Law is not static, but evolving. The MHA 1983, which was amended by the MHA 2007, had its roots in the 1959 Act, which incorporated the recommendations of the Percy Commission of 1957. That Commission had concluded:

… that the law should be altered so that whenever possible suitable care may be provided for mentally disordered patients with no more restriction of liberty or legal formality than is applied to people who need care because of other types of illness, disability or social difficulty³.

The Percy Commission recommended that compulsory detention should only be employed where necessary. They made it clear that they wished to see ‘the need for care’ and ‘the justification for compulsion’ as two quite separate questions³. The assumption, they suggested, that compulsory powers must be used unless the patient can express a positive desire for treatment should be abandoned and replaced by ‘the offer of care without deprivation of liberty, to all who need it and are not unwilling to receive it’³. This seems very humane and it got rid of the previous situation in which incapacitated compliant patients had to be detained, because they could not agree to treatment. However, although the subsequent 1959 Act was,

heralded as a great piece of liberalising legislation, … its reputation became tarnished by concern about failures of services and abuses of professional power. The Act was seen as being deficient in safeguarding the rights of detained patients⁴.

So the pendulum swung in favour of greater safeguards for patients. Now we are concerned that the pendulum has gone too far: beyond safeguarding patients to protecting the public from the risks of the potentially dangerous mentally ill⁴. The insistence on reform of the 1983 Act on the part of the government came about when Michael Stone, who had an antisocial personality disorder and had been under psychiatric care, killed a mother and daughter. This led to the home secretary, Jack Straw, offering the following condemnation of psychiatrists:

Quite extraordinarily for a medical profession, they have said they will only take on those patients they regard as treatable. If that philosophy applied anywhere else in medicine there would be no progress whatsoever. It’s time, frankly, that the psychiatric profession seriously examined their own practices and tried to modernize them in a way that they have so far failed to do⁵.

The strength of feelings was shown by the response of Robert Kendell, then the President of the Royal College of Psychiatrists, in a radio interview:

There may be a place for some form of preventative detention for men like this. That is an issue for parliament. The home secretary cannot expect psychiatrists to do his dirty work for him when it is at present excluded by law⁶.

On the grounds that the 1983 Act was intended for a time when community treatment was in its infancy, when detention in hospital was the main issue, the government set about modernizing mental health law in England and Wales⁴. The subsequent history is well documented: following an expert scoping report, a green paper, a white paper, two draft bills and eight years, in the face of ‘vehement, sustained, and almost unanimous opposition from those with an interest in mental health care’⁷, the government announced that it would simply amend the 1983 legislation rather than try to bring in a new Act. Nonetheless, as many feared⁷, it is arguable that the government’s agenda of public safety won the day.

There are certainly contradictory views of the MHA 2007. Writing just before it was passed, Lepping highlighted ‘a clear shift away from liberal individualism towards utilitarian thinking’⁸. His complaint was that the government was focusing largely on risk. He felt that innovations such as community treatment orders and the broadening of the definition of mental disorder favoured ‘public safety considerations over individual rights’⁸. Responding to this paper, just after the Bill became law, Maden retorted that, ‘The best that professionals can do under the 1983 law is sometimes not enough to prevent foreseeable disaster’⁹. He was somewhat dismissive of medical ethics (‘ … much of medical ethics consists of coming to terms with scientific discoveries’) and upbeat about the possibility of predicting violence. In his view, the new Act was a continuation of a process that started with the murder of Jonathan Zito by a psychotic patient in 1992. Since then, he argued, there had been,

a general increase in aversion to risk which is not confined to mental health or, indeed, to any one country. There is no ethical basis for arguing that mental health should remain exempt from this trend, which has swept through most democracies⁹.

Maden then referred to changes to criminal justice legislation in England and Wales that ‘resulted in judges imposing about 150 indeterminate sentences each month on the grounds of public protection’⁹. This reference was to the Criminal Justice Act 2003 , which allows dangerous offenders to be given indeterminate sentences, even if their offences do not otherwise justify such detention. Maden presents this almost as a justification for the changes to mental health legislation, as if to say that psychiatrists should stop moaning about rights and get on with accepting their duty to protect the public. Other psychiatrists, however, have not been so happy with the Criminal Justice Act 2003 , and specifically not with its ethical implications. For,

… under the 2003 Act, psychiatrists are required to give evidence about risk to the sentencing court in relation to a person’s mental disorder, irrespective of the treatability of that disorder. This poses similar ethical dilemmas concerning the use of psychiatry solely for public protection, as well as for punishment of offenders, rather than for treatment⁷.

Furthermore, the emphasis on public protection flies in the face of recommendations made by the government’s own scoping committee – the Richardson Committee: