Once it is accepted that an illness can affect judgement, legislation is needed to determine when society can intervene to treat patients against their will. In the face of bizarre and dangerous behaviour, it is absurd to suggest that the patient's wishes must always be respected. The family and society have the right to protection from the minority of mentally ill people who are a danger to others.
In balancing these conflicting principles, the Act relies heavily on the opinions of doctors. Given an application for compulsory admission by a patient's nearest relative, two doctors must decide that a patient suffers from mental illness and requires hospital treatment for his or her own or others' health and safety. The Act leaves the definition of mental illness to the doctors and the risk to the patient's health need be no more than self- neglect. Scrutiny by outsiders comes later, when the patient can appeal to a tribunal. Criteria for detention are not rigidly specified and there is considerable variation in medical practice. Some doctors rely heavily on historical information, others on interviews.
Powers of supervision over patients outside hospital are very limited. A court can impose a restriction order on a mentally disordered offender which drastically limits liberty, but this can be applied only to patients found guilty of offences that could result in imprisonment. Would it be useful, or justifiable, to extend such restrictions to patients who have not committed offences?
If a new provision were introduced, it would affect patients suffering from mental illness which did not require hospital admission, yet was severe enough to render them incapable of deciding about treatment. Such patients exist, but their numbers are tiny. Most people who need compulsory treatment fall within the existing Act.
Many psychiatric patients disagree with their doctors about whether they should take medication - but so do many patients with high blood pressure. Psychiatrists spend much time persuading reluctant patients to accept medication and might be tempted to invoke new legislation to bypass this process. Many patients could lose existing rights for no good reason.
A particular concern about an order to accept treatment in the community is that such 'treatment' may mean no more than 'medication'. Drug treatment is useful in schizophrenia but is a tiny part of a rehabilitation package that must also include nursing, occupational therapy and suitable housing. Patients admitted to hospital against their will can at least expect a certain standard of care in return for their loss of liberty. Similar rights would have to be defined for compulsory patients outside hospital.
Instead of altering the law, it would be better to change the context in which it is used. Mental health law is only as good as the psychiatric services within which it operates. We have been cutting the number of psychiatric beds since 1954, with 20,000 lost since 1980 - a far sharper reduction than in most of Europe. Lost beds have not been replaced by hostel places, so a new generation of long-term patients has nowhere to go.
Only the most severely disturbed patients can be admitted, and many families will have had experience of a relative with schizophrenia being refused admission when both they and the patient would have welcomed it. The Act is irrelevant in most of these cases. It appears that the NHS has decided not to provide in-patient care for many of the long-term mentally ill, without alternative provision being made available.
Alternatives are possible. One large hospital in the process of closure is to provide small hostels for high dependency patients, staffed by nurses and with medical supervision. For legal purposes this accommodation constitutes a hospital, so it can hold detained patients and ensure compliance with treatment while allowing a high degree of freedom.
New legislation might benefit a tiny minority of patients but it cannot be seen as a priority alongside the more fundamental problems facing services for the mentally ill. Rather than a new law, most mental health workers would prefer to be given the facilities to make full use of the law they have already.
The author is senior lecturer in forensic psychiatry at the Institute of Psychiatry in London.Reuse content