INTRODUCTION The majority of patients admitted to psychiatric hospitals are voluntary, or informal. The Mental Health Act 1983 (henceforth called ìthe Actî) is concerned with the minority who are unwilling to accept hospitalisation or treatment which others consider essential. It applies to England and Wales. Scotland and Northern Ireland have separate legislation.

Government recently published a Bill, proposing, amongst other highly controversial measures, preventive detention of those with ìdangerous and severe personality disorder,î and allowing detention of those with substance use only (who are explicitly excluded from the current Act).

Perhaps in an illustration of how centralised health care has become, conferences and courses and publications on ìImplementing the Billî have been popular, even though it is self-evidently impossible to ìimplementî something which, as a Bill, is just a proposal before Parliament rather than an actual law. Most mental health professionals and organisations expressed opposition to these proposals. At the time of writing, plans for a new Mental Health Act are on hold.

BACKGROUND Patients in hospital under the Act may be described as ìdetainedî or ìsectionedî. The general aims of the Act are:

• to provide appropriate care for the mentally disordered.
• to safeguard those who are not mentally disordered against wrongful detention.
  

Informed use of this legislation should achieve the best possible compromise between preserving freedom and human rights on the one hand, and protecting both patients and society on the other.

The Act gives no authority over those who do not suffer from mental disorder. It cannot be used to enforce treatment for physical illness, unless the physical illness is believed to be causing a mental disorder.

In a life-threatening situation, emergency treatment may be enforced under common law without applying the Act first.

The Act is applied in the light of an official Code of Practice, which gives helpful practical guidance on many of the clinical dilemmas which arise.

The Act uses four broad diagnostic categories of mental disorder:

• Mental illness, which it does not define.
• Severe mental impairment: a state of arrested or incomplete development of mind 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.
• Mental impairment: as above, except ìnot amounting to severe mental impairmentî is added.
• Psychopathic disorder: a persistent disorder or disability of mind (whether or not including significant impairment of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the person concerned.
  

Antisocial or immoral conduct, sexual deviancy, and misuse of alcohol or drugs are explicitly excluded as grounds for detention. (becuase of the days when, for example, young women who had illegitimate children were sometimes wrongly detained on the spurious grounds of ìmoral insanityî).

However, mental disorders caused by substance misuse, for example alcoholic hallucinosis and amphetamine psychosis, are covered by the Act in the usual way.

COMPULSORY ADMISSIONS For most ìSectionsî, an application is made by either an approved social worker (ASW) employed by local authority social services, or by the nearest relative, on the basis of one or more medical recommendations, for the admission of the patient to an approved hospital. In order to prevent collusion within families, the Code of Practice recommends that an ASW rather than a relative is the applicant, and this is almost always the case.

Section 2: Admission for Assessment
Patient: must have a mental disorder and detention must be necessary for his/her own health or safety or for the protection of others.
Applicant: ASW/nearest relative.
Medical recommendations: two: one must be approved under Section 12 of the Act and is usually a psychiatrist, the other doctor is usually the patientís general practitioner.
Duration: up to 28 days.
Right of appeal: to a Mental Health Tribunal within the first 14 days, also the nearest relative has the power to discharge the patient from the Section.

Section 3: Admission for Treatment
Patient: must have a mental disorder as for Section 2, but if the disorder is psychopathic disorder or mental impairment, there are further requirements that treatment must be considered likely to alleviate or prevent deterioration of the condition. This section permits treatment, as well as detention, against the patientís will.
Duration: up to six months and then renewable; it must be reviewed before expiry.
Right of appeal: to a Mental Health Review Tribunal within the first six months, then once within each renewal period. Review by a tribunal is automatically carried out after six months if the patient has not already applied for a hearing. Renewal is appropriate if treatment is likely to alleviate, or prevent deterioration in, the patientís condition, or (for mental illness or severe mental impairment) the patient, if discharged, would be unlikely to be able to care for himself, or obtain the care he needs, or to guard himself against serious exploitation. The nearest relative can also apply for discharge.

