present danger through truly harmful behaviour which is immediately forthcoming or has already occurred’.170 Kittrie’s Bill of Rights thus sought to impose on mental health practitioners rigorous and objective commitment criteria which would carry a high threshold for intervention. Implicit in this formulation is the belief that the law serves as the supreme source of authority over the medical domain. While Kittrie’s Bill of Rights was not adopted by any jurisdiction, it reflected contemporary assumptions about the law’s ability to control and influence medical practice—assumptions which have proved particularly resilient. More recently, Wexler and Winick developed the notion of ‘therapeutic jurisprudence’. According to its proponents, the law itself can act as a ‘therapeutic agent’ by ensuring that clinical practice adheres to the ‘principles of justice’.171 Wexler thought that it is possible to craft ‘legal arrangements’ which can enhance therapeutic benefits while at the same time protecting patients’ rights.172 How policy-makers might accomplish this ambitious goal is unclear; much of the discussion of therapeutic jurisprudence was not especially convincing about how the law could reconcile the conflict between serving as a clinical tool and protecting patients’ rights.173 Indeed, Bean argued that the MHA is essentially distinct 168

ibid, 374, 377. NN Kittrie, The Right to be Different (London, John Hopkins University Press, 1971) 402–04. 170 ibid, 403. 171 BJ Winick, ‘The Jurisprudence of Therapeutic Jurisprudence’ in DB Wexler and BJ Winick (eds), Law in a Therapeutic Key: Developments in Therapeutic Jurisprudence (Durham, NC, Carolina Academic Press, 1996) 646; see also DB Wexler, ‘Putting Mental Health into Mental Health Law’ (1992) 16(1) Law and Human Behavior 27, 32. 172 DB Wexler, ‘Justice, Mental Health and Therapeutic Jurisprudence’ in DB Wexler and BJ Winick (eds), Law in a Therapeutic Key: Developments in Therapeutic Jurisprudence (Durham, NC, Carolina Academic Press, 1996) 719. 173 What ‘therapeutic jurisprudence’ actually means is unclear; see D Carson and DB Wexler, ‘New Approaches to Mental Health Law: Will the UK Follow the US Lead, Again?’ in DB Wexler and BJ Winick (eds), Law in a Therapeutic Key: Developments in Therapeutic Jurisprudence (Durham, NC, Carolina Academic Press, 1996); BD Sales and DW Shuman, ‘The Newly Emerging Mental Health Law’ in DB Wexler and BJ Winick (eds), Law in a Therapeutic Key: Developments in Therapeutic Jurisprudence (Durham, NC, Carolina Academic Press, 1996); DB Wexler, ‘Grave Disability and Family Therapy: The Therapeutic Potential of Civil Libertarian Commitment Codes’ in DB Wexler (ed) Therapeutic Jurisprudence: The Law as a Therapeutic Agent (Durham, NC, Carolina Academic Press, 1990). 169

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from other legal rules,174 a fact which makes therapeutic justice rather difficult to achieve. The legislation is loosely formulated, imposes no secondary rules governing the standard or burden of proof, and offers few legal rights for the citizen (eg, there is no formal cautioning procedure under the MHA). Furthermore, the MHA does not require mental health professionals to give formal reasons for their decisions and it allows the ‘sectioning’ procedure to take place in secret.175 On this view, therapeutic jurisprudence requires such a distortion of legal processes that it may cease to be about ‘law’ at all. Yet it is clear that mental health practice has traditionally craved the prestige of legality and that assumptions about the law’s curative effects in this regard have proved to be compelling in shaping health policy. While the ideal of ‘therapeutic jurisprudence’ may be flawed, the belief that better laws foster better decision-making continues to pervade the discourse. Eastman, for example, has argued that clinicians’ knowledge of mental health law is an ‘ethical imperative’.176

The Evidence The assumption that law is determinative of clinical practice and professional priorities finds little basis in the evidence. A divergence between ‘law on the books’ and ‘law in practice’ has been evident for some time.177 This is almost certainly a consequence of the distinct—and occasionally rival—philosophies of law and medicine.178 It may also reflect the fact that law and practice will never be in perfect alignment and that error is an inevitable part of decision-making.179 Writing in the early 1980s, Shah pointed out that the implementation of complex public policies is very difficult, requiring diligent efforts by various administrative agencies, as well as co-ordinated political action and investment.180 In the likely absence of such a confluence, decision-making practices will not fully mirror the statutory framework that notionally governs them. Writing more recently, Eastman and Peay have cast the problem in more straightforward terms: the rules in mental health law ‘are neither clear nor effectively enforced’.181 The law would therefore

174 P Bean, ‘The Mental Health Act 1959: Some Issues Concerning Rule Enforcement’ (1975) 2(2) British Journal of Law and Society 225, 228. 175 ibid, 228–29. 176 N Eastman, ‘The Need to Change Mental Health Law’ in T Heller et al (eds), Mental Health Matters: A Reader (Basingstoke, Palgrave MacMillan, 1996) 209–10. 177 SA Shah, ‘Legal and Mental Health System Interactions: Major Development and Research Needs’ (1981) 4 International Journal of Law and Psychiatry 219, 230. 178 See also, G Richardson and O Thorold, ‘Law as a Rights Protector: Assessing the Mental Health Act 1983’ in N Eastman and J Peay (eds), Law Without Enforcement: Integrating Mental Health and Justice (Oxford, Hart Publishing, 1999). 179 LT Wilkins, ‘Directions for Corrections’ (1974) 118(3) Proceedings of the American Philosophical Society 235, 241. 180 Shah (n 177). 181 N Eastman and J Peay, ‘Law Without Enforcement: Theory and Practice’ in N Eastman and J Peay (eds), Law Without Enforcement: Integrating Mental Health and Justice (Oxford, Hart Publishing, 1999) 8.

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seem to be a wholly imperfect means of mapping mental health decision-making. There is also a deeper issue of causality here. As Konecni and Ebbesen point out, what decision-makers think they do, what they say they do, and what they actually do may be completely distinct.182 For example, a psychiatrist may think she takes decisions that comport with the MHA, may express her belief in her ethical imperative to do so, but may actually reach a decision that lacks any adequate legal basis. Alternatively, another psychiatrist might think that the MHA is a waste of time, articulate his intention to take broader extra-legal considerations into account but nevertheless reach a decision which objectively complies with the letter and spirit of the legislation. It becomes plain that asking whether the MHA maps mental practice might be too simplistic. A decision-maker might internalise the rules but reach conclusions that have no legal basis, or he might pay scant attention to the MHA but still take decisions that are legally justified. In neither case can we say that the MHA ‘maps’ practice. For that reason, we shall consider evidence relating to both the accuracy of decision-makers’ knowledge of the law (the internal aspect) and their application of it (the external aspect). The Internal Aspect Decision-makers’ knowledge of mental health law is patchy. In a study of practitioners’ knowledge of the emergency hospitalisation laws in Connecticut and the District of Columbia, Affleck et al found that only a handful of the 294 participants had a thorough grasp of the applicable provisions.183 For the most part, the psychiatrists were ‘unfamiliar’ with the legal criteria and exhibited a general disdain for ‘troublesome legalisms’.184 In some cases the participants even included commitment criteria of their own invention—presumably in much the same way identified by the Mersey Care study. More recently, Humphreys interviewed 72 consultant psychiatrists in Scotland and found that their knowledge of the provisions of the Scottish MHA was limited.185 Just over half of the participants in the study were able to give the correct title of the relevant legislation and only one in 10 could define ‘mental disorder’ in the same terms as the statute. Humphreys concluded that mental health professionals might be taking important decisions ‘on the basis of a seemingly scant understanding of the law’.186 Even more concerning was the fact that many of the psychiatrists Humphreys interviewed were either unashamed, or unaware, of their lack of legal knowledge.187 Worryingly, he had already observed a similar pattern among junior psychiatrists in a previous study, 182 VJ Konecni and EB Ebbesen, ‘The Mythology of Legal Decision-making’ (1984) 7 International Journal of Law and Psychiatry 5, 6. 183 GG Affleck et al, ‘Psychiatrists’ Familiarity with Legal Statutes Governing Emergency Involuntary Hospitalization’ (1978) 135 American Journal of Psychiatry 205, 207. 184 ibid, 209. 185 M Humphreys, ‘Consultant Psychiatrists’ Knowledge of Mental Health Legislation in Scotland’ (1998) 38 Medicine, Science and the Law 237. 186 ibid, 240. 187 ibid, 239.

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suggesting that there is no connection between the breadth of a practitioner’s experience and his knowledge of the law.188 The frequency of a decision-maker’s deployment of the compulsory powers may, however, have a bearing on how well he knows them. In her survey of 2,022 decision-makers, Peay found that those with key responsibilities under the MHA did not perform as badly when asked about their knowledge of mental health law as previous research might have suggested.189 Indeed, she found that the psychiatrists and social workers who used the MHA most often had the best knowledge of the law. By contrast, general practitioners, whose interactions with the MHA are much less frequent, fared worse.190 But it was not the case that those who used the MHA the most always had a precise understanding of the law: Peay found that 10 per cent of the clinicians in her study did not have a full grasp of the criteria for compulsory admission for treatment under section 3. While the frequency of a practitioner’s engagement with the law appears to improve his knowledge of the legal provisions, it does not necessarily follow that his understanding will be any more accurate. Peay has made perhaps the most significant contribution to the literature on this point. In her view, this problem stems from the fairly unique way that the MHA seeks to regulate decision-making behaviour.191 On one hand, the law could comprise an exhaustive list of rules which would seek to achieve what she calls ‘substantive’ justice.192 On the other, it might confer complete discretion on practitioners and insist only that they comply with the rules of natural justice.193 The MHA, however, strikes a third course which blends these two approaches. This puts the definition of terms critical to the functioning of the compulsory powers within the scope of decision-makers’ discretion: for example, clinicians are left to determine what constitutes mental illness, whether the patient is suffering from one, whether he is affected to the requisite nature or degree, and so on.194 This is even more pronounced in light of the 2007 Act. As a result, not every aspect of a decision-maker’s remit is governed by explicit legal provisions; the MHA sets the procedural limits within which professionals are free to exercise their discretion. Bynoe and Holland have agreed with this assessment. For them, mental health practice corresponds to the MHA in a ‘majority’ of cases.195 For that reason,

188 MS Humphreys, ‘Junior Psychiatrists and Emergency Compulsory Detention in Scotland’ (1994) 17 International Journal of Law and Psychiatry 421. 189 J Peay et al, ‘Legal Knowledge of Mental Health Professionals: Report of a National Survey’ (June 2001) Journal of Mental Health Law 44, 52. 190 ibid. 191 J Peay, ‘The Mental Health Act 1983 (England and Wales): Legal Safeguards in Limbo’ (1986) 14 Law, Medicine and Health Care 180. 192 ibid, 180. 193 ibid. 194 Eastman and Peay ‘Law Without Enforcement’ (n 183) 4. 195 I Bynoe and A Holland, ‘Law as a Clinical Tool: Practising Within and Outwith the Law’ in N Eastman and J Peay (eds), Law Without Enforcement: Integrating Mental Health and Justice (Oxford, Hart Publishing, 1999) 99.

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it is entirely possible that decision-makers draw on parallel or alternative commitment criteria which do not reflect the contents of the legislation.196 For Peay, this arrangement means that there is ‘plenty of scope for what may appear, from a strictly legalistic perspective, to be bad or illiberal decisions’.197 Nowhere was this clearer than in Peay’s study of the decision-making dynamics between psychiatrists and social workers under the original 1983 Act.198 Using case studies, she asked multiple teams, each comprising two psychiatrists and an ASW (thereby mirroring the procedural rubric of the original 1983 Act), what decisions they would reach if they were examining the patients in each of the given scenarios. Peay found that their knowledge and understanding of the law was poor. Many ‘legal’ discussions ‘were often ill-informed or based on an intuitive understanding’ which was not always correct.199 Practitioners expressed anxiety about the law but typically did not concern themselves with the detail of the legislation.200 Instead, they would conceptualise what they thought the law permitted them to do and applied that construction.201 The participants did not therefore adhere to a literal interpretation of the MHA. Moreover, despite their quasi-judicial function, Peay did not find much to suggest that decision-makers carefully weighed the evidence before deploying the compulsory powers.202 Some participants had difficulties with matters of interpretation: for example, they conflated the notions of conceivability and foreseeability,203 or failed to appreciate the distinction between terms like ‘substantial’ and ‘significant’.204 It is unsurprising then that Peay found that in most cases, the law did not in fact play a determining role in the decisions that the teams reached—many of them regarded the law as a ‘foreign land’.205 As Peay explained, it did not seem to matter that the participants had such difficulties; all that seemed to preoccupy their minds was whether they thought that a particular decision was right in all the circumstances.206 And what is ‘right’ and what is ‘legal’ did not necessarily have to converge. The External Aspect If decision-makers lack knowledge of the MHA’s provisions, it follows that they are unlikely to apply the law in the way that Parliament intended. Practitioners

196

ibid, 101. ibid, 184. 198 J Peay, Decisions and Dilemmas: Working with Mental Health Law (Oxford, Hart Publishing, 2003). 199 ibid, 29. 200 ibid, 159. 201 ibid, 167. 202 ibid, 44. 203 ibid, 41. 204 ibid, 74. 205 J Peay, ‘Decision-making in Mental Health Law: Can Past Experience Predict Future Practice?’ (2005) (May) Journal of Mental Health Law 41, 51. 206 ibid. 197

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may also seek to use the law ‘creatively’ to generate outcomes which are pragmatically desirable, if not strictly compliant. A number of studies have shown that decision-makers struggle to apply the law literally. Bean examined compulsory decision-making practices under the MHA 1959.207 He found that nearly 10 per cent of patients ostensibly admitted under the compulsory powers were in fact detained on improper bases. To some extent, this was not especially problematic: there was a ‘basic pool’ of patients who would always be admitted to hospital irrespective of whichever decision-maker signed their section papers.208 Bean speculated that two-thirds of all compulsory admissions under the 1959 Act would have occurred regardless, suggesting that decision-makers share a common set of assumptions.209 This still means that up to a third of all decisions could go either way depending on the practitioners involved. In his study, Bean found that the psychiatrist participants admitted 23 patients out of 58 (39.65 per cent) on bases that were contrary to either the letter or spirit of the statutory framework.210 The social workers did the same in 14 cases out of 58; just shy of a quarter (24.1 per cent) of their recommendations went beyond the wording or policy of the legislation.211 Taken together, the proportion of compulsory admissions in Bean’s study that occurred contrary to the rules reached 53.4 per cent of all detentions.212 If Bean’s work was representative of practice under the 1959 Act, decisions to deploy the compulsory powers were therefore likely not to have been conceived on a proper legal basis. To explain this, Bean thought it was possible that many decision-makers enforced rules ‘according to demands other than those based on legal requirements’.213 For that reason, it could not be said that decision-makers took their cues solely from the legislation when deploying the compulsory powers. Later studies have shown that taking extra-legal considerations into account is a fairly common practice. In their study of the civil commitment experiences of 1,226 patients detained in hospital in North Carolina, Hiday and Smith found that the wording of the relevant legislation left so much to be determined by medical opinion that broader extra-legal considerations were implicitly legitimised.214 In their view, the inclusion of a dangerousness standard in the North Carolinian civil commitment framework necessarily required decision-makers to take factors into account that the legislation did not explicitly endorse. According to Mestrovic and Cook, the dangerousness standard means that the law’s ‘traditional’ function has become ‘saturated with extreme subjectivism’, making it difficult to limit

207

P Bean, Compulsory Admission to Mental Hospitals (Chichester, John Wiley & Sons Ltd, 1980). ibid, 145. 209 ibid. 210 ibid, 153. 211 ibid, 160. 212 ibid, 177. 213 ibid, 151. 214 VA Hiday and LN Smith, ‘Effects of the Dangerousness Standard in Civil Commitment’ (1987) 15 Journal of Psychiatry & Law 433. 208

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the factors that might be relevant to a patient’s level of danger in the abstract.215 For example, major economic forces, such as recession and unemployment, and significant social changes, such as deinstitutionalisation, may have a direct impact on a patient’s perceived level of dangerousness.216 For that reason, the law itself would fail to achieve its purposes if it did not indirectly legitimise decisions based on a broader reading of its provisions. In another study, Thompson and Ager found that commitment decisions are the result of a blending of legal and non-legal information.217 They asked 176 psychologists and psychiatrists to make recommendations for or against commitment in a series of vignettes. While the participants quite properly took ‘legal’ factors like commitability, treatability and resources into account, they were also influenced ‘by several types of information in addition to the [commitment] criteria’.218 Similarly, Bagby et al asked 495 psychiatrists based in Ontario for their professional views on a number of hypothetical case studies. The researchers found that in 20 per cent of the responses decision-makers committed patients who would not meet the legal criteria for compulsory admission in real life.219 They concluded that there must be other non-legal factors at play in the decision-making process. Peay also found that decisions to detain patients under Part II of the MHA were based on ‘innumerable extraneous and irrelevant factors’.220 Consequently, no two cases are the same and no single case is likely to look the same to any two decision-makers.221 Peay also found that there were many disagreements between the participants in her study, suggesting that the notion that decision-making is consistent in the aggregate may not be accurate.222 In fact, it is almost impossible to predict how a given patient might be treated should he be made subject to the compulsory powers. If Peay’s findings are representative, the law is plainly not as determinative as one might expect. Indeed, it may passively facilitate decisionmaking which is contrary to the policy of the MHA. Peay found that some of the participants in her study made decisions about whether to ‘section’ a patient first and then justified his commitment afterwards. Such a ‘mix-and-match approach’ means that there is always a way around the MHA’s legalistic prescriptions.223 This was especially relevant in relation to risk, which Peay thought was ‘based on a shifting and malleable factual context’.224 In her view, the MHA covertly legitimises

215 SG Mestrovic and JA Cook, ‘The Dangerousness Standard: What is it and How is it Used?’ (1986) 8 International Journal of Law and Psychiatry 443, 467. 216 Hiday and Smith (n 214) 450. 217 JS Thompson and JW Ager, ‘An Experimental Analysis of the Civil Commitment Recommendations of Psychologists and Psychiatrists’ (1988) 6(1) Behavioral Sciences & the Law 119, 127. 218 ibid, 127. 219 RM Bagby et al, ‘Decision-making in Psychiatric Civil Commitment: An Experimental Analysis’ (1991) 148(1) American Journal of Psychiatry 28, 32. 220 Peay, Decisions and Dilemmas (n 198) 18. 221 ibid, 20. 222 ibid, 16–18. 223 ibid, 40. 224 ibid, 46.

