Publishers: Dunedin Academic Press 2006

ISBN: 9781903765616

Price: £12.95

Much that has been written about the new Mental Health Act in Scotland, including the reviewer's own new book, is lengthy and, of its nature, complex.

What a pleasure, then, to read this slim (94 pages), but meticulously researched book from Jacqueline Atkinson, of the Department of Public Health and Social Policy at Glasgow University. Much of Dr Atkinson's work in recent years has examined the interface between mental health law, policy and practice and this new book, in the "Policy and Practice in Health and Social Care" series from Dunedin, clearly illustrates the depth of her knowledge and experience.

Mental health law raises difficult and controversial ethical and policy issues. This title of this book raises one, but arguably, a more difficult one is balancing the individual's right to autonomy with society's duty to intervene to protect vulnerable people at risk.

How should the law take account of risk and benefit, balancing human rights, autonomy and non-discrimination with the need for proper protections if (rarely) a person's mental disorder means s/he is a risk to him/herself or others? The Scottish answer, as seen in the 2003 Mental Health (Care and Treatment) Act, has been generally welcomed by service users, carers and mental health professionals.

The same is not, unfortunately, true south of the border, where questions of risk appear to predominate in a government preoccupied with law and order. (The book shows how a number of high profile cases led to knee-jerk reactions in the Department of Health and Home Office that community care was not working and extra legal safeguards were necessary.)

The book studies the innovative aspects of the Scottish Act, including the Mental Health Tribunal, the controversial community-based compulsory treatment orders, new safeguards for service users, including advocacy, named persons and advance statements, and the protections given to family members and carers. It sets these developments in an international and research-based context, thus providing a useful review of the issues for social policy and disability studies students and academics.

By linking the reforms into the research background, the author highlights areas where further research is needed. It asks many pertinent questions, which could be the basis of future research proposals. We are lucky that the Scottish Executive has committed a substantial sum to fund research into mental health law over the next few years; the Millan Committee was concerned to note how little research there had been into the operation of the 1984 Act.

The book raises some interesting questions. For example, what is the purpose of the community-based compulsory treatment order and how do we judge whether it is a success or a failure? Dr Atkinson shows that international evidence of its efficacy is mixed.

There is an interesting exploration of the role of advance directives in psychiatry, based on the author's extensive research in this area. (This reviewer would not agree with the suggestion that a doctor should rely on an advance directive consenting to future treatment in the event that a patient subsequently appeared to resist such treatment. (p51) The patient's rights would be better safeguarded by recourse to the compulsory measures of the 2003 Act, if appropriate.)

It was not possible for this reviewer to detect many inaccuracies or omissions. While not dealing in any detail with issues relating to children and young people's consent to treatment for mental disorders, the book says the test is whether the child is 'Gillick competent'. (p73) The test is, of course, as set out in the Age of Legal Capacity (Scotland) Act 1991. The reading list should be updated to include the new Mental Welfare Commission guidance on the use of restraints, Rights, risks and limits to freedom (2006). It is perhaps a bit sweeping to say that the 2003 Act 'does not deal with the issue of carers who are children'. (p68) Although a child carer cannot act as named person, she or he should be consulted and his or her views taken into account under the principles of the Act.

It is a pity the book does not deal with how the criminal law and criminal justice system deal with mentally disordered offenders. The author's insights into 'insanity' and diminished responsibility and the orders available to the criminal courts would have been fascinating. Perhaps another book will follow.

This book will be useful and stimulating for many who work in the law, social work and social policy. It illustrates clearly the context within which mental health reform has grappled with issues of public and private protection, while at the same time trying to give more than lip service to the needs and expectations of service users and carers. Mental health law for the 21st century should be non-discriminatory, fair and transparent. Whether the Scottish reforms have succeeded in this aim, Dr Atkinson concludes, only time will tell.

Hilary Patrick, Honorary Fellow, School of Law, Edinburgh University.

The book review was published in SCOLAG, Legal Journal, March 2007, Issue 353. We thank the author and publishers for their permission to reproduce this material.