Mental health law essay - legislation and social changes PDF

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To what extent has mental health legislation since the mid-18th century reflected societies changing attitudes towards the mentally disordered? ...

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Question 3: To what extent has mental health legislation since the mid-18th century reflected societies changing attitudes towards the mentally disordered?

Before I consider the different ways in which mental health law is examined, I would like to present some general definitions in which the study of mental health has created. A practical definition of mental disorder was given by Jerome C. Wakefield a university professor as; ‘mental disorder exists when the failure of person’s internal mechanisms to perform their functions as designed by nature, impinges harmfully on the person’s well -being as defined by social values and meanings’.1 In contrast, classifications such as, ‘mad man’ and ‘knife manic’ were used to describe a man attacking his wife and daughter over a game of bingo by the media.2 The difficulty originates from the implied differentiation and understanding, whilst using the term mental health. The negative attitudes towards mental health result from the misrepresentation by the media and the misunderstanding from the public. 3 Undeniably, we all go through depression or anxiety at some stage in our lives. However, we live in a society where ignorant thoughts such as ‘he is refusing to leave his house’, ‘he is mad’ or ‘he is always depressed’ still have a wide impact to the understanding of mental illness. Therefore, attempting to change these attitudes and behaviours is indeed a hefty goal.4 The development of mental health law has been a continuing debate. The reason to this is perhaps, consequent upon mental health law trying to adapt to the economic, social and political changes in the 21st century5. Developments and social changes in technology, the closure of asylums, increasing focus on mental health problems and developments in medication have to some extent changed the way in which we question and define mental health.

The subject matter of this essay will be to discuss, whether the mental health legislation, since the mid-18th century have reflected societies changing attitudes towards the mentally disordered. In doing so, it firstly attempts to situate the early effects of the mental health legislation. Furthermore, to consider and evaluate the movement of asylum to the point where it has become a significant symbol in mental health law. The second part of this essay attempts to look at the current legalisation and suggest other factors that trigger changing attitudes, only then will I be able to discuss, as to how the legislation, to some extent has reflected societies changing attitudes towards the mentally disordered.

1 Allan V. Horwitz, Creating Mental Illness ( 2 Professor Bob Franklin, Social Policy Media and Misrepresentation ( 3 Otto F. Wahl, Media Madness: Public Images of Mental Illness ( 4 Patrick, W. Corrigan, David Roe & Hector Tsang, Changing the Stigma of Mental Illness: Lessons for therapists and advocates (John Willey & Sons, 2011) 5 Vivienne Harpwood, Modern Tort Law (Taylor & Francis, 2008) 504

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Stigma can be described as sign of disgrace that sets a person apart from others6. Hence three important questions arise is; has the mental health legislation reflected changing the attitudes towards the mentally disordered, if so, to what extent have the societies changing attitudes been taken in to consideration, and is the mental health legislation highly favored enough to avoid stigma? By means of answering this question, it is useful to locate the early history and development of the mental health law in order to be able to compare it to the most up to date legislation7. If we have a clear understanding of what kind of issues were raised in the early 18th century, we can easily comprehend to the changes of mental health law at this moment of time. Mental health law originates from the early Vagrancy Acts8. This act allowed the detention and arrest of lunatics.9 During this period mentally ill patients were seen as the poor, vulnerable part of the society and there were very little protection for the mentally ill. Clearly, by the wording of the legislation we can see that the way in which these patients were defined were rather offensive, as they were either classified as old, sick, lunatic or idiotic10. The Vagrancy Acts described mentally disordered patients as ‘furiously mad.’ This act also allowed chaining these people if necessary and therefore there was an urgent need for reform in the legislation. Developments in mental health law began to delicate shifts in the society. Towards the end of the 18th century a growth in public and private institutions aimed to position social control. The growth of industrialization and population caused a substantial increase in the number of ‘insane’ asylums. There was an increasing demand in labour, the economic status within the social space deprived those who were vulnerable and this constantly led to the changing attitudes towards the mentally ill. The development of the market economy meant that those who were insane were unable to work. A significant number of private madhouses were introduced.11 However, most of these madhouses were seen as financial enterprises as they were only aimed at making profits, with untrained staff and minor regulation, these madhouses were classified as poor working institutions.