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‘backwards decision-making processes’225 or ‘post-hoc rationalisations’.226 She concluded that ‘non-lawyers do not give law the eminence or priority that lawyers do’.227 When the participants in her study reviewed the same factual scenario they often attached their own unique (and therefore non-legal) solutions.228 She compared this phenomenon to the dynamic that exists between friends who see the same film but have differing opinions about its merits. In Peay’s view, legal rules cannot make people see the world in the same way, making the prospect that multiple decision-makers will apply the law in the same way seem unrealistic.229 It would be wrong to argue that practitioners’ application of the law is inevitably an arbitrary process. In their review of the circumstances that had led to the involuntary commitment of 102 patients to a hospital in Ontario, McCready and Merskey found that decision-makers had for the most part practised in accordance with the provisions of the relevant legislation.230 Of the 102 admissions, the researchers found that 91 had met the legal criteria while the other 11 had been based on rather broad, but nevertheless legitimate, interpretations of the law. After interviewing those patients, they found that only one person’s commitment to hospital lacked a medical—and, therefore, legal—justification. That McCready and Merskey’s data suggest that only 1 per cent of decisions taken under the Ontarian Mental Health Act were illegitimate shows that decision-makers in that particular hospital were typically faithful to the legal rules. Similarly, Appelbaum and Hamm found that the relevant legal criteria were significantly related to discharge decisions taken in Massachusetts.231 Interestingly, these criteria included a requirement that decision-makers evaluate patients’ levels of ‘dangerousness’. The researchers studied the responses of 34 clinicians to 65 requests brought by patients seeking discharge from hospital. In every instance, the participating decision-makers considered factors that were either directly or at least loosely related to the legal criteria. Appelbaum and Hamm concluded that the legal criteria ‘were among the most important determinants of the decision to seek commitment’.232

The Verdict Mental health law does not always map decision-makers’ practices. There are two reasons for this. First, mental health practitioners’ actual knowledge of the

225

ibid, 184. ibid, 74. 227 ibid, 137. 228 ibid, 164. 229 ibid. 230 J McCready and H Merskey, ‘Compliance by Physicians with the 1978 Ontario Mental Health Act’ (1981) 124 (March) Canadian Medical Association Journal 719, 724. 231 PS Appelbaum and RM Hamm, ‘Decision to Seek Commitment: Psychiatric Decision-making in a Legal Context’ (1982) 39(4) Archives of General Psychiatry 447. 232 ibid, 450. 226

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law is imperfect. Several studies have shown that at least a sizeable minority of decision-makers in any given sample have a confused or inaccurate understanding of the legal provisions that notionally govern their remit. There is no common understanding of the law among those people charged with the task of applying it. Second, some mental health professionals know the legal rules but still choose to apply them in a way that goes beyond the letter and spirit of the legislation. There is evidence that decision-makers take extra-legal considerations into account or make ‘creative’ use of the legislation in order to achieve a desired outcome. It is plain that faith in the determinative power of the law is misplaced. As a result of either confusion or wilfulness, few decision-makers seem to regard or respect statutes like the MHA as a definitive prescription of the limits of their powers. That the 2007 Act’s reforms appear not to have radically altered mental health decision-makers’ practices is entirely consistent with the evidence. Generally, there is no evidence that the practitioners’ knowledge and application of the law has changed for the better or worse since the amendments of the MHA came into force. The continuation of the steady upward trend in the use of the compulsory powers that started in the mid-1980s suggests that the recent changes in the law have not altered decision-makers’ priorities. This means that the same potential for legal uncertainty and decision-making inconsistencies remains. If decisionmakers’ knowledge of the MHA was weak and their application of its provisions arbitrary before the 2007 Act, that is likely also to be the case now. The 2007 Act may merely have retrospectively legitimised decision-making practices which prevailed long before it came into effect. That the amended MHA does not appear to map practice has little to do with defects in the law itself. Rather, it reflects the fact that mental health law lacks the determinative effect which has for so long been assumed.

Conclusions When the amendments to the MHA finally reached the statute book in July 2007, the commonly held assumption was that they would make it easier to subject people to the compulsory powers, which in turn would lead to a significant expansion of the formal patient population. This derived from a broader assumption that mental health law is an effective vehicle for implementing policy and for delineating the practical domain of mental health professionals. At first glance, the gloomy predictions seem to have come true. There has been a steady growth in the number of detentions under the MHA since the 2007 Act’s reforms came into effect. More people are now subject to civil commitment than has been the case in any of the last 30 years. At the time of writing, it is a safe bet that there are more people detained under the MHA today than there have ever been at any other time in the entire history of compulsory mental health legislation in England.

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In addition, the 2007 Act has added new ‘islands’ of compulsion to Fennell’s ‘tutelary archipelago’. SCT means that patients’ formal interactions with mental health services are not limited to hospitals and the DOLS provide another occasion for deprivations of liberty. All this seems to vindicate those who predicted that the post-2007 Act era would be characterised by more control of, and less liberty for, people with mental disorders. Yet correlation does not imply causation and, in truth, there is nothing to suggest that the 2007 Act’s reforms are responsible for the increasing use of the MHA’s civil commitment powers. The annual number of admissions under the MHA has been rising steadily for at least 30 years, long predating any changes in the law. There was no sudden spike in that number, nor was there any significant acceleration in the rate of admissions, when the 2007 Act’s reforms came into effect. There is no evidence that the amendments to the MHA have made any material change to decision-making dynamics or to the delivery of mental health services. Meanwhile, SCT appears to be of questionable efficacy and there is nothing to suggest that the underlying policy emphasis on risk has created a presumption in favour compulsion. While it may be true that mental health services in England now operate in a more coercive environment, there is little evidence to suggest that the law itself is responsible for this. That the law may lack the clout necessary to restrain decision-making is undoubtedly worrying, but it seems that this defect is in no way unique. The law itself seems to lack the determinative potency with which it is often credited: it is an unsatisfactory means of achieving mental health policy objectives and seldom maps practice with any degree of accuracy. This chapter has shown that legislative reform which either tightens or loosens the criteria for civil commitment is not an effective way of regulating the number of formal patients subject to compulsory care and treatment. If it has any effect at all, it tends to be short-lived and often its impact is observable even before the law itself is formally amended— a curious phenomenon which raises obvious questions about what the law actually does. Approximately two years after the implementation of legislative reforms, the number and rate of admissions tend to return to their previous trajectories. The assumption that the law has any determinative potency in this connection is clearly misplaced, or at least overstated. The fact that the 2007 Act’s reforms did not have any bearing on the number or rate of compulsory admissions is therefore not particularly surprising: such an effect is entirely consistent with the experiences observed in other times and places. We have also seen that the law’s limited ability to map practice casts doubt on its capacity to contain bad or illiberal decision-making. Despite persistent assumptions to the contrary, mental health practitioners’ knowledge and understanding of the laws that purportedly govern their professional domain is patchy. Although it may be tempting to anticipate that a retreat from legalism and an embrace of medicalism will coincide with inconsistent decision-making, in fact there is nothing to suggest that the relevant legal provisions make any difference to begin with. As a result, it does not come as a surprise that mental health decision-makers have carried on in the post-2007 Act era in much the same way that they did before it.

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All this points to a conclusion that may be difficult for lawyers to accept: that mental health law does not possess the determinative power which is often assumed. Although its procedural prescriptions, such as the time limits it imposes on durations of authority, are rigidly enforceable according to objective criteria, the same cannot be said for the provisions which concern substantive considerations. As we saw in chapter two, it is this which renders the risk formula to be profoundly problematic from a legal point of view. Not only does this explain why the 2007 Act’s reforms may not have had the effect that many contemporary commentators anticipated, it also suggests that the faith that many have placed in the law’s ability to promote more humane and progressive mental health practices may be misplaced.

7 Reflections on New Medicalism Introduction It was Kathleen Jones who first used the metaphor of a pendulum to describe the way English mental health law has tended to swing between legalism and medicalism throughout its history.1 Her thinking remains central to the way lawyers understand mental health law. Yet, in truth, the last 30 years have stretched Jones’s metaphor to breaking point. First came the Mental Health Act (MHA) 1983, which necessitated the creation of a new descriptive model to account for its more muscular legal formalism. The coining of new legalism added a third model to a typology that had once only contained two, meaning that while Jones’s pendulum might swing away from medicalism, it was no longer clear what it might be swinging towards. Then came the revival of medicalism in the late 1990s and early 2000s. As we have seen, the reforms which the MHA 2007 introduced have heralded a new type of medicalism which demands the framing of yet another model to narrate their distinct character. Although it may have a pleasing symmetry, a taxonomy comprising four models means that the classic notion of a pendulum swinging in a bidirectional manner is difficult to maintain. Instead, a better analogy might be that of a compass to one of whose cardinal points the law will face depending on the prevailing direction of public policy. New medicalism in this way completes a quadrumvirate of ‘cardinal’ descriptive models and thereby adds to the vocabulary with which lawyers make sense of the laws which authorise civil commitment and involuntary treatment. This chapter reflects on the new medicalist ‘moment’. Its core contention is that new medicalism represents something that by rights should horrify lawyers. It facilitates or enhances social control, retains the centrality of the legally problematic concept of risk, and raises tricky questions about human rights. In light of the UN Convention on the Rights of Persons with Disabilities (CRPD), it may be easy to foresee the imminent consigning of new medicalism to the dustbin of English legal history. For those who have long been sceptical of civil commitment this would undoubtedly be a welcome result. Yet, as we have seen, it is doubtful that mental health laws governing compulsory care and treatment 1

K Jones, A History of the Mental Health Services (London, Routledge & Kegan Paul, 1972).

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ossess anything like the determinative potential with which they are credited. p The swings of Jones’s pendulum (or the rotations of the needle on a compass) may in fact have meant little in practical terms. The points of conflict between the current MHA and wider policy debates may therefore be much less consequential than has been assumed. In spite of this, the CRPD and shifting social attitudes towards mental illness have conferred greater urgency to the question of mental health law reform in England. The new medicalist moment may therefore be nearing its end. However, the question of how Parliament should reform the MHA to tackle its perceived shortcomings is a vexed one. At the time of writing, there is a growing sense that something must be done. Yet while many might like to embark on a journey of reform, there is as yet no consensus as to the ultimate destination. The road ahead is likely to be long and difficult, and, despite all its problems, may lead to a framework that continues to draw inspiration from new medicalistic impulses in ways that few of the critics of the current MHA might like.

The New Medicalist Moment Justifying the 2007 Act’s Place in History In many ways, the Mental Health Act (MHA) in force in England in 2018 could hardly be less deserving of a special place in history. After nearly a decade of attempts to introduce a new statutory framework, the result was a collection of modest correctives to a statute which still contains the same civil commitment powers, decision-making processes, and even short title as the original 1983 Act. In spite of the policy preoccupation with public safety, the 2007 Act retained the original 1983 Act’s risk formula. The same metric, howsoever flawed, therefore continues to determine whether or not a person with a mental disorder engages formally with mental health services. Absent is the ‘substantial risk of causing serious harm’ formulation of the Mental Health Bills in 2002 and 2004;2 so too a separate legal basis for the compulsory treatment or management of so-called ‘high-risk’ patients.3 It is simply not true that the 2007 Act ushered in a distinct ‘era of risk’. Moreover, none of the 2007 Act’s amendments changed the MHA’s essential functions: the way a formal patient comes into contact with mental health services in 2018 is virtually identical to the way he would have done had he been

2 eg, Department of Health, Draft Mental Health Bill 2002 (London, Stationery Office, Cm 5538-I, 2002) cl 6(4); Department of Health, Draft Mental Health Bill 2004 (London, Stationery Office, Cm 6305-I, 2004) cl 9(7). 3 HM Government, Reforming the Mental Health Act: Part II—High Risk Patients (London, Stationery Office, Cm 5016-II, 2000).

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c ompulsorily admitted in 1998 or 2008. All the 2007 Act did is make it easier for a wider range of mental health professionals to subject people they deem to be mentally disordered to the MHA. Taken together, its reforms have amounted to a series of (attempted) repairs to what was considered in some quarters to be a faulty statutory framework; they in no way amounted to a wholesale renovation. Had either the 2002 or 2004 Bill, or any other legislation composed along the same lines, reached the statute book then the story would have been very different. In those circumstances, the case for the recognition of a new descriptive model would have been manifest. By contrast, the obvious continuities between the pre- and post2007 Act eras might lead some to conclude that the 2007 Act’s reforms are worthy of only a footnote when the history of English mental health law is written. Yet there is no doubt that the underpinnings of the amended MHA are markedly different from those which inspired the original 1983 Act, or any of its predecessors. The new medicalist ‘moment’ began with the election of the Labour Government in 1997. As early as 1998, the then government justified its plans to modernise mental health services with explicit reference to the risks associated with people suffering from mental disorders. The Department of Health’s Modernising Mental Health Services strategy stated that mental illness ‘strikes at the heart of our fear about loss of control, our fear of violence and our fears for our children’.4 It also referred to ‘suicide’ and ‘homicide’ as justifications for the modernisation of mental health services and declared that ‘the public have a right to be concerned’.5 Although it did also consider the stigmatising effects of mental illnesses, the fact that the Department of Health referred first to the control and management of risk implies which it took to be the more pressing concern.6 It is easy to fall into the trap of assuming that the prioritisation of risk—and therefore the embrace of what we call new medicalism—did not take place until the publication of the White Papers in 2000, after the then government had effectively rejected the proposals of the Richardson Committee. But it is clear that the objective of protecting the public was foremost in the government’s mind from the moment it declared its intention to reform mental health law in 1998. Even after years of opposition and criticism from various stakeholders, the government still insisted on referring to public safety as the rationale for the 2007 Act’s reforms on the eve of their coming into effect.7 Although it claimed that the reforms were designed to do a number of things, it is noteworthy that ensuring that patients ‘receive the treatment they need to protect themselves and the public from harm’

4 Department of Health, Modernising Mental Health Services: Safe, Sound and Supportive (1998) [1.1]: webarchive.nationalarchives.gov.uk/+/www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@ dh/@en/documents/digitalasset/dh_4046866.pdf. 5 ibid, [1.7], [1.8], [1.9], [1.10]. 6 ibid, [1.10]. 7 Department of Health, Mental Health Bill: Regulatory Impact Assessment (June 2007) [4]: webarchive.nationalarchives.gov.uk/20130105054439/http://www.dh.gov.uk/prod_consum_dh/ groups/dh_digitalassets/documents/digitalasset/dh_076476.pdf.

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was always mentioned first.8 There can be no dispute that the 2007 Act derived from a policy agenda that was utterly fixated on risk. Furthermore, some of its principal reforms survived the many abandoned attempts to replace the original 1983 Act. For example, although it may seem at first glance that the simpler definition of ‘mental disorder’ and the ‘appropriate treatment’ test amount to cosmetic tinkering, their provenance as the vanguards of the risk agenda is indisputable. At no other time in the history of mental health law in England has the objective of controlling and managing the risks associated with mental illnesses enjoyed such prominence.

To What Extent should New Medicalism Worry Lawyers? By definition, any embrace of medicalism should precipitate the decline of legalism. The two models are mutually exclusive: as decision-makers’ discretion expands, the law’s capacity to delimit and police it declines. It follows that any revival of medicalistic approaches in mental health practice is likely to be greeted with scepticism from lawyers and other proponents of legalism. To some extent, this is wholly unsurprising: lawyers will inevitably seek to defend their professional domain—as a cynic might retort: ‘Well, they would be like that, wouldn’t they?’ But a legalist’s scepticism is likely to derive from more than mere naked self-interest (although that may indeed play a role). Civil commitment is ultimately about the deprivation of liberty. In a liberal, democratic society governed by the rule of law, the deprivation of a person’s liberty should be contingent on the satisfaction of a set of fixed, objectively justifiable legal criteria and executed in accordance with a fair and reviewable process. Medicalism, with its looser criteria and deference to professional discretion, is not instinctively amenable to these standards. This is not to say that it is illiberal per se; rather, it is that medicalism is much less compatible with the presumptions of a liberal legal order than its legalistic analogue. For those who cleave to the classical liberal maxim that everyone has the right to liberty unless there is an objective legal basis to suspend it, any embrace of medicalism should, at the very least, give cause for circumspection. With this in mind, it is not at all surprising that reforms rooted in new medicalism triggered so much hostility. Larry Gostin, whose civil-libertarian critique of medicalism was instrumental in heralding the era of new legalism in the 1970s and 1980s, said that the amended MHA would ‘[increase] the stigma of mental illness, [reinforce] hurtful stereotypes, [de-emphasise] the role of treatment as the primary justification for social action, and [widen] the net of compulsion in the community’.9 Its consequences would therefore be far worse than the arbitrariness, inconsistency and uncertainty that Gostin had identified as being 8 ibid.

9 LO Gostin, ‘“Old” and “New” Institutions for Persons with Mental Illness: Treatment, Punishment or Preventive Confinement?’ (2008) 122 Public Health 906, 907.

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by-products of medicalism—they would actually cause harm to people suffering from mental disorders. There are plenty of reasons why new medicalism should worry the proponents of legalism. First, it is explicitly predicated on the objective of facilitating social control. As we have seen, the very reason why the government decided to embark upon reforming mental health law was to enhance its responsiveness to the risks posed by and to people suffering from mental disorders. It was not seeking to use the 2007 Act, or any of the comprehensive statutes that it tried to pass, as an occasion to offer a full-throated defence of liberty, or to restrain mental health services. Secondly, new medicalism involves the retention of risk as the organising concept. Finally, new medicalism raises tricky questions about human rights. It also looks increasingly antiquated in an era in which the discriminatory practice of committing persons with mental disorders or disabilities is increasingly difficult to justify. Yet despite all this, the inescapable truth is that for all our lawyerly misgivings, the 2007 Act’s reforms do not appear to justify excessive concern about their notional tendency to jeopardise liberty or facilitate control. There is no doubt that the post-2007 Act era correlates with an increase in the number of people subject to civil commitment. What is doubtful is whether the 2007 Act’s reforms are responsible. There is a significant body of evidence which suggests that reforms which tighten or loosen compulsory admission criteria have little or no bearing on the number of people committed to hospital. This is not to say that they are entirely toothless. In terms of procedural concerns, the law can be very potent indeed. Where it is less definitive is in relation to matters of substance, that is, where a matter falls squarely within the relevant decision-maker’s professional domain. In these circumstances, the law has very little control over matters of fact which only professional d ecision-makers can resolve. For example, the law might say that a person’s detention must be ‘necessary for the health or safety of the patient or for the protection of other persons’, but it is for professionally qualified decision-makers to determine what would make it so. Mental health legislation can therefore provide a legal basis for civil commitment, but the application of the rules is necessarily an exercise over which the law can have very little influence. The traditional assumption is that the law restrains mental health services from operating with impunity. In fact, the law may change and yet much will remain the same. When faced with a statute which could very easily jeopardise liberty, this is a comforting thought. All this suggests that the swings between legalism and medicalism (and the contemporary variations on those themes) have been much less consequential than we have hitherto imagined. Successive mental health statutes have tended to apply to the same class of people. It is a dynamic that Appelbaum described in the 1990s and one which the amended MHA clearly replicates.10 By and large, a person with a mental disorder who is admissible under today’s MHA

10

P Appelbaum, Almost a Revolution (Oxford, Oxford University Press, 1994).

