Chapter One

Mental disorder and public protection

Introduction

1.1    This second part of the White Paper sets out new arrangements for managing people who need to be detained and treated under Mental Health Act powers because of the high level of risk that they pose to others as a result of their mental disorder. The arrangements form part of wider changes to the powers for compulsory care and treatment and the delivery of mental health services that are set out in the first part of this White Paper. For a comprehensive picture, both parts of the White Paper will need to be read.

1.2    Alongside changes to legal provisions, this part of the White Paper also sets out the changes already underway to improve specialist secure mental health services, which will be required to ensure the delivery of high quality services to patients and to facilitate the proper implementation of the new powers. The Government believes that where individuals are deprived of their liberty because of their mental disorder, they should be provided with high quality mental health services delivered in an appropriate environment.

Who are we talking about?

1.3    The vast majority of people who currently receive treatment for a mental disorder under the Mental Health Act 1983 do not pose a risk to others. They are detained in their own best interests, in many cases to protect them from self-harm. By contrast, there is a smaller number of individuals with mental disorder with whom this paper is concerned who are characterised primarily by the risk that they present to others. This latter group will include both those detained under civil powers, and those mentally disordered offenders who have been given a mental health disposal and a restriction order under Part III of the Mental Health Act 1983.

1.4    These patients detained under the Mental Health Act 1983 are currently managed in a range of specialist secure mental health services, including high security services. The 1983 Act does not however provide any particular statutory provisions to govern the care and treatment of this high risk group apart from the restriction order for mentally disordered offenders. Under new mental health legislation, there will be a single set of criteria and processes which will apply to all mental disorders but within this overarching framework, there will be specific recognition of the fact that for some people their plan of care and treatment will be primarily designed to manage and reduce high risk behaviours which pose a significant risk to others. The new legislation will balance the rights of the patient who is undergoing compulsory care and treatment with the right of the public to be protected from serious harm.

Dangerous People with Severe Personality Disorder

1.5    Among this group there are a number of individuals who pose a significant risk of serious harm to others as a result of their severe personality disorder. The consultation paper Managing Dangerous People with Severe Personality Disorder1 set out our proposals to deal more effectively with the risk this group poses. As set out in the consultation paper, work carried out by the Office for National Statistics on the prison population2, together with an analysis of those detained in secure hospitals, and community estimates, suggests that a total of between 2,100 and 2,400 men are dangerous and severely personality disordered (DSPD). Further work is now underway to refine these estimates and to include women who are DSPD.

1.6    Chapter Two summarises the responses to the consultation paper and describes the way forward now proposed. Chapters Three and Four include a description of how the provisions of the new mental health legislation will apply to the DSPD group. The legal provisions that apply will be the same for all those who are assessed as posing a risk to others as a result of their mental disorder, whatever the diagnosis, but they will contain some flexibility which allows for the different processes of assessment that are proposed for those who are thought to be DSPD. Chapter Six includes the programme of DSPD service development that is already underway.

How these proposals link to the Government's objectives and priorities

1.7    These proposals form an important part of the delivery of two of the Government's key priorities:

• public protection ­ the public rightly demand protection from the risks posed by dangerous people in society;

• modernising the NHS ­ the provision of high quality, efficient services which are evidence-based and responsive to need.

Public protection

1.8    There is no single answer to the problem of dangerousness. No society can ever be completely free of the risk of serious harm. But where there are deficiencies in the law and in the provision of specialist services ­ as in the case of those who are dangerous and severely personality disordered ­ the public rightly expects the Government to take action. These proposals do not provide the only response to the various weaknesses in the law that the Government has identified. They are a specific solution to a particular problem which address the risks posed by those whose behaviour stems from their mental disorder. But they are an important part of a wider package of changes which includes:

• legislative measures requiring sex offenders to register with the police on leaving prison under the Sex Offenders Act 1997, Sex Offender Orders introduced under the Crime and Disorder Act 1998 and the automatic life sentence for a second serious violent or sexual offence under the Crime (Sentences) Act 1997;

• an 'Early Warning System' to alert the Home Office to the imminent release of potentially dangerous violent or sexual offenders and enable the risk management arrangements for those offenders to be monitored.

    The Government is also developing further measures to:

• strengthen the effectiveness and protection of the law for children;

• put police and probation service risk management arrangements on a statutory basis to improve standards;

• prevent offenders who have committed offences of sex or violence against children from working with them on release;

• electronically monitor dangerous offenders as a licence condition.

Modernising mental health services

1.9    In the same way, these proposals are a part of a much broader Government strategy to improve the quality and consistency of health and social services for people who suffer from mental health problems, as set out in Modernising Mental Health Services3 (and which is being taken forward in Wales in the emerging All Wales strategy4) and The NHS Plan5. In addition, the National Service Framework for Mental Health6 has established for the first time, new national standards of care and treatment of mental disorder. This has been backed by significant additional funding to provide better and faster care for those who need treatment and support.

1.10    Modern mental health legislation is required to support these service changes, to protect the rights of patients and the public, to enhance the principles of fairness and equity and ensure consistency in the application of compulsory powers.

Safeguards to protect patients

1.11    New legislation will be fully compliant with the Human Rights Act 1998. The processes for the application of compulsory powers in the new legislation are designed to enhance the rights of patients. In particular, the introduction of a requirement that all longer-term care and treatment orders are authorised by a body independent of the clinical team is a key way in which the new legislation will protect patient rights.

1.12    In addition, Chapter Five of Part One of this White Paper sets out a number of specific provisions that will be contained within new legislation to safeguard the rights of patients who are subject to compulsory care and treatment. These include:

• access to independent specialist advocacy services;

• provisions to cover the use of certain specified treatments for mental disorder and all long-term treatment without consent.

1.13    All these safeguards will apply equally to all those who are subject to compulsory powers, regardless of whether they are subject to compulsory powers on the basis of the risk of significant harm that they pose to others or because it is in their own best interests. As now, all patients will also have a right to free legal representation.

Oversight of the new legislation

1.14    The new legislation will make provision for the Secretary of State to establish a Commission for Mental Health. The Commission will take on many of the functions of the current Mental Health Act Commission (see Part One, paragraph 7.8), but with a fresh emphasis on monitoring the implementation of the safeguards which ensure that compulsory powers are properly used. Issues of the quality and consistency of services provided, such as the nature of the environment, access to fresh air and activities, and visiting arrangements will fall within the remit of the Commission for Health Improvement or the National Care Standards Commission.

1.15    The Commission will consist of a primarily non-executive Board with a non-executive Chairman and members representative of users, carers and the key professional bodies. Key executive staff of the Commission will also be members of the Board. The Commission will be required to provide the Secretary of State with an annual report on its work that will be made public. (See Part One, paragraph 7.6)