The Victorian age saw a transformation of the madhouse into the asylum and then into the mental hospital12. During the 19th century there had been significant changes, madhouses were now both public and privately funded, these madhouses were purpose built13 rather than making profits from the

6 Allison L. Smith, 7 The Mental Health Act 1983 8The Vagrancy Act 1744, s20 9The Poor Law Act 1601 10 The Vagrancy Act 1744 11 The Madhouses Act 1774 12 Nicola Glover Thomas, Reconstructing Mental Health Law and Policy ( 13 Nicola Glover Thomas, Reconstructing Mental Health Law and Policy ( 2

vulnerable. Critics began to question the existence of mental illness for the first time.14 As the society became more charitable, the distinction between vagrants and lunatics soon became obvious. However during this period, there seemed to be a problem of overcrowding, which meant that it was becoming impossible to provide efficient treatment to all mentally disordered patients. Notably, between 1954 and 2004 there had been an increase in the population from 45m to 53m.15 There seemed to a constant back and forward movement with the asylums.

The mental health legislation has in time become a developing device, which diminished the effects of stigma aiming to forbid discrimination for the vulnerable by the mid 20th century. The passing of the Lunacy Act 1890 was seen as the start to new a progressive mental health legislation, as it set out clear legal requirements for detention. Following the Lunacy Act 1890, the Mental Health Act 1959, introduced new treatments for the mentally disordered. The Mental Health Act 1959 was a staring point in reflecting the societies changing attitudes towards the mentally disordered, since the mid-18th century. This Act reflected optimism with the new drugs for treating depression and anxiety, new skills and developing social services16. The 1959 Act aimed to prevent the enactment of stigma, and act as a medium for which stigma is created, enforced and disputed.17 Although, the 1959 Act reflected a great medical optimism, yet this was short lived.18 In the 1980’s, the Mental Health Act 1983, replaced the 1959 Act, which is the significant legislation providing the legal frame work for England and Wales today19. The 1983 Act introduced emergency orders, treatment orders, and assessment orders. Detention in hospitals without consent and management of property for the mentally disordered were two other important issues considered in this act. The Mental Health Act 2007, made amendments to the 1983 Act, without the need for replacing it. One significant change, was the issue of consulting the nearest relative before consultation. Similarly, age appropriate services were introduced to accommodate mentally disordered patients under the age of 18, in environments appropriate for their age group.20 Surely, this meant that as the legislation developed it aimed to focus more on public protection. Although, the current legislation, deters harmful conduct, remedies when harm is done, and challenges behaviour, it cannot avoid or change the attitudes that create this behaviour.

Even tough, we are currently informed about the changing legislation, the majority of the society chooses not to intervene accordingly with the law. Perhaps, this because of what we call a reflection of

14 Paul S. Appelbaum, Almost a Revolution: Mental Health Law & the Limits of Change ( 15 Professor Phil Fennell, Mental Health: Law and Practice, 2nd edition (Jordan Publishing, 2011) 5 16 M. Rolf Olsen, 17 Scott Burris, ‘stigma and the law’ (2006) The Lancet, Vol. 367 No. 9509 pp. 529-531 18 Nicola Glover Thomas, Reconstructing Mental Health Law and Policy ( 19 Professor Phil Fennell, Mental Health: Law and Practice, 2nd edition (Jordan Publishing, 2011) 20 Nick Wrycraft, An Introduction to Mental Health Nursing (McGraw-Hill International,2009)68 3

social values and beliefs influencing attitudes towards mental health. Myths play an important role in leading to discrimination and limiting human rights.21 An illustration given by Thomas Szasz is an example of misconceptions and myths clearly having an impact on discrimination; ‘mental illness is a metaphor that we come to mistake for a fact, and we call people mentality ill when their personal conduct violates certain ethical, political and social norms’.22 Simultaneously, the tabloid media still classify the mentally disordered as ‘knife maniacs’.23 Therefore, several factors such as myths and misconceptions are a way of blinding the public from the value of mental health legislation.

Thus, referring back to the question of whether the mental health legislation since the mid-18th century reflected societies changing attitudes towards the mentally disordered? The answer remains unclear, as it is difficult to determine each and every public opinion. Nevertheless, the mental health legislation has of course encouraged changing attitudes towards mental illness. This is because; the law is a construct of attitudes. It responds to the changes in the society, which again stem from attitudes. Consequently, the 1983 Act promotes patient’s rights, the right not to be detained and consultation from relatives before detaining a person. Patients were deprived from their rights in the 18th century in terms of treating mental disorder. The rights derived form the developing legislation, are said to be a reflection of the societies expectations. Similarly, the introduction of the Human Rights Act 1988 conveys several changes for the mentally disordered. It has been made possible for patients to argue about their infringement of human rights through UK courts.