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would likely also have been admissible under the original 1983 Act, and vice versa. There may of course be some exceptions to this: patients with personality disorders posed a particular challenge under the original 1983 Act. But the 2007 Act’s looser criteria have in no way opened the floodgates to an era of systematic compulsion that the original 1983 Act had previously managed to restrain. It may be that decision-makers possess the same ‘tacit knowledge’ about risk to which we referred in chapter two. This kind of professional continuity may go some way to allaying concerns about arbitrariness and inconsistency in mental health decision-making.

The End of the Moment is Nigh? On revisiting the then government’s justifications for reforming the MHA 1983, one might be forgiven for thinking that they date from much more than 10 years ago. ‘Concerns of risk will always take precedence’.11 ‘Some people [are] … a threat to themselves or a nuisance to others, with a small minority a danger to the public’.12 ‘The safety of the public is of prime concern’.13 ‘[The law must] ensure that patients receive the treatment they need to protect themselves and the public from harm’.14 It is clear that, at the time, people with mental disorders were widely assumed to have the potential to pose a critical threat to public safety. This assumption is discomfortingly jarring 10 years on. In the same way that the language of historic mental health legislation may make us wince in these more enlightened times (eg, recall the references in the Mental Deficiency Act 1913 to ‘idiots’, ‘imbeciles’, ‘feeble-minded persons’ and ‘moral imbeciles’),15 the policy context from which the 2007 Act emerged also reads like something from another time and place. The notion that the ‘dangerously’ mentally ill should drive mental health policy is almost alien to current sensibilities. The cultural shift that has led to this change in perceptions took place within an incredibly short period. This in itself says much about the highly changeable policy context from which mental health laws emerge. Within the last decade, the prevailing narrative has switched from a preoccupation with public safety to new priorities like ‘proactive and preventive’ approaches to policy-making,16 service q uality improvement,17 and the rights and entitlements of mental health service users.18

11 HM Government, Reforming the Mental Health Act: Part I: The New Legal Framework (London, Stationery Office, Cm 5016-I, 2000) [2.16]. 12 Department of Health, Modernising Mental Health Services (n 4) [3.1]. 13 ibid, [4.33]. 14 Department of Health, Regulatory Impact Assessment (n 7) [4]. 15 Mental Deficiency Act 1913, s 1(a)–(d). 16 Independent Mental Health Taskforce to the NHS in England, The Five Year Forward View for Mental Health (February 2016) 4: www.england.nhs.uk/wp-content/uploads/2016/02/Mental-HealthTaskforce-FYFV-final.pdf. 17 S Ross and C Naylor, Quality Improvement in Mental Health (London, King’s Fund, July 2017). 18 Mental Health Alliance, A Mental Health Act Fit for Tomorrow: An Agenda for Reform (June 2017) 3: www.mentalhealthalliance.org.uk/news/A_Mental_Health_Act_Fit_For_Tomorrow.pdf.

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It seems unlikely that the case for new medicalism could be made in the same favourable conditions today. The media are now much less fixated on the risks posed by ‘dangerous’ mental health patients; instead, they speak to a growing public concern about pressure on services,19 staff shortages20 and the long-term detention of the mentally ill.21 Entire television broadcast seasons have been devoted to mental health issues,22 resulting in programmes such as Don’t Call Me Crazy (2017) and Being Black, Going Crazy? (2017) which explicitly sought to demystify and destigmatise mental illness among young people. It is now common to hear public figures talking candidly about their mental health problems,23 and taking active steps to promote awareness of the impact they can have on people’s lives.24 We live at a time when openness about mental health matters is pushing back against the stigma and discrimination which have for so long impeded patients’ recovery and rehabilitation. As a consequence, the public is increasingly inclined to reject stereotypical or prejudicial representations of mental illnesses and the people who suffer from them. Consider, for example, the perennial controversy surrounding the marketing of insensitive ‘mental patient’ Hallowe’en costumes, which portray persons with mental health problems as blood-spattered, meat cleaver-wielding maniacs or muzzled and strait-jacketed ‘psychos’.25 Recall also the backlash that has in the recent past followed the lazy characterisation of persons with mental health problems on national television,26 or the marketing of ‘offensive’ sweets.27

19 BBC News, ‘Mental Health Crisis Services in England “Under Pressure”’ (27 July 2017): www.bbc. co.uk/news/health-40732632. 20 BBC News, ‘Mental Health Staff Recruitment Plan for England’ (31 July 2017): www.bbc.co.uk/ news/health-40752060. 21 G Greenwood and M Buchanan, ‘Mental Health Patients Stranded in Units for Years’ (3 August 2017): www.bbc.co.uk/news/health-40631929. 22 BBC Media Centre, ‘BBC to Host a Season of Films on Mental Health, across TV, Radio and Online’ (17 January 2017): www.bbc.co.uk/mediacentre/latestnews/2017/mental-health-season. 23 BBC News, ‘Prince Harry “in Total Chaos” over Mother Diana’s Death’ (17 April 2017): www.bbc. co.uk/news/uk-39618169; Kerrang!, ‘Frank Carter: ‘You Are Not Alone’’ (14 September 2017): www. kerrang.com/the-news/frank-carter-you-are-not-alone/; H Brotherton, ‘23 Celebrities Speak Honestly about their Mental Health Battles’ Marie Claire (5 January 2017): www.marieclaire.co.uk/news/ celebrity-news/celebrities-speak-out-about-mental-health-12047; J Owen, ‘Stephen Fry: My Battle with Mental Illness’ The Independent (16 September 2006): www.independent.co.uk/life-style/healthand-families/health-news/stephen-fry-my-battle-with-mental-illness-416386.html. 24 R Booth, ‘Royals Launch Campaign to get Britons Talking about Mental Health’ The Guardian (29 March 2017): www.theguardian.com/society/2017/mar/29/royals-launch-mental-health-campaignvideos-get-britons-talking; B London, ‘Duchess of Cambridge says Parents Should Encourage Children to be Open About their Feelings in a Candid Mental Health Message as she Insists “Emotions are Normal”’ Mail Online (18 September 2017): www.dailymail.co.uk/femail/ article-4895684/ Duchess-Cambridge-stars-candid-video-message.html. 25 eg, BBC News, ‘Asda and Tesco Withdraw Halloween Patient Outfits’ (26 September 2013): www.bbc.co.uk/news/uk-24278768; D Burnett, ‘“Mental Patient” Halloween Costumes: A Scientific Guide to Dressing Accurately’ The Guardian (21 October 2015): www.theguardian.com/science/brain- flapping/2015/oct/21/mental-patient-halloween-costumes-a-scientific-guide-to-dressing-accurately. 26 P Etchells, ‘X Factor can do Better When it Comes to Mental Health Stigma’ The Guardian (8 November 2014): www.theguardian.com/science/head-quarters/2014/nov/08/x-factor-mentalhealth-stigma-lola-saunders-cheryl-fernandez-versini-crazy. 27 BBC News, ‘Poundland Nutters: Mental Health Row over “Offensive’ Sweets”’ (13 September 2017): www.bbc.co.uk/news/uk-41252887.

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Crucially, the public is also less convinced that mental health policy should prioritise public safety.28 The contrast between contemporary mores and the discourses that dominated in the early 2000s could not be starker. All this would suggest we are witnessing the end of the new medicalist moment. There is a growing appetite for reform along lines which are markedly different from those of the early twenty-first century. For example, in its five-year strategy for mental health, the independent mental health taskforce to the NHS in England has set out several ‘priority actions’ for implementation by 2020–21, including the development of a ‘7-day NHS’ run according to an ethos of ‘right care, right time, right quality’; ‘an integrated mental and physical health approach’; and a new emphasis on ‘helping people lead better lives as equal citizens’.29 Elsewhere, an independent commission on acute adult psychiatric care has painted a picture of a mental health system under pressure and in need of significant improvement.30 The focus appears to be on improving health outcomes through the delivery of better services, rather than the expansion of civil commitment. In its manifesto for the 2017 UK general election, the Labour Party pledged to ‘ring-fence mental health budgets’, abolish out-of-area placements by 2019, and take steps to increase the range of ‘evidence-based psychological therapies’ on offer.31 The assumption which is taking hold is that at least some of the solutions to the mental health challenges facing the country must come from outside the legislative domain. This is not to say that law reform is off the agenda. The Mental Health Alliance has said that the current MHA is ‘not fit for purpose’ and has called for an urgent review of it.32 And in its own manifesto for the 2017 UK general election, the Conservative Party pledged to introduce what it (rather questionably) claimed would be ‘the first new Mental Health Bill for thirty-five years’.33 In the Queen’s Speech which followed the election, the minority Conservative government announced its intention to ‘reform mental health legislation and ensure mental health is prioritised in the National Health Service in England’.34 If the course set by the present government is anything to go by, the era of new medicalism may very well be the shortest-lived of all the descriptive models. Yet while a very different social, cultural and political context may herald the end of new medicalism, there is little consensus as to what should come next.

28 Time to Change, Attitudes to Mental Illness 2014 Research Report (TNS BMRB, 2015) 18: www.time-to-change.org.uk/sites/default/files/Attitudes_to_mental_illness_2014_report_final_0.pdf. 29 The Five Year Forward View (n 16) 11–18. 30 Independent Commission on Acute Adult Psychiatric Care, Old Problems, New Solutions: Improving Acute Psychiatric Care for Adults in England (February 2016) 7: www.rcpsych.ac.uk/pdf/ Old_Problems_New_Solutions_CAAPC_Report_England.pdf. 31 Labour Party, For the Many, Not the Few: The Labour Party Manifesto 2017 (Labour Party, 2017) 73. 32 Mental Health Alliance (n 18) 3. 33 Conservative and Unionist Party, Forward Together: Our Plan for a Stronger Britain and a Prosperous Future (Conservative and Unionist Party, 2017) 57. 34 Her Majesty’s Most Gracious Speech to both Houses of Parliament, 21 June 2017.

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Moreover, there are reasons to doubt that the repeal, abolition or amendment of the MHA is likely to happen any time soon. It took a government with a threefigure parliamentary majority and a clear (if controversial) vision about the future of mental health law the best part of 10 years merely to amend the original 1983 Act, in the face of determined opposition and after two comprehensive Mental Health Bills had fallen by the wayside. What luck a minority government in the post-CRPD era with no clear proposal for a post-1983 Act future and otherwise engaged in the business of the UK’s withdrawal from the European Union will have is anyone’s guess. If previous experience is any guide, it may be that any predictions of the imminent demise of new medicalism, and the MHA, are premature. * It would be easy to adopt a historicist interpretation and claim that new medicalism was the inevitable result of the evolution of law and policy in this field. According to Karl Popper, ‘historicist doctrine’ assumes ‘that history is controlled by specific historical or evolutionary laws whose discovery would enable us to prophesy the destiny of man’.35 A historicist interpretation therefore relies on the assumption that social developments ultimately owe everything to a preordained historical destiny, rather than to ‘piecemeal engineering’.36 If one views the 2007 Act’s reforms through a historicist lens, they can be recast as the latest iteration of an evolving historical narrative. Such an interpretation would not be alien to mental health scholarship: Jones’s pendulum, for example, obliquely relies on assumptions which are recognisably historicist in character. First, it implies that the laws which govern civil commitment can ultimately be distilled into one of two descriptive models, legalism and medicalism, which exist as oppositional forces in a state of bidirectional tension. Secondly, it is difficult to conceive of a more apposite metaphor for historicism than the swinging of a pendulum. The most obvious point is that it evokes imagery redolent of the inexorable passage of time itself. Just as the swinging motion of a clock pendulum signifies the passing of time, so the swinging of Jones’s figurative pendulum symbolises the accretion of legal history. The pendulum metaphor also implies temporal predictability and regularity: every time a pendulum is displaced from its resting position, a restoring force causes it to oscillate around its equilibrium. A pendulum’s trajectory is therefore predictable, and its period of oscillation is measurable. Jones’s use of the metaphor consequently invites us to infer that the development of mental health law conforms to a set of historicist norms. There is an obvious, seductive appeal to historicism. It posits the existence of an immutable law of development which is characterised by a general trend towards

35 K Popper, The Open Society and its Enemies: Volume I: The Spell of Plato, 4th edn (London, Routledge, 1962) 8. 36 ibid, 158–59.

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either decay or progress.37 In this way, it equips its proponents with what they consider to be a moral and intellectual basis on which to ‘prophesy the course of historical events’.38 Historicism is therefore a means by which one can impose a sense of order and innate purpose on an otherwise complex and unpredictable world. For present purposes, it may proffer a neat explanation for the emergence of new medicalism. The most basic historicist narrative would say that new medicalism is the inevitable corollary of new legalism. As soon as a new variant of legalism began to inform mental health law and policy in England in the 1970s and 1980s, a medicalistic counterweight was a certainty. Therefore, the 2007 Act restores symmetry through the completion of a quadrumvirate of descriptive models. Of course, this does not account for the provenance of new legalism: new medicalism may be logically posterior to new legalism, but this does not explain why new legalism emerged in the first place. Another plausible application of historicist method would be to claim that new medicalism is somehow the final stage of development (or decay) before the longstanding assumptions that underpin civil commitment collapse. Legalism, medicalism and new legalism all implicitly accept that civil commitment is a legitimate activity—and new medicalism is no exception in this regard. The tension between the various models instead boils down to an argument about the extent of the law’s involvement. Although there has been much ‘toing and froing’, it is possible to view the history of mental health law as a story of the law’s declining influence. The law has certainly come a long way since the days when a ‘judicial authority’ acted as the ultimate arbiter of admission decisions. Back then, decisions to admit a ‘lunatic’ to an asylum had an unmistakably juridical countenance. Today, the law goes only as far as establishing broad discretionary parameters within which qualified mental health professionals can take decisions largely unfettered by legalistic prescriptions and limitations. To continue with the metaphor of a pendulum: in the same way that air resistance eventually causes a pendulum to come to rest in its equilibrium position, perhaps new medicalism is the result of some unknown force shortening of the pendulum’s amplitude? Perhaps it is the product of a gathering consensus that doctors and other decision-makers are better placed to take civil commitment decisions? If so, new medicalism could be seen as the latest step in the decline of mental health law as a substantively significant instrument. To compound this, as we saw in chapter five, the CRPD imagines the existence of a very different mental health and capacity framework. It challenges the assumption that the compulsory care and treatment of mentally disordered people is a legitimate activity and therefore brings the very purpose of mental health law into question. Against this backdrop, a historicist might come to the conclusion that new medicalism is mental health law’s ‘last hurrah’. The curious

37 ibid, 19; see also K Popper, The Open Society and its Enemies: Volume II: The High Tide of Prophecy: Hegel, Marx, and the Aftermath, 5th edn (London, Routledge, 1966) 36. 38 ibid, 3.

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temporal propinquity between the CRPD and the 2007 Act may lend succour to this interpretation: the former symbolising the future while the latter represents, quite literally, the end of history. Although these historicist narratives may have a superficial allure, they are ultimately unsatisfactory. As Popper noted, historicist interpretations are profoundly flawed because they assume that individuals are not masters of their own destiny.39 In the context of mental health, such interpretations suggest that law and policy move to the rhythm of some immutable law of history unamenable to rational action. This in turn suggests that mental health laws say more about a society’s place on a historical continuum than they do about its population’s mental health or attitude to liberty. We too readily draw false analogies between the past and contemporary experience, and then try to see ‘the line along which we may progress towards the solution of what we feel, and what we choose, to be our main tasks’.40 Those who would justify reform of mental health law with reference to perceived historical continuities lay the emphasis in the wrong place. While ‘historicists’ look at social institutions to establish ‘their origin, their development, and their present and future significance’, ‘social engineers’ ask: ‘If such and such are our aims, is this institution well designed and organised to serve them?’41 It is this question that leads to the rational ‘piecemeal engineering’ which Popper thought was the hallmark of an open society.42 Reform of the MHA will require just such an honest enquiry about exactly what it is we would like mental health law to achieve.

After the Mental Health Act: Where Next? It may be safe to assume that the current MHA is not long for this world— at least not in its present form. The question of what, if anything, might replace it is a contentious one, however. This final section critically examines some of the options. It does not focus on the broader (though no less important) questions about resources and service quality; these issues deserve to be addressed by those better placed to comment on them. They are also possible ‘within existing systems and processes’, meaning that legislative reform is not necessarily a prerequisite.43 The present enquiry will remain focused on the narrower question of law and legal policy.

39

ibid, 23. Popper (vol II) (n 37) 268. 41 Popper (vol I) (n 35) 22. 42 ibid, 157. 43 Department of Health, Government Response to No Voice Unheard, No Right Ignored: A Consultation for People with Learning Disabilities, Autism and Mental Health Conditions (November 2015, Cm 9142) [20]. 40

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The CRPD and the End of Civil Commitment Mental health legal scholars have questioned for some time how far laws which discriminate against people on the basis of mental disorder can be justified. By recasting that discriminatory tendency as a violation of international human rights law, the CRPD does away with the legal basis for civil commitment at a stroke. By extension, it also resolves the problems inherent in risk-based legal frameworks and makes the legal niceties surrounding involuntary treatment a thing of the past. A legal framework that complies with the CRPD (if indeed any stand-alone framework would be necessary) would resolve the hitherto intractable problems pertaining to legal certainty, discrimination and human rights which have bedevilled mental health and capacity law for so long. Yet the CRPD is not without shortcomings. The most obvious is the detrimental effect that the abolition of civil commitment may have on the care and treatment experience of people suffering from mental disorders. Although the risks were undoubtedly overblown prior to the introduction of the 2007 Act, there can be no serious dispute that a minority of people with mental health problems will pose a risk of harm to themselves or others. Much of that risk will stem from the fact that those people may not voluntarily seek medical treatment for whatever reason. This is the very ‘mischief ’ that the MHA is designed to tackle—if it were abolished, the law would in effect deprive some people of the care and treatment they need. The consequences of this could be devastating. For example, let us imagine that a patient (P1) has major depressive disorder (MDD). P1 exhibits low mood, poor concentration, withdrawal from social activities, feelings of hopelessness, and suicidal ideation. He also has a history of self-harming behaviour and incomplete suicide attempts. Recently, P1 admitted to his family that he has fantasised about killing himself and revealed detailed plans to achieve that end. However, he retains his capacity to make decisions for the purposes of sections 2 and 3 of the Mental Capacity Act (MCA) 2005 and explicitly refuses to accept treatment for his MDD. In the absence of the power to commit P1 to hospital, there is very little that mental health services could do for him. It is possible that they might still try to rely on considerations of capacity and thereby seek to administer treatment in his ‘best interests’. Yet, as we saw in chapter one, mental disorder and mental incapacity are not the same thing: a person can have a mental disorder and yet retain his decision-making capacity for the purposes of the MCA. Without civil commitment, it would be pure sophistry to redefine what will amount to the absence of capacity so as to find another way to administer treatment to a mentally disordered patient without his consent. It would make a mockery of the legal definition of framework concepts like ‘capacity’ and ‘best interests’ and raise questions about the point of abandoning civil commitment in the first place. In reality, mental health services would have no choice but to respect P1’s autonomy and his freedom to make his own decisions. This would presumably include doing nothing to prevent him from killing himself, should he decide to do so. In a similar vein, imagine that

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P2 has schizoaffective disorder. As a result, she suffers from symptoms of psychosis, which include visual and auditory hallucinations and disorganised thinking. P2 has recently begun to suffer from paranoid delusions that her ex-partner is engaged in a conspiracy to harm her in some way and claims that there are coded messages pertaining to this ‘plot’ planted around her neighbourhood. P2 has taken to carrying a knife when she goes out in order to ‘protect’ herself. Her friends are worried about her and have encouraged her to seek help from her GP. However, P2 refuses to accept that there is anything wrong and will not go to her doctor. Without the option of civil commitment, it is difficult to imagine how P2 would come into the care of mental health services. It is true that there may be a number of solutions to the problems that the examples of P1 and P2 illustrate, although none of them is particularly convincing. One option is to move to a ‘fused’ mental health and capacity law which would effectively extend liability for civil commitment to all persons lacking capacity—including those with physical disorders.44 This would have the advantage of eliminating the current law’s tendency to treat the sufferers of physical and mental disorders on an unequal basis. But, as we saw in chapter five, the extension of civil commitment to include people suffering from physical disorders would be impermissible under the ECHR, that is, unless the Council of Europe could be persuaded to amend the relevant provision, a prospect that seems remote. This means that if the law in England adopted this approach, the courts would be forced to issue declarations of incompatibility under section 4 of the Human Rights Act 1998. Just as one incompatibility with an international human rights framework is resolved, another would emerge. Moreover, the use of mental capacity as a framework concept would seem to be of little value where mental disorder is at issue, for the reasons we have already considered. In any case, the substitution of mental disorder or disability with mental capacity as the pivot around which the law’s mechanics turn would also likely run afoul of the CRPD, which explicitly refers to ‘mental, intellectual and sensory impairments’ in its open-ended definition of ‘disability’.45 It is therefore difficult to see how the use of ‘(in)capacity’ would in any way remedy the law’s present incompatibility with the CRPD. Another option is to adopt a disability-neutral standard: for example, the ‘decision-making capability’ model proposed by Szmukler and others,46 or the

44 eg, G Szmukler and F Holloway, ‘Mental Health Legislation is now a Harmful Anachronism’ (1998) 22 Psychiatric Bulletin 662; J Dawson and G Szmukler, ‘Fusion of Mental Health and Incapacity Legislation’ (2006) 188 British Journal of Psychiatry 504; G Szmukler et al, ‘A Model Law Fusing Incapacity and Mental Health Legislation’ (2010) 20 International Journal of Mental Health and Capacity Law 11. 45 CRPD, art 1. 46 G Szmukler et al, ‘Mental Health Law and the UN Convention on the Rights of Persons with Disabilities’ (2014) 37 International Journal of Law and Psychiatry 245.

