An Inconvenient Mirror: Do we already have the next Mental Health Act?

Abstract

The Government intends to replace the Mental Health Act 1983, and the most recent of its proposals were contained in the Draft Mental Health Bill published in June 2004.

The 1983 Act is now very different to the statute introduced at the end of 1982. Parliament and the courts have made a number of significant changes over the last 20-odd years, and they have brought us a lot closer to the next Mental Health Act than many people – and possibly even the Government – suppose. In fact, those changes may have brought us rather close to the Draft Mental Health Bill. That will be an uncomfortable thought for many people.

This paper will consider five key aspects of the Draft Mental Health Bill:

• the provisions dealing with risk and treatability;

• the notion of compulsion in the community;

• the status of the Code of Practice; and

• the abolition of the Approved Social Worker.

The paper will ask whether, because of the changes of the last two decades, the current Mental Health Act has already arrived at much the same point. In addition, the paper will consider the position of incapable patients. Although the Draft Bill contains precious few proposals about them, the paper will ask whether recent developments have made a broad definition of mental disorder all but essential.