Report on the Review of the Mental Health (Scotland) Act 1984

Chapter 4

WHO WOULD BE COVERED BY THE NEW ACT

Mental disorder in the 1984 Act

1. Section 1 of the current Act states that its provisions 'have effect with respect to the reception, care and treatment of persons suffering, or appearing to be suffering, from mental disorder'. The presence, or at least appearance, of 'mental disorder' is thus crucial to the question of whether the Act can be said to apply to an individual.

2. Section 1 goes on to define 'mental disorder' as meaning 'mental illness or mental handicap however caused or manifested'. The terms 'mental illness' and 'mental handicap' are not themselves further defined.

3. Section 1 also contains definitions of mental impairment and severe mental impairment, although they are only of relevance in relation to questions of detention. We go on to discuss them later.

4. Following the introduction of the Mental Health (Public Safety and Appeals) (Scotland) Act 1999, the words 'including personality disorder' were included after the words 'mental illness': in other words, the term mental illness, when used in the Act, is taken to include personality disorder.

5. This approach differs somewhat from the English Mental Health Act 1983, which includes a separate category of 'psychopathic disorder'. The different approach can be traced back to 1960, when the Scottish Dunlop Committee recommended a different approach to the English Percy Commission, on the basis that the term 'psychopathic' did not have a clear meaning and that most such patients who could benefit from psychiatric treatment or care could be included in the categories of 'mental illness' or 'mental deficiency'¹¹.

6. Section 1 also contains provisions to exclude certain categories from the definition of mental disorder, stating that 'no person shall be treated under this Act as suffering from mental disorder by reason only of promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs'.

7. The definition of mental disorder in the 1984 Act has been referred to in a wide range of other legislative measures, including the Adults with Incapacity (Scotland) Act 2000, the Criminal Procedure (Scotland) Act 1995, and the Social Work (Scotland) Act 1968.

Mental disorder as the basis for compulsion

8. The presence of mental disorder brings a person within the general scope of the 1984 Act, but in order to be subject to detention the mental disorder must be encompassed within the provisions of s17 of the Act. The types of mental disorder covered by s17 are

• mental illness
• mental impairment
• severe mental impairment
• 'a persistent mental disorder manifested only by abnormally aggressive or seriously irresponsible conduct'.

We discuss these in more detail below.

Issues relating to 'mental disorder'

9. In responses to our consultations, some criticism was made, particularly by a number of service users, about the term 'mental disorder', which was seen as a pejorative and unhelpful label. Against that, about two thirds of those who responded to our first Consultation expressed qualified support for the term, although many felt that it should be further defined. In general, respondents who favoured change still supported the general approach of broad categories rather than specific diagnostic groups.

10. There is a degree of uncertainty over whether some particular conditions are covered by the term 'mental disorder' in the 1984 Act. The problem of personality disorder is considered at paragraphs 75-113. Conditions such as autism and Asperger's syndrome are also problematic. These are lifelong conditions which manifest themselves in childhood, and are not normally considered as mental illnesses. Some people with autism would undoubtedly fall within the category of mental handicap, but there are some people with autistic spectrum disorders who would not be so described, yet who may behave in a way which might justify intervention under mental health law. We discuss autistic spectrum disorders at paragraphs 65-68.

Retention of mental disorder

11. We believe that it is appropriate to have a broad and inclusive term which would delineate those to whom mental health legislation may apply. The broad term would set out those to whom the powers and duties of the Mental Welfare Commission would relate. This definition would also serve to delineate those to whom local authorities owe duties by virtue of mental health legislation, and would be a prior condition of the criteria for compulsory care and treatment.

12. We favour the retention of the term 'mental disorder' as the general term for inclusion in the Act. Although some respondents found the term undesirable, we did not receive any alternative proposal which we considered would be an improvement. The problem of stigma is one which could potentially apply to any term which is used in such legislation, and we feel this problem is better tackled by attempts to reduce the general stigma associated with mental illness and learning disability (see Chapter 17 for further discussion of this issue).

13. The term 'mental disorder' has a number of advantages. It is already in the legislation, and appears in the English Mental Health Act. It makes no assumptions as to the cause or permanency of the disability. Because it is not bound strictly by any particular diagnostic classification system, it is flexible enough to encompass changes in diagnostic practice.

14. We believe that the term 'mental disorder' should encompass three categories: mental illness, learning disability and personality disorder.

15. With all three terms, we do not believe that further detailed definition in the Act would be desirable, but it would be helpful for the Code of Practice to set out guidance as to how the terms can be applied in practice. The great majority of those who responded on the point in our second Consultation supported a broad definition of mental disorder in the legislation, with the diagnostic basis of the term outlined in guidance.

16. In England and Wales, the Richardson Committee has recommended that a broad definition of mental disorder be retained¹². That Committee also recommended that the term be defined according to the Law Commission's proposed definition as 'any disability or disorder of mind or brain, whether permanent or temporary, which results in an impairment or disturbance of mental functioning'¹³. The Department of Health has accepted this recommendation in principle.

17. Some of the respondents to our first Consultation supported this definition. We are aware that it was proposed during the debates on the Adults with Incapacity Bill. As the Richardson Committee state, the adoption of the same definition both sides of the border would seem desirable.

18. On balance, we nevertheless believe it is better to retain the term mental disorder, without further definition, other than the sub-division into three categories of mental illness, learning disability and personality disorder. Adding an additional definition of mental disorder would potentially create confusion as to the inter-relationship between this definition and the three sub-categories. The separate categories are useful because aspects of our recommendations apply to particular categories, particularly the proposals we make later in this chapter for a further review of the position of learning disability and the recommendation of an automatic review, should the category applying to a patient change.

19. We considered whether there should be a narrower definition of those who may be subject to compulsion but concluded, on balance, that this was not appropriate. We consider in this context the particular issues of learning disability and personality disorder below.

Alternative approaches

20. There are standard diagnostic manuals for the classification of mental disorder, of which the two most important are the World Health Organisation's International Classification of Diseases, currently in its 10^th edition, and the Diagnostic and Statistical Manual of the American Psychiatric Association, currently in its 4^th edition. One psychiatrist who responded to our second Consultation criticised our rejection of a formal link with such systems, arguing that these were the most secure and best evidenced basis for identifying mental disorder.

21. Nevertheless, we do not believe that such a link is helpful. Apart from the fact that these manuals include conditions which we would not wish to include within the scope of mental health law, they are subject to regular revision. A new Act, which repeated definitions contained within a diagnostic manual, would be out of date as soon as the manual was revised. It would also not be desirable to link the legislation to a manual as it was updated from time to time, since this would mean the law changing by a mechanism which was outwith Parliamentary scrutiny.

22. Another approach would be to move away from diagnostic criteria and attempt to include people on the basis of need, rather than a particular diagnostic label. There was some support for this idea, particularly from social work respondents. This may reflect general practice, in social work legislation, which refers to "persons in need" (in the Social Work (Scotland) Act 1968) and "children in need" (in the Children (Scotland) Act 1995).

23. Although this idea has attractions, we were not persuaded that it could be applied practically to mental health law. Legal respondents in particular argued strongly for definitions which were clear and understandable to those who have to operate the Act. We were not satisfied that a sufficiently clear definition based on needs rather than diagnosis could be devised.

24. In relation to compulsory measures, the presence of mental disorder would be crucial for compliance with Article 5 of the European Convention on Human Rights (the right to liberty and security of person). This would not prevent a definition based on need rather than diagnosis being applied to other aspects of mental health law. However, we felt that a definition which did not focus on the presence of mental disorder might serve to dilute the responsibilities of agencies, including the Mental Welfare Commission, to the core group of people with significant mental illnesses and disabilities.

Mental illness

25. Mental illness is clearly included within s17, without qualification. The term 'mental illness' is not further defined in the Act. We are aware of no Scottish case law on the meaning of the term. The Court of Appeal, in the leading English case, W v L,¹⁴ suggested that the words 'mental illness' are ordinary words of the English language, with no special medical or legal meaning, which should be construed 'in the way that ordinary sensible people would construe them'¹⁵. However, this test has been criticised by academic commentators as too broad, and it is not clear that a Scottish court would give such a wide interpretation of the term. The requirements of the European Convention on Human Rights, as interpreted by the European Court in the Winterwerp case, include the existence of a true mental disorder, established by objective medical expertise, as a justification for detention.

26. Notwithstanding this case law, it would seem in practice that psychiatrists are comfortable with the term 'mental illness', and feel able to give evidence to the courts as to whether it is present in a particular case. As with the term 'mental disorder', we do not believe that further statutory definition would be helpful. Nor do we believe that the term requires any particular qualification or additional definition in relation to considerations of compulsory care and treatment.

27. This category would cover psychotic disorder such as schizophrenia, but also non psychotic conditions such as disorders of mood, severe obsessive compulsive disorder and anorexia nervosa. It would also cover dementia and acquired brain injury with associated mental symptoms. This broad scope was generally supported in our second consultation.

28. A few respondents to our first Consultation particularly mentioned attention deficit hyperactivity disorder as a condition which should be included in the Mental Health Act. We are aware that this is a controversial diagnosis, and we do not recommend that it be specifically mentioned in the Act. However, we believe that such a condition might fall within the category of mental illness in exceptional cases.

29. In our second Consultation, there was a preference, on balance, for retaining the term 'mental illness' to describe this category. Alternative suggestions included 'mental health problems', 'severe mental health problems' and 'severe mental illness'. We do not believe that these terms are an improvement on 'mental illness', and it may be confusing to introduce the issue of the degree of severity of the condition into the broad categories covered by the Act.

Learning disability

Should learning disability be in the Act?

30. A number of organisations representing the interests of people with learning disabilities made strong representations that this group was inappropriately placed in an Act which was predominantly drafted to meet the circumstances of people with mental illness. This included bodies such as ENABLE and People First. Against that, some medical respondents felt that inclusion within the Act was an appropriate means of providing care in some circumstances, and removing learning disability from the Act would place some people with learning disabilities at greater risk of harm, or of being inappropriately subject to imprisonment or other criminal justice disposals.

31. Research has recently been carried out into the use of the Act for people with learning disabilities¹⁶, which may provide a context for consideration of this question.

32. As at 1 April 1999, the researchers found 178 people who were detained in hospital and had a diagnosis of learning disability. Forty-four of these were in the State Hospital. One hundred and twenty one patients were detained under the Mental Health Act, and 57 under the Criminal Procedure (Scotland) Act.

