MENTAL HEALTH, SOCIAL POLICY AND THE LAW MENTAL HEALTH, SOCIAL POLICY AND THE LAW Tom Butler M MACMILLAN ©Tom Butler 19~5 First published 1985 Published by THE MACMILLAN PRESS LTD Houndmills.Basingstoke,HampshireRG2I2XSandLondon Companiesand representatives throughout the world British Library Cataloguing in Publication Data Butler.Tom Mental health.social policy and the law. I. Mentally ill- Care and treatment Government policy - Great Britain- History I. Title 362.2'0425'094\ RA790.7.G7 ISBN 978-1-349-07441-9 ISBN 978-1-349-07439-6 (eBook) DOI 10.1007/978-1-349-07439-6 To Marion, with much love Contents Preface ix Introduction 1 The PoliticsofSocial Changeand the Reform ofthe Lunacy Laws 13 Class, politicsand thestate:thesocial contextof lunacy reform 13 Thegrowthofgovernmentinthe nineteenth century:parliamentaryenquiryandthe emergenceof lunacy reform, 1808-45 22 2 The RiseofJudicial Detentionand theAsylumsinthe NineteenthCentury 38 The professionalisation of reform:the relationshipofgovernment and medicine up to 1845 3~ Thegrowthofthe asylum after 1845and the problemof civilliberty:the Lunacy Act, 1890, and the unintendedconsequencesof social reform 47 3 Society,Social Policy and Lunacy: theLimits tothe Legal Approach, 1890-1939 58 Philanthropyandsocial reform:changing attitudes to the role of the state 5~ Official enquiryand government response to the 'conditionof England' question 70 The break-upof the lunacy law:DrLomax, the Harnettcase,the MacMillan Report and the MentalTreatmentAct,1930 79 vii viii Contents 4 War, HealthandWelfare: theConvergence ofMental Health and GeneralHealth Policy, 1939-48 100 War,social policy and the tactical value of mental healthcare 100 Theillusionof an integratedhealthservice 115 5 Politics, Policyand Austerity, 1948-57:theSocial ContextofMental Health Reform 128 Political debateson the future of welfare, mental health provision and the Mackintosh Report 128 Parliamentaryinterestinthe case ofthe Shropshire girl 139 The PercyReport andthe challengeto the lunacy laws 148 Institutionsand austerity:new methodsand old problems 161 6 The MakingoftheMental Health Act, 1957-60 173 The response to the PercyReport 173 Parliamentarypoliticsand mental health reform 181 TheMental Health Act, 1959 190 Conclusion 202 Notes and References 214 Bibliography 226 Index 245 Preface Theidea of this researchoriginatedwhen Iwasworkingasa MentalWelfare Officer and Social Worker for Durham County Council, Social Services Department. My initial interest in the field was fired by reading the work of Professor Kathleen Jones of York University. and Ishould like to acknow ledge the part played by her work in shaping my ideas. Thework wascarriedoutinthe DepartmentofSociologyand Social Policy at the Universityof Durham.The projectwasfinanced bythe Social Science Research Council and assisted by many members of the Department. In particular. Ishould like to acknowledge the help given by the late Professor Philip Abramsfor hisadvice on historical sources. and by mysupervisor. Dr Bob Roshier. IshouldliketothankMargaretFosterfor her help and patience in typing this work. I should also like to acknowledge the kindness and assistancegiven by Dr AlexanderWalk. Honorary EmeritusLibrarianofthe Royal College of Psychiatrists and the inter-library loan staffof the Palace Green Library, Durham. Finally. I should like to say that none of this research would have been possiblewithoutthe continuoushelp and encouragementof mywife Marion, who also typed successive drafts of the manuscript. To her this book is dedicated, with much love. Gloucester T.B. ix Introduction As this book appears, the Mental Health Act, 1983, is coming into use. The intention of this new legislation seems plain enough, as it consolidates the law on mental disorder contained in the Mental Health Act, 1959, and the Mental Health (Amendment) Act, 19~Q. The main provisions of the 1983 Act were introduced on 30 September 1983, and from 29 October 1984 the 'Mental Welfare Officer' is replaced by the 'Authorised Social Worker'. But such statements of procedure tell us nothing about the circumstances which gave rise to a particular social policy on mental disorder. As explanations about this society's response to mental disorder, such comments throw little or no light on why a particular social policy exists or how it came about. It will be argued throughout this book that the narrow view of mental health law and policy which focus exclusively on proceduresis an arid and incomplete approach which clouds our ability to understand social policy. In particular there are two principal drawbacks to such a legalistic view. Firstly, the reader can be coaxed into believing that mental health policy exists in a legal vacuum cut off from society. Secondly, without seeing particular laws and social policies within their specific social context, it is impossible to explain their emergence satisfactorily. The greater part of this book is taken up with the rise of English mental health policy and the persistence of particular themes in social policy. Principal amongst these themes is the role of politicsinthe makingof social policy.One consequenceof this approach isthat itdoesnotseek to reduce social policy to aseries ofprocedural changes in administrative, legal and medical practices. The introduction of the Mental Health Act, 1983, does not overcome the problems identified in this book. Rather, the new Act increases the need for Practitioners and those with a professional interest inthe mental health field to understand the origins of current policy and practices in order to develop a critical approach to it. Much of the lobbying over the past decade in the mental health field has concerned itself with the possibilities of a new Mental Health Act. In particular,campaigners have looked at the legal rights of mental patients and the procedures regarding compulsory admission to hospital. Individual cases of malpractice, such as the 2 Mental Health, Social Policy and the Law much publicised Isle of Wight case, have been highlighted by the media. Groups such as MIND have emphasised the need to make laws which protect patients against inappropriate admission to, and detention in, mental hospitals. Such campaigns have been backed by the sincerest of motives, but their policy implications have remained implicit and unclear. A new Mental Health Act which allowed for compulsory admission only after a court hearing and legal certifica tion would mean a return to the legalistic principles of the 1890 Lunacy Act. Like some current American mental health legislation, this would allow for admisson only after a formal legal hearing had taken place. Medical treatment would be dependent on legal detention for those patients who resisted informal admission. The implications of this legal view of mental health policy is fairly clear-cut for Social Services Departments in that they would be an arm of the court inenactingdue process. However, this development did not come about, and the Mental Health Act, 1983, did not meet the demands of the civil liberty lobby in the mental health field directly. The new Act upholds the spirit of the 1959 Mental Health Act in five major respects. (i) For the majority of patients, English mental health policy and practice remains firmly rooted as an institutional activity in the hospitals. The provision of health and welfare services to clients and patients is still seen in terms which are relative to their hospital admission. Services are seen as 'pre-care' and 'after care' as the central focus of professional practice remains as the episode of hospital admission. (ii) The role of the Social Workercontinues to be ambiguous in that they are asked to perform a number of tasks which may be simultaneously in conflict. The Social Worker is councillor, arbiter, social administrator, legal actor and doctors' aid. In addition, Social Services staff use their discretionary powers to bring personal skills or social work methods to bear on the circumstances of the mentally disordered client. (iii) English social policy on mental health continues to be mediated through legal statute. As long as the lawisthe recognised vehicle for social policy, then clients' crises and breakdowns will be routed through the labyrinth of legislation. The consequence of this approach for clients and their families is a sense of powerlessness, confusion and isolation. (iv) The role of the Medical Practitioner remains sacrosanct, in that