Section 4: Emergency Admission
Patient: as above for Section 2.
Application: nearest relative/ASW.
Recommendation: any one registered medical practitioner, who must have seen the patient within the past 24 hours.
Duration: up to 72 hours.
Right of Appeal: none.
Section 4 is rarely used in practice; it is potentially open to abuse and the Code of Practice advises that it should only be applied when Section 2 would involve unreasonable delay. Section 4 can be converted into Section 2 by adding another doctorís recommendation.

PATIENTS ALREADY IN HOSPITAL Both Sections 2 and 3 can be applied to patients already in hospital. In emergencies, it is possible to use Section 5:

Section 5(2): Application in Respect of a Patient already in Hospital: a voluntary patient can be detained on the recommendation of one doctor, normally the responsible consultant or named deputy, for up to 72 hours.

Section 5(4): Nursesí Holding Power: a voluntary patient can be detained by a registered mental nurse for up to six hours until a doctor is found.

Section 5 may be converted into Section 2 or Section 3 by the appropriate medical and social work opinions.

PATIENTS IN THE COMMUNITY

Section 17: gives a detained patient leave of absence from hospital, either for a predetermined period or an open-ended trial of suitability for discharge. The responsible medical officer can impose any conditions considered necessary in the interests of the patient or for the protection of others, for example administration of depot injections by the community nurse. Patients can be recalled to hospital for health reasons, but the power of recall lapses if not used within six months.

Guardianship: a lesser known and possibly underused section of the Act allows a patient over 16 years old who is suffering from mental disorder to be placed under the supervision of a guardian, either a named individual or the local social services authority. Recommendation is made by two doctors, one approved, and the application by the nearest relative or an approved social worker. The order lasts six months and may be renewed for a further six months in the first instance and subsequently for one year at a time.

A Guardian may, for example, require the patient to reside at a specified place (not a hospital); require access to the patient to be given, at the patientís residence, to any doctor, approved social worker or other specified person; or require the patient to attend at specified places and times for medical treatment, occupation, education and training (but cannot compel the patient to accept the treatment offered).

RELATIVES The Act defines the nearest relative from a set list, beginning with spouse, child, parent and sibling in that order. Elder relatives take precedence in each category, as do relatives who live with or care for the patient. Cohabitees can be designated nearest relatives in some circumstances.

The nearest relative has the power to discharge a patient from Section 2. Section 3 cannot be applied if the nearest relative objects, but an objection can be overruled by a county court if considered unreasonable.

A relative is not legally permitted to consent to treatment on behalf of an adult patient, so consent from the nearest relative does not remove the necessity to apply the Act.

APPROVED SOCIAL WORKERS (ASWs) These have been approved, following specific training, as competent in dealing with mental disorder. Only ASWs (not other social workers) can make application under the Act, and local authorities have a statutory obligation to provide an ASW service. ASWs have a responsibility to ensure that hospital admission is the most appropriate way of dealing with the case. When the nearest relative rather than an ASW makes the application for admission, the hospital managers must request a social work report as soon as possible.

POLICE POWERS

Section 136: allows a police constable who finds a person who appears to suffer from mental disorder in a place to which the public has access to remove him/her to a place of safety for assessment by an ASW, who would usually request medical examination by a police surgeon and a psychiatrist. The person must appear in immediate need of care and control, and detention must appear necessary in the personís own interests or for the protection of others. Although

Section 136 lasts up to 72 hours, good practice requires it to be cancelled after the professional assessment and, if necessary, replaced by Section 2 or 3.

Section 135 allows a constable, on a Magistrateís Warrant, to enter premises to remove a patient to a place of safety for up to 72 hours, if there is reasonable cause to suspect that a person suffering from mental disorder is being ill-treated, neglected or not under proper control, or is unable to care for himself/herself and is living alone. It is used infrequently, as the constable in such a situation traditionally ìsmells gasî and effects an entry under common law.

MENTALLY ABNORMAL OFFENDERS Several Sections of the Act deal with mentally disordered offenders. These Sections are mainly applied after consultation with colleagues such as a forensic psychiatrist and/or a probation officer. Compulsory psychiatric treatment under the Act cannot be given in the prison setting, but only after transfer to a psychiatric hospital.