33. The grounds for detention were stated on 177 of the forms (the remaining person was on an emergency order, which does not require the grounds to be stated). Fifty-one patients were detained because of a mental illness, either alone, or associated with another diagnosis. The other 126 were detained because of abnormally aggressive or seriously irresponsible behaviour associated with a learning disability, but of these 21 were subsequently found to have some form of mental illness.

34. Fifteen of the 177 patients were categorised as having 'severe mental impairment'. In 132 of the cases, the degree of learning disability was classed as borderline or mild.

35. The research suggests that the most common reasons why people with learning disabilities might be detained include

• a co-existing mental illness (not always identified at the time of detention)
• as an alternative to a prison disposal in criminal cases
• to manage problematic behaviour, particularly aggression, sexually inappropriate behaviour and arson.

36. On average, the duration of detention for people with learning disabilities is significantly longer than that for people with mental illness. In 57 cases, it was recorded that the patients could have been looked after in conditions of lesser security in the community but suitable facilities were not available.

Arguments against inclusion

37. The arguments against inclusion in the Act suggest that many of the underlying assumptions of the legislation, particularly in relation to detention, do not hold for people with learning disabilities. The Act is based on the idea that people who may require treatment, but do not accept the need for it, may be detained in hospital, under the care of a psychiatrist, to receive such treatment.

38. Unlike mental illness, learning disability is a lifelong condition, which cannot be cured or alleviated by medication, although an improvement in functioning can often be achieved by other measures. People may require care and support, but the trend over a number of years has been against the 'medicalisation' of learning disability.

39. Some people with learning disabilities may well have a mental illness, but such people can be detained if necessary, under mental health law, whether or not they have a learning disability.

40. Except where a mental illness is also present, psychiatrists are unlikely to take the lead role in providing care and support for people with a learning disability. Insofar as there are interventions directed at alleviating problems caused by a person's learning disability, these will more commonly be psychologically based. The Act contains no specific safeguards in relation to such interventions. Furthermore, the evidence of the effectiveness of interventions which are authorised under mental health law is limited. Challenging behaviour may reflect inappropriate or inadequate services, and the answer should be to provide the right services, rather than place the client under greater constraints.

41. Learning disability hospitals are in the process of closure. The review of services for people with learning disabilities, commissioned by the Scottish Executive, recommended that health boards should have plans in place for the closure of all remaining long stay hospitals by the year 2005¹⁷. Where such hospitals have closed, there have been practical problems in accommodating people with learning disabilities who are subject to detention. In some cases, special health care facilities have been developed, but this can lead to these patients having fewer options for their care than others with similar needs.

42. The introduction of the Adults with Incapacity (Scotland) Act provides an alternative legal framework for the care and treatment of adults with learning disabilities who are not able to consent to necessary medical treatment, or require some form of guardianship.

43. Finally, it is argued that the continued inclusion of learning disability in mental health legislation perpetuates the marginalisation of learning disability, and confusion between mental illness and learning disability.

Arguments for inclusion

44. Those who support the continued inclusion in the Act of learning disability accept that, for the great majority of people with learning disability, detention will not be necessary or appropriate. (The figure of 178 detained patients can be seen in the context of there being around 2,450 people with learning disabilities being cared for in hospital in 1998, and around 5,400 in care homes or supported accommodation.¹⁸) However, they suggest that it is not uncommon for people with learning disability also to have some form of mental illness. Diagnosis in such cases can be difficult, and may require close observation in a controlled setting over a substantial period of time.

45. They also suggest that removal from the Act would leave people with learning disabilities who commit criminal offences subject to the full rigours of the criminal law. This might mean more people with learning disabilities going to prison. This would not only be inhumane, but would be unlikely to address the causes of the offending behaviour, meaning that people may well commit further offences on release.

46. There are also a small number of people with learning disabilities who have not been convicted of a criminal offence, but whose behaviour may be inappropriate to a serious degree or even dangerous. Some framework is required to allow such people to be looked after safely, both to protect others and to allow interventions intended to modify the inappropriate behaviour.

Offenders with learning disability

47. It is common ground that, for offenders who have learning disabilities, a humane alternative to prison may be necessary. However, it is debatable whether the Mental Health Act provides the best mechanism to achieve this.

48. At the event organised by ENABLE for our Committee (see Annex 6), we received information regarding the relationship between learning disability and offending behaviour. The majority of people with learning disabilities who offend are young men with mild to borderline learning disabilities. In general, the range of offences they commit, and the reasons for offending, are similar in many respects to those of other offenders.

49. Although the Mental Health Act does allow alternatives to normal penal disposals, it was suggested that the way in which the criminal justice system dealt with this group was often inconsistent and even arbitrary. Some offenders with a diagnosis of learning disability would be best served by being made subject to the normal processes of the criminal law, but were diverted out of the system, while others, who should receive special treatment, sometimes ended up in prison. The decision on whether a person's offending behaviour should be dealt with by the mental health system, the criminal justice system, or informally, depended on a range of factors, most of which had little to do with the needs of the individual offender.

50. There are also problems about the use of mental health law to detain, on the basis of risk to others, people with learning disabilities who have not been convicted of a criminal offence. If treatment under the Act has little direct effect on the behaviour which causes concern, this could amount to a form of preventive detention. This arguably discriminates against people with learning disabilities.