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‘supported decision-making’ approach.47 A disability-neutral alternative has the advantage of removing the need to rely on a person’s ‘status’ as the animating consideration; instead it rests on his functionality. The problem here concerns who is making the judgement about the patient’s functionality. If the decision-maker is a healthcare professional, even a disability-neutral framework must eventually have to rely on the need for a diagnosis, and therefore the implicit imputation of impairment or disability, in order to uncover a pathological basis for a person’s lack of capability. If the decision-maker is not a healthcare professional then this raises the question about would actually qualify her to make a judgement at all. It may be that a member of the relevant person’s family could make a decision about his support needs, but beyond that there would surely have to be some objective measure or other to eliminate the risk of arbitrariness. Another problem concerns the utility of a disability-neutral alternative in cases such as P1’s and P2’s. It is difficult to see what use a decision-making capability or supported decisionmaking model would be if the relevant person either does not accept that there is anything wrong or outright refuses to accept medical treatment. The end result may be that a disability-neutral framework would fail to tackle the same ‘mischief ’ anywhere near as effectively as the MHA. Alternatively, it might end up applying to the very same people. While it may salve the consciences of those anxious about human rights and discrimination to change the language that the law uses, a purportedly disability-neutral framework may still ultimately rely on discriminatory constructs to be effective. In other words, processes might change, but the substantive consequences would not. Having said that, the substantive consequences might very well change under a disability-neutral framework. This might be an even more troubling development: it is conceivable that disability-neutrality might catch even more people than the current framework. In this way, an unintended consequence of the quest for greater equality might be an even greater threat to liberty. This hardly seems an appealing prospect. The final option is to abandon civil commitment altogether. The CRPD does not preclude civil commitment full stop; it merely mandates that it function on an equal and non-discriminatory basis. Yet if no plausible basis can be found, it follows that the only remaining option is abolition. This would mean that the law would make no special provision whatsoever for persons with mental disorders, howsoever defined. The upshot of this approach would be that if people do not seek medical care or treatment then the legal framework would be respectful of their autonomy and do nothing to intervene. This would mean that mental health services could do nothing to prevent patients in P1’s position from killing themselves—even where this might cause physical injury or psychological distress

47 F Morrissey, ‘The United Nations Convention on the Rights of Persons with Disabilities: A New Approach to Decision-making in Mental Health Law’ (2012) 19 European Journal of Health Law 423; E Flynn and A Arstein-Kerslake, ‘The Support Model of Legal Capacity: Fact, Fiction, or Fantasy?’ (2014) 32(1) Berkeley Journal of International Law 124.

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to others. It would also mean that the first time P2 might come to the attention of mental health services would be after she had been found in possession of a knife—and even then they may be powerless to treat her without her consent. The logical consequence of the complete abandonment of civil commitment would be that persons with mental disorders would likely find themselves instead diverted into the criminal justice system or left to suffer interminably from an eminently treatable mental illness. This, too, is hardly a desirable prospect. It is difficult to imagine that the architects of the CRPD intended to replace civil commitment with an alternative framework that does even more to jeopardise liberty and facilitate control. It is also hard to envisage that they sought to deprive people suffering from mental disorders of the care and treatment they need, or that they considered it better to allow people with mental illnesses to kill themselves or languish in police custody suites or prison cells than to deploy discriminatory civil commitment powers against them. But these consequences would seem to be the plausible results of a truly non-discriminatory legal framework in this context. For its part, the World Network of Users and Survivors of Psychiatry (WNUSP) is clear that only the total repeal of ‘all discriminatory laws’ will satisfy the UN Convention.48 Clues about the normative position the WNUSP takes on civil commitment are clear from its name. The upshot of its interpretation is that ‘guardianship or incapacity laws, provisions disqualifying people from legal acts based on disability, and mental health laws authorising deprivation of liberty or psychiatric interventions without the free and informed consent of the person concerned’ must be repealed.49 The WNUSP categorically rejects the argument that ‘coercive treatment potentially saves lives and protects society’ on the basis that this claim ‘fails to acknowledge the cost and damage to the individuals c oncerned’.50 Yet how a CRPD-compliant framework of the sort of which the WNUSP would approve might deal with cases illustrated by the earlier examples of P1 and P2 is unclear. The WNUSP is much more equivocal on the issue of suicide and suicidality and makes no reference whatsoever to situations in which a patient might pose a risk of harm to others. In relation to suicidality, it says that the right to life under Article 10 of the CRPD ‘does not override the right to liberty (Article 14) when it comes to issues of s uicidality’.51 Despite its declamatory tone, the WNUSP offers little to indicate how we should resolve P1’s dilemma. All it has said is that neither criminal sanctions nor coercive psychiatric interventions are appropriate responses. Instead, ‘people with experience of suicidality should be considered

48 World Network of Users and Survivors of Psychiatry, Implementation Manual for the United Nations Convention on the Rights of Persons with Disabilities (February 2008) 12–13: www.wnusp.net/ documents/WNUSP_CRPD_Manual.pdf. 49 ibid. 50 ibid, 33 51 ibid.

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experts on this issue when developing law and policy’ in this connection.52 But this is not really a solution at all. First, if one CRPD right does not trump another in the event of a conflict then right away this puts us in a bind: if P has a mental disorder, a symptom of which is suicidal ideation, what should the law do? To say that one right cannot trump another does little to help resolve the tension evident in P1’s case. In fact, it may simply neutralise the effect of both rights, since neither can be invoked to the detriment of the other. Secondly, the WNUSP’s suggestion that States parties to the CRPD take people with experience of suicidality to be experts on the subject is entirely of a piece with the experts-by-experience ethos that underpins the UN Convention more broadly. But while there is no doubt that people with experience of suicidality will have valuable contributions to make, the idea that they somehow speak with one voice is fanciful. At the risk of being indelicate, some of those people will not be around to impart the benefit of their experience. And those who are still around may not all agree that civil commitment would cause any or any significant ‘cost and damage’ to them, or they might take the view that it is a price worth paying. It would be interesting to know, for example, how many such people retrospectively come to appreciate the important role that compulsory admission to hospital may have played in saving their lives. There is certainly some evidence that patients’ views of civil commitment are not universally negative.53 While it may be true that civil commitment can be a traumatic experience which some patients regret, there will surely be those who regard it as a timely and welcome intervention. It is difficult to see how this area of potential disputation can provide fertile ground for the cultivation of coherent policy. In any case, the CRPD itself limits the range of policy options that people with experience of suicidality can help to inform—expertise-by-experience may be welcome, but it must ultimately be the right kind of expertise. It is therefore difficult to see how the WNUSP’s interpretation of the CRPD provides any practical solution to P1’s problem; at best, it simply sidesteps the issue. In truth, the CRPD brings to a head a quandary that lies at the heart of contemporary mental health law and policy. That is, how can the law ensure that mental health services treat people suffering from mental disorders in an equal and non-discriminatory way, while they at the same time reliably pursue the legitimate objective of protecting patients and others from genuine risks of harm? Although much ink has been spilled in pursuit of one, there is yet to be a satisfactory answer to this question. The present author has wrestled with this conundrum for longer than he would care to admit and is no closer to resolving it. On one hand, it is surely fundamental in a liberal and democratic society that

52

ibid, 16. S Priebe et al, ‘Patients’ Views and Readmissions 1 Year after Involuntary Hospitalisation’ (2009) 194(1) British Journal of Psychiatry 49; GS Owen, ‘Retrospective Views of Psychiatric In-patients Regaining Mental Capacity’ (2009) 195(5) British Journal of Psychiatry 403. 53 eg,

After the Mental Health Act: Where Next? 259

people can pursue their own objectives free from coercive interventions from the state wherever possible. Where such interventions are necessary, there should be a clearly defined, rationally constructed and legally certain basis for them. For the reasons that this volume has discussed, the MHA fails to meet this high standard and therefore appears incompatible with the exactitudes of a liberal legal order. On the other hand, it surely cannot be right that a person suffering from a serious mental illness whose effects may lead him to harm himself or others should go without the care and treatment that will help him. For all its faults as a legal apparatus, it cannot be denied that the MHA serves a very practical— and even compassionate—function in seeking to prevent the devastating consequences of some mental illnesses. There is no easy way of resolving the tension between these positions. Perhaps, ultimately, we should accept that people who wish to kill themselves for whatever reason should be free to do so—even if this means that they might put the lives of others at risk as they seek to end their own. Perhaps we should also accept that the only way to achieve certainty is to abolish the law’s mechanism for pre-empting risk and let the criminal justice system run its course. If we cannot prevent the risks of harm that may be attendant on physical disorders, why should mental disorders be singled out for differential treatment? Or maybe mental health is the communitarian exception to the principle of autonomy; maybe it is the hallmark of a socially just framework that the law authorises in some cases the compulsory care and treatment of those too unwell or vulnerable to look after themselves. Ultimately, it comes down to an inescapably binary distinction: either civil commitment is abolished as an historical anachronism, or it remains as a flawed and often difficult-to-justify exception to the general principles which underpin the liberal legal order. Perhaps some readers will find it easier to reconcile the conflict than others. It may be, for example, that they will feel that civil commitment can be framed in ways that do not discriminate against persons with mental disorders. If this extends the law’s coercive potential, then they may think this is a price worth paying for greater equality. Alternatively, they might point to the reform proposals advanced by the Richardson Committee in 1999 as the plausible basis for a new legislative framework. It will be recalled that Richardson’s recommendations predated the then government’s explicit adoption of the risk agenda; ever since they have represented the patients’ rights-centric, capacity-based mental health legal framework ‘that got away’. Yet, viewing those 1999 proposals through 2018 spectacles it is clear that even they would do nothing to achieve compliance with the CRPD, or abandon the MHA’s principal functions. Although the expert committee proposed replacing the MHA with a statutory framework in which mental capacity played a ‘central’ role,54 it still retained the risk formula in its proposed admission criteria. In fact, Richardson’s recommendations would have done nothing to

54 Department of Health, Report of the Expert Committee: Review of the Mental Health Act 1983 (London, Stationery Office, 1999) [5.102].

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weaken risk as the trigger to compulsion; capacity was merely an additional consideration in the proposed framework. It is not the case that had Parliament adopted Richardson’s recommendations it would have introduced a radically different set of admission criteria than those of the original 1983 Act. Richardson’s recommendations did nothing to dilute the chief functions of civil commitment, nor did they play down the importance of risk in the decision-making process. Whether they would have raised the risk threshold is unclear. Yet such a distinction arguably misses the point: as we know, risk is an inherently uncertain concept. Even if it is modified by adjectives like ‘significant’ or ‘substantial’, it lacks the specificity to guarantee legally certain outcomes. Richardson’s proposals would have created a framework that would still have been incompatible with the CRPD when it came along. This further amplifies the extent to which policy-makers must recalibrate their expectations in the post-CRPD era to fit a radically different paradigm In light of all this, it seems doubtful that Parliament will replace the MHA with a CRPD-compliant framework any time soon. At best, the UN Convention would seem to be an aspirational framework to which the UK is likely to pay scant regard in practice. As we saw in chapter five, the British Government considers that compliance with the ECHR is enough also to satisfy the CRPD, a position that is both untenable and disingenuous. Nevertheless, it is clear that compliance with the CRPD is not a priority. Indeed, it is very telling that in its recent 84-page consultation for people with learning disabilities, autism and mental health conditions, the Department of Health made only two references to the UN Convention and in neither case did it engage meaningfully with it.55 The government’s response to that consultation did not mention the CRPD once.56 This raises legitimate political questions about why the UK signed up to the CRPD in the first place, but these are beyond the scope of this volume. What is obvious is that many stakeholders remain stubbornly wedded to civil commitment and differential treatment on the basis of mental disability. This is neatly illustrated by the results of the Mental Health Alliance’s survey of 8,631 mental health service users and their carers, family and friends.57 A majority of the respondents to the survey agreed that compulsory treatment in hospital is sometimes necessary, and that it may be necessary to restrict a person’s human rights for their own or others’ safety.58 That this came from a survey of the sorts of ‘experts’ that the CRPD values shows that expertsby-experience may not necessarily lead to the formulation of radically d ifferent policy. A similar theme was evident in the comments of Sir James Munby P in In the Matter of X (A Child) (No 3).59 This case concerned a young woman, X, who had been detained in a secure unit subject to a Detention and Training Order. 55 Department of Health, No Voice Unheard, No Right Ignored: A Consultation for People with Learning Disabilities, Autism and Mental Health Conditions (March 2015, Cm 9007) [1.5], [2.1]. 56 Department of Health, Government Response to No Voice Unheard (n 43). 57 Mental Health Alliance (n 18). 58 ibid, 12. 59 In the Matter of X (A Child) (No 3) [2017] EWHC 2036 (Fam).

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As X’s release date approached, a question arose about where she should be accommodated after leaving the unit. X had serious mental health problems and had made several determined attempts to commit suicide while in custody. Although the court had previously imposed a care order, no place had been found for X in a suitable setting outside the criminal justice system. There was a considerable risk that if X were released without a suitable placement she would kill herself. Sir James was forthright in his condemnation of the failure to locate suitable accommodation for X: If this is the best we can do for X, and others in similar crisis, what right do we, what right do the system, our society and indeed the State itself, have to call ourselves civilised? The honest answer to this question should make us all feel ashamed.60

His Lordship said that if X were to be released without a supportive and safe placement, ‘we, the system, society, the State … will have blood on our hands’.61 For understandable reasons, Sir James’s comments attracted significant p ublicity— it is rare for a senior judge to be so blunt.62 Yet His Lordship’s comments are also telling in that they reveal the extent to which the deprivation of liberty on the basis of mental disorder is still regarded as a necessary and even compassionate undertaking. Although X was not a formal patient, she was to be deprived of her liberty in a secure setting because of her mental health problems. She was therefore to be subject to care and treatment on a discriminatory basis in violation of the CRPD. His Lordship made no reference to the CRPD in his judgment and plainly did not have any moral compunction in ordering a discriminatory course of action. What is most interesting is that the judge explicitly framed the absence of suitable accommodation for X as a source of shame, rather than reaching the same conclusion about the practice of depriving mentally disordered people of their liberty. In this way, the X case reveals something about the vast gulf between pragmatic judicial thinking and the ambition of the CRPD. It is true that the UN Convention has not been incorporated into English law and therefore it is not surprising that a domestic court might omit any reference to it. But the absence of the sort of services that were deemed to be necessary in X’s case would likely be part and parcel of a CRPD-compliant framework. That the court regarded such a thing to be a wholly undesirable outcome suggests that a future that coheres with the CRPD remains a remote prospect. That is not to say that such a thing will never happen; rather, it is that much has to change before the law can abandon civil commitment for people with mental disorders. It may be reasonable to infer that the aim of many stakeholders is to

60

ibid, [38] (Sir James Munby P). ibid, [39]. 62 eg, BBC News, ‘Family Judge “Ashamed” by Support for Suicidal Girl’ (3 August 2017): www.bbc.co.uk/news/uk-40814824; K Rawlinson, ‘NHS to Assess Three Hospitals to Determine Care for Suicidal Girl’ The Guardian (4 August 2017): www.theguardian.com/society/2017/aug/04/ nhs-to-assess-three-hospitals-to-determine-care-for-suicidal-girl. 61

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support the creation of a more just mental health and capacity legal framework which nevertheless retains some mechanism by which mental health services can administer care and treatment to people on a differential basis where necessary. If that is truly the aim, then the CRPD’s vision may never become a reality. For that reason, there may be life in the MHA yet.

