As they point out, the 1959 MHA was the first time judicial authorisation was not required for compulsory admission. The Act could be said to have promoted a ‘medicalism’ over ‘legalism', in that it introduced primarily medical rather than legal controls over detention and treatment procedures. Such an arrangement requires doctors to manage these responsibilities appropriately. The 1983 MHA, which Larry Gostin himself influenced through his campaigning as legal officer for Mind, provided more safeguards for the rights of detained people; in a way a kind of ‘new legalism’. The containment of 'risk' (see previous post), which motivated the 2007 amendments to the Act, again gave more power to doctors with the introduction of community treatment orders. The changes encouraged doctors to deploy compulsory powers to manage risk: a ‘new medicalism’.
Doctors in fact have too much power as detention and coercion are not always the most appropriate responses to the management of mental illness, including its risk. As Baroness Wootton pointed out in relation to the 1959 MHA, doctors have been laid open to "the exercise of powers which the public would regard as arbitrary in other connections” (quoted on p.72). There will be inevitable uncertainty about psychiatric diagnosis and treatment, and whether detention is appropriate and enforced treatment necessary. Mental health services’ ability to detain people and treat them against their will needs to be more open to scrutiny and control. The 1959/1983 Acts were reforming Acts in the context of deinstitutionalisation, when traditional asylums were being opened up and the rights of detained mentally ill people promoted, but there is now a focus on increasing security leading to reinstitutionalisation (see previous post). As the independent review chaired by Simon Wessely found, mentally ill people are not always being treated with dignity and respect (see eg. previous post). They need to be supported rather than necessarily have treatment imposed on them (see previous post).
To provide more balance to the authority of doctors, advocacy services need to be developed further, so that patients have a right to an independent opinion of their own choice on medical, nursing and social matters (see previous post). I think this should be a nationally managed service to include Independent Mental Health Advocates (IMHAs), mental health lawyers and independent experts (see another previous post). If necessary, any conflict between the Responsible Clinician (RC) and advocacy services, both on detention and treatment matters can be adjudicated by the Mental Health Tribunal, with the Tribunal having the power to require the RC to reconsider a specific treatment decision, as well as order discharge, leave, transfer or community services, either immediately or within a recommended time period.
The other main change that is needed is to prohibit any further admissions of patients detained under civil proceedings (Part II patients) to secure facilities (see previous post), as secure facilities are more suitable for people detained under criminal proceedings (Part III patients) as an alternative to prison. The government recognises that too many people with learning disability and autism are being detained inappropriately in secure facilities (see previous post), but the same also applies to those with serious mental illness.
Although the government does want to reduce coercion in mental health services, it does need to base this reform on the rights of people with mental health problems. There is evidence that it is actually watering down these principles (see previous post). It isn't just earlier and more frequent access to safeguards against detention and enforced treatment that are needed (see previous post), but a shift, hopefully led by doctors, towards more open and therapeutic treatment. Treatment should not be inhumane and abusive, as it can be currently (see another previous post), and doctors' decisions must be made in the best interests of patients.