The experience of New Zealand

51. Most of those who opposed the continued inclusion of people with learning disabilities in mental health legislation accepted that some provision might be needed to deal with the issues of offending or dangerous behaviour, but argued that such legislation should be framed specifically for people with learning disabilities. We therefore took steps to obtain information about the situation in New Zealand, where learning disability has been removed from mental health law.

52. In 1992, the Mental Health (Compulsory Assessment and Treatment) Act was passed. This excluded intellectual disability (the term used in New Zealand for learning disability) from the scope of the Act. This reflected a view that there was a fundamental difference between learning disability and mental illness. Although this approach is still widely supported, the removal from mental health law did create a gap, to the detriment of a number of people with learning disabilities.

53. One effect of the change was that a number of people who had been in hospital were discharged, including some people with an offending history who then went on to commit further offences. Doubt was cast on whether people with an intellectual disability could be treated by the criminal courts as 'unfit to plead', although the courts eventually ruled that this was still possible.

54. In view of the gap that had been created and the difficulties arising from that, steps are now being taken to make separate provision for people with learning disabilities. The Intellectual Disability (Compulsory Care) Bill was introduced in 1999. This Bill provides for the compulsory care of individuals with an intellectual disability

• charged with an imprisonable offence and convicted or found unfit to stand trial or acquitted on the grounds of insanity, or
• whose behaviour poses a serious risk of danger to themselves or others and who will not voluntarily access the care and support services needed for their own or others' protection.

55. It is estimated that around 200 people in New Zealand (out of a population of 3 2 million) might require care under this Bill. The framework for compulsory care is similar to that provided under mental health legislation, but is tailored to the particular population covered by the Bill. At the moment, appropriate services for this group are limited, but it is hoped that the legislation would facilitate their development. It is intended that services would not only be based around in-patient care, but that community services would also be provided under the legislation.

Our proposals

56. The arguments that people with learning disabilities are not well served by the current Act have considerable force. Some of the recommendations we make elsewhere in the report may alleviate this problem to some degree. For example, the possibility of compulsory care being provided in a range of settings, rather than only in hospital, and the requirement that compulsory treatment be based on an agreed plan of care, may allow greater scope for interventions tailored to the particular needs of individuals with learning disabilities. We also recommend in Chapter 10 (paragraphs 35-37) that consideration be given to additional protection for behavioural treatments. In Chapter 26ü we make recommendations regarding greater involvement of psychologists and mental health officers in criminal proceedings, which may improve the assessment of the appropriate option in such cases.

57. However, we believe that more needs to be done. Although we have sought to take account of the situation of people with learning disabilities, this is in the context of an overall review which has had to consider many other issues. It would be wrong for people with learning disabilities simply to be swept along in legislative change which is mainly directed at mental illness.

58. Learning disability services face huge change over the next few years. This has been given impetus by the recent Scottish Executive review of learning disability services. We believe there is a need to provide a mechanism to look, in the round, at what legislative framework would help to support high quality services for people with learning disabilities, and protect their human and civil rights. This should take account of the implications of the Adults with Incapacity (Scotland) Act, as well as mental health law.

59. In our second Consultation, we proposed that further work be undertaken, by a new body with appropriate expertise, to consider what compulsory measures of care might be appropriate for people with learning disabilities and, in particular, whether, over the medium to long term, learning disability should be removed from the Mental Health Act, and whether separate legislation for people with learning disabilities should be framed.

60. This proposal received widespread support. Most of those who responded to the question supported consideration being given to a separate legal framework for compulsory measures in relation to learning disability. Social work and voluntary bodies were particularly in favour of this. ENABLE strongly supported a completely separate legal framework. Against this, several medical organisations, such as the Royal College of Psychiatrists, felt that learning disability should be retained as a category of mental disorder within mental health law. Some organisations, such as the Law Society of Scotland, suggested that if learning disability were to remain within the Mental Health Act, there should be a specific part of the Act dealing with this group.

61. We believe it would be premature to remove learning disability from mental health law. To do so might result in some people with learning disabilities being denied necessary care and support. The necessary infrastructure of services which might support an alternative legislative approach is not yet in place, particularly in relation to people with learning disabilities who commit offences, or present a risk to others.

62. However, we remain of the view that the possibility of legislation specifically directed at learning disability should be considered further. The review should consider the experiences of people with learning disabilities who have been detained, and legislation from other jurisdictions. It should pay particular regard to ways of improving the arrangements for dealing with people with learning disabilities who offend, or who are at risk of offending. We would wish to see such a review take place at an early date.

Definition of learning disability

63. We believe that 'learning disability' should replace the term 'mental handicap'. Many respondents to our first Consultation felt the term 'mental handicap' was outmoded. It has been replaced by learning disability for many official purposes. For example, the recent review of services conducted by the Scottish Executive employed the term 'learning disability'.

64. We see the use of the term 'learning disability' in the new Act as being broadly synonymous with the use of mental handicap in the 1984 Act. It would include those with intellectual disabilities caused by genetic conditions, such as Down's syndrome, as well as those whose intellectual impairment has no identifiable cause.

65. As we suggest above, there are some conditions, such as Asperger's syndrome and other autistic spectrum disorders, where it is not totally clear that they fall within the term 'mental handicap'. The same might apply to the term 'learning disability'. These conditions affect an individual's ability to interact socially, although other aspects of intellectual functioning are not always seriously impaired. We would intend that such conditions should bring a person within the general scope of the Act.