The Mental Health Act and the End of Radicalism It is fair to say that radicalism has seldom been a defining characteristic of the mental health policy agenda. That the descriptive models which narrate the last 130 years of mental health legislation all ultimately share the same assumption indicates that there has been a significant degree of continuity in this area. In many cases reform has been a piecemeal affair which has sought to tackle narrow issues pertaining to the operation of mental health services or the treatment of persons with mental disorders generally. For example, the Mental Health (Discrimination) Act 2013 abolished the power to disqualify members of Parliament on grounds of mental illness.63 It also amended the rules governing jurors’ eligibility for service by removing the blanket ban which had precluded all persons with mental disorders from sitting on juries.64 Another example is the Police and Crime Act 2017, which extended the powers of sections 135 and 136 of the MHA,65 redefined what can qualify as a ‘place of safety’,66 and specified a ‘permitted period of detention’.67 These piecemeal changes have done nothing to modify the essential purpose of the MHA; rather, they have amended ancillary components of the framework’s many moving parts. It is comparatively rare that reform should relocate determinative responsibility from the law to mental health professionals, or vice versa, in the same way that the original 1983 Act achieved. This sort of reform tends to be much more structurally significant, such as the 2007 Act’s introduction of a simpler definition of ‘mental disorder’, yet still occurs within the accepted parameters of the broader purpose of mental health law. Given that there is no sign that compliance with the CRPD is likely to happen soon, it is obvious that there is in fact very little scope for radicalism. Although stakeholders like the Mental Health Alliance suggest that the current MHA is unfit for purpose, none of their proposals for reform envisage a fundamentally different statutory framework. Indeed, some of the most recent proposals would leave the 2007 Act’s principal reforms untouched. It would seem that the priority for proponents of reform is to implement changes that will improve the operation of the current framework, as opposed to redesigning or dismantling its essential mechanics.

63

Mental Health (Discrimination) Act 2013, s 1. ibid, s 2; see also, Juries Act 1974, s 1. 65 Police and Crime Act 2017, s 80. 66 ibid, s 81. 67 ibid, s 82. 64

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This is entirely understandable up to a point: as we saw in chapter six, there is reason to doubt that laws governing civil commitment achieve their policy objectives or meaningfully constrain professional decision-making practices. The prioritisation of the law’s procedural protections, rather than its substantive mechanics, would therefore seem to be a more fruitful endeavour. Yet what the lack of radicalism suggests is that the trappings of new medicalism—broad, open-textured provisions framed for the purposes of enhancing services’ responsiveness to situations of risk—have quietly become the new normal. They have codified practices which already existed and represent the reality of mental health decision-making in a way that the original 1983 Act, with its legalistic prescriptions, did not. Consequently, what matters for the new reform agenda is to find ways of conferring more procedural rights and entitlements on formal patients to protect them from the worst excesses of new medicalism, while retaining the comparative discretionary freedom that decision-makers enjoy. The aim therefore appears to be to blend the substantive flexibility of new medicalistic admission criteria with the procedural rigidity of new legalism. This dynamic is evident in the Mental Health Alliance’s ‘agenda for reform’. Despite its claim to champion ‘comprehensive reform’ of the MHA, the Alliance’s proposals are in fact decidedly tame.68 Interestingly, the respondents to the Alliance’s survey of persons with experience of mental illness clung to the same irreconcilable positions that significantly narrow the scope for reform in general. On one hand, a majority of them believed that the MHA does not protect the rights of the people who are detained under it.69 It is not clear whether they understood rights in a way that is legally literate; it may be, for example, that the respondents interpreted ‘rights’ in a colloquial, rather than technical, sense. If that is the case, then it is hard to say how much value one can place on this response—it may be that a majority of respondents simply resented their own formal care and treatment experiences and interpreted this as a violation of their rights. Leaving these definitional questions to one side and assuming at face value that ‘rights’ in this case refers to the CRPD’s rendition of them, the responses to the Alliance’s survey might suggest that there is in fact a case for truly radical reform. This certainly seems to have been the Alliance’s thinking: it said that ‘urgent legislative steps should be taken to address mechanisms within the Mental Health Act that are discriminatory and have serious consequences’.70 On the other hand, as we have already seen, a majority of the respondents also accepted the proposition that on some occasions the restriction of a mentally disordered person’s human rights is necessary. It is difficult to reconcile these positions. It may be that the respondents were more likely to consider personal experience of civil commitment as a violation of their human rights but regarded the abstract notion of it as a pragmatic necessity. In any event, this hardly 68

Mental Health Alliance (n 18) 3. ibid, 10. 70 ibid, 16. 69

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matters: the key point is that once civil commitment simultaneously becomes a violation of human rights and yet a practical necessity, the prospect for a radical departure from the MHA disappears. According to the Alliance, its research makes ‘a powerful and considered case for the Government to carry out a comprehensive review of the Mental Health Act’.71 Nevertheless, what it proposed can hardly be considered the product of a comprehensive reform agenda. The Alliance suggested that advance decisions to refuse treatment should be valid for formal patients and that they should have the right to name their own nearest relative.72 Beyond that, it says nothing about the MHA’s admission criteria, involuntary treatment, Supervised Community Treatment, or any other of the Act’s principal mechanisms. As we have already seen, changes to the MHA’s nearest relative provisions were part of the 2007 Act’s reforms and, for reasons that we addressed in chapter three, cannot fairly be regarded as significant. That the Alliance regards further amendments to the MHA’s nearest relative provisions to be an example of a comprehensive reform says much about the limitations within which reform debates now play out. It did go on to list other issues mentioned by the respondents to its survey, which included the need for the inclusion of ‘a strong voice for individuals and families/friends, access to treatment, choice of treatment and right to refuse, choice of treatment location, information, wider/ holistic support around social care, housing, and money’.73 It is true that some of these changes would constitute a radical departure for the MHA: that formal patients might enjoy the right to refuse treatment would transform the compulsory powers into something very different from the way they are now. Yet the Alliance’s proposals where these reforms are concerned are particularly vague. And, in any case, these other issues do not necessarily pertain to the wording of mental health law and would therefore not require a ‘comprehensive’ rewriting of the MHA at all. Although the Alliance’s proposals would certainly add new rights and entitlements, they would almost certainly leave much of the current MHA intact. Similarly, modest ambitions were on display in the Department of Health’s No Voice Unheard, No Right Ignored consultation. Although it articulated what it described as a ‘clear’ vision for all disabled people ‘to have a right to lead their life like anyone else’, the Department of Health explicitly stated that its proposals would not amount to the displacement of the MHA’s essential function.74 Perhaps its most significant suggestions included a proposal to change the definition of ‘mental disorder’ under the MHA so as to alter the care and treatment experiences of persons with learning disabilities and autism.75 It also suggested that a ‘single gateway’ for compulsory admission replace sections 2 and 3 of the MHA, thereby

71

ibid, 18. ibid, 16. 73 ibid. 74 Department of Health, Government Response to No Voice Unheard (n 43) [1.27]. 75 ibid, [3.8]. 72

After the Mental Health Act: Where Next? 265

abolishing the distinction between admission for assessment and treatment.76 Beyond this, the Department of Health’s proposals were rather less ambitious. They were largely geared towards the improvement of the operation of mental health services more broadly. For example, the Department of Health suggested that decision-makers ‘consider and record whether assessment and treatment could be provided without the person being detained’.77 This would not change the MHA’s admission criteria; rather, it would introduce a new administrative procedure to ensure that the criteria are properly applied. In a similar vein, it suggested that formal patients should be able to take steps to ensure that their wishes and feelings are taken into account and that ‘everyone [should] receive discharge and after-care planning from the point when the patient is admitted to hospital’.78 Although it did suggest changes in relation to renewal and discharge decisions, these were of a similarly bureaucratic nature and would do nothing to alter the MHA’s mechanics.79 The Department of Health’s proposals to amend the MHA’s definition of ‘mental disorder’ and admission criteria received ‘a very mixed response’ during its consultation exercise.80 It subsequently announced its decision not to pursue them. The remainder of its proposals would amount merely to tinkering with the existing framework to extend the reach of the Code of Practice to Clinical Commissioning Groups, create an opt-out mechanism for the system of Independent Mental Health Advocates, and amend the nearest relative provisions.81 Not only would these proposals retain the 2007 Act’s reforms, but they would seek actively to build on them. * It is impossible to predict what the future may hold for mental health law in England, and for the MHA in particular. But for all the law’s shortcomings as a vehicle for policy change and a map of professional practice, it seems that the current MHA may have much more life in it than the wider policy context might imply. The new medicalist moment may not, therefore, be short-lived. It remains to be seen whether there is any way of achieving a reconciliation of two seemingly conflicting propositions: that people with mental disorders should be treated equally and without discrimination, and that the law should provide a basis for civil commitment and involuntary treatment. While the quixotic search for such reconciliation goes on, it may be that the current MHA and its new medicalistic underpinnings will inform English mental health law and policy for some time to come.

76

ibid, [3.12]. ibid, [1.25]. 78 ibid, [2.21], [2.26]. 79 ibid, [2.28]. 80 Department of Health, No Voice Unheard, No Right Ignored (n 55) [81], [83]. 81 ibid, [16]. 77

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Conclusions There was nothing inevitable about the MHA 2007. To claim that it was somehow the corollary of the evolution of mental health law would be wrong. What is true is that the MHA 2007 is worthy of its own descriptive model. But there is much about new medicalism that might understandably worry those who would prefer to see that the coercive potential of the MHA’s compulsory powers was kept under tighter constraints. Its preference for open-textured admission criteria and preoccupation with risk do little to promote legal certainty, raise difficult human rights questions, and harbour a genuine potential for arbitrariness. In this way it is the polar opposite of a framework commensurate with the exactitudes of a liberal legal order. It is easy to see why reforms which fit into the new medicalist mould could provoke misgivings among service users; their friends, families and carers; mental health professionals; and lawyers. Yet in spite of the obvious potential for arbitrary or excessive decision-making in the post-2007 Act era, this chapter has shown that it is important to retain some perspective. For all the lawyerly concern about the increased coercive potential of mental health law in England, the evidence is that nothing much has changed since Parliament amended the MHA. As we saw in the previous chapter, there is little evidence to suggest that the 2007 Act’s reforms have jeopardised liberty or facilitated control in the way that many contemporary observers might have anticipated. If the 2007 Act’s reforms arouse any concern, it should be about the doubtful determinative capacity of mental health law generally. In any event, there are signs that the new medicalist ‘moment’ may be drawing to a close: the policy emphasis on risk of 10 years ago has given way to new priorities, such as quality improvement in mental health services, de-stigmatisation and non-discrimination, and the elevation of mental illness as a public health concern. The once indissoluble link between mental illness and coercion no longer holds; instead, the improvement of mental health outcomes is increasingly regarded as being contingent on other things. This change in emphasis is neatly illustrated by the inclusion of the promotion of mental health and wellbeing in the UN’s Sustainable Development Goals for 2016–2030.82 As part of this, the UN has set a global target to reduce by one-third the premature mortality from non-communicable diseases through prevention and treatment programmes.83 Institutionalisation, coercion and control seemingly have no part to play in the improvement of global mental health outcomes. Instead, what matters is prevention and better care and treatment. Not only is it now hard to imagine, 10 years on, that the 2007 Act’s reforms would

82 UNGA Res 70/1 Transforming Our World: the 2030 Agenda for Sustainable Development (25 December 2015) UN Doc A/RES/70/1. 83 ibid, [3.4].

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reach the statute book today, it is clear that mental health law itself is seen as a rather limited vehicle for change. Although it may be true that the new medicalist ‘moment’ may be ending, what is much less obvious is what is likely to replace it. The scope for reform is far more limited than some may like to admit. While the CRPD offers a compelling blueprint for radical reform, it is hard to imagine that policy-makers in England will incorporate its non-discriminatory approach any time soon. The Department of Health has paid scant regard to the CRPD of late, despite attempts to formulate new policy initiatives which fall squarely within its ambit. Although notionally bound to do so, the UK Government does not yet seem willing to embrace the principles of equality and non-discrimination to anywhere near the extent that the architects of the CRPD might like. Even the Mental Health Alliance has published evidence which shows that a majority of service users and their carers, family and friends regard the power to ‘section’ patients as a necessary expedient. Rightly or wrongly, civil commitment continues to be regarded as an important practical component of mental health law in England. If a CRPD-compliant framework is not yet a viable destination and civil commitment remains an important feature of mental health law, the scope for reform seems unavoidably narrow. If we ask what it is that we would like the law to achieve, the answer is likely to be much the same as it does already. None of the recent proposals to amend the MHA would do anything to signal the wholesale repudiation of new medicalism. Instead, many of the reform proposals tinker with the MHA’s procedural functions while seeking to retain the 2007 Act’s principal reforms; in some cases, they would even build on them. While the policy context may have shifted significantly in the last decade, the legal consequences are nowhere near as radical. The most likely outcome of any reform in the near future would be an attempted blending of new medicalistic admission criteria with new legalistic rights and entitlements. New medicalism may therefore retain its explanatory currency for much longer than anyone observing the introduction of the MHA 2007 10 years ago would have expected.

Conclusions Few people celebrated when the Mental Health Act (MHA) 2007 reached the statute book. By retaining much of the original 1983 Act’s mechanics and prioritising risk as the ‘mischief ’ it sought to tackle, the 2007 Act let down the many proponents of a more radical alternative. After a 10-year reform process, the result was a messy compromise that pleased no one and fell far short of reimagining the design and delivery of mental health services for the twenty-first century. With so many continuities from the original 1983 Act, it is easy to see why the 2007 Act is not widely regarded as the embodiment of a unique, stand-alone moment in the history of mental health law in England. This book has sought to challenge that assessment by revisiting the legacy of the 2007 Act on the tenth anniversary of its coming into force. What it has found is that its amendments have contributed to a statutory framework which defies easy categorisation within the established descriptive models in this field. Although the 2007 Act’s principal reforms amount to a repudiation of the original 1983 Act’s legalism, they cannot be said to comport with medicalism. Instead of expanding the determinative significance of mental health decision-makers’ professional discretion for the purposes of improving health outcomes, the 2007 Act did so in the name of enhancing mental health services’ capacity to respond to risk. In doing so, the amended MHA locates its policy emphasis in a different place from its predecessors. The combination of a retreat from legalism and a policy emphasis on risk has led to a Mental Health Act which sits awkwardly within the existing paradigms of ‘legalism’, ‘medicalism’ and ‘new legalism’. For that reason, this book has made the case for the recognition of ‘new medicalism’ as a distinct descriptive model, and for the 2007 Act’s categorisation within it. The central role that considerations of risk play in MHA decision-making processes is nothing new. Even under the original 1983 Act, the concept of risk always was the fulcrum around which the civil commitment powers turned. And it has always been profoundly problematic: ‘risk’ is ill-defined, poorly understood, and its assessment ultimately depends on methodologically dubious processes. This vacuum of certainty means that considerations of risk may turn on the ‘tacit knowledge’ of professional decision-makers. That a person’s liberty can depend on such intrinsically uncertain practices hardly inspires confidence in the robustness and reliability of MHA decision-making processes. What makes this even more worrying in the post-2007 Act era is that a series of looser, more open-textured provisions has been grafted onto the original 1983 Act’s riskcentric framework. These include a simpler definition of ‘mental disorder’, the

Conclusions 269

‘appropriate treatment’ test, and expanded decision-making powers for mental health professionals. The law’s ability to prevent arbitrary or excessive deployments of the compulsory powers has therefore been substantially diminished. It is for this reason that one might anticipate that the 2007 Act’s principal reforms have jeopardised individual liberty and facilitated social control. If the rationale for new medicalism was to make it easier for mental health services to respond to situations of risk, then its consequence must surely be an increase in instances of involuntary care and treatment. Why risk became such a compelling policy priority before the introduction of the 2007 Act is rather puzzling. All the evidence suggests that the risks of harm associated with mental disorders, though genuine, are overblown. While it may be that we are at a greater risk of mental illness, there is nothing to suggest that the risks of harm have intensified in a similar fashion over time. Instead, it seems that the hazards associated with mental illnesses, such as the risks of violence, selfharm, self-neglect, abuse, and exploitation, are simply constructed in a way that lends them a greater priority than an empirical enquiry might allow. It is this tendency which allows us to locate new medicalism against the backdrop of Michel Foucault’s governmentality thesis. The 2007 Act’s reforms were not therefore about improving health outcomes; rather, they were about enhancing a ‘disciplinary’ mechanism of an instrument of ‘social control’. Although this may sound rather totalitarian, the way that risk operates within the rubric of the MHA’s compulsory powers provides a neat illustration of the dynamic that Foucault described and consequently provides a sound theoretical foundation for new medicalism. All this raises important human rights questions. If the 2007 Act’s reforms have made it easier to bring people within the scope of the MHA’s compulsory powers on the questionable basis of an assessment of their risk, surely it follows that new medicalism jeopardises the right to liberty? In chapter five, we saw that the answer to this is rather equivocal. There is nothing about the amended MHA which contravenes the European Convention on Human Right’s (ECHR) rendition of the right to liberty. Even the inclusion of looser admission criteria which carry a clear potential for arbitrary deprivations of liberty would seem unlikely to trigger any objections from the ECHR. The difficulty lies with the UN Convention on the Rights of Persons with Disabilities (CRPD) which, we have seen, applies to ‘psychosocial’ disabilities, including mental disorders. The UK has signed and ratified the CRPD and is therefore notionally bound to align its domestic legal framework in accordance with both its provisions and its non-discriminatory spirit. This realignment would require the abolition of any laws which operate explicitly on the basis of disability—a duty which would necessitate the repeal of the MHA in its present form. New medicalism is therefore antithetical to the CRPD and the MHA is in continuing violation of it. This is not to say that new medicalism is alone in this respect; its legalistic, medicalistic and new legalistic analogues would also have found themselves similarly condemned in the post-CRPD era. The very idea of civil commitment is increasingly anachronistic.

270 Conclusions

Human rights considerations notwithstanding, there has been a steady growth in the number of formal patients in England in the 10 years since the MHA was amended. This adds some weight to the argument that the looser prescriptions of new medicalism have contributed to more coercive practices. More people are now subject to the compulsory powers each year than at any point over the last 30 years. There is no doubt that the 2007 Act’s introduction has coincided with these trends. Yet correlation does not imply causation. The longer-term trends have seemed impervious to legislative change, and there was no sudden spike or acceleration in the number or rate of admissions at the time of the 2007 Act’s enactment. This might lead us to conclude that the 2007 Act was particularly ineffective, but, as we have seen, the failure of statutory reform to register in the admission statistics is in no way unique. Evidence from the UK and other jurisdictions suggests that reforms to legal frameworks governing civil commitment and involuntary treatment tend to have a rather limited impact. More broadly, it suggests that mental health law may lack the determinative potential which it is so often assumed to possess. As we have seen, there is plenty of evidence to suggest that mental health laws rarely fulfil their policy objectives and serve as a poor determiner of professional practices. In this way, the 2007 Act further vindicates Paul Appelbaum’s contention that agonising over the scope and content of mental health laws is futile: the wording of the law makes vanishingly little difference in practice. We are therefore faced with a mental health statute which has made little impact in practice, but whose default position poses few legalistic obstacles to involuntary care and treatment. The law therefore provides the space for practitioners to deploy the same ‘tacit knowledge’ on which they rely for the purposes of assessing risk. Although this may ensure that decision-making is broadly consistent in the aggregate, it highlights the law’s weakness when it comes to explicating the bases on which deprivations of liberty may be justified. Such uncertainty may be acceptable in medical law more broadly; in mental health law, where a person’s liberty is at stake, it is profoundly worrying. There was nothing inevitable about the 2007 Act. Although it may be tempting to see new medicalism as the logical corollary of new legalism, or as civil commitment’s last stand in an age defined by non-discrimination, the reality is that the 2007 Act could have been very different. It might, for example, have had an even greater coercive potential; alternatively, it might have radically altered the dynamics of civil commitment. What is clear is that against the backdrop of changing contemporary mores, it seems unlikely that the 2007 Act would have reached the statute book were it before Parliament in 2018. This is a powerful testament to the shifting policy terrain which defines the legal landscape. But while it may be obvious that we no longer live in a new medicalist ‘moment’, what is less clear is what the future direction of travel might be. Although the non-discriminatory ethos of the CRPD might suggest that civil commitment and involuntary treatment are now tired anachronisms, a disability-neutral framework would still raise significant practical challenges. When we reflect on what it is that we would like mental

Conclusions 271

health laws to achieve, it is clear that the scope for reform is surprisingly narrow. For the most part, proponents of change seek merely to tinker at the margins rather than engage in more significant, structural reforms. This suggests that the amended MHA may not be a stopgap on the journey to a CRPD-compliant future; instead, it may represent the template for English mental health law for the foreseeable future. Far from being the shortest lived of all the descriptive models, new medicalism may retain its explanatory currency for some time to come.

