In England and Wales, the 1959 Mental Health Act established the medical profession as the key party involved in making applications for compulsory admissions. This was based on the view that mental illnesses require medical treatment. This principle remained unchanged in subsequent mental health legislation in 1983 but, as we noted above about new roles and the ambivalence of the medical profession towards ‘personality disorder’, by 2007 substantial ambiguity about pro- fessional jurisdiction over mental disorder then emerged. As Pilgrim and Ramon (2009) noted, at the turn of this century, revisions in mental health policy were characterized by contemporary arrangements about the following recurring agenda:
• the structures and processes involved in responding to mental health problems;
• the professional jurisdiction for mental health problems;
• the conditions under which mental disorder should be lawfully controlled and the type of control involved;
• links with wider health and welfare policy changes;
• the enhancement of mental health in the population.
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The mid-2000s saw new mental health legislation in the form of the Mental Health Act 2007 and The Mental Capacity Act 2005. With regard to the former, while legislation is altered in line with the need to update matters every 25 years or so one of the major drivers to legislate in 2007 was the need to deal with breaches of the European Convention on Human Rights. Another was to provide
‘flexibility’ in delivery of mental health services through providing for compulsory treatment in the community, for patients deemed to be dangerous. In so doing it has been argued that the gov- ernment was following a populist agenda created by homicide inquiries into the deaths caused by mental health patients (The National Confidential Inquiry). Government policy followed a line of thinking that homicides would be prevented by broadening the conditions of compulsion to include people with personality disorder and alcohol or drug problems and limiting discretion to discharge from compulsory detention people considered high-risk cases.
The Mental Health Act 2007 altered the definition of mental disorder in the 1983 act to a more inclusive one – ‘any disorder or disability of the mind’ – and broadened the notion of treatability, requiring only that ‘appropriate medical treatment is available’ and removing the need to demon- strate that a treatment is likely to alleviate or prevent deterioration of a mental health problem.
Notwithstanding these changes, the 2007 act does not appear to have drastically changed matters from the existing legislation and is unlikely to alter the number of patients subject to compulsion in community or hospital settings (Shah 2009) (see Figure 10.1).
Separate legislation introduced in 2005 means that mental capacity is now a core part of UK mental health law (Owen et al. 2009). While on the face of things a number of issues changed in the legislation, in this chapter it is the second and third of these points we need to consider. Earlier we noted the shift from the role of the ‘Responsible Medical Officer’ to that of the ‘Responsible Clini- cian’ (open now to non-medical practitioners of a senior grade). Also, there was a replacement of
Figure 10.1 Adapted from The health and Social care Information centre showing small increase in numbers of civil compulsory detention & admissions.
50,000
40,000
30,000
20,000
Detentions
10,000
0 2007-08
On admission to hospital Following use of Section 136
Subsequent to admission Following revocation of CTO
2008-09 2009-10 2010-11 2011-12
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the Approved Social Worker (ASW) role with that of the Approved Mental Health Worker (open now to non-social workers).
Bean (1986) noted that the social worker’s role in compulsory detention was due to a historical accident. Certainly, as a predominantly female occupation, social work did not have access to the structures and territory that the male medical profession had when capturing jurisdiction over the control and management of mental disorder. This was evident in the position that social workers were ascribed in mental health legislation. Social workers did not see their interests in competing with the knowledge and skills of other mental health professionals by increasing their own exper- tise in mental health, preferring instead to adopt an industrialization strategy (Oppenheimer 1975).
After 1983 ASWs had the task of co-assessing people in crisis with psychiatrists and GPs, about whether hospitalization was warranted and whether less restrictive alternatives could be identified (Ramon 2006). The ASWs tended to take a psycho-social perspective rather than a medical one and had the right to disagree with psychiatrists and GPs. The change in the 2007 Mental Health Act disappointed ASWs when this designated special role was opened up to others (Rapaport 2006).
There has been further evidence of role diffusion and blurring in the mental health workforce.