66. It is our understanding that the term 'learning disability' is not restricted to a straightforward measurement of intelligence such as an I.Q. test, but would take account of aspects of social functioning. Even were one to seek to define learning disability by reference to intelligence alone, we heard evidence to the effect that the threshold between what might be characterised as low normal intelligence and learning disability is not fixed, and different thresholds have been used at different times. As with mental illness then, diagnosis of such a condition is something which should take account of current clinical norms and understanding, rather than be unduly constrained by a rigid statutory definition.

67. The Scottish Executive's review of learning disability services contains a discussion of definitions of learning disability¹⁹. It makes reference to the following definition:

" A learning disability is a significant, lifelong condition which has three facets:

• reduced ability to understand new or complex information or to learn new skills
• reduced ability to cope independently; and
• a condition which started before adulthood (before the age of 18) with a lasting effect on the individual's development."

68. We believe that this definition is consistent with our approach. We do not believe that it is necessary for it to be spelled out in these terms in the legislation, but such a definition may usefully be included in the guidance on the operation of the Act, and in the Code of Practice.

'Mental impairment' and 'severe mental impairment'

69. 'Mental impairment' is defined in s1 of the Act as

'a state of arrested or incomplete development of mind not amounting to severe mental impairment which includes significant impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned',

and 'Severe mental impairment' is defined as

'a state of arrested or incomplete development of mind which includes severe impairment of intelligence and social functioning and is associated with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned'.

70. For a person with mental impairment to be detained, it is necessary that
he or she be 'treatable': the treatment to be provided under detention must be likely to alleviate or prevent deterioration in his or her condition. This requirement does not apply to severe mental impairment.

71. In short, then, a person with a learning disability (and no additional mental illness) can only be detained if

(a) he or she manifests abnormally aggressive or seriously irresponsible behaviour,
and either
(b) he or she is treatable,
or
(c) the degree of impairment is severe.

72. The definitions of mental impairment and severe mental impairment in the current Act are, in our view, unhelpful. Although they may have been intended as safeguards against detention being overused in relation to people with learning disabilities, in practice they would seem to add little to the other criteria for detention in s17. Furthermore, they create an unfortunate association between mental handicap and aggressive or irresponsible behaviour.

73. We recommend in Chapter 5 (paragraphs 46-49) that there should be a 'benefit' test which would apply in all cases of patients subject to compulsion, and in the same chapter (paragraph 58-68) that the present specific provision on treatability relating to certain categories of patient should be repealed. If this were to be done, the distinction between different degrees of mental impairment would be unnecessary.

74. We therefore believe that the terms 'mental impairment' and 'severe mental impairment' should be abolished. As with mental illness, there should be a simple term setting out the broad category of people who may, if the necessary criteria are met, be subject to compulsory care. Nearly all of those who responded to our second Consultation agreed with our suggestion that the terms 'mental handicap', 'mental impairment' and 'severe mental impairment' should be replaced by the single term 'learning disability', and we so recommend.

Personality disorder

Nature of personality disorder

75. Although personality disorder is an accepted medical diagnosis, the term is one which excites considerable controversy. It may be helpful if we set out our general understanding of the term.

76. Personality disorder is a term used to describe a wide range of conditions where a person manifests behaviour, and responses to personal and social situations, which represent extreme or significant deviations from the way the average individual in a given culture perceives, thinks, feels, and particularly relates to others. Often, but not always, the person will experience distress and problems in social functioning and performance.

77. There are various sub-categories of personality disorder. Some, such as borderline personality disorder, are close to accepted forms of mental illness. These may involve bizarre and self-destructive behaviour and significant distress to the sufferer. Others, particularly anti-social personality disorder, have been criticised as being diagnosed largely through anti-social behaviour, and so could be seen as simply describing violent or dangerous people, rather than mental disorder.

78. The total numbers of people with personality disorder to some degree is thought to be fairly high - one estimate is 11% of the adult population²⁰. Personality disorders are often associated with a high degree of involvement with medical and social services, and an increased incidence of ill-health and early death. People with personality disorder may have other problems such as substance misuse. It should be emphasised that the potentially dangerous group of people with a severe anti-social personality disorder is only a small subset of the wider group of people with personality disorders; most of whom present no risk to others.

79. Personality disorders are distinguished from mental illness by being seen as reflecting the individual's underlying personality. However, diagnosis is difficult, and many people are diagnosed with both a personality disorder and a mental illness (or in some cases a learning disability), or the diagnosis may shift from one to the other.

80. There is controversy over whether personality disorders can be successfully treated. The consensus, such as it is, is that some treatments are of benefit to some sufferers, particularly with less severe conditions, but normally require the co-operation of the patient. Most treatments involve some form of psychotherapy (such as cognitive behavioural therapy) although drug treatment is sometimes used.

The current legislative position

81. Prior to the introduction of the Mental Health (Public Safety and Appeals) (Scotland) Act 1999, personality disorder was not specifically mentioned in the Act. However, section 17(1) of the Act imposes a requirement that a person whose mental disorder is 'a persistent one manifested only by abnormally aggressive or seriously irresponsible conduct' should only be detained if treatment is likely to alleviate or prevent a deterioration in his condition. This is the so-called 'treatability test'. The terminology used is consistent with the English definition of psychopathic disorder. The fact that the treatability test is required at all can only be on the basis that such people can, at least in some cases, be said to suffer from mental disorder as defined in section 1 of the Act. However, the test will not encompass all patients who might be said to have a primary diagnosis of personality disorder.