In spite of this, recent studies by the Department of Health in 2009, show that there have been no overall changes between 1994 and 2009 for changing attitudes towards the mentally disordered. However some exceptions such as; 78% of people now believing that no one has the right to exclude people with mental illness from their neighbourhood24 can be seen. Simultaneously, studies have showed that 83% of the professionals reported that chronic mentally ill are not a preferred population to treat, meaning that, patients are still faced with stigmatizing attitudes by mental health professionals.25 Although these statistics are mainly estimations and do not provide us with definite answers, we can nevertheless draw up, our own inferences from these figures and perhaps argue that

21 Melvyn Freeman, 22 Nicola Glover Thomas, Reconstructing Mental Health Law and Policy ( 23 Nick Parker, shop knife man, shot by owner (2011) < http://www.thesun.co.uk/sol/homepage/news/3167794/.html> accessed 19 November 2012 24 Michael Birch, Mis-Mediating Mental Health: Contexts Analysis and Debate ( 25 Allison L. Smith,

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the legislation has encouraged changing attitudes towards mental illness by 60% since the 18th century.

To conclude, the development of mental health legislation over the recent years have been a continuous debate moving from one view to another. Despite these developments and changes the stigma and humiliation concerning the interpretations on mental health is still continuous today. Numerous people still mistakenly believe that mental illness is a cause of the lack of self – discipline and willpower. Notably, attitudes towards mental health have scarcely changed since the mid 1990’s.26 An individual with a mental health condition beyond question still faces status loss and discrimination.

Nevertheless, this should not blind us to the value of the work provided by the mental health legislation, as there have been changes in psychiatric care and public protection. Mentally discorded patients are more involved in our society, they are not denied for treatments, they are treated in hospitals like any other illnesses; they are not overly excluded from workplaces and they can now receive disability living allowances providing them with additional support. Without the current legislation, this would not have been possible today. Although, the definition of mental illness continues to leave us with a broad definition;27 perhaps the reason lies in the legislations flexibility to adapt to the continuous economic, social and political changes.

The legislation cannot compete with ignorance; however, it has encouraged the involvement of the mentally disordered in to a modern society. I would like to leave you with a quote by Paul Stuart Appelbaum an American psychiatrist, that I to some extent approve; ‘There is no set of interests that alone can or should command the allegiance of those who fashion mental health law, whether on the statute books, neither society's interests in providing treatment to mentally ill person. The purpose of mental health law should be to fashion reasonable compromises between these often-conflicting desiderata’28

(2100 words excluding bibliography)

26James Meikle, Attitudes improving towards mental illness, survey shows (2011) < http://www.guardian.co.uk/society/2011/jun/08/attitudes-mental-health-survey> accessed 11 November 2012 27 Mental Health Act 1983, s1 ‘mental disorder is defined as "any disorder or disability of mind’ 28 Peter Barry Shea, Defining Madness (

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Bibliography Books Allan V. Horwitz, Creating Mental Illness ( Allison L. Smith, Martin & JohnsonLaw and Public Dimension of health ( Melvyn Freeman, M. Rolf Olsen, Michael Birch, Mis-Mediating Mental Health: Contexts Analysis and Debate (

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Nick Wrycraft, An Introduction to Mental Health Nursing (McGraw-Hill International,2009)68 Nicola Glover Thomas, Reconstructing Mental Health Law and Policy ( Patrick, W. Corrigan, and David Roe & Hector Tsang, Changing the Stigma of Mental Illness: Lessons for therapists and advocates (John Willey & Sons, 2011) Paul S. Appelbaum, Almost a Revolution: Mental Health Law & the Limits of Change ( Peter Barry Shea, Defining Madness ( Professor Bob Franklin, Social Policy Media and Misrepresentation ( Professor Phil Fennell, Mental Health: Law and Practice, 2nd edition (Jordan Publishing, 2011) Vivienne Harpwood, Modern Tort Law (Taylor & Francis, 2008) Otto F. Wahl, Media Madness: Public Images of Mental Illness (

Journals Scott Burris, ‘stigma and the law’ (2006) The Lancet, Vol. 367 No. 9509 pp. 529-531

Legislation Human Rights Act 1998 The Madhouses Act 1774 The Mental Health Act 1983, s1 The Poor Law Act 1601 The Vagrancy Act 1744, s20 Website James Meikle, Attitudes improving towards mental illness, survey shows (2011) < http://www.guardian.co.uk/society/2011/jun/08/attitudes-mental-health-survey> accessed 11 November 2012 Nick Parker, shop knife man, shot by owner (2011) < http://www.thesun.co.uk/sol/homepage/news/3167794/.html> accessed 19 November 2012

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