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INDEX

absence, leave of 36, 39, 41, 112 abuse 49, 53, 62, 269 accountability and blame 137, 144, 147–50 Act of 1744 91–2 actuarial approach 56, 58, 60–2, 157 acute adult care independent commission 250 inpatient care, statistics on 213 Adams, J 45 administrative procedure 37–8, 265 Adshead, G 55–6 Adult Psychiatry Morbidity Survey 141, 152–3 advance decisions 34–5, 264 adverse incidents, investigation of 62, 148–50 affective disorders 26 Affleck, GG 234 after-care 147, 208–9, 265 Ager, JW 238 aggressive or seriously irresponsible conduct, learning difficulties associated with 27, 110 Alaszewski, A 45, 59, 147–8 Alaszewski, H 59 alcohol or drug dependency dual diagnosis 27 future-proofing 144 liberty and security, right to 167 mental disorder, definition of 110 MHA 1983 97 risk factors 53, 60, 74–5 statistics 142 Allderidge, P 91 Alzheimer’s disease 18 Ambtmann, R 58–9 AMHPs see approved mental health professionals (AMHPs) ancillary treatments 32–3 anti-depressants 15, 34 anti-psychiatry literature 96–7 anti-psychotics 32, 34, 93 antisocial personality disorder 171 anxiety 136, 140, 142, 148–50 Appelbaum, Paul 229–30, 239, 247–8, 270 appropriate treatment test 2, 109, 111–12, 121, 158, 246 approved clinicians (ACs) 115–16, 118–19, 122–4, 227

approved mental health professionals (AMHPs) 28, 31, 43, 114–15 arbitrariness Disabilities Convention (UN) 256 liberty and security, right to 11, 168–70, 172–3, 191 medical professionals, redefinition of roles of 123 new medicalism 246–7, 266 risk 9–10, 85 artificial nutrition and hydration (ANH) 32 assessment, admission for assessment, definition of 27 conversions, increase in 200–1 discharge 38 discretion 200 emergencies 27, 29 gateway, as 199, 201–2 risk formula 28 statistics 199–202, 227 time limits 28 treatment and assessment, abolition of distinction between admission for 265 asylums 92–3, 97 Atkinson, L 228 Australia 181 authoritarianism 193–4 autistic spectrum disorders 27, 264 autonomy 2, 16, 40, 104, 128, 254–5, 259 availability of treatment 28, 113 Bagby, RM 226, 228, 238 Barnes, M 227 barring orders and reports 37, 39 Bartlett, P 25–6, 176, 182–3 Bean, P 232–3, 237 Beck Hopelessness Scale (BHS) 57 Beck, Ulrich 10–11, 131–9, 143–4, 147, 150–1, 153, 156, 158–9 behavioural disorders 27 Being Black, Going Crazy? (television programme) 249 Bell, S 177 Berman, JJ 225 best interests test 14, 18, 22, 23–4, 30, 254 Beynon, Sarah, case of 103 biopolitics 153

290 Index bipolar disorder 140, 142 blame 137, 144, 147–50 Blom-Cooper, Louis 148 blood transfusions by Jehovah’s Witnesses, refusal of 33 Bournewood litigation 19–21, 163–4 Bowers, RV 138 broken-leg problem 60–1 Brown, J 88–9 Brown, P 193 Buchanan, A 60–1 Butlin, Fraser 177, 188 Bynoe, I 235–6 Caesarean sections 32–3 Caldicott, F 92 California’s Lanterman-Petris-Short (LPS) Act 1969 224–5 bargaining down criteria for admission 224 habeas corpus petitions, number of 224 legalism 224–5 legislative intent and judicial and administrative interpretation, divergence between 224 Campbell, T 104–5 Canada 226–7, 232, 239 capacity see mental capacity; Mental Capacity Act 2005 Care Programme Approach (CPA) Risk Screen 56 Care Quality Commission (CQC) 198 Carnwath, Robert (Lord Carnwath) 189 Castel, R 157 catastrophes 143, 156 categories of mental disorder, abolition of 107–8 causation correlation and causation 198, 209–14, 219–20, 241, 270 decision-making, extent to which legislation influences 234 impact of MHA 2007 2–3, 209–14, 219–20, 241, 270 inverted notions of causality 135, 143 reform 226 cautiousness 135 Centre for Social Justice (CSJ) 144 certainty see legal certainty certification 28, 33, 34–5 Cheshire West case 22–3, 189, 206–7, 210 Cheung, KD 226 Chief Medical Officer (CMO) 141, 151 children and young people Detention and Training Orders (DTOs) 260–1 ECT, consent to 34 media 249

preventive strategies 145 Structured Assessment of Violent Risk in Youth (SAVRY) 57 chlorpromazine 93 Christianity 132, 137 civil and political rights 161, 174, 176 civil commitment/formal patients 1–2, 6–9, 15, 25–39, 40 see also assessment, admission for; criteria for compulsory admissions; increase in compulsory admissions; treatment, admission for abolition 4, 12, 254, 256, 259, 261–2 already in hospital, applications in respect of patients 27, 29 alternative framework 257 consent 14, 26, 33, 40 core treatments 32–3 decision-making, extent to which legislation influences 231–4 definition 25–6 discharge 35–9 determinative potential of legislation 195, 224–42, 266 Disabilities Convention (UN) 4, 162, 177–87, 254–62, 267 discretion 2, 194, 200, 224 formal arrangements, definition of 14 governmentality 156, 158 human rights 160–2, 263–4 improper bases, commitment on 237–9, 241 informal patients, boundary with 9, 40, 205, 228 liberty and security, right to 161–8, 171, 173, 190–1 nearest relatives, applications by 28 necessity 28–9, 53 new medicalism 10, 242–3, 263–4 number of people committed and legislative strictness 193 organising principle 219 physical disabilities 255 proportionality 80 psychiatrists 122–3 public safety 8 qualifying requirements 23–4 recommendations of two registered medical practitioners 28–9 reform 121, 224–31 restrictive criteria 160 risk 2, 6, 8, 9–10, 14, 26, 28–9, 139, 268 safeguards 33–4 search and remove person, warrants to 30–1 single gateway for compulsory admission, replacement of 264–5 Supervised Community Treatment (SCT) 203 time limits 28, 29, 40

Index 291 vetoes on admission 115 voluntary patients distinguished 9 civil partners 110, 119 civil rights movement 97, 128 civil society organisations (CSOs) 175 civilised body, governmental priorities as 155 Clarke, B 91 climate change 133, 139 Clinical Commissioning Groups (CCGs) 140–1, 265 clinical judgment 55–6 Clinical Outcomes in Routine Evaluation (CORE) 56, 58 Close, Graham, case of 103 Clunis, Christopher, case of 102–3, 149–50 Cocozza, J 99 Code of Practice (MHA) 26–7, 38, 50–2, 109, 111, 116–17, 265 communicate decisions, ability to 18 communitarianism 3, 259 Community Treatment Orders (CTOs) 112–13, 122, 215 2008–09 to 2015–16, CTOs issued between 204 discharges 36, 38, 112–13, 122, 204–5 duration 112, 222 Mental Health Tribunals (MHT), referrals to 118 resources 222–3 revocation 113 compulsory powers see civil commitment/ formal patients confidentiality 80 Connecticut, United States 234 connoisseurship 81–5, 218–19 consent civil commitment/formal patients 14, 26, 33–5, 40 DOLS 22, 25 ECT 34 informal patients 17–20 medical treatment 14, 17–20, 26, 33–5, 40, 98 new legalism 98 risk 50 Supervised Community Treatment (SCT) 114 withdrawal 114 consequentialism 2, 98, 129 Conservatives 212, 250 constructivism 154 conversions, statistics on 200–1 Cook, JA 237–8 core treatments 32–3 correlation and causation 198, 209–14, 219–20, 241, 270 County Asylum Acts 1809, 1811 and 1819 92 Court of Protection (CoP) 33, 35, 112

criminal proceedings 7–8, 42, 77–9 criteria for compulsory admissions administrative procedure 265 California’s Lanterman-Petris-Short (LPS) Act 1969 224 dangerousness 49 discharge 35–9, 79 impact of MHA 2007 220–1, 240–1 liberty and security, right to 173 open-ended criteria 266 proper application of procedure 265 reform 8–9, 226–31, 265 risk 43, 49–50, 52, 56, 78, 107 strict statutory criteria 88–9 Supervised Community Treatment (SCT) 113, 114–15 culture 46, 147–50, 154–5, 248–9, 250–1 dangerousness dangerous and severely personality disordered patients (DSPD) 106 governmentality 156–7 improper bases, commitment on 237–8 media 249 national security 156 reform 228–9 risk 49, 104, 106, 146, 217 Daw, R 194 Dawes, RM 60–1 debt and poverty 139 decision-making actuarial approach 157 administrative exercise, as 157 approved clinicians (ACs) 116 capability model 255–6 communicate decisions, ability to 18 experts 98 impaired decision-making 6, 108 knowledge of law, accuracy of decisionmakers’ (internal aspect) 234–6, 239–40, 241 legislation influences decision-making, extent to which 220, 231–40 application of law by decision-makers (external aspect) 234, 236–40, 241 knowledge of law 234–6, 239–40, 241 mental capacity 17–18 precautionary principle 135 quasi-judicial capacity, acting in a 72–3 reasons 77–8, 84 retention of information 18 tutelary relationships, interconnected 198–9, 241 understand information relevant to decision, ability to 18 use or weigh information as part of decisionmaking process, ability to 18

292 Index Declaration on the Rights of Disabled Persons (UN) 174 Declaration on the Rights of Mentally Retarded Persons (UN General Assembly) 178 declarations of incompatibility 163–5, 255 defensiveness 61–2, 134, 137, 148, 150 deference to medical profession 124–5 definition of mental disorder see mental disorder, definition of delays 29 delusional disorders 26, 32, 60 dementia 18 democracy 134, 139 Denney, D 131–2, 146, 156–7 Department of Health (DoH) 215–16 Modernising Mental Health Services 245 No Health Without Medical Health 145 No Voice Unheard, No Right Ignored 264–5 risk 52, 103–7 depressive disorders 15, 34, 69–70, 140, 142, 186–7, 254 Deprivation of Liberty Safeguards (DOLS) 14, 20–5, 205–7, 214, 215, 241 age 23–4 applications, number of 206 authorisations 21–5, 205–6 best interests test 22, 23–4 care and treatment arrangements 21–2 challenging detention, provision of means of 22 Cheshire West case 22–3, 189, 206–7, 210 complete and effective control 22–3 consent 22, 25 continuous supervision and control 22–3 criteria for deprivation 22, 23–4 deprivation of liberty, definition of 23 Disabilities Convention (UN) 183 hospital treatment regime 24 interplay with MHA 2007 205–7 Law Commission 21 Liberty Protection Safeguards scheme, replacement with 21 Mental Capacity Act 2005 14, 20–5 MHA 1983, relationship with 23–5 necessity 24 no refusals requirement 23–4 number of applications and authorisations 23 objections or resistance to deprivation 21, 22 qualifying requirements 23–4 risk 25, 50 standard authorisations 21–2, 24–5 statistics 23, 196, 205–7, 210, 214 supervision, patients subject to 22–4 tutelary relationships, interconnected 199 urgent authorisations 21–2 when patients are deprived of their liberty 22–3

descriptive models 3–4, 182–3, 185, 266 MHA 1983 98 new medicalism 89–90, 98, 123–7, 129, 243, 250, 268, 271 Dershowitz, A 231–2 Detention and Training Orders (DTOs) 260–1 determinism 154, 194, 224–42, 266, 270 development of a mental disorder, risk of 11, 131, 132–53 diagnostics, improvements in 214 diminished responsibility 77–8 Disabilities Convention (UN) 3, 4, 6, 174–92 background 174–7 civil commitment/formal patients 4, 162, 177–87, 254–62, 267 deprivation of care and treatment 254–9 disability and disorder, difference between 185 disability, definition of 179, 185, 255 disability formula 162 entry into force 175 equality and non-discrimination 175–86, 189, 191, 254, 256–61, 267, 269–71 European Convention on Human Rights (ECHR) 11–12, 185, 187–9, 191, 255, 260 experts by experience 258, 260 historicism 252–3 impairment and disability, confusion between 189 long-term impairments 179, 185–6 medicalism 183, 269 mental capacity 183, 254–5 MHA 1983 188–9 monitoring and enforcement 177 neutrality standard 181, 183, 186, 191, 255–6, 270 new legalism 183, 192 new medicalism 243–4, 263 Optional Protocol 177 parity of esteem 186 participation of persons with disabilities 175–6, 186 physical disabilities 179–80, 185–7, 255–7 policy 182, 189, 258, 267 positive rights 182 ratification 162, 177, 184, 192 refusal of treatment 254–6 replacement of MHA 2007 254–62 risk 178–9, 183, 191, 254, 259–60 subject-centric approach 175 universalism 176, 177, 188 disability and disorder, difference between 185 disability, definition of 179, 185, 255 Disabled People’s Organisations (DPOs) 175 discharge of formal patients 35–9 absolute discharge 113 after-care 147, 208–9

Index 293 budgets 209 Community Treatment Orders (CTOs) 36, 38, 204–5 criteria 35–9, 79 expiry of authority 35, 36–7 future date, discharge on a 39 grounds for continued detention 38 guardianship orders 36, 37–9 hospital managers, orders of 35, 37–8 Mental Health Tribunal (MHT) 35, 38–9, 63, 207 nearest relatives 35, 37–9 procedure 37–8 relevant period 38–9 renewal of detention 36–7, 265 responsible clinicians, orders of 35–6, 37, 39 reviews 38 section discharge distinguished from discharge from hospital 36 statistics 207–9, 214 Supervised Community Treatment (SCT) 39, 112–13, 122 time limits 35, 36–8 discipline 131–2, 156, 269 discretion civil commitment/formal patients 2, 194, 224 compulsory powers 200 Disabilities Convention (UN) 189 enforceable rights, access to services based on 97 experts 43 impact of MHA 2007 194 impaired decision-making 108 knowledge of law, accuracy of decision-makers’ 235 legalism 97, 125, 128, 252 liberty and security, right to 166–7 medicalism 88, 91, 124–5, 166, 246 medical professionals, redefinition of roles of 127 Mental Health Tribunal (MHT) 38–9, 118 natural justice 235 new legalism 89, 108 new medicalism 88–9, 91, 128, 189, 263 new professional discretion/ neo-paternalism 127 reform 227 removal of discretion 194, 200 risk 56, 108, 110, 218, 268 discrimination see equality and non-discrimination diseases, aetiology of 154 District of Columbia, United States 234 Dolan, M 56 DOLS see Deprivation of Liberty Safeguards (DOLS) Don’t Call Me Crazy (television programme) 249

Douglas, M 46–7, 137 Doyle, M 56 drivers for change for mental health biographic characteristics 144 household characteristics 144 societal characteristics 144 drugs see alcohol or drug dependency; medication Durham, ML 227–8 Eastman, N 233–4 eating disorders 27 Ebbesen, EB 234 economic development 139 economic costs 131 economic policy 139 Edward I, King of England 91 electro-convulsive therapy (ECT), safeguards for 34–5, 109, 118, 121, 124 emergencies 21–2, 27, 29, 49 end of nature and tradition 133, 138 enforceable rights, access to services based on 97 Ennis, BJ 58 entitlement, ideology of 97–8 epidemiological risk 154 equal recognition before the law, right to 179–80 equality and non-discrimination 3, 6, 250, 256–62 civil commitment/formal patients 26 Disabilities Convention 175–86, 189, 191, 254, 256–61, 267, 269–71 liberty and security, right to 166, 190 Mental Health (Discrimination) Act 2013 262 racism 53, 215 risk 53, 104, 105–7, 109 European Convention on Human Rights (ECHR) and new medicalism 161–74 see also liberty and security, right to (ECHR) Bournewood litigation 163–4 civil and political rights 161 declarations of incompatibility 163–5, 255 Disabilities Convention 11–12, 185, 187–9, 191, 255, 260 European Court of Human Rights, jurisprudence of 161–2, 167–73, 188, 190 executive acts 164 Human Rights Act 1998 11, 161, 163–5, 190, 255 inhuman or degrading treatment 161, 166 living instrument, as 188 Mental Health Review Tribunal (MHRT) 164 MHA 1983 163–5 nearest relatives, displacement of 164–5 private and family life, right to respect for 164–5