82. Currently, personality disorder is included within the definition of 'mental illness' in s1 of the 1984 Act, as a result of the Mental Health (Public Safety and Appeals) (Scotland) Act 1999. It was stated at the time of the passing of the legislation that this was not intended to change psychiatric practice in relation to personality disorder, or to lead to an increase in the number of detentions.

83. It is not clear precisely how this change in the law relates to patients within the category of mental disorder set out in section 17 (1) (a) (i) of the Act but it seems that the present position is, in effect, that people with personality disorders can be detained under the Mental Health (Scotland) Act if they meet the normal tests of 'appropriateness' and 'necessity', which we discuss in Chapter 5, but that for some people with personality disorder, a treatability test also applies.

The inclusion of personality disorder within the Act

84. We have given considerable thought to whether people with personality disorder should be subject to compulsory treatment, solely on the basis of such a disorder, and we discuss this further in paragraphs 94-113. However, we are clear that the treatment of personality disorder is an important aspect of mental health care, particularly in relation to those aspects not dealing with compulsion, such as the responsibilities of the Mental Welfare Commission and local authorities.

85. In both our first and second consultation documents, we asked whether personality disorder should be included in the Mental Health Act. On both occasions, a clear majority of respondents supported inclusion, although health professionals and organisations were generally less in favour of inclusion than social work and voluntary sector responses.

86. The Law Society of Scotland supported inclusion, arguing that patients' diagnoses often shift between mental illness and personality disorder, and exclusion might make it more difficult for needs to be assessed and met. The Scottish Association for Mental Health expressed concern that explicitly to exclude this group might result in some people experiencing mental distress being denied help. The National Board for Nursing, Midwifery and Health Visiting for Scotland strongly supported the inclusion of personality disorder within mental health law, provided the condition was well defined and related to treatability. Greater Glasgow Health Board also supported inclusion, whilst endorsing the view of the Committee that social control should not be a matter for health agencies.

87. Against this, responses to our second Consultation from the Royal College of Psychiatrists and the State Hospitals Board argued that there was no need for a separate category of personality disorder in relation to detention. This would not prevent the compulsory treatment, where appropriate, of an associated mental illness, or treatment for personality disorder being given on a voluntary basis. The State Hospitals Board suggested that the principle of voluntary treatment for behavioural problems associated with personality disorder might be extended to transferred prisoners. The British Medical Association also opposed inclusion, arguing that the term 'mental illness' was sufficiently flexible to allow the detention in an emergency of a person with personality disorder.

88. Some respondents advocated different approaches to the problem. The British Psychological Society did not wish personality disorder to be included as an explicit category in the Mental Health Act. However, they advocated that the term 'mental illness' be replaced by a term such as 'mental, emotional or behavioural dysfunction', which would also seem to encompass forms of personality disorder. The British Association of Social Workers (BASW) suggested that the sub-division of 'mental disorder' into three different categories of mental illness, learning disability and personality disorder was unhelpful, since in practice people may have a mixture of difficulties. BASW suggested instead that the focus should be on the person's cognitive ability, which could be affected by social or emotional experiences, as well as mental illness or learning disability. This interpretation would therefore potentially include personality disorder, amongst other conditions, within the scope of the Act.

89. We heard a considerable amount of evidence about the problematic nature of the term 'personality disorder'. Several people argued that it was commonly used, not as a positive diagnosis, but as an exclusionary label: a means of removing people from the concern of mental health professionals. Others criticised the term itself, as one which was deeply stigmatising and unhelpful to the service user. To some, the term implies that the person's problems lie at the core of their personality. In other words, they are the problem, not a condition from which they suffer.

90. The term is also problematic in encompassing a wide range of conditions - some of which appear to shade into mental illness, while others are arguably synonyms for anti-social behaviour.

91. Against this, standard diagnostic manuals such as the ICD-10 and DSM-IV do accept personality disorder as a category of mental disorder. Diagnosis is difficult, and we heard of many people who have experienced changes in diagnosis from personality disorder to schizophrenia, and vice versa. In that context, we would be concerned if people were denied the protections contained in the Act, such as the oversight of the Mental Welfare Commission, because of a label of personality disorder rather than mental illness having been applied.

92. Much attention is now being paid to developing a better understanding of personality disorders and their treatment. So far as we can ascertain, this is unlikely to lead in the near future to a substantial re-categorisation of personality disorder in general, or the different types of personality disorder which have been identified.

93. Taking account of the evidence we have received, we have concluded that personality disorder should appear as a separate category, and not be subsumed in the category of mental illness, as is currently the case. In line with our general approach, it should not be defined further in legislation.

Personality disorder and compulsion

94. The number of people detained on the basis of the definition set out in section 17(1)(a)(i) is very small. In the period 1 April 1998 to 31 March 1999, 'persistent aggressive or seriously irresponsible behaviour resulting in the need for treatment' was the reason for detention in only two of the 1055 s18 orders granted. In the 1960s, a significant number of people were held in the State Hospital with a primary diagnosis of personality disorder, but this has reduced to less than 5% of the patient population.