Accused Persons

Section 35 remands an accused person awaiting trial or sentence to a specified hospital for observation, on evidence from one doctor of reason to suspect mental disorder; in practice it is mainly used for the preparation of psychiatric reports.

Section 36 remands a person accused of an imprisonable offence to hospital for treatment, on the evidence of two doctors, one of whom will be in charge of treatment. The patient must have a mental illness or severe mental impairment.

Both Sections 35 and 36 last 28 days, renewable at 28-danday intervals up to 12 weeks.

Sentenced Persons

Section 37 permits a court to order hospital admission (or occasionally guardianship) for a patient who has committed an imprisonable offence, and who is suffering from mental disorder of a nature or degree which makes this course appropriate. It is imposed as a ìdisposalî, that is, instead of, for example, a prison sentence. Two doctors, one approved, must give evidence. It lasts up to six months, and may be renewed, appeal to a Mental Health Review Tribunal being allowed in the second six months.

Section 38: interim hospital order: allows a trial of psychiatric treatment for three months when a full Section 37 may be inappropriate.

A restriction order (Section 41) can be applied in addition to Section 37, for serious cases in which the patient may not be given leave, transferred or discharged without permission from the Home Secretary (in practice, a particular branch of the Home Office) in order to protect the public. The Home Secretary may sometimes come under pressure from MPs or members of the public in relation to individual patients on restriction orders.

Section 47: transfer of a sentenced prisoner, and Section 48: transfer of other prisoners (including remanded) to hospital, by order of the Home Secretary, on two medical recommendations. A restriction on discharge may be added (Section 49) and applies until the end of the sentence with remission. The patient may appeal to a tribunal in the first six months.

CONSENT TO TREATMENT Somewhat paradoxically, many detained patients consent to have treatment once they are ìsectionedî, but others do not.

Section 58: treatment requiring consent or a second opinion covers the use of ECT in detained patients, and administration of drugs when a particular medication is being continued longer than three months. Administration of such treatment requires that either:

• The patient consented and this has been certified as ìinformedî either by the responsible medical officer or an independent doctor,

or

• An independent doctor has certified that the patient has not given consent or is not capable of understanding the nature, purpose and likely effects of the treatment, but that having regard to the likelihood of its alleviating or preventing deterioration of his/her condition the treatment should be given. The independent doctor must consult two other staff members, one a nurse, the other neither a doctor nor a nurse.

Section 57: treatment requiring consent and a second opinion, covers the special conditions regulating two treatments which have often given rise to ethical concern: psychosurgery, and surgical implantation of hormones to reduce male sexual drive.

Here, the patientís informed consent is not sufficient on its own (whether the patient is detained or voluntary). It must be supported by an independent doctor appointed by the Mental Health Act Commission, and two other non-medical appointed persons who have certified in writing that the patient is capable of understanding the nature, purpose and likely effects of the proposed treatment and has consented to it. This occasionally gives rise to situations where a patient consents to, or even requests, a particular treatment (for example hormone treatment of a sex offender) but the Commission refuses.

Section 62: urgent treatment: a treatment normally restricted under Sections 57 or 58 may be given to a detained patient without obtaining formal consent or a second opinion in an emergency, for example ECT to save the life of a seriously dehydrated depressed patient. In practice, such treatment would often be given under common law.

INFORMATION FOR DETAINED PATIENTS

Section 132 specifies the duties of hospital managers to inform detained patients as soon as possible, both orally and in writing, about their legal position and their rights of appeal.

Detained Patientsí Rights of Appeal There is an initial right of appeal to the hospital managers: unless there has been procedural irregularity, it is unusual for managers to overrule clinicians.

Subsequent appeal is to a Mental Health Review Tribunal, which consists of three members: a lawyer (the chairperson), a doctor and a lay person. Tribunals may discharge detained patients if they consider them no longer dangerous or no longer suffering from mental disorder. They may also recommend leave of absence, or transfer to another hospital. Patients under certain Sections have the right of application to a tribunal. Review by a tribunal is mandatory at specified intervals for some of the longer treatment Sections, such as Section 3, and must be requested by the hospital managers if the patient has not already exercised the right to a tribunal hearing.