294 Index public bodies 163 remedial orders 164 risk 161–2, 191 European Union (EU) 185 evaluation of impact of Mental Health Act 2007 193–242 amendments made by MHA 2007 214–21, 269 appropriate treatment test 215–16, 219–20, 269 decision-making, extent to which legislation influences 220, 231–40 determinative potential of legislation on compulsory care and treatment 194, 224–40, 241–2, 266 DOLS 205–7, 214, 215, 241 evidence 194, 195–234 external aspect 234, 236–40, 241 initial expectations 215–16 internal aspect 234–40, 241 new medicalism 120–7, 194–5, 215 policy objectives 224–31, 241 statistical evidence 194, 195–214, 216, 223, 240–1 Supervised Community Treatment (SCT) 203–5, 214–16, 221–3, 241 evidence 50–2, 58–60, 70–80, 86, 194, 195–234 executive acts 164 experience 55–6, 81, 84 experts arbitrariness 169–70 decision-making 98, 232 Disabilities Convention 258, 260 discretion 43 experience, by 258, 260 liberty and security, right to 168–70 mental health professionals, redefinition of roles of 219 risk 43, 55–6, 81, 84, 103–9 exploitation 49, 62, 75–6, 269 extended sentences 73–4 fact-finding processes 148 fair trial, right to a 161 false positives 60–1 family breakdown 144 Fazel, S 60 feeble-minded 92–3 Felix, RH 138 Fennell, Phil 165, 173, 179, 187, 194, 198–200, 241 flexibility 124, 219 Florida, reform of mental health law in 228–9 compulsory admissions, decline in 228–9 criteria for commitment 229 dangerousness, degrees of 228–9 Flynn, R 138–9 force-feeding 32

forced-choice dichotomies 57 Foresight Mental Capital and Wellbeing Project 144 formal patients see civil commitment/formal patients Foucault, Michel 11, 131–2, 153–9, 269 Frydman, LL 225 functional test 18 fundamental principles in Code of Practice (MHA), introduction of statement of 109, 116–17 Furedi, F 135 future-proofing 11, 135, 143–6 drivers for change 144 preventive strategies 135, 144–5 reactive approach 144 Future Vision Coalition 144 Gable, L 160 gatekeepers 93 General Medical Council (GMC) 47–8 general practitioners (GPs) 17, 235 Giddens, A 133–4, 138–9 globalisation 133, 135 Glover-Thomas, N 96–7, 221 Goffman, Erving 94–5 Goldinghay, Valerie, case of 103 good administration, risk avoidance as 135 Gooding, P 182 Gostin, Larry 90, 92, 96–7, 124, 160, 178, 246–7 governmentality and risk of harm 153–8, 159 definition 131–2 disciplinary measures 156, 269 institutions and procedures 154–5 MHA 2007 156–8 new medicalism 10–11, 131–2, 153–8 policy 11, 157 qualitative risk 154–5 quantitative risk 154 surveillance 155, 156–7 guardianship 30, 36, 37–9, 41, 119 Gunn, J 151–2 habeas corpus 20, 224 habilitation 111 Hacking, I 154 Hallowe’en costumes 249 Halsbury’s Laws of England 62–3 Hamm, RM 239 Hansard 108 Harker, R 140 Hart, SD 61 Hawley, CJ 57–8 HCR-20 Violence Risk Assessment Guide 57 Heginbotham, C 104–5 Hendriks, A 179 Henry I, Laws of 91

Index 295 Hext, Stephen, case of 103 Hiday, VA 237 Higgins, N 57 historical background modernity 132–3, 134, 138–40, 150–1 new medicalism 10, 88–98, 248 pre-modernity to modernity 132–3, 135, 137–8 risk 44, 86, 132–3, 134–5, 137–40, 150–1 historicism 251–3 Holland, A 235–6 Holloway, F 105 homeostatic approach 136 homicide 62, 148–52, 245 Hood, C 136, 147 hospital managers, duty of 117–18 hospital orders 7–8 Hospital Plan of 1962 (Ministry of Health) 95 House of Commons Health Committee 213, 215, 219–20, 222–3 human rights and new medicalism 11, 160–92, 266 see also Disabilities Convention (UN); European Convention on Human Rights (ECHR) civil and political rights 174, 176 civil commitment/formal patients 160–2, 263–4 ICCPR 174 ICESCR 174, 177 legalism/new legalism 160, 162 medicalism 160–2 risk 104–6, 109 same-sex attraction, pathologising 160 social, economic and cultural rights 162, 174, 176, 177 totalitarian dictatorships, preserving 160 UN Commissioner for Human Rights (UNCHR) 177 United States, slavery in 160 Universal Declaration on Human Rights (UDHR) 174 Human Rights Act 1998 11, 161, 163–5, 190, 255 Humphreys, M 234–5 Hutchinson, Wayne, case of 102–3 idiots 92–3 ill-treatment 30 imbeciles 92–3 IMHAs see Independent Mental Health Advocates (IMHAs) immoral conduct 97, 110 impact of MHA 2007 see evaluation of impact of Mental Health Act 2007 impairment and disability, confusion between 189 improper bases, commitment on 237–9, 241 incidental iatrogenic effects 54

inconsistency 246–7 increase in compulsory admissions 2–4 assessment, admissions for 199–202 correlation and causation 198, 209–12, 214, 219–20, 270 MHA 2007, increase in admissions due to 194, 195–214, 223, 240–1, 247 other reasons, increase in admissions for 198–202, 212–14 reform 226–30 sickness, increase in 212, 214 social and economic conditions 227 statistics 194, 195–214, 241, 247 stigma, lessening in 212 treatment, admissions for 199–202 independence, maximisation of 117 Independent Mental Health Advocates (IMHAs) definition 119 establishment 109, 119–20 new medicalism 109, 119–20, 121, 124 opt-out mechanism 265 role 120 independent mental health taskforce, priority actions of 250 industrialised labour 139 informal patients 9, 15, 17–25, 40 best interests test 14, 18 Bournewood gap 19–21 challenging detention 20 civil commitment/formal patients, boundary with 9, 40, 228 common law 19–20 consent to medical treatment 17–20 definition 14 DOLS 14, 20–5 functional test 18 knowledge 70 learning disabilities 27 Mental Capacity Act 2005 9, 17–25 necessity 19 statistics 195–6, 200–1 voluntary patients, distinguished from 18–19 information and communications technology (ICT) 133, 139 inhuman or degrading treatment 161, 166 insanity 137–8 institutions cautiousness 135 deinstitutionalisation 94, 98, 238 failings 214 governmentality 154–5 lunatic asylums/madhouses 92–3 medicalism 127–8 public expenditure 143 risk, regulation of 136 social institutions 253

296 Index insulting behaviour, definition of 64 integrated approach 250 integrity, right to 179, 180 Intermediate Risk Assessment and Management Plan (I-RAMP) 56 International Covenant on Civil and Political Rights (ICCPR) 174 International Covenant on Economic, Social and Political Rights (ICESCR) 174, 177 International Disability Caucus (IDC) 175 Internet 139 I-RAMP (Intermediate Risk Assessment and Management Plan) 56 Islam 132, 137 Jehovah’s Witnesses, refusal of blood transfusions by 33 Joint Risk Assessment and Management Plan (J-RAMP) 56 Jones, Kathleen 92–5, 243–4, 251–2 judicial review 20, 63–4, 76–7, 88 jurors, eligibility of 262 Kansas, reform of mental health law in 225 Kayess, R 176 Kelly, Lorraine, case of 103 Kemshall, H 136–7 Keown, P 213 Khaliq, R 176, 179, 187 King’s Fund 216 Kittrie, NN 232 knowledge law, accuracy of decision-makers’ (internal aspect) 234–6, 239–40, 241 risk 9, 44, 81–5 tacit knowledge 9, 44, 81–5, 248 Konecni, VJ 234 Koran 137 Korsakoff ’s syndrome 18 Kyoto Principles 178 Labour Party manifesto 2017 250 new medicalism 245 LaFond, JQ 227–8 Langan, J 52–3, 58 Lawson, A 175, 178 Lawton-Smith, Simon 114, 216 learning disabilities aggressive or seriously irresponsible conduct, associated with 27, 110 definition 27, 110, 264 informal patients 27 voluntary patients 27 least restriction, principle of 117 leave of absence 36, 39, 41, 112 legal certainty Disabilities Convention(UN) 254

liberty and security, right to 169–73, 191 new medicalism 246–7 risk 10, 43–7, 78, 80, 86–7, 219, 266, 270 legalism 1890–1930 92–3 classical legalism 9 decision-making, extent to which legislation influences 232, 241 descriptive model 243 Disabilities Convention (UN) 178, 183, 192, 269 discretion 97, 125, 128, 252 human rights 160, 162 increase in admissions 209 judicial authorities, reception orders granted by 92 judicial determinations, importance given to 92 liberty and security, right to 166, 190 medicalism 2, 90–6, 125, 127–8, 241, 246 MHA 1983 127–8, 227, 268 new medicalism 10, 88–98, 110, 123–8, 130, 246, 252, 268 policy 224–5 reform 224, 226–9, 247 traditional legalism 91, 97, 124, 126–7 legislation, influence of 220, 224–40, 252 less developed countries (LDCs) 142 Lewis, O 184 libertarianism 90–1 liberty and security, right to see liberty and security, right to (ECHR) liberty and security, right to (ECHR) 161–74 arbitrariness 11, 168–70, 172–3, 191 best practice 16 Bournewood gap 19–20 defence to medical professionals 166 Disabilities Convention (UN) 179–80, 191, 257 DOLS 22 equality and non-discrimination 166, 190 informal patients 20–1 legal certainty 169–73, 191 legalism 166, 190 limitations 161, 166 medicalism 161–2, 166–7, 173 mental disorder, definition of 173 new medicalism 161–74, 190, 269 physical disabilities 23 prescribed by law, deprivation as 20, 161, 166–7 procedure, form and content of 166–7 risk 161–2, 169–72 suicide 257 Winterwerp case 167–73, 190 Liberty Protection Safeguards scheme, replacement of DOLS with 21 life, right to 68–70, 161, 257

Index 297 lifestyles 138–9 Lindow, V 52–3 Litwack, TR 58 living alone, persons unable to care for themselves and 30 local areas, effective prevention planning in 146 local authority guardians 25–6 long-term impairments 179, 185–6 Luckey, JW 225 Luhmann, Niklas 42, 133, 135 Lunacy Act 1890 92, 97–8 lunatic asylums 92–3, 97 Lunatics Act 1845 92 Lupton, D 155, 157 McCready, J 239 McSherry, B 160 madhouses 92–3 major depressive disorders (MDD) 254–5 manual handling 66–7 manufactured risks 134, 139 maritime insurance 44 marketing of sweets 249 Martin, BA 226 Martin, FM 95 mechanics of mental health law 9, 14–40 media 249 medical model 115, 116, 122–3, 176, 231–2 medical professionals, redefinition of roles of checks and balances 115, 122 discretion 127 division of competences 115 expansion of proof of professionals 115–16 liberty and security, right to 173 medical model 115, 116, 122–3 new medicalism 88, 109, 115–16, 121, 122–3 non-clinical professionals 115, 116, 122–5 social model 115, 116, 122–3 medical treatment see Supervised Community Treatment (SCT); treatment, admission for; treatment, consent to medicalism see also new medicalism 1930–83 93–6 de-institutionalised care 94, 98 Disabilities Convention (UN) 183, 269 discretion 88, 91, 124–5, 166, 242, 246 drug treatments 93 entitlement, ideology of 98 European Convention on Human Rights (ECHR) 161–2 experts 98 gatekeepers 93 human rights 160–2 legalism 2, 93–6, 125, 127–8 liberty and security, right to 161–2, 166–7, 173 new legalism 243

new medicalism 88–98, 123–4, 127–8, 246, 252, 268 reform 229 revival of medicalism 243 medication anti-depressants 15 anti-psychotics 32, 34, 93 chlorpromazine 93 medicalism 93 psychotropic medicine prescribed by GPs 17 Members of Parliament (MPs), disqualification of 262 mental capacity see also Mental Capacity Act 2005 consent 114 Disabilities Convention (UN) 183, 254–5 refusal of treatment 31–3 risk 259–60 Mental Capacity Act 2005 best interests test 14 Code of Practice (MHA) 117 Disabilities Convention (UN) 183 DOLS 14, 20–5 informal patients 9, 17–25 schedule 20–5 suicide 254 tutelary relationships, interconnected 199 mental defectives 92–3 Mental Deficiency Act 1913 92–3, 248 mental disorder, definition of 216, 219, 264–5, 269 alcohol or drug dependency 27, 110 categories, abolition of 107–8, 110 civil commitment/formal patients 26–7 learning disabilities 110, 264 liberty and security, right to 173 medicalism 94 new medicalism 88, 109, 110, 121–2, 124, 246, 262, 264–59 open-ended definition 110 simplification 2, 107–9, 110, 121, 215 Mental Health Act 1959 94, 96–7, 128 Mental Health Act 1983 23–7, 103–9 alcohol or drug dependency 97 amendments made by MHA 2007 85, 88, 90, 147, 211, 214–21 appropriate treatment test 111 categories of mental disorder 97–8 common law 19–20 descriptive model 98, 243 Disabilities Convention (UN) 188–9 European Convention on Human Rights 163–5 hospital orders 7–8 increase in admissions 216 legalism 127–8, 227, 268 liberty and security, right to 190 mental impairment 110

298 Index new legalism 88–9, 96–8 new medicalism 89, 96–8, 123, 244, 247–8 procedure 35 psychopathic disorder 110 public confidence 128 reform 248 restriction orders 7–8, 77–9 risk formula 121 Scotland 6 severe mental impairment 110 voluntary patients 16–17 Mental Health Alliance (MHA) 193–4, 214–15, 222–3, 250, 260, 262–4, 267 Mental Health (Amendment) Act 1982 97 Mental Health Bills 2002 and 2004 107, 109, 244–5 Mental Health Bulletin 207 Mental Health (Discrimination) Act 2013 262 Mental Health Europe 191 Mental Health Foundation (MHF) 141–2, 152 Mental Health (Patients in the Community) Act 1995 147 mental health professionals, redefinition of roles of 88, 109, 121–3, 269 checks and balances 115, 122 discretion 127 division of competences 115 expansion of pool of professionals 115–16 flexibility 219 medical model 115, 116, 122–3 new medicalism 88, 109, 115–16, 121, 122–3 non-clinical professionals 115, 116, 122–5 social model 115, 116, 122–3 Mental Health Taskforce. Five Year Forward View for Mental Health 145 Mental Health Tribunals (MHTs) 2008–09 and 2016–17, cases received and disposed of between 208 automatic referrals 118 burden of proof, reversal of 164 discharges 35, 38–9, 63, 207 discretion 38–9 evidence that patient is no longer a risk, rejection of 76 executive acts 164 hospital managers, duty of 117–18 judicial review 63–4 liberty and security, right to 164 Mental Health Review Tribunals (MHRTs) 94, 164 must direct discharge, where MHA 39 nearest relatives 117 reasons 77–8 referrals 38, 109, 117–18, 121, 124 risk 63–4, 76–80 should direct discharge, where MHA 39 statistics 207–8

Supervised Community Treatment (SCT) 117–18 time limits 38, 117–18 workload, increase in 207–8 mental illness, definition of 65–6, 105–6 mental impairment 97–8, 110 Mental Treatment Act 1930 93–4, 128 mentally disordered, definition of 110 Mersey NHS Trust 53–4, 56–8, 217–21 Merskey, H 239 Mestrovic, SG 238 Middle Ages 91 MIND 96 Ministry of Justice (MoJ) 207 Minkowitz, T 187 Mitchell, Jason, case of 102–3 Modernising Mental Health Services. Department of Health (DoH) 245 modernity 132–3, 134–5, 137–40, 150–1, 156 Monahan, J 100 Moon, G 102 moral defectives 92–3 Morgan, HP 61 multiple admissions 198, 203 Munro, E 62 Mursell, Martin, case of 102–3 Mythen, G 135, 143, 155–6 National Audit Office (NAO) 140 National Confidential Inquiry into Suicide and Homicide by People with Mental Illness 152 national security 156 natural justice 235 nearest relatives (NRs) acting NRs, appointment by patients of 118–19 barring 37, 48 civil commitment/formal patients 28 dangerousness 49 discharge 35, 38–9 displacement 164–5 guardianship, NR’s objections to 119 independent doctors, instruction of 37 Mental Health Tribunals (MHT), referrals to 117 new rules on appointment 109–10, 118–19, 121, 264 own NRs, nomination of 110, 118–19 private and family life, right to respect for 164–5 reform 265 restrictions 37 risk 49 Nebraska, reform of mental health law in 225–6 necessity civil commitment/formal patients 28–9, 53

Index 299 DOLS 24 informal patients 19 inhuman or degrading treatment 166 risk 42, 53, 55, 80 public safety 80 Supervised Community Treatment (SCT) 114 treatment, admission for 28–9 neglect 30, 49–50, 57–8, 62, 269 negligence 46 neo-paternalism 127 neurosurgery 33 neurotic disorders 27 neutrality standard 181, 183, 186, 191, 270 new legalism Disabilities Convention (UN) 183, 192 discretion 89, 108 historicism 252 human rights 160 new medicalism 88–9, 96–8, 123–5, 252, 268, 270 policy 86–7 new medicalism 3–4, 7, 88–159, 194–5, 215, 242–67 appropriate treatment test 109, 111–12, 121, 246 arbitrariness 246–7, 266 Code of Practice (MHA) 109, 116–17 cultural shift 248–9, 250–1 dangerousness 249 definition 194 descriptive models 89–90, 98, 123–9, 243, 250, 268, 271 development of a mental disorder, risk of 131, 132–53 Disabilities Convention (UN) 243–4, 263 discretion 88–9, 91, 124–5, 128, 166, 246, 263 end of new medicalism 248–53, 266–7, 270 European Convention on Human Rights (ECHR) 161–74 evaluation of MHA 2007 120–7 governmentality 10–11, 131–2, 153–8 historical background 10, 88–98, 248 18th century 91–2 19th century 92–3, 98 1890–1930 92–3 1930–83 93–6 classification 92–3 Middle Ages 91 human rights 11, 160–92, 266 IMHAs, establishment of 109, 119–20, 121, 124 lawyers, concerns for 246–8 legalism 10, 88–98, 110, 123–8, 130, 246, 252, 268 1890–1930 92–3 negative rights of patients 123–4

liberty and security, right to 161–74, 190, 269 management of risk 3 medicalism 88–98, 123–4, 127–8, 243, 246, 252, 268 1930–83 93–6 judicial authority, reduced emphasis on 93 legalism 93–6, 125, 127–8 legislative revolution 93–4 mental disorder, definition of 88, 109, 110, 121–2, 124, 246, 262, 264–59 mental health professionals, redefinition of roles of 88, 109, 115–16, 121, 122–3 MHA 1983 89, 96–8, 103–9, 121, 123, 127–8, 244, 247–8 MHA 2007, reforms in 10, 88–9, 109–27, 193 MHTs, new rules on referrals to 109, 117–18, 121, 124 nearest relatives, new rules on appointment of 109–10, 118–19, 121, 264 new legalism 88–9, 96–8, 123–5, 252, 268, 270 place in history of MHA 2007 244–6 policy 10, 89–92, 120–1, 125–6, 243, 248–9, 265 political context 250–1 radicalism, end of 262–5 reforms in MHA 2007 10, 88–9, 104, 109–28, 193, 246, 250–3, 262–9 replacement of MHA 2007 253–62 rights of patients 123–4 risk prioritisation of 3, 10, 88–90, 98–101, 126–9, 243–7, 259–60, 268 risk society theory 10–11, 131, 132–53, 159 Supervised Community Treatment (SCT) 88, 109, 112–15, 121 theorising risk 10, 130–59 treatability test, substitution of appropriate treatment test for 109, 111–12 violence 269 welfarism 91 NHS Digital 196–7, 206–8 new professional discretion/ neo-paternalism 127 NHS England 7-day NHS 250 equality and non-discrimination 250 expenditure 140–1 independent mental health taskforce, priority actions of 250 integrated approach 250 prevention 145–6 ‘right care, right time, right quality’ 250 No Health Without Medical Health. Department of Health (DoH) 145