For example, nurses may now train to become prescribers alongside psychiatrists. This might indicate that nursing is being further medicalized and/or that the restrictive practices of medicine are being eroded and the leadership role of psychiatrists undermined (see Chapter 7). These doc- tors objected to the implications of the government’s programme to re-engineer the mental health workforce, called ‘New Ways of Working’ (NWW), and its impact on medical authority.
The NWW programme brought together representatives of all mental health disciplines, with a few (carefully selected) users and carers, to shape future services for those working primarily with adults experiencing severe mental health problems. Several conferences and publications came out of this work (Department of Health 2007), highlighting principles of collaborative work with other disciplines, users and carers. Although the programme was formally committed to recovery principles, the discussion focused on organizational efficacy and securing the continuation of pro- fessional monopoly. A change in the traditionally medically dominated and fixed hierarchy work- force was also encouraged by accumulating shortages. By 2000 services had unfilled vacancies in psychiatry, nursing, psychology, occupational therapy and social work (SCMH 2000). The shifting emphasis towards community psychiatric nursing, after the closure of the large hospitals, meant that inpatient wards had particular problems with recruitment and retention. They often relied upon temporary (‘bank’) staff. This trend was amplified by Project 2000 (when nursing became a graduate profession) because student nurses were no longer an extra pair of hands but largely attended placements as learning experiences.
Together these factors created a crisis of recruitment at the turn of the twenty-first century.
In response the government set up the Workforce Action Team (WAT), which was charged with developing solutions. Reporting in 2001 it focused on staff recruitment and retention, national occupational standards, a single agreed skill set for the mental health workforce, skill mix solu- tions, the recruitment of more trained support staff, primary care staff development, tackling the stigma of working in mental health services, and engagement with professional bodies to examine the educational implications of this scoping exercise (Workforce Action Team 2001).
Capacity and compulsion in a post-institutional context
While the notion of ‘capacity’ has dominated in recent discussions of legalism by the mental health workforce, a counter-trend has been what can be termed ‘rights-based legalism’. This refers to the rights of individuals with mental illnesses, predicated, to some extent, on the social model of disability. The latter provides a framework within which pre-existing relationships, attitudes and assumptions that underpin traditional forms of social and legal engagement with people with a
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diagnosis of mental illness could form the bases of a challenge to augment the notion of ‘capacity’
in mental health law through a stronger focus on the principle of participation (Weller 2013).
Before we leave the complexities of compulsion and professional interests within it, it is important to note a structural change in context. The above debates about compulsion and social policy progress have been largely one of moral or political principle (the ethics of paternalism ver- sus voluntarism, rights of access versus the right to be left alone, respect for mental capacity and so on). However, many of those debates were triggered during the 1950s and 1960s in a context of wide-scale institutionalization. The liberal and libertarian critiques from sociologists like Erving Goffman and psychiatrists like Thomas Szasz and Ronald Laing reflected that agreed scenario of mass compulsion. This was manifest as well in media representations, such as the film One Flew Over the Cuckoo’s Nest or the Laingian-inspired film Family Life.
However, since the advent of deinstitutionalization in the early1990s, the structure of compul- sion has changed but perhaps not as much as one might have anticipated. The principled argu- ments have not, and so they remain today (as above and the next sections indicate) but the scale and type of setting have certainly altered. The restriction on numbers of psychiatric beds may mean now that risky conduct, rather than expressed need, drives admission priorities, but that other means such as CTOs will be used more.
This in not to argue now that critical professionals are unconcerned about the agenda, set by those like Goffman and Szasz in the 1960s. Their current concerns though are about defending State backing and funding for new service philosophies that support forms of therapeutic social control, which are voluntaristic, biographically sensitive and user-centred (Romme et al. 1992;
Calton et al. 2007; Thomas and Longden 2013). Thus, while the structure of compulsion in mental health services is now shaped by a post-institutional service context (barring secure provision) and attempts at quick ‘throughput’ in acute psychiatric wards, the arguments about voluntarism and human rights persist today. This is evident in the perennial debates about risk and dangerous- ness, to which we now turn.