Patients may be eligible for Legal Aid to assist them in preparing a case, to obtain an independent medical opinion and to cover the cost of legal representation.

MENTAL HEALTH ACT COMMISSION This is a special multidisciplinary body, its members including doctors, nurses, social workers, lawyers and lay persons. Its function is to see that detained patients are being cared for appropriately and that the Mental Health Act is being properly applied. Members visit every psychiatric unit in the country once or twice a year, and every Special Hospital at least once a month, to see detained patients, ensure the staff are adhering to the principles of the Act, and consider any complaints which have arisen. Appointed members provide independent second opinions.

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MENTAL HEALTH ACTS 1983 AND 2007

The Mental Health Act provides for the compulsory treatment of mentally disordered persons against their will. In fact, only a small percentage of psychiatric patients are treated compulsorily, or ‘on a Section,’ as it is known. The vast majority of psychiatric patients are voluntary, both in the community and also in hospital. Nevertheless, patients sectioned under the Mental Health Act are amongst the most severely affected, and therefore probably those most likely to give rise to negligence complaints.

Psychiatry is unique amongst medical specialties in having a substantial part of it regulated by a special Act. However, the Act itself does not give rise to many allegations of clinical negligence. This is probably at least partly because a system of appeals is built into the working of the Act, with formal rights of appeal to the hospital managers and also to the Mental Health Review Tribunal, both of which have the power to discharge the patient from the Section. Hence, the system, in effect, protects not only the rights of the patient, but also safeguards the doctors, because they have to show that their detention and treatment of the patient meets certain minimum standards. By way of illustration, it is worth remembering that in the most famous case of psychiatric negligence, Mr Bolam sued Friern Barnet Hospital, not for breaches of the Mental Health Act, but for personal injury.

A separate branch of the law has now grown up around the Mental Health Act, with certain firms of solicitors specialising in representing patients at Appeals; a large amount of case law has accrued. However, it is more in the nature of human rights law than negligence law. For these reasons, only a brief summary of the Mental Health Act will be provided here.

Background

The majority of patients admitted to psychiatric hospitals are voluntary, or informal. The Mental Health Act 1983 (henceforth called ‘the Act’) is concerned with the minority who are unwilling to accept hospitalisation or treatment which others consider essential. It applies to England and Wales. Scotland and Northern Ireland have separate legislation. Patients in hospital under the Act may be described as ‘detained’ or ‘sectioned’.

The general aims of the Act are:

(1)    to provide appropriate care for the mentally disordered; and
(2)    to safeguard those who are not mentally disordered against wrongful detention.
Informed use of this legislation should achieve the best possible compromise between preserving freedom and human rights on the one hand, and protecting both patients and society on the other.

The Act gives no authority over those who do not suffer from mental disorder. It cannot be used to enforce treatment for physical illness, unless the physical illness is believed to be causing a mental disorder. In a life-threatening situation, emergency treatment may be enforced under common law without applying the Act first.

The Act is applied in the light of an official Code of Practice, which gives helpful practical guidance on many of the clinical dilemmas which arise.

The Act uses four broad diagnostic categories of mental disorder:

(1) Mental illness, which it does not define.
(2) Severe mental impairment: a state of arrested or incomplete development of mind 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.
(3) Mental impairment: as above, except ‘not amounting to severe mental impairment’ is added.
(4) Psychopathic disorder: a persistent disorder or disability of mind (whether or not including significant impairment of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the person concerned.

Antisocial or immoral conduct, sexual deviancy, and misuse of alcohol or drugs are explicitly excluded as grounds for detention (this harks back to the bad old days, when, for example, young women who had illegitimate children were sometimes detained on the spurious grounds of ‘moral insanity’). However, mental disorders caused by substance misuse, for example alcoholic hallucinosis and amphetamine psychosis, are covered by the Act in the usual way.