95. The figures, however, may not tell the whole story. Some of the people detained under the other categories of mental illness, mental impairment and severe mental impairment will also have a personality disorder. In other cases, diagnosis might shift over time from personality disorder to mental illness, and vice versa.

96. The primary reason why there are few detentions of people on the basis of personality disorder alone is perhaps that, in most cases, the view is taken that detention is unlikely to be of benefit. Compulsory medication is generally not indicated, except sometimes as a response to a short-term crisis. Most effective treatments are psychotherapeutic in nature, requiring the co-operation of the service user, and so cannot be delivered without consent.

97. We accept that this is the case, and would not support a more extensive use of compulsory measures for people with personality disorders. However, we found the question of whether personality disorder should be excluded altogether from the provisions of the Act which relate to compulsory care a difficult one, with strong arguments on either side.

Arguments for possible compulsion

98. Personality disorder is a recognised mental disorder (or group of disorders). It is arguable, therefore, that it should be treated in the same way as other mental disorders. Compulsion might only rarely be justified, but the same can be said for some mental illnesses, and for learning disability. Inclusion of personality disorder does not, by itself, mean that individuals with personality disorder can be detained. The law at present contains other criteria which must be satisfied before compulsion can take place and the same will be true if our proposals for compulsory intervention in Chapter 5 are adopted. If the criteria are met, in the case of an individual with personality disorder, there is no reason why compulsion should not be possible.

99. Much of the debate about personality disorder has concerned a small group of people classified as having anti-social personality disorder, who have committed serious crimes. However, there are many other people with, for example, borderline personality disorder, who are much more likely to harm themselves, perhaps seriously. This is a group who may require compulsory intervention, even if on a short term basis to deal with a crisis.

100. Although it may be impossible to force effective treatment on someone with a personality disorder, in some cases a compulsory framework may provide a structure which will assist in negotiating a treatment plan. Personality disorder may not differ greatly in this respect from certain conditions within the mental illness category, such as anorexia nervosa. The possibility of compulsion may, for example, allow some offenders, such as women with borderline personality disorder, to be subject to a hospital disposal, as a humane and safe alternative to imprisonment.

101. Although treatment options may be limited at present, this might change in future, and it would be wrong to rule out the possibility of compulsion, should such treatments be developed.

102. If personality disorder were to be excluded from compulsory measures, it might call into question the position of those who are currently detained on that basis.

Arguments against compulsion

103. Although personality disorder is a recognised type of mental disorder, some of our respondents felt that it is not sufficiently well defined to be used as the basis for statutory intervention. It is often not a positive diagnosis, but is in effect a way of saying that a person is exhibiting problematic behaviour without having a definable mental illness.

104. Not only can effective treatment for personality disorder not be forced on an unwilling patient, but to allow detention on the basis of personality disorder might add to pressure on psychiatric services to take responsibility for people who cause problems for society, or commit crimes, even when a clear therapeutic aim cannot be identified.

105. Conversely, if people with personality disorder feel that they may be liable to detention, this might discourage them from seeking or accepting help.

106. Prior to the Mental Health (Public Safety and Appeals) (Scotland) Act 1999, it was not felt necessary to mention personality disorder specifically in the Act, and there is no reason to believe that this created significant difficulties.

Our conclusions

107. In some respects, there are attractions in reverting to the position prior to 1999, when personality disorder was not mentioned in the Act. However, it would not be realistic to ignore the fact that the 1999 Act has given new emphasis to the question of personality disorder.

108. Furthermore, the drafting of the Act, even prior to 1999, was not ideal. Although the term personality disorder was not used, the inclusion of the category of mental disorder 'manifested only by abnormally aggressive or seriously irresponsible conduct' in s17 served to include it by implication. This form of words is a legal test, which does not link well with clinical diagnoses. The equivalent formula in the English Act has been repeatedly criticised, including by the Butler Committee, the Fallon Inquiry into Ashworth Hospital, and the Reed working party on psychopathic disorder²¹.

109. As we say above, we are of the view that people with personality disorder require and deserve appropriate services, and so should be included within the scope of mental disorder so far as mental health legislation in general is concerned.

110. On the question of compulsion, the problem cases in future are not, in practice, likely to be those with a sole diagnosis of anti-social personality disorder, with no associated mental illness or learning disability. Few, if any, Scottish psychiatrists are likely to recommend compulsory measures in such cases. The more difficult cases are those where diagnosis is uncertain, or where a person with an underlying personality disorder experiences a crisis, which could be characterised as an episode of mental illness.

111. If personality disorder is mentioned in other parts of the Act but not in relation to compulsion, this would serve to exclude it, by implication, as a ground for compulsion. This could result in difficult cases turning on whether the patient falls within the distinct legal categories of mental illness or personality disorder, rather than the tests we set out in Chapter 5 of impaired judgement, risk, and benefit from treatment.

112. It is likely that many, indeed most, people with personality disorders will not be liable to detention, because they will not meet these tests: for example because their judgement is not impaired, or because there is no plan of care to be delivered under compulsion which is likely to benefit the patient. In our view, that would be the right way of determining such questions, given the frequent difficulties in reaching a firm diagnosis.

113. In the light of all the above, we have concluded that personality disorder should be included in the Mental Health Act as a form of mental disorder for which compulsory measures may be imposed, where the normal criteria are met.