300 Index No Voice Unheard, No Right Ignored. Department of Health (DoH) 264–5 non-clinical professionals 115, 116, 122–5 non-discrimination see equality and non-discrimination North Carolina 237–8 Northern Ireland 6–7 nuclear energy 133 nurses AMHPs 115 approved clinicians (ACs) 116, 122–3 prescribed class, of 29 registered first-level nurses 115 psychiatric nurses 43, 116, 123 risk 59 nursing and care 31–2, 111 objections or resistance 21, 22, 50, 114, 177 objectivity 10, 46, 52, 54, 56, 82, 96, 151, 168, 247 observation orders 94 occupational therapists 115 Ontario, Canada 226–7, 239 organic mental disorders 27 the Other 155, 157 Oxford Community Treatment Evaluation Trial (OCTET) 221–3 Page, S 226 paranoid schizophrenia 74–7, 79–80, 149 Parliamentary Public Bill Committees 107 participation 175–6, 186 paternalism 35, 40, 104, 124, 127, 193–4 Peay, J 91, 233–9 pendulum metaphor 243, 251–2 Percy Commission 93–4 Perry, BI 220–1 personality disorders 27, 33, 140, 171 Peters, R 228–9 physical disabilities civil commitment/formal patients 255 Disabilities Convention (UN) 179–80, 185–7, 255–7 discrimination between mental and physical disabilities 26 liberty and security, right to 23 refusal of treatment 32 treatment, admission for 32 Pilgrim, D 49 places of safety 30–1, 215, 262 Plato. The Republic 137–8 Polanyi, Michael 81–7 police constable, removal from a public place by a 31 policy accountability and blame 144, 147–50 Code of Practice (MHA) 117 Community Treatment Orders (CTOs) 222

dangerousness 50 determinative potential of legislation 224–31, 241–2 Disabilities Convention (UN) 182, 189, 258, 267 governmentality 11, 157 historical background 91–2 human rights 160 legislation, effect of 224–31 medicalism 98 new medicalism 10, 89–92, 120–1, 125–6, 243, 248–9, 265 objectives 224–31, 241 proactive and preventive approaches 248 replacement of MHA 2007 253 risk 98–106, 126–31, 135, 246, 269 assessment 57 MHA 1983 42, 50 new medicalism 10, 89–90 regulation 137, 144, 146 social policy 137 society theory 143–50, 159 Supervised Community Treatment (SCT) 203 political objectives 98 Popper, Karl 251–3 poverty 53, 139, 144 precautionary principle 135 predictability 43–4, 57–62, 77, 87 presumption of admission 194 prevalence of mental illness 131, 139–40 prevention 1, 105, 131, 145–6 Disabilities Convention (UN) 181 future-proofing 135, 144–5 liberty and security, right to 170 local areas, planning in 145–6 policy 145, 248 Public Health England. Prevention Concordat Programme for Better Mental Health 145–6 Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care (UN) 178 Prins, H 49, 148 private and family life, right to respect for 164–5 private facilities 195–6 probalistic measures 44–5, 47 professionals see mental health professionals, redefinition of roles of promiscuity 97, 110 proportionality 24, 80, 114 psychiatric nurses 43, 116, 123 psychiatric units in hospitals, lack of capacity in 213 psychiatrists 122–3, 234–5, 237 psychiatry 48, 57, 58–9, 156–8 psychological distress 256–7

Index 301 psychologists 115, 116, 122–3 psychopathic disorders 65, 94, 97–8, 110, 171 psychosis 32, 34, 93, 140, 151–2, 222, 255 psychosocial disability 179, 180, 187, 269 psychotherapy 15 psychotropic medicine prescribed by GPs 17 public bodies 163 public confidence 128 public contracts 67 public expenditure 140–3, 212–13 Public Health England. Prevention Concordat Programme for Better Mental Health 145–6 public inquiries 62, 148–50 public opinion 250, 253 public place by a police constable, removal from a 31 public safety and harm to others 131–2, 153–8 Code of Practice (MHA) 117 liberty and security, right to 171 necessity 80 new medicalism 248 public opinion 250 restriction orders 8 risk 2, 51, 54, 58, 62, 80, 103–9, 128, 244 substantial risk of serious harm formulation 105, 244 Supervised Community Treatment (SCT) 114 qualitative risk 154–5 quality of services, improvements in 248 quantitative risk 154 quasi-judicial capacity, decision-makers acting in a 72–3 Quinsey, VL 58–9 racism 53, 215 radicalism, end of 262–5 real and immediate risk standard 69–70 reasons for decisions 77–8, 84 recalls 113–14, 205 recession 239 recommendations of two registered medical practitioners 31 reflexivity 134, 138–9, 143, 159 reforms 88, 214–21, 244 see also appropriate treatment test; mental disorder, definition of; mental health professionals, redefinition of roles of civil commitment/formal patients 121 criteria for admission 8–9, 265 impact of MHA 2007 194–5, 224–31 MHA 1983 248 new medicalism 250–3, 262–4 policy objectives, effect on 224–31

principal reforms in MHA 2007 121, 124 review of MHA 2007 264 refusal of treatment advance decisions 264 autonomy 254–5 best interests test 254 Disabilities Convention (UN) 254–6 mental capacity 31–3 new medicalism 88, 264 physical disabilities 32 risk 105–6 suicide 254–5 Supervised Community Treatment (SCT) 114 treatment, admission for 31 voluntary patients 14, 16 registered medical practitioners certification 33, 34–5 civil commitment/formal patients 28–9 recommendations of two practitioners 28–9, 31 risk 43, 52 Secretary of State, approval of 28 regulation of risk 136–7, 144, 146–7, 150 Regulatory Impact Assessments (RIAs) 215 rehabilitation 31, 111 religion Christianity 132, 137 God 132 Islam 132, 137 rituals 132 renewal of detention 36–7, 42, 265 Renfrewshire and Inverclyde Primary Care NHS Trust 58 repeated admissions 216 replacement of MHA 2007 253–62 research 4–5, 216–18, 222 residential care and treatment 18 resources 212–13, 222–3, 238, 249 responsible clinicians 35–6, 37, 39, 112–14, 116 restriction orders 7–8, 42, 77–9 retention of information 18 revolving door syndrome 198, 203, 221, 223 Richardson Committee 103–9, 245–6, 259–60 right to liberty and security see liberty and security, right to (ECHR) Risk for Sexual Violence Protocol (RSVP) 57 risk see also risk assessment; risk formula; risk society theory actuarial approaches 56, 58, 60–2 alcohol or drug dependency 53, 60, 74–5 connoisseurship 81–5, 218–19 construction of risk 269 criminal proceedings 8 criteria for detention 107 dangerousness 104, 106, 217 definition 9, 42–55, 64–70, 86, 217–18

302 Index development of a mental disorder, risk of 131, 132–53 Disabilities Convention (UN) 178–9, 183, 191, 254, 259–60 discretion 56, 62, 72, 78, 83–6, 108, 110, 218, 268 epidemiological risk 154 European Convention on Human Rights (ECHR) 161–2 evidence 50–2, 70–80, 86 expertise 43, 55–6, 58–9, 81–4 fact, risk as a matter of 43, 70–2 governmentality 153–8, 159 improper bases, commitment on 238–9 increase in compulsory admissions 269 knowledge 9, 44, 81–5 legal certainty 10, 43–7, 78, 80, 86–7, 219, 266, 270 liberty and security, right to 161–2, 169–72 management 3, 98, 215–16 mental disorder, definition of 107–8, 110 Mental Health Tribunal (MHT) 63–4, 76–80 mental illness, definition of 105–6 MHA 1983 41–87 new medicalism 3, 10, 88–90, 98–109, 126, 130–59 open-endedness 43, 48, 51, 54 organising principle of civil commitment 219 policy 98–106, 126–31, 135, 246, 269 assessment 57 MHA 1983 42, 50 new medicalism 10, 89–90 regulation 137, 144, 146 social policy 137 society theory 143–50, 159 predictability 43–4, 57–62, 77 prioritisation 3, 10, 41–90, 98–109, 126–9, 215, 216–19, 243–7, 268–9 qualitative risk 154–5 quantitative risk 154 regulation 136–7, 144, 146–7, 150 restriction orders 77 Richardson Committee 103–9, 259–60 risk/no operative risk calculus 122, 146 social construct, risk as 141 sociological construct, risk as 130–1 statutory interpretation 64–7, 72–3 Supervised Community Treatment (SCT) 122 tacit knowledge 9, 44, 81–5, 248, 269 term of art, risk as not being a 64–7 variables 48, 59–60 risk assessment acute factors 53 defensiveness 61–2, 148 dynamic factors 53

fact-finding processes 148 holistic assessment 52–3 Intermediate Risk Assessment and Management Plan (I-RAMP) 56 Joint Risk Assessment and Management Plan (J-RAMP) 56 liberty and security, right to 172 medicalism 94 methods 55–62, 77 MHA 1983 9, 46, 48, 52–74, 81 multiple tools for assessment 57–8 non-therapeutic considerations 53 Spousal Assault Risk Assessment Guide (SARA) 57 stable factors 53 static, dynamic, stable or acute factors 53 TILT High Risk Patient Assessment 56–7 risk formula 2, 6, 49–53, 121, 218 after-care 147 assessment, admission for 28 civil commitment/formal patients 2, 8, 26, 28–9 community treatment periods, extension of 42 Disabilities Convention (UN) 178–9 DOLS 25 MHA 1983 9, 41–3, 49–53, 63–4, 67, 77–9, 86, 121, 244 new medicalism 106, 120–1, 259 safety test, as 63 risk society theory 130–1, 132–53 accountability and blame 137, 144, 147–50 development of a mental disorder, risk of 11, 131, 132–53 explanatory potential, limits of 150–3 future-proofing 11, 135, 143–6 governmentality 154 modernity 132–3, 134, 138–40, 150–1 parallels between risk society theory and mental health 137–50 pillars of risk society and consequences 135–7, 143 policy 143–50, 159 pre-modernity to modernity 132–3, 135, 137–8 reflexivity 134, 138–9, 143, 159 regulation of risk 136–7, 146–7, 150 Rogers, A 49 Rose, N 61, 95–6 Rosenman, S 105 Rous, John, case of 102–3 Royal College of Psychiatrists (RCP) 48, 53, 61, 213 Royal Commission on Lunacy and Mental Disorder 1924–26 93 Royal Society 44–5 Roychowdhury, A 55 Rumgay, J 62

Index 303 Saaty, TL 46 sacred repentance-minimisation programmes 132 Salmon, TW 138 Sandland, R 35–6 Scheff, TJ, case of 103 schizoaffective disorder 186–7, 255 schizophrenia 26, 74–7, 79–80, 140, 142, 149, 186 science and technology 133, 138 scientific realism 150–1 Scotland Court of Session 63–4 knowledge of law, accuracy of decision-makers’ 234 legal basis for detention 6 risk 6, 58, 63–4 treatability test 171 search and remove persons, warrants to 30–1 seclusion 32–3 second medical professionals 34–5, 37 sectioning see civil commitment/formal patients self-determination 2, 16, 40, 128 self-harm 49, 131–2, 153–8 see also suicide and suicidality Beck Hopelessness Scale (BHS) 57 construction of risk 269 liberty and security, right to 171 MHA 1983 49–50, 57 new medicalism 11, 131–2, 153–8 risk formula 2, 8 statistics 152–3 Supervised Community Treatment (SCT) 224 treatment, admission for 33 self-neglect 49–50, 57–8, 62, 269 self-referrals 15 September 11, 2001, terrorist attacks on United States 155–6 severe mental impairment 97, 110 sexual deviancy 97, 110 sexual harm 57 Sexual Violence Risk-20 (SVR-20) 57 Shah, SA 233–4 Short-Term Assessment of Risk and Treatability (START) 56 sickness, increase in 212, 214 Silcock, Ben, case of 103 sin 137 slavery 160 Slobogin, C 181 Slovic, P 45 Smith, LN 237 social context 250–1 social control discipline 131–2, 269

new medicalism 126, 131–2, 243, 247, 269 treatment, difference from 104–5 social, economic and cultural rights 162, 174, 176, 177 social exclusion 107 social functioning 93 social inclusion 182 social insurance mechanisms 135 social isolation 139, 144 social justice, de-prioritisation of 136 social model 115, 116, 122–3, 176 social policy 133, 137, 145 social workers 59, 115–16, 118–19, 123, 227, 235 somatoform disorders 27 specialist mental health habilitation 31 Spousal Assault Risk Assessment Guide (SARA) 57 standard of care 70–1 standard of proof 73–4, 79–80, 86 statistical evidence 194, 195–214 March 31st of each reporting year, number of people detained on 198 1987–88 and 2015–16, admissions between 211 2007–08, admissions from 197 2008–09, admissions from 201–2 2008–09 and 2015–16, admissions between 202 ab initio admissions 199–202 alcohol or drug dependency 142 assessment, admissions for 199–202, 227 complexity 198–202 correlation and causation 198, 209–12, 214, 219–20 development of a mental disorder, risk of 139–42 discharges 207–9, 214 DOLS 22–3, 189, 196, 205–7, 210, 214 homicide 151–2 increase in admissions due to MHA 2007 194, 195–214, 219–20, 223, 240–1, 247 increase in admissions for other reasons 198–202, 212–14 multiple admissions 198, 203 private facilities 195–6 rate of admissions 210, 270 reform 225–7 resources, pressure on 212–13 revolving door patients 198, 203 subsequent to admission, detentions 195–6, 200–1 Supervised Community Treatment (SCT) 203–5, 214 treatment, admissions for 199–202 tutelary relationships, interconnected 198–9

304 Index violence 152–3 voluntary or informal admissions 15, 195–6, 200–1 START (Short-Term Assessment of Risk and Treatability) 56 Statute of the King’s Prerogative 91 statutory interpretation 64–7, 72–3 natural and ordinary meaning 64–7 Parliamentary intention 73 Steadman, H 99, 101 Steele, J 62–3 Stein, W 58 stereotyping/prejudice 249 stigma 53, 179, 182, 212, 249 stress-related disorders 27 Structured Assessment of Violent Risk in Youth (SAVRY) 57 subjectivity 154, 237–8 substantial risk of serious harm formulation 105, 244 substantive justice 235 suicide and suicidality Beck Hopelessness Scale (BHS) 57 depression 69–70 Detention and Training Orders (DTOs), release from 260–1 experts by experience 258 liberty and security, right to 257 life, right to 69–70, 257 major depressive disorders (MDD) 254–5 Mental Capacity Act 2005 254 MHA 1983 50–3, 55, 57, 68–70, 75–6 National Confidential Inquiry 152 new medicalism 245 real and immediate risk standard 69–70 statistics 151–2 Sunstein, CR 135 Supervised Community Treatment (SCT) 203–5, 214–16, 241 see also Community Treatment Orders (CTOs) authority to treat 113–14 conditions, supervision and discharge of 113 consent 114 criteria for admission 113, 114–15 discharge 39 duration 222 increase in use 203–4 introduction 2, 4 Mental Health Tribunals (MHT), referrals to 117–18 necessity for immediate treatment 114 new medicalism 88, 109, 112–15, 121 OCTET research 221–3 operative risk/no operative risk calculus 122 public safety 113–14 recall, powers of 113–14, 205 repeated admissions 216

responsible clinicians 36, 112–14, 116 restrictions 223 revocation 114–15, 205 revolving door syndrome 203, 221, 223 risk 41, 147 statistics 199, 203–5, 214 use of force 114 voluntary or informal patients, conversion of 112 surveillance 155, 156–8 Sustainable Development Goals (SDGs) (UN) 266–7 Swanson, JW 59–60 Szasz, T 97 Szmukler, G 59–61, 105, 107, 150, 255–6 tacit knowledge 9, 44, 81–5, 248, 269 Taylor, PJ 151 television programmes 249 temporary designations 93 terrorism 139 therapeutic justice 232–3 Thompson, JS 238 TILT High Risk Patient Assessment 56–7 time limits 28–9, 31, 34–8, 40, 117–18 tokenism 117 totalitarian dictatorships, preserving 160 transparency 56 treatability test appropriate treatment test, replacement with 2, 109, 111–12, 199–200 increase in admissions 199–200 liberty and security, right to 171 new medicalism 109, 111–12 risk 106 Scotland 171 treatment see Supervised Community Treatment (SCT); treatability test; treatment, admission for; treatment, consent to treatment, admission for 26–8, 31–5 see also appropriate treatment test ancillary treatments 32–3 assessment and treatment, abolition of distinction between admission for 265 certification by a registered medical practitioners 33, 34–5 conversions, increase in 200–1 electro-convulsive therapy (ECT) 34–5 long-term treatment 18 medicalism 94 nearest relatives 119 objections 119 residential care and treatment 18 risk 42, 50–1 social control 104–5 statistics 199–202 threshold 88

Index 305 treatment, consent to 33–5 civil commitment/formal patients 14, 26, 33, 40 informal patients 17–20 new legalism 98 voluntary patients 14 tribunal service, reforms to 216 tutelary relationships 198–9, 241 understand information relevant to decision, ability to 18 unemployment 53, 139, 144, 239 United Nations (UN) see also Disabilities Convention (UN) Commissioner for Human Rights (UNCHR) 177 Declaration on the Rights of Disabled Persons 174 Declaration on the Rights of Mentally Retarded Persons (General Assembly) 178 Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care 178 United States California’s Lanterman-Petris-Short (LPS) Act 1969 224–5 decision-making, extent to which legislation influences 232, 234, 237–8 Florida, reform of mental health law in 228–9 Kansas, reform of mental health law in 225 Nebraska, reform of mental health law in 225–6 September 11, 2001, terrorist attacks on United States 155–6 slavery 160 Universal Declaration on Human Rights (UDHR) 174 universalism 176, 177, 188 unsoundness of mind, definition of 66, 166, 167–8 Unsworth, C 89, 96, 127–8 use of force 30–1, 114 use or weigh information as part of decisionmaking process, ability to 18 victimisation 58, 62 violence homicide 62, 148–52, 245 National Confidential Inquiry into Suicide and Homicide by People with Mental Illness 152

new medicalism 269 predictions 156–7 public inquiries 148–50 risk 50, 57, 61–2, 80 sexual violence 57 Spousal Assault Risk Assessment Guide (SARA) 57 statistics 151–2 Structured Assessment of Violent Risk in Youth (SAVRY) 57 voluntary patients 9, 14–17, 40 antidepressant medication, persons taking 15 autonomy 16 civil commitment/formal patients, boundary with 9, 40 common law 16 consent, refusal of 14, 16 definition 14, 15 discharge 35 informal patients 18–19 learning disabilities 27 life, right to 70 medicalism 93 qualifying requirements 23–4 statistics 15–16, 195–6, 200–1 Vos, T 142 Wales and England, transfer of cases between 118 Wanck, B 229 Warner, J 148–50 Warner, Norman (Lord Warner) 163 Warren, CAB 224–5 Washington, reform of mental health law in 227–8 welfarism 91 Weller, P 160 Wells, HG 133 Wexler, DB 232–3 Winick, BJ 232–3 Winterton, Rosie 107 Winterwerp case 167–73, 190 wishes and feelings of patients 265 World Health Organization (WHO). Mental Health Atlas 142 World Network of Users and Survivors of Psychiatry (WNUSP) 175, 179, 186–7, 257–8 young people see children and young people Zito, Jonathan, case of 102–3, 149–50

306