Personality Disorder and the Mental Health Act 1983

Advances in psychiatric treatment (2010), vol. 16, 329–335 doi: 10.1192/apt.bp.109.006841 Personality disorder and the Mental ARTICLE Health Act 1983 (amended)† Piyal Sen & Ashley Irons the Act, we believe that this will not lead to more Piyal Sen is a consultant forensic SUMMARY people with personality disorder being detained. psychiatrist and associate medical The Mental Health Act 1983 now incorporates director for CPD at St Andrew’s amendments introduced in 2007. This article Healthcare, and a Visiting Research Effects of the new classification Fellow with the Institute of explores features of the amended Act that affect It is all very well getting rid of the four separate Psychiatry, King’s College London. the treatment of patients with personality disorder He runs a personality disorder in England and Wales. It discusses issues such as disorders and replacing them with one, but the service in low security and regularly the broad definition of mental disorder, treatability fact remains that the burden of proof to justify prepares expert reports on patients and professional roles, with specific reference to detention will still be upon the hospital. The with personality disorder for mental how they might, or might not, affect usual practice responsible clinician has to demonstrate that the health review tribunals. concerning patients with personality disorder. It also Ashley Irons is Mental Health mental disorder criteria are met, but importantly Partner for Capsticks Solicitors, comments on elements within the Act that could that the requisite nature or degree test is satisfied, London. He specialises in positively affect people with personality disorder, making detention in hospital necessary for the representing public and private such as community treatment orders, provision treatment required. It is not enough under the new sector hospitals regarding patients to change their ‘nearest relative’ and statutory with personality disorder at mental regime to simply state that the patient has a mental advocacy services. The political climate in which health review tribunals, judicial the Act has been amended is commented on, as well disorder without defining and evidencing it with reviews, inquiries and inquests. greater clinical precision. Correspondence Dr Piyal Sen, as how this might potentially compromise some of St Andrew’s Healthcare, the positives within the Act. Clare House, Pound Lane, North Removing ‘psychopathic disorder’ Benfleet, Basildon SS12 9JP, UK. DECLARATION OF INTEREST The abolition of the classification ‘psychopathic Email [email protected]. None. disorder’ might well mean that clinicians have to focus on nature and degree, perhaps more so †For a commentary see pp. 336–338. The diagnosis and treatment of personality dis than previously. Before the 2007 amendments, order continues to generate much contro versy Section 1.2 gave a legal rather than clinical among psychiatrists. There is a strong view within definition, which meant that the disorder had to the profession that people with personality disorder be persistent and had to be evidenced by ‘seriously should not be considered treatable or, if at all irresponsible or abnormally aggressive’ conduct on treatable, that treatment should be offered only in the part of the patient. However, at any managers’ specialised centres. Prevalence studies suggest that about 10–13% of the adult population in England BOX 1 The four disorders in the original Mental Health Act 1983 and Wales have a personality disorder (National Institute for Mental Health in England 2003). • ‘Mental disorder’ means mental illness, mind (not amounting to severe mental When considering primary care attendees, arrested or incomplete development of impairment) which includes significant estimates rise to around 21% (Moran 2000). mind, psychopathic disorder and any other impairment of intelligence and social The purpose of this article is to highlight disorder or disability of mind, and ‘mentally functioning and is associated with disordered’ shall be construed accordingly. abnormally aggressive or seriously amendments to the Mental Health Act 1983 for irresponsible conduct on the part of the England and Wales of importance to people with • ‘Severe mental impairment’ means a state person concerned, and ‘mentally impaired’ personality disorder. of arrested or incomplete development of mind which includes severe impairment of shall be construed accordingly. • ‘Psychopathic disorder’ means a persistent Defining mental disorder intelligence and social functioning and is associated with abnormally aggressive or disorder or disability of mind (whether or Under the original (unamended) Act, there were seriously irresponsible conduct on the part not including significant impairment of four disorders set out in Section 1.2 (Box 1). If it of the person concerned, and ‘severely intelligence) which results in abnormally was proposed that a patient should be detained, mentally impaired’ shall be construed aggressive or seriously irresponsible the classification needed to fit within at least one of accordingly. conduct on the part of the person concerned. them. The 2007 amendments replaced these four • ‘Mental impairment’ means a state of with ‘mental disorder’, defined as ‘any disorder or arrested or incomplete development of Mental Health Act 1983: Section 1.2 disability of the mind’. Although the classification (before the amendments of 2007) ‘psychopathic disorder’ no longer exists within 329 Sen & Irons hearing or mental health review tribunal, the mental disorder or one or more of its symptoms or responsible clinician had to demonstrate the manifestations. impact of the personality disorder upon the patient It continues at 6.4: – and inevitably cited past and recent examples Purpose is not the same as likelihood. Medical of irresponsible/aggressive conduct, if there were treatment may be for the purpose of alleviating, or any. If there were none recent, the responsible preventing a worsening of, a mental disorder even clinician had to demonstrate that relapse was though it cannot be shown in advance that any likely without ongoing treatment in hospital. As particular effect is likely to be achieved. the Court of Appeal stated in 2002: ‘Psychopathic That may be so, but clinicians must demonstrate disorder is defined by reference to a susceptibility that care or treatment has or will have some effect, to aggression and irresponsible behaviour, in a way however modest. that is not the case for other conditions’ (R v. Mental Health Review Tribunal for the East Midlands and Abolishing the ‘treatability test’ North East Region, ex parte P [2002]). Since the first draft of the 2007 Mental Health This case is likely to continue to be valid even Bill, it has been argued that by abolishing the with the abolition of Section 1.2. It is frequently ‘treatability’ test, a patient with personality argued at mental health review tribunals that disorder could be detained for treatment even there have been no presentations suggestive of if it had no effect. In other words, a highrisk the existence of a significant disorder and that patient with personality disorder could face long therefore discharge is the appropriate outcome. term incarceration because of risk alone, as the However, the opportunity for manifestation in detaining authority would not have to show that hospital is not the same as in the community. the hospital was bringing about an alleviation It could be argued that by abolishing the or prevention of deterioration of the symptoms Section 1.2 requirement for there to be significant of the disorder; it would only have to show that irresponsibility/aggression and persistence, appropriate treatment was available. individuals with personality disorder are more However, it is significant that this change appears likely to carry on being detained under the new after Section 3.2(c) of the 1983 Act, which states regime than before. However, we argue that this that detention must be ‘necessary for the health or will not be the case, given the need for the hospital safety of the patient or for the protection of other to cite such examples to evidence diagnosis, ‘nature persons that he should receive such treatment and or degree’, risk and hence the need for treatment it cannot be provided unless he is detained under while detained. this Section’. In other words, the scrapping of psychopathic We contend that the ‘treatability test’ remains disorder is unlikely to make much difference. alive and well in practice, within the amended However, treatment has never depended on Act, despite claims that it has been abolished. Our a particular classification of mental disorder reasons are set out in Box 2. (R v. Ashworth Hospital Authority, ex parte B 2005). Perhaps more controversially, broadly the same Professional roles could be said of the ‘treatability test’. Chapter 2 of the amended Act alters professional roles to move away from a purely medical model. Treatability The relevance for patients with personality dis The one seemingly significant change to the order is that psychologists can use the new title detention criteria in the original 1983 Act is to ‘responsible clinician’ and can be in charge of the ‘treatability test’ (treatment likely to alleviate treatment. or prevent a deterioration of the condition). It is replaced in Section 3 by ‘appropriate medical treat The responsible clinician ment’ which is ‘available for him’, i.e. ‘medical The role of a responsible clinician who is a non treatment

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