THE new draft Mental Health Bill published on September 8 will be studied by a special committee before being presented to Parliament. Among the issues dealt with in the Bill, one in particular seems to have caused confusion. This is the extent to which people with personality disorders who are deemed to be a danger to themselves or others can be detained even when it cannot be shown that they will be assisted by medical treatment and they have not committed a criminal offence.
Under the current Mental Health Act a dangerous person with a personality disorder cannot be detained for treatment unless the treatment is likely to alleviate or prevent the deterioration of the disorder. If the treatment will not achieve this then the person is entitled to remain free and will be dealt with by the police and courts if and when a criminal offence is committed. However, the Act and the courts have defined “treatment” to include monitoring, nursing care and even preparation for discharge, so it is very difficult to be given the label of “untreatable”.
Nevertheless, the 2002 draft of the new Bill proposed a change to the law so that a dangerous person with a personality disorder could be detained even where the treatment would not assist him. This formulation led to protests and Parliament’s Joint Committee on Human Rights said that it may breach the right to liberty. In response the new Bill has slightly modified this proposal. Such a person will be detainable only if there is “appropriate” treatment available. However, it is still the case that the new draft does not include a requirement that the appropriate treatment should have any specific therapeutic value for the individual patient. It seems therefore that it will be possible to detain someone even though the clinical practitioners think that to attempt to treat the disorder in the particular case is bound to fail.
To ensure that the number of cases where this will happen is as low as possible, the draft Bill has widened the definition of treatment even further than the present law. It now includes things such as education and training, and independent living skills and rehabilitation. All these things are no doubt useful, but should there be a power to detain someone with a personality disorder (albeit also a danger to themselves or others) simply to attempt to provide assistance in matters such as these?
The Government has said that medical practitioners and mental-health pressure groups are wrong to argue that the 2004 draft Bill would allow the detention of untreatable persons. However, such fears are clearly not unfounded and it remains to be seen whether the current proposals will satisfy Parliament and inevitable human rights challenges.
Advertisement
Stephen Cragg is a barrister specialising in public law at Doughty Street Chambers
E-mail: s.cragg@doughtystreet.co.uk