THE government’s Mental Health Bill is currently before Parliament. It amends the Mental Health Act 1983, which is the Act of Parliament under which people are “sectioned.”

The Bill is the culmination of a process which the then prime minister Theresa May begun in 2017 when she commissioned an independent review of the 1983 Act by a panel under Professor Simon Wessely. I chaired the Patient Safeguards and Mental Health Tribunals Working Group which formed part of that review.

The Bill is disappointingly limited in scope and ambition. The current system is 66 years old, as old as the Lunacy Act 1890 was when it was replaced by the present framework in the 1950s. We needed a new Act. Eight years on, we have an amending Bill that preserves the framework and much of the old legislation.

The Department of Health and Social Care has either failed to see or failed to address the elephant in the room. When I started in practice, visiting the old asylums in the 1980s, the Mental Health Act 1983 was (with one tiny exception) the only mental health legislation under which an adult could be detained. Since 2009, it has been possible to detain people in hospitals and care homes under the Mental Capacity Act 2005 on the basis that this is in their “best interests.”

There are now just over 50,000 new detentions under the Mental Health Act each year but over 300,000 deprivation of liberty applications under the Mental Capacity Act. Care homes are the new long-stay wards and there are now far more people detained outside psychiatric hospitals than in them. A Bill was required that addressed this issue, with the aim of reducing rates of detention outside psychiatric units, and the complicated inter-relationship between the two Acts. A single, fused, statute was the order of the day.

My working group’s recommendation was that detention and compulsion should require the existence of a substantial or significant risk of serious harm to the citizen or others if the person is not detained. The Bill incorporates a watered down “serious harm” requirement. It suffices that serious harm “may” be caused to the health of the “patient” or the health of another person and that given the nature, degree and likelihood of the harm, the patient “ought to be” detained.

The use of the words “may,” “nature” and “ought to be” give mental health professionals and tribunals a very broad discretion, one that is unlikely to be limiting. The new “least restrictive” statutory principle of “minimising restrictions on liberty so far as consistent with patient wellbeing” is frankly feeble.

It is, to put it mildly, disappointing that the current Bill does not contain any provisions that specifically address the over-representation of black citizens in the detained population, which was one of the terms of reference. The rates of detention for “black or black British” citizens (343.5 detentions per 100,000) are over four times higher than the white group (74.7 per 100,000). A system whereby detained black citizens are entitled to an additional medical recommendation from a “black or black British” commission-appointed doctor could be a valuable safeguard.

Even more worryingly, the rate of community treatment orders for “black or black British” people in England (78.9 uses per 100,000) is over 10 times the rate for the white group (7.8 uses per 100,000). The disparity is so great that it is necessary to abolish community treatment orders. There can be no confidence they are being applied fairly.

The four protective pillars of the original Mental Health Act 1983 — how citizens were to be protected against unjustified detention or compulsion — were Mental Health Review Tribunals, a Mental Health Act Commission, the nearest relative and hospital managers.

The Mental Health Tribunal hears appeals against detention or compulsion under the Mental Health Act. Tribunal discharge rates have fallen markedly in recent years from around 20-25 per cent in the mid-1990s to around 6 per cent (3 per cent for community treatment orders).

The tribunal reforms are both disappointing and disturbing. Tribunals retain the power to discharge compulsory orders but still have no power to transfer citizens to a less secure hospital or to grant them leave of absence. These relaxations of the regime are often necessary staging posts towards eventual discharge from compulsion.

The idea behind the nearest relative provisions in the 1983 Act was that if your nearest relative — usually your spouse, partner or a parent — was willing to care for you at home and no-one was in danger then the state should not intervene. It was only if the person was likely to behave in a dangerous manner and the county court removed the nearest relative that the person could be detained for more than 28 days.

The Bill replaces the nearest relative provisions with a ridiculously complicated and bureaucratic “nominated person” scheme that involves the citizen or a professional selecting a nominated person. Furthermore, the Bill authorises an applicant, who usually is a social worker, to override the nominated person’s objection in some cases.

The Mental Health Act Commission was abolished by a Labour government in 2007 and its functions transferred to a succession of “quality assurance” super quangos, currently the much-maligned Care Quality Commission (CQC).

The context can be summarised as follows. The 1959 Act abolished the Board of Control. This came to be seen as a mistake and the 1983 Act established a Mental Health Act Commission (MHAC). Broadly speaking, its functions were to visit psychiatric units in order to ensure compliance with the Act and to investigate complaints of ill-treatment or breaches of the Act. In the mid-2000s, Alan Milburn introduced a raft of quality-assurance quangos. This led to a backlash, a volte-face and a “bonfire of the quangos.” The MHAC was caught up in this and abolished in 2007, albeit it was long established and the one fulfilling an important legal function.

I campaigned against this at the time, pointing out that vulnerable persons require strong legal safeguards to ensure that they are not ill-treated and their rights are protected. There is a fundamental difference between legal commissions and quality assurance quangos that monitor and drive forward government targets.

The report of Parliament’s joint committee on human rights accepted my submissions and the need to retain such a commission, but the government forced through abolition. I wrote at the time that “this is the most poisonous of all the proposals in the Bill. What will happen is what has always happened. As one small division within a super-Commission dedicated to monitoring compliance with the NHS programme, the constitutional imperative will be consumed by the larger political imperatives … Increased institutional abuse can be expected…”

That is indeed what has come to pass. Whereas one-third of the old commission were legal members, the CQC now has no legal members. It supposedly performs the function of legislative compliance and legal safeguarding without legal expertise. This reflects the government’s other reason for abolishing the MHAC, which was that it had been critical of the government.

What we need is a multi-disciplinary legally led Mental Health and Human Rights Commission that is responsible for monitoring and ensuring compliance with the Mental Health Act, Mental Capacity Act and European Convention on Human Rights. It should be accountable to and funded by Parliament, in order to ensure its independence from ministerial pressure. I have drafted the relevant sections.

Two aspects of detention that citizens most fear are the use of seclusion and the use of restraint. The Bill has nothing to say about either. The regulation and monitoring of these interventions should be the responsibility of the hospital managers and the new commission.

The government has had eight years to produce a completely new Act that fully addresses the shortcomings of the current system. The problems are mainly due to over-reliance on civil servants and academic input and insufficient practitioner input. The consequence is that a legal system which is deficient will remain so. Such Bills are once in a generation events and we shall now have to wait another generation for necessary reforms. Pure madness.

Anselm Eldergill is a solicitor who until recently was a judge in the Court of Protection. He is an honorary professor of mental health and mental capacity law at University College London. For many years he was president of both national mental health law associations.

This article is a new column which will appear on the second weekend of the month. Please keep an eye out for the next one which will appear on Saturday March 8.