Compulsory admissions

For most ‘Sections’, an application is made by either an approved social worker (ASW) employed by local authority social services, or by the nearest relative, on the basis of one or more medical recommendations, for the admission of the patient to an approved hospital. In order to prevent collusion within families, the Code of Practice recommends that an ASW rather than a relative is the applicant, and this is almost always the case.

Section 2: admission for assessment

Patient: must have a mental disorder and detention must be necessary for his/her own health or safety or for the protection of others.

Applicant: ASW/nearest relative.

Medical recommendations: two – one must be approved under s 12 of the Act and is usually a psychiatrist; the other doctor is usually the patient’s general practitioner.

Duration: up to 28 days.

Right of appeal: to a Mental Health Tribunal within the first 14 days, also the nearest relative has the power to discharge the patient from the Section.

Section 3: admission for treatment

Patient: must have a mental disorder as for Section 2, but if the disorder is psychopathic disorder or mental impairment, there are further requirements that treatment must be considered likely to alleviate or prevent deterioration of the condition. This section permits treatment, as well as detention, against the patient’s will.

Duration: up to six months and then renewable; it must be reviewed before expiry.

Right of appeal: to a Mental Health Review Tribunal within the first six months, then once within each renewal period. Review by a tribunal is automatically carried out after six months if the patient has not already applied for a hearing. Renewal is appropriate if treatment is likely to alleviate, or prevent deterioration in, the patient’s condition, or (for mental illness or severe mental impairment) the patient, if discharged, would be unlikely to be able to care for himself, or obtain the care he needs, or to guard himself against serious exploitation. The nearest relative can also apply for discharge.

Section 4: emergency admission

Patient: as above for Section 2.

Application: nearest relative/ASW.

Recommendation: any one registered medical practitioner, who must have seen the patient within the past 24 hours.

Duration: up to 72 hours.

Right of Appeal: none.

Section 4 is rarely used in practice; it is potentially open to abuse and the Code of Practice advises that it should only be applied when Section 2 would involve unreasonable delay. Section 4 can be converted into Section 2 by adding another doctor’s recommendation.

Patients already in hospital

Both Sections 2 and 3 can be applied to patients already in hospital. In emergencies, it is possible to use Section 5:

(1) Section 5(2): application in respect of a patient already in hospital: a voluntary patient can be detained on the recommendation of one doctor, normally the responsible consultant or named deputy, for up to 72 hours.

(2) Section 5(4): nurses’ holding power: a voluntary patient can be detained by a registered mental nurse for up to six hours until a doctor is found.
Section 5 may be converted into Section 2 or Section 3 by the appropriate medical and social work opinions.

Patients in the community

Section 17 gives a detained patient leave of absence from hospital, either for a predetermined period or an open-ended trial of suitability for discharge. The responsible medical officer can impose any conditions considered necessary in the interests of the patient or for the protection of others, for example administration of depot injections by the community nurse. Patients can be recalled to hospital for health reasons, but the power of recall lapses if not used within six months.

Guardianship is a lesser known and possibly underused section of the Act which allows a patient over 16 years old who is suffering from mental disorder to be placed under the supervision of a guardian, either a named individual or the local social services authority. Recommendation is made by two doctors, one approved, and the application by the nearest relative or an approved social worker. The order lasts six months and may be renewed for a further six months in the first instance and subsequently for one year at a time. A Guardian may, for example, require the patient to reside at a specified place (not a hospital), require access to the patient to be given, at the patient’s residence, to any doctor, approved social worker or other specified person, or require the patient to attend at specified places and times for medical treatment, occupation, education and training (but cannot compel the patient to accept the treatment offered).

Relatives

The Act defines the nearest relative from a set list, beginning with spouse, child, parent and sibling in that order. Elder relatives take precedence in each category, as do relatives who live with or care for the patient. Cohabitees can be designated nearest relatives in some circumstances. The nearest relative has the power to discharge a patient from Section 2. Section 3 cannot be applied if the nearest relative objects, but an objection can be overruled by a county court if considered unreasonable. A relative is not legally permitted to consent to treatment on behalf of an adult patient, so consent from the nearest relative does not remove the necessity to apply the Act.

