Sweeping changes in the way care for the mentally ill is provided since the Act was conceived in the late Seventies means its workings are increasingly out of touch with reality, Virginia Bottomley, the Secretary of State for Health, has been told by the commission.
Far less care is now provided in the old, big lunatic asylums; far more in the community and in smaller residential homes which are treated as 'hospitals' under the Act but which may not legally be that, the commission says in a memorandum to Mrs Bottomley.
In addition, the new structure of the National Health Service, with its purchaser/provider split, is throwing up problems. The commission says some fund-holding general practitioners 'are showing a reluctance to purchase the full range of community mental health services required'. As a result, 'the rights of the mentally disordered in fund- holding practices need to be clarified to ensure that they receive the services they require at the right time'.
In other cases, health authorities are refusing to refer the mentally ill to hospitals and units with which they do not have a contract.
The growing use of private nursing homes has also led to a bizarre situation where patients detained compulsorily under the Act are charged by the home for their care.
'There needs to be a review of the situation where a fee- paying patient in a private mental nursing home . . . can be detained against his or her will and yet be compelled to pay the fees for this voluntary detention,' the commission says. 'Should such a patient be given a statutory right of detention, or transfer to an NHS hospital?'
More broadly, the whole framework of the Act is based around institutional services which are 'rapidly disappearing'. When the commission began work in 1983 it had 500 hospitals and units to visit. With big hospitals closing and smaller residential units opening it now has 673.
Other issues - including consent to treatment, treatment of the mentally ill in prison and whether untreatable psychopaths can be detained - also need resolving.