Exclusions

114. We believe that certain conditions should continue to be excluded from the definition of mental disorder. These are as follows.

Sexual orientation or behaviour

115. The current Act refers to 'promiscuity' and 'immoral conduct'. We believe that these terms are outdated and should be replaced.

116. It was suggested in evidence to us that it may not be necessary specifically to exclude sexual behaviour, since very few psychiatrists would nowadays treat, for example, promiscuity or homosexuality as a mental disorder. Against that, some sexual behaviours such as fetishism and transvestism remain within standard diagnostic classification systems, and there is sometimes pressure to treat other deviant behaviours as justifying detention.

117. We feel it is worthwhile to make clear that, where unaccompanied by some form of mental disorder, particular sexual preferences or behaviours should not be regarded as bringing a person within the scope of mental health law.

Alcohol or substance misuse

118. The current Act excludes 'dependency on alcohol or drugs'. We agree with this, but prefer the term 'misuse', rather than the more narrow term 'dependency'. The use of drugs, alcohol or other substances should not debar a person from inclusion within the Act if they are a feature of the person's underlying mental disorder, co-exist with a mental disorder, or have led to the development of a mental disorder. An example of the latter situation would be Korsakoff's syndrome, which is a form of dementia caused by prolonged alcohol misuse.

119. The basic reason for not including alcohol and substance misuse within the Act is simply that they cannot be considered, on their own, as mental disorders. There are other justifications, including the argument that such behaviour is essentially voluntary in nature, and so the responsibilities set out in law may be different in nature from that pertaining to mental disorder.

120. When visiting community mental health services, we heard some evidence that the distinction between mental health and addiction services was not always helpful, given the very high degree of co-morbidity between substance abuse and mental illness. However, this is an issue which relates to the configuration of health and social care services. If it requires to be addressed, this can be done without changes to mental health law.

Anti-social behaviour

121. We do not wish mental health legislation to be used for the social control of undesirable or criminal behaviour in the absence of mental disorder.

122. An area in which we wish to urge particular caution is in the management of severe conduct problems in children. Conduct disorders are listed in ICD 10 and DSM IV, and this has provided the rationale for unruly children being held in several States in the USA - a development which we would not wish to see introduced in Scotland. We would expect the procedures in the Children (Scotland) Act 1995 to continue to be the normal mechanism for the small minority of children exhibiting conduct disorder in need of compulsory measures. We discuss the overlap between child care law and mental health law further in Chapter 18.

Imprudent behaviour

123. The Adults with Incapacity (Scotland) Act 2000 contains an additional exclusion from the definition of mental disorder, namely 'acting as no prudent person would act'²². We believe that this would be a helpful addition to the exclusions within the Mental Health Act, to make clear that eccentricity, and even unwise behaviour, cannot by themselves be taken as mental disorder.

Changes in category

124. As we have said, it is not uncommon for people with a diagnosis of mental illness subsequently to be diagnosed as having a personality disorder, and vice versa. The same can happen with learning disability and personality disorder, and people with learning disabilities may be diagnosed subsequently as also having a mental illness.

125. At the moment, a change in diagnosis of a detained patient does not require a review of the appropriateness of detention, even where the diagnosis changes from one where the 'treatability' test does not apply, to one where it does: for example a person diagnosed as being mentally ill whose diagnosis changes to anti-social personality disorder.

126. We were concerned that this was potentially unfair, and proposed in our second Consultation that, where there is a change in the category of mental disorder which applies to a person subject to compulsion, there should be automatic recourse to the tribunal to test the validity of ongoing detention. Nearly half of those who responded to the consultation expressed a view on this point, and virtually all favoured such an automatic review.

127. To some extent, the issue is less significant under our proposals than under the current Act, because we recommend that the same criteria for compulsory care should apply to all categories of mental disorder. Nevertheless, a revised diagnosis, which results in the category of mental disorder being altered, is a significant change of circumstances and we consider therefore it should result in a review by a mental health tribunal.

128. A review by the tribunal would be triggered where a recommendation for renewal of long term compulsion indicated that the patient's diagnosis had moved from one category to another. In the case of a patient with dual diagnosis (such as learning disability and mental illness), the removal or addition of one element in the dual diagnosis would also trigger a change.

129. The same principle should apply for restricted patients. In line with our recommendations for this group of patients in Chapter 27, a change in diagnosis in the responsible medical officer's annual report should trigger a review of the case by the Restricted Patients' Review Board.

Use of the Mental Health Act definition in other legislation

130. Criticism was made, particularly by the Law Society of Scotland, of the indiscriminate use of definitions from the Mental Health (Scotland) Act in other, unrelated, legislation. Examples given included eligibility for jury service and the definition of vulnerable witnesses in the Criminal Procedure (Scotland) Act.

131. There is good reason for having consistent definitions in legislation which serves related purposes. Therefore, we recommend that a new definition of mental disorder be applied to the Adults with Incapacity Act 2000, the Social Work (Scotland) Act 1968 and the Criminal Procedure (Scotland) Act 1995. In relation to other statutes which currently make reference to the 1984 Act, we would not wish the definition simply to be replaced by our proposed new definition. Each case should be considered on its own merits. In appropriate cases, a definition fit for the particular purpose should be introduced.

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