Approved social workers (ASWs)

These have been approved, following specific training, as competent in dealing with mental disorder. Only ASWs (not other social workers) can make application under the Act, and local authorities have a statutory obligation to provide an ASW service. ASWs have a responsibility to ensure that hospital admission is the most appropriate way of dealing with the case. When the nearest relative rather than an ASW makes the application for admission, the hospital managers must request a social work report as soon as possible.

Police powers

Section 136 allows a police constable who finds a person who appears to suffer from mental disorder in a place to which the public has access to remove him/her to a place of safety for assessment by an ASW, who would usually request medical examination by a police surgeon and a psychiatrist. The person must appear in immediate need of care and control, and detention must appear necessary in the person’s own interests or for the protection of others. Although Section 136 lasts up to 72 hours, good practice requires it to be cancelled after the professional assessment and, if necessary, replaced by Section 2 or 3.

Section 135 allows a constable, on a Magistrate’s Warrant, to enter premises to remove a patient to a place of safety for up to 72 hours, if there is reasonable cause to suspect that a person suffering from mental disorder is being ill-treated, neglected or not under proper control, or is unable to care for himself/herself and is living alone. It is used infrequently, as the constable in such a situation traditionally ‘smells gas’ and effects an entry under common law.

Mentally abnormal offenders

Several sections of the Act deal with mentally disordered offenders. These sections are mainly applied after consultation with colleagues such as a forensic psychiatrist and/or a probation officer. Compulsory psychiatric treatment under the Act cannot be given in the prison setting, but only after transfer to a psychiatric hospital.

Accused persons
Section 35 remands an accused person awaiting trial or sentence to a specified hospital for observation, on evidence from one doctor of reason to suspect mental disorder; in practice it is mainly used for the preparation of psychiatric reports. Section 36 remands a person accused of an imprisonable offence to hospital for treatment, on the evidence of two doctors, one of whom will be in charge of treatment. The patient must have a mental illness or severe mental impairment. Both Sections 35 and 36 last 28 days, renewable at 28-day intervals up to 12 weeks.

Sentenced persons
Section 37 permits a court to order hospital admission (or occasionally guardianship) for a patient who has committed an imprisonable offence, and who is suffering from mental disorder of a nature or degree which makes this course appropriate. It is imposed as a ‘disposal’, that is, instead of, for example, a prison sentence. Two doctors, one approved, must give evidence. It lasts up to six months, and may be renewed, appeal to a Mental Health Review Tribunal being allowed in the second six months.

A Section 38 interim hospital order allows a trial of psychiatric treatment for three months when a full Section 37 may be inappropriate.

A restriction order (Section 41) can be applied in addition to Section 37, for serious cases in which the patient may not be given leave, transferred or discharged without permission from the Home Secretary (in practice, a particular branch of the Home Office) in order to protect the public. The Home Secretary may sometimes come under pressure from MPs or members of the public in relation to individual patients on restriction orders.

Section 47: transfer of a sentenced prisoner, and Section 48: transfer of other prisoners (including remanded) to hospital, by order of the Home Secretary, on two medical recommendations. A restriction on discharge may be added (Section 49) and applies until the end of the sentence with remission. The patient may appeal to a tribunal in the first six months.

Consent to treatment

Somewhat paradoxically, many detained patients consent to have treatment once they are ‘sectioned’, but others do not.

Treatment requiring consent or a second opinion (Section 58) covers the use of ECT in detained patients, and administration of drugs when a particular medication is being continued longer than three months. Administration of such treatment requires that either:

(1)    the patient consented and this has been certified as ‘informed’ either by the responsible medical officer or an independent doctor; or
(2)    an independent doctor has certified that the patient has not given consent or is not capable of understanding the nature, purpose and likely effects of the treatment, but that having regard to the likelihood of its alleviating or preventing deterioration of his/her condition the treatment should be given. The independent doctor must consult two other staff members, one a nurse, the other neither a doctor nor a nurse.

