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This is a timely publication coming on the eve of the operationalization of new mental health legislation covering England and Wales. Anyone who has followed, over the past decade, the torturous genesis of the Mental Health Act (2007) will be relieved that the legislation has finally been decided, even if there is still work to do in developing the processes to make it work. Understanding Treatment without Consent contains eight brief chapters covering different aspects of the work of the Mental Health Act Commission, a regulatory body established to oversee the previous mental health act. The chapters are organized in a roughly historical sequence, the first providing a brief history of mental health, and the last considering the future without the Commission, whose functions look destined to be absorbed by a generic health regulator. Overall, the verdict on the Commission is mixed, in terms of the powers it has been given to carry out its functions, about its zeal in discharging its responsibilities, and in terms of its leadership. One gets the impression of good intentions, but an unclear definition of goals. The Commission itself can hardly carry the sole blame for this, a point made by several contributors, as it is not always clear who needs to be monitored, patients under mental health legislation or those charged with their care and treatment.
In the introduction Ian Saw observes that we are in an age in which the autonomous rights of individuals are 'fundamentally at the centre of the health service modernization process' and that there is recognition that individuals with capacity should decide what can be done with their bodies. These are principles, Shaw states, that are 'now framed as human and citizenship rights.' This is a promising start, the suggestion that the issues would be presented within a recognizable conceptual framework drawing on ethical and social theory. But this is not what the book does, and the important issue of capacity is barely mentioned. This is probably because the 1983 Mental Health Act and the Mental Health Act Commission give little consideration to issues of capacity. These issues are for the most part subsumed under mental health legislation where refusal to consent requires a second opinion, or under separate capacity legislation that is not used in relation to detention for compulsory care. The title of the book is misleading, as the book contains very little content about consent to treatment. As Simon Boyes and Michael Gunn note in their interesting chapter on regulation, 'To a degree…an automatic presumption of incapacity arises when an individual is detained compulsorily.' It's a fairly large degree if a watchdog body can ignore it completely.
Ian Shaw's brief history of mental health sets the book in the context of the last 200 years of psychiatry, and in the following chapter Jeffrey Cohen provides a more detailed overview of the Commission and it predecessors. Cohen's chapter makes it clear that any problems identified with the current Commission are rich in historical precedent. Previous Lunacy Commissions and the 1913 Board of Control were beset by conflicting expectations, entrenched ownership of the positions of Commissioner, and at times naked personality politics. The Board of Control was effectively abolished in 1948 in favor of more direct Government monitoring, a development whose significance will not be lost on those considering the proposals for a successor to the current Commission. Cohen's chapter concludes with a reference to an historical complaint made in the 1830s, cited to show that perceptions of unfairness always attend abrogation of rights, and require 'a visitorial body charged specifically with powers of monitoring [mental health legislation]. Cohen is a former member of the Commission, and he returns to this theme later in the book.
Chapter four describes the visiting activities of the Commission and discusses some of the practical issue of accessing reliable data. In the next chapter Jeffrey Cohen discusses reform of the 1983 Act. Most of the issues have been well aired in various literature not to mention the press. The difficulty of forging a consensus around mental health legislation was too much for Tony Blair, even harder than persuading his Labour Government to support the invasion of Iraq. One of the stumbling blocks was the proposal to introduce community treatment orders, a proposal met with suspicion because of the simultaneous proposal to preventatively detain people with 'severe personality disorder'. In 2006 the new legislation was abandoned in favor of reform of the existing act, representing more of a stalemate than a victory for any of the competing parties. The resulting amendments contain more restrictions in some areas and less in others. The contentious community treatment order is now in place, albeit under a regime of supervision that seems little changed from that provided by the 1995 Mental Health. (Patients in the Community) Act. In an interesting sidelight the introduction of a generic statutory role of 'Responsible Clinician' has brought the English into conflict with the European Convention on Human Rights which insists on 'medical' expertise. However in at least one EU country (Norway) psychologists are empowered to make committal decisions.
Chapter five covers risk, and it is here that there is a focus on capacity and consent. Refusal to consent requires a second opinion if there is an intention to treat, and this second opinion hinges on an assessment of risk. Thus although fairly standard criteria for assessing capacity are outlined, the clinician must make a determination of risk. In this area the Commission is able to provide good information on the functioning of the mental health service because it has a considerable database of cases to draw from. The data show an ethnic bias in second opinion cases, with ethnic monitories more likely to have their refusal to consent discounted. Rates of detention show a similar bias, raising concerns that mental health staff are 'not immune' from widely held stereotypes about risky individuals.
The issue of treatability for people with personality disorder is a contentious one, and one that has previously caused problems with English legislation by offering a means of excluding some people from mental health care. Conor Duggan offers a thoughtful review of the issues and concludes that it is unclear whether the extension of the treatability criterion to all committals will avoid the problems of the past. The chapter on regulation (referred to above) is a useful contribution to this book as it sets the work of the Commission in the context of regulation more generally, noting that regulation is always linked to risk of one sort or another. Boyes and Gunn argue that whatever benefits there may be to generic regulation, mental health requires specialist knowledge. Without it, regulators will not win the confidence of those they seek to regulate. The danger however, one that has been demonstrated in the past with the Commission, is that of capture, especially by professionals. Boyes and Gunn are in accord here with Jeffrey Cohen's sentiments in the final chapter. Cohen fears a waning influence for a special mental health inspectorate, especially as the Government apparently has little enthusiasm for such a body.
Overall Understanding Treatment without Consent is an interesting collection of readings, especially for those practicing in England and Wales. I had the sense that the Commission is something of an anachronism in one sense as it seems to embody some of the institutional approaches to mental health care of the past. Yet the Commission also seems to have served a function undertaken by no other body, and at times to have made a real difference to standards of care. I'm struck by the comparison with the asylum: for all its faults a venerable institution, but one that outlived its usefulness. There is something of an irony in a body that has had a key role in legitimizing compulsion arguing for its continuance by invoking the potential loss of rights of service users. And while there seems no good reason in principle to resist mainstreaming the monitoring of mental health legislation, the fears that the needs of those committed will be lost in a welter of general health concerns cannot be discounted. An advantage of a generic watchdog is that it would remove the distinction between voluntary and compulsory patients. Would capacity-based mental health legislation, as advocated by some commentators make a difference? Not everyone thinks so, but the continued separation of mental health from general health care also has the potential to contribute to stigma. One thing is certain, that is that the problems that plagued the early Lunacy Commissions and their successors are unlikely to go away.
© 2008 Tony O'Brien
Tony O'Brien RN, MPhil, Tony O'Brien RN, MPhil, Senior Lecturer, Mental Health Nursing, University of Auckland, [email protected]