Treatment requiring consent and a second opinion (Section 57) covers the special conditions regulating two treatments which have often given rise to ethical concern: psychosurgery (now almost obsolete), and surgical implantation of hormones to reduce male sexual drive.

Here, the patient’s informed consent is not sufficient on its own (whether the patient is detained or voluntary). It must be supported by an independent doctor appointed by the Mental Health Act Commission, and two other non-medical appointed persons who have certified in writing that the patient is capable of understanding the nature, purpose and likely effects of the proposed treatment and has consented to it.

This occasionally gives rise to situations where a patient consents to, or even requests, a particular treatment (for example hormone treatment of a sex offender) but the Commission refuses.

Under Section 62 (urgent treatment) a treatment normally restricted under Sections 57 or 58 may be given to a detained patient without obtaining formal consent or a second opinion in an emergency, for example ECT to save the life of a seriously dehydrated depressed patient. In practice, such treatment would often be given under common law.

Information for detained patients

Section 132 specifies the duties of hospital managers to inform detained patients as soon as possible, both orally and in writing, about their legal position and their rights of appeal.

Detained patients’ rights of appeal

There is an initial right of appeal to the hospital managers: unless there has been procedural irregularity, it is unusual for managers to overrule clinicians.

Subsequent appeal is to a Mental Health Review Tribunal, which consists of three members: a lawyer (the chairperson), a doctor and a lay person. Tribunals may discharge detained patients if they consider them no longer dangerous or no longer suffering from mental disorder. They may also recommend leave of absence, or transfer to another hospital. Patients under certain Sections have the right of application to a tribunal. Review by a tribunal is mandatory at specified intervals for some of the longer treatment Sections, such as Section 3, and must be requested by the hospital managers if the patient has not already exercised the right to a tribunal hearing.

Patients may be eligible for Legal Aid to assist them in preparing a case, to obtain an independent medical opinion and to cover the cost of legal representation.

Mental Health Act Commission

This is a special multidisciplinary body, its members including doctors, nurses, social workers, lawyers and laypersons. Its function is to see that detained patients are being cared for appropriately and that the Mental Health Act is being properly applied. Members visit every psychiatric unit in the country once or twice a year, and every Special Hospital at least once a month, to see detained patients, ensure the staff are adhering to the principles of the Act, and consider any complaints which have arisen. Appointed members provide independent second opinions.

Mental Health Act 2007

Government originally published a Bill, proposing, amongst other highly controversial measures, preventive detention of those with ‘dangerous and severe personality disorder,’ and allowing detention of those with substance use only, who are explicitly excluded from the 1983 Act. Perhaps in an illustration of how centralised health care has become, conferences and courses and publications on ‘Implementing the Bill’ were popular, even though it is self-evidently impossible to ‘implement’ something which, as a Bill, is just a proposal before Parliament rather than an actual law.

Most mental health professionals and organisations expressed opposition to these proposals, on civil liberties and other grounds, and in the event, the 2007 Mental Health Act dropped most of the controversial proposals, and merely amended the 1983 Act.

The major amendments made by the 2007 Act will be:

(1)        one definition of mental disorder;

(2)        detained patients to have advocacy;

(3)        patients under 18 to be in age-appropriate units;

(4)        a new ‘appropriate medical treatment’ test will apply to Section 3 and other long term sections;

(5)        functions currently performed by the Approved Social Worker (ASW) and Responsible Medical Officer (RMO) to be available to be done also by other disciplines;

(6)        Supervised Community Treatment for patients post-discharge; it is presently unclear if these will have powers greater than the existing Section 25/ Guardianship provisions, which are widely regarded (except in learning disability) as toothless, and are consequently little used; and

(7)        new controls on Electro-convulsive Therapy.

The Care Services Improvement Partnership (CSIP) has been tasked with implementing the changes on behalf of the Department of Health, including training, advocacy, Supervised Community Treatment, administration and new roles and ways of working.

The Act generally comes into force in October 2008, so its practical effects cannot yet be judged.

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